Ex parte Gutierrez

OPINION

ESQUIVEL, Justice.

Relator, Enrique G. Gutierrez, has applied to us for a writ of habeas corpus alleging that he has been illegally restrained of his liberty by the Sheriff of Bexar County, Texas, under a void contempt order of the District Court of said county. The relator was found in contempt for failure to make child support payments of $15.00 a week as ordered by the court on September 28,1979. Relator was found to be in arrears of $1,390.00. We granted bail pending a hearing in this Court.

On October 5,1983, a hearing was held in which relator was found guilty of contempt for failing and refusing to make child support payments. The order recites that the relator, having been given due and timely notice, did not appear. The court sentenced relator to six months in the Bexar County jail and assessed a $100.00 fine. He was ordered to remain in custody until the child support arrears of $1,390.00 have been fully paid.

This is a ease of constructive contempt. Enrique G. Gutierrez’s confinement was pursuant to TEX.REY.CIV.STAT. ANN. art. 1911a (Vernon Supp.1982-1983) and TEX.FAM.CODE ANN. § 14.09(a), (c) (Vernon 1975), as punishment for his failure to comply with a court order which was to be performed outside the presence of the court. Gutierrez alleges that the contempt order is void because he was tried and sentenced in absentia, without an affirmative finding that he voluntarily waived his right to be present at the contempt hearing. This, relator contends, was a violation of due process.

In Ex parte Johnson, 654 S.W.2d 415, 421 (Tex.1983), the Supreme Court held that persons charged with criminal contempt pursuant to article 1911a are constitutionally guaranteed the right to be present at trial and confront witnesses; anything less would be a violation of due process. The record in this case is devoid of any affirmative finding by the trial court of a waiver by relator of the right to attend the contempt hearing.

Therefore, absent any proof that relator knowingly, intelligently and voluntarily waived his right to be present at the contempt hearing, we hold that the trial court erred in proceeding with the contempt hearing in the absence of Enrique G. Gutierrez.

The relator is ordered discharged.