Ex parte Hogan

Decision Date29 January 1996
Docket NumberNo. 01-95-01187-CV,01-95-01187-CV
Citation916 S.W.2d 82
PartiesEx parte Charles Francis HOGAN, Relator. (1st Dist.)
CourtTexas Court of Appeals

Terri T. Holder, Angleton, for Appellant.

Lloyd D. Stansberry, Alvin, for Appellees.

Before OLIVER-PARROTT, C.J., and WILSON and MIRABAL, JJ.

OPINION

WILSON, Justice.

This is an original habeas corpus proceeding arising from a proceeding in the trial court to enforce a child support order. Relator, Charles Francis Hogan, requests this Court to discharge him from a contempt sentence rendered by the 300th District Court of Brazoria County. We ordered relator conditionally released on bond pending our determination of his petition.

Factual Background

Relator and his ex-wife, real party in interest Candace Lynn (Hogan) Hurt, were divorced in 1991 by a decree that provided that relator was to pay child support of $700 per month, payable each month in two equal installments, due on the first and 15th day of the month. In May 1995, Hurt filed a motion to enforce child support, asserting relator failed to make child support payments for the periods September 15, 1994, to December 15, 1994, and January 15, 1995, to May 15, 1995.

On September 26, 1995, the trial court heard the motion. Relator testified his child support payments were current through November 1, 1994, after which he began to miss his payments. Hurt testified that she received no direct payments from relator for any of the due dates in 1995. The Brazoria County Child Support Office computer printout shows that between January 15, 1995, and May 15, 1995, relator made no child support payments, with the exception of a $48 payment on January 20 and a $100 payment on January 25. The trial court orally found from the bench that relator failed to make child support payments when due on January 1, 1995; February 1, 1995; February 15, 1995; March 1, 1995; March 15, 1995; April 1, 1995; April 15, 1995; May 1, 1995; and May 15, 1995. However, the order of contempt that the court signed the next day, September 27, 1995, stated that relator was found in contempt for not paying child support on January 1, 1994; February 1, 1994; February 15, 1994; March 1, 1994; March 15, 1994; March 15, 1994; April 1, 1994; April 15, 1994; May 1, 1994; and May 15, 1994.

For each of these nine instances of contempt, the court sentenced relator to 90 days confinement, to run concurrently, and for each instance suspended the sentence for a period of 60 days, conditioned on certain specified terms and conditions.

The day of the hearing, a writ of commitment was issued by the district clerk's office and relator was placed in jail. Our order conditionally releasing relator was issued October 3, 1995.

Hurt discovered the errors in the order of contempt concerning the dates of the contempts and on October 5, 1995, filed a motion to correct it. The motion bears a certificate of service evidencing Hurt's service of the motion on relator's counsel. After notice and hearing, on October 9, 1995, the court signed an order changing the dates on which it found the occurrence of contempt to have happened from the stated 1994 dates to: January 1, 1995, February 1, 1995, February 15, 1995; March 1, 1995; March 15, 1995; April 1, 1995; April 15, 1995; May 1, 1995; and May 15, 1995.

Standard of Review

For this Court to order relator's release, the trial court's order of commitment must be void, either because it was beyond the power of the court to change it or because it deprived the relator of his liberty without due process of law. Ex parte Barnett, 600 S.W.2d 252, 254 (Tex.1980).

First Ground For Relief/Supplemental Contention "A"

Relator's first ground for relief is that the order of contempt does not match the allegations set out in the motion to enforce.

Hurt responds to this contention by saying that the trial court corrected the dates in its October 9, 1995, order. Relator counters this in contention "A" of his supplemental brief, saying that once this Court assumed jurisdiction of the proceedings, the trial court lost jurisdiction to correct the dates. For support relator relies on Ex parte Barnett, 600 S.W.2d 252 (Tex.1980), and Ex parte Morgan, 886 S.W.2d 829 (Tex.App.--Amarillo 1994, orig. proceeding). In those two cases, the trial courts had committed the contemnors to jail solely on the strength of a commitment order, without the benefit of an attached contempt judgment detailing the court order they had violated and the particulars of when and how they had violated it. In both cases, the trial courts, after an unreasonable length of time had passed since the contemnor's confinement, then tried to remedy the lack of a contempt judgment by filing one after the contemnor had applied to a higher court for a writ of habeas corpus. See Ex parte Barnett, 600 S.W.2d at 257 (held that when the supreme court released Mr. Barnett on bond, the trial court lost jurisdiction to sign a judgment of contempt); Ex parte Morgan, 886 S.W.2d at 831-32 (held that when the Amarillo Court of Appeals released Ms. Morgan on bond, the trial court lost jurisdiction to sign a judgment of contempt). We agree with the principle stated in Barnett and Morgan that when a trial court has not signed a judgment of contempt and the alleged contemnor who has petitioned a higher court for habeas corpus relief has been released on bond, the trial court does not have jurisdiction to file a judgment of contempt. That principle is inapplicable to this case, however, because here the trial court had, within a day of relator's confinement, signed a contempt judgment setting out the particulars of relator's contemptuous violations of the divorce decree, albeit with obvious typographical errors concerning the year in which the contemptuous acts occurred. In accordance with Barnett and Morgan, once we had ordered relator released on bond, the trial court did not have jurisdiction to create, wholecloth, a previously nonexistent contempt judgment. It did, however, have jurisdiction to correct the obvious typographical errors, nunc pro tunc, to make the written judgment speak the truth of the judgment that the judge actually rendered verbally in court. TEX.R.CIV. P. 316; see Ex parte Waldrep, 783 S.W.2d 332, 334 (Tex.App.--Houston [14th Dist.] 1990, orig. proceeding). 1

We overrule contention "A" of relator's supplemental brief.

Under his first ground for relief, relator argues that notice was not served on him of charges that he did not make his child support payments in January through May of 1994. The findings of relator's non-payment for January 15, 1994, through May 15, 1994, in the September 27, 1995, judgment, were obviously typographical errors. Obvious typographical errors do not render a contempt order void. Ex parte Williams, 866 S.W.2d 751, 754 (Tex.App.--Houston [1st Dist.] 1993, orig. proceeding) (citing Ex parte Benitez, 590 S.W.2d 704, 707 (Tex.1979)). Relator had notice from Hurt's motion to enforce that he was being charged with not paying child support on January 15, 1995, through May 15, 1995. At the close of the hearing, the court orally pronounced that relator failed to pay child support during the period January 15, 1995 through May 15, 1995. In drafting the September 27th judgment, the trial court made a clerical mistake, which it was entitled to correct. Ex parte Waldrep, 783 S.W.2d at 334. A nunc pro tunc order is used by a court to make its records speak the truth by correcting the record at a later date to reflect what actually occurred at trial. Ex parte Dickerson, 702 S.W.2d 657, 658 (Tex.Crim.App.1986). The October 9th order simply made the written record reflect the truth of the actual findings the court had made at the hearing.

Accordingly, we overrule relator's first ground for relief.

Supplemental Contention "B"

Relator argues in contention "B" of his supplemental brief that the trial court erred in granting the motion to amend the September 27th order because the delay between the actual commitment and the signing of the order deprived him of due process. Specifically, relator argues that he was confined September 26, 1995, pursuant to the trial court's oral ruling and that the October 9th order was not signed sufficiently close in time to his confinement to satisfy due process.

Relator relies on Ex parte Delcourt, 888 S.W.2d 811 (Tex.1994). In that case, Mrs. Delcourt brought a motion for enforcement of a previously agreed-to temporary order. Id. at 812. On September 27, 1993, the day the motion was heard, the trial court issued an order finding Mr. Delcourt in contempt for failing to make auto note payments as set out in the agreed temporary order, and had him confined. Ex parte Delcourt, 868 S.W.2d 373, 374-75 (Tex.App.--Houston [1st Dist.] 1993, orig. proceeding). Following his filing of a petition for writ of habeas corpus, this Court released him on bond pending a determination of his petition. Id. at 374. While Mr. Delcourt was out on bond, based on the September 27th hearing, the trial court signed a second commitment order, this time finding him in contempt for transferring a piece of Mrs. Delcourt's property to his brother's house in violation of the agreed order. Id. When relator petitioned the supreme court on this matter, it held that if the second commitment order issued as a result of the first contempt hearing, no written commitment was signed sufficiently close to the time the judge pronounced the contempt to satisfy due process requirements. Ex parte Delcourt, 888 S.W.2d at 812 (citing Ex parte Amaya, 748 S.W.2d 224, 224-25 (Tex.1988)). Relator argues that in Delcourt, the supreme court rejected the idea that the trial court could enter additional contempt judgments and commitments subsequent to the first. We agree. However, what the trial court did in this case was not to enter an additional contempt judgment, but correct the first one consistent with how the court had ruled verbally in court after the hearing.

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