Ex parte Hefner

• Decision Date: 22 October 1984
• Docket Number: No. TY-84-454-CA.,TY-84-454-CA.
• Citation: 599 F. Supp. 95
• Parties: Ex parte, Stephen F. HEFNER, Petitioner.
• Court: U.S. District Court — Eastern District of Texas

599 F. Supp. 95

Ex parte, Stephen F. HEFNER, Petitioner.

No. TY-84-454-CA.

United States District Court, E.D. Texas, Tyler Division.

October 22, 1984.

Phil Burleson, Dallas, Tex., Kelly Ireland, Ireland, Carroll & Kelley, Tyler, Tex., for petitioner.

David K. Wilson, Asst. County Atty., Sherman, Tex., for Grayson County.

Scott Pelley, Sherman, Tex., amicus curiae for the Estate of Mary Ellen Bader.

ORDER

STEGER, District Judge.

This proceeding involves a collateral attack upon a contempt judgment entered by a state court. Before the Court is the Petition for Writ of Habeas Corpus filed by Stephen F. Hefner, petitioner in the above entitled and numbered action. The Court has duly considered said petition, the briefs in support thereof, and the evidence submitted by petitioner at the evidentiary hearing on his application and is of the opinion that the petition should be denied and that the writ should not issue for the following reasons.

This case was instituted by petitioner on October 5, 1984, pursuant to 28 U.S.C. § 2254. It arises out of a guardianship matter currently pending in the County Court at Law No. 2 of Grayson County, Texas, hereinafter referred to as the "county court." On January 6, 1984, Walter H. Bader, Jr., petitioned the county court to appoint him as temporary guardian of the person and of the estate of his mother, Mary Ellen Bader. Authority for this appointment was founded upon Tex.Prob. Code Ann. § 131 and § 133 (Vernon 1980)¹. This application was granted January 6, 1984 and the guardian's oath and bond were filed that same day. See Petitioner's Hearing Exhibit No. 1 pg. 7. On February 10, 1984, petitioner entered an appearance in this matter on behalf of Mary Ellen Bader and contested the appointment of the temporary guardian. See Petitioner's Hearing Exhibit No. 1, pgs. 88-91. The guardian filed an application to make the temporary guardianship permanent and a complaint against petitioner and Mary Ellen Bader requesting them to deliver certain property to the estate. Petitioner's Hearing Exhibit No. 1 pgs. 24-31, 94-5. Both of these filings were opposed by petitioner on behalf of Mary Ellen Bader on April 5, 1984. Petitioner's Hearing Exhibit No. 1 pgs. 21-23, 98-102. In the above mentioned motions and responses filed on behalf of Mary Ellen Bader, petitioner has unwaveringly asserted that the county court has no jurisdiction to entertain this guardianship because probate code sections 131 and 133 are unconstitutional insofar as they dispense with the requirements of prior notice and an opportunity to be heard before the guardianship may be established.

A second complaint requesting petitioner to deliver property to the estate was filed by the guardian on August 22, 1984. Petitioner's Hearing Exhibit No. 1, pgs. 379-381. On August 24, 1984, the county court ordered that the complaint would be heard in open court on October 1, 1984.

At this hearing petitioner was called as a witness. He was asked by guardian's counsel if he had received approximately $67,000.00 worth of cash and travelers checks belonging to the estate of Mary Ellen Bader subsequent to the time she was placed under a guardianship by the county court. The specific question, as set forth in the county court's Judgment of Contempt, was: "Mr. Hefner, would you tell us whether or not you received from Mary Ellen Bader subsequent to the time that she was placed under a guardianship by this court the sum of $67,000.00 in cash and in travelers checks?" To which question petitioner responded, according to the Judgment of Contempt, as follows: "I refuse to answer the question on the ground that it would violate the attorney-client privilege." The county court judge then ordered the petitioner to answer the question. Petitioner refused to comply with the county court's order. The county court thereupon declared petitioner to be in contempt of court and ordered him confined to the Grayson County Jail until such time as petitioner purged himself of contempt by answering the question he had previously been ordered to answer by the county court.

The Judgment of Contempt and commitment order were entered by the county court on October 2, 1984. Petitioner was thereafter incarcerated in the Grayson County Jail. That same day Mr. Hefner petitioned the county court for a writ of habeas corpus and a request for setting of bond and a hearing, and same was denied. On October 3, 1984 an application for writ of habeas and a request for bond and a hearing was presented to the judge of the 15th Judicial District Court in Grayson County, Texas, and same was thereafter denied. Subsequently, still on October 3, an application for writ of habeas corpus and request for a bond and a hearing were presented to and denied by the Supreme Court of Texas. As stated previously, petitioner then filed the instant petition for habeas corpus with this Court on October 5, 1984.

In his petition, Mr. Hefner contends that he is being illegally confined and restrained of his liberty by respondent because the judgment of contempt and commitment issued by the county court is void, illegal and/or a violation of due process under both the Texas and United States Constitutions because of the following reasons:

1. Petitioner would show that the order entered by the county court on October 2, 1984, violates the United States and Texas Constitutions as an impermissible imprisonment for a debt, and is further violative of V.A.T.C.S. Art. 1911a, as amended, in that the order of incarceration is for an indefinite period of time, and, therefore, exceeds the jurisdiction of the rendering court, and as such, is void under said constitutional provisions.

2. The county court issued said order on October 2, 1984, pursuant to jurisdiction which it does not have since the order of January 6, 1984, appointing a guardian, is void for the reason that no service of process was had or attempted on the alleged ward, Mary Ellen Bader, and/or the Texas Probate Code is unconstitutional if it provides for no service of process on an alleged incompetent who is at the time of such hearing not a resident of the State of Texas. Since the county court did not have jurisdiction of the person of Mary Ellen Bader, the alleged ward, the court did not have jurisdiction to conduct the hearing where the alleged contempt occurred and did not have the power to order petitioner to answer questions concerning property over which it had no jurisdiction.

3. The manner in which the commitment was issued violates due process in that no hearing thereon was granted to petitioner for issuance thereof and the issuance thereof is void since it cannot be determined whether the punishment for contempt is civil, criminal and/or a combination of both.

The first and third grounds raised above may be disposed of briefly.

The first ground contains two separate arguments. The first alleges that Petitioner has been incarcerated for non-payment of a debt. This allegation is never explained. Petitioner was held in contempt for refusing to answer questions directly related to a proceeding then before the trial court. The commitment was only indirectly related to a debt.

The second argument in the first ground is that petitioner's incarceration is in violation of a state statute. See Tex. Rev.Civ.Stat.Ann. art. 1911a (Vernon Supp. 1984). It is unclear how this argument, even if true, raises a constitutional issue. Upon examination of the statute, it is apparent that the trial court did not violate its provisions. Since petitioner was held in contempt while testifying as a witness, he may not claim the benefits of § 2(c) of the statute. A trial court may hold a person in contempt and confine him indefinitely until that person obeys a court order. Tex.Rev. Civ.Stat.Ann. art. 1911a, § 3. There is a maximum time limit of six months for incarceration. Tex.Rev.Civ.Stat.Ann. art. 1911a, § 2(a). The only other restriction is that the order must clearly specify the actions necessary for the contemnor to purge himself of the contempt. See Ex parte Choate, 582 S.W.2d 625, 627 (Tex. Civ.App.—Beaumont 1979, no writ). The order was sufficiently precise in this case: Petitioner was required to answer the questions asked of him.

The third ground for voiding the contempt order also contains two arguments. The first argument is that petitioner should have been granted a hearing prior to the judgment of contempt. A hearing is required only when the contempt was committed outside the presence of the court. See, e.g. Ex parte Norton, 610 S.W.2d 512, 513 (Tex.Crim.App.1981). In this case, the contempt occurred in open court, and no hearing was required.

The second argument of the third ground seeks to void the contempt order because it is unclear whether the order is for civil or criminal contempt or both. No reason is given suggesting why such an omission is fatal, and the Court finds none.

The second ground raised by petitioner is of a more problematic nature. This portion of his collateral attack is premised upon the suggestion that the contempt judgment entered against him by the county court is void. Petitioner claims the judgment is void because the hearing at which he was adjudged to be in contempt of court was convened in aid of a statutory proceeding (the § 131 temporary guardianship) which is in violation of the United States Constitution. The specific claim of unconstitutionality is that Mary Ellen Bader's right to the procedural and substantive due process of law, as guaranteed by the Fourteenth Amendment to the United States Constitution, has been denied in that her estate and her person have been subjected to a guardianship without prior notice of such application and a corresponding opportunity to be heard in opposition to the application; and that her person and estate have been subjected to plenary third party control without a showing of a compelling state interest justifying this degree of control and without a...