Ex parte Conway, s. B--163 and B--193

Citation419 S.W.2d 827
Decision Date25 October 1967
Docket NumberNos. B--163 and B--193,s. B--163 and B--193
PartiesEx parte J. T. CONWAY et al.
CourtSupreme Court of Texas

Chester A. Oehler, Dallas, Robert Landis Armstrong, Austin, for relators.

Gerald E. Stockard, Denton, for respondent.

POPE, Justice.

Relators are before this court on two applications for writs of habeas corpus after the judge of the 16th District Court of Denton County adjudged them in contempt for their disobedience of the court's restraining order and also the court's temporary injunction. In our opinion both orders of contempt are void and relators should be discharged from the custody of the Denton County sheriff.

These proceedings arose out of a civil action that relators J. T. and J. B. Conway filed against T. W. Irick and wife for the determination of rights in a thirty-foot strip of land. The trial judge on January 26, 1967 issued a restraining order which restrained the Conways and their representatives from entering upon the disputed tract. The order was issued without notice and stated that it was 'operative until and pending the hearing below ordered.' The order then set the hearing for ten o'clock on the morning of February 2. On that date the hearing began, but was recessed until February 3. The hearing was again recessed from February 3 to February 9. On February 7, the Conways and Chester Oehler, their attorney, went onto the disputed strip in the company of the County Surveyor in search of boundary markers and lines. On February 16 the trial judge ordered the Conways and Oehler to appear and show cause why they should not be adjudged in contempt for entering upon the land on February 7 in violation of the restraining order. Upon the contempt hearing, the judge found all three relators in contempt and ordered each to pay a fine of $100.00 and serve thirty hours in the Denton County jail.

Relators say that the contempt order is void because the January 26 restraining order expired at the end of ten days, and there was no order which operated as an extension of the restraint beyond that time. We sustain relators' contentions. Rule 680, Texas Rules of Civil Procedure, authorizes the issuance of a restraining order without notice but limits the duration of such an order to ten days. Such an order 'shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record * * * and shall expire by its terms within such time after entry, not to exceed ten days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period * * *.'

The order of the trial court which adjudged relators in contempt recited that the restraining order issued on January 26 was extended by an order on February 2 and was again extended by an order on February 3. Neither order can be the basis for the adjudication of contempt. The order of February 2 was not reduced no writing or signed by the judge until April 6, at which time it was ordered entered nunc pro tunc. An order that is neither written nor entered of record until two months after its terms are violated and almost one month after the contempt hearing on March 9, is not in compliance with the requirement that the order be filed forthwith in the clerk's office and entered of record.

The same is true of the extension order of February 3. Relators went to the clerk's office on February 7 and made a search of the records for any extension orders or any record of such orders. At that time there was no...

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14 cases
  • Williams v. State
    • United States
    • Court of Appeals of Texas
    • August 9, 1989
    ...that a written court order existed, Ex parte Wilkins, 665 S.W.2d 760 (Tex.1984), and that Williams had notice of it. Ex parte Conway, 419 S.W.2d 827, 828 (Tex.1967). The criminal case will not require such proof. Thus the Blockburger analysis, and a comparison of the two statutes involved, ......
  • Ex parte Chambers, 94-0495
    • United States
    • Supreme Court of Texas
    • June 15, 1995
    ...or notice of an order which one is charged with violating before a judgment of contempt will obtain. See, e.g., Ex parte Conway, 419 S.W.2d 827, 828 (Tex.1967). Noncompliance with an unambiguous order of which one has notice will ordinarily raise an inference that the noncompliance was It i......
  • Ex parte Bowers
    • United States
    • Court of Appeals of Texas
    • August 25, 1994
    ...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 ......
  • Texas Pet Foods, Inc. v. State
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • October 31, 1975
    ...in a higher court.' This rule was expressly restated and reaffirmed by the Supreme Court in the recent case of Ex parte Conway (Tex.Sup., 1967), 419 S.W.2d 827, 829. Accordingly, we overruled the contemners' plea to the jurisdiction. Contempt is of two classes, civil and criminal. Civil con......
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