Ex parte Sturdivant
| Citation | 551 S.W.2d 144 |
| Decision Date | 03 May 1977 |
| Docket Number | No. 8457,8457 |
| Parties | Ex Parte Arlen Y. STURDIVANT. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Jack O. Herrington, Lovett & Herrington, Clarksville, for appellant.
Pat C. Beadle, Beadle & Beadle, Clarksville, for appellee.
This is a habeas corpus case. The relator, Arlen Y. Sturdivant, was confined in the County Jail of Panola County on November 22, 1976, in response to the command of a Commitment signed by the Judge of the 102nd Judicial District Court of Red River County. Relator was admitted to bond by this Court pending a determination of the validity of such restraint.
The issue in this appeal is narrowed by relator's brief to failure of the District Court of Red River County to afford the relator due process of law guaranteed by Article 1, Sec. 19 of the Constitution of Texas and the Fifth and Fourteenth Amendments to the Constitution of the United States.
Complaint in the form of a verified petition signed by Mary Margaret Sturdivant, divorced wife of the relator, was filed on November 5, 1976, in the District Court of Red River County. The petition alleged the relator failed and refused to pay child support as theretofore ordered and prayed that he be held in contempt of court and imprisoned until he complied with the support order. The trial judge considered the petition and concluded that it stated grounds for relief and entered an order containing this language:
"YOU, the said Arlen Y. Sturdivant, are therefore ORDERED to be and appear in and before the 102nd Judicial District Court of Red River County, Texas, in the County Courthouse, in the City of Clarksville, Texas, in said County, on the 19th day of November, 1976, at 10:00 o'clock, A. M., to show cause why you should not be punished for your conduct in so failing to comply with the Order of this Court, . . ."
This order was attached to a precept to serve and was served on the relator November 10, 1976.
From the dates of service and hearing, it is apparent that relator was not given ten days prior notice of the contempt hearing. Both by statute, Texas Family Code Sec. 14.09(c), and rule, Tex.R.Civ.P. 308-A, an alleged defaulter in child support cases is allowed ten days prior notice of such hearing. The purpose of such ten day notice is to afford reasonable opportunity for the alleged defaulter to "employ counsel, gather evidence, subpoena witnesses and prepare for trial." Ex Parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961); Ex Parte Cardwell, 416 S.W.2d 382 (Tex.1967). These and other authorities hold that failure to afford ten day prior notice standing alone, is not a denial of due process. But when the statute and rule are disregarded, the length of prior notice that will afford due process and the length that will not, depend upon the facts and circumstances in the case under examination. Ex Parte Davis, supra; Ex Parte Cardwell, supra.
The record shows the relator was commanded by solemn and lawful order of the District Court to be in and appear at the place and hour...
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Surety Ins. Co. of California v. State, 53437
...we conclude that appellant has not been afforded due process of law. Read v. Gee, 551 S.W.2d 496 (Tex.Civ.App.1977); Ex parte Sturdivant, 551 S.W.2d 144 (Tex.Civ.App.1977). The want of due process renders the summary judgment proceeding a nullity and the order granting the motion for summar......
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Ex parte Waldrep, C14-89-1029-CV
...the lack of ten days notice had an adverse effect upon the relator's ability to protect his interests or defend himself. Ex parte Sturdivant, 551 S.W.2d 144, 146 (Tex.Civ.App.--Texarkana 1977, no writ). Consequently, the record does not show that the relator was denied due process. Point of......
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Ex parte Trodlier, 15891
...by the Supreme Court in Ex parte Davis, supra, and Ex parte Cardwell, supra, as well as by two courts of civil appeals. See Ex parte Sturdivant, 551 S.W.2d 144 (Tex.Civ.App. Texarkana 1977, no writ); and Ex parte Cox, 479 S.W.2d 110 (Tex.Civ.App. Houston (1st Dist.) 1972, no Relator made no......
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Martin v. Adair
...the absence of such notice the trial court was without jurisdiction. This question has been decided adversely to appellants in Ex parte Sturdivant, 551 S.W.2d 144 (Tex.Civ.App. Texarkana 1977, no writ). This point is Appellants' second, third, and fourth points complain of error in not appl......