Ex Parte: Albert Acevedo, Jr.

NUMBER 13-05-725-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

EX PARTE: ALBERT ACEVEDO, JR.

On Petition for Writ of Habeas Corpus

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Castillo Memorandum Opinion by Chief Justice Valdez

         Albert Acevedo, Jr. was held in contempt of court for failing to make a court appearance and has filed a petition for habeas corpus. A prior contempt order stemming from the same alleged nonappearance was declared void by this Court. ⁽¹⁾ Because the instant contempt proceeding is plagued with a similar personal service issue as Acevedo's petition for writ of habeas corpus that we previously declared void, we hold that the contempt order dated November 17, 2005 is void.

I. BACKGROUND

During the course of representing a client before a county court at law in Victoria, Texas, Acevedo was held in contempt of court for failing to make a court appearance with his client. Acevedo is a criminal defense attorney who offices in San Antonio and practices before state and federal courts in multiple cities. On the morning of February 9, 2005, Acevedo was scheduled to appear in federal court in San Antonio and in a county court at law in Victoria. He attended the federal court matter and was en route to Victoria by approximately 10:00 a.m. That morning, Acevedo's staff faxed a motion for continuance to the county clerk's office. The county court at law denied the motion for continuance because faxed filings are not authorized in that court. Because the presiding judge of the county court at law did not want Acevedo's client to proceed on a criminal matter without counsel, she reset his client's case for February 23, 2005. Acevedo assumed that since his client's case was reset, the continuance had been granted and he was excused from the matter. He did not communicate with the county court at law with respect to his nonappearance.

On February 10, 2005, the county court at law began contempt proceedings against Acevedo for his failure to appear at the February 9, 2005 hearing. The contempt order that was produced by those proceedings was declared void for several reasons. See In re: Albert Acevedo, No. 13-05-335-CR, 2005 Tex. App. LEXIS 5754 (Tex. App.- Corpus Christi-Edinburg, July 22, 2005, no pet.). ⁽²⁾

On July 27, 2005, a show cause citation was issued to Acevedo, and another contempt proceeding was instituted against him. The officer's return stated that Alberto Acevedo, Jr., had been served with the citation on August 1, 2005. A show cause hearing was held on November 17, 2005. At that hearing, the Bexar County sheriff's deputy who delivered the citation to Acevedo's office testified that although the officer's return states that Alberto Acevedo, Jr., was served, one of Acevedo's employees was the one actually served. The deputy testified that he had a mutual agreement with Acevedo that whenever Acevedo was not in the office, citations, notices, and subpoenas could be served on Acevedo's staff.

The trial court presiding over the contempt proceeding found that Acevedo (1) had ample notice of the contempt proceeding, (2) failed to appear in court on February 9, 2005, and (3) was in contempt of court for his failure to appear in court.

II. DISCUSSION

A. Standard of Review

The validity of a contempt judgment can be attacked only by habeas corpus. Collins v. Kegans, 802 S.W.2d 702, 705 (Tex. Crim. App. 1991). The purpose of a writ of habeas corpus is not to determine the guilt of the contemnor, but only to determine whether the contemnor was afforded due process of law or if the order of contempt is void. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). An order is void if it deprives the applicant of liberty without due process of law. Ex parte Swate, 922 S.W.2d 122, 124 (Tex. 1996).

B. Applicable Law

A criminal contempt order is punitive and unconditional in nature and is an exertion of the court's inherent power to punish the contemnor for a completed act that affronted the court's dignity and authority. Ex parte Johns, 807 S.W.2d 768, 771 (Tex. App.-Dallas 1991, no pet.) (orig. proceeding). Contempt proceedings are quasi-criminal in nature, and they should conform as nearly as practicable to those in criminal cases. Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex. 1986). There are two types of criminal contempt, direct and constructive (or indirect). Direct contempt involves disobedience or disrespect to the court's authority and is committed in the presence of the court, while constructive contempt occurs outside of the court's presence. In re Johnson, 996 S.W.2d 430, 433 (Tex. App. -Beaumont 1999, no pet.). Constructive contempt refers to acts that require testimony or the production of evidence to establish their existence. Ex parte Daniels, 722 S.W.2d 707, 709 (Tex. Crim. App. 1987). Constructive contempt is commonly an act that constitutes a failure to comply with a valid court order. See, e.g., Ex parte Arnold, 503 S.W.2d 529, 533-34 (Tex. Crim. App. 1974); Johnson, 996 S.W.2d at 433.

Notice in the due process context of criminal contempt proceedings requires timely notice by personal service of the show cause hearing and full and unambiguous notice of the contempt accusations. See, e.g., Ex parte Adell, 769 S.W.2d 521, 522 (Tex. 1989); Ex parte Vetterick, 744 S.W.2d 598, 599 (Tex. 1988); In re Rowe, 113 S.W.3d 749, 752 (Tex. App.-Austin 2003, no pet.). The notice must state when, how, and by what means the person has been guilty of contempt. Vetterick, 744 S.W.2d at 599. A contempt order rendered without such adequate notification is void. Adell, 769 S.W.2d at 522.

C. Analysis

We hold that the most recent contempt order issued against Acevedo is void because Acevedo was not personally served with the show cause citation and therefore not afforded adequate due process. The deputy in this case testified that the show cause notice was served on one of Acevedo's staff members and not personally served on Acevedo. It is settled that oral notice of a contempt hearing is inadequate. Ex parte Vetterick, 744 S.W.2d 598, 599 (Tex. 1988). Constructive notice is therefore inadequate as well. Gonzalez v. State, 187 S.W.3d 166 (Tex. App.-Waco 2006, no pet.) (declining to adopt a rule that constructive notice of a contempt hearing or of contempt charges can be appropriate).

The dissent argues that there is ample evidence in the record to show that Acevedo had constructive notice of the show cause complaint underlying the contempt proceeding. However, the cases cited by the dissent do not support the proposition that constructive notice provides a criminal contemnor with adequate due process. See Ex parte Herring, 438 S.W.2d 801, 803 (Tex. 1969) (holding that it is a denial of due process to commit a person to prison for contempt who is not shown to be avoiding deliberately the service of process, and who has had no personal notice or knowledge of the show cause hearing at which he was held in contempt.); see also In re: Houston, 92 S.W.3d 870, 877 (Tex. App. -Houston [14^th Dist.] 2002, no pet.) (quoting Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex. 1969)) ("Due process of law demands that before a Court can punish for a contempt not committed in its presence, the accused must have full and complete notification of the subject matter, and the show cause order or other means of notification must state when, how, and by what means the defendant has been guilty of the alleged contempt.").

III. CONCLUSION

Accordingly, the petition for writ of habeas corpus is hereby GRANTED. We (1) declare void the contempt judgment dated November 17, 2005, (2) order Acevedo discharged, and (3) release him from the bond he executed pursuant to our November 18,

2005 order.   See Tex.R.App.P. 52.8(c).   

_______________________  

ROGELIO VALDEZ  

Chief Justice  

Dissenting Memorandum Opinion   

by Justice Errlinda Castillo.

  Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 9th day of November, 2006.  

1. See Acevedo v. State, No. 13-05-222-CR, 2005 Tex. App. LEXIS 3668 (Tex. App.-Corpus Christi May 12, 2005, no pet.) (memorandum opinion)(per curiam); In re Acevedo, No. 13-05-335-CR, 2005 Tex. App. LEXIS 5754 (Tex. App.-Corpus Christi July 22, 2005) (original proceeding).

2.

The show cause notice sent to Acevedo (1) was sent via certified mail and not personally served on Acevedo; (2) the officer's return was incomplete; and (3) it did not specify the comtemptuous acts. Furthermore, the original contempt order was entered in violation of the statute while the modified version was entered too late to satisfy Acevedo's due process rights.