Ex parte Trodlier, 15891

Citation554 S.W.2d 793
Decision Date13 July 1977
Docket NumberNo. 15891,15891
PartiesEx parte Aaron TRODLIER.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

D. L. Ferguson, San Antonio, for appellant.

Tom Joseph, San Antonio, for appellee.

BARROW, Chief Justice.

This is an original habeas corpus brought by relator who was confined under a judgment adjudging him to be in contempt of court for failure to comply with an order of the trial court to make temporary child support payments.

It is settled law that a habeas corpus proceeding is a collateral attack upon the order of commitment and the relator is entitled to be discharged only if it affirmatively appears that that judgment ordering his confinement is void, thus depriving the court of jurisdiction. Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961); Greenhill and Beirne, Habeas Corpus Proceedings in the Supreme Court of Texas, 1 St. Mary's L.J. 1, 10 (1969).

Relator urges that the contempt judgment is void in that he did not receive ten days' notice of the hearing as required by Rule 308-A, Tex.R.Civ.P. In support of this contention, relator cites Ex parte Hoover, 520 S.W.2d 483 (Tex.Civ.App. El Paso 1975, no writ).

The court's conclusion in Hoover is contrary to the express holding of the Supreme Court in Ex parte Cardwell, 416 S.W.2d 382 (Tex.1967). In considering the question of whether trials for contempt held upon less than ten days' notice will constitute a denial of constitutional due process, the Supreme Court said:

We have held that while the language of the statute (Art. 4639a) and the rule (308-A) is mandatory, trials for contempt conducted upon less than ten days' notice will not constitute a denial of constitutional due process in all instances; and contempt judgments based on such trials may, therefore, be valid. Where there is less than ten days' notice, the relator may be entitled to be discharged because of a lack of due process. Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961). As we said in Davis, each case must be evaluated on its own facts. (416 S.W.2d at 384.)

Thus, the determinative question is whether on the record before us relator has been denied constitutional due process.

Relator and his wife have been embroiled in a contested divorce action for over a year. On August 31, 1976, a temporary order was signed which directed relator to pay certain sums to Mrs. Trodlier for support of his two minor children. On May 9, 1977, Mrs. Trodlier filed a motion that relator be held in contempt for failure to obey such order of the court and a fiat was signed setting a hearing on this motion for May 23, 1977. The Bexar County sheriff was unable to serve relator with the notice and a copy of the motion until May 20, 1977. Relator did not appear for the hearing on May 23rd, either in person or through his attorney. Nor did he subsequently make any response to the motion or seek a rehearing on the motion. On June 15, 1977, he surrendered to the Bexar County sheriff and, on the same date, the application for habeas corpus was filed in our court. Relator was released on bond pending a determination of the validity of the contempt judgment.

Relator supports his claim for lack of constitutional due process solely on the brevity of the notice. He contends a hearing with less than ten days' notice as required by Rule 308-A, Tex.R.Civ.P. violated his constitutional rights to due process as a matter of law. Such a contention was rejected 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 writ).

Relator made no effort in the trial court or in our court to demonstrate how he was prevented by the short notice from presenting a defense to the motion for contempt, or even from seeking a postponement of the hearing if additional time was required to subpoena witnesses and to prepare for trial. It is significant that the motion was filed ancillary to an on-going judicial proceeding wherein relator was already represented by an attorney. In fact, his attorney filed an appeal bond in the divorce suit the day after the contempt judgment was signed. Yet, relator did not appear pursuant to the notice. We conclude from this record that relator has not shown a constitutional denial of due process.

Relator's application for habeas corpus is denied and he is ordered remanded to the custody of the Sheriff of Bexar County, Texas.

CADENA, Justice, dissenting.

Neither Ex parte Cardwell, 416 S.W.2d 382 (Tex.1967), nor Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961), compels, or supports, the conclusion that relator in this case has not been illegally imprisoned. In both of those cases, of course, the relator was ordered discharged.

I would hold that three days' notice of a contempt hearing is unreasonable and violative of due process when notice of the hearing to be held on Monday, May 23, 1977, was served on relator on the preceding Friday, May 20, 1977.

If, as apparently required by Rule 4, Tex.R.Civ.P., we exclude the date of service in computing the time prescribed by Rule 308-A, but include the date on which relator was commanded to appear, the result is that relator had three days' notice of the hearing. The first two days of this three-day period were Saturday, May 21, and Sunday, May 22. The third day, of course, was Monday, May 23, the date set for the hearing. Since the hearing was set for 9:00 a. m. on Monday, the third day did not consist of 24 hours.

This Court, which sits in the Bexar County Courthouse, judicially knows that such courthouse, except for the sheriff's office, is closed on Saturdays and Sundays. This shutdown includes the office of the district clerk, to whom applications for the issuance of subpoenas for witnesses are taken and who, in fact, issues the subpoenas. This makes it difficult, if not impossible, to secure the issuance of subpoenas on Saturdays and Sundays. Most lawyers do not come to their offices on Saturdays and Sundays. Only by ignoring the realities of the five-day week can it be asserted that relator in this case was afforded a reasonable opportunity to prepare for the hearing.

The actual holding in Davis was that notice, served on September 8, of a contempt hearing held on September 10, was insufficient notice to meet the requirements of due process. In the course of the opinion it is said that no clear and definite line can be drawn "between that length of notice which will afford due process and that which will not." 344 S.W.2d at 157. Each case must be evaluated on its own facts.

It would not be out of order to analyze the special "facts" on which the conclusion of denial of due process in Davis was based.

1. Davis did not voluntarily appear at the hearing, since his appearance was made under compulsion of the show cause order. In the case before us, it certainly cannot be said that a failure to appear constitutes a voluntary appearance which results in waiver of the right to sufficient notice.

2. Davis was not represented by counsel. In this case the order of contempt recites that relator did not appear. No attorney appeared on behalf of relator at the hearing.

3. There was nothing in the record to indicate that Davis knew or was advised that he was "entitled to further time under the statute and the rule in which to obtain counsel and prepare for trial." 344 S.W.2d at 156. The record before us contains nothing suggesting that relator knew or was advised that he was "entitled" to additional time.

4. Seven days after the hearing Davis appeared, accompanied by counsel, in compliance with the trial court's statement that his judgment would be announced at that time. Since the trial court did not certify that Davis offered no testimony at that time, the Supreme Court "inferred" that the offer of additional testimony was made by Davis and rejected by the court. Even if we indulge this inference, it in no way supports the conclusion that Davis, because of the brevity of the original notice, was unable to gather his witnesses, employ counsel and prepare a defense at the original hearing. Surprisingly, the opinion of the Supreme Court does not even hint that the testimony, which it inferred Davis sought to present seven days after the hearing differed in any respect, significant or insignificant, from the testimony he actually presented at the hearing. The fact that he offered testimony cannot support the conclusion that he could not have had such testimony ready for presentation at the hearing seven days previously, unless we presume that tardy performance, standing alone, constitutes proof of impossibility of timely performance. Stated simply, there is nothing in this "fact" which even tends to show that the brevity of notice deprived Davis of a reasonable opportunity to defend himself.

5. Davis was a deaf-mute. The Supreme Court assumed that this physical handicap resulted in difficulty of communication and understanding. There can be no quarrel with this assumption, but the difficulty of communication and understanding under which Davis labored does not establish that his handicap made it impossible to prepare a defense for presentation at the hearing. The facts, as recited in the Davis opinion, indicate the contrary. Davis appeared at the trial. He testified and presented witnesses who testified for him. His ex-wife, movant in the contempt proceeding, was also a deaf-mute. Since Davis had previously lived with her in the intimate relationship of husband and wife, it is, perhaps, fair to assume that he had no difficulty understanding her testimony even without the aid of the "interpreter" required in order to make it possible for the trial judge to know what she was attempting to communicate. The appearance of Davis at the hearing, accompanied by his witnesses, precludes...

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2 cases
  • Ex parte Gordon
    • United States
    • Supreme Court of Texas
    • April 4, 1979
    ...is illegal and the relator is entitled to discharge. See, Ex parte Rhodes, 163 Tex. 31, 34, 352 S.W.2d 249, 250 (1961); Ex parte Trodlier, 554 S.W.2d 793, 794 (Tex.Civ.App. San Antonio 1977, no writ); Greenhill & Beirne, Habeas Corpus Proceedings in the Supreme Court of Texas, 1 St. Mary's ......
  • Ex parte Cummings
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • December 31, 1980
    ...that he was denied due process. Ex parte Boyle, 545 S.W.2d 25, 27 (Tex.Civ.App. Houston (1st Dist.) 1977, no writ); Ex parte Trodlier, 554 S.W.2d 793, 795 (Tex.Civ.App. San Antonio 1977, no It is ordered that the writ of habeas corpus be denied and Relator be remanded to the custody of the ......

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