Ex parte Hayes, 05-17-00473-CV

• Decision Date: 07 July 2017
• Docket Number: No. 05-17-00473-CV,05-17-00473-CV
• Parties: EX PARTE LOREN TODD HAYES, Relator
• Court: Texas Court of Appeals

EX PARTE LOREN TODD HAYES, Relator

No. 05-17-00473-CV

Court of Appeals Fifth District of Texas at Dallas

July 7, 2017

Original Proceeding from the 254th Judicial District Court Dallas County, Texas

Trial Court Cause No. DF-05-19243

MEMORANDUM OPINION

Before Justices Bridges, Fillmore, and Schenck

Opinion by Justice Fillmore

On the Court's own motion, we withdraw and vacate our prior opinions and orders dated May 9, 2017, and June 30, 2017. The following is now the opinion of the Court.

Relator Loren Todd Hayes is confined in the Dallas County jail as a result of the trial court's March 6, 2017 order holding him in criminal and civil contempt for failing to pay court-ordered child support. Relator filed his petition for writ of habeas corpus on May 5, 2017 claiming the underlying commitment order is void and his due process rights are being violated. He seeks to be discharged from confinement. We denied the petition because the record did not show that relator was in custody at the time of filing the petition and did not include a transcript of the trial court's March 6, 2017 hearing. Relator filed proof of current confinement and a reporter's record with his May 29, 2017 motion for rehearing, which is now before the Court. By order dated June 8, 2017, we requested the real party in interest and respondent to file responses to the motion for rehearing and the petition for writ of habeas corpus by June 15, 2017. No responses were filed. We grant relator's motion for rehearing and deny relator's petition for writ of habeas corpus.

Procedural History

Relator's divorce was finalized on June 29, 2007. The final decree ordered relator to pay monthly child support. By May 2008, relator was in arrears on those payments. In a May 1, 2008 order enforcing the child support obligation, the trial court found relator in contempt but suspended a commitment to county jail and placed him on community supervision. By November 2009, relator was $21,435.61 in arrears. In a November 19, 2009 order, the trial court granted judgment on the arrearages against relator and ordered him to pay $200.00 a month until the judgment was satisfied in full or "on termination of the child support obligation for any child the subject of this suit." The court continued the 2008 suspension of its commitment order and continued relator's community supervision. The court entered a similar order on December 2, 2013. By December 2014, relator's arrearages had reached $34,440.29. On December 8, 2014, the trial court entered an order enforcing the child support obligation but again suspended the commitment, placed relator on community supervision, and set up a monthly payment plan. Following the 2014 order, it appears relator paid monthly until he lost his job and failed to pay the October, November, and December 2016 payments and the January 2017 payment. As a result, the Dallas County Domestic Relations Office moved to revoke relator's community supervision and to enforce the child support order.

Relator appeared in person and through counsel at the March 6, 2017 hearing on the motion to revoke. Relator testified that he missed the four payments because he lost his job and could not pay. In the past he could only find work paid through straight commissions. But he testified that he was able to pay and did pay his child support obligations when he was employed, sometimes more than the monthly amount required, but he could not pay during times of unemployment. He also testified that he had been employed as a salaried employee sinceJanuary 2017 and could now make the monthly payments. This was the first salaried job he has had in a number of years, so the child support obligations could be deducted automatically by the State from his paycheck. Relator testified that if he is confined in jail he will lose his job and be unable to pay monthly child support and the arrearages. The evidence showed that relator was required to pay $13,300.00 between November 2014 and the date of the hearing and had paid $12,286.54 during that time.

In a March 6, 2017 order, the trial court granted the motion to revoke, and relator was taken into custody. The court ordered relator to remain in custody for 180 days and until relator has paid the full child support arrearages of $34,440.29 and $208.00 in fines and court costs. Specifically, the order states that the court revokes the community supervision and orders the following:

(a). that Obligor shall be committed and confined in the County Jail of Dallas County, TX., for 180 days, and

(b). until such time as Obligor has paid the court fine to the Dallas County Domestic Relations Office, in the amount of $100.00, as imposed and ordered on December 2, 2013; and

(c). until such time as Obligor has paid the full child support arrearages of $34,440.29; and

(d). until such time as Obligor has paid the full amount of $108.00 as costs of Court to the Dallas County District Clerk.

Relator was arrested, committed to the Dallas County jail, and remains in custody. In this original proceeding, relator asks the Court to issue a writ ordering his immediate release and vacatur of the trial court's March 6, 2017 order.

Standard of Review

This original habeas corpus proceeding is a collateral attack on a contempt judgment. See Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967). The purpose of a habeas corpus proceeding is not to determine the ultimate guilt or innocence of the relator, but only to ascertain whether the relator has been unlawfully confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.1979). 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). A relator bears the burden to show that the contempt order is void and not merely voidable. In re Pruitt, 6 S.W.3d 363, 364 (Tex. App.—Beaumont 1999, orig. proceeding). An appellate court may order the contemnor released only if the judgment is void because of a lack of jurisdiction or because the contemnor was deprived of liberty without due process of law. In re Lausch, 177 S.W.3d 144, 150 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding); In re Houston, 92 S.W.3d 870, 875-76 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding). "Although the Texas Constitution provides that 'no person shall ever be imprisoned for debt,' see TEX. CONST. art. 1, § 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." Ex Parte Coronado, No. 13-09-00149-CV, 2009 WL 961948, at * 2 (Tex. App.—Corpus Christi April 9, 2009, orig. proceeding) (mem. op.) (citing In re Henry, 154 S.W.3d 594, 596 (Tex. 2005)).

Applicable Law

There are two forms of contempt: civil and criminal. The distinction between civil and criminal contempt is based on the nature and purpose of the penalty imposed. Ex parte Johns, 807 S.W.2d 768, 770 (Tex. App.—Dallas 1991, orig. proceeding). In some instances, such as this case, the "proceeding partakes of the nature of both." See Ex parte Hosken, 480 S.W.2d 18, 23 (Tex. App.—Beaumont 1972, orig. proceeding). The purpose of civil contempt is to secure one's compliance with an order or decision of the court. Id. "For example, if one is placed in jail until he performs an act that he was previously ordered to perform, then the resulting contempt is civil in nature." In re Scariati, 988 S.W.2d 270, 272-73, n.1 (Tex. App.—Amarillo 1998, orig. proceeding) (citing Ex parte Raymer, 644 S.W.2d 889, 890 (Tex. App.—Amarillo 1982, orig. proceeding) (exemplifying the difference between civil and criminal contempt)). "Ajudgment which provides that a contemnor is to be committed unless and until he performs the affirmative act required by the court's order is a civil contempt order. This type of conditional penalty is civil because it is designed to compel the doing of some act." Ex parte Johns, 807 S.W.2d at 770-71 (citing Hicks v. Feiock, 485 U.S. 624, 630 (1988)). A civil contemnor "carries the keys of his imprisonment in his own pocket" because he can avoid incarceration by obeying the court's order and purging himself of the contempt. Shillitani v. United States, 384 U.S. 364, 368 (1966); Ex parte Werblud, 536 S.W.2d 542, 545 (Tex. 1976). A court may impose a fine, imprisonment, or both in a civil contempt order so long as the imprisonment is conditional. Ex parte Johns, 807 S.W.2d at 770-71. A civil contempt order can impose a determinate sentence as long as the order contains a "purge clause." Id. (citing Shillitani, 384 U.S. at 370 n.6).

In contrast, a criminal contempt order is punitive in nature and is an exertion of the court's inherent power to punish a party for "some completed act which affronted the dignity and authority of the court." Ex parte Johns, 807 S.W.2d at 771 (quoting Werblud, 536 S.W.2d at 545). Criminal contempt orders generally require the individual to be incarcerated for a finite period and that period is unaffected by the individual's performance of any future act. In re Scariati, 988 S.W.2d at 272, n.1.; Ex parte Hoskens, 480 S.W.2d at 23. In criminal contempt proceedings, the contemnor is being punished for his improper actions "and no subsequent voluntary compliance on the part of the defendant can enable him to avoid punishment for his past acts." Ex parte Johns, 807 S.W.2d at 771 (quoting Ex parte Hosken, 480 S.W.2d at 23). A judge can impose a fine or imprisonment or both in a criminal contempt order. Id. The distinguishing feature of criminal contempt is that the penalty is unconditional. Id.

Analysis

The trial court's March 6, 2017 order is criminal in nature because it imposes confinement for relator's past failure to make child support payments, and also civil in naturebecause it provides for further confinement until relator purges the contempt by paying the arrearages. See, e.g., Ex parte Coronado, 2009 WL...