Opinion by Justice Fillmore

Original Proceeding from the 254th Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-05-19243

MEMORANDUM OPINION

Before Justices Bridges, Fillmore, and Schenck
Opinion by Justice Fillmore

On the Court's own motion, we withdraw and vacate our prior opinions and orders dated May 9, 2017, and June 30, 2017. The following is now the opinion of the Court.

Relator Loren Todd Hayes is confined in the Dallas County jail as a result of the trial court's March 6, 2017 order holding him in criminal and civil contempt for failing to pay court-ordered child support. Relator filed his petition for writ of habeas corpus on May 5, 2017 claiming the underlying commitment order is void and his due process rights are being violated. He seeks to be discharged from confinement. We denied the petition because the record did not show that relator was in custody at the time of filing the petition and did not include a transcript of the trial court's March 6, 2017 hearing. Relator filed proof of current confinement and a reporter's record with his May 29, 2017 motion for rehearing, which is now before the Court. By order dated June 8, 2017, we requested the real party in interest and respondent to file responses to the motion for rehearing and the petition for writ of habeas corpus by June 15, 2017. No responses were filed. We grant relator's motion for rehearing and deny relator's petition for writ of habeas corpus.

Procedural History

Relator's divorce was finalized on June 29, 2007. The final decree ordered relator to pay monthly child support. By May 2008, relator was in arrears on those payments. In a May 1, 2008 order enforcing the child support obligation, the trial court found relator in contempt but suspended a commitment to county jail and placed him on community supervision. By November 2009, relator was $21,435.61 in arrears. In a November 19, 2009 order, the trial court granted judgment on the arrearages against relator and ordered him to pay $200.00 a month until the judgment was satisfied in full or "on termination of the child support obligation for any child the subject of this suit." The court continued the 2008 suspension of its commitment order and continued relator's community supervision. The court entered a similar order on December 2, 2013. By December 2014, relator's arrearages had reached $34,440.29. On December 8, 2014, the trial court entered an order enforcing the child support obligation but again suspended the commitment, placed relator on community supervision, and set up a monthly payment plan. Following the 2014 order, it appears relator paid monthly until he lost his job and failed to pay the October, November, and December 2016 payments and the January 2017 payment. As a result, the Dallas County Domestic Relations Office moved to revoke relator's community supervision and to enforce the child support order.

Relator appeared in person and through counsel at the March 6, 2017 hearing on the motion to revoke. Relator testified that he missed the four payments because he lost his job and could not pay. In the past he could only find work paid through straight commissions. But he testified that he was able to pay and did pay his child support obligations when he was employed, sometimes more than the monthly amount required, but he could not pay during times of unemployment. He also testified that he had been employed as a salaried employee since January 2017 and could now make the monthly payments. This was the first salaried job he has had in a number of years, so the child support obligations could be deducted automatically by the State from his paycheck. Relator testified that if he is confined in jail he will lose his job and be unable to pay monthly child support and the arrearages. The evidence showed that relator was required to pay $13,300.00 between November 2014 and the date of the hearing and had paid $12,286.54 during that time.

In a March 6, 2017 order, the trial court granted the motion to revoke, and relator was taken into custody. The court ordered relator to remain in custody for 180 days and until relator has paid the full child support arrearages of $34,440.29 and $208.00 in fines and court costs. Specifically, the order states that the court revokes the community supervision and orders the following:

(a). that Obligor shall be committed and confined in the County Jail of Dallas County, TX., for 180 days, and

(b). until such time as Obligor has paid the court fine to the Dallas County Domestic Relations Office, in the amount of $100.00, as imposed and ordered on December 2, 2013; and

(c). until such time as Obligor has paid the full child support arrearages of $34,440.29; and

(d). until such time as Obligor has paid the full amount of $108.00 as costs of Court to the Dallas County District Clerk.

Standard of Review

This original habeas corpus proceeding is a collateral attack on a contempt judgment. See Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967). The purpose of a habeas corpus proceeding is not to determine the ultimate guilt or innocence of the relator, but only to ascertain whether the relator has been unlawfully confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). In a habeas corpus proceeding, the order or judgment challenged is presumed to be valid. Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex. App.—Houston [1st Dist.] 1990, orig. proceeding). A relator bears the burden to show that the contempt order is void and not merely voidable. In re Pruitt, 6 S.W.3d 363, 364 (Tex. App.—Beaumont 1999, orig. proceeding). An appellate court may order the contemnor released only if the judgment is void because of a lack of jurisdiction or because the contemnor was deprived of liberty without due process of law. In re Lausch, 177 S.W.3d 144, 150 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding); In re Houston, 92 S.W.3d 870, 875-76 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding). "Although the Texas Constitution provides that 'no person shall ever be imprisoned for debt,' see TEX. CONST. art. 1, § 18, a person may be confined under a court's contempt powers for failing to pay child support because the obligation to support a child is viewed as a legal duty and not as a debt." Ex Parte Coronado, No. 13-09-00149-CV, 2009 WL 961948, at * 2 (Tex. App.—Corpus Christi April 9, 2009, orig. proceeding) (mem. op.) (citing In re Henry, 154 S.W.3d 594, 596 (Tex. 2005)).

Applicable Law

There are two forms of contempt: civil and criminal. The distinction between civil and criminal contempt is based on the nature and purpose of the penalty imposed. Ex parte Johns, 807 S.W.2d 768, 770 (Tex. App.—Dallas 1991, orig. proceeding). In some instances, such as this case, the "proceeding partakes of the nature of both." See Ex parte Hosken, 480 S.W.2d 18, 23 (Tex. App.—Beaumont 1972, orig. proceeding). The purpose of civil contempt is to secure one's compliance with an order or decision of the court. Id. "For example, if one is placed in jail until he performs an act that he was previously ordered to perform, then the resulting contempt is civil in nature." In re Scariati, 988 S.W.2d 270, 272-73, n.1 (Tex. App.—Amarillo 1998, orig. proceeding) (citing Ex parte Raymer, 644 S.W.2d 889, 890 (Tex. App.—Amarillo 1982, orig. proceeding) (exemplifying the difference between civil and criminal contempt)). "A judgment which provides that a contemnor is to be committed unless and until he performs the affirmative act required by the court's order is a civil contempt order. This type of conditional penalty is civil because it is designed to compel the doing of some act." Ex parte Johns, 807 S.W.2d at 770-71 (citing Hicks v. Feiock, 485 U.S. 624, 630 (1988)). A civil contemnor "carries the keys of his imprisonment in his own pocket" because he can avoid incarceration by obeying the court's order and purging himself of the contempt. Shillitani v. United States, 384 U.S. 364, 368 (1966); Ex parte Werblud, 536 S.W.2d 542, 545 (Tex. 1976). A court may impose a fine, imprisonment, or both in a civil contempt order so long as the imprisonment is conditional. Ex parte Johns, 807 S.W.2d at 770-71. A civil contempt order can impose a determinate sentence as long as the order contains a "purge clause." Id. (citing Shillitani, 384 U.S. at 370 n.6).

In contrast, a criminal contempt order is punitive in nature and is an exertion of the court's inherent power to punish a party for "some completed act which affronted the dignity and authority of the court." Ex parte Johns, 807 S.W.2d at 771 (quoting Werblud, 536 S.W.2d at 545). Criminal contempt orders generally require the individual to be incarcerated for a finite period and that period is unaffected by the individual's performance of any future act. In re Scariati, 988 S.W.2d at 272, n.1.; Ex parte Hoskens, 480 S.W.2d at 23. In criminal contempt proceedings, the contemnor is being punished for his improper actions "and no subsequent voluntary compliance on the part of the defendant can enable him to avoid punishment for his past acts." Ex parte Johns, 807 S.W.2d at 771 (quoting Ex parte Hosken, 480 S.W.2d at 23). A judge can impose a fine or imprisonment or both in a criminal contempt order. Id. The distinguishing feature of criminal contempt is that the penalty is unconditional. Id.

Analysis

The trial court's March 6, 2017 order is criminal in nature because it imposes confinement for relator's past failure to make child support payments, and also civil in nature because it provides for further confinement until relator purges the contempt by paying the arrearages. See, e.g., Ex parte Coronado, 2009 WL 961948, at *2. We will address each in turn.

A. The sentence for criminal contempt

The trial court's 180-day sentence is a criminal contempt order because it punishes relator for violating the enforcement order, and failing to make the October 2016 through December 2016 payments and the January 2017 payment, without providing a means for relator to purge himself of that contempt. See, e.g., In re Scariati, 988 S.W.2d at 272, n.1 (order was one for criminal contempt because relator was sentenced "to jail for six months for not maintaining health insurance for his children and the sentence was not subject to being reduced upon his obtaining such insurance").

A criminal contempt conviction for violation of a court order requires proof beyond a reasonable doubt of: (1) a reasonably specific order; (2) a violation of the order; and (3) the willful intent to violate the order. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995) (orig. proceeding). "Noncompliance with an unambiguous order of which one has notice will ordinarily raise an inference that the noncompliance was willful." Id. at 261. "The involuntary inability to comply with an order is a valid defense to criminal contempt, for one's noncompliance cannot have been willful if the failure to comply was involuntary." Id. The relator bears the burden of proving his inability to comply. Id.

In reviewing a criminal contempt order, the appellate court does not weigh the evidence, but determines only if there is "no evidence to legitimize the relator's confinement." In re Lausch, 177 S.W.3d at 155. The issue is whether the relator has conclusively established that he was involuntarily unable to pay. Id. To prove the defense of inability to pay, relator must have conclusively shown that he was unable to pay each time payment was due under the support order. Ex parte Williams, 704 S.W.2d 465, 467-68 (Tex. App.—Houston [1st Dist.] 1986, orig. proceeding) (citing Ex parte DeWees, 146 Tex. 564, 210 S.W.2d 145 (1948)).

A person cannot be held in contempt for failing to pay child support if he establishes that he (1) lacked the ability to provide support in the amount ordered; (2) lacked property that could be sold, mortgaged, or otherwise pledged to raise the needed funds; (3) attempted unsuccessfully to borrow the needed funds; and (4) knew of no source from which the money could be borrowed or legally obtained. In re Lausch, 177 S.W.3d at 155-56 (citing TEX. FAM. CODE ANN. § 157.008(c)(1)-(4) (Vernon 2002)). In the context of criminal and civil contempt, the contemnor must establish all four elements of the defense to establish a void order. In re Smith, 354 S.W.3d 929, 930-31 (Tex. App.—Dallas 2011, orig. proceeding); In re Mancha, 440 S.W.3d 158, 167 (Tex. App.—Houston [14th Dist.] 2013, orig. proceeding); In re Lausch, 177 S.W.3d at 156; In re Hammond, 155 S.W.3d 222, 228 (Tex. App.—El Paso 2004, orig. proceeding) (citing Ex parte Rojo, 925 S.W.2d 654, 655-56 (Tex. 1996)); Ex parte Williams, 704 S.W.2d at 467-68.

Here, relator admitted not making the October 2016 through December 2016 payments and January 2017 payment and stated that he understood his obligation to pay. He presented evidence he had not made the payments because he was unemployed. He did not, however, present evidence on any other element of section 157.008(c) of the family code. See TEX. FAM. CODE ANN. § 157.008(c)(1)-(4) (West 2014). We reject relator's argument that he did not have notice of the necessity of providing such evidence. Relator was represented by counsel at the hearing, and relator put on some evidence of his inability to pay. Moreover, neither relator nor his counsel asked the court for leave to amend the pleadings to include the affirmative defense of inability to pay or to supplement the record with additional evidence. Similarly, relator did not seek reconsideration from the trial court. Simply put, the facts concerning relator's ability to pay were not fully developed before the trial court and relator did not meet his burden to prove the affirmative defense of inability to pay. He is, therefore, not entitled to habeas relief regarding the trial court's criminal contempt order.

B. Relator was not entitled to a jury trial.

Relator also complains that his due process rights were violated by the trial court because he was not admonished of his right to a jury trial. An absolute right to trial by jury in contempt proceedings does not exist. In re Newby, 370 S.W.3d 463, 466 (Tex. App.—Fort Worth 2012, orig. proceeding). However, an alleged contemnor possesses such a right in criminal contempt cases in which the punishment assessed is "serious." Id. Punishment for criminal contempt in excess of 180 days confinement is considered "serious" and may not be assessed in the absence of a jury trial or a jury waiver. Id. But punishment for a single act of contempt within the limits of section 21.002(b) of the Texas Government Code (i.e., a fine of not more than $500 or confinement in the county jail for not more than six months or both) is characterized as "petty." Id.; Ex parte Werblud, 536 S.W.2d at 546-47; see also TEX. GOV'T CODE ANN. § 21.002(b) (West 2004).

Here, the court found four violations of the prior enforcement order and ordered relator to serve a single, 180-day sentence and ordered him to pay a $100.00 fine. Because this sentence is within the limits of section 21.002(b) of the government code, it is considered a petty offense and relator was not entitled to a jury trial. See, e.g. In re Spradley, No. 05-05-01068-CV, 2005 WL 1950976, at *1 (Tex. App.—Dallas Aug. 16, 2005, orig. proceeding) (mem. op.) (concluding relator not entitled to a jury trial because the 175-day sentence did not exceed six months and $500 fine per offense that became aggregated fine of $6,000 did not "transform a petty offense into a serious one."); Ex parte Werblud, 536 S.W.2d at 547 ("Cases of criminal contempt, where the sentence actually imposed does not exceed six months imprisonment, are exempted from the requirements of a jury trial."). Accordingly, relator was not entitled to an admonishment concerning a right to a jury trial, and the trial court did not violate a due process right of relator by failing to provide the admonishment.

C. The civil contempt order

The requirement that relator remain in jail until he pays the full amount of child support arrearages is a civil contempt order because he can secure his release by paying the arrearages. See, e.g. Ex parte Johns, 807 S.W.2d at 771 (confinement order was a civil contempt order where contemnor would be released upon payment of child support arrearages). A contempt order imposing a coercive restraint is void and subject to collateral attack by habeas corpus if the condition for purging the contempt is impossible to perform. In re Smith, 354 S.W.3d at 930-31 (citing Ex parte Dustman, 538 S.W.2d 409, 410 (Tex. 1976) (orig. proceeding)). In other words, "a person cannot be incarcerated indefinitely for contempt if he or she does not have the ability to perform the condition required for release." In re Brownhill, No. 14-07-00346-CV, 2007 WL 1624776, at *2 (Tex. App.—Houston [14th Dist.] June 7, 2007, orig. proceeding) (mem. op.); Ex parte Rojo, 925 S.W.2d at 655-56.

If there is a valid criminal contempt sentence, however, a challenge to the validity of the civil portion of the order is premature until the criminal contempt has been served. In re Foreman, No. 05-15-01376-CV, 2015 WL 7717439, at *1 (Tex. App.—Dallas Nov. 23, 2015, orig. proceeding) (mem. op.); In re Scariati, 988 S.W.2d at 273; Ex parte Occhipenti, 796 S.W.2d 805, 810 (Tex. App.—Houston [1st Dist.] 1990, orig. proceeding). If the contemnor remains in jail after serving the criminal contempt because he has not purged the civil contempt, another habeas proceeding may be brought at that time. Ex parte Johns, 807 S.W.2d at 771. The rationale underlying this rule is that the contemnor has the opportunity to avoid spending any additional time in jail by purging the civil contempt portion of the order while serving the criminal contempt sentence. Id. Furthermore, the trial court may conduct further hearings on the relator's present ability to pay. See, e.g., Ex parte Rogers, No. 01-86-00796-CV, 1987 WL 17273, at *2 (Tex. App.—Houston [1st Dist.] Aug. 20, 1987, orig. proceeding) (not designated for publication) (granting writ of habeas corpus and ordering trial court to conduct a hearing to determine whether relator is presently able to comply with the conditions required by the trial court to purge himself of contempt where relator had served 30-day criminal contempt sentence and sought hearing as to ability to pay regarding civil contempt); cf. Ex parte Jones, 602 S.W.2d 400, 402 (Tex. Civ. App.—Waco 1980, orig. proceeding) (suggesting that relator file motion to modify or vacate criminal contempt order in the trial court and present evidence of inability to pay at hearing on motion).

Because we have sustained the criminal contempt portion of the trial court's order, our consideration of relator's complaint about the civil contempt portion of the order is premature. See, e.g., In re Foreman, 2015 WL 7717439, at *1 (relator must fully serve the criminal portion of his sentence before he may challenge the civil contempt order); see also In re Spradley, 2005 WL 1950976, at *1 ("because we conclude the criminal contempt order is valid, we do not reach relator's complaints regarding the civil contempt order"); Ex parte Varley, No. 05-97-01225-CV, 1998 WL 299856, at *5-6 (Tex. App.—Dallas June 8, 1998, orig. proceeding) (not designated for publication) ("As long as there is a valid criminal contempt sentence, a challenge to the validity of the civil portion of the order is premature until the criminal contempt has been served."). Accordingly, we express no opinion on the validity of the civil contempt order here.

For these reasons, we grant the motion for rehearing, withdraw and vacate our prior opinions and orders dated May 9, 2017 and June 30, 2017, and deny relator's petition for writ of habeas corpus.

/Robert M. Fillmore/

ROBERT M. FILLMORE

JUSTICE 170473F.P05