Ex parte Rojo

• Decision Date: 12 July 1996
• Docket Number: No. 96-0389,96-0389
• Citation: 925 S.W.2d 654
• Parties: 39 Tex. Sup. Ct. J. 1054 Ex parte Carlos ROJO.
• Court: Texas Supreme Court

Page 654

925 S.W.2d 654

39 Tex. Sup. Ct. J. 1054

Ex parte Carlos ROJO.

No. 96-0389.

Supreme Court of Texas.

July 12, 1996.

Jesus Hernandez, El Paso, for Relator.

Woodrow Wilson Bean, II, El Paso, for Respondent.

PER CURIAM.

In this original habeas corpus proceeding, relator contends that his incarceration for civil contempt is illegal because he is financially unable to pay the child support arrearage required for his release. Because we conclude that relator conclusively established his inability-to-pay defense, we order his discharge.

Carlos Rojo's 1984 divorce decree requires him to pay $300 in monthly child support for his two children. In late 1993, Rojo's ex-wife moved to enforce the child support obligation, contending that Rojo had missed numerous payments. Based on an agreement between the parties, the court issued an enforcement order in October 1994 finding that Rojo owed an arrearage of $17,000, and that he was in both criminal and civil contempt of court for failing to make these payments. For the criminal contempt, the court assessed a fine of $500 and sentenced Rojo to 180 days confinement in the county jail. For the civil contempt, the court further ordered that Rojo be confined until he paid the arrearage, plus $2,500 for his ex-wife's attorney's fees. However, the court suspended both the criminal and civil commitment on the condition that Rojo 1) pay $354 per month on the arrearage for 48 months, 2) keep his $300 monthly obligation current, 3) maintain medical insurance for his children, and 4) pay his ex-wife's attorney's fees.

It is undisputed that Rojo did not comply with these conditions. By August 1995, he had paid only $2,874 of the approximately $6,500 in current and back child support due under the October 1994 enforcement order. After a series of three hearings in January, April, and August of 1995, the court revoked its suspension of commitment, ordering Rojo incarcerated. The court's August 21, 1995, commitment order provides:

IT IS ORDERED that Respondent, CARLOS ROJO, is committed to the custody of the sheriff of El Paso County, Texas, to be confined, as ordered by the order suspending commitment for a period of 180 days or until Respondent has--

1. paid $17,000 through the El Paso District Clerk's Office, as child-support arrearage; and

2. paid $2,500, as attorney's fees to Woodrow W. Bean II, at 1533 Lee Trevino, Suite B, El Paso, Texas 79936.

Because Rojo received 60 days credit for "good conduct", see TEX.CRIM. PROC.CODE art. 42.032, plus 50 days credit for performing manual labor, see id. art. 43.10, Rojo completed his 180 day criminal sentence on October 27, 1995, after 70 days actual time served. However, when he filed this petition for writ of habeas corpus on April 30, 1996, he remained in custody pursuant to the civil contempt portion of the commitment order. We ordered his release on bond on May 9, 1996.

Rojo contends that his continued incarceration for civil contempt is illegal because he is financially unable to pay the $19,500 required by the court's commitment order. ¹ We agree. At the trial court hearings, Rojo testified that he is self-employed as a cleaner of restaurant kitchen ducts, and that his only source of income is through this business. He presented evidence showing that he earned only $3,300 in 1994 and less than $3,000 in 1993. At the April 1995 hearing, Rojo claimed that he had a total of $84 cash, with no savings accounts, securities or other investments that he could sell to raise money. He further testified that he owned no property other than a 1986 van, which he apparently drove in his work, and a 1976 van worth about $800, which he was willing to sell and apply to his obligation. Rojo also testified that he had unsuccessfully tried to borrow money but that he had no source of credit. His ex-wife did not controvert any of this testimony.

At the August 1995 hearing, Rojo again confirmed that he had no money or property other than his vans. He further testified that he had performed a substantial amount of work for a cafeteria company since the previous hearing, for which he had not been paid due to the company's bankruptcy.

A person cannot be incarcerated indefinitely for civil contempt if he or she does not have the ability to perform the condition required for release. See, e.g., Ex parte Dustman, 538 S.W.2d 409, 410 (Tex.1976); Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex....