Ex parte Pena, 2676

• Citation: 636 S.W.2d 741
• Decision Date: 10 June 1982
• Docket Number: No. 2676,2676
• Parties: Ex parte Leandro PENA.
• Court: Court of Appeals of Texas

Page 741

636 S.W.2d 741

Ex parte Leandro PENA.

No. 2676.

Court of Appeals of Texas, Corpus Christi.

June 10, 1982.

J. Manuel Banales, Corpus Christi, for appellant.

Michael Ryan, Tex. Dept. of Human Resources, Child Support Enforcement Unit, Corpus Christi, for appellee.

Before NYE, C. J., and BISSETT and YOUNG, JJ.

OPINION

BISSETT, Justice.

This is an original proceeding for a writ of habeas corpus, brought by Leandro Pena, relator. He was confined in the Nueces County jail for failure to make child support payments in accordance with a previous order of the 148th District Court of Nueces County, Texas. On filing the application for a writ of habeas corpus in this Court, we ordered the relator released on bail pending a hearing in this Court. Such hearing was held on June 9, 1982.

On February 27, 1976, a decree of legitimation was rendered by the 148th District Court, wherein the relator was declared to be the parent of six (6) children, all of whom were under eighteen years of age, with the eldest having been born on June 5, 1963, and the youngest having been born on June 24, 1968. He was ordered to pay child support in the amount of fifteen ($15.00) dollars per week.

Relator became delinquent in his child support payments, and on December 23, 1977, pursuant to a motion previously filed by the Texas State Department of Public Welfare, and after due notice to the relator, the court held the relator in contempt of the court and ordered him confined for seven (7) days as punishment for his disobedience of the February 27, 1976 order of the court. The relator was ordered to resume his regular child support payments of fifteen ($15.00) dollars per week, and in addition, to pay twenty ($20.00) dollars per week, to be applied on the arrearage of child support payments in the total amount of nine hundred ninety ($990.00) dollars "until said arrearages are extinguished." However, while it was ordered that "commitment issue to the Sheriff of Nueces County," it was further ordered that "commitment shall be held in abeyance so long as Respondent shall faithfully make child support from date hereof in accordance with the orders of this court."

On March 26, 1979, the Texas Department of Human Resources filed a motion "to invoke suspension of the jail commitment" of the relator as provided in the December 23, 1977 order. Following a hearing on the motion, and after due notice to the relator, the court, by order signed on June 19, 1979, found that the relator was in contempt of court because of his failure to make child support payments in accordance with previous orders of the court. His punishment for contempt was fixed at ninety (90) days confinement in jail. It was also found that the relator was in arrears in such payments in the total amount of five hundred seventy ($570.00) dollars. Whereupon, the relator was ordered to immediately resume his regular weekly child support payments of fifteen ($15.00) dollars, and to also make additional payments of twenty ($20.00) dollars per week towards retiring the arrearage. It was again ordered that "commitment issue to the Sheriff of Nueces County, Texas," but "that commitment shall be held in abeyance so long as Respondent shall faithfully make child support payments from date hereof in accordance with the orders of this court."

On April 23, 1980, the Texas Department of Human Resources filed a motion to revoke the suspension. After due notice to the relator, the motion was heard on May 28, 1980. The court found that the relator was delinquent in his child support payments, and by order signed on July 29, 1980, revoked relator's suspension and further ordered:

"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Respondent by reason of his failure to make child support payments as hereinbefore found by this Court, and his punishment for such disobedience previously suspended is here fixed by his confinement in the Nueces County, Texas, jail for a term of ninety (90) days and thereafter until he pays costs of Court and arrearage of child support payments in the amount of $570.00.

"THEREFORE, let commitment issue to the Sheriff of any county, Texas, accompanied by a copy of this judgment."

By order signed on August 4, 1980, the court found that the relator had paid all of his arreage of child support payments except the sum of $150.00. It was then ordered that further execution of the terms of the July 29, 1980 order, be suspended subject to the following terms and conditions:

"That he satisfy the balance, if any, of fine and costs due in these proceedings on or before September 4, 1980.

That he shall pay together with the child support payments now required by Order of this Court an additional $20.00 per installment to be applied and credited to the amount of arrearage of child support payments as heretofore ordered by the Court.

That he faithfully make child support payments from date hereof in accordance with...