In re Radmacher, No. 14-08-00346-CV (Tex. App. 5/23/2008)
| Decision Date | 23 May 2008 |
| Docket Number | No. 14-08-00346-CV.,14-08-00346-CV. |
| Parties | IN RE JOSEPH MICHAEL RADMACHER, Relator. |
| Court | Texas Court of Appeals |
Petition for Writ of Habeas Corpus Denied.
Panel consists of Justices YATES, ANDERSON, and BROWN.
On April 30, 2008, relator Joseph Michael Radmacher filed a petition for writ of habeas corpus seeking release from jail. See Tex. Gov't Code Ann. § 22.221(d) (Vernon 2004); Tex. R. App. P. 52. Relator contends that the contempt order issued against him is void, and that he was not afforded due process of law. Because relator has not sustained his burden of demonstrating his entitlement to relief, we deny the petition.
This habeas corpus proceeding arises from a criminal contempt order that resulted in the confinement of relator for five specific instances of failure to pay court-ordered child support. Both of his children are over the age of eighteen; however, the 1995 support order provided for indefinite support of relator's older daughter, who was found to be physically and/or mentally disabled and unable to provide for herself as an adult.
On January 24, 2008, the children's mother (real party in interest, Rita Garrobo) moved to enforce the support order through contempt and entry of judgment. See Tex. Fam. Code Ann. § 157.001 (Vernon 2002). She asserted that relator was in arrears by at least $49,653.70, and had not paid court-ordered attorney fees. She identified five specific acts of non-compliance with the support order, and requested that—for each such violation—relator be held in contempt, and fined $500.00 and confined in jail for up to six months.
Following a hearing on March 25, the relator was found to be in arrears by $51,583.22. Garrobo was granted a judgment in that amount. Relator was also ordered to pay the outstanding attorney fees owed under the original support order, and additional fees incurred in the enforcement of the support order. Finally, relator was found to be in criminal contempt of the support order, and was ordered to serve five concurrent 180-day jail sentences for each specific violation of the support order.
Relator was placed into custody on March 25, 2008, and now asks that we issue a writ of habeas corpus commanding his release. He raises six contentions, which we fairly summarize as follows:
1. He was denied the right to a jury trial;
2. He was committed to jail without a valid written order of commitment;
3. The respondent granted criminal contempt although Garrobo's enforcement motion requested only civil contempt, thereby depriving relator of notice;
4. The trial court lacked jurisdiction to punish with contempt;
5. The contempt order lacks sufficient specificity to inform relator of the manner in which he violated the support order; and
6. The contempt order is void because his nonpayment of attorney fees is not punishable by contempt.
An original habeas corpus proceeding constitutes a collateral attack on the contempt order. See Ex parte Dustman, 538 S.W.2d 409, 410 (Tex. 1976) (orig. proceeding). The purpose of this proceeding is not to determine the relator's guilt or innocence but, rather, to determine whether he was afforded due process of law, or the order of contempt is void. See In re Broussard, 12 S.W.3d 827, 831 (Tex. App.-Houston [14th Dist.] 2003, orig. proceeding). A release may be ordered when the contempt order is void, either because it was beyond the trial court's power or because it deprived a contemnor of his liberty without due process of law. See Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980) (orig. proceeding). When collaterally attacked in a habeas corpus proceeding, the contempt order is presumed valid unless the contemnor discharges his burden showing otherwise. See Ex parte Occhipenti, 796 S.W.2d 805, 808-09 (Tex. App.-Houston [1st Dist.] 1990, orig. proceeding).
Relator argues first that he was charged with a "serious offense," and was therefore entitled to a trial by jury. The right to a jury trial depends upon whether the offense can be classified as "petty" or "serious." See Ex parte Werblud, 536 S.W.2d 542, 546 (Tex. 1976) (orig. proceeding). A sentence of as much as six months is a petty offense, and may be imposed without a jury trial. See id. By contrast, a serious charge that results in imprisonment of longer than six months is constitutionally impermissible unless the contemnor is afforded the opportunity of a jury trial. Id. at 547. Where the contemnor is sentenced to no more than six months confinement for each of several acts, the punishment is nonetheless serious if the sentences must be served consecutively so as to add up to more than six months confinement. In re Hammond, 155 S.W.3d 222, 226 (Tex. App.-El Paso 2004, orig. proceeding).
Although relator's five 180-day sentences1 would exceed six months confinement if served consecutively, the trial court's contempt order clearly specifies that the periods of confinement "shall run and be satisfied concurrently." Relator's confinement will not exceed 180 days. See Taylor v. Hayes, 418 U.S. 488, 495-96 (1974) (), cited in In re Brown, 114 S.W.3d 7, 11 (Tex. App.-Amarillo 2003, orig. proceeding). Relator was therefore not charged with a serious offense.2 See Werblud, 536 S.W.2d at 546.
Relator argues, however, that In re Sproull requires a jury trial whenever confinement "may exceed six months." 815 S.W.2d 250, 250 (Tex. 1991). He suggests that, because his possible punishment exceeded six months confinement, he was entitled to a jury trial. However, we do not read Sproull as a departure from the Werblud standard that "[c]ases of criminal contempt, where the sentence actually imposed does not exceed six months imprisonment, are exempted from the requirements of a jury trial." Werblud, 536 S.W.2d at 547 (emphasis added). Notably, the contemnor in Sproull was entitled to a jury trial under Werblud, where the contempt order actually imposed 136 consecutive sentences of 60 days confinement, totaling 8,160 days confinement. See Sproull, 815 S.W.2d at 250. The Supreme Court was not presented with a unique fact pattern in which the possible punishment was serious, but the actual punishment petty. Because this distinction did not present itself therein, we decline to read one statement in Sproull as an advisory opinion on a fact pattern not then before the Court.3
Moreover, the Supreme Court's original pronouncement in Werblud followed a discussion of federal law in which the Court cited Taylor v. Hayes in announcing that the "sentence actually imposed" drives the jury-trial determination. Werblud, 536 S.W.2d at 547. The possible punishment in Taylor would have exceeded six months confinement but, because the sentences actually imposed were ordered to run concurrently, the U.S. Supreme Court held that the contemnor was not entitled to a trial by jury. See Taylor, 418 U.S. at 495-96. It is doubtful, then, that the Supreme Court intended to overrule Werblud or disagree with Taylor on a fact pattern that was not at issue in Sproull.
We therefore overrule relator's first issue.
Relator argues in his second issue that the language of commitment in the contempt judgment issued on March 26, 2008 is legally insufficient because it omits a specific directive to a sheriff or other appropriate officer to take him into custody. See Ex parte Hernandez, 827 S.W.2d 858, 858 (Tex. 1992) (orig. proceeding).
Since Hernandez was decided, the courts of appeals have disagreed about the specificity and sufficiency of the "directive" language that must be in place in a valid commitment order. See In re Zapata, 129 S.W.3d 775, 778 (Tex. App.-Waco 2004, orig. proceeding) (surveying Texas appellate court decisions Hernandez). The determining factor appears to be whether the commitment order actually directs a sheriff or ministerial officer to take the person into custody. See id. at 780; Ex parte Ustick, 9 S.W.3d 922, 925 (Tex. App.-Waco 2000, orig. proceeding).
We need not reach this issue of whether the commitment language in the March 26 contempt judgment4 satisfies the Hernandez requirement because, at the time that relator was actually taken into custody on March 25, there was a separate valid written commitment order that specifically instructed the Harris County Sheriff to "take into his custody and commit to the jail of Harris County, Texas, Joseph Radmacher to be confined in accordance with the judgment of contempt of this Court or until [Radmacher] is otherwise legally discharged."
We overrule relator's second issue.
Relator contends further that he was not given timely notice of the type of contempt proceeding that had been brought by Garrobo. Specifically, he claims that she requested only civil coercive contempt, but that the respondent instead ordered him incarcerated for criminal contempt.
Civil contempt is intended to be remedial and coercive in nature. Werblud, 536 S.W.2d at 545. Imprisonment is conditional upon obedience and, accordingly, the jailed contemnor may procure his release by complying with the court's order. See id. Criminal contempt, by contrast, is punitive in nature. Id. A punishment for criminal contempt is fixed and definite, and no act of voluntary compliance by the contemnor will avoid the entire punishment affixed by the court. See id. at 546. Because child support contempt proceedings are quasi-criminal in nature, relator was entitled to procedural due process. See in re Smith, 981 S.W.2d 909, 911 (Tex. App.-Houston [1st Dist.] 1998, orig. proceeding). A denial of due process occurs when the trial court grants a form of relief that was not requested. See id.
Relator incorrectly...
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