Opinion
04-23-00401-CV
07-12-2023
IN RE SOFIA GALLEGOS
This proceeding arises out of Cause No. 2020-PA-01945, styled In the Interest of J.D., a Child, pending in the 150th Judicial District Court, Bexar County, Texas, the Honorable Mary Lou Alvarez presiding.
Sitting: Luz Elena D. Chapa, Justice Beth Watkins, Justice Lori I. Valenzuela, Justice
PETITION FOR WRIT OF HABEAS CORPUS CONDITIONALLY GRANTED
MEMORANDUM OPINION
Beth Watkins, Justice
Relator Sophia Gallegos, a caseworker supervisor for the Texas Department of Family and Protective Services, filed a petition for writ of habeas corpus asking this court to void an order for her arrest for failing to appear in court when the trial court did not first provide her notice that she was commanded to appear in court. We conditionally grant the petition.
Background
The child at the center of this case, sixteen-year-old J.D., is in the permanent managing conservatorship of the Department. On April 19, 2023, the trial court held a benchmark hearing. Gallegos was not present at the April 19 hearing. However, a caseworker she supervises, Stefanie Mack, was present, as was an attorney for the Department, Laura Valdes. The trial court questioned Mack:
To protect the privacy of the minor children, we use initials to refer to the children and their biological parents. TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
The court: Yesterday, Ms. Mack, I had asked what is the highest daily rate that the Department has contracted for a high acuity youth in the last six 6 months. What's that number?
Ms. Mack: I don't have that information. I sent the request up yesterday and was advised they didn't have that, and we've been working on gathering but we don't have that yet.
The court: Who is working on that?
Ms. Mack: I forwarded it to my supervisor Sofia Gallegos and she sent it up to her management above her. I'm not sure who the direct person who is looking into that.
The court: Ms. Stefanie Mack and Ms. Sofia Gallegos are ordered to appear before this Court in person tomorrow at 1:30. And for the record that's April 20th, 202[3] at 1:30. I need that order written up. You can't leave the courtroom until I sign it. Once it's signed it will be filed.
That same day, the trial court signed an order entitled Benchmark Hearing After Final Order providing "CPS employees Ms. Gallegos and Ms. Mack are ordered to appear in person for a hearing at 1:30 pm on 4/20/2023 to testify about highest rate contract paid by CPS in the last 6 months for high acuity youth[.]" Valdes signed this order. The record does not indicate that Gallegos was informed of this order.
Gallegos did not appear for the April 20 hearing. In response, the trial court issued an Order for Writ of Capias and Setting of Bond. In it, the trial court found:
Sofia Gallegos was personally ordered to appear in the 45th Judicial District Court . . . at 1:30 p.m. on April 20, 2023. The order was issued from the bench during a hearing in this cause on April 19, 2022. [sic]
Given Sofia Gallegos' failure to appear despite the direct Court order, the Court further finds that a writ of capias compelling Sofia Gallegos to appear as ordered should be issued....
The Court further finds that . . . no cash bond would be reasonable, conditioned on Sofia Gallegos' appearance in Court as required by the Court without further service of citation.
The Court finds that a writ of capias should be issued for the arrest of Sofia Gallegos.
It is ordered that the clerk of this Court issue a writ of capias, directed to the sheriff or any peace officer of any county within the state of Texas, commanding that sheriff or peace officer to take the body of Sofia Gallegos, and bring her before this Court for a hearing on the Court's intent to hold Sofia Gallegos in direct contempt.
In response to the capias order, Gallegos filed this petition for writ of habeas corpus, arguing: (1) the trial court lacked statutory authority to issue the capias order; and (2) the capias order is void because Gallegos was not provided with due process. We sua sponte stayed the capias order and invited a response from the respondent and the real parties in interest. The attorney ad litem for the child filed a response arguing that the capias order did not unlawfully deprive Gallegos of her liberty without due process. The respondent did not file a response. Because we agree that Gallegos did not receive due process, we conditionally grant the petition.
Analysis
Standard of Review
The purpose of a habeas corpus proceeding "is not to determine the ultimate guilt or innocence of the relator, but only to ascertain whether the relator has been unlawfully" confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding). A capias, subjecting an individual to arrest, restraint, and confinement, constitutes sufficient restraint of liberty to permit the filing of a petition for writ of habeas corpus. In re Tex. Dep't of Fam. &Protective Servs., No. 04-22-00226-CV, 2022 WL 1751013, at *3 (Tex. App.-San Antonio June 1, 2022, orig. proceeding) (mem. op.). A "'[r]elator is entitled to discharge in a habeas corpus proceeding if the order requiring [her] confinement is void, either because the court that issued the order lacked jurisdiction to enter it or because it deprived relator of [her] liberty without due process of law.'" Id. at *2 (quoting Ex parte Keith, No. 04-17-00641-CV, 2017 WL 5615494, at *2 (Tex. App.- San Antonio Nov. 22, 2017, orig. proceeding) (mem. op.)). The relator bears the burden of showing that the capias order is void. See In re Coppock, 277 S.W.3d 417, 418 (Tex. 2009) (orig. proceeding). Whether the trial court complied with the requirements of due process is a question of law we review de novo. See State v. Hodges, 92 S.W.3d 489, 494 (Tex. 2002).
Applicable Law
"Contempt of court is broadly defined as disobedience to or disrespect of a court by acting in opposition to its authority." Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995) (orig. proceeding). Contempt is a broad and inherent power of a court, but it should be exercised with caution. In re Reece, 341 S.W.3d 360, 365 (Tex. 2011) (orig. proceeding).
"Contempt may occur in the presence of a court (direct contempt), or outside the court's presence (constructive contempt)." Id. "In direct contempt cases, the court must have direct knowledge of the behavior constituting contempt, while the converse is true in a case of constructive contempt." Id. (internal citation omitted). "As a result of this distinction, the trial court in a direct contempt proceeding is entitled, in some instances, to conduct a summary proceeding in which the alleged contemnor is not entitled to notice and a hearing, while a constructive contemnor is always entitled to notice and a hearing in order to defend or explain the charges." Id. (internal citation omitted). "[C]onstitutional due process of law requires that notice of the accusation, an opportunity to prepare a defense, and an opportunity to be heard be afforded to the alleged constructive contemnor" Ex parte Gordon, 584 S.W.2d at 689-90. "[I]n situations of contempt committed outside the presence of the court, the contempt judgment must be based on a valid show cause order or equivalent legal process that contains full and unambiguous notification of the accusation of contempt." Id. at 690. That means the alleged contemnor must be personally served with a show cause order or it must be established that he had knowledge of the content of such order. Ex parte Blanchard, 736 S.W.2d 642, 643 (Tex. 1987) (orig. proceeding). Due process also "requires a court, before imprisoning a person for violating an earlier order, to sign a written judgment or order of contempt and a written commitment order." Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex. 1997) (per curiam) (orig. proceeding).
Application
As the capias order would be in effect absent the current emergency stay from this court, we find Gallegos has satisfied her burden of showing a restraint on her liberty. In re Tex. Dep't, 2022 WL 1751013, at *3. The capias order commands Gallegos to be brought before the trial court for a hearing with the intent to find her in direct contempt of court. But the failure to appear in court is a matter of constructive rather than direct contempt. Ex parte Alloju, 907 S.W.2d 486, 487 (Tex. 1995) (orig. proceeding) (per curiam); see also In re Oliver, 333 U.S. 257, 274-75 (1948) (direct contempt requires that the court-disturbing misconduct occur in the court's immediate presence). Gallegos was therefore entitled to the procedural safeguards due a constructive contemnor including notice and a hearing in order to defend or explain the charges. In re Reece, 341 S.W.3d at 365. But, as in In re Texas Department, the trial court issued the capias order without providing Gallegos the process she was due. 2022 WL 1751013, at *4.
Here, as there, the trial court issued the order: (1) after Gallegos failed to comply with an order that was made during a proceeding at which the Department was represented, but Gallegos was not personally present; and (2) even though the trial court had not apprised Gallegos of the accusations against her through a show cause order or a legal equivalent and had instead specifically stated no further notice was to be given to Gallegos. Id. at *1-4.
This capias order commands arrest before notice, before a hearing to defend or explain the charges, and before a written judgment or order of contempt. Ex parte Shaklee, 939 S.W.2d at 145; see also In re Reece, 341 S.W.3d at 365; Ex parte Gordon, 584 S.W.2d at 689-90. In that way, the trial court failed to provide Gallegos notice and an opportunity to be heard. See In re Reece, 341 S.W.3d at 365. Because Gallegos was not afforded the notice due process requires, the capias order is null and void. In re Tex. Dep't, 2022 WL 1751013, at *4.
Conclusion
We therefore conditionally grant the petition for writ of habeas corpus and direct the trial court, no later than fifteen days from the date of this opinion, to vacate the Order for Writ of Capias and Setting of Bond signed on April 20, 2023. We are confident the trial court will comply. The writ will issue only in the event we are informed it does not.