Opinion
No. 05-15-01533-CV
01-14-2016
IN RE BRYAN ROWES, Relator
Original Proceeding from the 256th Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-09-18237
MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Brown
Opinion by Justice Lang
Relator Bryan Rowes filed this petition for writ of habeas corpus after the trial judge found him guilty of two counts of criminal contempt of court, ordered him confined for thirty days in the Dallas County jail and assessed a $500 fine against him. In six issues Rowes argues that the trial court's order was insufficiently specific to be enforceable by contempt and that the evidence at the contempt hearing did not show that he willfully violated the trial court's order. We grant the relief requested by the petition.
I. Factual and Procedural Background
Because the facts and issues are well-known to the parties, we discuss here only those factual and procedural matters necessary to provide context for the Court's discussion of the dispositive point in this original proceeding. --------
In March 2012, Rowes and his former wife M.T. agreed to an order in this suit affecting the parent-child relationship that appointed them joint managing conservators of their two children and ordered them to communicate in non-emergency situations through a service known as "Our Family Wizard."
Roughly two years later, the trial court granted M.T. a protective order against Rowes. The Court did not find that Rowes committed family violence, but it found that Rowes had engaged in conduct violative of the stalking provisions of the Texas Penal Code. The protective order prohibited Rowes from "communicating directly" with M.T. "in a threatening or harassing manner," from "communicating a threat through any person" to M.T., and from "communicating in any manner" with M.T. "except through [her] attorney or a person appointed by the Court, except Our Family Wizard related to the children." The order also prohibited Rowes from "going to or near" M.T.'s "employment address," an address that was not otherwise specified in the trial court's order.
Approximately eleven months later, on March 28, 2015, while the parties were engaged in a dispute about counseling for one of the children, Rowes sent M.T. a message through Our Family Wizard in which he advised M.T. that he had spoken with a scheduler at the outpatient psychiatric clinic at the hospital where M.T. was employed and learned that although Rowes understood that M.T. had placed the child on the waiting list for treatment, the child was not actually on the waiting list. M.T. interpreted Rowes' contact with the psychiatric clinic as "harassment of me at my place of work." She requested that Rowes explain what information he had shared with anyone employed at the hospital, including the staff at the outpatient psychiatric clinic, about M.T., the child, or other members of M.T.'s family. In response, on March 28, 2015, Rowes sent the Our Family Wizard Message that became the basis for one of the two counts of contempt of which the trial court ultimately found Rowes guilty. The message included a description of two visits Rowes had made to the hospital where M.T. was employed. In relevant part it stated:
When [child] had been hospitalized I called to get information and speak to his health care providers. They explained that you had not listed me as [child's] father (nor anywhere in the file) and as a result they would not share information with me. They told me that I would need to bring proof of parenthood in order to obtain such information.
I went to the hospital and provided them with [child's] birth certificate for their files and requested copies of his medical records which were sent to me several weeks later.
I later requested an updated copy of his medical records. I was again told that I was not listed as his father. I again brought [child's] birth certificate to the medical records department and had a conversation with management at the department. I explained that I had already brought [child's] birth certificate once and expressed my concern that you, as a social worker at the hospital, would have access to the file and could have removed me or-otherwise altered the file. She assured me that such a thing was not possible and apologized for the department's failure to record me as the father. I also stated that there was ongoing litigation and requested that I be provided proof that I had been left off of [child's] file.
I had asked you numerous times to have the hospital include me as the father, but you never did. If you had I never would have had to have this contact.
Based on these events, and twenty-one additional alleged acts of contempt, M.T. moved for enforcement of the protective order. M.T. non-suited eighteen of the alleged acts of contempt, all of which related to non-payment of court-ordered attorney's fees, and proceeded to trial on four counts including a count that alleged: "On March 28, 2015, BRYAN ROWES violated the PROTECTIVE ORDER, by communicating with [M.T.] directly when he sent her threatening or harassing correspondence by email stating he went to her place of employment on two separate occasions after the PROTECTIVE ORDER was granted."
After an evidentiary hearing, the trial court granted directed verdict on two of the remaining alleged acts of contempt, including a count that alleged Rowes had violated the protective order by going to M.T.'s place of employment and a count that alleged Rowes had sent threatening or harassing correspondence to M.T.'s residence. The trial court found Rowes guilty of two counts of contempt, including the count quoted above that alleged that Rowes had violated the protective order by sending M.T. threatening or harassing correspondence and a count that related to an interaction between Rowes and M.T. at the elevator bank at the courthouse prior to a hearing. The trial court assessed a single punishment for both acts of contempt: a $500 fine and incarceration for a period of thirty days in the Dallas County jail.
II. Standard of Review for Habeas Corpus Relief
A court may punish for contempt. TEX. GOV'T CODE ANN. § 21.002 (West 2004). A habeas corpus proceeding is a collateral attack on a judgment that imposes punishment for contempt. In re Johnson, 337 S.W.3d 486, 488 (Tex. App.—Dallas 2011, orig. proceeding). A petition for writ of habeas corpus does not inquire into the guilt or innocence of the relator, but only determines if the order of contempt was void. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding); Ex parte Casey, 944 S.W.2d 18, 19 (Tex. App.—Houston [14th Dist.] 1997, orig. proceeding). A contempt order is void if it is beyond the power of the court to render it or if it deprives the relator of liberty without due process of law. Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980) (orig. proceeding).
III. Validity of Trial Court's Contempt Order
In his first issue, Rowes argues that the trial court's order prohibiting him from communicating with M.T. in a threatening or harassing manner was insufficiently specific to advise him that his Our Family Wizard message was a violation of the trial court's order. We agree. It is important to note that the trial court held Rowes in contempt for the content of his communication, not for the conduct that was described in the communication. The trial court granted directed verdict with regard to the count in the motion for enforcement that alleged Rowes had committed a contemptuous act by "going to [M.T.'s] place of employment located at [name of hospital]." Thus, the question in this case is whether either: a) the trial court's protective order prohibiting Rowes from communicating directly with M.T. in a threatening or harassing manner or b) its order prohibiting Rowes from communicating a threat through any person to M.T., clearly and unambiguously prohibited the message Rowes' sent in response to M.T.'s request for information about his communications with the hospital. We cannot conclude that either order did so.
In the context of divorce, one former spouse cannot be given the power to define what constitutes a contemptuous act by the other. See Ex parte Brister, 801 S.W.2d 833, 834 (Tex. 1990) (orig. proceeding). Any contempt order rendered by a court must enforce the specific requirements of the court not the "cryptic instructions of a party given with the court's permission but without the certainty of detailed provisions of a decree." Id. To be enforceable by contempt, the trial court must render an order that sets out the terms of compliance in clear and unambiguous terms. Id. The order must unequivocally command the duty or obligation that the person charged with contempt is accused of violating. Ex parte Padron, 565 S.W.2d 921, 921 (Tex. 1978) (orig. proceeding). It must be sufficiently specific such that the person charged with obeying the order will readily know exactly what duties and obligations are imposed by the order. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995). If the court's order requires inferences or conclusions about whether particular conduct is encompassed by the order and concerning which reasonable persons might differ, the order is insufficient to support a judgment of contempt. Chambers, 898 S.W.2d at 260.
A prohibition on "threatening or harassing communications" forbids "repeated, unsolicited, and unwelcome communications." Wagner v. State, No. 05-13-01329-CR, 2015 WL 2148103, at *4 (Tex. App.—Dallas May 5, 2015, pet. granted) (mem. op., not designated for publication) (interpreting section 25.07 of Texas Penal Code). "Threaten" means "to promise punishment, reprisal, or other distress to." Threaten, WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED (1981). "Harass" means "to vex, trouble or annoy continually or chronically." Harass, WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED (1981); see also Patton v. State, 835 S.W.2d 684 (Tex. App.—Dallas 1992, no pet.) (concluding a person harasses another when he persistently disturbs, bothers continually, or pesters that person).
Nothing in the message is threatening or harassing. The trial court's order permitted communications through Our Family Wizard related to the children. The single message that is the basis for the contempt finding was sent in response to a direct request from M.T. The portion of the communication M.T. found to be threatening or harassing described only Rowes' past attempts to obtain medical records for his child. The message did not suggest that Rowes intended future visits to the hospital or future communications with the hospital, that he was stalking M.T. or that he intended to take any sort of harmful or vexatious action.
We fully recognize the authority of the trial court to enforce its orders by imposing jail sentences and fines and we do not hold that an order prohibiting threatening or harassing communication is improperly vague in all circumstances. However, in this case, we are not convinced that the single message that was the basis for the contempt charge was clearly prohibited by the portion of the order Rowes was found to have violated. For that reason, we cannot conclude that the trial court's order prohibiting Rowes from communicating directly with M.T. in a threatening or harassing manner or its order prohibiting Rowes from communicating a threat through any person to M.T. supports the imposition of punishment for the acts alleged.
When, as in this case, a trial court imposes only one punishment for multiple acts of contempt, the entire contempt judgment is void if any one of the acts that form the basis of the contempt finding is not properly punishable by contempt. Ex parte Linder, 783 S.W.2d 754 (Tex. App.—Dallas 1990, orig. proceeding). Accordingly, we must conclude that the contempt judgment in this case is void in its entirety. We need not address Rowes' remaining issues.
IV. Conclusion
Because the trial court's order imprisoned relator in violation of his due process rights, we grant habeas corpus relief and vacate the December 10, 2015 Order Holding Bryan Rowes in Contempt for Violation of April 11, 2014 Protective Order and for Commitment to County Jail, the December 10, 2015 Amended Order Holding Bryan Rowes in Contempt for Violation of April 17, 2014 Protective Order and for Commitment to County Jail, and the December 10, 2015 Attachment and Commitment In Contempt, all signed by the 256th District Court of Dallas County, Texas in cause number DF-09-18237. We order that relator Bryan Rowes be unconditionally released and discharged from the custody of the Sherriff of Dallas County under the December 10, 2015 Order Holding Bryan Rowes in Contempt for Violation of April 11, 2014 Protective Order and for Commitment to County Jail, the December 10, 2015 Amended Order Holding Bryan Rowes in Contempt for Violation of April 17, 2014 Protective Order and for Commitment to County Jail and the December 10, 2015 Attachment and Commitment in Contempt . We further discharge any bond paid by relator in accordance with this Court's order of December 17, 2015.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE 151533F.P05