Where the contemnor is sentenced to no more than six months confinement for each of several acts, the punishment is nonetheless serious if the sentences must be served consecutively so as to add up to more than six months confinement. In re Hammond, 155 S.W.3d 222, 226 (Tex.App.-El Paso 2004, orig. proceeding). Although relator's five 180-day sentences would exceed six months confinement if served consecutively, the trial court's contempt order clearly specifies that the periods of confinement "shall run and be satisfied concurrently."
Sunwest Reliance Acquisitions Grp, Inc. v. Provident Nat'l Assur. Co., 875 S.W.2d 385, 388 (Tex. App.-Dallas 1993, no writ); see also In re Hammond, 155 S.W.3d 222, 227 n.2 (Tex. App.-El Paso 2004, orig. proceeding) (holding that party waived her right to jury trial under TEX. R. CIV. P. 220 by proceeding to try case with no objection to the absence of a jury); Lambert v. Coachmen Indus. of Tex., Inc., 761 S.W.2d 82, 85 (Tex. App.- Houston [14th Dist.] 1988, writ denied) ("[W]aiver of a jury trial may be shown by mere acquiescence to the withdrawal of a jury request by the opposing party.").
Where the contemnor is sentenced to no more than six months confinement for each of several acts, the punishment is nonetheless serious if the sentences must be served consecutively so as to add up to more than six months' confinement. In re Hammond, 155 S.W.3d 222, 226 (Tex. App.—El Paso 2004, orig. proceeding). In addressing whether trial by jury was required, the court looks at the actual punishment, not the possible punishment.
When the contemnor is sentenced to confinement for no more than six months for each of several acts, the punishment is serious if the sentences must be served consecutively and add up to more than six months. In re Hammond, 155 S.W.3d 222, 226 (Tex. App.-El Paso 2004, orig. proceeding).
In the context of criminal and civil contempt, the contemnor must establish all four elements of the defense to establish a void order. In re Smith, 354 S.W.3d 929, 930-31 (Tex. App.—Dallas 2011, orig. proceeding); In re Mancha, 440 S.W.3d 158, 167 (Tex. App.—Houston [14th Dist.] 2013, orig. proceeding); In re Lausch, 177 S.W.3d at 156; In re Hammond, 155 S.W.3d 222, 228 (Tex. App.—El Paso 2004, orig. proceeding) (citing Ex parte Rojo, 925 S.W.2d 654, 655-56 (Tex. 1996)); Ex parte Williams, 704 S.W.2d at 467-68. Here, relator admitted not making the October 2016 through December 2016 payments and January 2017 payment and stated that he understood his obligation to pay. He presented evidence he had not made the payments because he was unemployed.
When the contemnor is sentenced to confinement for no more than six months for each of several acts, the punishment is serious if the sentences must be served consecutively so as to add up to more than six months. In re Hammond, 155 S.W.3d 222, 226 (Tex. App.—El Paso 2004, orig. proceeding). Mother alleged fifty-five separate violations and requested that relator be held in contempt and jailed for 179 days and fined for each violation.
Concerning the contempt allegations, "[t]here is no absolute right to a jury trial in a contempt proceeding." In re Hammond, 155 S.W.3d 222, 226 (Tex. App.-El Paso 2004, orig. proceeding) (citing Muniz v. Hoffman, 422 U.S. 454, 475-77, 95 S. Ct. 2178, 2190-91 (1975); Ex parte Werblud, 536 S.W.2d 542, 546-47 (Tex. 1976)). Accordingly, we conclude that Dr. Du Bois was not unconstitutionally denied her right to a jury trial.
A contemnor is not entitled to habeas relief based on this statute unless he conclusively established all four elements in the trial court. See Rojo, 925 S.W.2d at 656; In re Hammond, 155 S.W.3d 222, 228 (Tex.App. 2004, orig. proceeding); Ex parte Hightower, 877 S.W.2d 17, 20 (Tex.App. 1994, orig. proceeding). The "issue of the existence of an affirmative defense to a motion for enforcement does not arise unless evidence is admitted supporting the defense."
This type of conclusory statement does not meet the requirement of conclusively establishing an inability to pay. In re Hammond, 155 S.W.3d 222, 228 (Tex.App.-El Paso 2004, no pet.) (citing Ex parte Rojo, 925 S.W.2d at 656). Further, this statement does not indicate that Nash actually attempted to borrow the needed funds, as required by the statute.
We do not agree that the trial court had no authority to act in this instance. Rule 329b, which limits a trial court's plenary power to alter a judgment, does not apply to contempt orders. See Ex parte Anderson, 900 S.W.2d 333, 335 n. 1 (Tex. 1995); In re Hammond, 155 S.W.3d 222 (Tex.App.-El Paso 2004, orig. proceeding). A judgment of contempt is not appealable.