In re Harrison, 14-15-00370-CV
| Decision Date | 13 October 2015 |
| Docket Number | NO. 14-15-00370-CV,14-15-00370-CV |
| Parties | IN RE CONNIE HARRISON, Relator |
| Court | Texas Court of Appeals |
On April 27, 2015, relator Connie Harrison filed a petition for writ of habeas corpus in this Court. See Tex. Gov't Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52. In the petition, relator claims that the underlying orders of contempt and commitment signed by the Honorable Alicia Franklin on October 24, 2014 and December 18, 2014, and by the Honorable Charley Prine on April 10,2015, are void and requests that she be discharged from confinement. On April 29, 2015, after a preliminary review of the petition, we ordered relator's release upon her posting of a bond in the amount of $500, pending a final determination of her petition. Because we conclude that relator is entitled to relief, we grant her petition for writ of habeas corpus, release her from the bond, and order her discharged from custody.
On August 6, 2014, real party in interest Clifford Harrison ("real party") filed a First Amended Motion for Enforcement of Possession and Access requesting that relator be held in contempt for violations of a Final Decree of Divorce signed by the trial court on June 21, 2010, even though the decree had been reversed on appeal on April 26, 2012. The motion also requested that relator be held in contempt of court for four violations of a Mediated Settlement Agreement ("MSA") signed by the parties on January 29, 2014. Lastly, the motion requested that relator be held in contempt for two violations of an Agreed Interim Order signed on April 10, 2014.
At the October 16, 2014 hearing on the motion for enforcement, while relator was testifying to her defense, counsel for real party interrupted and objected that relator had not filed an answer to the enforcement motion or pleaded any affirmative defenses, and moved for a directed verdict. The trial court granted a directed verdict and denied relator's request to continue her testimony.
On October 24, 2014, the trial court signed an Order of Enforcement by Contempt that: (1) found relator in contempt for eight violations of the FinalDecree of Divorce, three violations of the MSA, and one violation of the Agreed Interim Order; (2) committed relator to jail for 120 days; (3) relator pay attorney's fees and costs of $25,554.30 by November 14, 2014; (4) relator pay $500 for violations number 2, 3, 4, 5,6, and 11 for a total amount of $3,000; and (5) suspended relator's commitment to jail if relator complies with the order.
On December 9, 2014, real party filed a Second Amended Motion to Revoke Suspension of Commitment. On December 18, 2014, after a hearing, the trial court signed an order that: (1) revoked the suspension of commitment and committed relator to jail for 120 days; and (2) relator remain confined "thereafter from day to day" until she paid the $25,554.30 of attorney's fees and costs (the "December 18, 2014 Order").
At a jail review hearing on January 2, 2015, the trial court orally ordered relator released from jail and set out an installment schedule under which relator was required pay the $25,554.30 of attorney's fees and costs. This oral order was later incorporated into an order signed by the trial court on March 31, 2015. On January 5, 2015, the trial court signed an order releasing relator from jail.
On March 27, 2015, real party filed another Motion to Revoke Suspension of Commitment that alleged relator had violated the terms of the suspension of her release by failing to make two of the scheduled payments of the attorney's fees and costs awarded in the October 24, 2014 Order of Enforcement. On that same date, the trial court signed an order that relator pay the attorney's fees and costs of $25,554.30 awarded in the October 24, 2014 Order of Enforcement in certain agreed installments and dates (the "March 27, 2014 Order"). The order also provides that the parties have reached an agreement for the release of relator, butthat the agreement will be revoked if relator fails to comply with the terms of the agreement, including the agreed installment payments.
On April 10, 2015, the trial court signed an Order (the "April 10, 2015 Order") that: (1) found that relators had violated the terms of the March 27, 2015 Order, and (2) relator be confined and complete the 120-day commitment ordered in the October 24, 2014 Order of Enforcement and the December 18, 2014 Order.
On April 27, 2015, relator's counsel filed a petition for writ of habeas corpus with this court. On April 28, 2015, relator filed a pro se petition for writ of habeas corpus seeking the same relief as the petition filed by her counsel. Relator is not entitled to hybrid representation. See Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995). The absence of a right to hybrid representation means relator's pro se petition will be treated as presenting nothing for this court's review. Id.; In re McGraw, 04-15-00538-CR, 2015 WL 5245272, at *1 (Tex. App.—San Antonio Sept. 9, 2015, orig. proceeding). The court will therefore consider only the petition filed by relator's counsel.
"A contempt order is void if it is beyond the power of the court or violates due process." In re Office of Atty. Gen., 422 S.W.3d 623, 628 (Tex. 2013) (orig. proceeding). A writ of habeas corpus will issue if the trial court's contempt order is void for either of these reasons. In re Henry, 154 S.W.3d 594, 596 (2005) (orig. proceeding) (per curiam).
We conclude that relator's first, second, and fourth issues show that the October 24, 2014 Order of Enforcement is void. We begin by addressing the fourth issue because it entitles relator to all of the relief sought.
In issue four, relator argues that the October 24, 2014 Order of Enforcement is void because the trial court denied relator her right to due process by directing a verdict and not allowing her to complete her testimony.
Civil contempt proceedings are quasi-criminal in nature, and the contemnor is entitled to procedural due process throughout the proceedings. Ex parte Johnson, 654 S.W.2d 415, 420 (Tex. 1983). Due process, as guaranteed by Fifth Amendment of the United States Constitution, and Art. 1, Sec. 19, of the Texas Constitution, requires "that one charged with contempt be accorded the opportunity not only to establish a complete defense, but to offer evidence and argument in extenuation of his offense and in mitigation of the penalty." Ex parte Holden, 144 Tex. 295, 296, 190 S.W.2d 485, 486 (1945). Id.
At the October 16, 2014 hearing on the motion for enforcement, while relator was testifying, counsel for real party interrupted and objected that relator had not filed an answer to the enforcement motion or pleaded any affirmative defenses, and moved for a directed verdict. The trial court granted a directed verdict and denied relator's request to continue her testimony.
We are not aware of any authority that that requires a respondent to file an answer to a motion for enforcement and plead affirmative defenses to have the right to testify or to or to avoid a directed verdict. In fact, real party agrees in his response that there is no requirement that the respondent file a written pleading to avoid admitting the truth of the movant's allegations and that respondent may simply appear at the hearing and counter, by cross-examination or otherwise, the movant's proof.
We conclude that the trial court's directed verdict and refusal to allow relator to complete her testimony denied her right to due process. Real party argues that due process was afforded because relator was permitted to cross-examine each of real party's witnesses and she testified at the hearing. However, the record is clear that the trial court improperly granted a directed verdict and did not allow relator to complete her testimony. Accordingly, the entire October 24, 2014 Order of Enforcement is void.
In issue one, relator argues that the October 24, 2014 Order of Enforcement is void to the extent it is based on three violations of the child access provisions of the MSA because relator had not previously been ordered to comply with the MSA.
A party may not be held in contempt for violating an agreement between the parties unless the court has signed an order commanding the parties to comply with the agreement; merely incorporating the agreement into the order by reference is not sufficient. Such is the holding of the Supreme Court of Texas:
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