Ex parte Cardwell, No. B--83

CourtTexas Supreme Court
Writing for the CourtGREENHILL
PartiesEx parte Wesley D. CARDWELL, Relator.
Docket NumberNo. B--83
Decision Date03 May 1967

Page 382

416 S.W.2d 382
Ex parte Wesley D. CARDWELL, Relator.
No. B--83.
Supreme Court of Texas.
May 3, 1967.
Rehearing Denied May 31, 1967.

John H. Regner, Houston, for relator.

L. J. Clayton, James C. Brough, Houston, for respondent.

GREENHILL, Justice.

This is an original habeas corpus proceeding. The relator, Wesley D. Cardwell, was picked up and jailed upon a writ of attachment for failure to obey court orders

Page 383

relating to child support. It affirmatively appears from the record that he was not served with citation or a copy of a 'show cause' order prior to his being seized or prior to his trial for contempt and subsequent commitment, other than the writ of attachment. The order of commitment, however, recites that Cardwell had been 'duly cited.' The question is whether Cardwell had been afforded due process. We hold that he had not.

In December of 1966, Cardwell's wife, Carol, brought a suit against him for divorce and requested custody of their minor child. She also sought support for the child and requested that Cardwell be required to make medical and financial arrangements for the birth of their unborn child.

On January 3, 1967, the Court of Domestic Relations Number 4 of Harris County directed Cardwell to make such arrangements and payments. The first of such payments was due on January 6, and Cardwell failed to make it. Five days later, the wife filed a motion that Cardwell be held in contempt. The trial court on the same day signed an order directing Cardwell to appear on January 20 and show cause why he should not be held in contempt.

A citation was issued to be served on Cardwell, but the deputy sheriff was unable to serve him. On January 24, the wife filed a motion alleging that Cardwell was deliberately avoiding the service of process and requested the court to issue a writ of attachment for him. The deputy also made an affidavit that he believed that Cardwell was avoiding service and stating that he had been unable to serve him. The citation itself is in the record. It shows that unsuccessful attempts were made to serve Cardwell on January 13, 14, 16 and 19. On January 24, the court issued an order directing that Cardwell be arrested and produced 'instanter.' The deputy was able to find Cardwell for the service of this order; and on January 27, Cardwell was picked up and directly put in jail. No copy of this order or writ of attachment is in the record.

Cardwell remained in the Harris County jail from January 27 until January 30 when he was led from the jail to the courtroom. He was found to be in contempt and sentenced to six more days in jail, three days for each of two violations. On February 3, after he had been in jail since January 27, Cardwell applied to this Court for a writ of habeas corpus. The writ was granted on that same day, conditioned on Cardwell's making a $500 bond. He was released from jail on February 6 upon making the bond. His case was later argued to this Court.

Article 4639a of Vernon's Ann.Texas Civil Statutes states that 'after ten days' notice' the trial court may enforce its support orders by civil contempt proceedings. Rule 308--A of the Texas Rules of Civil Procedure also states...

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88 practice notes
  • Metzger v. Sebek, No. 01-92-00912-CV
    • United States
    • Court of Appeals of Texas
    • September 29, 1994
    ...jurisdiction Decisions in contempt proceedings are not appealable. Ex parte Williams, 690 S.W.2d 243 n. 1 (Tex.1985); Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex.1967); Mendez v. Attorney Gen. of Texas, 761 S.W.2d 519, 521 (Tex.App.--Corpus Christi 1988, no writ); Smith v. Holder, 756 S.W.2......
  • Ex parte Tucci, Nos. D-2809
    • United States
    • Supreme Court of Texas
    • June 30, 1993
    ...is, habeas corpus has been held to be the only remedy available to review an individual's incarceration for contempt. Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex.1967) (habeas corpus allowed because no remedy by appeal); Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 893 (Tex.1956) (chal......
  • Bradt v. West, No. 01-94-00284-CV
    • United States
    • Court of Appeals of Texas
    • December 22, 1994
    ...in contempt proceedings are not appealable. See id., at 54 (citing Ex parte Williams, 690 S.W.2d 243 n. 1 (Tex.1985); Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex.1967); Mendez v. Attorney Gen. of Texas, 761 S.W.2d 519, 521 (Tex.App.--Corpus Christi 1988, no writ); Smith v. Holder, 756 S.W.2......
  • Williams v. Patton, No. D-0353
    • United States
    • Supreme Court of Texas
    • October 30, 1991
    ...judgment. 4 In his petition, Williams conceded that the contempt order was itself not reviewable on appeal. See Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex.1967). However, he argued that granting him specific performance of the agreement would necessitate "disposing" of the contempt proceed......
  • Request a trial to view additional results
88 cases
  • Metzger v. Sebek, No. 01-92-00912-CV
    • United States
    • Court of Appeals of Texas
    • September 29, 1994
    ...jurisdiction Decisions in contempt proceedings are not appealable. Ex parte Williams, 690 S.W.2d 243 n. 1 (Tex.1985); Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex.1967); Mendez v. Attorney Gen. of Texas, 761 S.W.2d 519, 521 (Tex.App.--Corpus Christi 1988, no writ); Smith v. Holder, 756 S.W.2......
  • Ex parte Tucci, Nos. D-2809
    • United States
    • Supreme Court of Texas
    • June 30, 1993
    ...is, habeas corpus has been held to be the only remedy available to review an individual's incarceration for contempt. Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex.1967) (habeas corpus allowed because no remedy by appeal); Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 893 (Tex.1956) (chal......
  • Bradt v. West, No. 01-94-00284-CV
    • United States
    • Court of Appeals of Texas
    • December 22, 1994
    ...in contempt proceedings are not appealable. See id., at 54 (citing Ex parte Williams, 690 S.W.2d 243 n. 1 (Tex.1985); Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex.1967); Mendez v. Attorney Gen. of Texas, 761 S.W.2d 519, 521 (Tex.App.--Corpus Christi 1988, no writ); Smith v. Holder, 756 S.W.2......
  • Williams v. Patton, No. D-0353
    • United States
    • Supreme Court of Texas
    • October 30, 1991
    ...judgment. 4 In his petition, Williams conceded that the contempt order was itself not reviewable on appeal. See Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex.1967). However, he argued that granting him specific performance of the agreement would necessitate "disposing" of the contempt proceed......
  • Request a trial to view additional results

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