In re Zapata

• Decision Date: 04 March 2004
• Docket Number: No. 2-03-308-CV.,2-03-308-CV.
• Citation: 129 S.W.3d 775
• Parties: IN RE JUAN MANUEL T. ZAPATA, Relator.
• Court: Texas Supreme Court

Page 1

129 S.W.3d 775

IN RE JUAN MANUEL T. ZAPATA, Relator.

No. 2-03-308-CV.

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: March 4, 2004.

ORIGINAL PROCEEDING

Panel B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.

OPINION

DIXON W. HOLMAN, Justice.

Relator Juan Manuel T. Zapata filed this petition for writ of habeas corpus challenging the validity of his commitment to jail following a hearing on a motion for enforcement of child support. We ordered Relator released upon the posting of a bond pending a decision in this case. See Tex. R. App. P. 52.8(b)(3). We have now received the requested response from the real party in interest, Sandy Hernandez. We hold that: certain portions of the trial court's order are void and are therefore deleted; Relator's challenge to the civil contempt portion of the trial court's order is premature and cannot be addressed by us in this proceeding; and the trial court's order does not contain sufficient language to constitute a commitment order. Therefore, we order Relator immediately discharged from custody.

Background

Paternity established

In an agreed "Child Support Review Order," signed on April 16, 2003, paternity was established between Relator and his daughter. Relator and the child's mother, Sandy Hernandez, were appointed joint managing conservators. Relator was ordered to pay current child support ($160/mo.), cash medical support ($18/mo.), and retroactive child support ($ 50/mo.).¹ The first combined payment was due May 1, 2003.²

Motion To Enforce

On August 21, 2003, Hernandez filed a motion for enforcement, alleging Relator failed to pay child support, cash medical support, and retroactive child support for the payments due on the first day of May, June, July, and August 2003. Relator requested appointment of counsel, but was found not to be indigent. The hearing on Hernandez' motion for enforcement was held on October 13, 2003 before a family court master. Relator represented himself pro se.

Trial court's contempt order

On October 13, 2003, the family court master and the district court judge signed an "Order Holding Respondent In Contempt For Failure To Pay Child Support, Granting Judgment, And For Commitment To County Jail." This is the order about which Relator complains in this habeas corpus proceeding.

In the order, the court found Relator in criminal contempt for failing to pay "child support, attorney's fees and court costs as ordered" in the amount of $160 per month for June, July, and August 2003. Relator was ordered confined in the Tarrant County jail for 180 days for each of these violations. The order further recites that "IT IS THEREFORE ORDERED that [Relator] is committed to the county jail of Tarrant County, Texas, for a period of 180 days for each separate violation enumerated above" and that the periods of confinement shall run concurrently.

The order also found Relator in civil contempt and ordered him confined in the Tarrant County jail until he pays $7618.88 in child support arrearage, $148 in costs for the enforcement proceeding, and $1800 in attorney's fees for the enforcement proceeding.

The order concludes with: "IT IS ORDERED that all writs and other process necessary for the enforcement of this order be issued." No other writs or other process have been issued by the trial court or the trial court clerk. Relator was incarcerated pursuant to the trial court's order from October 13, 2003 until October 25, 2003, when he posted the writ bond set by this court.

Habeas Corpus Review

The only remedy to review contempt proceedings where the Relator is in custody is by habeas corpus. Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex. 1967) (orig. proceeding). An original habeas corpus proceeding is a collateral attack on a contempt decree. Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967) (orig. proceeding). For this court to order the release of Relator, the trial court's order must be void, either because it was beyond the power of the court or because it deprived Relator of his liberty without due process of law. See Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980) (orig. proceeding).

Is There A Valid Commitment Order?

Relator contends that his confinement is illegal because there is no valid commitment order. In order to satisfy due process requirements, both a written judgment of contempt and a written commitment order are necessary to imprison a person for constructive contempt of court. Ex parte Amaya, 748 S.W.2d 224, 224-25 (Tex. 1988) (orig. proceeding). Imprisonment without a valid commitment order is a violation of due process. Ex parte Wilson, 797 S.W.2d 6, 7 (Tex. 1990) (orig. proceeding) (holding it is well-settled that to satisfy due process requirements, a valid commitment order is essential). The directive that a person be placed in jail and detained may be contained in an authenticated copy of the court's judgment or in a separate order signed by the judge or by the clerk of the court at the judge's direction. Barnett, 600 S.W.2d at 256. An arrest without a written commitment order made for the purpose of enforcing a contempt judgment is an illegal restraint from which the prisoner is entitled to be relieved. Amaya, 748 S.W.2d at 225.³

Relator relies upon the case of Ex parte Hernandez, 827 S.W.2d 858 (Tex. 1992) (orig. proceeding), in which the supreme court reiterated these basic principles and stated:

A commitment order is the warrant, process or order by which a court directs a ministerial officer to take custody of a person. The order containing this directive need not take a particular form and may be a separate order issued by the court, an attachment or order issued by the clerk at the court's direction, or included in the contempt judgment. Although the form of the order is not important, the substance is.

Id. at 858 (emphasis added) (citations omitted). The contempt order in Hernandez found the Relator had violated the trial court's judgment, held him in contempt for that violation, and ordered his punishment at confinement in the county jail for 180 days and payment of a $500 fine and costs of court. Id. at 858-59. The supreme court held that "[t]he contempt order does not direct the sheriff or other ministerial officer to take Hernandez into custody and detain him under the terms of the judgment, nor does it direct the clerk to issue a written attachment or order of commitment to the proper officer." Id. at 859. The opinion concludes:

[T]he judgment of contempt against Hernandez cannot serve as an order of commitment because it contains no directive to the sheriff or other appropriate officer, and that without an order of commitment Hernandez is not validly confined.

Id. at 858. The court granted the relief sought in the writ of habeas corpus and ordered the relator discharged. Id.

Sandy Hernandez, the real party in interest in this case, responds that there is no bar to having the commitment order and the order of contempt in one instrument, a premise with which we agree. However, that is not the issue we must resolve. We must determine whether the language in the trial court's order contains a directive to the sheriff of Tarrant County to take Relator into custody and detain him under the terms of the contempt order.

Analysis

The courts of appeals are not necessarily in agreement regarding the specificity and sufficiency of the "directive" language that the Texas Supreme Court has held is necessary to constitute a valid commitment order.

In Ex parte Johns, the trial court signed an instrument entitled "ORDER HOLDING RESPONDENT IN CONTEMPT FOR FAILURE TO PAY CHILD SUPPORT GRANTING JUDGMENT, AND FOR COMMITMENT TO COUNTY JAIL." 807 S.W.2d 768, 774 (Tex. App.-Dallas 1991, orig. proceeding). The document also ordered Johns committed to the Dallas County jail for a specified time. Id. The Dallas Court of Appeals held that this type of recitation "constitutes a directive that a person be placed in jail and detained and that a contempt judgment with this language also constitutes a valid commitment order." Id.

Citing Johns, the court in In re Dotson held that Hernandez was distinguishable because the Hernandez contempt order did not include language committing Hernandez to jail, whereas the Dotson contempt order was entitled "ORDER HOLDING RESPONDENT IN CONTEMPT FOR FAILURE TO PAY CHILD SUPPORT, GRANTING JUDGMENT, AND FOR COMMITMENT TO COUNTY JAIL" and ordered that "Respondent is committed to the county jail of Galveston County" for 30 days. In re Dotson, 981 S.W.2d 237, 238 & n.2 (Tex. App.-Houston [1st Dist.] 1998, orig. proceeding).⁴

The Austin Court of Appeals has held the following language in a contempt order is sufficient to constitute a commitment order, "It is ordered that [the relator] shall be confined in the county jail of Burnet County, Texas, until [the relator] has complied with the following orders[,]" and that the contempt "may be purged by complying with all of the conditions previously breached." In re Ross, No. 03-03-00137-CV, 2003 WL 1882257, at *4 (Tex. App.-Austin Apr. 17, 2003, orig. proceeding). Without discussing whether this language constitutes an order by which the trial court directed a ministerial officer to take custody of the relator pursuant to Hernandez, the court of appeals held that this language "details to the contemner in clear, specific and unambiguous language how to gain release" from the contempt ruling, and the court overruled the relator's contention that the contempt order failed to include a commitment order. Id.

In Ex parte Ustick, the court reviewed a contempt order that ordered the relator "committed to the county jail for 180 days for each separate act of contempt" and ordered the relator "committed to the county jail until he pays $1000.00 in child support arrearages." 9 S.W.3d 922, 924 (Tex. App.-Waco 2000, orig. proceeding). There was no other language or document that could be construed as a written commitment order. Id. In holding...