In re W.H.
| Decision Date | 17 September 2012 |
| Docket Number | NO. 02-12-00370-CV,02-12-00370-CV |
| Parties | IN RE W.H. RELATOR |
| Court | Texas Court of Appeals |
ORIGINAL PROCEEDING
MEMORANDUM OPINION1
In this petition for writ of habeas corpus, relator W.H. seeks relief from two trial court orders finding him in criminal contempt and committing him to thirty-six days in jail. See Tex. R. App. P. 52. W.H. also asserts that he was entitled to, but denied, a jury trial. We requested a response from the real party in interest, K.H., which was timely filed. We modify the orders as set forth below, and we deny W.H.'s requested relief in all other respects.
On August 19, 2011, the trial court issued an order "to enforce and/or clarify and supplemental temporary orders for possession or access," which stated in part that W.H. "shall have possession and access to the children pursuant to the Standard Possession Order as set forth in the Texas Family Code beginning on August 1, 2011," but only on the following conditions:
[W.H.] shall undergo counseling, coordinated by Dr. Greer, at least two (2) times per month, regarding impulse control, anger management, conflict resolution, [and] co-parenting . . . with feedback as needed from Dr. Greer regarding putting the children's needs before his own and also deal with rectifying issues addressed in the psychological evaluation.
On March 14, 2012, K.H. filed a motion for enforcement of the trial court's August 19, 2011 order. K.H. alleged that W.H. twice violated the trial court's order regarding counseling sessions that were to be coordinated by Dr. Greer. K.H. asked that W.H. be held in contempt and fined up to $500 for each violation.
On July 24, 2012, K.H. filed a motion for enforcement of the trial court's May 1, 2012 order. K.H. alleged that W.H. had violated the trial court's order in several ways. K.H. asked that W.H. be held in contempt, fined for each violation, and confined in the county jail for one month or until he complied with the court's order.
The challenged-orders indicate that the trial court held a hearing on August 13, 2012, and that K.H. and W.H. appeared in person and through their attorneysof record.2 The trial court heard K.H.'s March 2012 and July 2012 enforcement motions at that time.
On August 24, 2012, the trial court issued a contempt order finding that W.H. violated the trial court's May 1, 2012 order in five ways, including that he (1-2) failed to undergo counseling with Dr. Kuzmich at least four times during the months of May and June 2012, (3) refused to pay for one hundred percent of the costs of the children's counseling despite K.H.'s notification to him that one of the children, A.H., expressed a desire to attend counseling with Dr. Greer for the month of July 2012, (4) failed to participate in any family counseling since May 2012, and (5) failed to pay for one hundred percent of the costs of family counseling since May 2012. The trial court found that W.H. was able to comply with the trial court's May 2012 order and that W.H. was guilty of each separate enumerated violation. The trial court assessed punishment for each violation at thirty-six days in the county jail, with the sentences to run "concurrently and without good time credit."
This second contempt order, signed August 27, 2012, was essentially divided into two sections. In the first section, the trial court found that W.H. violated the August 19, 2011 order (1) by failing to undergo counseling,coordinated by Dr. Greer, at least two times per month, and (2) by "failing to undergo counseling, coordinated by Dr. Greer, regarding impulse control, anger management, conflict resolution, [and] co-parenting . . . with feedback from Dr. Greer regarding putting the children's needs before his own . . . ." The trial court assessed punishment for each violation at thirty-six days in the county jail, with the sentences to run "concurrently and without good time credit."
In the second section, the trial court found that W.H. violated a November 18, 2002 order that set out W.H.'s responsibilities in providing medical support for the children and child support. Regarding W.H.'s medical support obligations, the trial court found that W.H. committed five violations involving W.H.'s failure to provide health insurance for the children. Regarding W.H.'s child support obligations, the trial court found that W.H. "failed to pay child support as ordered to [K.H.] through the state disbursement unit," including on July 15, 2011, and on July 15, 2010. Regarding the medical and child support violations, the trial court assessed punishment at 175 days in the county jail for each violation, to run "concurrently and without good time credit," but then suspended W.H.'s commitment and placed him on community supervision for a period of sixty months, conditioned on W.H. making payments for current medical and child support obligations and arrearages and attorney's fees, expenses, and costs.
W.H.'s original habeas corpus proceeding in this court is a collateral attack on the contempt order. In re Marks, 365 S.W.3d 843, 844 (Tex. App.—FortWorth 2012, orig. proceeding). The purpose of the proceeding is to determine whether the contemnor was afforded due process of law or if the order of contempt is void. See Ex parte Casillas, 25 S.W.3d 296, 298 (Tex. App.—San Antonio 2000, orig. proceeding). 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. Id. "A contempt order is void if it is beyond the power of the court to enter it, or if it deprives the relator of liberty without due process of law." Id. at 298-99. When collaterally attacked in a habeas corpus proceeding, a judgment is presumed valid until the relator has discharged his burden showing otherwise. In re Marks, 365 at 844-45.
The contempt order must set forth the terms of compliance in clear, specific, and unambiguous terms so that the person charged with obeying the order will readily know exactly what duties and obligations are imposed upon him. See Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967) (orig. proceeding); In re Davis, 305 S.W.3d 326, 330-31 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding). The question of whether an order is enforceable by contempt depends on whether the order is definite and certain, and the focus is on the wording of the order itself. In re Davis, 305 S.W.3d at 331.
We address issue five first to avoid any confusion in our later holdings. Here, W.H. contends that the two orders committing him to thirty-six days in jail"without good time credit" are void because the orders denied him the opportunity for good time credit.
Tex. Code Crim. Proc. Ann. art. 42.032, § 2 (West Supp. 2012). Both the Texas Supreme Court and the Texas Court of Criminal Appeals have held that good-conduct credit is available to one serving a sentence for criminal contempt. See Ex parte Roosth, 881 S.W.2d 300, 301 (Tex. 1994) (orig. proceeding); Ex parte Daniels, 722 S.W.2d 707, 711-12 (Tex. Crim. App. 1987) (orig. proceeding); Ex parte Acly, 711 S.W.2d 627, 628 (Tex. 1986) (orig. proceeding); Kopeski v. Martin, 629 S.W.2d 743, 745 (Tex. Crim. App. 1982) (orig. proceeding). "The trial court does not have the authority to restrict a sheriff's discretion concerning the granting of good-conduct time." Jones v. State, 176 S.W.3d 47, 52 (Tex. App.—Houston [1st Dist.] 2004, no pet.).
We hold that...
To continue reading
Request your trial