Opinion
06-22-00068-CV
10-21-2022
IN RE KELLY SHALENE PHILLIPS
Date Submitted October 20, 2022
Original Habeas Proceeding
Before Morriss, C.J., Stevens and van Cleef, JJ.
MEMORANDUM OPINION
Scott E. Stevens, Justice
In this original proceeding, Relator Kelly Shalene Phillips seeks habeas relief from an order finding her in contempt and ordering her confined in jail for violating a provision of a 2022 order in a suit to modify the parent-child relationship. In her petition, Phillips contends that (1) the judgment of contempt and the commitment order are void because the motion for contempt was not sufficiently specific and there was no proof that her conduct violated the trial court's underlying order; and (2) the judgment of contempt and the commitment order are void because the underlying order is not sufficiently specific. This Court requested, and received, a response from real party in interest, Ronald Dean Carter, on September 26, 2022. After reviewing Phillips's habeas petition, Carter's response, and the record before us, we conclude that Phillips is entitled to the relief requested, and we grant the writ of habeas corpus.
Gregg County Sheriff Maxey Cerliano also filed a response as a real party in interest. After reviewing his response, the Court determined that Cerliano's actions had little, if any, relevance to this proceeding.
I. Background
The trial court's January 6, 2022, order in a suit to modify the parent-child relationship stated, in relevant part, as follows:
IT IS ORDERED that the parties shall be subject to random drug screenings as may be requested by the other party.
IT IS ORDERED that any screening shall be conducted at a facility designated by the requesting party, to be located in the town where the testing party is or will be located during the required testing window, that is to say, if the testing party is out of town for work or travel, then the requesting party shall schedule testing in the location where the testing party is or will be located at the time of testing. IT IS ORDERED that at least eight hours' notice shall be
provided by the requesting party to the testing party. IT IS ORDERED that notice may be given to a party through his or her attorney of record or through Our Family Wizard by providing notice of the test and Name and Address for the testing facility. Upon receipt of notice by the requesting party, the testing party is ORDERED to personally appear with photographic identification at the testing facility and to submit any form of same which has been pre-paid by the requesting party, within eight (8) hours receipt of the notice or before 9:00 a.m. on the day after the request is made if the request is not made before 9:00 a.m. of a day. IT IS ORDERED that the party requesting the test shall be responsible for the advance payment of the test. It is intended that all results for all tests be shared between the parties. IT IS ORDERED that, upon receipt by any party of a screening result, the receiving party shall, within three days of his or her receipt, deliver a copy of the screening to the counsel for the other party. IT IS ORDERED that any testing party shall execute all authorizations required by the testing facility to share the results and other information regarding the tests. Neither party shall take any action to alter their hair, nail, or urine in any manner which has the effect of rendering the party's hair, nail, or urine un-testable.
IT IS FURTHER ORDERED that neither party may be compelled to submit to a hair follicle drug test within 30 days from the previous hair follicle test.
IT IS FURTHER ORDERED that, in the event either party fails or refuses to appear for a requested drug test pursuant to the above guidelines, then such test shall be deemed a failed test.
Carter maintains that, on July 14, 2022, he delivered to Phillips a notice requiring her to appear at Texas Alcohol & Drug Testing Service in Longview, Texas, to submit to a prepaid drug test as required by the court in its January 6 order. The notice stated, "THIS DOCUMENT
IS SERVED TO KELLY SHALENE PHILLIPS ON BEHALF OF DEAN CARTER."
Attached to the notice was an "Officer/Authorized Person Return," stating that Phillips had been personally served at 2:00 p.m. on July 14.
On July 21, 2022, Carter filed a motion for enforcement and order to appear, restating verbatim the drug testing provisions that were set forth in the court's January 6 order and alleging that Phillips did not appear for the requested drug test, thereby violating the court's order. Carter asked the court to find Phillips in contempt, to jail her "for up to 180 days," and to fine her "up to $500." On September 15, 2022, the court held a hearing on Carter's motion. Both parties and their attorneys were present. After examining the record, hearing testimony, and considering arguments of counsel, the trial court entered an order on September 16, 2022, finding Phillips guilty of violating the court's order by failing to appear for the requested drug testing. The order stated:
The Court . . . finds that on the day of this hearing Respondent had the ability to comply with the prior order of the Court.
Relief Granted
IT IS ADJUDGED that Respondent, Kelly Shalene Phillips, is in contempt for the violation enumerated above.
IT IS ORDERED that Respondent, Kelly Shalene Phillips, shall be confined in the county jail of Gregg County, Texas, for a period of sixty (60) days.
IT IS FURTHER ORDERED that the commitment of sixty (60) days is suspended for a period of twenty-four (24) months on the following terms and conditions:
1. IT IS ORDERED that Respondent serve five (5) days in the Gregg County Jail as set forth below; and
2. IT IS ORDERED that Respondent complies with the orders of this Court.
The court ordered that Phillips's jail time would begin at 10:00 a.m. on September 19, 2022, and end at 3:00 p.m. on September 23, 2022. Phillips complied with the court's instructions and was booked into the Gregg County Jail on September 19.
On September 19, 2022, Phillips filed her petition for a writ of habeas corpus, arguing (1) that the judgment of contempt and the commitment order are void because the motion for contempt was not sufficiently specific and that there was no proof that her conduct violated the trial court's underlying order and (2) that the judgment of contempt and the commitment order are void because the underlying order is not sufficiently specific. Because the trial court's underlying order and the court's show cause order did not afford Phillips due process, we grant her petition for a writ of habeas corpus.
II. Discussion
An appellate court has limited jurisdiction over a habeas corpus proceeding. In re Spriggs, 528 S.W.3d 234, 236 (Tex. App.- Amarillo 2017, orig. proceeding) (stating appellate courts have habeas jurisdiction only where party's "restraint of liberty arises from violation of an order, judgment, or decree previously made by a court or judge in civil case"). We do not determine whether a contemnor is guilty or innocent but only determine whether she is unlawfully confined or subject to an unlawful restraint on her liberty. See Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding). In a habeas corpus proceeding, the order or judgment challenged is presumed to be valid. Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex. App-Houston [1st Dist] 1990, orig. proceeding)). "A writ of habeas corpus will not issue if the order is merely erroneous." Ex parte Swate, 922 S.W.2d 122, 124 (Tex. 1996) (orig. proceeding). Yet, a writ will issue if a trial court's contempt order is void due to the court's lack of power to issue the order or because it deprived the relator of her liberty without due process. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (per curiam) (orig. proceeding). It is the relator's burden to show her entitlement to relief. In re McLaurin, 467 S.W.3d 561, 564 (Tex. App - Houston [1st Dist] 2015, orig. proceeding).
"Contempt is . . . classified into either civil or criminal contempt. In determining whether contempt is civil or criminal, it is necessary to examine the purpose behind the contempt order." In re Reece, 341 S.W.3d 360, 365 (Tex. 2011) (orig. proceeding). An order that confines a contemnor "unless and until he performs [some] affirmative act" is a judgment of civil contempt. Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 631-32 (1988). "[W]hen civil contempt is imposed, the order must spell out exactly what duties and obligations are imposed and what the contemnor can do to purge the contempt." In re Bannwart, 439 S.W.3d 417, 421 (Tex. App - Houston [1st Dist] 2014, orig. proceeding). "A commitment order must specify in clear language the actions which the contemnor must perform in order to gain release." Ex parte Williams, 866 S.W.2d 751, 753 (Tex. App-Houston [1st Dist.] 1993, orig. proceeding). When a contemnor can avoid incarceration by obeying a court's order, it has been said that a civil contemnor "carr[ies] 'the keys of [his] prison in [his] own pocket[].'" Shillitani v. United States, 384 U.S. 364, 368 (1966) (quoting In re Nevitt, 117 F. 448, 461 (C.A. 8th Cir. 1902)).
On the other hand, criminal contempt is punitive in nature. Ex parte Werblud, 536 S.W.2d 542, 545 (Tex. 1976) (orig. proceeding). "Criminal contempt is punishment for past disobedience to a court order that constitutes an affront to the dignity and authority of the court." In re Houston, 92 S.W.3d 870, 876 n.2 (Tex. App.-Houston [14th Dist.] 2022, orig. proceeding). Confinement for criminal contempt is for a definite period of time and is unconditional. Hicks, 485 U.S. at 632. In other words, there is nothing the contemnor can do to purge herself of the contempt. Id. at 634. A finding of criminal contempt "for disobedience [of] a court order requires proof beyond a reasonable doubt." Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995) (orig. proceeding). Here, because the trial court's order relates to punishment for disobedience of a court order, the order of contempt was criminal in nature.
Moreover, contemptuous conduct is classified as either direct or constructive. Ex parte Werblud, 536 S.W.2d at 546. "A direct contempt occurs within the presence of the court; while a constructive, or indirect, contempt occurs outside the presence of the court." Id.
In this case, the trial court found Phillips in constructive contempt since Phillips allegedly failed to comply with a court order outside of the presence of the court. In cases of constructive contempt, due process requires that, before a court can punish an accused contemnor, the accused must have full and complete notification of the subject matter, and the court's show cause order must state when, how, and by what means the contemnor has been guilty of the alleged contempt. In re Zandi, 270 S.W.3d 76, 77 (Tex. 2008) (per curiam) (orig. proceeding).
In In re Reagan, No. 05-00-00651-CV, 2000 WL 772816, at *2 (Tex. App.-Dallas Jun. 16, 2000, orig. proceeding) (not designated for publication), the real party in interest argued that Reagan had notice of the charges against him by reading the other documents on file. The Dallas Court of Appeals rejected that argument, stating that it was "not the responsibility of the accused to search an entire record of a case to glean what possible actions are subjecting him to sanction by contempt." Id. The court further noted that notice might be satisfied by specific recitations in the show cause order or through specific incorporation and attachment of documents on file which set forth the alleged contemptuous acts. Id. In this case, the trial court stated in its order to appear that Phillips would be required "to appear and respond to this Motion for Enforcement." Assuming, without finding, that Carter's motion contained sufficient notice of the allegations against Phillips, for the reasons below, notice in this case was still inadequate.
The trial court did not issue a "show cause order" in this case but, instead, issued an "order to appear," which was attached to a copy of Carter's motion for enforcement. The order to appear stated, "Respondent, Kelly Shalene Phillips, is ORDERED to appear and respond to this Motion for Enforcement in the 307th District Court on the first Thursday following the expiration of 10 days from the date of service at 1:15 p.m. The purpose of this hearing is to determine whether the relief requested in this motion should be granted." Below the court's signature line, the order informed Phillips that if her "hearing [fell] on August 4th, it [would be] reset to August 11th at 1:15 p.m."
After reviewing the record, we find that the trial court's order to appear and Carter's motion for enforcement are deficient regarding the notice requirement. First, the trial court's order to appear did not notify Phillips that she would be, or even could be, incarcerated if she was found in contempt for failure to comply with the drug-testing provision. See In re Houston, 92 S.W.3d at 877 ("Here, not only did the show cause notice fail to advise relator of the specific acts of contempt, it also failed to provide notice that criminal confinement and a criminal penalty would be sought as punishment."); In re Acevedo, No. 13-05-335-CR, 2005 WL 1714310, at *2 (Tex. App - Corpus Christi 2005, orig. proceeding) (per curiam) (mem. op., not designated for publication) ("Show cause notices must advise the alleged contemnor of the specific acts of contempt and provide notice that criminal confinement and a criminal penalty will be sought as punishment."); Oscar M. Telfair, III, P.C. v. Bridges, 161 S.W.3d 167, 172 (Tex. App - Eastland 2005, no pet.) (show cause order warned law firm that possible punishment for contempt was fine of not more than $500.00 and confinement).
Second, we note that the trial court's January 6 order set out specific warnings regarding the parties' failure to comply with specific provisions of that order. For instance, in regard to the exchange of information, the parties were warned:
FAILURE BY A PARTY TO OBEY THE ORDER OF THIS COURT TO PROVIDE EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY WITH THE CHANGE IN THE REQUIRED INFORMATION MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS.
Moreover, in regard to the parties' child support obligations and their rights to possession of the child, the order stated:
WARNINGS TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR CHILD SUPPORT OR FOR POSSESSION OF OR ACCESS TO A CHILD MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS.
Yet, the order did not advise the parties that they could be subjected to confinement if they were found to be in contempt for failure to appear for, and submit to, drug testing at the other parties' behest. Likewise, Carter's motion for enforcement against Phillips failed to point to any such notice provision in the underlying order. For these reasons, we find that Phillips did not have "full and complete notification of the subject matter" and, as such, the trial court's order to appear and its contempt judgment are void. See In re Zandi, 270 S.W.3d at 77
III. Conclusion
Accordingly, we (1) grant Phillips's petition for a writ of habeas corpus, (2) declare void the trial court's order to appear; (3) declare void the trial court's contempt judgment dated September 16, 2022, and (4) discharge Phillips from the obligations contained in the trial court's order of contempt and order of confinement.