In Re Johnson

OPINION

DAVID GAULTNEY, Justice.

Our opinion of October 7, 2004, is withdrawn, and this opinion is substituted.

The trial court found relator, Ben “Ben-ji” Johnson, in contempt of court and committed him “to the Jasper County Jail until such time as he deposits the sum of $24,150.32” into the registry of the court. The contempt order finds he is able to deposit the funds. In this habeas corpus proceeding, relator says he has been imprisoned for nonpayment of a debt in violation of the Texas Constitution. See Tex. Const, art. I, § 18.

The underlying case is the guardianship of Jimmy Mays. Mays’ daughter, Jemece Mays Richard, has been appointed his guardian. As guardian, Richard is attempting to recover Mays’ property. See Tex. Prob.Code §§ 768, 877 (Vernon 2003 & Vernon Supp.2004).

Mays’ wife, Rose Mays, who divorced Jimmy in 2001 and remarried him in April 2004, received a check in the mail payable to Jimmy Mays in the amount of $24,150.32. The trial court instructed Rose Mays to pay the money into the registry of the court. Rose deposited the check into a credit union account, withdrew the entire amount in cash, and gave the money to relator for safekeeping.

Relator testified he placed the money under a pine tree where he could watch it from his porch. When Rose Mays returned for the money, relator went to the tree and discovered the money was gone. After hearing this explanation, the trial court ordered relator and Rose Mays to pay the money into the registry of the court by 9:30 the next morning. When they failed to do so, he found them in contempt of court and put them in jail.

Payment of a debt may not be coerced by imprisonment. See Tex. Const. art. I, § 18 (“No person shall ever be imprisoned for debt.”); see Ex parte Hall, 854 S.W.2d 656, 658 (Tex.1993). However, not every obligation to pay money is a “debt” within the meaning of Article I, Section 18 of the Texas Constitution. See id.; Ex parte Davis, 101 Tex. 607, 111 S.W. 394, 396 (1908) (“There are many instances in the proceedings of the courts where the performance of an act may be enforced by imprisonment and would not come within the prohibition of the Constitution, although it might involve the payment of money.”). For example, the obligation to support one’s spouse or child is “a legal duty arising out of the status of the parties,” not out of a contract, and is not considered a debt. See Ex parte Hall, 854 S.W.2d at 658. In Ex parte Hall, the Court explained that a person may also contract to support a spouse or child, “and that obligation, to the extent it exceeds his legal duty, is a debt.” Id. The obligation • to pay money arising out of a contract is a debt within the meaning of Article I, Section 18. See generally Ex parte Duncan, 462 S.W.2d 336, 337 (Tex.Civ.App.-Hous-ton [1st Dist.] 1970, orig. proceeding) (citing Ex parte Yates, 387 S.W.2d 377 (Tex.1965)).

In Ex parte Sutherland, 526 S.W.2d 536, 539 (Tex.1975), the Court held an obligation to surrender specific property in the division of a community estate was not a debt. Sutherland was placed in jail for contempt for failing to pay his former wife one-half of retainer pay received by him as a member of the Fleet Reserve. The Supreme Court explained as follows why there was “no problem here of imprisonment for debt in the constitutional sense”:

Relator was constituted a trustee by the court to collect and remit to the clerk the one-half of the pay awarded to the wife. In performing that duty he will not be paying a debt but will be surrendering the share to which his former wife is legally entitled. His confinement to compel payment of the arrearage in the wife’s one-half of the retainer pay is not imprisonment for debt within the meaning of Article 1, Section 18, of our Constitution.

Id. Sutherland was not ordered to pay a debt; rather, he was ordered to surrender property to which another person was legally entitled. Surrendering another’s property, even though the property was money, was not payment of a debt.

In Ex parte Gorena, 595 S.W.2d 841, 846-47 (Tex.1979), a case involving an obligation to make monthly payments of retirement benefits to a former spouse, the Court said “[njumerous cases in other jurisdictions have affirmed a trial court’s order holding a trustee or other fiduciary in contempt for failure to turn property, including money, over to third persons.” Id. The Court approved reasoning which likened a spouse’s status to that of a trustee in considering whether an obligation to pay was a debt. Id. (approving “the decision and reasoning” in Ex parte Anderson, 541 S.W.2d 286 (Tex.Civ.App.-San Antonio 1976, orig. proceeding)). In Ex parte Buller, 834 S.W.2d 622, 626 (Tex.App.-Beaumont 1992, orig. proceeding), this Court held a trustee or other fiduciary could be jailed for contempt in refusing to turn over funds.

Relator’s obligation is based on his possession for safekeeping of property the trial court had previously ordered placed in the registry of the court. That the property is money does not mean his legal duty is a debt. The trial court found he is still able to place the money in the registry of the court. He is holding another’s property and has been ordered to surrender the property. We conclude relator is not being imprisoned for nonpayment of a debt within the meaning of Article I, Section 18 of the Texas Constitution.

Relator says in his reply brief that he does not have the cash. He says he “cannot use personal funds to satisfy the Order because he is indigent,” and notes he has moved to proceed in forma pauperis in this case. We understand this argument to be there is no evidence he still has the asset entrusted to him in his possession, he cannot comply, and the order is therefore void. See Ex parte Chambers, 898 S.W.2d 257, 259-60 (Tex.1995).

A contempt order imposing a coercive restraint is void if the condition for purging the contempt cannot be performed. Ex parte Dustman, 538 S.W.2d 409, 410 (Tex.1976); Ex parte Thetford, 369 S.W.2d 924, 925 (Tex.1963). “[T]he issue in habeas corpus review is whether the relator has conclusively established that [the relator] was involuntarily unable to pay.” See Ex parte Chambers, 898 S.W.2d at 262 (criminal contempt); see also In re Briggs, 965 S.W.2d 743, 745 (Tex.App.-Beaumont 1998, orig. proceeding) (civil contempt).

Once the money was traced into his possession, relator was presumed to possess the entire amount traced, and he was required to show he was not in possession of all or part of the traced amount. See generally Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991). The trial court determines the credibility of the witnesses and the weight to be given their testimony. In re Briggs, 965 S.W.2d at 745. Relator admits he had possession of the cash, but he says it must have been stolen after he placed it under a pine tree where he could watch it from his porch for ten or twelve days until Rose Mays returned for the money. The trial court was not required to accept an incredible account. On this record we cannot say relator has established involuntary inability to comply.

The relator is not entitled to relief on the issue originally presented to this Court. Accordingly, the issue is overruled.