In re Hammond

• Decision Date: 15 January 2004
• Docket Number: No. 08-03-00400-CV.,08-03-00400-CV.
• Citation: 155 S.W.3d 222
• Parties: In re R. Jeanette HAMMOND, Relator.
• Court: Texas Court of Appeals

155 S.W.3d 222

In re R. Jeanette HAMMOND, Relator.

No. 08-03-00400-CV.

Court of Appeals of Texas, El Paso.

January 15, 2004.

Al Weisenberger, El Paso, for Relator.

Susan M. Urbieta, El Paso, for Real Party In Interest.

Before Panel No. 3 BARAJAS, C.J., LARSEN, and CHEW, JJ.

OPINION

SUSAN LARSEN, Justice.

R. Jeanette Hammond filed a petition for writ of habeas corpus in this Court, seeking to be discharged from confinement pursuant to a trial court order holding her in contempt for failing to pay child support. On August 29, 2003, this Court granted the writ and ordered her discharged upon the posting of a $100 bond. For the reasons that follow, we overrule the issues raised by Hammond in this proceeding. Therefore, we will remand her to the custody of the El Paso County Sheriff.

FACTUAL AND PROCEDURAL BACKGROUND

Hammond and Wiley F. James, III, are the parents of a daughter. On June 1, 2001, they agreed to an order that requires Hammond to pay James $443.57 per month in child support. The order further provides that if James determines that their daughter's best interest would be served by attending private school or by receiving tutoring, he is authorized to enroll her in a private school of his choice or to make arrangements for tutoring, and Hammond must pay 50 percent of the costs. Hammond must also pay 50 percent of their daughter's uninsured medical expenses.

James later filed a motion in the 171st Judicial District Court to enforce the order and to hold Hammond in contempt. He alleged that Hammond had violated the order by failing to pay child support or to reimburse him for uninsured medical expenses and private school tuition. James requested that Hammond be held in civil contempt for disobeying the order.

On August 14 and 15, 2003, the parties appeared along with counsel for a hearing on James's motion. On August 15, the trial court signed an order holding Hammond in criminal and civil contempt. The court determined that Hammond was in arrears on her child support obligation in the amount of $5,866.19, was in arrears on her obligation for private school tuition in the amount of $6,623.68, and was in arrears on her obligation to pay uninsured medical expenses in the amount of $1,284.75. The total arrearage was $13,774.62.

Hammond failed to make fifteen child support payments, two payments for private school expenses, and seventy-two payments for uninsured medical expenses. In assessing punishment for criminal contempt, the court sentenced her to sixty days in jail for each of these eighty-nine violations, to be served consecutively. In sanctioning Hammond for civil contempt, the court ordered Hammond to be confined until she pays the total arrearage of $13,774.62 and James's attorneys' fees in the amount of $17,000.28. But the court suspended her commitment until August 28 and provided that if she paid the total arrearage and the attorneys' fees by that date, she would not go to jail.

Because Hammond failed to pay the amount due by August 28, she was committed to jail on that date. On August 29, she filed a petition for writ of habeas corpus and was released from jail by order of this Court, upon the posting of a $100 bond.

The case was subsequently transferred from the 171st Judicial District Court to the 383rd Judicial District Court. On November 8, 2003, the 383rd Judicial District Court signed a nunc pro tunc order. This order is substantially similar to the August 28 order, except that it does not contain a finding of criminal contempt.

HAMMOND'S ARGUMENTS

Hammond argues that she was denied her right to a jury trial and that she was denied due process because she does not have the ability to pay the amounts ordered by the trial court, she was not allowed an opportunity to present evidence of her inability to pay, and the trial court failed to make a finding that she had the ability to pay. She also argues generally that her confinement is illegal, unconstitutional, excessive, cruel, and unusual, and an abuse of discretion.

STANDARD OF REVIEW

In a habeas corpus proceeding, the guilt or innocence of the relator is not an issue. Ex parte Kimsey, 915 S.W.2d 523, 525 (Tex.App.-El Paso 1995, orig. proceeding). The only issue is the legality of the relator's confinement. Id. A writ of habeas corpus will not issue if a contempt order is merely erroneous. Ex parte Swate, 922 S.W.2d 122, 124 (Tex.1996). But a writ will issue if the order is void. Id.; Kimsey, 915 S.W.2d at 525. In the context of a habeas proceeding, a contempt order is void if it is beyond the power of the court to enter or if it deprives the relator of liberty without due process of law. Swate, 922 S.W.2d at 124; Kimsey, 915 S.W.2d at 525. The relator bears the burden of showing entitlement to relief in a habeas corpus proceeding. Kimsey, 915 S.W.2d at 525.

Regarding evidentiary challenges, we do not have jurisdiction to assess the witnesses' credibility or to weigh the evidence. Ex parte Hightower, 877 S.W.2d 17, 20 (Tex.App.-Dallas 1994, orig. proceeding). We may only determine whether the trial court's contempt finding is so completely without evidentiary support that it deprives the relator of liberty without due process of law. Id.

RIGHT TO A JURY TRIAL

In her first issue, Hammond argues that she was denied her right to a jury trial. When a contemnor has a right to a jury trial, the record must show that the court informed her of the right and that she affirmatively waived that right. Ex parte Sproull, 815 S.W.2d 250, 250 (Tex.1991); Ex parte Casillas, 25 S.W.3d 296, 299 (Tex.App.-San Antonio 2000, orig. proceeding); Ex parte Levingston, 996 S.W.2d 936, 938 (Tex.App.-Houston [14th Dist.] 1999, orig. proceeding). We cannot presume that a jury was waived when the record is silent on the matter. Sproull, 815 S.W.2d at 250; Casillas, 25 S.W.3d at 299; Levingston, 996 S.W.2d at 938.

There is no absolute right to a jury trial in a contempt proceeding. See Muniz v. Hoffman, 422 U.S. 454, 475-77, 95 S.Ct. 2178, 2190-91, 45 L.Ed.2d 319 (1975); Ex parte Werblud, 536 S.W.2d 542, 546-47 (Tex.1976); Casillas, 25 S.W.3d at 299. A person held in civil contempt is not entitled to a jury trial. Shillitani v. United States, 384 U.S. 364, 370-71, 86 S.Ct. 1531, 1536, 16 L.Ed.2d 622 (1966); Ex parte Johns, 807 S.W.2d 768, 772 (Tex.App.-Dallas 1991, orig. proceeding). The right generally attaches only when the contemnor is held in criminal contempt and assessed a serious punishment. See Muniz, 422 U.S. at 476-77, 95 S.Ct. at 2190; Werblud, 536 S.W.2d at 546-47.

Confinement for more than six months is considered serious punishment. See Sproull, 815 S.W.2d at 250; Werblud, 536 S.W.2d at 546-47; Casillas, 25 S.W.3d at 299. Confinement for six months or less, on the other hand, is considered petty and does not entail a right to a jury trial. Werblud, 536 S.W.2d at 546; Casillas, 25 S.W.3d at 299. But even if the contemnor is sentenced to no more than six months' confinement for each of several contumacious acts, the punishment is considered serious if the sentences must be served consecutively and they add up to more than six months' confinement. Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex.1986); Casillas, 25 S.W.3d at 299.

A judgment that orders a contemnor confined unless and until she performs some act is a judgment of civil contempt. Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 631-32, 108 S.Ct. 1423, 1429, 99 L.Ed.2d 721 (1988); Johns, 807 S.W.2d at 770. Unlike confinement for civil contempt, confinement for criminal contempt is for a definite period and is unconditional; there is nothing the contemnor can do to purge herself of the contempt. Hicks, 485 U.S. at 631-32, 108 S.Ct. at 1429; Johns, 807 S.W.2d at 771.

In this case, the trial court initially held Hammond in both criminal and civil contempt. The court ordered her confined for sixty days for each of the eighty-nine separate violations of the prior order. Furthermore, the sixty-day sentences were to be served consecutively. Because this adds up to a sentence of 5,340 days in jail, or more than fourteen and a half years, Hammond had a right to a jury. Yet there was no jury, and there is nothing in the record before this Court to reflect that Hammond was informed of her right to a jury trial or that she affirmatively waived that right. Accordingly, the portions of the August 15 and August 28 orders that held Hammond in criminal contempt are void.

We note that the trial court attempted to replace these orders with the November 8 nunc pro tunc order, which eliminated the criminal contempt provisions. Hammond argues that the nunc pro tunc order is ineffective because it does more than correct clerical errors in the earlier orders and was not signed within the period of the trial court's plenary power. See Tex.R. Civ. P. 329b(f).

Rule 329b, which limits a trial court's plenary power to alter a judgment, does not apply to contempt orders. See Ex parte Anderson, 900 S.W.2d 333, 335 n. 1 (Tex.1995) (orig.proceeding). Therefore, the nunc pro tunc order would not be rendered ineffective by the court's failure to sign it within the usual period of plenary power.¹

The supreme court has held that a trial court cannot enter a new contempt judgment after a habeas proceeding has been filed in an appellate court. See, e.g., Anderson, 900 S.W.2d at 334-35 (holding that a trial court could not enter a new contempt judgment that corrected the earlier judgment's failure to state how the contemnor could purge himself because the new judgment was not signed close enough in time to the original pronouncement of contempt); Ex parte Delcourt, 888 S.W.2d 811, 812 (Tex.1994) (orig.proceeding) (holding that a trial court could not enter a new contempt judgment that included additional violations while a habeas proceeding was pending in the appellate court because the new judgment was not signed close enough in time to the original pronouncement of contempt); Ex parte Barnett, 600 S.W.2d 252,...