Ex parte McIntyre

• Citation: 730 S.W.2d 411
• Decision Date: 30 April 1987
• Docket Number: No. 04-86-00321-CV,04-86-00321-CV
• Parties: Ex parte, Leo Robert McINTYRE, Jr., Relator.
• Court: Court of Appeals of Texas

Page 411

730 S.W.2d 411

Ex parte, Leo Robert McINTYRE, Jr., Relator.

No. 04-86-00321-CV.

Court of Appeals of Texas,

San Antonio.

April 30, 1987.

David R. Weiner, San Antonio, for appellant.

Gary Howard, San Antonio, for appellee.

Before the court en banc.

OPINION

DIAL, Justice.

ON RELATOR'S PETITION FOR WRIT OF HABEAS CORPUS

This is an original habeas corpus proceeding by which Leo Robert McIntyre, Jr., seeks his release from the Bexar County Jail. We have jurisdiction under TEX.GOV'T CODE ANN. § 22.221(d) (Vernon Supp.1987) where a person is restrained of his liberty because of violation of an order previously made in a divorce case or a wife or child support case. On the court's motion we are considering the matter en banc.

Under the provisions of a January 7, 1986, divorce decree, relator is required to make child support payments of $1,500.00 for his three children. Relator also was ordered in the divorce decree to pay arrearage in spousal and child support of $5,100.00 within 30 days and to release certain personal property to his former wife, Marian McIntyre.

On March 14, 1986, relator filed a motion to hold his former wife in contempt for violating the provisions of the divorce decree concerning his rights to visitation with his three children. On April 4, 1986, relator's former wife filed her motion to hold relator in contempt for failure to pay child support, for failure to pay the $5,100.00 in past-due spousal and child support ordered by the divorce decree, and for refusing to turn over certain personal property awarded her in the divorce decree.

The court heard both motions for contempt on May 21, 1986. Relator appeared pro se at this hearing. After hearing testimony the court found that Marian McIntyre was "technically guilty" of violating the divorce decree and ordered her to faithfully comply with its visitation provisions. The court also found relator guilty of contempt for failing to pay child support for the months of March, April and May 1986, failing to pay $5,100.00 in back spousal and child support, and failing to surrender to his former wife personal property awarded to her. Relator was ordered confined in the Bexar County Jail for a period of 14 days, and thereafter until he "HAS: 1. PAID $9,600.00 TO THE MOVANT, MARIAN McINTYRE, AS CHILD-SUPPORT ARREARAGE: 2. PAID $150.00 AS COURT COSTS OF THIS PROCEEDING TO THE DISTRICT CLERK OF BEXAR COUNTY, TEXAS: 3. PAID $2,500.00 AS COURT COSTS OF THIS PROCEEDING TO GARY D. HOWARD, ATTORNEY FOR MOVANT."

In this original application for writ of habeas corpus relator challenges his confinement on several grounds. Relator initially argues that the contempt decree is void because he was not afforded assistance of counsel at the contempt hearing, and the record does not affirmatively reflect that he made a knowing, intelligent, and voluntary waiver of counsel.

In Ex parte Lopez, 710 S.W.2d 948 (Tex.App.--San Antonio 1986, no writ) (Reeves, J., concurring in part and dissenting in part) a panel of this Court held that in cases where an indigent is charged with contempt, is not represented by counsel and has not intelligently waived the right to assistance of counsel, a court may not, without violating the constitutional right to assistance of counsel, impose imprisonment as a punishment for disobedience of a child support order.

Lopez found that the right to counsel in contempt proceedings such as the present one, was grounded in the Sixth Amendment to the Constitution, as interpreted by the United States Supreme Court in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Lopez noted that contempt proceedings are "criminal prosecutions," within the language of the Sixth Amendment to the extent that incarceration can be imposed without a "purge" condition or without a showing of the defendant's present ability to pay the accrued child support arrearage.

In Ex parte Hosken, 480 S.W.2d 18, 24 (Tex.Civ.App.--Beaumont 1972, no writ), a Sixth Amendment right to counsel was also found to exist in a contempt proceeding arising out of a violation of the visitation rights provisions of a divorce decree. In that case counsel had been retained but was unavailable when the contempt hearing was held.

The holding of Hosken that the Sixth Amendment did apply in a contempt hearing insofar as retained counsel was concerned was extended in Ridgway v. Baker, 720 F.2d 1409, 1413 (CA 5 1983), where the Court held that the right to counsel under the Sixth Amendment "extends to every case in which the litigant may be deprived of his personal liberty if he loses", and turns on whether deprivation of liberty may result from a proceeding, not upon its characterization as "criminal" or "civil." Unlike the case before us, the appellant in Ridgway requested appointment of counsel and made an uncontroverted assertion of indigency. However, neither of those two facts were dispositive of the Court's opinion, nor formed the basis for it.

The right to counsel under the Sixth Amendment was discussed by the Austin Court of Civil Appeals in Ex parte Wilson, 559 S.W.2d 698, 700-01 (Tex.Civ.App.--Austin 1977, no writ) but held not to be applicable because the relator was not indigent.

The absence of indigency also was a factor in Ex parte Andrews, 566 S.W.2d 668, 670 (Tex.Civ.App.--Houston [1st Dist.] 1978, no writ), where the Court commented that the relator's argument that he was denied due process by the trial court's failure to provide counsel for him at a contempt hearing raised "serious constitutional questions." The Court declined to order the relator's release however, because the record did not show that he requested that the court appoint counsel to represent him or that he was indigent at the time of the hearing and unable to retain counsel.

The decision of the Court in Andrews appears to be based upon a Fourteenth Amendment-due process argument of entitlement to counsel and not a Sixth Amendment argument. ¹ While this distinction may not seem of much importance at first blush, the Sixth Amendment right to counsel is absolute in any proceeding characterized as a "criminal prosecution." Under the Fourteenth Amendment, the right to counsel is determined on a case-by-case basis in the exercise of sound discretion by a judge or hearing officer. Middendorf v. Henry, 425 U.S. 25, 42-44, 96 S.Ct. 1281, 1291-92, 47 L.Ed.2d 556, 569 (1976); Gagnon v. Scarpelli, 411 U.S. 778, 789-91, 93 S.Ct. 1756, 1763-64, 36 L.Ed.2d 656, 666 (1973).

In the case before us, relator was found guilty of criminal contempt, inasmuch as he was sentenced to two weeks incarceration which he was ordered to serve without an opportunity to purge himself of contempt. Ex parte Werblud, 536 S.W.2d 542, 545 (Tex.1976). Our Supreme Court has declared that "a contempt proceeding is unlike a civil suit, has some of the incidents of a trial for crime, and is quasi-criminal in nature." Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex.1967). Accordingly, proceedings in contempt cases should conform as nearly as practicable to those in criminal cases. Ex parte Johnson, 654 S.W.2d 415, 420, (Tex.1983); Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 829 (1960). We agree that in cases where an indigent contemnor is not represented by counsel and has not knowingly, intelligently, and voluntarily waived the right to assistance of counsel, a court may not impose imprisonment as punishment for failing to make Court ordered child support payments.

The record before us discloses that although relator proceeded pro se at the contempt hearing, he was fully aware of his right to counsel and was not indigent. Indeed, relator does not claim in in his application for writ of habeas corpus that he is indigent, but argues that the holding of Ex parte Lopez applies "without regard to the question of whether Relator was or was not an indigent." We disagree.

The record establishes that relator owns a $3,000.00 Rolex watch, had $700.00 in the bank on the date of the hearing, was presently leasing a $600.00 per month Mercedes-Benz, and that he owned other personal property. At no time did relator ask the court to appoint counsel.

While the better procedure at a contempt hearing would be for the judge to advise all contemnors of their right to counsel when they appear pro se at the contempt hearing and obtain a waiver of counsel for the record, the record clearly establishes that relator was aware of his right to be represented by an attorney at the hearing and that he was not indigent.

Relator next argues that he is entitled to habeas corpus relief because the evidence in the record of the contempt hearing does not establish beyond a reasonable doubt that he had the ability to make the child support payments. For support of this contention relator relies exclusively on the majority opinion of this Court in Ex parte Lopez, supra.

Lopez extended the above statement that contempt proceedings should conform as nearly as practicable to those in criminal cases. For the first time a Texas court held that the criminal standard of proof beyond a reasonable doubt must be applied in a contempt proceeding to a finding that the relator was affirmatively able to comply with the court's order. While recognizing the relator's right to present evidence concerning his inability to comply, the Lopez majority said, "At the very least, where defendant produces some evidence of inability to pay, he should not be imprisoned unless there is evidence sufficient to support, beyond a reasonable doubt, the finding of ability to comply." Ex parte Lopez, 710 S.W.2d at 956.

This holding flies in the face of over 30 years of established Texas law. To be sure, one cannot be imprisoned where he is involuntarily unable to perform, but the burden has been placed on the relator to show that inability. Ex parte Padfield, 154 Tex. 253, 276 S.W.2d 247, 251 (1955); Ex parte Kollenborn, 154 Tex. 223, 276 S.W.2d 251, 254 (1955).

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