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applying Section 157.161, holding that the unintelligible tape recording of an enforcement hearing was tantamount to no record, and granting habeas relief on the basis that the relator had been deprived of a statutorily required record of the contempt hearing
Summary of this case from In re E.F.Opinion
No. 09-07-241 CV
Submitted on May 24, 2007.
Opinion Delivered June 21, 2007.
Original Proceeding.
Before GAULTNEY, KREGER, and HORTON, JJ.
MEMORANDUM OPINION
Relator, Oswald Snider Carlton IV, challenges the trial court's contempt order of October 31, 2006, and the trial court's subsequent order committing Relator to jail. In four issues, Carlton asserts that his due process rights have been violated. On May 17, 2007, we set bond of $500.00 pending final determination of the merits of the petition. The Office of the Attorney General concedes that the lack of an audible record renders the contempt order unenforceable. Accordingly, we grant the petition for writ of habeas corpus, order that Carlton be released from the bond set by this Court on May 17, 2007, and order his discharge from custody.
On October 31, 2006, the associate judge heard the Attorney General's motion for enforcement of Carlton's child support and medical support obligation. At the conclusion of the hearing, the associate judge held Carlton in contempt on four counts of failure to pay court-ordered child support and assessed punishment on each count at 180 days of confinement, to be served concurrently. The trial court adopted the associate judge's orders. The subsequent commitment order required Carlton be confined in the county jail for 180 days and thereafter, until Carlton paid $10,000 in child support arrearages and $150 in attorney's fees.
Because the Attorney General's motion requested incarceration and Carlton did not waive his right to a record, a record was mandatory. Tex. Fam. Code. Ann. § 157.161 (Vernon 2002). The associate judge recorded the proceedings with a microcassette recorder. See Tex. Fam. Code. Ann. § 201.009 (c) (Vernon 2002). In his third issue, Carlton contends that his confinement violates due process because the recording is unintelligible. The Attorney General agrees that the record taken in this case is tantamount to no record. Habeas relief is appropriate in instances where the relator is deprived of a record of the contempt hearing. See Ex parte Fain, 750 S.W.2d 344, 345 (Tex.App.-Beaumont 1988, orig. proceeding).
Accordingly, we grant the petition for writ of habeas corpus filed by Oswald Snider Carlton IV on May 14, 2007, order Relator released from the bond set by this Court on May 17, 2007, and order Relator discharged from custody.
PETITION GRANTED.