Ex parte Martinez, 05-89-00753-CV

Decision Date07 August 1989
Docket NumberNo. 05-89-00753-CV,05-89-00753-CV
Citation775 S.W.2d 455
PartiesEx parte Antonio MARTINEZ, II.
CourtTexas Court of Appeals

Richard E. Harrison, Dallas, for appellant.

Dennis E. Alvoid, Dallas, for appellee.

Before McCLUNG, ROWE and BURNETT, JJ.

BURNETT, Justice.

Relator Antonio Martinez, II, ("Antonio") applied for a writ of habeas corpus. Because we find the judgment of contempt and order for commitment to be infirm in several respects, we grant the application. We issue this opinion to address only one of our concerns; we do not address here other grounds for sustaining Antonio's application.

Antonio and Sylvia Martinez Muniz ("Sylvia") were divorced on April 6, 1987. The final decree of divorce ordered Antonio to pay weekly child support payments of $70.98. On March 17, 1989, Sylvia filed a motion for contempt, alleging that Antonio had not made several payments when they came due. On June 20, the trial court heard Sylvia's motion and adjudicated Antonio in contempt. The trial court then ordered Antonio incarcerated until he paid the full arrearage of support payments, costs, and attorney's fees for Sylvia's attorney.

Antonio appeared at the hearing on Sylvia's contempt motion pro se. The judgment of contempt makes the opening recitations:

ON THIS DAY came on to be held a hearing in the above cause.

MOVANT, SYLVIA MUNIZ, formerly SYLVIA MARTINEZ, appeared in person and by attorney, Dennis E. Alvoid. ANTONIO MARTINEZ, II, appeared in person.

ALL MATTERS OF LAW and facts were submitted to the Court, and the Court heard the evidence and considered the pleadings and argument of counsel.

(Emphasis added.)

In his application for writ of habeas corpus to this Court, Antonio argues that he was deprived of his constitutional right to counsel. It is well established that, when an alleged contemner faces possible incarceration for contempt, he is entitled to counsel. Ex parte Walker, 748 S.W.2d 21, 22 (Tex.App.--Dallas 1988, orig. proceeding); Ex parte Goodman, 742 S.W.2d 536, 541 (Tex.App.--Fort Worth 1987, orig. proceeding). This right can be waived, but it must be done so "knowingly and intelligently." Walker, 748 S.W.2d at 22.

Quite apart from the rights bestowed by the United States and Texas Constitutions, however, the Texas Family Code now also places an affirmative duty upon the trial court to protect an alleged contemner's right to counsel:

In any enforcement proceeding in which contempt of court or a finding of violation of a probation imposed in prior contempt proceedings is sought, the court shall first determine whether incarceration of the [alleged contemner] is a possible result of the proceedings. If incarceration is possible, the court shall inform a[n] [alleged contemner] who is not represented by an attorney of his right to be represented and his right to the appointment of an attorney if he is indigent. If the [alleged contemner] claims indigency and asks for appointment of an attorney, the court shall require him to file an affidavit and may call witnesses and hear any relevant testimony or other evidence to determine the question of indigency....

TEX.FAM. CODE ANN. § 14.32(f) (Vernon Supp.1989). In this case, Antonio's incarceration was not only a possible result, but was, in fact, the actual result, of the hearing. Therefore, the trial court was under a statutorily mandated duty to inform Antonio of his right to counsel and to allow him to proceed without counsel only if it found that Antonio "knowingly and intelligently waived" that right. Walker, 748 S.W.2d at 22.

The judgment of contempt, however, does not contain a recitation of any such finding. To the contrary; it recites only that the trial court considered the evidence, pleadings, and argument of counsel, that is, Sylvia's attorney. There is no indication in the judgment itself that the trial court heard Antonio at all. Sylvia argues that, in fact, the trial court did inform Antonio of his right to counsel and his right to the appointment of an attorney if he claimed that he was indigent. She argues that the statement of facts (which is not before this Court) would show that the trial court did inform Antonio of his rights concerning counsel. She concludes that, because Antonio did not bring forth a statement of facts to this Court, Antonio did not sustain his burden of showing that the judgment of contempt and order of commitment is void.

We disagree. As we have noted, the judgment of contempt in this case can fairly be read to recite that Antonio was not even heard before being incarcerated and that the trial court heard only Sylvia's counsel. Once Antonio attacked that judgment as void because he was not afforded his right to counsel, there is nothing appearing facially in that judgment itself that overcomes that attack. If a trial court does not inform an alleged contemner of his rights to counsel and to a court-appointed attorney if he is indigent, the trial court is without authority to hold him in contempt. Ex parte Gunther, 758 S.W.2d 226, 226 (Tex.1988) (per curiam). Indeed, in Gunther the supreme court of Texas ordered a relator discharged from custody "[b]ecause the order of contempt [was] contrary to the requirements of § 14.32(f)." 758 S.W.2d at 227 (emphasis added). Nowhere in the Gunther opinion does the Supreme...

To continue reading

Request your trial
3 cases
  • McBride v. McBride
    • United States
    • North Carolina Supreme Court
    • 2 Julio 1993
    ...464 A.2d 228 (1983); Mead v. Batchlor, 435 Mich. 480, 460 N.W.2d 493 (1990); Cox v. Slama, 355 N.W.2d 401 (Minn.1984); Ex Parte Martinez, 775 S.W.2d 455 (Tex.Ct.App.1989), overruled on other grounds by Ex Parte Linder, 783 S.W.2d 754 (Tex.Ct.App.1990); Tetro v. Tetro, 86 Wash.2d 252, 544 P.......
  • Ex parte Linder
    • United States
    • Texas Court of Appeals
    • 8 Enero 1990
    ...recitation that he "knowingly and intelligently" waived his right to counsel. Relator relies on this Court's recent opinion in Ex parte Martinez, 775 S.W.2d 455 (Tex.App.--Dallas 1989, orig. proceeding). The Martinez holding is limited to a situation where a contemnor appears to defend hims......
  • Ex parte Occhipenti
    • United States
    • Texas Court of Appeals
    • 6 Septiembre 1990
    ...1979, orig. proceeding). It is difficult to determine what claims relator asserts as his first point of error. Relying on Ex parte Martinez, 775 S.W.2d 455 (Tex.App.--Dallas 1989, orig. proceeding), relator asserts in his original application that the contempt judgment is void because the t......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT