Opinion
No. 01-08-00928-CV
Opinion issued April 30, 2009.
Original Proceeding on Petition for Writ of Habeas Corpus.
Panel consists of Justices TAFT, BLAND, and SHARP.
MEMORANDUM OPINION ON MOTION FOR REHEARING
Relator, Clifford Alan Casey, requests habeas corpus relief from a commitment order signed by the trial court on November 17, 2008 and a child support enforcement order signed by the trial court on February 26, 2008. The real parties in interest are the Office of the Attorney General and Emily Engstrom. The Office of the Attorney General filed a response brief to relator's petition for writ of habeas corpus, but Engstrom did not. We grant relief as to the commitment order, but deny relief as to the enforcement order.
The underlying lawsuit is In the Interest of Dylon R. Engstrom, No.CCL4486; in the County Court at Law of Washington County, Texas.
Background
After a February 25, 2008 hearing, at which relator was represented by counsel, the associate judge of the trial court prepared a report that ordered relator committed to the county jail for 90 days as punishment for each of the eight instances for which it found that relator had violated portions of the trial court's divorce decree that required him to pay child support and medical support. The associate judge ordered that relator serve the 90-day sentences concurrently and appear on June 23, 2008 for his commitment to confinement. On February 26, 2008, the trial court adopted the associate judge's report as its "Order Enforcing Child Support and Medical Support Obligation" (enforcement order). On June 23, 2008, the trial court recessed the commitment to July 21, 2008. It ordered that relator make regular child support and medical support arrearage payments as previously ordered and that failure to do so would cause relator to be remanded to jail to serve his previously ordered confinement.
On July 21, 2008, the trial court reviewed relator's deferred commitment and reset the commitment for November 17, 2008. The trial court reduced relator's child support and medical support arrearage to judgments. It ordered that he pay the judgments by paying $50 on each judgment on the first of the month, starting August 1, 2008, and that he pay the same amount on the first of each month thereafter until the judgments were paid. The trial court also ordered that by the November 17, 2008 reset commitment date, relator pay $1,000 directly to counsel for Engstrom for attorney's fees incurred since a February 2, 2008 order.
On November 17, 2008, relator appeared before the trial court without counsel. The trial court did not admonish relator of his right to counsel. The trial court took evidence concerning relator's compliance with its prior orders and determined an amount by which relator was non-compliant. When relator could not produce funds sufficient to satisfy the deficiency, the trial court remanded relator to the custody of the sheriff. The trial court issued a November 17, 2008 commitment order reciting that in its February 26, 2008 order, it had found relator in contempt for not having made court ordered child support payments, that it had ordered relator committed to the county jail for 180 days for each separate act of contempt, to run concurrently, and that it had currently found that there was no reason why such confinement should not be imposed.
This was an error because the sentences were for 90 days, not 180 days.
Analysis
Relator contends that he is entitled to his unconditional release because the trial court did not admonish him of his right to counsel or seek his knowing and intelligent waiver of this right at the November 17, 2008 compliance hearing to revoke his suspension of commitment, at which relator appeared without an attorney. In its brief, the Office of the Attorney General responds that the February 26, 2008 enforcement order did not suspend relator's commitment, nor did it order relator to reappear for a compliance hearing, but, rather, ordered him to appear on June 23, 2008 to begin commitment to the county jail. Nevertheless, it is clear from the wording of the June 23, 2008 and July 21, 2008 orders, as well as the recording of the November 17, 2008 hearing, that the nature of the November 17, 2008 hearing, with relator's incarceration as one of its possible outcomes, was similar to a hearing on a motion to revoke a probated sentence. As such, relator was entitled to be admonished of his right to counsel. See In re Ohiri, 95 S.W.3d 413, 415 (Tex.App. 2002, orig. proceeding) (holding that compliance hearing, with one of its possible outcomes being relator's incarceration, triggered a statutory duty of the trial court under Texas Family Code, section 157.163(b) to admonish relator of his right to counsel). Because relator's statutory right to be advised of his right to counsel was violated, he is entitled to his unconditional release from the restraint ordered by the trial court in its November 19, 2008 commitment order. See Ohiri, 95 S.W.3d at 415.
"If the court determines incarceration is a possible result of the proceedings, the court shall inform a respondent not represented by an attorney of the right to be represented by an attorney and, if the respondent is indigent, of the right to the appointment of an attorney." TEX. FAM. CODE ANN. § 157.163(b) (Vernon 2008).
Without supporting argument in his petition, relator prays that we also find void the trial court's February 26, 2008 "Order Enforcing Child Support and Medical Support Obligation." Relator acknowledges that he was represented by counsel at the hearing from which the February 26, 2008 enforcement order arose. We decline to declare it void.
Conclusion
We order relator unconditionally released from the custody of the Sheriff of Washington County and any bond posted by relator or on his behalf in connection with this proceeding to be discharged. We note that this opinion addresses only the validity of the November 19, 2008 commitment order and does not relieve relator's obligations under any of the trial court's other orders.