In Re: Jerry Byrom

• Decision Date: 14 July 2010
• Docket Number: No. 12-09-00278-CV.,12-09-00278-CV.
• Citation: 316 S.W.3d 787
• Parties: In re: Jerry BYROM, Relator.
• Court: Texas Court of Appeals

316 S.W.3d 787

Court of Appeals of Texas,

Tyler.

In re: Jerry BYROM, Relator.

No. 12-09-00278-CV.

July 14, 2010.

James W. Volberding, Tyler, Joe E. Shumate, for Relator.

Judge Guy W. Griffin, pro se.

Sheriff James Campbell, pro se.

David S. Bouschor II, Joseph F. Zellmer, for Real Party in Interest.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.

OPINION ON REHEARING

JAMES T. WORTHEN, Chief Justice.

Real party in interest Roy P. Anderson filed a motion for rehearing, which is overruled. We withdraw our opinion and judgment of January 29, 2010, and substitute the following opinion and corresponding judgment in its place.

In this original habeas proceeding, Relator Jerry Byrom seeks relief from an order signed on June 16, 2009 finding him in contempt for violation of an order signed on December 8, 2008. The respondent is the Honorable Craig A. Fletcher, Judge of the County Court at Law, Cherokee County, Texas. The real parties in interest are Roy P. Anderson and David S. Bouschor II. We grant habeas corpus relief.

Procedural History

Byrom's mother, Ruby Renee Byrom, died on February 5, 2005. Byrom was named in Mrs. Byrom's will as the sole beneficiary and independent executor of her estate. The will was admitted to probate in the County Court at Law, Cherokee County (the “probate court”), and letters testamentary were issued to Byrom. The contempt order challenged here was signed in the probate proceeding as a result of a controversy between Byrom and Anderson, a creditor of Mrs. Byrom's estate.

The Claim

On June 3, 2005, Anderson presented to Byrom and filed in the probate court an unsecured claim against Mrs. Byrom's estate in the sum of $31,992.75, which was based on two orders signed by the Denton County Probate Court. The orders arose out of a guardianship proceeding in which Byrom was appointed temporary guardian of Mrs. Byrom's person and Anderson was appointed temporary guardian of her estate. The first order authorized payment of $5,117.50 in temporary guardian's fees to Anderson and payment of $8,521.50 in attorney's fees to Bouschor for representing Anderson in the guardianship. The second order, signed after Mrs. Byrom's death, authorized payment of $2,748.75 in temporary guardian's fees to Anderson and $15,535.00 in attorney's fees to Bouschor for representing Anderson. Both orders stated that the fees were to be paid from the funds of Mrs. Byrom's estate within thirty days of the date of the order. However, the fees had not been paid at the time Anderson presented and filed his claim in the probate court. On June 9, 2005, Byrom's attorney informed Anderson that Byrom had rejected his claim.

Byrom's Removal as Independent Executor

Approximately two years after Byrom's rejection of the claim, Anderson filed a motion to remove Byrom as independent executor or, alternatively, to require Byrom to post a bond, and to compel an accounting. Anderson alleged that, in trial court cause number 7773, he and Duane Coker, Mrs. Byrom's attorney/guardian ad litem, sued Byrom in his capacity as independent executor “for Authentication of Claims.” ¹ Anderson further alleged that a final order against Byrom was signed in that cause on April 3, 2007. As grounds for Byrom's removal, Anderson alleged, in part, that Byrom had (1) failed to pay claims in the due course of administration, (2) misapplied property committed to his care, (3) failed to comply with a final order of the court, signed on April 23, 2007,² (4) liquidated real property assets of the estate and made disbursements to himself in his individual capacity without payment to creditors of the estate, and (5) failed to file an inventory, appraisement, and list of claims within ninety days after qualification as required by Texas Probate Code sections 250 and 251.

The trial court held an evidentiary hearing on Anderson's motion. By order signed on September 10, 2008, the probate court removed Byrom as independent executor, but did not discharge him. The order awarded Anderson $14,034.10 for attorney's fees and expenses incurred in the removal proceeding, and ordered that Byrom pay this amount to Anderson within thirty days of the order. Additionally, the order included a finding that Mrs. Byrom's estate owned an interest in certain Denton County real property, which Byrom had converted to cash in the amount of $622,786.22. The order also directed Byrom to deposit estate property in that amount into the registry of the court within thirty days of the order. On Byrom's motion, the court signed a reformed order on December 8, 2008, reducing the required deposit to $85,000.00.

Contempt Proceeding

Byrom did not comply with the December 8, 2008 order, and on March 20, 2009, Anderson filed a motion to enforce the order by contempt. He requested that Byrom be confined in jail for a period not to exceed six months for each violation until he deposited $85,000.00 into the court's registry and paid Anderson's fees and expenses incurred in the contempt proceeding. Byrom filed a written response stating that he was no longer the executor of Mrs. Byrom's estate and did not have access to any funds of the estate.

The trial court conducted an evidentiary hearing on Anderson's motion. Byrom testified that he had not complied with the court's order because he did not have $85,000.00, but acknowledged that he had received $622,786.22 as property belonging to the estate. His testimony was conflicting concerning whether he received the money before or after the December 8, 2008 order was signed. Anderson's attorney then proved up $7,058.17 in attorney's fees and expenses incurred in the contempt proceeding.

At the conclusion of the hearing, the trial court held Byrom in civil contempt after finding that he had failed to deposit $85,000.00 in estate funds into the court's registry as required by the December 8, 2008 order. Byrom was ordered to report to the court on July 2 at 9:00 a.m. at which time he would be remanded to the Cherokee County jail if he had not purged himself of the contempt by making the required deposit and paying Anderson's attorney's fees and expenses in the contempt proceeding.³ Byrom did not purge himself of the contempt and was confined in the Cherokee County jail.

Habeas Proceedings

Byrom filed an application for writ of habeas corpus seeking bail, and the trial court signed an order setting his bond at $80,000.00. His attorney filed a bond, and Byrom was released from jail. He then amended his habeas application requesting that the court grant an evidentiary hearing and, after hearing evidence, order him released from confinement. The court conducted the requested hearing on September 2, 2009. Byrom testified that at the time the Denton County property was sold, he did not have notice of any claims he would owe out of the proceeds or any of the fees that he had been ordered to pay. He again insisted that he had none of the funds remaining. He also admitted that the day before he was held in contempt, he signed gift deeds conveying four tracts of land to his daughter. He testified, however, that he did not purchase the property with money from his mother's estate.

At the conclusion of the hearing, the trial court denied habeas relief, ordered Byrom taken into custody, and set his bond at $95,000.00 cash. Byrom then filed this original habeas proceeding, and also filed a motion for temporary relief, which was denied.

Availability of Habeas Corpus

Habeas corpus is available to review a contempt order entered by a lower court confining a contemnor. Ex parte Gordon, 584 S.W.2d 686, 687-88 (Tex.1979) (orig. proceeding). An original habeas proceeding is a collateral attack on a contempt judgment. Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967) (orig. proceeding); In re Ragland, 973 S.W.2d 769, 771 (Tex.App.-Tyler 1998, orig. proceeding). Its purpose is not to determine the ultimate guilt or innocence of the relator, but only to ascertain whether the relator has been unlawfully confined. Ex parte Gordon, 584 S.W.2d at 688.

A court will issue a writ of habeas corpus if the order underlying the contempt is void or if the contempt order itself is void. See Ex parte Shaffer, 649 S.W.2d 300, 301-02 (Tex.1983) (orig. proceeding); Ex parte Gordon, 584 S.W.2d at 688. The relator bears the burden of showing that the contempt order is void and not merely voidable. In re Munks, 263 S.W.3d 270, 272-73 (Tex.App.-Houston [1st Dist.] 2007, orig. proceeding). Until the relator has discharged his burden, the contempt order is presumed valid. In re Parr, 199 S.W.3d 457, 460 (Tex.App.-Houston [1st Dist.] 2006, orig. proceeding).

A contempt order is void if it deprives the relator of liberty without due process of law or if it was beyond the power of the court to issue. See In re Coppock, 277 S.W.3d 417, 418 (Tex.2009) (orig. proceeding). An order of confinement for failure to pay a debt violates the Texas Constitution and therefore is beyond the power of the court to issue. See In re Henry, 154 S.W.3d 594, 596 (Tex.2005) (orig. proceeding). Consequently, such an order is void. Id.

Validity of the Contempt Order

In his first issue, Byrom asserts that Anderson and Bouschor have “creatively used the procedures for civil contempt to collect their legal and accounting fees, rather than through well established debt collection procedures.” He also makes reference to the attorney's fees awarded to Anderson by the probate court, which are ordered payable out of estate property. The authority Byrom cites pertains to the prohibition against imprisonment for debt found in article I, section 18 of the Texas Constitution and the prohibition against collection of attorney's fees by contempt. He contends that, in light of the cited authority, the contempt order is void.

Anderson responds that Byrom was held in contempt for failing to deposit $85,000.00 into the registry of the court as ordered on December 8, 2008, and that there is nothing in the record to indicate...