Ex parte Peterson, B--1590

• Decision Date: 30 July 1969
• Docket Number: No. B--1590,B--1590
• Citation: 444 S.W.2d 286
• Parties: Ex parte Catherine E. McEnroe PETERSON et al., Relators.
• Court: Texas Supreme Court

Page 286

444 S.W.2d 286

Ex parte Catherine E. McEnroe PETERSON et al., Relators.

No. B--1590.

Supreme Court of Texas.

July 30, 1969.

McLaughlin, Clark, Fisher, Gorin & McDonald, Charles M. McDonald, Waco, for relators.

Coker & Coker, Ernest Coker, Jr., Conroe, for respondent.

GREENHILL, Justice.

This original habeas corpus proceeding is an outgrowth not only of an unfortunate battle between contesting parents and relatives for the custody of a child but a dispute as to which of two district courts had or have jurisdiction to determine such custody. While one of the district courts was attempting to enforce its custody order by commanding the relators to produce the child before it, a Court of Civil Appeals temporarily prohibited that district court from proceeding. The district court complied with the order, and no proceedings were had on the date previously set by the district court and on which relators had been commanded to appear. When the appellate court later dissolved its temporary writ of prohibition, the district court had relators arrested and put in jail without setting a new hearing date and getting out new notices to appear. We hold that such action deprived the relators of their liberty without due process.

Relators are Catherine McEnroe Peterson, ¹ H. C. Buchanan, and Tommie Buchanan. We shall refer to them as Catherine et al. They were committed to jail under the provisions of Article 11.34, Vernon's Ann.Texas Code of Criminal Procedure, for having disobeyed a writ of habeas corpus served upon them and issued by the Ninth District Court of Waller County, Texas, sitting at Hempstead, Texas. That court will hereinafter be referred to as the Waller County court. The writ was issued by the Waller County court in an attempt to enforce that court's judgment awarding custody of Michael Ray McEnroe to his father, Dr. Kenneth McEnroe.

Dr. Kenneth McEnroe and Catherine McEnroe were divorced by the Waller County court on November 7, 1964. Custody of their child, Michael Ray McEnroe, was awarded to Catherine's parents who are not parties to this action.

Dr. McEnroe instituted suit some years later in the same Waller County court to readjudicate custody of the child. Catherine intervened in the suit, and asserted that custody of the child should be awarded to her. That suit culminated with an order signed August 16, 1968, placing custody of the child in his father, Dr. McEnroe. It is this judgment that the Waller County court later attempted to enforce by writ of habeas corpus.

In the meantime, however, and before the writs of habeas corpus here involved were issued, a hearing was held in the Waller County court on October 14, 1968, in response to Dr. McEnroe's complaint that Catherine had never surrendered possession of the child to him in compliance with the order of August 16, 1968. At the hearing it was agreed by all parties that Dr. McEnroe could take possession of the child on October 19 at the office of one of Catherine's attorneys in Waco, Texas.

Dr. McEnroe appeared at the appointed time to pick up the child. Catherine's attorney brought the child out into the front of his office and delivered him to Dr. McEnroe. The attorney then commanded Dr. McEnroe to leave the office. As Dr. McEnroe opened the office door to leave with the child, he was confronted with two deputy sheriffs from McLennan County, Texas, who thereupon served him with an order restraining him from removing the child from McLennan County, and with citation in a new suit to readjudicate custody filed by Catherine McEnroe's aunt and uncle, Tommie and H. C. Buchanan. Mrs. Tommie Buchanan also accompanied the deputy sheriffs, and she took possession of the child as Dr. McEnroe was being served with process.

The Buchanans' custody suit was filed on October 18, 1968, in the 74th District Court of McLennan County, Texas, sitting in Waco, Texas, hereinafter referred to as the McLennan County court. Both Catherine McEnroe and Dr. McEnroe were named as defendants. Catherine McEnroe filed a counterclaim against the Buchanans and a cross-claim against her co-defendant Dr. McEnroe. She alleged that a material change in conditions had occurred since the Waller County judgment of August 16, 1968, and prayed for temporary custody of the child pending a final determination of her claim for permanent custody. A transcript of these proceedings was not included in the record of this case, but an order of the McLennan court is reproduced in the parties' briefs, and it recites that Dr. McEnroe appeared personally and through his attorneys, and participated in the temporary custody hearing. No contention is made that Dr. McEnroe made a plea to the court's jurisdiction on the basis that the Waller County court had exclusive jurisdiction.

The McLennan County court awarded Catherine temporary custody of the child on October 25, 1968, and temporarily enjoined Dr. McEnroe from removing the child from the possession of Catherine McEnroe pending final determination of the custody suit. Dr. McEnroe appealed from this temporary injunction which was eventually affirmed by the Court of Civil Appeals on January 16, 1969; ² but before any action was taken by the appellant court, Dr. McEnroe attempted to secure possession of the child by filing an application for writ of habeas corpus in the Waller County court. It was alleged in the application that the child was 'illegally confined and restrained from his liberty' by Catherine McEnroe and the Buchanans; that Dr. McEnroe was the person entitled to the custody of the child under the Waller County court's judgment of August 16, 1968; and that 'such judgment is still in full force and effect and has not been altered or changed by said Court or otherwise. * * *' It was further alleged that Dr. McEnroe had appeared in Waco at the attorney's office to pick up the child as ordered by the Waller County court, and that 'At such time Kenneth M. McEnroe was not permitted to carry said child out of the confines of McLennan County or from having the child in his possession.' (sic)

In response to the application for writ of habeas corpus, the Waller County court entered an order on November 19, 1968, addressed to Catherine McEnroe, Tommie Buchanan, and H. G. Buchanan, commanding them 'to produce before this Court * * * on the 29th day of November, 1968 * * * the person of Michael Ray McEnroe, whom it is alleged you illegally have in your custody and restrain from his liberty.' It is this order which relators Catherine et al. were eventually committed to jail for having disobeyed.

At the instance of Catherine et al., on November 27, two days before they were scheduled to produce the child in the Waller County court, the Court of Civil Appeals sitting at Waco, issued a temporary...