Ex parte Martinez, No. 05-89-00753-CV
| Court | Court of Appeals of Texas |
| Writing for the Court | BURNETT |
| Citation | 775 S.W.2d 455 |
| Parties | Ex parte Antonio MARTINEZ, II. |
| Docket Number | No. 05-89-00753-CV |
| Decision Date | 07 August 1989 |
Page 455
Dallas.
Page 456
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
Page 457
evidence to determine the question of indigency....TEX.FAM. CODE ANN. § 14.32(f) (Vernon Supp.1989). In this case,...
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..."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 himself pro s......
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...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 trial c......
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..."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 himself pro s......
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