Ex Parte Coronado, No. 13-09-00149-CV (Tex. App. 4/9/2009), No. 13-09-00149-CV.

CourtCourt of Appeals of Texas
Writing for the CourtVela
Docket NumberNo. 13-09-00149-CV.
Decision Date09 April 2009

Page 1

No. 13-09-00149-CV.
Court of Appeals of Texas, Thirteenth District, Corpus Christi.
Memorandum Opinion Delivered and Filed April 9, 2009.

On Petition for Writ of Habeas Corpus.

Before Chief Justice VALDEZ and Justices GARZA and VELA.


Memorandum Opinion by Justice VELA.

Relator, Jose T. Coronado, filed a petition for a writ of habeas corpus seeking relief from an order finding him in contempt for failing to pay his child support obligations. We deny the petition for writ of habeas corpus.

I. Background

On August 29, 2007, the Child Support Division of the Texas Attorney General's Office filed a "Motion for Enforcement and Suit for Modification of Support Order" through which it sought, inter alia, to hold Coronado in contempt for failing to pay child support. On November 14, 2007, the trial court held a hearing on this motion, and the following day the trial court signed an "Order Enforcing and Modifying Child Support Obligation," finding Coronado in contempt for failing to pay child support. The court sentenced Coronado to 180 days in jail as punitive contempt for failing to pay four $180 child support payments on grounds that Coronado could have timely paid these amounts in full. Each failure constituted a separate act of contempt. The court assessed 180 days of imprisonment for each act of contempt and ordered the sentences to run concurrently. The order further mandated that Coronado could pay $3,000 in child support arrearages and $556 in court costs, and provided that he should be incarcerated until these amounts were paid. The "Commitment" provision of the order stated that "said commitments [are] to run concurrently." The order commanded Coronado to appear on February 1, 2008 to begin his sentence.

On February 1, 2008, Coronado did not appear as ordered. That same day, the trial court entered a second commitment order. Coronado was arrested pursuant to the second commitment order on August 17, 2008.

On August 21, 2008, the trial court signed a "Conditional Release Order," stating that Coronado had served five days in jail and had paid $1,500 toward his child support arrearage, but the court further found that Coronado had not yet purged his contempt. The court ordered Coronado to appear on November 7, 2008, to serve the remainder of the contempt sentence previously imposed.

On November 7, 2008, Coronado did not appear as ordered. That same day, the trial court issued a third commitment order. Coronado was arrested pursuant to this third commitment order on February 28, 2009. Coronado remains incarcerated at the present time.

This original proceeding ensued. By petition for writ of habeas corpus, Coronado contends that: (1) the trial court's failure to hold a hearing to determine Coronado's present ability to pay child support prior to incarceration violated his due process rights; and (2) he cannot be held in contempt for failing to pay sums of money not referenced in the contempt order. This Court requested and received a response from the Office of the Attorney General of Texas, Child Support Division.

II. Habeas Corpus Review

The purpose of a habeas corpus proceeding is not to determine the ultimate guilt or innocence of the relator, but to ascertain only whether the relator has been unlawfully confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding). In a habeas corpus proceeding, the order or judgment challenged is presumed to be valid.Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex. App.-Houston [1st Dist.] 1990, orig. proceeding). The relator must bring forward an adequate record to establish the invalidity of the order of which he complains. See Tex. R. App. P. 52.3(j), (k), 52.7.

A writ of habeas corpus will issue if the trial court's contempt order is void, either because it is beyond the court's power or because the relator has not been afforded due process. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (orig. proceeding) (per curiam); see Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980) (orig. proceeding); see also Ex parte Swate, 922 S.W.2d 122, 124 (Tex. 1996) (orig. proceeding). Although the Texas Constitution provides that "no person shall ever be imprisoned for debt," see Tex. Const. art. I, § 18, a person may be confined under a court's contempt powers for failing to pay child support because the obligation to support a child is viewed as a legal duty and not as a debt. Henry, 154 S.W.3d at 596; see Tex. Fam. Code Ann. §§ 157.001(b), 157.166-.167 (Vernon 2008).

III. Contempt

A judgment of contempt may be either civil or criminal. Ex parte Werblud, 536 S.W.2d 542, 545 (Tex. 1976) (orig. proceeding). The purpose of civil contempt is remedial and coercive. Id. A judgment of civil contempt exerts the judicial authority of the court to persuade the contemnor to obey an order of the court when obedience will benefit an opposing litigant. Id. "Imprisonment is conditional upon obedience and therefore the civil contemnor `carries the keys of (the) prison in (his) own pocket.'" Id. (quoting Shillitani v. United States, 384 U.S. 364, 368 (1966)); Ex parte Rojo, 925 S.W.2d 654, 654 (Tex. 1996) (orig. proceeding) (per curiam). When a relator has committed civil contempt, he may procure his release by complying with the provisions of the court's order. Id. Criminal contempt, by contrast, is punitive in nature in that the sentence is not conditioned upon a promise of future performance; rather, the contemnor is being punished for a completed act that affronted the dignity and authority of the court. Werblud, 536 S.W.2d at 545.

The contempt order before us is both criminal in nature because it imposes confinement for Coronado's past failure to make child support payments, and civil in nature, in that it provides for further confinement until Coronado purges the contempt by paying the arrearage.

Texas law is clear that a petitioner may not be confined for civil contempt unless he or she has the ability, but refuses, to perform the conditions for release. In re Gawerc, 165 S.W.3d 314, 315 (Tex. 2005) (orig. proceeding); Rojo, 925 S.W.2d at 655; Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967) (orig. proceeding). Stated otherwise, a person cannot be incarcerated indefinitely for civil contempt if he or she does not have the ability to perform the condition required for release. Rojo, 925 S.W.2d at 654; see, e.g., Ex parte Dustman, 538 S.W.2d 409, 410 (Tex. 1976) (orig. proceeding); Rohleder, 424 S.W.2d at 892. An order of contempt imposing a coercive restraint is void if the condition for purging the contempt is impossible of performance. Rojo, 925 S.W.2d at 655. Similarly, the involuntary inability to comply with an order is a valid defense to criminal contempt. Ex parte Chambers, 898 S.W.2d 257, 261 (Tex. 1995) (orig. proceeding); In re Lausch, 177 S.W.3d 144, 155 (Tex. App.-Houston [1st Dist.] 2005, orig. proceeding).

The relator bears the burden of proving his inability to comply. Chambers, 898 S.W.2d at 261; Lausch, 177 S.W.3d at 155. We do not weigh the evidence, but determine only if there is no evidence to legitimize the relator's confinement. Chambers, 898 S.W.2d at 261; Lausch, 177 S.W.3d at 155. Thus, the issue in habeas corpus review is whether the relator has conclusively established his inability to comply. Chambers, 898 S.W.2d at 261; Lausch, 177 S.W.3d at 155.

IV. Inability to Pay

In the instant case, Coronado alleges that he was denied the right to present evidence regarding his inability to pay the child support arrearage referenced in the order of contempt. With regard to civil contempt orders, we examine the obligor's ability to pay as determined at the time of the hearing on contempt. See Gawerc, 165 S.W.3d at 315; Rohleder, 424 S.W.2d at 892. In this regard, the obligor's past ability to pay is not relevant to whether the contemnor has the ability to purge himself from civil contempt. Gawerc, 165 S.W.3d at 315 (citing Rojo, 925 S.W.2d at 656). In contrast to civil contempt, the current inability to pay is no defense to criminal contempt. Ex parte Robertson, 880 S.W.2d 803, 803 (Tex. App.-Houston [1st Dist.] 1994, orig. proceeding). As a defense to criminal contempt, the person ordered to pay must show inability to pay at the time each time payment accrued. Ex parte Ramon, 821 S.W.2d 711, 713 (Tex. App.-San Antonio 1991, orig. proceeding). "If he fails to carry that burden as to even one delinquent payment, the criminal contempt judgment is not void." Id.

The foregoing principles are codified in the Texas Family Code, which provides that a child support obligor may plead as an affirmative defense to an allegation of contempt that the obligor:

(1) lacked the ability to provide support in the amount ordered;

(2) lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed;

(3) attempted unsuccessfully to borrow the funds needed; and

(4) knew of no source from which the money could have been borrowed or legally obtained.

Tex. Fam. Code Ann. § 157.008(c) (Vernon 2008). A contemnor is not entitled to habeas relief based on this statute unless he conclusively established all four elements in the trial court. See Rojo, 925 S.W.2d at 656; In re Hammond, 155 S.W.3d 222, 228 (Tex. App.-El Paso 2004, orig. proceeding); Ex parte Hightower, 877 S.W.2d 17, 20 (Tex. App.-Dallas 1994, orig. proceeding).

The "issue of the existence of an affirmative...

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