Ex Parte: Eddie C. Holdren, Relator

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-571-CV







EX PARTE: EDDIE C. HOLDREN, RELATOR













ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY

PER CURIAM

Relator Eddie C. Holdren has filed an original habeas corpus proceeding in this Court by which he seeks discharge from the custody of the sheriff of Williamson County. See Tex. Gov't Code Ann. § 22.221(d) (West Supp. 1993); Tex. R. App. P. 120. Relator is confined in jail pursuant to an judgment of contempt and order of commitment rendered by the district court of Williamson County. ⁽¹⁾ We will deny the application for writ of habeas corpus.

Relator was required to pay the amount of $300.00 per month beginning December 15, 1987, to Sharon K. Holdren ("Holdren") for the support of their two children. In December 1989, the Attorney General of Texas filed a motion for enforcement and for further orders on child support obligation on Holdren's behalf. See Tex. Hum. Res. Code Ann. § 76.007 (West 1990); Attorney Gen. of Tex. v. Steen, 833 S.W.2d 175 (Tex. App.--Austin 1992, no writ). After a hearing in November 1990, the district court of Williamson County reduced the arrearage to judgment in the amount of $8,349.45; found relator in contempt for failure to pay the court-ordered support; and ordered him confined to jail for 180 days and thereafter until he paid the amount of $2,400.00 toward the arrearage. The trial court deferred commitment until December 21, 1990.

Relator failed to appear on that date and the trial court issued an order for writ of commitment on January 8, 1991. In August 1992, relator turned himself in to the Williamson County sheriff. After a hearing, the trial court remanded relator to the custody of the sheriff as ordered in November 1990. Relator filed his application for writ of habeas corpus with this Court on November 23, 1992.

In his application, relator generally asserts that he was not represented by counsel and that he did not have the means to pay support. ⁽²⁾ In its response, the Attorney General states that, in November 1990, the trial court held a hearing and determined that relator was not indigent and, therefore, not entitled to court-appointed counsel. See Tex. Fam. Code Ann. § 14.32(f) (West Supp. 1993). The court then reset the hearing on the motion to enforce to allow relator time to obtain counsel. The order of November 16, 1990, States that relator appeared in person "after previously being found not indigent." The trial court also found that relator was financially able to make the payments on the date each was due.

The matter is before this Court without statements of fact from the relevant hearings. See Tex. R. App. P. 120(b)(7). We recognize that relator has had difficulty in submitting a record to this Court. Nevertheless, we are unable to review his contentions that he is indigent and unable to pay the amounts as ordered in the absence of a sufficient record. See Ex parte Linder, 783 S.W.2d 754, 760 (Tex. App.--Dallas 1990, orig. proceeding); Ex parte Crawford, 506 S.W.2d 920, 922 (Tex. Civ. App. 1974, orig. proceeding) (if granting of application for writ of habeas court depends on factual evidence such as inability to comply with order or to employ attorney, reviewing court cannot determine issue without statement of facts). Relator has the burden to bring forth a record sufficient to show his entitlement to relief. Tex. R. App. P. 120(b)(7); Ex parte Occhipenti, 796 S.W.2d 805, 808-09 (Tex. App.--Houston [1st Dist.] 1990, orig. proceeding); Ex parte Lowery, 518 S.W.2d 897, 899 (Tex. Civ. App.--Beaumont 1975, orig. proceeding).

This Court recognizes that relator's incarceration may affect his ability to pay the amounts necessary to purge himself of contempt. See Ex parte Dustman, 538 S.W.2d 409, 410 (Tex. 1976, orig. proceeding); Ex parte King, 819 S.W.2d 944, 946-47 (Tex. App.--Houston [14th Dist.] 1991, orig. proceeding). Without a sufficient record, however, this Court cannot determine if relator conclusively established that he is unable to pay the delinquency and that he has no source from which he might expect to obtain the funds to discharge the arrearage. See Ex parte Ramon, 821 S.W.2d 711, 713 (Tex. App.--San Antonio 1991, orig. proceeding); King, 819 S.W.2d at 946-47. It appears that, after relator serves the 180 days, the trial court should hold a hearing to determine whether relator can comply with the coercive portion of the contempt judgment. See Dustman, 538 S.W.2d at 410; King, 819 S.W.2d at 945.

We deny the application for writ of habeas corpus. See Tex. R. App. P. 120(d).

[Before Chief Justice Carroll, Justices Jones and Kidd]

Application for Writ of Habeas Corpus Denied

Filed: January 20, 1993

[Do Not Publish]

1.   Holdren appears before this Court pro se and states that he is unable to obtain copies of the relevant orders. At this Court's request, the district clerk of Williamson County submitted certified copies of the final decree of divorce, the motion for enforcement, the order enforcing child support obligation, and the order for writ of commitment. At this Court's request, the Attorney General of Texas filed a response to relator's application.

2.   Relator also suggests that the amount of the arrears incorrectly included amounts for medical expenses. Our review of Holdren's motion for enforcement and the trial-court order indicates that such amounts are not part of the total arrearage of $8349.45. The order expressly states that the amount does not include "arrears for medical insurance premium coverage payments." Relator also states that he was found guilty of criminal non-support. See Tex. Penal Code Ann. § 25.05 (West 1989). The record does not show a prosecution or a conviction pursuant to this provision.