Ex parte Bowers

• Citation: 886 S.W.2d 346
• Decision Date: 25 August 1994
• Docket Number: No. 01-93-00805-CV,01-93-00805-CV
• Parties: Ex parte Gideon Mark BOWERS, Relator. (1st Dist.)
• Court: Court of Appeals of Texas

Page 346

886 S.W.2d 346

Ex parte Gideon Mark BOWERS, Relator.

No. 01-93-00805-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Aug. 25, 1994.

Rehearing Overruled Nov. 17, 1994.

Leslie Werner de Soliz, David Michael Ryan, Houston, for appellant.

Jeffrey A. Lehmann, Houston, for appellee.

Before the court en banc.

OPINION

DUGGAN, Justice.

Before an opinion issued in this case, a majority of this Court called for an en banc review ¹ concerning the analysis of the fifth amendment violation. See TEX.R.APP.P. 79(d), 100(f).

This is an original habeas corpus proceeding. Relator, Gideon Mark Bowers, contends that his confinement for contempt is illegal because he did not receive notice of the permanent injunction he was charged with violating. He also alleges that the trial court (1) had no jurisdiction over him, and (2) by the manner and means in which it conducted the hearing on the motion for contempt, violated his rights under the fifth, sixth, and fourteenth amendments to the United States Constitution.

On June 25, 1993, the trial court signed a final judgment in Unauthorized Practice of Law Committee of the Supreme Court of Texas v. Gideon Mark Bowers, d/b/a/ Houston Self-Help Law Center, No. 92-059860 (Dist.Ct. of Harris County, 280th Dist. of Texas) (UPLC v. Bowers). Among other things, the judgment permanently enjoined relator from: (1) representing to any person or entity that he is "certified" by the State Bar of Texas, Legal Assistant Division; and (2) engaging in any practice constituting the practice of law as defined by the laws of the state of Texas at TEX. GOV'T CODE ANN. § 81.101 (Vernon 1988).

On July 19, 1993, the Unauthorized Practice of Law Committee of the Supreme Court of Texas (UPLC) filed a motion for contempt and request for show cause hearing, alleging that relator had violated the permanent injunction as follows:

1. Representing to Grant Cook, a licensed attorney, that he was "certified" by the State Bar of Texas, Legal Assistant Division; and/or

2. Appearing in the 190th Judicial District Court of Harris County, Texas, on or about July 14, 1993 to represent a party known as "Seal Parts", sometimes abbreviated as "SEPAR", in a legal proceeding styled Harry L. Bowles et. al v. Charles N. Schwartz, Jr., et. al with cause number 91-025939; and/or

3. Executing an Agreed Order in the proceeding described in No. 2 above, on or about July 14, 1993, on behalf of "SEPAR", a party to such case, and acting as an attorney and legal representative of "SEPAR"....

On July 27, 1993, the trial court signed an order to show cause on the contempt motion, and set a hearing for August 27, 1993. Relator moved for continuance, the trial court reset the hearing to September 1, 1993, and the hearing was held on September 1.

In a judgment of contempt and order of commitment signed on September 1, 1993, the trial court found that relator had violated the permanent injunction as alleged in the motion for contempt, was in contempt of court, and assessed punishment at a $100 fine and 10-days imprisonment in the county jail. The order of commitment also provided that after the 10 days were served, relator would remain in jail an additional day if the fine remained unpaid. Relator was incarcerated on September 27, 1993, until this Court released him on bond pending a determination on whether habeas corpus relief should be granted.

Preliminarily, we note that relator complains he never received notice of the motion for contempt, but only of the show cause hearing. We have read the statement of facts from the contempt hearing filed by relator in this proceeding. Relator was represented by counsel, and this issue was never raised before the trial court. It is waived. See Ex parte Occhipenti, 796 S.W.2d 805, 810 (Tex.App.--Houston [1st Dist.] 1990, orig. proceeding) (relator waived complaint of inadequate notice of specific contemptuous acts because he failed to make specific exceptions requesting further notice of charges); Ex parte Stephens, 734 S.W.2d 761, 762 (Tex.App.--Fort Worth 1987, orig. proceeding) (complaint that contempt motion lacked specificity waived because relator failed to properly object in the trial court).

Furthermore, the order to show cause did more than specify the date, time, and place of the hearing on the UPLC's motion for contempt. It also stated that relator had violated the final judgment of June 25, 1993, and quoted, from the motion for contempt, the same three ways in which the violation had occurred. The same information appeared in the order to show cause as in the motion for contempt. See, e.g., Ex parte Vetterick, 744 S.W.2d 598, 599 (Tex.1988, orig. proceeding) (due process requires that alleged contemnor receive full and unambiguous notification of the accusation of any contempt; notice should be by show cause order or equivalent legal process personally served on alleged contemnor). In his special appearance and plea to the jurisdiction with motion for continuance, relator acknowledges that he received the order to show cause. Relator does not challenge the sufficiency of the description of the three violations alleged in the order.

We find relator's complaint, that he never received notice of the motion for contempt, to be without merit.

Notice or knowledge of the order that one is charged with violating, ² is a jurisdictional prerequisite to the validity of a contempt order. Ex parte Conway, 419 S.W.2d 827, 828 (Tex.1967, orig. proceeding). Relator states he never received notice of the permanent injunction contained in the final judgment of June 25, 1993.

Rule 683 of the Texas Rules of Civil Procedure reads as follows:

Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

(Emphasis added.)

Under rule 683, a party does not need to receive actual notice of an injunction in order to be bound by it. A party to a suit is charged by law with notice of all orders and judgments rendered in the suit. K & S Interests, Inc. v. Texas Am. Bank/Dallas, 749 S.W.2d 887, 892 (Tex.App.--Dallas 1988, writ denied) (op. on reh'g); Pentikis v. Texas Elec. Serv. Co., 470 S.W.2d 387, 390 (Tex.Civ.App.--Fort Worth 1971, writ ref'd n.r.e.); Banks v. Crawford, 330 S.W.2d 243, 246 (Tex.Civ.App.--Houston 1959, writ ref'd n.r.e.).

A party to a suit generally is one named in the pleadings, who is served, accepts or waives service, or appears, and who participates at trial and contests the cause of action. See Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex.1991) (judgment may not be rendered against any defendant unless upon service, acceptance or waiver of process, or appearance); Chandler v. Welborn, 294 S.W.2d 801, 808 (Tex.1956) (petitioners were parties as to certain respondents to the suit because the respondents named them as adverse parties by reference to another answer and the petitioners through counsel participated at trial and vigorously contested respondents' cause of action; petitioners were not misled or prejudiced in any way); Daca, Inc. v. Commonwealth Land Title Ins. Co., 822 S.W.2d 360, 363 (Tex.App.--Houston [1st Dist.] 1992, writ denied) (trial court could not have rendered judgment against Daca because it was not named as a defendant and had not been served).

Relator does not argue here that he was not served with process and did not appear in UPLC v. Bowers or was not named in that suit. The record reflects that relator, as a pro se, filed several documents in the suit, including a notice of expedited agreed oral argument for co-counsel of choice, a motion to dismiss with prejudice for lack of jurisdiction, first amended counterclaims at law and motion to dismiss for lack of jurisdiction (filed May 17, 1993), and a special appearance and plea to the jurisdiction with motion for continuance (filed August 20, 1993). ³

The final judgment in UPLC v. Bowers reflects that relator did not participate at trial:

BE IT REMEMBERED that on the 1st day of June, 1993, came on to be presented the trial on the merits of the above case, and the UNAUTHORIZED PRACTICE OF LAW COMMITTEE OF THE SUPREME COURT OF TEXAS, by and through its Sub-Committee, the UPLC for Harris County, Texas appeared and announced ready for trial, the Defendant [relator] failed to make an appearance after receiving notice from the Trial Coordinator that the case was set for trial at 8:30 a.m. on June 1, 1993....

But relator does not complain that he did not receive proper notice of the trial or that he was prevented from participating at trial. ⁴

We conclude that relator was a party to the suit, a fact he does not dispute, and as such, under rule 683, had notice of the judgment.

Jurisdiction

Relator argues that he has continually asserted the trial court has no jurisdiction over him. According to relator, he is a citizen of the Republic of Texas, not of the state of Texas, and as such, the court does not have jurisdiction. Relator states:

Regardless of whether this Court feels the jurisdictional argument presented by Relator is frivolous, the point is that, contrary to any judgmental recitations to the contrary, the trial court never made a determination that it had jurisdiction over Relator. When raised at the contempt hearing, the court summarily dismissed even the idea that it did not have jurisdiction over Relator.

Personal jurisdiction is composed of two elements: (1) the defendant must be amenable to the jurisdiction of the court; and (2) if the defendant is amenable to the jurisdiction of the court, the plaintiff must validly...