Opinion
3:03-CV-0786-K
August 14, 2003
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 brought by a county inmate imprisoned for civil contempt, pursuant to 28 U.S.C. § 2241, et seq. Parties: Petitioner is presently incarcerated at the Dallas County Jail in Dallas, Texas. Respondent is Jim Bowles, Dallas County Sheriff. The Magistrate Judge issued process on Respondent.
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).
"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)).
Statement of the Case: On March 17, 2003, the 330th Judicial District Court, Dallas County, Texas, held Petitioner in civil and criminal contempt for failing to pay temporary and past-due spousal support in Cause No. 02-12557. (See Respondent's Mot. to Dism. at 1 and Exh. 2). The court ordered that Petitioner pay a fine of $250 for each of the three separate violations, and that he be confined in the Dallas County Jail for thirty days, for each of three separate violations, to run concurrently (criminal contempt). (Mot. to Dism., Exh. 2). The court further ordered that Petitioner be committed to the Dallas County Jail until he pays (1) $1,196 in past-due spousal support arrearage to Nanette Combs English, at the office of her attorney, Keith Griffith, (2) $73 in costs to Mr. Griffith, and (3) $930 in attorney fees to Mr. Griffith (civil contempt). Id.
The civil contempt portion of the order also provided for confinement until Petitioner pays $10,584 in interim attorney fees to Mr. Griffith. That portion of the order, however, was deleted by the court. (See Mot. to Dism., Exh. 2 at 4). 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).
Petitioner filed habeas corpus petitions in the Fifth District Court of Appeals at Dallas, Texas, and in the Texas Supreme Court on March 21 and April 3, 2003, respectively. See In re Wayne Murphy English, No. 05-03-00433-CV, and In re Wayne Murphy English, No. 03-0313. The former was dismissed for failure to pay the filing fee on April 10, 2003, whereas the latter was denied on April 14, 2003, without opinion. (Respondent's Mot. to Dism., Exh. 4 and 5).
In the present habeas corpus petition, filed on April 16, 2003, Petitioner challenges his incarceration on the grounds that it amounts to indefinite confinement for a debt without due process protection.
The federal petition is identical to the habeas application which Petitioner submitted to the Texas Supreme Court on April 4, 2003. (Respondent's Suppl. Record at Attch. B).
In response to this court's order to show cause, Respondent filed a motion to dismiss alleging Petitioner failed to exhaust his state court remedies. Petitioner filed an objection to the motion to dismiss. Thereafter, Respondent submitted a copy of Petitioner's habeas corpus proceedings before the Texas Supreme Court in Cause No. 03-0313. 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.
Petitioner maintains Respondent's motion to dismiss is untimely because it was not filed within a reasonable time of the April 24, 2003 order permitting proceeding in the district court. (Petitioner's Response at 5). Contrary to Petitioner's assertion, the April 24, 2003 order specifically provided that "[n]o further process shall issue [on Respondent] except upon further order of the Court." Respondent did not have notice of the petition in this case until service of the June 17, 2003 show cause order, which required Respondent to file an answer to the petition within thirty days. Respondent timely filed his answer and motion to dismiss on July 15, 2003.
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 Supp. 2003) (formerly Tex. Rev. Civ. Stat. Ann. art. 1737). Concurrently with the Texas Supreme Court, 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. 2003) (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, no writ). 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 Texas 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, no writ).
Petitioner exhausted his state remedies by presenting his claims to the Texas Supreme Court in an original habeas corpus proceeding — Cause No. 03-0313 — as is required by Tex. R. App. P. 52. Respondent asserts Petitioner failed to present his claims in a procedurally correct manner to the state courts — i.e., first to the Texas Court of Appeals and, only after receiving a ruling on the merits, to the Texas Supreme Court. (Respondent's Mot. to Dism. at 5). According to Respondent, allowing Petitioner "to circumvent a fair presentment of his claim first, to the Texas Court of Appeals . . . [would] deprive that court of its authority to interpret state law." (Id).
Although the proceeding in the Fifth Court of Appeals may not qualify as "an original habeas corpus proceeding" due to its subsequent dismissal for failure to pay the filing fee, the habeas proceeding before the Texas Supreme Court met that requirement. See Ridgway v. Baker, 720 F.2d 1409, 1413 (5th Cir. 1983) (to satisfy exhaustion requirement claim must be presented to highest court for review);Marshall v. Bowles, 2002 WL 31757631, 3:02cv0949-M (N.D. Tex., Dallas Div., Dec. 2, 2002) (adopting recommendation of the undersigned Magistrate Judge which held that original habeas corpus proceeding before Texas Supreme Court satisfied the exhaustion requirements of Tex. R. App. P. 52, even though Petitioner had not previously filed an original habeas corpus proceeding in the Fifth District Court of Appeals; petitioner had filed a state habeas corpus petition in the trial court, which in turn denied the petition for want of prosecution. Petitioner appealed and the Fifth Court of Appeals at Dallas dismissed the appeal for want of prosecution for failure to file a proper brief. Thereafter, Petitioner filed an original habeas corpus proceeding with the Texas Supreme Court, which denied the same without written order).
Respondent's unsupported argument to the contrary is unpersuasive. For purposes of exhaustion, the Supreme Court of Texas is the highest court in the state with jurisdiction to review a contempt order. Moreover, since the Texas Supreme Court filed Petitioner's habeas corpus application, considered it, and then denied the same, its order would now be treated by the Court of Civil Appeals as final disposition of the matter. See Ex parte Dillard. 577 S.W.2d 519, 522 (Tex.App.-Texarkana 1979, no writ). Accordingly, Respondent's motion to dismiss for failure to exhaust state remedies should be denied.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court deny Respondent's motion to dismiss and re-refer this case to the Magistrate Judge for further proceedings.
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 toDouglass 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.