Scariati, In re

• Decision Date: 28 December 1998
• Docket Number: No. 07-98-0317-CV,07-98-0317-CV
• Citation: 988 S.W.2d 270
• Parties: In re Peter Robert SCARIATI, Jr., Relator.
• Court: Texas Court of Appeals

Page 270

988 S.W.2d 270

In re Peter Robert SCARIATI, Jr., Relator.

No. 07-98-0317-CV.

Court of Appeals of Texas Amarillo.

Dec. 28, 1998.

Jamie S. Vandivere, Amarillo, for appellant.

James D. Durham, Amarillo, for appellee.

Before DODSON, QUINN and REAVIS, JJ.

Original Proceeding

QUINN, Justice.

Pending before the court is a petition for habeas corpus filed by Peter Robert Scariati, Jr. (Scariati). He asks that we grant the same and discharge him from the purportedly illegal confinement and restraint to which he is subject. We garner from the record before us that he was ordered confined in the Potter County jail by the judge of the 320th Judicial District Court. The reason for his confinement was his failure to comply with the directives of a prior divorce decree. That is, the court found him in contempt for failing to: 1) pay monthly child support, 2) maintain health insurance for his children or reimburse his ex-wife (Deborah Lynn Durham) for the cost of insuring the children via her group health plan, and 3) reimburse his ex-wife for his pro rata share of the medical expenses she incurred and paid on behalf of the children. For each act of contempt, Scariati was assessed a period of six months confinement, and the periods were to run concurrently. In addition, the court also ordered that he remain confined until he pays various sums for past child support, court costs, attorney's fees, uninsured medical expenses, and health insurance expenses.

Scariati presents four issues for our consideration. The first and second concern the specificity of the motion to enforce filed by Durham (Motion) and the subsequent order of contempt entered by the court (Order), respectively. The third involves whether the Order impermissibly denies him the chance of earning good time credit. The last deals with the allegation that he was unconstitutionally confined for the failure to pay his debts. Only the third issue is ripe for consideration, as will be discussed below. After considering that point, we reject it, deny the application in part, and dismiss the remainder without prejudice.

1. Denial of Good Time

We first address Scariati's third ground. Therein, he attacks the six month sentence as impermissibly denying him any good time credit which the Potter County Sheriff may offer. We reject the contention.

While statute permits a county sheriff to adopt a policy affording good time credit to those in the county jail, TEX.CODE CRIM.PROC.ANN. art. 42.032 § 2 (Vernon Supp.1998), nothing of record indicates that the Potter County Sheriff has done so. Nevertheless, if such a policy existed, the trial court could not have interfered with its application by sentencing Scariati for criminal contempt in a way that deprived him of its benefits. Ex parte Roosth, 881 S.W.2d 300, 301 (Tex.1994); Kopeski v. Martin, 629 S.W.2d 743, 745 (Tex.Crim.App.1982); see Ex parte Acly, 711 S.W.2d 627, 628 (Tex.1986) (recognizing that good time credit does not apply to coercive civil contempt orders). For instance, the court could not expressly state in its order that he should be denied good time credit. Ex parte Roosth, 881 S.W.2d at 301. Nor, could it order that he remain incarcerated for a period of time beginning and ending on certain specified dates. Kopeski v. Martin, 629 S.W.2d at 745. Yet, that is not what occurred here. Rather, the court ordered that Scariati be "confine[d] in the county jail ... for a period of six months." Nothing was said about good time credit. Furthermore, the court did not demarcate the beginning and ending of the sentence via particular dates. Indeed, it did nothing more than what the Court of Criminal Appeals in Kopeski said could be done.

In Kopeski, the trial judge ordered that Kopeski be "confined ... for 21 days, with credit allowed for jail time previously served; sentence to be served from 1/4/82 until 1/25/82. " Kopeski v. Martin, 629 S.W.2d at 745 (emphasis in original). This sentence ran afoul of the judge's duty to eschew interfering with the application of good time credit, according to the Court of Criminal Appeals. Yet, the latter continued by informing the trial judge that he "may comply with this duty by pronouncing an amended sentence which omits the words 'until 1/25/82.' " Id. By redacting the language mentioned, the court implicitly held that a judgment simply ordering Kopeski to be confined for 21 days, beginning on the January 4, 1982, did not interfere with his potential entitlement to good time credit. In other words, merely declaring that the individual is to be confined for a specified period, such as 21 days or six months, is proper. And that is all the trial court did here. It merely ordered Scariati to be confined for six months. Thus, the Order at bar violates neither Kopeski nor Roosth, nor the principles discussed therein.

2. Application Partially Premature

Next, we turn to the remaining issues in the petition. In doing so, we deem it important to recite and heed the applicable standard of review. Authority discussing that standard informs us that a petition for habeas relief is a collateral attack upon an order of contempt. Ex parte Sentell, 153 Tex. 252, 266 S.W.2d 365, 366 (Tex.1954); Ex parte Barlow, 899 S.W.2d 791, 794 (Tex.App.--Houston [14th Dist.] 1995, orig. proceeding); Ex parte Hightower, 877 S.W.2d 17, 20 (Tex.App.--Dallas 1994, orig. proceeding). So too do they illustrate that the order or judgment in question is presumed valid until the relator establishes otherwise. Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex.App.--Houston [1st Dist.] 1990, orig. proceeding). Thus, the burden lies with him to prove his entitlement to relief, Ex parte Barlow, 899 S.W.2d at 794; Ex parte Hightower, 877 S.W.2d at 20; Ex parte Occhipenti, 796 S.W.2d at 809; see Ex parte Sentell, 266 S.W.2d at 370 (holding that the burden was on the applicant to prove that the evidence did not support the court's finding of contempt), which in turn, obligates him to establish that the order is void, not merely voidable. Ex parte Barlow, 899 S.W.2d at 794; Ex parte Hightower, 877 S.W.2d at 20. Until that burden is carried, the order remains presumptively valid.

Here, Scariati did not carry his burden. This is so, because he did not address one of the three distinct grounds upon which he was found in criminal contempt and assessed six months imprisonment. ¹ Indeed all but one of the allegations in his petition touch upon those aspects of the Motion and Order which deal with the payment of child support, payment of attorney's fees, reimbursement of uninsured medical expenses, and reimbursement of the cost of health insurance. The remaining allegation pertains to the purported denial of good time credit. Nowhere, does he attack: 1) the finding that he failed to maintain health insurance for his children as per the prior order of the court, 2) the conclusion that his omission was contemptuous, or 3) the determination to imprison him for six months for committing this particular contemptuous act.

To the extent that Scariati did not question that part of the Order punishing him for his failure to maintain health insurance, he did not carry his burden of proof. Thus, the portion of the Order he did not attack remains enforceable. See Ex parte Arnold, 926 S.W.2d 622, 624 (Tex.App.--Beaumont 1996, orig. proceeding) (holding that where a trial court itemizes each instance of contempt and assesses individual punishments for each instance, only the invalid portion of the order is void and the remainder is enforceable). This being so, we are relieved of having to decide whether the court erred in holding him in criminal contempt for not paying child support or reimbursing Mrs. Durham. Whatever...