Summary
concluding that, despite recitation of waiver of right to jury trial in contempt order, concession by RPI that relator did not waive his right “prior to commencement of the contempt proceeding” controlled
Summary of this case from In re NewbyOpinion
No. 07-07-0202-CV
Opinion Filed May 25, 2007.
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ORDER GRANTING HABEAS CORPUS RELIEF
This is an original proceeding for habeas corpus relief. The record before this Court reflects that on October 10, 2006, Relator appeared before the trial court to respond to Carol McGee's attempt to revoke a prior order suspending imposition of a 90-day contempt sentence for non-payment of child support. In addition to seeking revocation of the prior order of contempt, McGee requested that the trial court also consider holding Relator in criminal contempt for at least twelve new violations of the order of support. Finding that Relator failed to pay child support as ordered on twelve specific dates, the trial court revoked the prior order suspending imposition of commitment and entered a finding of contempt as to each separate violation. The court then sentenced him to 100 days confinement in the Moore County Jail for each separate violation. The trial court also ordered that the periods of confinement run consecutively for a total of 1200 days, with the initial period of confinement to begin to run after Relator had served his 90 day sentence according to the court's simultaneous order revoking the prior order suspending imposition of commitment. Relator contends that the Order Holding Respondent in Contempt for Failure to Pay Child Support, Granting Judgment, and for Commitment to County Jail is void because a "serious criminal penalty" could not be imposed without affording him the right to a jury trial. Relator further contends that his right to a jury trial was violated because he did not waive that right prior to imposition of sentence. We agree. For that reason, we grant the habeas relief requested and order that Relator be immediately released.
This case originates from the 69th District Court of Moore County. Senior District Judge David Gleason sitting by assignment.
Both the United States Supreme Court and the Texas Supreme Court have held that absent the full protection of a jury trial, a person found to be guilty of criminal contempt cannot be punished by a "serious criminal penalty." United Mine Workers of America v. Bagwell, 512 U.S. 821, 833, 114 S.Ct. 2552, 2560, 129 L.Ed.2d 642 (1994); Ex parte Sproull, 815 S.W.2d 250 (Tex. 1991). A (serious criminal penalty' is one where the potential period of incarceration exceeds 180 days. Ex parte Sproull, 815 S.W.2d at 250. Ex parte Werblud, 536 S.W.2d 542, 546-47 (Tex. 1976).
In this case, the record shows that the trial court did not inform Relator of his right to a jury trial before proceeding to consider McGee's motion for enforcement. Furthermore, although the Order Holding Respondent in Contempt for Failure to Pay Child Support, Granting Judgment, and for Commitment to County Jail reflects that `a jury was waived,'nothing in the record supports this statement. Pursuant to a request from this Court for a response from the real party in interest, McGee has conceded that Relator did not waive his right to a jury trial prior to commencement of the contempt proceeding. Notwithstanding the recitation of waiver contained in the order, in light of this concession, we will not presume that Relator has waived his right to a jury trial. Ex parte Griffin, 682 S.W.2d 261, 262 (Tex. 1984). Because Relator did not waive his right to a jury trial, the Court, without hearing oral arguments, grants the writ of habeas corpus and orders Relator be immediately discharged. Tex. R. App. P. 52.8. All other relief requested is denied.