Contempt
The supreme court has defined contempt as disobedience to or disrespect of a court by acting in opposition to its authority. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995) (orig. proceeding). The court has further observed that contempt is a broad and inherent power of a court. See Ex parte Browne, 543 S.W.2d 82, 86 (Tex. 1976) (orig. proceeding). The purpose of contempt is twofold: (1) to compel decorum and respect in the presence of the court and (2) to compel due obedience to the court’s judgments, orders, and process. See In re Reece, 341 S.W.3d 360, 365 n.7 (Tex. 2011) (citing Ex parte Gonzalez, 238 S.W. 635, 636 (Tex. 1922)).
§ 35.2Direct Contempt vs. Constructive Contempt
Contempt may occur in the presence of a court (direct contempt) or outside the court’s presence (constructive contempt). As a result of this distinction, the trial court in a direct contempt proceeding is allowed, in some instances, to conduct a summary proceeding in which the alleged contemner is not entitled to notice and a hearing, while a constructive contemner is always entitled to notice and a hearing in order to defend the charges. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding); see Ex parte Werblud, 536 S.W.2d 542, 546 (Tex. 1976) (orig. proceeding) (observing that constructive contempt entitles the contemner to more procedural safeguards than those afforded to direct contemners).
In direct contempt cases, the court must have direct knowledge of the behavior constituting contempt. To exercise its authority to compel decorum, the court can use its contempt power to instantly suppress disturbances or disrespect to the court, when occurring in open court. In re Bell, 894 S.W.2d 119, 127, 128 (Tex. Spec. Ct. Rev. 1995).
Constructive contempt involves behavior that occurs outside the presence of the court and relates to acts that require testimony to establish their existence. Ex parte Cooper, 657 S.W.2d 435, 437 (Tex. Crim. App. 1983). With constructive contempt proceedings, due process demands are heightened, and the accused is entitled to be given notice, a hearing, and the opportunity to obtain an attorney. Ex parte Hodge, 389 S.W.2d 463 (Tex. 1965) (orig. proceeding). These due process requirements are necessary because all of the elements of the offense are not personally observed by the court. In re Oliver, 333 U.S. 257 (1948); Ex parte Pyle, 133 S.W.2d 565 (Tex. 1939).
COMMENT: An officer of a court who is held in contempt by a trial court shall, on proper motion filed in the offended court, be released on his own personal recognizance pending a determination of his guilt or innocence. Tex. Gov’t Code § 21.002(d); see In re Cisneros, 487 S.W.3d 237 (Tex. App.—El Paso 2015) (orig. proceeding).
§ 35.3Criminal Contempt vs. Civil Contempt
Contempt is further classified into either civil or criminal contempt. The classifications of civil and criminal contempt have nothing to do with the characterization of the underlying case or the burden of the contempt order. Rather, the distinction lies in the nature and purpose of the penalty imposed. See Ex parte Chambers, 898 S.W.2d 257, 266 (Tex. 1995) (orig. proceeding) (Gonzalez, J., dissenting) (citing Ex parte Werblud, 536 S.W.2d 542, 545–46 (Tex. 1976)).
Civil contempt is remedial and coercive in nature. In a civil contempt order, the court exerts its contempt power to persuade the contemner to obey a previous order, usually through a conditional penalty. Because the contemner can avoid punishment by obeying the court’s order, the contemner is said to carry the keys to the jail cell in his own pocket. Ex parte Werblud, 536 S.W.2d at 545.
Criminal contempt is punitive in nature. A criminal contempt order is an exertion of the court’s inherent power to punish a contemner for some completed act that affronted the court’s dignity and authority. The contemner’s punishment is fixed, so that no subsequent voluntary compliance on the part of the defendant can enable him or her to avoid punishment for past acts. Ex parte Werblud, 536 S.W.2d at 545–46.
§ 35.4Court’s Authority to Hold Parties in Contempt
A court’s contempt power does not depend on statutory authority; it is an inherent power of a court and essential to a court’s ability to exercise its authority. Ex parte Gorena, 595 S.W.2d 841, 845 (Tex. 1979) (orig. proceeding); Ex parte Browne, 543 S.W.2d 82, 86 (Tex. 1976) (orig. proceeding). This inherent power has been codified in the Texas Government Code. See Tex. Gov’t Code §§ 21.001, 21.002.
Nevertheless, the Texas Family Code contains numerous statutes that provide authority to enforce certain types of orders by contempt. For example, title 4 contains provisions for enforcement of protective orders by contempt. See Tex. Fam. Code §§ 81.004, 81.010, 85.024, 85.026. Protective orders are the subject of chapter 17 of this manual.
Statutory authority also exists that permits courts to enforce property divisions and awards of spousal maintenance by contempt. See Tex. Fam. Code §§ 8.059, 9.012. See section 31.23 of this manual for a discussion of enforcement by contempt of orders for property division and section 32.6 concerning enforcement by contempt of orders for spousal maintenance.
The most comprehensive and perhaps most commonly encountered statutory scheme for enforcement by contempt is that laid out in Texas Family Code chapter 157, which addresses contempt in suits affecting the parent-child relationship. While substantive contempt law and procedures related to contempt, generally, are largely uncodified, chapter 157 specifically addresses practices and procedures related to contempt in these cases.
§ 35.5Constitutional Protections
§ 35.5:1Due Process Requirements
Because contempt proceedings entail possible penal sanctions, the proceedings are quasi-criminal and should conform as nearly as practicable to those in criminal proceedings. Texas courts have consistently held that alleged constructive contemners are entitled to procedural due process protections before they may be held in contempt. Ex parte Johnson, 654 S.W.2d 415, 420 (Tex. 1983) (orig. proceeding).
The parties to an enforcement action are ordinarily not entitled to a jury. See, e.g., Tex. Fam. Code § 9.005. However, an alleged contemner has a constitutional right to a jury trial on a “serious” charge of criminal contempt. A charge for which confinement may exceed six months is serious. Ex parte Sproull, 815 S.W.2d 250, 250 (Tex. 1991) (orig. proceeding) (per curiam); Ex parte Werblud, 536 S.W.2d 542, 546 (Tex. 1976) (orig. proceeding). The alleged contemner must be informed of the right to a jury trial, and, because a waiver of the right to a jury shall not be presumed from a silent record, the record must clearly reflect the waiver of this right. Ex parte Sproull, 815 S.W.2d at 250; Ex parte Griffin, 682 S.W.2d 261, 262 (Tex. 1984) (orig. proceeding).
The Supreme Court has held that a defendant who is prosecuted in a single proceeding for multiple petty offenses does not have a Sixth Amendment right to a jury trial when the aggregate prison term authorized for the offenses exceeds six months. The right to a jury trial does not extend to petty offenses. An offense carrying a maximum term of six months or less is assumed petty, unless the legislature has authorized additional statutory penalties so severe as to indicate that it considered the offense serious. Lewis v. United States, 518 U.S. 322 (1996).
Texas is in accord with these distinctions between petty and serious offenses. The statute that authorizes punishment for contempt allows punishment by a fine of not more than $500 or confinement in the county jail for not more than six months or both. See Tex. Gov’t Code § 21.002(b). The total period of confinement arising out of the same matter is limited cumulatively to eighteen months. Tex. Gov’t Code § 21.002(h). However, the limitations of section 21.002(h) do not apply for offenders found in contempt for failure to make child support payments. Tex. Gov’t Code § 21.002(f). Whether the offense is serious or petty is determined by the pleadings. Ex parte York, 899 S.W.2d 47, 48 (Tex. App.—Waco 1995, orig. proceeding). However, it has been held that if the court announces prior to the contempt hearing that punishment will not exceed six months, an alleged contemnor no longer has a right to a jury trial, notwithstanding the pleadings. See In re C.F., 576 S.W.3d 761, 768–69 (Tex. App.—Fort Worth 2019, orig. proceeding).
If incarceration is a possible result of the proceedings, the court must inform an unrepresented respondent of the right to be represented by an attorney and, if he is indigent, of his right to the appointment of an attorney. Ex parte Strickland, 724 S.W.2d 132, 134 (Tex. App.—Eastland 1987, orig. proceeding); see also In re Luebe, 983 S.W.2d 889, 890 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding). The fact that the respondent was admonished as to his right to counsel must appear on the record. Ex parte Keene, 909 S.W.2d 507, 508 (Tex. 1995) (orig. proceeding) (per curiam); In re E.W.M., No. 05-19-01589-CV, 2022 WL 71870, at *3 (Tex. App.—Dallas Jan. 7, 2022, no pet.) (mem. op.); In re Chambers, No. 05-18-00031-CV, 2018 WL 833382 (Tex. App.—Dallas Feb. 12, 2018, orig. proceeding) (mem. op.).
Absent a knowing and intelligent waiver of right to counsel, a trial court has no authority to hold an unrepresented party in contempt. In re Dooley, 129 S.W.3d 277 (Tex. App.—Corpus Christi–Edinburg 2004, orig. proceeding) (citing Ex parte Keene, 909 S.W.2d 507); In re Chambers, 2018 WL 833382.
If the respondent claims indigency and requests appointment of an attorney, the court shall require an affidavit and may hear evidence to determine the issue of indigency. The hearing on indigency may be conducted by teleconference, videoconference, or other remote electronic means if the court determines that conducting the hearing in that manner will facilitate the hearing. If the court determines that the respondent is indigent, the court must appoint an attorney to represent the respondent. Tex. Fam. Code § 157.163(d)–(e).
Indigency for the appointment of counsel is determined on a case-by-case basis. Redman v. State, 860 S.W.2d 491, 493 (Tex. App.—El Paso 1993, no pet.). In criminal cases, the courts may consider the person’s income, source of income, assets, property owned, outstanding obligations, necessary expenses, the number and ages of dependents, and spousal income available to the person. Tex. Code Crim. Proc. art. 26.04(m). The only guidance given on the civil side is rule 145 of the Texas Rules of Civil Procedure, which describes evidence of an inability to afford payment of costs, including receipt of government benefits based on means, representation by an attorney providing free legal services, and application for free legal services. See Tex. R. Civ. P. 145(d). See section 8.81 in this manual for a discussion of the procedure for claiming indigency under rule 145.
The fact that the respondent may have a relative financially able to assist is not to be considered in determining indigency. In re Luebe, 983 S.W.2d 889, 890 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding).
If the court determines that the respondent will not be incarcerated as a result of the proceeding, the court may require an indigent respondent to proceed without an attorney. Tex. Fam. Code § 157.163(c).
A respondent in a contempt proceeding may assert a Fifth Amendment privilege and refuse to testify. Ex parte York, 899 S.W.2d 47, 48 (Tex. App.—Waco 1995, orig. proceeding). However, a respondent’s invocation of the privilege may result in his failure to prove any affirmative defense. See Ex parte Johns, 807 S.W.2d 768, 773 (Tex. App.—Dallas 1991, orig. proceeding).
A fact finder may also draw an adverse inference against a party who pleads the Fifth Amendment in a civil proceeding. Baxter v. Palmigiano, 425 U.S. 308, 318 (1976); Texas Capital Securities, Inc. v. Sandefer, 58 S.W.3d 760, 779 (Tex. App.—Houston [1st Dist.] 2001, pet. denied); see also Tex. R. Evid. 513(c). The trial judge is entitled to determine whether the refusal to answer appears to be based on the good faith of the witness and is justifiable under all the circumstances. Ex parte Butler, 522 S.W.2d 196, 198 (Tex. 1975) (orig. proceeding).
COMMENT: While a respondent may ordinarily be entitled to admonishments regarding his Fifth Amendment rights, if the respondent is represented by counsel and voluntarily testifies, some courts have held that the Fifth Amendment right to be free from compelled self-incrimination is not implicated. See In re Brown, 114 S.W.3d 7, 12 (Tex. App.—Amarillo 2003, orig. proceeding).
Although contempt of court proceedings may be criminal or civil, double jeopardy generally applies only to criminal contempt. Tex. Const. art. I, § 14; see also Ex parte Hudson, 917 S.W.2d 24, 26 (Tex. 1996) (orig. proceeding) (per curiam); Ex parte Jones, 36 S.W.3d 139, 142 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). The distinction between criminal and civil contempt derives from the nature and purpose of the penalty imposed. See Ex parte Johns, 807 S.W.2d 768, 770–71 (Tex. App.—Dallas 1991, orig. proceeding).
As a means to persuade the contemner to obey a previous court order, civil contempt is conditional, albeit coercive, in that it can impose a fine, confinement, or both, unless and until the contemner performs the affirmative act required by the court’s order. See In re Johnson, 150 S.W.3d 267, 271 (Tex. App.—Beaumont 2004, orig. proceeding); Ex parte Johns, 807 S.W.3d at 770. A determinate sentence containing a “purge clause” can also be imposed by the court in a civil contempt order. See In re Johnson, 150 S.W.3d at 271; Ex parte Johns, 807 S.W.3d at 770. Double jeopardy principles, however, are inapposite to a civil contempt order assessing confinement conditioned on the contemner’s obtaining his release by purging the contempt. Tramel v. Tramel, No. 01-10-00713-CV, 2012 WL 3775971 (Tex. App.—Houston [1st Dist.] Aug. 30, 2012, no pet.) (mem. op.) (citing Ex parte Hudson, 917 S.W.2d at 26 (Tex. 1996)); Ex parte Jones, 36 S.W.3d at 142.
[Sections 35.6 through 35.10 are reserved for expansion.]
II. Orders Enforceable by Contempt
§ 35.11Enforceability by Contempt—Generally
Whether a decree is enforceable by contempt depends, not on statutory authority, but on the nature of the decree itself. For example, a decree that orders a party to perform an act that he is incapable of performing is not subject to enforcement by contempt. Ex parte Gonzales, 414 S.W.2d 656 (Tex. 1967) (orig. proceeding). Similarly, a decree that is so indefinite that it does not clearly indicate what a party is to do may not be enforced by contempt. Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967); Ex parte Gorena, 595 S.W.2d 841, 846 (Tex. 1979).
§ 35.12Written and Signed Order
A contemner cannot be held in constructive contempt of court for actions taken before the court’s order is reduced to writing. Ex parte Chambers, 898 S.W.2d 257, 262 (Tex. 1995); see also Ex parte Price, 741 S.W.2d 366 (Tex. 1987). For a party to be held in contempt for disobeying a court decree, a party should be able to find somewhere in the record a written order that spells out the terms of compliance in clear, specific, and unambiguous terms. Ex parte Price, 741 S.W.2d at 367; see also Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967). It is this written order, signed by the court and entered on the minutes, that evidences a party’s rights and duties. Ex parte Price, 741 S.W.2d at 367.
§ 35.13Clear and Specific Terms
The focus is on the wording of the judgment itself. A proper judgment must spell out the details of compliance in clear and unambiguous terms so that the person will know exactly what he is expected to do. Ex parte Reese, 701 S.W.2d 840, 841–42 (Tex. 1986) (orig. proceeding) (citing Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967)); see also Ex parte Glover, 701 S.W.2d 639 (Tex. 1986) (orig. proceeding); Ex parte Hodges, 625 S.W.2d 304, 306 (Tex. 1981) (orig. proceeding); Ex parte Choate, 582 S.W.2d 625, 627 (Tex. App.—Beaumont 1979, orig. proceeding). However, an order “need not be full of superfluous terms and specifications adequate to counter any flight of fancy a contemner may imagine in order to declare it vague.” Ex parte McManus, 589 S.W.2d 790, 793 (Tex. App.—Dallas 1979, orig. proceeding). While an order must be clear, specific, and unambiguous to be enforceable by contempt, an order that is not enforceable by contempt is not necessarily void for vagueness. See In re J.J.R.S., 627 S.W.3d 211, 223 (Tex. 2021).
Further, judgments must not be conditional or contingent. Hale v. Hale, No. 04-05-00314-CV, 2006 WL 166518, at *4 (Tex. App.—San Antonio Jan. 25, 2006, pet. denied) (mem. op.). A judgment must be sufficiently definite and certain to define and protect the rights of all litigants, or it must provide a definite means of ascertaining such rights so the judgment can be executed without reference to facts not stated within the judgment. In re Medina, No. 04-20-00390-CV, 2021 WL 603360, at *2 (Tex. App.—San Antonio Feb. 17, 2021, orig. proceeding) (mem. op.).
COMMENT: When drafting an order, avoid using such terms as “bi-monthly,” which can be interpreted to mean twice per month or every other month and thus is inherently ambiguous and will not support a finding of contempt. See J.A.S. v. A.R.D., No. 02-17-00403-CV, 2019 WL 238118, at *6 (Tex. App.—Fort Worth Jan.17, 2019, no pet.) (mem. op.).
COMMENT: Emergency orders may affect the ability to hold a person in contempt, as they may contain ambiguity. See In re Hilburn, No. 05-20-01068-CV, 2022 WL 831547 (Tex. App.—Dallas Mar. 21, 2022, orig. proceeding) (mem. op.) (Texas Supreme Court’s Emergency Orders Regarding COVID-19 State of Disaster created ambiguity as to surrender location in possession order).
Clarification: If the terms of the original order are not clear or specific enough to be enforceable by contempt, the court may render a clarifying order specific enough to be enforced by contempt. Such an order may be rendered before a motion for contempt is made or heard, in conjunction with a motion for contempt, or after denial of a motion for contempt. See Tex. Fam. Code §§ 9.008, 157.421, 157.424. Clarification orders are discussed in sections 31.21 (property division), 33.41 (child support), and 34.51 (possession and access) in this manual.
To be enforceable by contempt, an order must contain decretal language that commands a party to perform an act or refrain from performing an act. See In re Coppock, 277 S.W.3d 417 (Tex. 2009) (orig. proceeding). A party cannot be held in contempt of court for failing to take an action the court never ordered the party to take. Ex parte Padron, 565 S.W.2d 921, 924 (Tex. 1978) (orig. proceeding).
Without decretal language making clear that a party is under an order of the court, agreements incorporated into divorce decrees are enforced only as contractual obligations (McGoodwin v. McGoodwin, 671 S.W.2d 880, 882 (Tex. 1984)), and obligations that are merely contractual cannot be enforced by contempt. See Tex. Const. art. I, § 18 (“No person shall ever be imprisoned for debt.”); In re Green, 221 S.W.3d 645, 648–49 (Tex. 2007) (orig. proceeding).
§ 35.15Within Court’s Jurisdiction
There can be no finding of contempt unless it is proved that there is a valid order that an alleged contemner has violated. Ex parte Shaffer, 649 S.W.2d 300, 301–02 (Tex. 1983) (orig. proceeding). A court cannot enforce a void order. Ex parte Tanner, 904 S.W.2d 202, 203 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding); see Padfield v. McIntosh, 267 S.W.2d 224 (Tex. App.—Fort Worth 1954, writ dism’d).
There are occasions in which a party will attempt to enforce an order that is void, such as an order that has been signed after the court lost plenary power. This can occur after a dismissal for want of prosecution and a subsequent, untimely reinstatement. See In re General Motors Corp., 296 S.W.3d 813, 823, 827, 828 (Tex. App.—Austin 2009, orig. proceeding). Judgments nunc pro tunc should be carefully scrutinized to see whether the changes were truly corrections of mere clerical errors. See Tex. R. Civ. P. 329b(f); Universal Underwriters Insurance Co. v. Ferguson, 471 S.W.2d 28, 30 (Tex. 1971) (orig. proceeding).
COMMENT: The practitioner should always review the court’s file to determine the validity of the order to be enforced.
§ 35.16Debt Not Enforceable by Contempt
An obligation to pay a debt imposed under a divorce decree is not enforceable by contempt. Shumate v. Shumate, 310 S.W.3d 149, 152–53 (Tex. App.—Amarillo 2010, no pet.). While the constitution clearly prohibits imprisonment for debt, Texas courts have consistently recognized that obligations incurred for the support of children and spouses do not constitute a debt. Ex parte Kimsey, 915 S.W.2d 523, 525 (Tex. App.—El Paso 1995, orig. proceeding); see also Ex parte Davis, 111 S.W. 394, 396 (Tex. 1908) (orig. proceeding); In re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (orig. proceeding) (confinement may be proper under court’s contempt powers for failure to pay child support); Ex parte Hall, 854 S.W.2d 656, 658 (Tex. 1993) (orig. proceeding) (obligation law imposes on spouses to support one another and on parents to support children is not considered “debt” within constitution’s prohibitions). Additionally, when a spouse holds money as a constructive trustee for the other spouse, the obligation to deliver that money to the former spouse is not a debt. Ex parte Gorena, 595 S.W.2d 841, 846–47 (Tex. 1979) (orig. proceeding) (former husband held constructive trustee for portion of monthly retirement pay awarded to former wife in divorce decree; therefore obligation to deliver money to former wife not “debt”); In re C.F., 576 S.W.3d 761 (Tex. App.—Fort Worth 2019, orig. proceeding).
The Texas Constitution provides that “[n]o person shall ever be imprisoned for debt.” Tex. Const. art. I, § 18. Thus, although an order requiring payment of debt may be enforced through legal processes like execution or attachment, a confinement order premised on failure to pay a debt violates the Texas Constitution and is therefore void. Accordingly, a party’s failure to comply with an order to pay a “debt” is not punishable by imprisonment. Ex parte Hall, 854 S.W.2d at 658.
Further, when a trial court orders a party to a divorce to pay an obligation owed to a third party, that obligation is not transformed into one enforceable by coercive contempt. In re Henry, 154 S.W.3d at 597 (husband’s obligation to pay past-due property taxes, imposed as part of division of community property, was order to pay debt owed to third party and therefore not enforceable by confinement for contempt). It is well settled in Texas that the obligation for one spouse to make payments to a third party on behalf of the other spouse is not enforceable by contempt, for such enforcement would amount to imprisonment for nonpayment of a debt in violation of article I, section 18, of the Texas Constitution. See Ex parte Yates, 387 S.W.2d 377, 380 (Tex. 1965) (orig. proceeding).
§ 35.17Enforcement of Award of Attorney’s Fees
Generally, an award of attorney’s fees is not enforceable by contempt. However, the exception of child and spousal support obligations from the constitutional prohibition against imprisonment for debt has been extended to assessments of attorney’s fees incurred to enforce orders for temporary spousal or child support. See In re Bielefeld, 143 S.W.3d 924, 928–29 (Tex. App.—Fort Worth 2004, no pet.).
Attorney’s fees awarded in proceedings to enforce child support payments may be enforced through a contempt judgment; so may attorney’s fees awarded in proceedings to enforce the terms of possession and access if the court finds that enforcement of the order was necessary to ensure the child’s physical or emotional health or welfare. Tex. Fam. Code § 157.167(a), (b); see Gulley v. Gulley, No. 01-18-00234-CV, 2019 WL 3121854 (Tex. App.—Houston [1st Dist.] July 16, 2019, no pet.) (mem. op.). Additionally, at least one court has found that the obligation to pay fees awarded in a family violence protective order is a legal duty like the duty to pay fees awarded in the enforcement of a child support obligation. See In re Skero, 253 S.W.3d 884, 887 (Tex. App.—Beaumont 2008, no pet.) (per curiam).
§ 35.18Enforcement of Temporary Orders, Temporary Injunctions, Restraining Orders, and Standing Orders
A motion for enforcement by contempt may be filed to enforce any provision of a temporary order, temporary injunction, temporary restraining order, or standing order rendered in a suit. Tex. Fam. Code § 157.001. See In re Caldwell-Bays, No. 04-18-00980-CV, 2019 WL 1370316 (Tex. App.—San Antonio Mar. 27, 2019, orig. proceeding) (mem. op.) (standing orders are enforceable by contempt because court has power to enter such orders pursuant to Tex. Fam. Code §§ 6.501(a), 6.502). However, a temporary injunction or restraining order that does not either set or expressly waive or dispense with the issuance of a bond may be void and therefore unenforceable by contempt. In re McCray, No. 05-13-01195, 2013 WL 5969581, at *2 (Tex. App.—Dallas Nov. 7, 2013, orig. proceeding) (per curiam) (mem. op.); see also Lancaster v. Lancaster, 291 S.W.2d 303, 308 (Tex. 1956) (bond provisions of rule 684 are mandatory); In re Lemons, 47 S.W.3d 202, 203–04 (Tex. App.—Beaumont 2001, orig. proceeding) (temporary restraining order should contain provisions for bond or express waiver of requirement of bond).
Even after the court has issued a written memorandum as to its final ruling in the case, temporary orders may remain in effect and remain enforceable by contempt if the memorandum does not provide that the court has the present intent to render a full, final, and complete judgment that resolves all issues. See In re Rivkin, No. 05-20-00124-CV, 2020 WL 2316071 (Tex. App.—Dallas May 11, 2020, no pet.) (mem. op.).
[Sections 35.19 and 35.20 are reserved for expansion.]
Due process of law requires that the constructive contemner be given notice of the charges levied against him and a reasonable opportunity to meet the charges by way of defense or explanation. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). For conduct outside the presence of the court, due process requires that the alleged contemner receive full and unambiguous notification of the accusation of any contempt. Ex parte Vetterick, 744 S.W.2d 598, 599 (Tex. 1988) (orig. proceeding) (per curiam); see also Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex. 1969) (orig. proceeding) (notice should state when, how, and by what means defendant has been guilty of contempt).
The required contents of a motion for enforcement of child support are specified in section 157.002(a) and (b) of the Texas Family Code and are discussed at section 33.8 of this manual. The required contents of a motion for enforcement of orders for possession of and access to children are specified in section 157.002(a) and (c) of the Texas Family Code and are discussed at section 34.8 of this manual.
The Family Code gives little guidance as to the technical requirements of motions for contempt regarding orders other than child support orders and orders for possession of and access to children. However, motions for enforcement of other orders, such as orders for maintenance, orders for property division, protective orders, and other orders and injunctions, must still provide due process so that the alleged contemner receives full and unambiguous notification of the accusation of any contempt. A verified complaint is not required as a prerequisite to constructive contempt except where specifically required by statute. In re N.V.R., 580 S.W.3d 220, 224 (Tex. App.—Tyler 2019, pet. denied) (mem. op.).
While chapter 157 of the Code may not govern motions for other types of underlying orders, at a minimum it provides the necessary requirements to comport with due process. Therefore, to comport with due process, a motion for contempt should contain the provisions of the order allegedly violated, the specific manner in which the order was violated (that is, the time, date, place, and manner of noncompliance), and the remedies sought by the movant.
COMMENT: The pleadings should always state whether the movant seeks a finding of criminal contempt, civil contempt, or both. If criminal contempt is sought, the specific sentence requested should be pleaded with the distinction between petty and serious offenses in mind, as discussed in section 35.5:2 above.
Because a court has all powers necessary to enforce its lawful orders, it generally is the proper forum in which to file a motion for enforcement. See Tex. Gov’t Code § 21.001(a). Further, it has long been the general rule in Texas that one court may not find a person in contempt for violating another court’s order. See Ex parte Gonzalez, 238 S.W. 635, 636 (Tex. 1922) (orig. proceeding). In keeping with this rule, in suits to enforce the property division in a decree, the court that rendered the decree of divorce or annulment retains the power to enforce the property division. Tex. Fam. Code § 9.002.
However, there are certain circumstances in which the legislature has provided that courts may enforce another court’s order. See Ex parte Barnett, 600 S.W.2d 252, 254–55 (Tex. 1980) (orig. proceeding).
For example, a foreign decree filed in Texas under the Uniform Enforcement of Judgments Act has the same effect and is subject to the same procedures as a judgment of the Texas court where filed. See Tex. Civ. Prac. & Rem. Code § 35.003(c).
Similarly, the legislature has provided that a court with jurisdiction of proceedings under title 4 of the Texas Family Code may enforce a protective order rendered by another court in the same manner as the court that rendered the order could enforce it, including by contempt. A motion for enforcement of a protective order may be filed in any court in the county in which the order was rendered with jurisdiction of proceedings, a county in which either party resides, or a county in which an alleged violation of the order occurs. Tex. Fam. Code § 81.010.
Finally, while proceedings for enforcement of orders related to a child are filed in the court of continuing, exclusive jurisdiction, Tex. Fam. Code § 157.001(d), an enforcement action is subject to transfer. See Tex. Fam. Code §§ 155.201, 155.202; In re L.C.R., No. 01-19-00667-CV, 2020 WL 3456595, at *3–4 (Tex. App.—Houston [1st Dist.] June 25, 2020, no pet.) (mem. op.). If a suit is transferred, the court to which a transfer is made becomes the court of continuing, exclusive jurisdiction and has the power to hear and punish disobedience of the original court's order by contempt, regardless of whether all or a part of the alleged disobedience was committed before or after the case was transferred, and the original court has no further jurisdiction. Tex. Fam. Code § 155.206.
[Sections 35.23 through 35.30 are reserved for expansion.]
IV. Service of Motion and Show Cause Order
The court must issue a valid show cause order or equivalent legal process apprising the contemner of the accusation. Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex. 1969) (orig. proceeding). A contempt judgment rendered without such notification is a nullity. Ex parte Ratliff, 3 S.W.2d 406, 407 (Tex. 1928) (orig. proceeding).
The show cause notice must be in writing. See Ex parte Vetterick, 744 S.W.2d 598, 599 (Tex. 1988) (orig. proceeding) (per curiam) (notice should be by show cause order or other equivalent legal process personally served on alleged contemner).
§ 35.32Personal Service Required
Notice in the due process context of criminal contempt proceedings requires timely notice by personal service of the show cause hearing and full and unambiguous notice of the contempt accusations. See, e.g., Ex parte Adell, 769 S.W.2d 521, 522 (Tex. 1989) (orig. proceeding) (per curiam); Ex parte Vetterick, 744 S.W.2d 598, 599 (Tex. 1988) (orig. proceeding) (per curiam); In re Rowe, 113 S.W.3d 749, 752 (Tex. App.—Austin 2003, orig. proceeding). The notice must state when, how, and by what means the person has been guilty of contempt. Ex parte Vetterick, 744 S.W.2d at 599. A contempt order rendered without such adequate notification is void. Ex parte Adell, 769 S.W.2d at 522.
Unless specifically provided by rule or statute, the amount of notice required depends on what is necessary to comport with due-process requirements. See, e.g., Ex parte Sanchez, 703 S.W.2d 955, 958 (Tex. 1986) (four days to prepare defense to contempt charges sufficient under circumstances in case). The amount of notice required to comport with due process will vary, and each case must be evaluated on its own facts. Ex parte Davis, 344 S.W.2d 153, 157 (Tex. 1961).
For enforcement proceedings concerning orders related to child support or possession of or access to a child, the Family Code provides that that the notice of hearing shall be given to the respondent by personal service not later than the tenth day before the hearing. Tex. Fam. Code § 157.062. However, chapter 157 further provides that notice of a hearing on a motion for enforcement may be served by first-class mail in some circumstances. Tex. Fam. Code § 157.065. If service is by mail and the respondent fails to appear, there is little remedy other than a resetting of the hearing. Therefore, the notice should be served in person on the respondent, after which if the respondent fails to appear, the court may not hold the respondent in contempt but may render a default judgment in favor of movant and may order a capias to be issued for the arrest of the respondent. Tex. Fam. Code §§ 157.066, 157.114, 157.115; In re Taylor, 39 S.W.3d 406, 413 (Tex. App.—Waco 2001, orig. proceeding). Notice given to a contemner’s attorney is inadequate; the notice must be served personally on the contemner. Ex parte Herring, 438 S.W.2d 801, 803 (Tex. 1969) (orig. proceeding).
However, in a property enforcement case, the respondent is entitled to at least forty-five days’ notice prior to a hearing on the enforcement, because such a proceeding shall be conducted “as in civil cases generally.” Tex. Fam. Code § 9.001(c); see Tex. R. Civ. P. 245 (providing that reasonable notice of first trial setting is not less than forty-five days before trial).
[Sections 35.33 through 35.40 are reserved for expansion.]
Affirmative defenses should be included in the respondent’s answer to a motion for enforcement. The Family Code expressly provides for affirmative defenses in suits for enforcement brought under chapter 8 (spousal maintenance) and chapter 157 (suits affecting the parent-child relationship). Nothing precludes a party from pleading and proving other affirmative defenses, such as impossibility of performance or payment. See Tex. R. Civ. P. 94.
Provisions concerning affirmative defenses available in specific enforcement actions are discussed in sections 32.7 (spousal maintenance), 33.19 (child support), and 34.16 (possession and access) in this manual.
Limitations on enforcement by contempt in specific enforcement actions are discussed in sections 31.2 (property division), 33.12 (child support), and 34.4 (possession and access) in this manual.
A respondent may file special exceptions to challenge pleading defects in the motion for enforcement. If a respondent specially excepts to the motion for enforcement or moves to strike, the court shall rule on the exception or the motion to strike before it hears the motion for enforcement. If an exception is sustained, the court shall give the movant an opportunity to replead and continue the hearing without the need of additional service. Tex. Fam. Code § 157.064.
There is a split in authority as to the necessity of special exceptions in the contempt context. Some courts have held that special exceptions are necessary to preserve complaints regarding the motion for contempt, while others have held that a respondent does not waive complaints to the motion for enforcement if the motion fails to give reasonable notice as to each alleged contumacious act. See generally Ex parte Barlow, 899 S.W.2d 791, 796 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding).
[Sections 35.44 through 35.50 are reserved for expansion.]
If a respondent who has been personally served or who has filed an answer or made an appearance fails to appear at the hearing, the court may, on proper proof, grant a default judgment for the relief sought, regardless of whether other claims or remedies have been joined with the enforcement action. The court may not hold the respondent in contempt but may issue a capias for the respondent’s arrest. See Tex. Fam. Code §§ 157.066, 157.114, 157.115; In re Daniels, No. 05-17-01260-CV, 2017 WL 6503107 (Tex. App.—Dallas Dec. 19, 2017, orig. proceeding) (mem. op.).
A capias is a writ that requires law enforcement officials to take a named person into custody. See Black’s Law Dictionary 249 (10th ed. 2014). Law enforcement officials must treat a capias or arrest warrant ordered under Family Code chapter 157 in the same manner as an arrest warrant for a criminal offense and shall enter the capias or warrant in the computer records for outstanding warrants maintained by the local police, sheriff, and Department of Public Safety. The capias or warrant shall be forwarded to and disseminated by the Texas Crime Information Center and the National Crime Information Center. Tex. Fam. Code § 157.102.
When the court orders issuance of a capias, it shall also set an appearance bond or security, payable to the obligee or a person designated by the court, in a reasonable amount. Although there is a presumption that an appearance bond or security of $1,000 or a cash bond of $250 is reasonable, evidence that the respondent has tried to evade service, has previously been found guilty of contempt, or has accrued arrearages of more than $1,000 under a child support obligation will rebut the presumption. Tex. Fam. Code § 157.101; see In re Clark, 977 S.W.2d 152, 156–57 (Tex. App.—Houston [14th Dist.] 1998, orig. proceeding) (court may apply only factors in statute to rebut presumption of reasonableness). If the presumption is rebutted, the court shall set a reasonable bond. Tex. Fam. Code § 157.101.
The fee for issuance of a capias is the same as that for issuance of a writ of attachment. The fee for service of a capias is the same as that for service of a writ in civil cases generally. Tex. Fam. Code § 157.103.
If the respondent is taken into custody and released on bond, the bond shall be conditioned on the respondent’s promise to appear for a hearing without the necessity of further personal service of notice. Tex. Fam. Code § 157.104. A respondent released without posting bond or security must be given notice in open court of a hearing on the alleged contempt set at a designated date, time, and place; no further notice is required. See Tex. Fam. Code § 157.105(b).
If the respondent is taken into custody and not released on bond, he must be taken before the court issuing the capias on or before the third working day after the arrest for a release hearing. Tex. Fam. Code § 157.105(a). The release hearing may be conducted by teleconference, videoconference, or other remote electronic means if the court determines that the method of appearance will facilitate the hearing. Tex. Fam. Code § 157.105(a–1).
If the respondent is not released, the hearing on the contempt charge must be held as soon as practicable and not later than the seventh day after the respondent is taken into custody, unless the respondent and the respondent’s attorney waive the accelerated hearing. Tex. Fam. Code § 157.105(c).
§ 35.53No Contempt in Absentia
A respondent who is served and fails to appear at the contempt hearing cannot be held in contempt in absentia because the right to be present at trial and confront witnesses is fundamental and essential to a fair trial. Pointer v. Texas, 380 U.S. 400, 405 (1965). The right is protected by the Texas Constitution and the Texas Code of Criminal Procedure. See Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art. 33.03. The right to be present at trial is also protected under the Sixth Amendment of the U.S. Constitution against state infringement through the due process clause of the Fourteenth Amendment. Pointer, 380 U.S. at 403. Accordingly, the Texas Supreme Court has held that a court should not try charges of criminal, constructive contempt in the alleged contemner’s absence, but should instead issue a capias or writ of attachment to bring the alleged contemner before the court. Ex parte Johnson, 654 S.W.2d 415, 422 (Tex. 1983); Ex parte Alloju, 907 S.W.2d 486, 487 (Tex. 1995) (orig. proceeding) (per curiam).
The movant must put on evidence of the following: that the court has jurisdiction to hear the matter, that an enforceable order exists, the manner of the respondent’s noncompliance, and the relief sought. The jurisdictional and enforceable order elements can be satisfied by offering into evidence a certified copy of the order to be enforced. The specific violations can be proved by testimony and documents offered by the movant. A contempt order is void absent proof that the contemner violated the order of the trial court. Ex parte Williams, 690 S.W.2d 243, 244 (Tex. 1985) (orig. proceeding) (citing Ex parte Green, 603 S.W.2d 216 (Tex. 1980)). The requirement of willful disobedience is a necessary component for a finding of contempt. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995) (orig. proceeding). To support a judgment of contempt, one must have knowledge or notice of an order that one is charged with violating before a judgment of contempt will obtain. See, e.g., Ex parte Conway, 419 S.W.2d 827, 828 (Tex. 1967) (orig. proceeding).
A criminal contempt conviction for violation of a court order requires proof beyond a reasonable doubt of a reasonably specific order, a violation of the order, and the willful intent to violate the order. Ex parte Chambers, 898 S.W.2d at 259. Failure to comply with an unambiguous order of which one has notice will ordinarily raise an inference that the noncompliance was willful. The involuntary inability to comply with an order is a valid defense to criminal contempt, for noncompliance cannot have been willful if the failure to comply was involuntary. The relator bears the burden of proving inability to comply. A court of appeals has no jurisdiction to weigh the proof; it determines only if the judgment is void because, for example, the relator has been confined without a hearing or with no evidence of contempt to support his confinement. See In re Daugherty, No. 05-17-01129-CV, 2018 WL 3031705, at *5 (Tex. App.—Dallas June 19, 2018, orig. proceeding) (mem. op.).
Some courts have held that identification of the defendant on the record is required to find the defendant in contempt. See Ex parte Harris, 581 S.W.2d 545, 547 (Tex. App.—Fort Worth 1979, orig. proceeding). However, other courts have not required such a finding. See Ex parte Snow, 677 S.W.2d 147, 149–50 (Tex. App.—Houston [1st Dist.] 1984, orig. proceeding); Ex parte McManus, 589 S.W.2d 790, 792–93 (Tex. App.—Dallas 1979, orig. proceeding).
[Sections 35.55 through 35.60 are reserved for expansion.]
VII. Contempt and Commitment Orders
§ 35.61Contents of Contempt Order
The purpose of an enforcement order is to notify the contemner of how he has violated the provisions for which enforcement is sought and how he can purge himself of contempt, to notify the sheriff accordingly so that he may do his duty, and to provide sufficient information for adequate review. Ex parte Conoly, 732 S.W.2d 695, 697 (Tex. App.—Dallas 1987, orig. proceeding). A contempt order is insufficient if its interpretation requires inferences or conclusions about which reasonable persons might differ. In re Turner, 177 S.W.3d 284, 289 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding) (citing In re Houston, 92 S.W.3d 870, 877 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding)).
An enforcement order may identify the provisions of the order violated by (1) copying into the order the provisions for which enforcement was sought, (2) attaching as an exhibit a copy of the order for which enforcement was sought and incorporating it by reference, or (3) giving the volume and page numbers in the minutes of the court where the order and its pertinent language are located. See Ex parte Tanner, 904 S.W.2d 202, 205 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding). If the contempt order does not satisfy these, or any other, methods of compliance, it violates the relator’s right to due process. In re Levingston, 996 S.W.2d 936, 938–39 (Tex. App.—Houston [14th Dist.] 1999, orig. proceeding); see also In re Edwards, 01-10-00992-CV, 2011 WL 2089805, at *4 (Tex. App.—Houston [1st Dist.] May 18, 2011, orig. proceeding) (per curiam).
The order should make findings and state a separate punishment for each occasion when the respondent's failure to comply with the order was found to constitute contempt. Ex parte Stanford, 557 S.W.2d 346, 349 (Tex. App.—Houston [1st Dist.] 1977, orig. proceeding). If one punishment is assessed for all the acts of contempt, the whole order is invalid if one of those acts is not punishable by contempt. Ex parte Rogers, 820 S.W.2d 35, 38 (Tex. App.—Corpus Christi–Edinburg 1991, orig. proceeding); Ex parte Jordan, 787 S.W.2d 367, 368 (Tex. 1990) (orig. proceeding) (per curiam); Ex parte Davila, 718 S.W.2d 281, 282 (Tex. 1986) (orig. proceeding) (per curiam). However, where the trial court lists each failure separately and assesses a separate punishment for each failure, only the invalid portion is void; the invalid portion may be severed and the valid portion retained. Ex parte Linder, 783 S.W.2d 754, 758 (Tex. App.—Dallas 1990, orig. proceeding); see also In re Hall, 433 S.W.3d 203, 207 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding); Ex parte Russell, 875 S.W.2d 467, 470 n.7 (Tex. App.—Austin 1994, orig. proceeding). A court may not divide a single contemptuous act into two separate acts and assess punishment for each allegedly separate act. In re L.M., No. 02-17-00218-CV, 2017 WL 3381139 (Tex. App.—Fort Worth Aug. 7, 2017, orig. proceeding) (mem. op.) (citing In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding)).
Criminal Contempt: An order imposing incarceration or a fine for criminal contempt must contain findings identifying, setting out, or incorporating by reference the provisions of the order for which enforcement was requested and the date of each occasion when the respondent’s failure to comply with the order was found to constitute criminal contempt. Tex. Fam. Code § 157.166(b).
An order for criminal contempt may not exempt a contemner from “good time” credit. Ex parte Roosth, 881 S.W.2d 300, 301 (Tex. 1994) (orig. proceeding) (per curiam); Ex parte Acly, 711 S.W.2d 627, 628 (Tex. 1986) (orig. proceeding); see In re Harris, No. 06-18-00015-CV, 2018 WL 1734294 (Tex. App.—Texarkana Apr. 11, 2018, orig. proceeding) (mem. op.); In re Mayorga, 538 S.W.3d 174, 177 (Tex. App.—El Paso 2017, orig. proceeding); In re Parks, 264 S.W.3d 59, 61, n.1 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding).
Civil Contempt: An enforcement order imposing incarceration for civil contempt must state the specific conditions on which the respondent may be released from confinement. Tex. Fam. Code § 157.166(c); In re Levingston, 996 S.W.2d at 938–39; Ex parte Stanley, 826 S.W.2d 772, 772–73 (Tex. App.—Dallas 1992, orig. proceeding). The language of the order setting out the terms under which the respondent may purge himself must be clear and unambiguous. Ex parte Garcia, 831 S.W.2d 1, 2 (Tex. App.—El Paso 1992, orig. proceeding).
An order for civil contempt may exempt a contemner from “good time” credit. See Ex parte Acly, 711 S.W.2d at 628; In re Parks, 264 S.W.3d at 61, n.1.
There is no particular form required for a commitment order. Ex parte Barnett, 600 S.W.2d 252, 256 (Tex. 1980) (orig. proceeding); Ex parte Johns, 807 S.W.2d 768, 774 (Tex. App.—Dallas 1991, orig. proceeding). Both an order of contempt and an order of commitment are required to incarcerate a respondent. The court may execute a single written order both finding the respondent in contempt and ordering confinement. See Ex parte Hernandez, 827 S.W.2d 858, 858 (Tex. 1992) (orig. proceeding) (per curiam). However, the order must contain a specific directive to an officer to take the contemner into custody. An order “for commitment to county jail” including language that “all writs and other process necessary for the enforcement of this order be issued” is inadequate. In re Ruiz, No. 02-13-00148-CV, 2013 WL 2338614 (Tex. App.—Fort Worth May 30, 2013, orig. proceeding) (mem. op.).
The commitment order must state the length, time, and conditions of incarceration. Ex parte Hernandez, 726 S.W.2d 651, 651–52 (Tex. App.—Eastland 1987, orig. proceeding). The commitment order directs the bailiff or other officer to take a person to jail or prison and to detain him there. See Ex parte Hernandez, 726 S.W.2d at 652. An arrest without a written commitment order made for the purpose of enforcing a contempt judgment is considered an illegal restraint. Ex parte Calvillo Amaya, 748 S.W.2d 224, 225 (Tex. 1988) (orig. proceeding). A commitment order increasing the punishment imposed by contempt order is void. Ex parte Swate, 922 S.W.2d 122, 124–25 (Tex. 1996) (orig. proceeding).
The court may order a person detained by the sheriff or bailiff for a short and reasonable time to allow for the preparation of the judgment of contempt and order of commitment. Ex parte Barnett, 600 S.W.2d at 257. But see Ex parte Jordan, 865 S.W.2d 459 (Tex. 1993) (orig. proceeding) (per curiam) (three days too long to hold contemner without written contempt order); In re Linan, 419 S.W.3d 694 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding) (four days too long to restrain contemner before any order signed); Ex parte Calvillo Amaya, 748 S.W.2d at 225 (detaining respondent Friday to Monday without commitment order was improper); see also Ex parte Morgan, 886 S.W.2d 829, 832 (Tex. App.—Amarillo 1994, orig. proceeding) (in visitation contempt case, court may not order confinement without written judgment and written commitment order).
On finding a respondent in contempt for failure to pay child support or to comply with an order for possession of or access to a child, the court may suspend commitment and place the respondent on community supervision. Tex. Fam. Code § 157.165. The initial period of community supervision may not exceed ten years. The court may continue the community supervision thereafter until the earlier of the second anniversary of the date on which the community supervision first exceeded ten years or the date on which all child support, including arrearages and interest, has been paid. Tex. Fam. Code § 157.212.
The terms and conditions of community supervision may include the requirement that the respondent report to the community supervision officer as directed; permit the community supervision officer to visit the respondent at the respondent’s home or elsewhere; obtain counseling on financial planning, budget management, conflict resolution, parenting skills, alcohol or drug abuse, or other matters causing the respondent to fail to obey the order; pay required child support and any child support arrearages; pay court costs and attorney’s fees ordered by the court; seek employment assistance services offered by the Texas Workforce Commission; and participate in mediation or other services to alleviate conditions that prevent the respondent from obeying the court’s order. Tex. Fam. Code § 157.211. The list of conditions promulgated in section 157.211 may be exclusive. See In re Pierre, 50 S.W.3d 554, 559 (Tex. App.—El Paso 2001, orig. proceeding). In the absence of any evidence of drug abuse and any correlation to a respondent’s ability to comply with the child support order, it is an abuse of discretion for a trial court to require the respondent to submit to drug and alcohol testing. In re Pierre, 50 S.W.3d at 559.
There is no statutory authority to award fees in contempt cases generally. See In re Daugherty, No. 05-18-00290-CV, 2018 WL 3031658, at *5 (Tex. App.—Dallas June 19, 2018, orig. proceeding) (mem. op.) (absent contractual or statutory basis, trial court lacks authority to award attorney’s fees based on finding of contempt).
Statutory provisions for the award of attorney’s fees in specific enforcement proceedings are discussed in the following sections of this manual: 31.14 (property division), 32.9 (spousal maintenance), 33.17 (child support), and 34.15 (possession and access).
[Sections 35.65 through 35.70 are reserved for expansion.]
VIII. Revocation of Suspended Commitment
§ 35.71Filing Motion to Revoke
A prosecuting attorney, the title IV-D agency, a domestic relations office, or a party affected by the order may file a verified motion alleging specifically that certain conduct of the respondent violates the terms and conditions of community supervision. Tex. Fam. Code § 157.214.
If the verified motion to revoke alleges a prima facie case that the respondent has violated a term or condition of community supervision, the court may order the respondent’s arrest by warrant. If the court issues a warrant for the respondent’s arrest, the respondent shall be brought promptly before the court ordering the arrest. Tex. Fam. Code § 157.215.
A hearing must be held not later than the third working day after the respondent’s arrest, if possible, and not later than the seventh working day after the respondent is arrested, after which the court may continue, modify, or revoke the community supervision. Tex. Fam. Code § 157.216.
The motion to revoke must be filed before the period of suspension has terminated. See Nicklas v. State, 530 S.W.2d 537, 540–41 (Tex. Crim. App. 1975); In re Arpe, No. 11-18-00073-CV, 2018 WL 1750920 (Tex. App.—Eastland Apr. 12, 2018, orig. proceeding) (mem. op.); Ex parte Spikes, 909 S.W.2d 245, 247 (Tex. App.—Amarillo 1995, no writ).
Contempt orders frequently order the respondent to appear at periodic compliance hearings to determine whether the respondent has complied with the terms of a suspended commitment contained therein. However, such orders setting compliance hearings are not sufficient notice to the respondent that allegations of noncompliance will be made or what they will be. In In re Zandi, one of the conditions of the obligor’s suspension was that he appear in court every six months for a “status hearing.” At such a hearing, the obligee moved to revoke the obligor’s suspension based on nonpayment of support, even though she had not filed a written motion to revoke. The supreme court granted the obligor’s petition for habeas corpus, setting aside the trial court’s revocation order. The order setting a status hearing is notice of the hearing but does not provide the respondent the required prior notice that revocation will be sought and what specific complaints will be alleged. In re Zandi, 270 S.W.3d 76 (Tex. 2008) (orig. proceeding) (per curiam); see also In re Blumenthal, No. 01-21-00130-CV, 2021 WL 4848471, at *4 (Tex. App.—Houston [1st Dist.] Oct. 19, 2021, orig. proceeding) (per curiam) (mem. op.) (notice requirement not met when court set compliance hearing regarding protective order); In re Wal-Mart Stores, Inc., 545 S.W.3d 626, 630–32 (Tex. App.—El Paso 2016, orig. proceeding) (notice requirement not met through show-cause hearing following order compelling discovery production).
Attaching the prior contempt order specifying punishment to an order revoking suspension is sufficient notice of the relief granted. A revocation order need not satisfy all technical requirements of the original contempt order. In re Fountain, 433 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding).
The detailed pleading requirements required in original enforcement proceedings do not apply to revocation proceedings that do not involve additional contemptuous acts, as explained by the court in Fountain:
There is no reason to deprive trial courts of such flexibility in the enforcement of their orders. A heightened procedural standard is justified for contempt proceedings in the first instance, especially when incarceration of the respondent is a potential result. But once there has been a judgment of contempt, there is no requirement that the same heightened measure of process be provided in order to adjudicate an allegation that the conditions of a suspended judgment have been violated. Instead, like the analogous circumstance of an appeal from the revocation of probation in a criminal proceeding, we review the trial court’s ruling for an abuse of discretion.
In re Fountain, 433 S.W.3d at 8.
In a proceeding to revoke community supervision, the court must determine whether incarceration is a possible result of the proceedings. If so, the court must inform an unrepresented respondent of the right to be represented by an attorney and, if the respondent is indigent, of the right to the appointment of an attorney. Tex. Fam. Code § 157.163(a), (b); Ex parte Acker, 949 S.W.2d 314, 316 (Tex. 1997) (orig. proceeding). If the court determines that an alleged contemnor is not indigent and, thus, not entitled to appointed counsel, the court must give the accused time to obtain retained counsel. In re Fox, No. 01-19-00155-CV, 2019 WL 2292632 (Tex. App.—Houston [1st Dist.] May 30, 2019, orig. proceeding) (mem. op.).
The fact that the respondent was informed about his right to an attorney must appear on the record. In re Dooley, 129 S.W.3d 277, 279 (Tex. App.—Corpus Christi–Edinburg 2004, orig. proceeding); see Ex parte Keene, 909 S.W.2d 507, 508 (Tex. 1995) (orig. proceeding) (per curiam). In the absence of an admonishment by the court, the respondent’s statement that she could not afford an attorney and “would have to do the best she could” did not constitute a waiver of right to counsel. In re Rivas-Luna, 528 S.W.3d 167, 171 (Tex. App.—El Paso 2017, orig. proceeding).
If the court determines that the respondent will not be incarcerated as a result of the proceedings, the court may require an indigent respondent to proceed without an attorney. Tex. Fam. Code § 157.163(c).
The burden of proof to justify the revocation of a suspension of commitment is a preponderance of the evidence, meaning the greater weight of the credible evidence that would create a reasonable belief that the respondent violated a condition of the suspension of commitment. In re Fountain, 433 S.W.3d 1, 9 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding); Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006) (revocation of probation). The trial court is the exclusive judge of the credibility of the witnesses and must determine whether the allegations in the motion to revoke are sufficiently demonstrated. In re Fountain, 433 S.W.3d at 9.
In a revocation proceeding, the court can infer the ultimate facts at issue based on other evidence presented. See Rickels, 202 S.W.3d at 763–64. In Rickels, the terms of probation prohibited the defendant from going within 300 feet of where children congregate. The front yard and front door of his leased house were within 300 feet of a school, but the rest of the house was over 300 feet away. The court of criminal appeals upheld the revocation of his probation, finding the trial court could have inferred the ultimate fact that he was within 300 feet of the school from the basic fact that his front yard and front door were within 300 feet of this line, even in the absence of direct evidence that he walked through his front door or stood in his front yard.
Proof of any one alleged violation is sufficient to support an order revoking community supervision. In re B.C.C., 187 S.W.3d 721 (Tex. App.—Tyler 2006, no pet.). In In re B.C.C., the petitioner offered evidence that he was indigent and unable to pay child support. The court held that such an argument is an affirmative defense to a contempt allegation and is not relevant in a motion to revoke community supervision. Since the petitioner admittedly did not make child support payments, the court did not abuse its discretion in revoking his community supervision.
[Sections 35.77 through 35.80 are reserved for expansion.]
A contempt judgment is reviewable only by a petition for writ of habeas corpus (if the contemner is confined) or by a petition for writ of mandamus (if no confinement is involved). See In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding) (per curiam). See section 27.16 of this manual for a discussion regarding review of contempt orders by mandamus.
Decisions in contempt proceedings cannot be reviewed on appeal because contempt orders are not appealable, even when appealed along with a judgment that is appealable. Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex. App.—Fort Worth 2001, pet. denied). However, requests for clarifications of orders are distinct from requests for enforcement by contempt and are reviewable by appeal. In re A.C.P., No. 14-17-00896-CV, 2018 WL 6053503, at *2 (Tex. App.—Houston [14th Dist.] Nov. 20, 2018, no pet.) (mem. op.).
§ 35.82Nature of Habeas Corpus Remedy
In family law cases, the writ of habeas corpus for adults is used to test the validity of the order by which a person is found to be in contempt of court and has been subjected to a sufficient restraint of his liberty. The writ is available if, for any reason, the order was void because it was beyond the power of the court to grant the order or if the relator (person seeking the writ) was not afforded due process in the original proceeding resulting in his incarceration and is illegally restrained in his liberty. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (orig. proceeding) (per curiam). When a jail sentence is probated without any type of tangible restraint of liberty, a contemner is not restrained for purposes of habeas corpus relief. In re Kuster, 363 S.W.3d 287, 292 (Tex. App.—Amarillo 2012, orig. proceeding).
The level of restraint required to warrant habeas relief seems to vary among the appellate courts. If the relator has been held in contempt and ordered to be committed to the county jail but has not actually been incarcerated at the time of filing of the petition, the relator should seek mandamus relief in the alternative. See Ex parte Brister, 801 S.W.2d 833, 835 (Tex. 1990) (orig. proceeding) (probated thirty-day sentence with conditions of payment of fees, participation in counseling, and sixty days’ house arrest sufficient restraint to pursue habeas relief); see also In re Hightower, 531 S.W.3d 884, 887 n.3 (Tex. App.—Texarkana 2017, orig. proceeding) (relator sufficiently restrained when court issued commitment order, although relator had not been incarcerated).
Habeas corpus is a collateral, rather than a direct, attack on the contempt judgment, the purpose of which is not to determine the final guilt or innocence of the relator but to ascertain whether the relator has been confined unlawfully. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979, orig. proceeding); In re Parks, 264 S.W.3d 59 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding). The order is presumed valid.
A court of appeals has no jurisdiction to weigh the proof that resulted in a conviction. Rather, it determines only if the judgment is void because, for example, the relator has been confined without a hearing or with no evidence of contempt to support his confinement. See In re Daugherty, No. 05-17-01129-CV, 2018 WL 3031705, at *5 (Tex. App.—Dallas June 19, 2018, orig. proceeding) (mem. op.).
The petitioner in a habeas proceeding must conclusively establish his inability to pay each child support payment as it accrued to invalidate a criminal contempt judgment. If the petitioner fails to carry that burden as to even one delinquent payment, the criminal contempt judgment is not void. Ex parte Ramon, 821 S.W.2d 711, 713 (Tex. App.—San Antonio 1991, no writ).
COMMENT: When pursuing habeas relief, the practitioner should scour the record for deficiencies in the specificity of the order, the evidence of violations of the order, and evidence of the relator’s ability to comply with the order.
§ 35.83Bases for Habeas Corpus Relief
The commitment order may be held void if any one of the following applies:
1.The relator did not receive ten days’ notice of the proceeding. In re Chambers, No. 05-18-00031-CV, 2018 WL 833382 (Tex. App.—Dallas Feb. 12, 2018, orig. proceeding) (mem. op.).
2.The relator was not informed of the right to counsel when faced with the possibility of being ordered to jail. Ex parte Acker, 949 S.W.2d 314, 316 (Tex. 1997) (orig. proceeding); Ex parte Gunther, 758 S.W.2d 226, 227 (Tex. 1988) (orig. proceeding) (per curiam); In re Aarons, 10 S.W.3d 833, 833–34 (Tex. App.—Beaumont 2000, orig. proceeding).
3.The relator was not given court-appointed counsel when entitled to the appointment of an attorney because of indigency. The burden of proof of entitlement to court-appointed counsel is on the relator. In re Pruitt, 6 S.W.3d 363, 364–65 (Tex. App.—Beaumont 1999, orig. proceeding). If incarceration is a possibility and the alleged contemner requests appointed counsel, the court may hear evidence to determine indigency; the court must appoint counsel if it determines that the alleged contemner is indigent. Failure to attempt to borrow money from relatives cannot be considered a factor in determining indigency. In re Luebe, 983 S.W.2d 889, 890–91 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding).
4.The relator was denied the right to trial by jury, and the possible sentence for alleged contempt is more than six months’ incarceration. Ex parte Sproull, 815 S.W.2d 250, 250 (Tex. 1991) (orig. proceeding) (per curiam).
5.The relator was committed to jail without both a written judgment of contempt and a written order of commitment. Ex parte Hernandez, 827 S.W.2d 858, 858 (Tex. 1992) (orig. proceeding) (per curiam); see also Ex parte Barnett, 600 S.W.2d 252, 256 (Tex. 1980) (orig. proceeding). The court has a limited amount of time in which to issue its written commitment order. Ex parte Whitehead, 908 S.W.2d 68, 70 (Tex. App.—Houston [1st Dist.] 1995, orig. proceeding). Five days is too long to hold the relator without a written order of commitment. Ex parte Seligman, 9 S.W.3d 452, 454 (Tex. App.—San Antonio 1999, orig. proceeding). Three days, including over the weekend, is too long to hold the relator without a written order of commitment. Ex parte Jordan, 865 S.W.2d 459 (Tex. 1993) (orig. proceeding) (per curiam) (citing Ex parte Calvillo Amaya, 748 S.W.2d 224, 225 (Tex. 1988) (orig. proceeding)).
6.The order that the relator is found to have violated is not sufficiently specific. If the relator cannot read the order and readily know what he is ordered to do or not to do, the commitment is void. Ex parte Slavin, 412 S.W.2d 43, 44–45 (Tex. 1967) (orig. proceeding); see Ex parte Brister, 801 S.W.2d 833, 834 (Tex. 1990) (orig. proceeding); Ex parte Chambers, 898 S.W.2d 257, 260 (Tex. 1995) (orig. proceeding).
7.The commitment order states the relator may purge himself of contempt by performing certain acts but is not sufficiently specific as to what those acts are. Ex parte Carlton, 443 S.W.2d 61, 63 (Tex. App.—Houston [14th Dist.] 1969, orig. proceeding).
8.The commitment order requires the relator to pay amounts that the relator was not held in contempt for failure to pay. In re O’Keeffe, No. 05-18-00371-CV, 2018 WL 2296495 (Tex. App.—Dallas May 21, 2018, orig. proceeding) (mem. op.) (portion of order that included attorney’s fees and costs awarded as part of amount required for relator to purge contempt void because relator was not held in contempt for failing to pay those fees and costs; additionally, those fees and costs were not due until approximately thirty days after relator would be released, and party may not be confined for failure to pay judgment that is not yet due).
9.The judgment the relator violated is one that creates a debt. In re Green, 221 S.W.3d 645 (Tex. 2007) (orig. proceeding) (per curiam); Ex parte Prickett, 320 S.W.2d 1, 3 (Tex. 1958) (orig. proceeding). Incarceration for failure to pay child support or attorney’s fees taxed as costs in a proceeding to enforce child support is not imprisonment for debt. Ex parte Helms, 259 S.W.2d 184, 188–89 (Tex. 1953) (orig. proceeding); see also Ex parte Binse, 932 S.W.2d 619, 621 (Tex. App.—Houston [14th Dist.] 1996, orig. proceeding).
10.The relator is incarcerated pursuant to a coercive contempt commitment order and is, through no fault of his own, unable to obey the order. Ex parte Gonzales, 414 S.W.2d 656, 657 (Tex. 1967) (orig. proceeding); In re Smith, 354 S.W.3d 929 (Tex. App.—Dallas 2011, orig. proceeding).
11.The relator is found in contempt of court in absentia. Tex. Fam. Code § 157.066; In re Daniels, No. 05-17-01260-CV, 2017 WL 6503107 (Tex. App.—Dallas Dec. 19, 2017, orig. proceeding) (mem. op.).
12.The commitment order incarcerating the relator was not based on relief pleaded for by the petitioner in the enforcement action. In re Parks, 264 S.W.3d 59 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding); In re Smith, 981 S.W.2d 909, 911 (Tex. App.—Houston [1st Dist.] 1998, orig. proceeding); Ex parte Barlow, 899 S.W.2d 791, 795–96 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding); see also Tex. Fam. Code § 157.002(a)(3).
13.The court that issued either the original order or the commitment order lacked personal or subject-matter jurisdiction. Ex parte Helle, 477 S.W.2d 379, 385 (Tex. App.—Corpus Christi–Edinburg 1972, orig. proceeding).
14.The document with which the relator allegedly failed to comply was, by its own terms, not an order of the court. In re Hightower, 531 S.W.3d 884, 887–89 (Tex. App.—Texarkana 2017, orig. proceeding) (document was “draft” that was “subject to revision”; even if document were construed as order of court, it contained no command language setting out terms of compliance).
15.The relator was held in contempt for violating a temporary injunction when the court failed to set bond and did not expressly waive the requirement of a bond. In re McCray, 05-13-01195-CV, 2013 WL 5969581, at *2 (Tex. App.—Dallas Nov. 7, 2013, orig. proceeding) (mem. op.); see In re Lemons, 47 S.W.3d 202, 206 (Tex. App.—Beaumont 2001, orig. proceeding) (per curiam).
§ 35.84Jurisdiction for Habeas Corpus
An original habeas corpus proceeding can be filed in any of the following courts:
1.The trial court. Tex. Const. art. V, § 8; Tex. Gov’t Code § 24.008.
2.The court of appeals. Tex. Gov’t Code § 22.221(d).
3.The supreme court. Tex. Gov’t Code § 22.002(e).
The writ is directed to the officer having custody of the relator, and notice to others is not mandatory. Ex parte Ramzy, 424 S.W.2d 220, 223 (Tex. 1968) (orig. proceeding). Notice of hearing is customarily given to the other interested parties. If the basis for the writ is the relator’s present inability to purge himself, such writs are usually filed in the trial court.
§ 35.85Habeas Corpus Procedure in Appellate Court
Habeas corpus is an original proceeding in the appellate court. The petition is captioned “In re [name of party seeking relief], Relator.” Tex. R. App. P. 52.1.
The petition must include a statement describing how and where the relator is being deprived of liberty and an appendix, among other things, as are set out in detail in rule 52.3. The appendix required in rule 52.3 must contain proof that the relator is being restrained. Tex. R. App. P. 52.3(k)(1)(D). If the petition is filed in the supreme court after the same relief was requested in the court of appeals, the petition must give details of the action in the lower court. Tex. R. App. P. 52.3(d)(5). If the petition is filed first in the supreme court, the petition must state the compelling reason that the petition was not first presented to the court of appeals. Tex. R. App. P. 52.3(e). The person filing the petition must certify that he has reviewed it and concluded that every factual statement in it is supported by competent evidence included in the appendix or record. Tex. R. App. P. 52.3(j).
Any party may file a response, but it is not mandatory. Tex. R. App. P. 52.4. The court may deny relief without requesting or receiving a response. However, the court must request a response before granting relief. Tex. R. App. P. 52.8(a), (b).
If temporary relief is requested, the relator must notify or show a diligent effort to notify all parties by expedited means of the motion for the emergency temporary relief; further, the relator must so certify to the court before the temporary relief will be granted. Tex. R. App. P. 52.10.
If the court denies relief to a relator who has been released on bond, the court must remand the relator to custody and issue an order of commitment. If the relator is not returned to custody, the court may declare the bond forfeited and render judgment against the surety. Tex. R. App. P. 52.8(a).
If the court is of the tentative opinion that the relator is entitled to relief or that a serious question concerning the relief requires further consideration, the court must request a response if none has been filed, may request full briefing, may order that the relator be discharged on execution and filing of a bond in an amount set by the court, and may set the case for oral argument. Tex. R. App. P. 52.8(b).
The court is not required to issue an opinion if relief is denied but must write an opinion if relief is granted. Tex. R. App. P. 52.8(d). Any party may file a motion for rehearing within fifteen days after the final order is rendered. The motion for rehearing must clearly state the points relied on for the rehearing. Tex. R. App. P. 52.9.