In re Chambers
Decision Date | 12 February 2018 |
Docket Number | No. 05-18-00031-CV,05-18-00031-CV |
Parties | IN RE CHRISTOPHER GLENN CHAMBERS, Relator |
Court | Texas Court of Appeals |
Before Justices Francis, Evans, and Schenck
Opinion by Justice Schenck
Before the Court is relator's January 11, 2018 petition for writ of habeas corpus in which he seeks to be discharged from civil confinement for allegedly failing to pay court-ordered child support. We find that the orders at issue are void and grant the writ.
This proceeding arises from a contempt action for the alleged nonpayment of child support arrearages ordered to be paid in a March 17, 2017 Agreed Order in Suit to Modify Parent-Child Relationship. That modification order required relator to pay child support arrearages and unpaid medical expenses through monthly payments of $1,200.00. On November 13, 2017, the children's mother filed a motion for enforcement of the modification order. She alleged that relator had failed to pay the required amounts from April 1, 2017 to September 1, 2017. She requested criminal and civil contempt against relator. Relator was served with notice on December 28, 2017 of a January 2, 2018 hearing on the motion for enforcement and contempt. Relator appeared pro se at the January 2 hearing. Following the hearing, the trial court signed its "Order Holding Respondent in Contempt for Failure to Pay Child Support and Arrearages, Granting Judgment, and for Commitment to County Jail" and held relator in criminal and civil contempt. The criminal contempt order requires relator to pay a $500 fine and be confined in the county jail for a period of 180 days for each violation, with the confinement to be served concurrently. The civil contempt order requires relator to be confined in the county for either a period not to exceed 18 months, including time served for criminal contempt, or until relator pays $37,518.60 in arrearages and $1,835.23 in fees, whichever occurs first. Relator was taken into custody on January 2, 2018.
In this original proceeding, relator asserts that the trial court's judgment of contempt and commitment order are void and his due process rights are being violated. He seeks a writ of habeas corpus. On January 11, 2018, we issued an order setting bond and authorizing his release upon posting the bond. We requested responses from the real party in interest and respondent, but no responses were filed.
A court may punish for contempt. TEX. GOV'T CODE ANN. § 21.002 (West 2004). A habeas corpus proceeding is a collateral attack on a judgment that imposes punishment for contempt. In re Johnson, 337 S.W.3d 486, 488 (Tex. App.—Dallas 2011, orig. proceeding). A petition for writ of habeas corpus does not inquire into the guilt or innocence of the relator, but only determines if the order of contempt was void. See Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding). A contempt order is void if it is beyond the power of the court to render it or if it deprives the relator of liberty without due process of law. Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980) (orig. proceeding).
Relator argues that the judgment of contempt and commitment order are void because (1) he did not receive the statutorily-required 10-days' notice of the hearing, and (2) he was not admonished of his right to counsel and did not waive his right to counsel. After reviewing his complaints and the record, we agree.
First, relator did not receive ten days' notice of the hearing as required by section 157.062(c) of the Texas Family Code. See TEX. FAM. CODE. ANN. § 157.062(c) (West Supp. 2017). Lack of ten days' notice under section 157.062(c) constitutes a deprival of due process rights and renders the order void. Ex parte Davis, 161 Tex. 561, 565, 344 S.W.2d 153, 155-56 (1961) ( ); Target Logistics, Inc. v. Office of Attorney Gen. of Texas, 465 S.W.3d 768, 770 (Tex. App.—El Paso 2015, no pet.).
Second, relator appeared pro se and did not waive his right to counsel. In the absence of a knowing and intelligent waiver of the right to counsel made on the record, the order holding a party in contempt is void. Ex parte Acker, 949 S.W.2d 314, 316 (Tex. 1997) ( ); In re Marks, 365 S.W.3d 843, 845-46 (Tex. App.—Fort Worth 2012, orig. proceeding) (citing Ex parte Gunther, 758 S.W.2d 226, 226-27 (Tex. 1988) (orig. proceeding) (granting petition for writ of habeas corpus relief in part because absent knowing waiver of rights, trial court was without authority to hold Gunther in contempt)). An intelligent and voluntary waiver of the right to counsel occurs in a family law contempt proceeding when two events occur. In re Marks, 365 S.W.3d at 845-46. First, the trial court admonishes contemnor according to section 157.163. Id.; TEX. FAM. CODE ANN. § 157.163 (West Supp. 2017). Next, the contemnor must waive thoserights, and that waiver must be made on the record. In re Marks, 365 S.W.3d at 845-46.; In re Pass, No. 02-05-00457-CV, 2006 WL 668744, *3 (Tex. App.—Fort Worth Mar. 16, 2006, orig. proceeding) (mem. op.) (contemnor's answer of "[s]ure" to trial court's request to proceed with contempt hearing was an invalid waiver of right to counsel because trial court had not yet admonished contemnor under 157.163); In re Leon, No. 01-04-00819-CV, 2004 WL 2306752, at *2-3 (Tex. App.—Houston [1st Dist.] Oct. 14, 2004, orig. proceeding) (mem. op.) (counsel because trial court held contempt hearing in which incarceration was a possibility but denied relator's requests to be allowed time to retain counsel) that relator had not waived his right to ; cf., In re Pruitt, 6 S.W.3d 363, 365 n. 3 (Tex. App.—Beaumont 1999, orig. proceeding) (counsel by non-indigent contemnor occurred when trial court admonished according to 157.163, inquired whether contemnor wished to continue hearing in order to obtain counsel, and contemnor elected to proceed) valid waiver of right to . Section 157.163 "requires courts to admonish pro...
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