Opinion
No. 05-09-00450-CV
Opinion Filed July 28, 2009.
Original Proceeding from the 303rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. DF-9915212.
Before Justices BRIDGES, O'NEILL, and LANG.
MEMORANDUM OPINION
Before the Court is relator's May 18, 2009 Amended Petition for Writ of Habeas Corpus. In response to relator's amended petition, real party in interest Karen Bains-Gulley filed a Motion to Stay the Proceedings, requesting this Court stay these proceedings "pending the results of the Motion to Clarify procedure." For the reasons discussed herein, we DENY Bains-Gulley's motion to stay the proceedings. We GRANT the writ of habeas corpus and order Gulley discharged.
In this habeas corpus proceeding, relator Anthony Bernard Gulley complains of the trial court's order finding him in contempt and ordering him jailed until he paid child support arrearages, attorney fees, court costs, and service fees. Relator contends he is wrongfully incarcerated on a coercive civil contempt order that he does not have the ability to purge.
On June 23, 2008, the trial court found relator in contempt for failure to make court-ordered child support payments and ordered relator committed to "jail for 90 days for each separate act of contempt, said commitments to run concurrently." Relator discharged his sentence for criminal contempt. On April 16, 2009, based on its order of June 23, 2008, the trial court signed an order stating relator was "presently able to pay arrearages, attorney fees and costs due" and committed relator to jail for coercive contempt until he paid $24, 172.82 in child support arrearage, $3,000 in attorney fees, $23 in court costs, and $140 in service fees. The commitment order of April 16, 2009 states relator appeared before the trial court and the trial court had "no reason why said sentence should not be imposed."
Relator filed a Petition for Writ of Habeas Corpus in Trial Court on April 29, 2009. The record does not reflect the trial court's disposition of that motion. Relator's Petition for Writ of Habeas Corpus was filed in this Court and subsequently denied on May 1, 2009. See In re Gulley, No. 05-09-00450-CV, 2009 WL 1176614, at *1 (Tex.App.-Dallas May 1, 2009, no pet.). On May 18, 2009, relator in this Court filed an amended petition and a motion for rehearing that we granted on June 2, 2009. On July 17, 2009, in response to relator's amended petition, Bains-Gulley filed a motion to stay the proceedings. In that motion, Bains-Gulley requests this Court stay these proceedings "pending the results of the Motion to Clarify procedure" in the trial court. However, in her motion to stay the proceedings, Bains-Gulley also contends the commitment order of April 16, 2009 for coercive contempt is in error. She states the commitment order is not supported by evidence, statements, or conclusions of the trial court that "would be a prerequisite to civil contempt incarceration." Further, Bains-Gulley contends:
It may be improper for the Court to enter orders that require Respondent to pay a sum of money in order to be released from incarceration, where there was no evidence that Respondent had the present ability to pay that amount, borrow, or otherwise secure that sum of money from any source, if the contempt sought was civil.
We agree with Bains-Gulley's contentions. On this record, not all of the recitations in the order of commitment of April 16, 2009 pursuant to which relator is incarcerated are founded upon evidence and conclusions announced by the trial court when the trial court signed the written order. The order of commitment should be set aside.
Accordingly, Bains-Gulley's motion to stay the proceedings is denied. Relator's petition for writ of habeas corpus is granted and we order Gulley unconditionally released and discharged from the custody of the Sheriff of Dallas County which custody is pursuant to and only from the Commitment Order dated April 16, 2009 signed by the judge of the 303rd District Court of Dallas County, Texas in cause no. 99-15212-V, styled In the Matter of the Marriage of Karen Bains-Gulley and Anthony Bernard Gulley and In the Interest of Amnda Gulley, a Child, and the Writ of Commitment dated April 16, 2009 issued by the District Clerk of Dallas County, Texas, in the afore referenced cause.