Ex parte Johns, No. 05-90-01464-CV

CourtCourt of Appeals of Texas
Writing for the CourtTHOMAS
Citation807 S.W.2d 768
PartiesEx parte Chris S. JOHNS, Relator, Appellant.
Decision Date22 January 1991
Docket NumberNo. 05-90-01464-CV

Page 768

807 S.W.2d 768
Ex parte Chris S. JOHNS, Relator, Appellant.
No. 05-90-01464-CV.
Court of Appeals of Texas,
Dallas.
Jan. 22, 1991.

Page 770

Reyburn U. Anderson, Dallas, for appellant.

Ellen Abbott, Dallas, for appellee.

Before WHITHAM, THOMAS and WHITTINGTON, JJ.

OPINION

THOMAS, Justice.

In this habeas corpus proceeding, relator Chris S. Johns was held in contempt of court for failure to pay child support. The trial court ordered relator committed to jail for three days for each of the 218 violations or until he paid the child support arrearage of $90,140.50. Relator contends that the judgment of contempt and his commitment are void because: (a) he was deprived of his right to a jury trial; (b) his former spouse failed to meet her burden of proof concerning his ability to pay the arrearage; (c) the decree of divorce is not enforceable by contempt because it is ambiguous; and (d) there is no valid order of commitment. Finding no merit in relator's arguments, we deny the application.

CATEGORIZING THE JUDGMENT OF CONTEMPT

Relator categorizes this as a criminal contempt proceeding and contends that he is incarcerated under a "criminal" commitment order. On this basis, he argues that he should be released because: (a) he was denied a jury trial; and (b) his former spouse had the burden of establishing his ability to pay the child support arrearage and she failed to do so. It is necessary to first determine whether this order is civil or criminal in nature because the proper classification is dispositive of these arguments. The distinction between civil and criminal contempt is based on the nature and purpose of the penalty imposed. In re Rumaker, 646 F.2d 870, 871 (5th Cir.1980). In a civil contempt matter, the court is attempting to persuade the contemnor to obey a previous order. Smith v. Sullivan, 611 F.2d 1050, 1053 (5th Cir.1980); Ex parte Harrison, 741 S.W.2d 607, 609 (Tex.App.--Austin 1987, orig. proceeding). Civil contempt provides for remedial punishment. A judgment 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. See Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 1429-32, 99 L.Ed.2d 721 (1988). Because the contemnor can avoid incarceration by obeying the court's order, the phrase has been coined that a civil contemnor "carries the keys of his imprisonment in his own pocket." See Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966); Ex parte Werblud, 536 S.W.2d 542, 545 (Tex.1976). In these matters, a judge can impose either a fine or imprisonment, or both, so long as the imprisonment is conditional. Further, it is possible in a civil proceeding to impose a determinate sentence so long as the order contains a "purge clause." See Shillitani, 384 U.S. at 370 n. 6, 86 S.Ct. at 1536 n. 6.

Page 771

Conversely, a criminal contempt order is punitive in nature and is an exertion of the court's inherent power to punish a contemnor for "some completed act which affronted the dignity and authority of the court." Werblud, 536 S.W.2d at 545. In criminal contempt proceedings, commonly referred to as "punitive," 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 Hosken, 480 S.W.2d 18, 23 (Tex.Civ.App.--Beaumont 1972, orig. proceeding). Here too, a judge can impose a fine or imprisonment, or both. However, the distinguishing feature is that the penalty is unconditional. See also Kilgarlin & Ozmun, Contempt of Court in Texas--What You Shouldn't Say to the Judge, 38 BAYLOR L.REV. 291, 297-98 (1986) (a discussion of the distinctions between civil and criminal contempt).

The order in issue states, in pertinent part:

IT IS THEREFORE ORDERED that Relator is committed to the county jail of Dallas County, Texas, for a period of 3 days for each separate violation enumerated above or until Relator has paid $90,140.50 through the Dallas County Child Support Agency, the child support arrearage.

(emphasis added). Thus, relator is to be confined for 654 days unless he pays the child support arrearage of $90,140.50. If the arrearage is paid, he will be immediately released from jail. Because of the harshness of this punishment, relator contends that this constitutes a criminal commitment order.

While we agree that this is a burdensome order given the length of the commitment and the amount of the arrearage, we do not agree that these facts alter the classification of the contempt. The fact of punishment and the severity of punishment is not the determining factor in distinguishing civil from criminal contempt. Imprisonment obviously is punitive. It will, however, be viewed as remedial or coercive if the court imposes a conditional release upon the contemnor's willingness to comply with the court order. The Supreme Court has stated the test as: "what does the court primarily seek to accomplish by imposing sentence?" Shillitani, 384 U.S. at 370, 86 S.Ct. at 1535. Looking at the nature and purpose of the penalty imposed in this matter, it is apparent that the trial court is exerting its "considerable judicial authority to persuade, or coerce" relator to comply with the previous order and that upon his doing so, he will be immediately released from jail. Beginning in 1982, relator stopped making the court ordered child support payments and began a course of conduct of making sporadic payments or no payments at all. Thus, relator's actions in failing to comply with the child support order and allowing the arrearages to accrue are the reason that the punishment is so severe. Because of the conditional nature of this order, we conclude that relator is confined pursuant to a civil contempt order.

RIGHT TO JURY TRIAL

Having determined the character of the order, we turn to relator's assertion that he was entitled to a jury trial because the imposition of this "harsh" sentence constitutes a serious offense, citing Ex parte Griffin, 682 S.W.2d 261 (Tex.1984). While there is no absolute right to trial by jury in contempt proceedings, the Supreme Court has determined that a contemnor possesses such a right in criminal contempt cases where the punishment assessed is "serious." See Muniz v. Hoffman, 422 U.S. 454, 476-77, 95 S.Ct. 2178, 2190-91, 45 L.Ed.2d 319 (1975). Six months imprisonment and/or a $500 fine has become the normal measure for distinguishing petty offenses from serious offenses. A contempt is regarded as "petty" where the punishment does not exceed six months imprisonment or a $500 fine. See Werblud, 536 S.W.2d at 546. Conversly, if a greater punishment is assessed, the proceeding is normally classified as "serious." See Griffin, 682 S.W.2d at 262.

Obviously, a jail sentence of almost two years constitutes a "serious" matter.

Page 772

However, relator's argument fails and his reliance upon Griffin is misplaced. In Griffin, the trial court issued a criminal contempt order assessing 30 days in jail and imposing a fine of $104,000 ($500 for each of 208 separate violations). The Texas Supreme Court held that this constituted a serious case and ordered Griffin discharged because he had not been afforded a jury trial and...

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54 practice notes
  • Molitor v. State, No. 3-89-247-CR
    • United States
    • Court of Appeals of Texas
    • March 18, 1992
    ...court did not err in refusing requested instructions on "accident" or "voluntariness" because it was not raised by the evidence. Graf, 807 S.W.2d at 768. Appellant's seventh point of error is Charge on Criminally Negligent Homicide In his ninth point of error, appellant argues that the tria......
  • Ex parte Chambers, No. 94-0495
    • United States
    • Supreme Court of Texas
    • June 15, 1995
    ...terms and specifications adequate to counter any flight of fancy a contemnor may imagine in order to declare it vague. Ex parte Johns, 807 S.W.2d 768, 774 (Tex.App.--Dallas, There is no question in this case which corporation was responsible for paying the court ordered fine. Further, there......
  • Ex parte Jackson, No. 14-95-00530-CV
    • United States
    • Court of Appeals of Texas
    • November 22, 1995
    ...Page 235 (1988), supports his position; however, actually Hicks demonstrates that his arguments are without merit. See Ex parte Johns, 807 S.W.2d 768, 772 (Tex.App.--Dallas 1991, orig. proceeding). In Hicks, a father sought a writ of habeas corpus after he was held in contempt for failure t......
  • Ex Parte Acevedo, No. 13-05-725-CR (Tex. App. 11/9/2006), No. 13-05-725-CR.
    • United States
    • Court of Appeals of Texas
    • November 9, 2006
    ...the court's inherent power to punish the contemnor for a completed act that affronted the court's dignity and authority. Ex parte Johns, 807 S.W.2d 768, 771 (Tex. App.-Dallas 1991, no pet.) (orig. proceeding). Contempt proceedings are quasi-criminal in nature, and they should conform as nea......
  • Request a trial to view additional results
55 cases
  • Molitor v. State, No. 3-89-247-CR
    • United States
    • Court of Appeals of Texas
    • March 18, 1992
    ...court did not err in refusing requested instructions on "accident" or "voluntariness" because it was not raised by the evidence. Graf, 807 S.W.2d at 768. Appellant's seventh point of error is Charge on Criminally Negligent Homicide In his ninth point of error, appellant argues that the tria......
  • Ex parte Chambers, No. 94-0495
    • United States
    • Supreme Court of Texas
    • June 15, 1995
    ...terms and specifications adequate to counter any flight of fancy a contemnor may imagine in order to declare it vague. Ex parte Johns, 807 S.W.2d 768, 774 (Tex.App.--Dallas, There is no question in this case which corporation was responsible for paying the court ordered fine. Further, there......
  • Ex parte Jackson, No. 14-95-00530-CV
    • United States
    • Court of Appeals of Texas
    • November 22, 1995
    ...Page 235 (1988), supports his position; however, actually Hicks demonstrates that his arguments are without merit. See Ex parte Johns, 807 S.W.2d 768, 772 (Tex.App.--Dallas 1991, orig. proceeding). In Hicks, a father sought a writ of habeas corpus after he was held in contempt for failure t......
  • Ex Parte Acevedo, No. 13-05-725-CR (Tex. App. 11/9/2006), No. 13-05-725-CR.
    • United States
    • Court of Appeals of Texas
    • November 9, 2006
    ...the court's inherent power to punish the contemnor for a completed act that affronted the court's dignity and authority. Ex parte Johns, 807 S.W.2d 768, 771 (Tex. App.-Dallas 1991, no pet.) (orig. proceeding). Contempt proceedings are quasi-criminal in nature, and they should conform as nea......
  • Request a trial to view additional results

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