Opinion
No. 09-04-324 CV
Submitted on August 6, 2004.
Opinion Delivered October 7, 2004.
Original Proceeding.
Writ Denied.
David J. Van Susteren; Houton, for appellant.
Anne Pickle; Seale, Stover, Bisbey Morian; Jasper, for appellees.
Before McKEITHEN, C.J., BURGESS, and GAULTNEY, JJ.
OPINION
The trial court found relator, Ben "Benji" Johnson, in contempt of court and committed him "to the Jasper County Jail until such time as he deposits the sum of $24,150.32" into the registry of the court. The contempt order finds he is able to deposit the funds. In this habeas corpus proceeding, relator says he has been imprisoned for nonpayment of a debt in violation of the Texas Constitution. See Tex. Const. art. I, § 18. The underlying case is the guardianship of Jimmy Mays. Mays' daughter, Jemece Mays Richard, has been appointed his guardian. As guardian, Richard is attempting to recover Mays' property. See Tex. Prob. Code §§ 768, 877 (Vernon 2003 Vernon Supp. 2004).
Mays' wife, Rose Mays, who divorced Jimmy in 2001 and remarried him in April 2004, received a check in the mail payable to Jimmy Mays in the amount of $24,150.32. The trial court instructed Rose Mays to pay the money into the registry of the court. Rose deposited the check into a credit union account, withdrew the entire amount in cash, and gave the money to relator for safekeeping.
Relator testified he placed the money under a pine tree where he could watch it from his porch. When Rose Mays returned for the money, relator went to the tree and discovered the money was gone. After hearing this explanation, the trial court ordered relator and Rose Mays to pay the money into the registry of the court by 9:30 the next morning. When they failed to do so, he found them in contempt of court and put them in jail. Only Johnson requests relief.
Payment of a debt may not be coerced by imprisonment. See Tex. Const. art. I, § 18 ("No person shall ever be imprisoned for debt."); see Ex parte Hall, 854 S.W.2d 656, 658 (Tex. 1993). However, not every obligation to pay money is a "debt" within the meaning of Article I, Section 18 of the Texas Constitution. See id.; Ex parte Davis, 101 Tex. 607, 111 S.W. 394, 396 (1908) ("There are many instances in the proceedings of the courts where the performance of an act may be enforced by imprisonment and would not come within the prohibition of the Constitution, although it might involve the payment of money."). For example, the obligation to support one's spouse or child is "a legal duty arising out of the status of the parties," not out of a contract, and is not considered a debt. See Ex parte Hall, 854 S.W.2d at 658. In Ex parte Hall, the Court explained that a person may also contract to support a spouse or child, "and that obligation, to the extent it exceeds his legal duty, is a debt." Id. The obligation to pay money arising out of a contract is a debt within the meaning of Article I, Section 18. See generally Ex parte Duncan, 462 S.W.2d 336, 337 (Tex.Civ.App.-Houston [1st Dist.] 1970, orig. proceeding) (citing Ex parte Yates, 387 S.W.2d 377 (Tex. 1965)).
In Ex parte Sutherland, 526 S.W.2d 536, 539 (Tex. 1975), the Court held an obligation to surrender specific property in the division of a community estate was not a debt. Sutherland was placed in jail for contempt for failing to pay his former wife one-half of retainer pay received by him as a member of the Fleet Reserve. The Supreme Court explained as follows why there was "no problem here of imprisonment for debt in the constitutional sense":
Relator was constituted a trustee by the court to collect and remit to the clerk the one-half of the pay awarded to the wife. In performing that duty he will not be paying a debt but will be surrendering the share to which his former wife is legally entitled. His confinement to compel payment of the arrearage in the wife's one-half of the retainer pay is not imprisonment for debt within the meaning of Article 1, Section 18, of our Constitution.
Id. Sutherland was not ordered to pay a debt; rather, he was ordered to surrender property to which another person was legally entitled. Surrendering another's property, even though the property was money, was not payment of a debt.
In Ex parte Gorena, 595 S.W.2d 841, 846-47 (Tex. 1979), a case involving an obligation to make monthly payments of retirement benefits to a former spouse, the Court said "[n]umerous cases in other jurisdictions have affirmed a trial court's order holding a trustee or other fiduciary in contempt for failure to turn property, including money, over to third persons." Id. The Court approved reasoning which likened a spouse's status to that of a trustee in considering whether an obligation to pay was a debt. Id. (approving "the decision and reasoning" in Ex parte Anderson, 541 S.W.2d 286 (Tex. Civ. App. 1976, orig. proceeding)). In Ex parte Buller, 834 S.W.2d 622, 626 (Tex.App. 1992, orig. proceeding), this Court held a trustee or other fiduciary could be jailed for contempt in refusing to turn over funds.
Relator's obligation is based on his possession for safekeeping of property the trial court had previously ordered placed in the registry of the court. That the property is money does not mean his legal duty is a debt. The trial court found he is still able to place the money in the registry of the court. He is holding another's property and has been ordered to surrender the property. We conclude relator is not being imprisoned for nonpayment of a debt within the meaning of Article I, Section 18 of the Texas Constitution.
Relator says in his reply brief that he does not have the cash. He says he "cannot use personal funds to satisfy the Order because he is indigent," and notes he has moved to proceed in forma pauperis in this case. We understand this argument to be there is no evidence he still has the asset entrusted to him in his possession, he cannot comply, and the order is therefore void. See Ex parte Chambers, 898 S.W.2d 257, 259-60 (Tex. 1995).
A contempt order imposing a coercive restraint is void if the condition for purging the contempt cannot be performed. Ex parte Dustman, 538 S.W.2d 409, 410 (Tex. 1976); Ex parte Thetford, 369 S.W.2d 924, 925 (Tex. 1963). "[T]he issue in habeas corpus review is whether the relator has conclusively established that [the relator] was involuntarily unable to pay." See Ex parte Chambers, 898 S.W.2d at 261 (criminal contempt); see also In re Briggs, 965 S.W.2d 743, 745 (Tex.App. 1998, orig. proceeding) (civil contempt).
Once the money was traced into his possession, relator was presumed to possess the entire amount traced, and he was required to show he was not in possession of all or part of the traced amount. See generally Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). The trial court determines the credibility of the witnesses and the weight to be given their testimony. In re Briggs, 965 S.W.2d at 745. Relator admits he had possession of the cash, but he says it must have been stolen after he placed it under a pine tree where he could watch it from his porch for ten or twelve days until Rose Mays returned for the money. The trial court was not required to accept an incredible account. On this record we cannot say relator has established involuntary inability to comply.
The relator is not entitled to relief on the issue presented to this Court. Accordingly, the issue is overruled, and the relator's petition for issuance of the writ of habeas corpus is denied. Our previous order granting bail is withdrawn and relator is remanded to the custody of the Jasper County Sheriff.
DISSENTING OPINION
I respectfully dissent. While this is a sparse record, this much we do know:
1 — Jemece Richard was appointed temporary guardian of Jimmy Mays.
2 — Rose Mays deposited a check from Louisiana-Pacific to Jimmy Mays into the Texaco Credit Union and then withdrew the cash.
3 — There was a prior hearing where the Judge verbally ordered Rose to pay the money into the registry of the court.
4 — Rose gave Johnson the money after she was told to "bring [the money] to court."
5 — The hearing conducted on July 21, 2004 was not a contempt hearing, "because there was not a prior written order."
6 — At the conclusion of the July 21, 2004 hearing, the court verbally ordered Rose and Johnson to deposit $24,150 into the registry of the court by 9:30 a.m., July 22, 2004.
7 — A written order reciting the verbal order and setting a hearing for 10:30 am on July 22, 2004. The order was signed July 22, 2004.
8 — The order committing Johnson to jail recites the verbal order of July 21 and finds Johnson is able to deposit the funds but has refused to do so and finds Johnson in contempt, but does not recite that a hearing was held.
Therefore, based solely on the record, Mr. Johnson is, at best, a gratuitous bailee of the money from Ms. Mays or, at worst, a thief of the money from Ms. Mays or Ms. Richard. As I view the record, Mr. Johnson had no knowledge of the dispute between Ms. Mays or Ms. Richard nor any knowledge of the verbal order that Ms. Mays deposit the proceeds of the check into the registry of the court. All Mr. Johnson knew was Ms. Mays asked him to keep the money until she could take it to court. Under these facts, Mr. Johnson clearly had no fiduciary relationship with Ms. Richard, the court or Ms. Mays, for "[a] bailment generally does not create a formal, fiduciary relationship between bailee and bailor." Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 637 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (citing Bank One, Texas, N.A. v. Stewart, 967 S.W.2d 419, 442 (Tex.App. 1998, pet. denied). Johnson's only relationship (bailor/bailee) was with Ms. Mays and either he negligently (failed to take proper care of the money) or intentionally (stole the money) breached that relationship.
Cash may be the subject of a bailment. See Tellez v. Tellez, 531 S.W.2d 368, 369 (Tex.Civ.App. 1975, no writ); Bloom v. Bloom, 767 S.W.2d 463, 469 (Tex.App. 1989, writ denied).
If the trial court and the majority believes Johnson negligently breached his duty, then this is a pre-suit, pre-judgment civil commitment under the guise of contempt. If the trial court and the majority believes Johnson intentionally breached his duty, then this is either a pre-suit, pre-judgment civil commitment under the guise of contempt or a pre-trial, pre-sentence criminal commitment under the guise of contempt. Neither of these three rationales are constitutional.
"A bailee has the duty to exercise ordinary care over the goods and is therefore `responsible' for the bailor's goods." Sisters of Charity of the Incarnate Word, Houston, Texas v. Meaux, 122 S.W.3d 428, 431 (Tex.App. 2003, pet. denied).
"Theft as defined in Section 31.03 constitutes a single offense superseding the separate offenses previously known as theft, theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or concealing embezzled property, and receiving or concealing stolen property." Tex. Penal Code Ann. § 31.02 (Vernon 2003).
The majority has certainly made it easier to retrieve stolen money; one may simply order the bank robber to return the money and if there is no compliance, hold the robber in contempt and civilly commit the robber until the money is returned. A novel approach but with definite constitutional infirmities.
A similar case, not mentioned by the majority, is Currie v. Drake, 550 S.W.2d 736, 741 (Tex.Civ.App. 1977, writ ref'd n.r.e.). The court stated:
At the conclusion of the hearing the court entered an order directing that actions be taken. A portion of that order directed that Holt and Currie return moneys which were owed to the estate. The order does not direct appellants to deliver to the executor a specific identified fund in being, but only to repay the amount of money previously received. Consequently, this portion of the order is a direction for payment of a debt, and if the parties do not comply, it would not be enforceable by contempt. Tex. Const. art. I, s 18. The proper remedy would have been a judgment on which execution might be levied. Northwestern Fuel Co. v. Brock, [ 139 U.S. 216, 220, 11 S.Ct. 523, 35 L.Ed. 151 (1891)], and Salgo v. Hoffman, 521 S.W.2d 922, 925 (Tex.Civ.App. Dallas 1975, no writ). Accordingly, we reverse the order and remand the cause to the probate court with instructions to conduct a hearing wherein testimony may be taken concerning the payment of the claim and offsets, if any, and render a judgment accordingly.
Here, too, the proper remedy is not a order of contempt, but a suit for conversion. I would grant the writ and release Mr. Johnson.