Ex parte Turner
| Decision Date | 03 March 1972 |
| Docket Number | No. 15914,15914 |
| Citation | 478 S.W.2d 256 |
| Parties | Ex parte James B. TURNER. (1st Dist.) |
| Court | Texas Court of Appeals |
James B. Turner, pro se.
This is an original proceeding by which Relator seeks his release from confinement by virtue of a commitment issued by the Juvenile Court of Harris County. Relator was found guilty of contempt of court for failure to deliver two children to the Harris County Welfare Unit and his punishment was fixed at a fine of $500.00 and confinement in the County jail for 30 days.
In November 1971, July Hendrix filed a petition for a writ of habeas corpus seeking to recover custody of Clinton Dean Roberts and Clifford Gene Roberts, twin boys, who had allegedly been given to her by the natural parents so that she might adopt them. Relator allegedly took the children from her and had since refused to return them. The court entered its order, directed to Relator, commanding him to produce the children before the court on December 7, 1971, and to show cause why he held them in custody.
On December 7, Relator did not produce the children. He filed an answer consisting of a general denial, exceptions to the petition asserting its vagueness and that it did not show the petitioner there had any right or standing before the court. An extensive hearing was held and at the end of the hearing the court, on December 8, ordered Relator to deliver said children to the Harris County Child Welfare Unit, to which it awarded custody, within 48 hours but no later than 4 p.m. on December 10. The matter of the welfare of the children being brought in issue the court had jurisdiction to place custody in the Harris County Child Welfare Unit. On December 15 an affidavit was filed charging that Relator had failed and refused to comply with the court's order of December 8, 1971. A show cause order was issued and served and a hearing on the contempt motion was had on January 6, 1972. After the hearing Relator was held in contempt for failure to produce the children before the court on December 7, 1971, in obedience to the writ of habeas corpus previously issued by the court and also for not delivering them in obedience to the order of December 8. Punishment was fixed as above stated.
Upon petition to this court we released Relator on bond pending a hearing.
We reach the conclusion that the court was, under the facts of this case, without jurisdiction to hold Relator in contempt of court for not producing the children before the court on December 7. The petition for writ of habeas corpus is but one way of bringing minor children before the court so the court can determine what is best for the welfare of the children and in whose custody they should be placed. Legate v. Legate, 87 Tex. 248, 28 S.W. 281. The purpose and effect of the writ in the case was to determine who was entitled to custody. The court had jurisdiction to determine this. The fact that the children were nor personally present in court is immaterial . Land v. Landry, 244 S.W. 569 (Tex.Civ.App.--Beaumont), n.w.h. The fact of the children being within the State though without the county is immaterial. The court had jurisdiction to determine custody.
We are of the view, however, that the act of not personally producing the children at this stage where the only order was to produce them and to show why Relator held the children in custody and restraint, was at most a constructive contempt. A direct contempt is one taking place within the presence of the court. The court thus knows the facts and needs no evidence. A failure to produce would be contempt if it were within the power of the person to do so, but whether it was in his power requires evidence. The acts alleged to constitute contempt do not take place in the presence of the court. Ex Parte Ratliff, 117 Tex. 325, 3 S.W.2d 406 . It being a constructive contempt, the Relator, before he may be declared in contempt and punished, is entitled to be accorded due process. This requires the filing of a sworn complaint stating the facts alleged to constitute contempt. Ex Parte Ratliff, supra; Ex Parte White, 149 Tex. 155, 229 S.W.2d 1002; Ex Parte Hardin,161 Tex . 567, 344 S.W.2d 152; Ex Parte Hill, 122 Tex. 80, 52 S.W.2d 367. Too, the party must know he is having the hearing, with a view to determining whether he is in contempt, where the contempt is not committed in the presence of the court. Ex Parte Ratliff, supra.
The record reflects the hearing on December 7 was not one to determine whether Relator was in contempt of court. The court did not then purport to hold Relator in contempt but made an order fixing custody. There was never a complaint filed on December 7 charging Relator with contempt of court. No demand was made by the court on December 7 in open court that Relator immediately produce the children which Relator in open court contemptuously refused to do. See Ex Parte Flournoy, 158 Tex. 425, 312 S.W.2d 488. Neither was the writ of habeas corpus...
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