Ex Parte Armando Hernandez

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00098-CV
EX PARTE Armando HERNANDEZ
Original Habeas Corpus Proceeding 1
PER CURIAM
Sitting: Karen Angelini, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: March 25, 2015
PETITION FOR WRIT OF HABEAS CORPUS GRANTED
Relator, Armando Hernandez, contends in this original habeas corpus proceeding that he
was improperly held in contempt of court and committed to Bexar County jail for refusing to
answer questions after asserting his Fifth Amendment privilege against self-incrimination on the
advice of counsel. We agree and therefore grant the petition for writ of habeas corpus.
Background
In response to questions propounded by opposing counsel during a hearing on a motion for
injunctive relief, Hernandez asserted his Fifth Amendment privilege against self-incrimination.
The trial court ordered Hernandez to answer the questions. Hernandez again refused, on the advice
of counsel, asserting his Fifth Amendment privilege. The trial court found Hernandez in contempt
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This proceeding arises out of Cause No. 2014-CI-17077, styled Armando Hernandez and Nancy Hernandez v. Mario
Saldivar, Fernando Saldivar, Jorge Calderon and Jorge Saldivar, pending in the 150th Judicial District Court, Bexar
County, Texas, the Honorable Barbara Hanson Nellermoe presiding.
04-15-00098-CV
for violating its order to answer, and ordered him into custody. The following day, Hernandez’s
counsel asked the trial court to reconsider its ruling, set aside the order of contempt and release
Hernandez from custody. The trial court denied Hernandez’s request to reconsider.
Hernandez filed his petition for writ of habeas corpus in this court, seeking release from
custody, and to have the order of contempt withdrawn. After Hernandez paid the bond set by this
court on February 26, 2015, we ordered his release from custody pending this court’s
determination of his petition for writ of habeas corpus. See TEX. GOV’T CODE ANN. § 22.221(d)
(West 2004). Despite our request for a response to the petition, no response has been filed on
behalf of the respondent or the real parties in interest.
Analysis
This court has jurisdiction to issue a writ of habeas corpus when it appears that a person’s
liberty has been restrained for “the violation of an order, judgment, or decree previously made,
rendered, or entered by the court or judge in a civil case.” TEX. GOV’T CODE ANN. § 22.221(d);
see also Ex parte DeLeon, 972 S.W.2d 23, 24-25 (Tex. 1998) (orig. proceeding) (discussing
jurisdiction of appellate courts to issue habeas relief in civil cases). The trial court’s order finds
Hernandez in contempt of court for refusing to answer six questions posed by opposing counsel.
The court ordered Hernandez confined to Bexar County jail until he agreed to provide answers to
those questions, or until the expiration of 180 days. Hernandez argues that he had a good faith
basis for asserting his Fifth Amendment privilege to the six questions he refused to answer and,
therefore, should not have been held in contempt. We agree.
A witness may properly invoke the privilege against self-incrimination in a civil
proceeding as to any disclosure which he reasonably believes could be used in a criminal
prosecution, or that could lead to other evidence that could be used in a criminal prosecution,
against him. Kastigar v. United States, 406 U.S. 441, 445 (1972). But, when a witness refuses to
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answer questions based on his Fifth Amendment privilege, “he is not the exclusive judge of his
right to exercise the privilege.” DeLeon, 972 S.W.2d at 25 (citing Ex parte Butler, 522 S.W.2d
196, 198 (Tex. 1975)). The trial court is entitled to determine whether the witness’s refusal appears
to be based on a good faith belief, justifiable under the circumstances, that providing an answer to
the question is “likely to be hazardous to him.” Id. The witness cannot be forced to disclose, in the
process of the trial court’s evaluation, the very information the privilege is intended to protect. Id.
Asking the witness to provide an explanation for why he cannot answer a question, or to explain
what may be potentially incriminating about the answer, is also problematic. Hoffman v. United
States, 341 U.S. 479, 486-87 (1951) (“To sustain the privilege, it need only be evident from the
implications of the question, in the setting in which it is asked, that a responsive answer to the
question or an explanation of why it cannot be answered might be dangerous because injurious
disclosure could result.”). Before the witness may be compelled to answer, the trial judge must
determine, based on all of the circumstances, that the answers sought cannot possibly have any
tendency to incriminate the witness. Id. at 488.
In the civil suit underlying this original proceeding, counter-plaintiffs and intervenors have
alleged that Hernandez and his wife stole significant sums of money through a fraudulent
investment scheme. The allegations in the civil suit include violations of the Texas Securities Act,
breach of fiduciary duty, and fraud. The facts and conduct alleged to provide the basis for these
claims may also carry the potential to be associated with criminal charges. See, e.g., TEX. REV.
CIV. STAT. ANN. art. 581-29 (West Supp. 2014) (providing penal provisions for violations of the
Texas Securities Act).
At the evidentiary hearing on the counter-plaintiffs’ request for temporary injunctive relief,
Hernandez refused to answer a series of questions related to his business affiliations and sources
of income, the nature and location of his assets and the location of the allegedly stolen funds. Given
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the circumstances, we cannot say that Hernandez’s assertion of his Fifth Amendment privilege
with respect to these questions was not in good faith. See De Leon, 972 S.W.2d at 25. The nature
of the claims against him in the civil suit provide a reasonable basis for concern about the potential
for criminal charges related to Hernandez’s financial and business dealings, as well as his sources
of income.
Conclusion
We conclude Hernandez’s assertion of his privilege against self-incrimination was made
in good faith. The trial court’s order finding Hernandez in contempt and committing him to custody
after asserting his Fifth Amendment protection against self-incrimination was improper.
Accordingly, we grant Hernandez’s petition for writ of habeas corpus and order him discharged.
TEX. R. APP. P. 52.8(c).
PER CURIAM
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