Ex parte Winfree, A-4391

• Court: Supreme Court of Texas
• Writing for the Court: GARWOOD
• Citation: 153 Tex. 12,263 S.W.2d 154,41 A.L.R.2d 1259
• Parties: , 41 A.L.R.2d 1259 Ex parte WINFREE.
• Docket Number: No. A-4391,A-4391
• Decision Date: 16 December 1953

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263 S.W.2d 154 153 Tex. 12, 41 A.L.R.2d 1259 Ex parte WINFREE. No. A-4391. Supreme Court of Texas. Dec. 16, 1953.

Bowlen Bond, Teague, for relator.

Ralph W. Yarborough and E. Wayne Thode, Austin, for respondents.

GARWOOD, Justice.

This original habeas corpus proceeding was brought by D. P. Winfree on behalf of Harvey Winfree (hereinafter called relator) who has been committed to the custody of the sheriff of Freestone county by the District Court for the 87th Judicial District for contempt in failing to pay some $50 temporary alimony due by him under a previous and valid order of the same court. The contempt judgment followed a written but unsworn complaint of the other party to the divorce proceeding, a show cause order of the court, due service of the latter upon the relator and a proper hearing. The judgment assessed a fine of $5 and court costs of $5.50 and provided that relator be confined until he should pay these sums together with the delinquent alimony. After releasing the relator on bail and considering the arguments presented in support of and against his position, we have concluded that on the record before us his commitment was not invalid.

Our sole ground for issuing the writ was the above-mentioned fact that the

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complaint, which initiated the contempt proceedings,[153 Tex. 13] is unverified. Ex parte White, 149 Tex. 155, 229 S.W.2d 1002; Ex parte Freeman, 144 Tex. 392, 191 S.W.2d 6; Ex parte Cox, 133 Tex. 152, 127 S.W.2d 443; Ex parte Scott, 133 Tex. 1, 10, 123 S.W.2d 306, 311, 126 S.W.2d 626; Ex parte Sturrock, 80 Tex.Cr.R. 307, 189 S.W.487; Ex parte Duncan, 78 Tex.Cr.R. 447, 182 S.W. 313, 2 A.L.R. 222; Ex parte Landry, 65 Tex.Cr.R. 440, 144 S.W. 962; Ex parte Foster, 44 Tex.Cr.R. 423, 71 S.W. 593, 60 L.R.A 631. The thesis that verification is essential includes, of course, the proposition that there must be a complaint to verify. Ex parte White, supra. The latter decision, as well as those in the Duncan and Landry cases, stand for the further point of present interest, that a show cause order or rule nisi followed by due service and proper hearing, while obviously sufficient to apprise the contempt defendant of the charge against him and afford him an opportunity to present his defense, is yet no substitute for an affidavit of accusation. The philosophy of the White, Freeman and Cox cases is the somewhat general one of Ex parte Scott-that contempt proceedings are essentially criminal in nature, so that 'jurisdiction' must arise from a sworn complaint as for the perpetration of a crime, although no written law specifies that it must, except in the case of Rule 692, Texas Rules of Civil Procedure (disobedience of an injunction) hereinafter mentioned and in Art. 666-7, Vernon's P.C.Tex.Ann. (recalcitrance of witness before the Texas Liquor Control Board). The same idea-somewhat blended with that of due process-is found in Ex parte Landry, in which the Court of Criminal Appeals leaned expressly on our Texas 'Bill of Rights' provision that in all criminal prosecutions the accused 'shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof.' Art. 1, Sec. 10, Const.Vernon's Ann.St. (the preceding sentence of which guarantees 'the accused' trial by jury).

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