Ex parte Savelle, A-10927

• Decision Date: 26 January 1966
• Docket Number: No. A-10927,A-10927
• Citation: 398 S.W.2d 918
• Parties: Ex parte George Monroe SAVELLE, Jr.
• Court: Texas Supreme Court

Page 918

398 S.W.2d 918

Ex parte George Monroe SAVELLE, Jr.

No. A-10927.

Supreme Court of Texas.

Jan. 26, 1966.

Joe B. Savelle, Houston, for relator.

Frank C. Herzog, Houston, for respondent.

GRIFFIN, Justice.

In a prior divorce hearing, relator had been ordered to pay to Billie Nell Smith, his former wife, the sum of $150.00 per month for the support and maintenance of his four minor children. In that divorce action, the custody of the children was awarded to their mother, Billie Nell Savelle, now Billie Nell Smith.

On June 3, 1965, Billie Nell Smith filed in the court granting the divorce a complaint alleging that relator was two months in arrears in his support payment. A show cause order was duly served on relator and a hearing had on the complaint July 12, 1965. After having heard the evidence of all parties and their witnesses, the trial judge entered his order holding relator guilty of contempt and ordering him confined in the Harris County jail in accordance with such order.

The pertinent parts of the order are as follows:

'It is accordingly so ORDERED, ADJUDGED AND DECREED by the Court that the said George Monroe Savelle, Jr. be and is hereby held guilty of contempt of Court by reason of his failure and refusal to make the payments of child support in defiance of the terms of the decree hereinabove referred to, and his punishment for such contempt is here fixed by assessing against him a find of $_____ and committing him to the County Jail of Harris County, Texas for 30 (thirty) days, and it is further ordered that the said George Monroe Savelle, Jr. pay the sum of $300.00 as child support payments due in May and June, 1965, to Billie Nell Smith, and also by paying all costs incurred herein, and upon such payments and sentence, said George Monroe Savelle, Jr. shall be released from custody. LET, THEREFORE, commitment issue to the Sheriff of Harris County, Texas, accompanied by a certified copy of this judgment.'

(1, 2) The order attempts to confine relator in jail for '30 (thirty)' days as punishment for contempt. Art. 1911, Vernon's Ann.Texas Civil Statutes, provides that the 'district court may punish any person guilty of contempt * * * and by imprisonment not exceeding three days.' Therefore, the trial judge had no authority to order confinement for a longer period than three days. The record shows that relator was taken into custody July 13, 1965, and released July 19, 1965, so be has already served his three days and the excess above the three days is not a valid and binding order.

Relator contends that the trial judge had no authority to provide that he pay the sum of $300.00 (the amount of his arrears) before he can be released from confinement; also, relator has the same complaint as to his being held in jail until he shall pay the court costs which include attorney's fees.

(3) We do not sustain this contention. The case of Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1953) discusses both of the above contentions, and held the trial court had power to require a defaulting parent to remain in jail until he had paid both the attorney's fees assessed as costs and the sum of $5850.00 delinquency. In addition to the case of Ex parte Davis, 101 Tex. 607, 111 S.W. 394, 17 L.R.A.,N.S., 1140, cited by this Court in the Helms case, supra, see also the case of Ex parte Adair (Tex.Civ.App., 1949), 222 S.W.2d 324, no writ history. That court quotes the following excerpt from the case of Ex parte Tinsley, 37 Tex.Cr.R. 517, 40 S.W. 306, 311, 66 Am.St.Rep. 818, as follows:

'* * * 'If, under this statute, it was given to a party to refuse to obey the orders of a court by merely submitting to a fine of $100 and three days' imprisonment, and then go free, still...