Opinion
No. 04-05-00934-CV
Delivered and Filed: February 1, 2006.
Original Habeas Corpus Proceeding.
This proceeding arises out of Cause No. 2001-CI-08683, styled In the Interest of Zachary Trey Goodwin, a Child, pending in the 37th Judicial District Court, Bexar County, Texas, the Honorable David A. Berchelmann, Jr., presiding.
Petition for Writ of Habeas Corpus Granted.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
This is an original habeas corpus proceeding brought by Kurt Lehr. At a hearing on a Motion for Enforcement of Child Support, Lehr, appearing pro se, was found in contempt for failure to pay child support, was sentenced to 180 days in jail, and was confined. Lehr filed a petition for a writ of habeas corpus with this court, challenging his confinement on six separate grounds. We agree that the order of contempt and commitment is void because the record does not reflect that the trial court admonished Lehr of his right to counsel or his right to appointed counsel as required under section 157.163 of the Texas Family Code. Accordingly, under Texas Rule of Appellate Procedure 52.8(c), we order Lehr discharged.
Factual Background
On June 5, 2003, the trial court signed a document entitled "Agreement for Final Orders," granting a divorce to Kurt Lehr and Nancy Leah Goodwin. The handwritten document, signed by Lehr and approved as to form by his attorney of record, named Lehr and Goodwin joint managing conservators of their son, Zachary, with Goodwin designated as primary joint managing conservator. The document further provided that "Child support will be $350 per month beg. 6/15/03." When Lehr failed to pay child support, Goodwin retained an attorney and filed an enforcement motion. The record reflects Lehr was personally served with the Motion for Enforcement on October 11, 2005, and ordered to appear in court on October 19, 2005. Lehr appeared in court on the appointed day without counsel.
The record of the hearing does not reflect that the trial court admonished Lehr of his right to counsel prior to the hearing. Instead, counsel for Goodwin affirmatively represented that the pro se respondent was ready to proceed: Mr. Ruiz: Your Honor, my name is Freddie Ruiz on behalf of Leah Goodwin, I'm here on a motion for enforcement of child support, I am ready. The Respondent is Kurt Lehr, L-e-h-r, and he is pro se and he is also ready, Your Honor. If I may proceed.
The Court: Okay. Yes, sir.
Subsequently, Lehr agreed in response to questioning by counsel for Goodwin that he had been served with a copy of the motion for enforcement, that he was obligated to pay child support in the amount of $350 per month which was set by agreement on final orders, and that he had not paid the support according to the schedule reflected in Petitioner's Exhibit 1, except for "several small discrepancies." After Lehr testified, the trial court found him in willful contempt of the court order, sentenced him to serve six months in the county jail or until he paid the sum of $8,270.00 in child support, and assessed a thousand dollars in attorneys fees as child support. On the same day, the trial court signed an order holding Lehr in contempt for failure to pay child support, granting judgment, and committing him to the county jail. Lehr was remanded to the county jail, where he remained at the time a petition for a writ of habeas corpus was filed with this court.
Discussion
The purpose of a habeas corpus proceeding is not to determine the ultimate guilt or innocence of the relator, but to ascertain whether the relator has been unlawfully confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). 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 relator bears the burden of showing that the contempt order is void and not merely voidable, and must conclusively establish his entitlement to a writ of habeas corpus. In re Pruitt, 6 S.W.3d 363, 364 (Tex.App.-Beaumont 1999, orig. proceeding). The appellate courts may order the contemnor released only if the judgment is void because of a lack of jurisdiction or because the contemnor was deprived of liberty without due process of law. In re Houston, 92 S.W.3d 870, 875-76 (Tex.App.-Houston [14th Dist.] 2002, orig. proceeding). The relator must bring forward an adequate record to establish the invalidity of the order of which he complains. See Tex.R.App.P. 52.7(a).
The Texas Family Code outlines the procedure to be followed in family law enforcement proceedings. See Tex. Fam. Code Ann. § 157.163 (Vernon 2002). The relevant statute provides in pertinent part:
§ 157.163. Appointment of Attorney.
(a) In a motion for enforcement or motion to revoke community service, the court must first determine whether incarceration of the respondent is a possible result of the proceedings.
(b) If the court determines that incarceration is a possible result of the proceedings, the court shall inform a respondent not represented by an attorney of the right to be represented by an attorney and, if the respondent is indigent, of the right to the appointment of an attorney.
Tex. Fam. Code Ann. § 157.163(a), (b) (Vernon 2002) (emphasis added). Therefore, when incarceration is a possible result of an enforcement proceeding, the trial court is required to advise a respondent of the right to be represented by counsel. Id. The law also requires that a record be made of an enforcement hearing, unless the parties agree that the order or the motion does not seek incarceration. See Tex. Fam. Code Ann. § 157.161 (Vernon 2002).
In the present case, incarceration was a possible result of the proceedings. The motion for enforcement states: "Movant requests that for each violation alleged above, Respondent be held in contempt, jailed for up to 180 days, and fined up to $500. . . ." Notwithstanding these pleadings, nothing in the record shows that the trial court informed Lehr of his right to counsel or questioned if Lehr was indigent and entitled to court-appointed counsel. The record shows that only one hearing was held on the motion for enforcement. At this hearing, Goodwin's attorney announced that Lehr was appearing pro se and that Lehr was ready. Goodwin's attorney immediately called Lehr as a witness. The trial court administered the oath to Lehr. Next Goodwin's attorney elicited testimony from Lehr to support his motion. At the conclusion of the hearing, the trial court signed the order holding Lehr in contempt. The contempt order recites that Lehr, "appeared in person, and, having waived the right to counsel, announced ready for trial." Lehr's signature appears at the bottom of the contempt order. However, the record contains no indication that Lehr knowingly and intelligently waived his right to counsel at the hearing.
Contempt proceedings are quasi-criminal in nature. Ex parte Brister, 801 S.W.2d 833, 835 (Tex. 1990) (Cook, J., concurring) (citing Ex parte Johnson, 654 S.W.2d 415, 420 (Tex. 1983)). When evaluating due process issues in a contempt proceeding, recitations in a judgment that are unsupported by the record are not controlling. Ex parte Caldwell, 416 S.W.2d 382, 384 (Tex. 1967) (orig. proceeding) (when a review of the entire record showed that the respondent was not served, contempt order's recitation that the respondent was duly cited did not control); Ex parte Moore, 567 S.W.2d 523, 526 (Tex.App.-Texarkana 1978, orig. proceeding) (same).
The record in this case does not show that Lehr was informed of his right to be represented by counsel or that counsel could be appointed if he was indigent. There is nothing in the record to support the recitation in the judgment that Lehr knowingly and intelligently waived his right to counsel. In the absence of a knowing and intelligent waiver of the right to counsel made on the record, the order holding Lehr in contempt is void. See Tex. Fam. Code Ann. §§ 157.163(a), (b); 157.161 (Vernon 2002); Ex parte Acker, 949 S.W.2d 314, 316 (Tex. 1997) (contempt order was void when the trial court failed to admonish relator of her right to counsel); Ex parte Keene, 909 S.W.2d 507, 508 (Tex. 1995) (contempt order was void when the record failed to show that the trial court informed the relator of the right to counsel in accordance with statutory requirements); Ex parte Gunther, 758 S.W.2d 226, 227 (Tex. 1988) (same). Accordingly, we grant the requested writ and order Lehr discharged.