Ex parte Jackson

• Citation: 911 S.W.2d 230
• Decision Date: 22 November 1995
• Docket Number: No. 14-95-00530-CV,14-95-00530-CV
• Parties: Ex parte Thomas J. JACKSON. (14th Dist.)
• Court: Court of Appeals of Texas

Page 230

911 S.W.2d 230

Ex parte Thomas J. JACKSON.

No. 14-95-00530-CV.

Court of Appeals of Texas Houston (14th Dist.).

Nov. 22, 1995.

John W. Wiggins, Houston, for appellants.

Brent Dobbs, Houston, Michael Mankins, Houston, for appellees.

Before LEE, AMIDEI and EDELMAN, JJ.

OPINION

LEE, Justice.

In this original proceeding, Thomas J. Jackson, relator, seeks a writ of habeas corpus alleging he is illegally restrained of his liberty by virtue of a judgment of contempt and a commitment order issued by the 309th Judicial District. Relator alleges: (1) the trial court erred in committing relator to jail because the commitment violated the double jeopardy provisions of the United States and Texas Constitutions; (2) the trial court erred in imposing criminal penalties on relator for acts not proved beyond a reasonable doubt; and (3) section 14.40(g) of the Texas Family Code is unconstitutional under the due process clause of the United States Constitution as applied in criminal contempt proceedings. We deny relator's writ of habeas corpus.

On March 7, 1991, relator was ordered by the 309th District Court to make monthly child support payments in the amount of $300.00 per month. On May 6, 1994, relator was charged by information in County Criminal Court No. 9 with the offense of criminal non-support.

Eight days later, on May 14, 1994, the Attorney General's office filed a motion to enforce past due child support on behalf of Denice Grevious, relator's ex-wife and the mother of S.M.J. The motion, filed in the 309th, alleged that relator had failed to pay child support from October 1, 1993, through March 31, 1994. The motion asked the court to hold relator in contempt and punish him by confinement for not more than six months and/or by fine of not more than $500.00 for each violation. The motion also asked that relator remain confined until he paid all arrearages, interest, attorney's fees, and court costs.

On November 1, 1994, relator pled nolo contendere to the criminal non-support charge. The criminal court deferred adjudication of guilt and ordered relator placed on probation for two years subject to certain conditions. One of those condition was that relator pay $150.00 per month in restitution beginning on December 1, 1994. The court did not set a total amount to be paid, nor did it place a time limit on the payments. The restitution was ordered paid to Harris County Child Support Office for Denice Grevious.

On May 11, 1995, after a hearing, the 309th District Court found relator in contempt for failure to pay child support on the following dates: October 1, 1993; November 1, 1993; December 1, 1993; January 1, 1994; February 1, 1994; and March 1, 1994. Relator was ordered confined in the Harris County jail from the date of commitment through November 7, 1995. The court further ordered that relator remain confined after November 7, 1995 until he: (1) paid $5,500.00 to the movant towards the child support arrearage; and (2) paid court costs in the amounts of $164.00 and $63.00.

On May 15, 1995, relator filed a petition for writ of habeas corpus with this court. We granted the petition, ordered relator released on bond, and set the case for oral argument.

Relator first contends that the "Order Holding Respondent In Contempt For Failure To Pay Child Support And For Commitment And Judgment For Unpaid Child Support" is void because it violates the double jeopardy provisions of the United States and Texas Constitutions. Relator's argument is based on the fact that he pled nolo contendere to the criminal non-support charge in the information of May 6, 1994. The information stated:

... that THOMAS JACKSON, hereafter styled the defendant, on or about April 1, 1994, did then and there unlawfully[,] intentionally and knowingly fail to provide support for his child, [S.M.J.], a child younger than eighteen years of age.

Relator contends that because he pled no contest to the charge of criminal non-support brought by the State and was punished, the order holding him in contempt is void because he has already been convicted or punished for the acts for which the trial court found him in contempt. In response, the attorney for Denice Grevious argues that relator's double jeopardy claim is without merit in light of Ex parte Williams, 799 S.W.2d 304 (Tex.Crim.App.1990).

In Williams, Thomas Hiram Williams filed a civil suit against his neighbors, the Buffingtons. Id. at 305. The suit concerned a property dispute over which Williams and the Buffingtons had become quite bitter. Ultimately, mutual temporary restraining orders were entered to enjoin the parties from threatening to cause physical contact or bodily injuries to each other. Eventually, the Buffingtons sought a contempt order against Williams alleging that Williams had violated the order by shooting and injuring two of the Buffington family members. The trial court held a hearing on the contempt motion and found Williams in contempt and assessed punishment at 30 days in jail and a $500 dollar fine for the bodily injury violation.

Prior to the entry of the contempt order, but after the contempt hearing, Williams was indicted for attempted capital murder. Id. The indictment alleged that Williams intended to cause the deaths of more than one person when he shot the Buffington family members. Williams filed a pretrial application for writ of habeas corpus alleging that the criminal prosecution was barred by the contempt adjudication pursuant to the double jeopardy provisions of the United States and Texas Constitutions. The trial court denied the relief requested by relator. The court of appeals affirmed the trial court's ruling, first noting that the State was not involved in both prosecutions, and concluding that double jeopardy was not violated based on the application of the test promulgated first in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See Williams v. State, 775 S.W.2d 812, 815-17 (Tex.App.--San Antonio 1989), aff'd, 799 S.W.2d 304 (1990).

The Texas Court of Criminal Appeals granted Williams' petition for discretionary review and began by reviewing caselaw from other jurisdictions confronted with the "criminal contempt/criminal conviction" problem. Williams, 799 S.W.2d at 306. The court found that most jurisdictions have concluded that double jeopardy does not apply to the problem, but have relied on a variety of rationales in reaching their decisions. Id. ¹ The Texas Court of Criminal Appeals, though agreeing with the result reached by those jurisdictions that found no double jeopardy violation, rejected the rationales applied in the other jurisdictions and held:

In this cause the contempt conviction was sought by a private party, not on behalf of the State. Although the power of the State was used to obtain the punishment, through the state court and jail, the State did not seek this punishment. We believe the jeopardy provisions protect only against prosecutions by persons on behalf of the same sovereign, and the contempt conviction here, while "criminal" in nature, is not the "same offense" as the attempted capital murder the State is now seeking to prosecute. Whether the crimes would pass a Blockburger analysis is not relevant.

Id. at 307. In other words, even if the contempt offense and the criminal offense might not pass Blockburger, when contempt is sought by a private party, there is no double jeopardy bar based on the previous criminal conviction. See id.

The Court of Criminal Appeals' analysis is clearly based on an analogy to those cases which hold that double jeopardy protections were provided to prevent one sovereign from twice placing a person in jeopardy of life and limb, not merely to protect an individual from suffering two punishments for committing one act. Williams, 799 S.W.2d at 307. Any other interpretation of the double jeopardy clause would preclude two states, or the federal and a state government from imposing separate punishment for the same acts. In other words, the Fifth Amendment double jeopardy provisions has been construed to allow two convictions for the same offense as long as they are obtained by different "sovereigns." See Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) (different states obtaining separate convictions for same acts); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959) (federal government and a state obtaining separate convictions for same acts). The rationale for Heath and Abbate and other "different sovereign" cases is that crimes committed against different sovereigns are different offenses, even though their elements and the acts may be identical. Williams, 799 S.W.2d at 307 n. 8. They are not the "same offenses" for double jeopardy purposes. Id.

Relator argues that because the Texas Legislature passed the criminal non-support statute and passed the legislation that created the court in which relator was found in contempt, relator has not been convicted by "separate or different sovereigns" for double jeopardy purposes. In support of the argument, relator relies on language contained in Williams which states that different agents of the same sovereign are barred from obtaining separate convictions for the same offense even though the agents represent different political divisions of the sovereign. Id. at 307. Relator's argument is clearly without merit based on the ultimate holding in Williams. In Williams, the Texas Legislature passed the attempted capital murder statute under which Williams was indicted, and passed the legislation which created the court in which Williams was ultimately found guilty of contempt. Yet, the Texas Court of Criminal Appeals still held that there was no double jeopardy violation because the contempt conviction had been initiated by a private party. Clearly, the court saw the contempt conviction as a purely private matter and simply not involving the sovereign in such a way as...