Opinion
No. 3:02-CV-0949-M
October 9, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case This is a petition for habeas corpus relief brought by a county inmate imprisoned for civil contempt for failure to pay child support, pursuant to 28 U.S.C. § 2241, et seq. Parties: Petitioner is presently incarcerated at the Dallas County Jail in Dallas, Texas. Respondent is Jim Bowles, Dallas County Sheriff Process has been issued in this case.
A person incarcerated for civil contempt is "in custody" for purposes of invoking habeas jurisdiction under 28 U.S.C § 2241. See Fernos-Lopez v. Figarella Lopez, 929 F.2d 20, 23 (1st Cir. 1991); see also Leonard v. Hammond, 804 F.2d 838, 840 (4th Cir. 1986) (indigents, imprisoned for civil contempt for failure to pay child support, could challenge constitutionality of confinement in habeas corpus action);Ridgway v. Baker, 720 F.2d 1409 (5th Cir. 1983) (habeas granted to civil contemnor imprisoned for nonsupport).
Statement of the Case: On April 22, 1996, the 256th Judicial District Court, Dallas County, Texas, held Petitioner in civil contempt for failing to pay child support in cause number 84-9218. (See Mot. to Dism. at 2 and Exh. A). The court ordered that Petitioner be committed to the Dallas County Jail until he pays (1) $58,000 in child support arrears to Dorinda Joyce Marshall through the Dallas County Child Support Office, (2) $36 in mandatory collection fees to Dallas County Child Support Office, and (3) $1,250 in attorney fees to George White. (Mot. to Dism., Exh. A at 8).
The classifications of civil and criminal contempt have nothing to do with the characterization of the underlying case or the burdensomeness of the contempt order. Rather, the distinction lies in the nature and purpose of the penalty imposed. In a civil contempt order, the court exerts its contempt power to persuade the contemnor to obey a previous order, usually through a conditional penalty. Because the contemnor can avoid punishment by obeying the court's order, the contemnor is said to "carr[y] the keys of imprisonment in his own pocket." Conversely, a criminal contempt order is punitive in nature and is an exertion of the court's inherent power to punish a contemnor for improper past acts, and no subsequent voluntary compliance can enable the contemnor to avoid punishment. See Cadle Co. v. Lobingier, 50 S.W.3d 662, 667 (Tex.App. — Fort Worth 2001).
On August 15, 1997, Petitioner filed a state habeas corpus petition in the 256th Judicial District Court. The trial court denied the petition for want of prosecution on March 3, 1998. Petitioner appealed. On December 9, 1998, the Fifth Court of Appeals at Dallas dismissed the appeal for want of prosecution. Jonathan Marshall v. Dorinda Marshall, No. 05-98-00674-CV. Thereafter, Petitioner filed a petition for writ of habeas corpus with the Texas Supreme Court, which denied the same without written order on April 1, 1999. In re Jonathan (Joe) Marshall. Sr., No. 99-0166.
In the present habeas petition, filed on May 6, 2002, Petitioner challenges his incarceration on the grounds that it amounts to indefinite confinement without a trial, a jury, appointment of counsel, and due process protection.
In response to this court's order to show cause, Respondent filed a motion to dismiss alleging Petitioner has failed to exhaust his state court remedies. Petitioner filed an objection to Respondent's motion to dismiss seeking to strike the same. Thereafter on September 23, 2002, in response to this court's order, Respondent supplemented the record by submitting a copy of Petitioner's habeas corpus proceedings before the Texas Supreme Court in Cause No. 99-0166. On October 7, 2002, Petitioner filed a response to the supplemental record.
Findings and Conclusions: In order to exhaust state remedies, a petitioner must present all of his claims to the highest state court for review. Ridgway v. Baker, 720 F.2d 1409, 1412-13 (5th Cir. 1983) (nonsupport contempt action). "Once a federal claim has been submitted to a state's highest court, the exhaustion requirement is satisfied, even if the court fails to address the federal claim." Id. at 1413.
In Texas, the only method to challenge a contempt order (if the contemnor is confined and the matter stems from a civil law matter) is through an original habeas corpus proceeding in the Texas Supreme Court or in a Texas Court of Appeals. See Tex. R. App. P. 52; Ex parte Acker, 949 S.W.2d 314, 316 (Tex. 1997) (civil and criminal contempt order presented to Texas Supreme Court in an original habeas corpus proceeding); Ex parte Rojo, 925 S.W.2d 654, 655 (Tex. 1996) (per curiam) (same); Ex parte Barnett, 600 S.W.2d 252, 253 (Tex. 1980) (same). The Texas Supreme Court has jurisdiction to issue writs of habeas corpus in civil matters pursuant to Texas Constitution Art. V, § 3 and Texas Government Code § 22.002(e) (Vernon Supp. 2002) (formerly Tex. Rev. Civ. Stat. Ann. art. 1737). Concurrent with the jurisdiction of the Texas Supreme Court, the Texas Courts of Appeals have jurisdiction to issue such writs in cases related to divorce, wife or child support, or child custody as prescribed by Texas Government Code § 22.221(d) (Vernon Supp. 2002) (formerly Tex. Rev. Civ. Stat. Ann. art. 1824a).
The Texas Courts of Civil Appeals were given habeas corpus jurisdiction in 1969 in order to relieve the Supreme Court of the vast workload associated with writs of habeas corpus arising out of divorce and family matters. Ex parte Dillard, 577 S.W.2d 519, 521 (Tex.Civ.App.-Texarkana 1979, no writ). Ordinarily, the Supreme Court will refuse to entertain writs of habeas corpus in family code matters unless the Court of Civil Appeals' concurrent jurisdiction has been unsuccessfully sought. Id. The Texas courts of civil appeals were redesignated as courts of appeals in 1982 and were granted jurisdiction over both civil and criminal appeals, except for capital murder convictions.
In addition to its appellate jurisdiction, the Texas Court of Criminal Appeals has original jurisdiction to entertain applications for writ of habeas corpus in both civil and criminal law matters. See Tex. Const. Art. V, § 5; Ex parte Moorehouse, 614 S.W.2d 450, 451 (Tex.Crim.App. 1981). Pursuant to its discretion, however, the Court of Criminal Appeals has declined to issue writs in cases arising out of civil matters where writ relief might also be sought from the Texas Supreme Court. Ex parte Wolf, 34 S.W.2d 277, 279 (Tex.Crim.App. 1930) (opinion on motion for rehearing). Accord Ex parte Cvengros, 384 S.W.2d 881, 882 (Tex.Crim.App. 1964); Moneyhun v. State, 140 S.W.2d 448, 449 (Tex.Crim.App. 1940);Ex parte Sauser, 554 S.W.2d 239, 240 (Tex.Civ.App.-Dallas 1977, no writ).
Petitioner exhausted his state remedies by presenting his claims to the Texas Supreme Court in an original habeas corpus proceeding — Cause No. 99-0166 — as required by Tex. R. App. P. 52. Respondent asserts Petitioner "failed to properly present his claims in a procedurally correct manner to either the Court of Appeals for the Fifth District of Texas at Dallas or the Texas Supreme Court." (Mot. to Dism. at 5). Although Petitioner did not file an original habeas proceeding with the Fifth Court of Appeals, his proceeding before the Texas Supreme Court complied with that requirement. See Ridgway v. Baker, 720 F.2d 1409, 1412-13 (5th Cir. 1983) (the state remedy exhaustion requirement was satisfied when it was presented to the Texas Supreme Court). Respondents' argument to the contrary is unpersuasive For purposes of exhaustion, the Supreme Court of Texas is the highest court in the state with jurisdiction to review a contempt order. Moreover, since the Texas Supreme Court filed Petitioner's habeas corpus application, considered it, and then denied the same, its order would now be treated by the Court of Civil Appeals as final disposition of the matter. See Ex parte Dillard, 577 S.W.2d 519, 522 (Tex.App.-Texarkana 1979, no writ). Therefore, the District Court should deny Respondent's motion to dismiss the petition as unexhausted.
Respondent relies on Beazley v. Johnson, 242 F.3d 248, 263 (5th Cir.), cert. denied, 122 S.Ct. 329 (2001), for the proposition that an "applicant must present his claims in a procedurally correct manner."Beazley is distinguishable. There the petitioner was procedurally barred from raising the claim; he did not raise the claim in his direct appeal or his state habeas petition, and a successive state habeas petition was precluded under Texas law. Id. at 264.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court deny Respondent's motion to dismiss and re-refer this case to the magistrate judge for further proceedings.
A copy of this recommendation will be mailed to Petitioner and counsel for Respondent.