Opinion
NO. 09-11-00640-CV
02-23-2012
IN RE LESLIE TROY HOLMES
Original Proceeding
MEMORANDUM OPINION
Leslie Troy Holmes petitioned for habeas relief from the trial court's judgment of contempt and from the order of commitment. On November 10, 2011, we ordered Holmes's release on bond pending the resolution of his petition. Holmes amended his petition, and the Office of the Attorney General filed a response. After reviewing the amended petition, the response, the appendix filed with the original petition, and the reporter's record that was filed on February 6, 2012, we deny habeas relief and remand Holmes to the custody of the sheriff to complete his concurrent 180-day sentences.
Holmes is the obligor on a November 30, 2000 order for child support of his three children. On July 11, 2011, the trial court found that Holmes failed to pay court-ordered child support in the amount of $480.00 that was due on the first day of the months of July through October 2007. The trial court found that Holmes could have timely paid the child support in full. The trial court ordered Holmes's commitment to the county jail for 180 days for each separate act of contempt, with the sentences to run concurrently, and ordered Holmes to appear before the court on November 4, 2011, to begin serving his sentence.
The Office of the Attorney General produced business records that showed an arrearage of $132,613.27 had accumulated from November 2000 through July 2011. The trial court's order includes a release of $40,000, which reflects Social Security benefits paid directly to the children's mother. See Tex. Fam. Code Ann. § 157.009 (West Supp. 2011). Other than the failure to pay the child support due on the first day of the four months mentioned in this Opinion, the trial court made no other findings of contempt in its order of July 11, 2011.
In his first issue, Holmes contends that the trial court erred in finding Holmes in contempt for failing to pay child support in the months of July 2007, August 2007, September 2007, and October 2007, as Holmes "had no ability to pay any monies towards his child support obligation." From the argument presented in the amended habeas petition, it appears that this first issue argues that Holmes lacked the ability to pay at the time of the hearing. Holmes argues that he filed a disability claim in 2002, that he was awarded a closed period of disability in 2009, and that efforts to collect additional disability benefits are ongoing. Citing Ex parte Ramon, Holmes contends that he is entitled to relief because he is unable to purge himself of contempt. See 821 S.W.2d 711, 713 (Tex. App.—San Antonio 1991, orig. proceeding). Ramon noted the relevant time periods for the affirmative defense of inability to pay for civil contempt and for criminal contempt. Id. "For this court to hold the criminal portion of the order invalid, relator must conclusively establish his inability to pay each child support payment as it accrued." Id. When the trial court orders the relator's confinement until he pays a specified amount of child support, "relator must conclusively establish that he is unable to pay the delinquency at the time of the contempt hearing, and that he has no source from which he might be expected to obtain the money to discharge the arrearage." Id. Holmes has been confined only for criminal contempt. Thus, the relevant time period for his inability to pay is the particular month in which the payment was due. Id. Holmes's current on-going efforts to obtain disability benefits would not preclude the trial court from finding Holmes in criminal contempt. We overrule issue one.
In his second issue, Holmes contends that the trial court erred in holding Holmes in contempt for the non-payment of child support in the months of July through October 2007, "as he had no ability to pay child support at that time as he was undisputedly adjudicated to be disabled at that time and unable to engage in any gainful activities" in those months. Holmes argues that the Social Security Administration has adjudicated Holmes to have been disabled from May 2002 through March 2009, and "since he did not receive a monthly check in July, August, September and October of 2007, he was unable to pay at that time."
"The involuntary inability to comply with an order is a valid defense to criminal contempt, for one's noncompliance cannot have been willful if the failure to comply was involuntary." Ex parte Chambers, 898 S.W.2d 257, 261 (Tex. 1995). The relator bears the burden of proving his inability to comply. Id.; see also Tex. Fam. Code Ann. § 157.008(c) (West 2008) (inability to pay is an affirmative defense). Social Security disability benefits are subject to proceedings for enforcement of child support obligations. See 42 U.S.C.A. § 659(a), (h)(1)(A)(ii)(I) (West Supp. 2010).
In the contempt hearing, Holmes admitted that in 2007 he received $60,000 in Social Security benefits and that he did not "turn any of that money over" to child support. Thus, some evidence supports the trial court's finding that Holmes failed to prove that he lacked the financial resources to provide the support ordered. We overrule issue two.
We deny the petition for writ of habeas corpus and remand Leslie Troy Holmes to the custody of the Sheriff of Jefferson County to serve the remainder of the sentence for contempt as ordered by the trial court.
PETITION DENIED.
PER CURIAM Before McKeithen, C.J., Kreger and Horton, JJ.