Opinion
No. 04-17-00641-CV
11-22-2017
EX PARTE Rollie Bryan KEITH
CONCURRING OPINION
Original Habeas Proceeding From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-09063
The Honorable Eric Rodriguez, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice
Concurring Opinion by: Marialyn Barnard, Justice Sitting: Marialyn Barnard, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice
This proceeding arises out of Cause No. 2014-CI-09063, styled In the Interest of T.M.H, a Child, pending in the 285th Judicial District Court, Bexar County, Texas, Honorable Eric Rodriguez presiding.
I join the majority's opinion holding the Order for Issuance of Capias and capias were issued in the underlying cause in violation of Rollie Bryan Keith's due process rights. I write separately to express my concern regarding the associate judge's entry of the Order despite Keith's written objection pursuant to section 201.005 of the Texas Family Code. See TEX. FAM. CODE ANN. § 201.005 (West Supp. 2016) (allowing trial on the merits to be referred to an associate judge unless a party objects in writing).
It cannot be disputed that Keith filed a written objection pursuant to section 201.005. In addition, when Keith and his attorney signed the draft reset order, Keith's attorney handwrote beneath their signatures, "subject to, and without waiving previous objection to associate judge." The attorney representing the Office of the Attorney General was undeniably aware of Keith's objection, stating in an email:
I am aware that you have objected to the Associate Judge; this is a mechanism to get the reset in place, not to get you to agree to the Associate Judge. I figure we can get a hearing set in Presiding once the service has been accomplished.
Keith signed a waiver of service at the same time as he signed the draft reset order.
Despite Keith's objection and the acknowledgment of that objection by the attorney representing the Office of the Attorney General, the associate judge signed the Order for Issuance of Capias when Keith failed to appear at the hearing on August 30, 2017. The order states that a hearing was held on August 30, 2017, and the associate judge found Keith was duly served with notice to appear for the "hearing on a Motion for Enforcement." The order also states that because Keith failed to appear, a capias would be ordered for his arrest. The capias states that it was issued based on Keith's "fail[ure] to appear at a hearing regarding a Motion for Enforcement."
Although the attorney appearing at the hearing for the Office of the Attorney General was not the attorney who sent the email to Keith's attorney, the attorney who appeared at the hearing was copied on that email, and the court's file necessarily contained Keith's written objection.
In this context, I believe a hearing on a motion for enforcement is the equivalent of a trial on the merits. In fact, two of the statutes giving a trial court the authority to issue an order for capias in this context expressly recognize the trial court can grant a default judgment at the same time it issues the capias. See TEX. FAM. CODE ANN. §§ 157.066; 157.115 (West 2014); see also In re A.B.A.T.W., No. 05-04-00676-CV, 2005 WL 1793196, at *1 (Tex. App.—Dallas July 29, 2005, no pet.) (mem. op.) (holding section 157.066 authorizes trial court to enter a default judgment if respondent fails to appear at a hearing on a motion for enforcement). Accordingly, I strongly question whether the associate judge had the authority to sign the Order for Issuance of Capias. Because Keith is entitled to habeas relief based on the due process violation, however, I agree with the majority that we need not decide this issue.
Marialyn Barnard, Justice