in Re: Jimmy Ash

Petition for Writ of Habeas Corpus Granted and Memorandum Opinion filed June 29, 2006

Petition for Writ of Habeas Corpus Granted and Memorandum Opinion filed June 29, 2006.

In The

Fourteenth Court of Appeals

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NO.  14-06-00413-CV

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IN RE JIMMY ASH, Relator

ORIGINAL PROCEEDING

WRIT OF HABEAS CORPUS

M E M O R A N D U M  O P I N I O N

Relator Jimmy Ash challenges the trial court=s contempt judgment and order of commitment, both dated March 7, 2006, claiming that: the order underlying the contempt judgment is not sufficiently specific to be enforced by contempt; the contempt order is itself vague; and he established his inability to comply with the contempt order.  For the reasons addressed below, we grant the writ of habeas corpus. 

Background

This original proceeding stems from a dispute between real party in interest Edward Sustala, Jr., and relator and his brother, Billy Ash.  Sustala was purchasing a lot in Tomball, Texas, under a contract for deed, and hired the Ashes to build a home on the lot.  A disagreement arose concerning construction of the home, and Sustala filed suit against the Ashes.^[1] Sustala filed a AMotion for Preservation of Property@ in the trial court, requesting an order that he or the Ashes secure an occupancy permit to enable electrical service to be connected to the house, primarily to maintain air conditioning. The trial court granted Sustala=s motion by order dated August 29, 2005 (the AAugust 29 order@), and Sustala subsequently moved that the court hold the Ashes in contempt for failing to comply with that order.  A hearing was conducted on March 6 and 7, 2006,^[2] resulting in the trial court=s contempt judgment and its commitment order that are the subject of relator=s habeas corpus petition.  In the contempt judgment, relator was sentenced to jail for one-month or Auntil he purges himself of contempt by performing those things set out in the [August 29 order].@^[3]  The commitment order also stated relator was to remain confined until he complied with the August 29 order. Currently, relator is out of jail on a $5000 bond.

Standard of Review

An original habeas corpus proceeding is a collateral attack on a contempt judgment.  In re Broussard, 112 S.W.3d 827, 831 (Tex. App.CHouston [14th Dist.] 2003, orig. proceeding).  The purpose of a writ of habeas corpus is not to determine the guilt or innocence of the contemnor, but only to determine whether he was afforded due process of law or the order of contempt is void.  Id.  A court will issue a writ of habeas corpus if the order underlying the contempt order is void, or if the contempt order itself is void.  In re Nesevitch, 93 S.W.3d 510, 512 (Tex. App.CHouston [14th Dist.] 2002, orig. proceeding).  To grant relator the requested relief, we must find that the trial court=s order directing relator=s incarceration is void either because it is beyond the court=s power to issue, or because it deprives relator of his liberty without due process of law.  In re Henry, 154 S.W.3d 594, 596 (Tex. 2005); In re Broussard, 112 S.W.3d at 831.  On review, we do not weigh the proof and determine whether it preponderates for or against the relator; we determine only if the contempt judgment is void.  Ex parte Chambers, 898 S.W.2d 257, 259B60 (Tex. 1995).^[4]

Discussion

 In his petition, relator raises six issues; however, because it is dispositive, we address only his argument regarding the specificity of the August 29 order. That order states as follows:

It is therefore ORDERED that Defendants Billy and Jimmy Ash shall each cause to be secured . . . all necessary permits, and shall provide all necessary labor and materials, to connect the air conditioning unit and the water supply to the property . . . . It is further ORDERED that [Sustala] shall pay for the electrical and water utilities for the property until further order of this Court, or trial on the merits. [Sustala] is hereby ruled to not move into said property once the electricity is connected. 

Relator contends that the August 29 order is not sufficiently specific to be enforceable by contempt because, though it expressly requires him to obtain permits and provide labor necessary to Aconnect the air conditioning unit,@ it does not specify the exact scope of his duty to Aconnect.@  In response, real party argues that connecting the air-conditioning unit is a straightforward task and thus, the August 29 order is enforceable by contempt.^[5]

A criminal contempt conviction for disobedience to a court order requires proof beyond a reasonable doubt of:  (1) a reasonably specific order;  (2) a violation of the order;  and (3) the willful intent to violate the order.  Ex parte Chambers, 898 S.W.2d at 259.  The order underlying a contempt judgment must set forth the terms of compliance in clear, specific, and unambiguous terms so that the person charged with obeying the order will readily know exactly what duties and obligations are imposed upon him. Id. at 260; In re Houston, 92 S.W.3d 870, 877 (Tex. App.CHouston [14th Dist.] 2002, orig. proceeding).  The question of whether an order is enforceable by contempt depends on whether the order is definite and certain, and the focus is on the wording of the judgment itself.  Ex parte Reese, 701 S.W.2d 840, 841 (Tex. 1986).  If the court=s order requires inferences or conclusions about which reasonable persons might differ, it is insufficient to support a judgment of contempt.  Ex parte Chambers, 898 S.W.2d at 260.  Only reasonable alternative constructions, however, prevent enforcement of the order.  Id. AThe order need not be full of superfluous terms and specifications adequate to counter any flight of fancy a contemnor may imagine in order to declare it vague.@  Id.

In this case, the plain language of the order states that relator is required to secure all permits and provide the necessary labor and materials to Aconnect@ the air-conditioning unit to the home.  We agree with relator that an ambiguity arises in the interpretation of the term Aconnect.@   To illustrate the ambiguity, consider that the trial court and Sustala construed the August 29 order as requiring relator to ensure that electric service was actually provided to the home.  By contrast, relator asserts that his duty to Aconnect@ meant only that the air-conditioning unit was Ahooked up,@ or attached,^[6] to the home so that it would be operational once the electricity was turned on by the utility company.

In sum, there is an ambiguity in the August 29 order as to what was required of relator to Aconnect@ the air-conditioning unit to the home.  AConnect@ was construed by the trial court and Sustala as requiring that electric service be provided to the home.  It is not clear from the August 29 order=s plain language that electric service had to be turned on. The August 29 order merely requires relator to Aprovide the necessary labor and material to connect@ the air-conditioning unit to the home.  Thus, because the order does not facially advise relator with sufficient certainty what was required of him, it is unenforceable.  See, e.g., Ex parte Reese, 701 S.W.2d at 842; Ex parte Glover, 701 S.W.2d 639, 640 (Tex. 1985); see also Zeolla v. Zeolla, 15 S.W.3d 239, 242 (Tex. App.CHouston [14th Dist.] 2000, pet. denied) (stating that consent judgment with a latent ambiguity was not specific enough to enforce by contempt).  Because the contempt and commitment orders are based on an unenforceable order, they are void.^[7]

Conclusion

The August 29 order is ambiguous and vague, and cannot be enforced by contempt.  Therefore, we conclude that the trial court=s contempt judgment is void, and we order relator, Jimmy Ash, discharged and the return of the $5000 bond. 

/s/        Adele Hedges

Chief Justice

Petition Granted and Memorandum Opinion filed June 29, 2006.

Panel consists of Chief Justice Hedges, and Justices Yates and Guzman. 

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^[1]Although Sustala also filed suit against Toby Smith, the individual from whom he was purchasing the lot, Smith is not a party to this original proceeding.

^[2]A first contempt hearing was held on January 9, but because relator had not been properly served, real party requested and was granted a continuance.

^[3]Following the contempt hearing, relator was taken into custody.

^[4]The distinction between civil and criminal contempt affects a due process analysis.  In re Johnson, 150 S.W.3d 267, 271 (Tex. App.CBeaumont 2004, orig. proceeding) (op. on rhr=g).  Criminal contempt punishes for past violations, while civil contempt coerces future actions because the contemnor can avoid punishment by complying with the court=s order.  Ex parte Busby, 921 S.W.2d 389, 391 (Tex. App.CAustin 1996, pet. ref=d).  Both criminal and civil contempt provisions may be contained in one order, referred to as a Ahybrid@ order.  Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex. 1986); Ex parte Busby, 921 S.W.2d at 391.  Here, the contempt order imposed a jail sentence, a fine, and further ordered relator confined until he could purge himself of the contempt by complying with the August 29 order.  Although the order permitted relator to purge himself of the jail sentence, he could not purge himself of the fine; therefore, the contempt order is a Ahybrid.@  See, e.g., Ex parte Busby, 921 S.W.2d at 391 (concluding order containing fine that could not be purged was a hybrid order).

^[5]Real party also asserts that relator approved the form of the order, but he does not cite, nor did we find, any authority to support the assertion that relator waived objections to an invalid contempt order by merely approving the underlying order as to form.

^[6]AConnect@ is defined as Ato join, fasten or link together.@  Webster=s Third New International Dictionary 480 (1993 ed.).

^[7]Also, because the contempt order and commitment order state only that relator must comply with the August 29 order to gain release, those orders are similarly vague and violate relator=s due process rights.  See Ex parte Proctor, 398 S.W.2d 917, 918 (Tex. 1966).