in Re Chouaib Aberkane

Petition for Writ of Habeas Corpus Granted and Memorandum Opinion filed
February 14, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00937-CV
IN RE CHOUAIB ABERKANE, Relator
ORIGINAL PROCEEDING
WRIT OF HABEAS CORPUS
280th District Court
Harris County, Texas
Trial Court Cause No. 2022-30820
MEMORANDUM OPINION
On December 29, 2022, relator Chouaib Aberkane filed a petition for writ of
habeas corpus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R.
App. P. 52. In the petition, relator asks this court to vacate as void the December
12, 2022 order revoking suspension and for commitment to county jail. We grant
the petition.1
BACKGROUND
On July 28, 2022, the trial court signed an agreed protective order, prohibiting
relator from communicating with Laura Depree in a threatening or harassing manner.
The parties also agreed to use the Talking Parents App to communicate about matters
pertaining to the children.
On August 12, 2022, Depree filed a motion for enforcement of the protective
order and order to appear, alleging that relator had violated the protective order by
continuing to communicate with Depree in a threatening and harassing manner and
engaging in conduct that is likely to harass, annoy, alarm, abuse, torment, or
embarrass Depree. Depree asked that relator be held in contempt, fined up to $500,
and jailed for up to six months.
The trial court held a hearing on September 30, 2022, and signed an order
holding relator in contempt on October 17, 2022. The trial court found that relator
failed to use the Talking Parents App to discuss issues concerning the children’s
health, education, and welfare, but, instead, used it to harass Depree by
communicating with Depree in a threatening and harassing manner in multiple
messages. Therefore, the trial court found relator in contempt and assessed
punishment at six months confinement in Harris County Jail. The trial court ordered
the sentence suspended for six months on the conditions that relator (1) not
1
We issued an order setting bond and requesting a response to the petition. Real party in
interest Laura Depree did not file a response.
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communicate directly with any protected person in a threatening or harassing
manner; (2) not communicate a threat through any person to a protective person; and
(3) pay $5,000 in Depree’s attorney’s fees. The order further noted that the parties
acknowledged that Depree’s attorney had received the $5,000 payment from relator
and attorney’s fee was no longer an obligation with regard to that matter.
On November 11, 2022, Depree filed a motion to revoke suspension of
commitment and order to appear, alleging that relator had violated the October 17,
2022 order by continuing to communicate with her in a threatening and harassing
manner and engaging in conduct directed toward her that is likely to harass, annoy,
alarm, abuse, torment, or embarrass her in multiple message on several specified
dates in October 2022. Depree also requested attorney’s fees in connection with the
motion to revoke.
The trial court held an evidentiary hearing on December 12, 2022. The trial
court advised relator of his right to remain silent, which relator invoked. Depree
provided the only testimony on the allegations that relator had violated the terms of
the suspension of commitment. At the conclusion of the hearing, the trial court
orally found relator in contempt for violating the terms of the suspension of
commitment by communicating with Depree in a harassing manner and revoked the
suspension of commitment. The trial court further sentenced relator to “six months”
in the Harris County Jail, stating “The date that I put in the order, I calculated it for
180 days, will be beginning today December the 12th, 2022, and ending June the
15th, 2023.” However, in the written order, the trial court crossed out “180” and
inserted “Beginning December 12, 2022 and ending June 15, 2023[,]” which is 185
days and more than six months.
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Relator asserts that he is entitled to habeas corpus relief because the order
revoking the suspension of commitment is void.
STANDARD OF REVIEW
The power to punish a party who fails or refuses to obey a prior court order or
decree is an inherent power of a court and is an essential element of judicial
independence and authority. Ex parte Bennett, 600 S.W.2d 252, 254 (Tex. 1980)
(orig. proceeding). An original habeas corpus proceeding is a collateral attack on a
contempt order. Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967) (orig.
proceeding). The purpose of a habeas corpus proceeding is not to determine the guilt
or innocence of the contemnor, but only to determine whether he has been
unlawfully restrained. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig.
proceeding). To order a contemnor released, the trial court’s order directing the
contemnor to be confined must be void because it was beyond the power of the court
or because relator was deprived of liberty without due process of law. Bennett, 600
S.W.2d at 254; see also In re Office of Att’y Gen., 422 S.W.3d 623, 628 (Tex. 2013)
(orig. proceeding) (stating that contempt order is void if it is beyond power of court
or violates due process). The contemnor bears the burden of showing that he is
entitled to relief. In re Chaumette, 439 S.W.3d 412, 415 (Tex. App.—Houston [1st
Dist.] 2014, orig. proceeding).
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ANALYSIS
Right to Jury Trial
Relator argues that the commitment order is void because the trial court
sentenced him to confinement for more than 180 days without admonishing him of
his right to a jury trial and without a waiver of a jury trial.
An absolute right to trial by jury in contempt proceedings does not exist. Ex
parte Casillas, 25 S.W.3d 296, 299 (Tex. App.—San Antonio 2000, orig.
proceeding). Punishment assessed for criminal contempt beyond 180 days is
considered “serious” and may not be assessed unless there was a jury trial or a jury
waiver. In re Newby, 370 S.W.3d 463, 466 (Tex. App.—Fort Worth 2012, orig.
proceeding); Ex parte Johns, 807 S.W.2d 768, 771 (Tex. App.—Dallas 1991, orig.
proceeding). When the right to a jury trial exists, the record must show that the court
informed the contemnor of that right and that the contemnor affirmatively waived
that right. Newby, 377 S.W.3d at 466; Casillas, 25 S.W.3d at 299.
Section 21.002(b) of the Texas Government Code provides that punishment
for a single act of contempt of court is a fine of not more than $500 or confinement
in the county jail for not more than six months or both. Tex. Gov’t Code § 21.002(b).
Punishment within these limits is characterized as petty. Newby, 377 S.W.3d at 466;
Casillas, 25 S.W.3d at 299; Johns, 807 S.W.2d at 771
The order revoking suspension of commitment sentenced relator to more than
180 days confinement in the Harris County Jail. Relator’s punishment is considered
“serious” and no punishment exceeding 180 days could have been assessed without
a jury trial or without relator’s waiver of a jury trial. See Newby, 370 S.W.3d at 466;
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Johns, 807 S.W.2d at 771. A review of the reporter’s record shows that the trial
court did not advise relator of his right to a jury trial or that relator affirmatively
waived that right. We will not presume that relator waived his right to a jury trial
from a silent record. Ex parte Sproull, 815 S.W.2d 250, 250 (Tex. 1991) (orig.
proceeding) (per curiam) (“We will not presume from a silent record that that a
contemnor has waived his right to a jury trial.”); Ex parte Griffin, 682 S.W.2d 261,
262 (Tex. 1984) (orig. proceeding) (explaining, that in contempt hearing for a
serious offense, waiver of right to jury trial cannot be presumed from silent record).
Because relator was not given a jury trial and did not waive such right, we conclude
that the trial court’s order imposing a 185-day sentence violates relator’s right to trial
by jury and is void. See In re Levingston, S.W.2d 996 S.W.2d 936, 938 (Tex. App.—
Houston [14th Dist.] 1999, orig. proceeding) (holding criminal contempt portion of
trial court’s order was void because it violated relator’s right to jury trial where trial
court failed to advise relator of right to jury trial and relator did not affirmatively
waive that right).
Purging of Contempt
Relator further argues that the trial court did not have the authority to order
him to pay an additional amount of attorney’s fees to purge his contempt. The order
revoking suspension of commitment sentenced relator to confinement for an
indeterminate period of time with his release conditioned upon paying $5,000 in fees
to Depree’s attorney for worked performed in connection with the motion to revoke
the suspension of commitment. Relator was not held in contempt for failing to pay
those attorney’s fees. Therefore, the remainder of the order, which awards Dupree
her attorney’s fees for work on the motion to revoke suspension of commitment and
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compels relator to pay those fees to purge the contempt, is void because relator was
not held in contempt for failing to pay those fees. See O’Keeffe, No. 05-18-00371-
CV, 2018 WL 2296495, at *3 (Tex. App.—Dallas May 21, 2018, orig. proceeding)
(mem. op.) (holding that order requiring payment of attorney’s fees to purge
contempt was void because relator was not held in contempt for failing to pay those
fees and costs); In re Patillo, 32 S.W.3d 907, 910 (Tex. App.—Corpus Christi 2000,
orig. proceeding) (holding that party may not be confined for amounts he was not
held in contempt for failing to pay.)
CONCLUSION
Accordingly, we grant relator’s petition for writ of habeas corpus, order
relator released from bond set by this court on July 22, 2106, and order relator
discharged from custody.2 Relator’s motion to abate and motion to stay are denied
as moot.
PER CURIAM
Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson.
2
Relator also urges that the order revoking suspension and is void because the trial court cannot
order that relator is not eligible for good time credit. In light of our disposition of relator’s other issues.
We need not address this issue in order to resolve this habeas corpus proceeding.
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