Opinion
No. 13-05-726-CR
Memorandum Opinion Delivered and Filed November 9, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the County Court at Law No. 1 of Victoria County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and CASTILLO.
MEMORANDUM OPINION
See Tex.R.App.P. 47.1, 47.4; see also this Court's opinions in the related cases, Acevedo v. State, No. 13-05-222-CR, 2005 Tex. App. LEXIS 3668 (Tex.App.-Corpus Christi May 12, 2005, no pet.) and In re Acevedo, No. 13-05-335-CR, 2005 Tex. App. LEXIS 5754 (Tex.App.-Corpus Christi, July 22, 2005) (original proceeding).
This direct appeal stems from an order of the trial court holding attorney Albert Acevedo, Jr. in contempt for failure to appear at a February 9, 2005 court hearing. After an evidentiary hearing, the trial court assigned to preside over the show cause proceeding found that Acevedo had proper and actual notice of the hearing but failed to appear. The trial court found Acevedo in contempt and imposed punishment at confinement in the county jail for ten days and a fine of $500. See Tex. Gov't Code Ann. 21.002(b) (Vernon 2004). Acevedo was remanded to the custody of the local sheriff's department, but was released pursuit to an order of this Court. The instant appeal ensued. Decisions in contempt proceedings are not appealable. Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex. 1967); Metzger v. Sebek, 892 S.W.2d 20, 55 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (citing Ex parte Williams, 690 S.W.2d 243 n. 1 (Tex. 1985)). A contempt judgment is reviewable only by a petition for writ of habeas corpus (if the contemnor is confined) or a petition for writ of mandamus (if no confinement is involved). See In re Long, 984 S.W.2d 623, 625 (Tex. 1999); Kidd v. Lance, 794 S.W.2d 586, 587 (Tex.App.-Austin 1990, no writ); see also Deramus v. Thornton, 333 S.W.2d 824, 827 (Tex. 1960) ("We have uniformly held in this State, however, that the validity of a contempt judgment can be attacked only collaterally and that by way of habeas corpus."). Considering the above authorities, we conclude we do not have jurisdiction to hear Acevedo's appeal from this contempt proceeding. We dismiss the appeal for want of jurisdiction.
At the time, Acevedo was representing an accused in a misdemeanor theft case.
DISSENTING MEMORANDUM OPINION
See Tex.R.App.P. 47.1, 47.4; see also this Court's opinions in the related cases, Acevedo v. State, No. 13-05-222-CR, 2005 Tex. App. LEXIS 3668 (Tex.App.-Corpus Christi May 12, 2005, no pet.) and In re Acevedo, No. 13-05-335-CR, 2005 Tex. App. LEXIS 5754 (Tex.App.-Corpus Christi, July 22, 2005) (original proceeding).
This attempted appeal stems from the trial court's (1) refusal to convene a hearing on Acevedo's pretrial application for writ of habeas corpus, (2) denial of his pretrial application for writ of habeas corpus on double jeopardy grounds, and (3) refusal to abate proceedings to seek relief from this Court from the complained-of rulings, prior to convening an evidentiary hearing on the merits of the contempt proceedings. The majority dismisses for want of jurisdiction. I agree we should dismiss but disagree that we lack jurisdiction. I am mindful that we may not enlarge appellate jurisdiction absent legislative mandate and that the legislature has instructed that we must not "dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities." Tex.R.App.P. 44.3; Am. Standard v. Brownsville Indep. Sch. Dist. (In re D. Wilson Constr. Co.), 196 S.W.3d 774, 784 (Tex. 2006) (Brister, J. concurring). In Am. Standard, our Supreme Court held that we erred in dismissing on jurisdictional grounds an improper appeal which we could have properly construed as a petition for writ of mandamus. Thus, in this case, I would construe Acevedo's appeal as a petition for writ of mandamus over which we have jurisdiction. Id.; see also Tex.R.App.P. 52. However, because the majority today grants full relief to Acevedo by writ of habeas corpus in the companion case, In re Acevedo, No. 13-05-725-CR, 2006 Tex. App. LEXIS ____ (Tex.App.-Corpus Christi Nov. 9, 2006, no pet. h.) (not designated for publication), I would dismiss the appeal as moot.