Ex parte Davis, A-8160

• Decision Date: 22 February 1961
• Docket Number: No. A-8160,A-8160
• Parties: Ex parte R. P. DAVIS, Jr.
• Court: Texas Supreme Court

Page 153

344 S.W.2d 153

161 Tex. 561

Ex parte R. P. DAVIS, Jr.

No. A-8160.

Supreme Court of Texas.

Feb. 22, 1961.

Mayfield & Atkins, Fort Worth, for relator.

Moses & Truett, McKinney, Sneed & Vine, Austin, Forrest N. Troutman with Sneed & Vine, Austin, for respondent.

CALVERT, Chief Justice.

Relator, R. P. Davis, Jr. was confined in the county jail of Collin County under a written commitment issued by the District Clerk of Collin County on December 21, 1960 and executed by the sheriff of the county on December 31, 1960. He was released on bond by order of this court pending a determination of the validity of the judgment ordering him confined.

The matter comes to us in an original habeas corpus proceeding. Relator was confined in jail under a judgment of the District Court of the 59th Judicial District adjudging him to be in contempt of court for failing to comply with an order of the court to make weekly payments of $15 for the support of his minor child. He is not entitled to discharge in a habeas corpus proceeding unless the judgment ordering him confined is void. Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184, 186.

Relator asserts that the judgment is void because: (1). The court had no jurisdiction to enter it. (2). It has no support in the evidence. (3). It denies relator due process of law as guaranteed by Article I, Sec. 19 of the Constitution of Texas, Vernon's Ann.St. and the Fifth and Fourteenth Amendments to the Constitution of the United States.

The contention that the trial court had no jurisdiction to enter the judgment is based on the wording of Section 1 of Article 4639a, Vernon's Annotated Civil Statutes, and the wording of Rule 308-A, Texas Rules of Civil Procedure. Article 4639a authorizes a court, upon granting a divorce to persons having a child or children under eighteen years of age, to order either parent to make periodical payments for the benefit of the child or children, and provides that the court shall have power to enforce its judgment 'by civil contempt proceedings after ten(10) days notice to such parent of his or her failure or refusal to carry out the terms thereof.' Rule 308-A prescribes the procedure to be followed in determining whether a support order has been disobeyed. Whether the proceeding is initiated by the filing of a statement of disobedience by another or on the court's own motion, the defaulting party may be punished for his disobedience only after notice and hearing. The rule provides for notice through a show cause order to be served on the party alleged to be in default 'commanding him to appear and show cause why he should not be held in contempt of court.' The rule further provides that the order shall be served 'not less than ten days prior to the hearing on such order to show cause.' The position of the relator is that under the provisions of the statute and the rule jurisdiction of a trial court to conduct a contempt hearing does not attach unless and until the person required to show cause has had ten days' notice of the hearing. We do not believe that to be a proper construction of the statute or of the rule.

A district court undoubtedly has jurisdiction of the subject matter of a contempt hearing conducted under the statute and the rule. It obtains jurisdiction of the person through service of the show cause order. Having jurisdiction of the subject matter and of the person, the judgment is not void for want of jurisdiction in the court to render it unless it is prohibited by the statute or the rule. Freeman v. Freeman, Tex., 327 S.W.2d 428, 433. Neither the statute nor the rule contains a prohibition against conduction a contempt hearing in less than ten days after a show cause order is served. There is nothing in either of them which prohibits a person charged from appearing and agreeing that the hearing may be held at any time. The holding of a contempt hearing within less than ten days from the date on which a show cause order is served is a procedural irregularity only. It follows that the court did not lack jurisdiction in this case because the contempt hearing was held within less than ten days after service of the show cause order on relator. Freeman v. Freeman, supra.

On the other hand, the holding of the hearing in less than ten days after service of notice may constitute a denial of due process. The direction of ten days' notice in the statute and the rule is in mandatory language. The obvious purpose of the direction is to afford the defaulting party reasonable opportunity to employ counsel, gather evidence, subpoena witnesses and prepare for trial. The rule itself provides. 'The court, the parties and the attorneys may call and question witnesses to ascertain whether such support order has been disobeyed.'

The proceeding is unlike a civil suit. The person charged may not ignore the show cause order as he might ignore citation in a civil suit. He is commanded by the court to appear, and if he ignores the command he may be brought in under a capias. Moreover, one of the purposes of the hearing is to determine whether penal sanctions will be imposed against him; a fine may be imposed or he may be committed to jail, or both penalties may be inflicted. Article 1911, V.A.C.S. In addition, his imprisionment may be continued until he has purged himself of the contempt. 12 Tex.Jur.2d 511, Contempt, Sec. 33. The usual condition in this type of case with which the contemner must comply in order to purge himself is the payment of a fixed sum of money, within his ability to pay, representing cumulated arrearages of support payments. The hearing has some of the incidents of a trial for crime and is quasi-criminal in nature. Ex parte Jones, Tex., 331 S.W.2d 202, 205.

The precise question with which we are here concerned is whether on the record before us relator has been denied constitutional due process. On September 3, 1960 the judge directed the issuance of the show cause order. It commanded relator to appear on September 10th. It was served on relator on September 8th. Relator is a deaf mute. He appeared as commanded, accompanied by his father and an adult sister, but without counsel. The complaining witness, former wife of relator, also a deaf mute, was present in court. Apparently the court reporter was not present at the hearing as no official record of the proceedings was preserved. Following the hearing relator secured counsel who appeared with him before the court on ...