Ex parte Hosken

Decision Date13 April 1972
Docket NumberNo. 7353,7353
PartiesEx parte Carl E. HOSKEN.
CourtTexas Court of Appeals

Evans & Marshall, San Antonio, for relator .

Walter Umphrey, Port Arthur, for respondent.

KEITH, Justice.

In this original habeas corpus proceeding the only serious question presented is whether or not Relator was deprived of due process of law in the hearing which resulted in his imprisonment. Our review of the proceedings is necessarily limited since we do not exercise appellate, but original jurisdiction. We wrote upon the subject recently in Ex parte Williams, 469 S.W.2d 449, 450 (Tex.Civ.App., Beaumont, 1971, original proceedings), and repeat only a few of the comments made at that time.

For this contempt proceeding to be subject to collateral attack in this habeas corpus proceeding, it must be void and not merely voidable. Ex parte Tyler, 152 Tex. 602, 261 S.W.2d 833, 834 (1953). We do not review the exercise of discretion by the trial judge nor the sufficiency of the evidence to support his action. Ex parte LaRocca, 154 Tex. 618, 282 S.W.2d 700, 703 (1955). Relator is entitled to his discharge in such a case when he is deprived of his liberty without due process of law. Ex parte Peterson,444 S.W.2d 286, 289 (Tex.Sup.1969).

Relator's former wife procured the entry of a divorce decree in one of the District Courts of Bexar County and the court awarded her the custody of the two minor children born of the marriage. The original decree did not provide for visitation rights for the father, our Relator. Thereafter, Relator invoked the jurisdiction of the Court of Domestic Relations of Jefferson County seeking the entry of an order which would 'specifically set reasonable visitation rights' with the children who were then in Jefferson County. After a hearing, the court entered an order on August 9, 1971, permitting Relator to have the children with him from 4:00 p.m . on Friday until 7:00 p.m. upon the following Sunday one weekend during each calendar month beginning August 13, 1971. Under the order, it was his duty to return the children to their mother in Jefferson County and a bond was required of him to guarantee his performance of that obligation.

It is clear from our record that Relator procured the children on the Labor Day weekend (on or about September 6, 1971) and did not return the children to their mother at the time and place required by the order. The mother regained custody of her children several months later after the children had been located in Tampa, Florida, and Relator had been indicted by the Grand Jury of Jefferson County for kidnapping. Subsequently, her counsel filed a verified application seeking to hold Relator in contempt for his violation of the court's order of August 9, 1971. At that time the mother had custody of the children and Relator was not Then in default of any provision of the August order.

Relator was served with notice of the contempt hearing and on February 16, 1972, the date thereof, appeared and advised the court that his regularly retained counsel had been put to trial before a jury in San Antonio on the preceding day and requested a postponement of the hearing until his retained counsel could be present. No formal motion for continuance was filed and Relator's informal request was denied.

From Relator's affidavit which appears in our record (and which has not been impugned in any manner), it appears that when the case was called for hearing, he approached the bench and advised the court that his counsel was engaged in trial in San Antonio and that he 'would like to have the case held up' until counsel could be present. Relator continues:

'The Judge told me no that he was going to go ahead and have a hearing and then I asked him for a Court Appointed Attorney and the Judge told me that I was not entitled to a Court Appointed Attorney in a civil proceeding and then I was told to sit down and the hearing started.'

The former wife then testified at length and her testimony, if accepted by the trier of the facts, would have been sufficient to support the judgment of contempt. Upon completion of her direct examination, her counsel announced: 'That's all I have, Your Honor.' Thereupon, the following proceedings, as reflected by the statement of facts, transpired:

'THE COURT: (Directed to Mr. Hosken) Would you like to ask any questions?

'MR. HOSKEN: Your Honor, this is a little bit unfair. I believe I would like to maybe take a few minutes to hire an attorney. I was told what to ask for when I came down if a continuance would not granted. This jury trial was held over--

'THE COURT: You can go out and talk to some attorneys.'

Relator explains what happened in this manner:

'(W)hen the Judge asked me if I wanted to ask my ex-wife any questions I told him that I felt that things were unfair and that I would like to have a few minutes to hire an attorney and was given permission to try to hire one. I went out into the hall way and I saw a man there and I asked him if he was a lawyer and he said he was, . . . (He) said he would represent me but that he was tied up on another matter and that he could not come into that Courtroom for about 30 minutes. So we agreed that he would represent me. . . . I then stepped into the phone booth and put in a telephone call to Mr. Evans in San Antonio to tell him that the case was going to be heard and that I had engaged Mr. Charles D. Carver to represent me and while I was talking to Mr. Evans on the telephone the bailiff came and took me out of the phone booth and brought me back into the Courtroom. The Judge then asked me if I had an attorney and I told him that I did not have one right then and I was going to tell him that Mr. Carver was going to represent me and would be available in about 30 minutes but I was not given an opportunity to tell the Judge that and I was told to sit down and the hearing went on . . ..' 1

The statement of facts continues:

'(At which time the court took a recess and the proceedings continued as follows: Reporter's notation: There was some discussion between Mr. Hosken and the Court before the court reporter was in the courtroom.)

'THE COURT: Is he (retained counsel) in trial?

'MR. HOSKEN: Yes, sir, in Judge Onion's court. See this was held over, Your Honor, it was not expected to.

'THE COURT: A man usually gets ten days and you have a month on these things.

'MR. HOSKEN: I got it on (January) the 27th on a Bill of Review in San Antonio.

'THE COURT: I am going to hear some more evidence.

'MR. UMPHREY: We call Mr. Hosken under the adverse party rule.

'(WHEREUPON, CARL E. HOSKEN, after having been duly sworn upon his oath, testified as follows, to-wit:)

'CROSS EXAMINATION 2

'BY MR. UMPHREY:'

Although Relator did not, under these circumstances, deline to testify, he did invoke his privilege against self-incrimination upon several occasions during his 'cross-examination' by the wife's counsel. 3 At the conclusion of the hearing, the court found Relator guilty of contempt of court for the violation of the order of August 9 and set his punishment at confinement in the county jail for twenty days. Art. 1911 a, § 2(a), Vernon's Ann.Civ.St., as amended.

Relator having been imprisoned under the terms of this order, we granted his application for the writ of habeas corpus and ordered his release upon bond pending hearing of the application for the writ. Art. 1824a, V.A.C.S. Our record consists of a transcript and statement of facts from the Court of Domestic Relations of Jefferson County, a record of another related proceeding in Bexar County, and affidavits by Relator and his retained counsel. 4 Although duly notified of the hearing, counsel who represented the former wife in the contempt proceeding has made no appearance, nor has he filed a brief. Several questions are presented in the brief filed on behalf of Relator but only the procedural due process question is worthy of discussion.

Before entering into our discussion of the problem presented in this case, we first review some of the underlying principles. The distinction between direct and indirect (or constructive) contempt is clearly set out in Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406 (1928). The test is whether the contempt is within or outside the presence of the court. See also Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); 17 Am.Jur.2d, Contempt, § 6, p. 11; 17 C.J.S. Contempt §§ 3--4, pp. 8, 9; and, 25 Sw.L.J. 805, 806 (1971). In the case under consideration the contempt was indirect or constructive.

The line of demarcation between civil contempt and criminal contempt is not so clear. The textwriter in 17 C.J.S., Contempt, § 5(2), p. 12, says that the line is 'not always clear' and is 'in hopeless confusion.' Nevertheless, we are told that '(i)t is the nature of the relief asked that is determinative of the nature of the proceeding.' Penfield Co. v. Securities & Exch. Com., 330 U.S. 585, 590, 67 S.Ct. 918, 921, 91 L.Ed. 1117 (1947); Shillitani v. United States, supra (384 U.S. at p. 368, 86 S.Ct. 1531). See also, Gompers v. Buck's Stove & R. Co., 221 U.S. 418, 449, 31 S.Ct. 492, 55 L.Ed. 797 (1911). Shillitani, supra, follows the rationale of Gompers.

The textwriter in 17 Am.Jur.2d, Contempt, § 4, p. 7, states the rule in this manner:

'Where the primary purpose is to preserve the court's authority and to punish for disobedience of its orders, the contempt is criminal. Where the primary purpose is to provide a remedy for an injured suitor and to coerce compliance with an order, the contempt is civil.'

Coercive imprisonment to enforce compliance with an order of the court is civil in nature. If the party charged in the proceeding had chosen to obey the order, he would not have faced jail. And, it has been said that in such instances, the defendants 'carry the keys of their prison in their own pockets.' In re Nevitt, 117 F. 448, 461 (CCA8th Cir. 1902). In such an instance, ordinarily ...

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