Ex parte Berryhill
| Decision Date | 05 May 1988 |
| Docket Number | No. 09-87-194,09-87-194 |
| Parties | Ex parte Charles Monroe BERRYHILL. CV. |
| Court | Texas Court of Appeals |
This is a child support contempt case. On March 25, 1985, a decree of contempt was entered against relator for failing to pay child support as ordered. The decree assessed punishment at six months confinement in the county jail, but suspended the commitment and placed relator on probation for five years. A motion to revoke probation was filed January 15, 1987, and a hearing held on June 29, 1987. An order was entered revoking appellant's probation and ordering him to jail for six months. On September 3, 1987, relator filed his petition for habeas corpus and attached an affidavit alleging that at the time of the March 25, 1985, hearing, he had raised the issue of his indigency, and had requested the court to appoint him counsel, but that no hearing was held on the issue of indigency and no counsel was appointed.
This court admitted appellant to bond and on November 5, 1987, issued an opinion, Ex parte Berryhill, 741 S.W.2d 186 (Tex.App.--Beaumont 1987, no writ), which ordered the court below to conduct an evidentiary hearing. The results of that hearing are now before us. We find the following testimony from relator:
Q. Now, did you have any conversations with the judge concerning whether or not you desired an attorney or whether you had an attorney?
A. Yes. The judge asked me did I have an attorney. I said,
Q. Okay. And was one appointed for you?
A. No, sir.
Q. Did--Were you able to at that time afford an attorney [sic]?
A. No, sir.
....
Q. So, to sum up, Mr. Berryhill, did you at any time ask Judge Farris to appoint you an attorney?
A. Yes, I did.
Q. Did you say that you could not afford one?
A. Yes, I did.
Q. And did you, in fact, have an attorney to represent you?
A. No, sir.
Q. Would you have desired to have an attorney represent you at that March 25th hearing?
A. Yes.
The judge who presided over the March 25, 1985, hearing testified thusly:
Q. Do you have an independent recollection of this particular hearing in March of '85?
A. I've tried to look at Mr. Berryhill, and I do not have an independent recollection of it. I do not.
Q. Do you recall what the policy of your Court was at that time?
A. Very definitely.
Q. And if it is correct that a respondent in a contempt action were to appear in front of you--were to have appeared in front of you, March of '85, and asked for a counsel because he could not afford one, what would have been your response?
A. I would have stopped and had a hearing on indigency and ascertained whether he could afford an attorney or not.
Q. All right, sir. Judge Farris, have you been present this morning when Mr. Berryhill was testifying?
A. Yes, I was.
Q. You have heard him testify as to the assets that he had available to him and that he did not have available to him in March of '85. Based on that testimony, do you know whether you would have at that particular time appointed counsel?
A. I'm--I would probably have liked to have gone into it a little bit further about the cars. I would have looked into it and I can't say whether I would have appointed an attorney or not based upon that. If he did have some assets and--It's hard to say, Mr. Griffin, what I would have done two-and-a-half years ago.
The attorney for the ex-wife gave the following testimony:
Q. Now, Mr. Cribbs, do you have an independent recollection of this hearing?
A. Yes, I do.
Q. Do you recall, first, visiting with Mr. Berryhill in the child support office and then a hearing in Judge Farris' courtroom?
A. Yes, I do.
Q. At that hearing, do you recall Mr. Berryhill complaining indigency and asking for court appointed counsel?
A. I recall Mr. Berryhill saying that he had no money and he couldn't pay his child support. I, also, recall--I don't recall at all him asking for an appointed attorney. I'm not saying that he didn't. I just do not recall that at all.
This court recognized in Ex parte Young, 724 S.W.2d 423, 424 (Tex.App.--Beaumont 1987, no pet.) that the due process clause of the fourteenth amendment of the U.S. Constitution imposes a duty on the state to provide counsel to a person who, because of indigency, cannot afford an attorney, whenever that person "may lose his liberty if he loses the litigation" citing Lassiter v. Department of Social Services, 452 U.S. 18, 25, 101 S.Ct. 2153, 2158, 68 L.Ed.2d 640 (1981); Miranda v. Arizona, 384 U.S. 436, 473, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966); see also Ridgway v. Baker, 720 F.2d 1409, 1413 (5th Cir.1983). We have recently recognized that placing a person on child support probation is sufficient restraint on a person's liberty. Ex parte Conner, 746 S.W.2d 527 (Tex.App.--Beaumont, 1988, n.w.h.).
The law is sufficiently clear in this state that an indigent is entitled to court-appointed counsel in a child support contempt proceeding. Further, when the issue is raised, the court is obligated to advise the alleged contemner of the right to a court-appointed attorney. Young, supra; Ex parte Strickland, 724 S.W.2d 132 (Tex.App.--Eastland 1987, no writ); Ex parte McIntyre, 730 S.W.2d 411, 415 (Tex.App.--San Antonio 1987, no writ); Ex parte Simpson, 736 S.W.2d 939, 940 (Tex.App.--Beaumont 1987, no writ); Ex parte Lopez, 710 S.W.2d 948, 951 (Tex.App.--San Antonio 1986, no writ); Ex parte Hamill, 718 S.W.2d 78 (Tex.App.--Fort Worth 1986, no writ); Ex parte Sustrik, 721 S.W.2d 592 (Tex.App.--Fort Worth 1986, no writ).
In the instant case, relator states unequivocally that he raised the issue of his indigency and no hearing was held nor was he advised of his right to have court-appointed counsel. This is not contradicted by either the trial judge or the ex-wife's counsel. The trial judge candidly admitted he had no independent recollection, nor should he have been expected to have. The attorney verifies relator raised the indigency question but doesn't recall relator asking for an attorney. When the question of indigency was raised, the trial court should have informed relator of his right to court-appointed counsel. Because there is no proof that the court did so, the subsequent orders of revocation of probation are void. Simpson, 736 S.W.2d at 940.
The writ of habeas corpus is granted and relator discharged.
WRIT GRANTED.
In a prior opinion, involving the same Relator, we remanded the cause for additional hearings to take evidence and to forward to us, inter alia, a Statement of Facts.
On the date of the court's previous opinion, November 5, 1987, we possessed no Statement of Facts, no formal or meaningful Transcript and no Brief from Relator. The November 5, 1987, opinion was published at 741 S.W.2d 186, to which reference is made. We now have, for our consideration, a record.
Berryhill admitted, on November 11, 1987, before Judge Robert Walker:
Mr. Berryhill testified that his income for 1984 was $13,072; that his income for 1985 was $4,827.50. In response to interrogatories, he answered that he received the gross amount of approximately $250 per week from his primary place of employment, from which no federal income tax was withheld nor was any social security tax withheld. He further answered that his net take home pay was $250 weekly. The interrogatories concerned the calendar year of 1985. Berryhill signed the answers personally and swore:
"... they are true and correct." The Statement of Facts does not substantiate Berryhill's contentions concerning the referenced pages.
Mr. Berryhill had paid $200 per month for January, February and March of 1987, but had not paid any child support for April and May, 1987.
The record reflects that in 1985 Berryhill had a boat, a dune buggy, a Cadillac and a Chevrolet. The value of the boat in March of 1985 was approximately $500 and other assets showed a valuation, including the boat, of about $700. He had an American Express Gold card, valid in March, 1985. Berryhill testified that he had borrowed on the American Express card to pay for the bail bond premium to get out of jail and he had borrowed on it to pay his attorney's fee. He said he paid some back child support. However, the record indicates that these payments took place after the March, 1985, hearing. Indeed, Berryhill agreed that, at the time of the March, 1985, probation hearing, the American Express card was valid and $2,000 was borrowed on it after the March, 1985, hearing. Later, he changed his testimony and said he had borrowed the money on what was known as a Colonial National Bank Credit card. He had a current American Express card, which was valid from April, 1986, through April, 1988....
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