Opinion
3:01-CV-2136-G.
January 30, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has been referred to the United States magistrate judge. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for habeas corpus relief pursuant to 28 U.S.C. § 2241, et seq. Parties: It is unclear whether Petitioner is still confined at the Dallas County Jail in Dallas, Texas. On December 28, 2001, he filed a notice of address change requesting that all correspondence relating to this case be sent to 397 Dal-Rich Village, #299, Richardson, Texas 75080-9999. Respondent is Jim Bowles, Dallas County Sheriff. Process has been issued in this case. Prior to issuing process, the Court issued a questionnaire to Petitioner, who filed his answers and supplemental answers on November 6 and 8, 2001.
Statement of the Case: On October 1, 2001, the 256th Judicial District Court, Dallas County, Texas, held Petitioner in civil and criminal contempt for failure to pay child support in cause number 90-16429-Z. (See Petition at 2 and "Order Enforcing Child Support Obligation, Order of Commitment, and Order Suspending Licenses," attached to Petitioner's Supplemental Answers to the Questionnaire). The court ordered (1) that Petitioner be committed to the Dallas County Jail for 180 days for each separate act of contempt, to run concurrently (criminal contempt), and (2) that he should, thereafter, be confined until the pays the $73,410.20 in child support arrearage (civil contempt). (Id.).
The classifications of civil and criminal contempt have nothing to do with the characterization of the underlying case or the burdensomeness of the contempt order. Rather, the distinction lies in the nature and purpose of the penalty imposed. In a civil contempt order, the court exerts its contempt power to persuade the contemnor to obey a previous order, usually through a conditional penalty. Because the contemnor can avoid punishment by obeying the court's order, the contemnor is said to "carr[y] the keys of imprisonment in his own pocket." Conversely, a criminal contempt order is punitive in nature and is an exertion of the court's inherent power to punish a contemnor for improper past acts, and no subsequent voluntary compliance can enable the contemnor to avoid punishment. See Cadle Co. v. Lobingier, 50 S.W.3d 662, 667 (Tex.App.-Fort Worth 2001).
The court also ordered the suspension of Petitioner's insurance license and a $500.00 fine.
On October 2, 2001, Petitioner filed a Petition for Writ of Habeas Corpus in the Fifth District Court of Appeals at Dallas, raising the claims at issue in this case. (Respondent's Motion to Dismiss at 3 and Attachments). On October 4, 2001, he filed a "Petition by Right for a Writ of Habeas Corpus" in the same court. (Id.). On October 5, 2001, the Court of Appeals denied the petitions in an unpublished opinion pursuant to Tex. R. App. P. 52.8(a).
On October 15, 2001, Donald Evans submitted a Petition for Writ of Habeas Corpus on behalf of Petitioner in the same court. The Fifth District Court of Appeals denied the petition in an unpublished opinion on October 16, 2001. The following day the Court issued a Memorandum Opinion and Order Nunc Pro Tunc denying the petition.
In the present habeas petition, filed on October 24, 2001, Petitioner challenges his incarceration on due process grounds. Specifically he alleges (1) that he was not provided adequate notice that the proceedings were criminal in nature and that he would be charged with "a class B misdemeanor," (2) that he was denied the right to a jury trial, and (3) that his incarceration for civil contempt is illegal because he is financially unable to pay the child support arrearage and fine required for his release.
A person incarcerated for civil contempt is "in custody" for purposes of invoking habeas jurisdiction under 28 U.S.C. § 2241. See Fernos-Lopez v. Figarella Lopez, 929 F.2d 20, 23 (1st Cir. 1991); see also Leonard v. Hammond, 804 F.2d 838, 840 (4th Cir. 1986) (indigents, imprisoned for civil contempt for failure to pay child support, could challenge constitutionality of confinement in habeas corpus action);Ridgway v. Baker, 720 F.2d 1409 (5th Cir. 1983) (habeas granted to civil contemnor imprisoned for nonsupport).
Respondent has filed a motion to dismiss alleging Petitioner has failed to exhaust his state court remedies pursuant to art. 11.07, Texas Code of Criminal Procedure. He asserts that Petitioner "has failed to file a state writ of habeas corpus to the Texas Court of Criminal Appeals alleging the same grounds that he raised in his federal petition." (Motion to Dismiss at 6). Petitioner has filed an objection to Respondent's motion to dismiss.
Findings and Conclusions: In order to exhaust state remedies, a petitioner must present all of his claims to the highest state court for review. Ridgway v. Baker, 720 F.2d 1409, 1412-13 (5th Cir. 1983) (nonsupport contempt action). "Once a federal claim has been submitted to a state's highest court, the exhaustion requirement is satisfied, even if the court fails to address the federal claim." Id. at 1413.
In Texas, the only method to challenge a contempt order (if the contemnor is confined and the matter stems from a civil law matter) is through an original habeas corpus proceeding in the Texas Supreme Court and Courts of Appeals. See Tex. R. App. P. 52; Ex parte Acker, 949 S.W.2d 314, 316 (Tex. 1997) (civil and criminal contempt order presented to Texas Supreme Court in an original habeas corpus proceeding); Ex parte Rojo, 925 S.W.2d 654, 655 (Tex. 1996) (per curiam) (same); Ex parte Barnett, 600 S.W.2d 252, 253 (Tex. 1980) (same). The Texas Supreme Court has jurisdiction to issue writs of habeas corpus in civil matters pursuant to Texas Constitution Art. V, § 3 and Texas Government Code § 22.002(e) (Vernon 1988) (formerly Tex. Rev.Civ.Stat. Ann. art. 1737). The Courts of Civil Appeals have jurisdiction to issue such writs only in cases related to divorce, wife or child support, or child custody as prescribed by Texas Government Code § 22.221(d) (Vernon Supp. 2001) (formerly Tex. Rev.Civ.Stat. Ann. art. 1824a).
Courts of Civil Appeals were given habeas corpus jurisdiction in 1969 in order to relieve the Supreme Court of the vast workload associated with writs of habeas corpus arising out of divorce and family matters. Ex parte Dillard, 577 S.W.2d 519, 521 (Tex.Civ.App.-Texarkana 1979). Ordinarily, the Supreme Court will refuse to entertain writs of habeas corpus in family code matters unless the Court of Civil Appeals' concurrent jurisdiction has been unsuccessfully sought. Id.
In addition to its appellate jurisdiction, the Court of Criminal Appeals has original jurisdiction to entertain applications for writ of habeas corpus in both civil and criminal law matters. See Tex. Const. Art. V, § 5; Ex parte Moorehouse, 614 S.W.2d 450, 451 (Tex.Crim.App. 1981). Pursuant to its discretion, however, the Court of Criminal Appeals has declined to issue writs in cases arising out of civil matters where writ relief might also be sought from the Texas Supreme Court. Ex parte Wolf, 34 S.W.2d 277, 279 (Tex.Crim.App. 1930) (opinion on motion for rehearing). Accord Ex parte Cvengros, 384 S.W.2d 881, 882 (Tex.Crim.App. 1964);Moneyhun v. State, 140 S.W.2d 448, 449 (Tex.Crim.App. 1940);Ex parte Sauser, 554 S.W.2d 239, 240 (Tex. Civ App. — Dallas 1977).
If no confinement is involved, a contempt judgment arising from a civil proceeding is reviewable via a petition for writ of mandamus. Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex.App. — Fort Worth 2001) (citing Long, 984 S.W.2d 623, 625 (Tex. 1999)). "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." Id.; see also Ex parte Williams, 690 S.W.2d 243, 243 (Tex. 1985) (validity of a contempt judgment can be attacked only collaterally by writ of habeas corpus).
The civil and criminal contempt orders in this case arise from a civil proceeding. Hence exhaustion of state remedies is through an original habeas proceeding in the Texas Supreme Court and Courts of Appeals pursuant to Tex. R. App. P. 52. "The purpose of a writ of habeas corpus is not to determine the guilt of the contemnor, but to determine whether he was afforded due process of law or if the order of contempt is void." Ex parte Binse, 932 S.W.2d 619, 620 (Tex.App.-Houston 1996) (citing Ex parte Gordon, 584 S.W.2d 686, 699 (Tex. 1979)).
Petitioner has not exhausted his state remedies. While he filed a writ of habeas corpus in the Fifth District Court of Appeals, he has yet to file a writ in the Texas Supreme Court challenging the contempt orders on due process grounds. Petitioner's own allegations in response to Respondent's motion to dismiss concede this fact. (Petitioner's Response/Reply at 34). Therefore, the District Court should dismiss the petition without prejudice for failure to exhaust state court remedies.
RECOMMENDATION:
For the foregoing reasons, the magistrate judge recommends that the petition for a writ of habeas corpus be dismissed without prejudice for failure to exhaust state court remedies.
A copy of this recommendation will be mailed to Petitioner and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.