Summary
holding that relator had not waived his right to counsel because trial court held contempt hearing in which incarceration was a possibility but denied relator's requests to be allowed time to retain counsel
Summary of this case from In re ChambersOpinion
No. 01-04-00819-CV
Opinion issued October 14, 2004.
Original Proceeding on Petition for Writ of Habeas Corpus.
Panel consists of Justices TAFT, JENNINGS, and BLAND.
MEMORANDUM OPINION
Relator, Robert Leon, asserts that he is illegally restrained and seeks habeas corpus relief from a July 1, 2004 contempt and commitment order, that, among other things, assessed concurrent punishment for 26 separate violations of the trial court's previously entered child support order at confinement for 180 days in the Harris County jail. In his third issue, relator contends that his right to due process of law was violated when the trial court ignored his repeated requests that he be allowed to obtain counsel to represent him in the contempt hearing. We ordered relator released on bond, pending our final determination of relator's petition.
The underlying lawsuit is In the Interest of Jamie Leon and Jesse Leon, Minor Children, No. 1994-47182 in the 311th District Court, Harris County, Texas.
Factual Background
In November 1994, the trial court dissolved the parties' marriage and ordered relator to pay to Dayle $10,000 per month in child support for their two children. In April 2004, Dayle moved for contempt against relator for non-payment of child support. After relator did not appear at a May 27, 2004 show cause hearing, he was taken into custody by the Harris County Sheriff's office on June 29, 2004.
On July 1, 2004, relator, Dayle, and her attorney appeared before the trial court at the contempt hearing. Nothing in the record before us shows that relator had notice that the trial court would hear the contempt motion on July 1, 2004. The trial court determined that incarceration was a possible result of the proceedings. The trial court then asked relator if he wanted the trial court to make a determination whether relator was indigent and, thus, qualified to have a court-appointed attorney to represent him. Appellant responded that he would rather be given a reasonable time to hire an attorney. The trial court expressed concern about the likelihood of relator's returning to court in the future and instructed relator to fill out a questionnaire used to help determine indigency, which he did.
In a motion for enforcement, the trial court must first determine whether incarceration of the respondent is a possible result of the proceedings. Tex. Fam. Code Ann. § 157.163(a) (Vernon 2002).
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. § 157.163(b) (Vernon 2002).
Here the trial court did admonish relator of his right to the appointment of an attorney if he was indigent, but did not admonish relator of his right to be represented by a retained attorney if he was not indigent. As a practical matter, relator's frequent requests to the trial court to be allowed time to retain an attorney indicate that relator was aware of that right.
During the indigency hearing, Dayle's counsel accused relator of being hospitalized because he had overdosed on a controlled substance. At that point, relator demanded counsel. The trial court ignored relator's demand and continued hearing evidence on the question of relator's financial status. At several additional points during the indigency hearing, relator expressed a desire for retained counsel, but none of his requests proved successful.
The trial court found that relator was not indigent and proceeded with the contempt hearing without allowing relator to retain counsel. When relator asked the trial court, "Are we having a trial without an attorney present?" the trial court responded, "We are."
At the contempt hearing's conclusion, the trial court adjudged that relator was in contempt of court for 26 separate violations of the court's previously entered order of child support and assessed relator's concurrent punishment at confinement for 180 days in jail for each incident of contempt, and ordered that, after the service of the punitive contempt confinement, relator remain confined until he purged himself of contempt by paying $276,250 in child support arrearage, plus Dayle's attorney's fees, and court costs. The trial court's contempt order recites that relator appeared, "in person without attorney, and, after the court complied with Section 157.163 of the Texas Family Code, proceeded pro se."
Analysis
A writ of habeas corpus issues if a contempt order is void because it deprives the relator of liberty without due process of law, or because it was beyond the power of the court to issue. See Ex parte Swate, 922 S.W.2d 122, 124 (Tex. 1996); Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980).
The United States Constitution's Fourteenth Amendment guarantee of due process incorporates the Sixth Amendment assurance that the accused in a criminal prosecution has the right to counsel. Ridgway v. Baker, 720 F.2d 1409, 1413 (5th Cir. 1983). This right extends to every case in which the litigant may be deprived of his personal liberty if he loses. Id. The Texas Constitution, article I, section 10 provides that in all criminal prosecutions the accused shall have "the right of being heard by himself or counsel." Tex. Const. art. I, § 10. In Deramus v. Thornton, 333 S.W.2d 824 (Tex. 1960), the Supreme Court held that contempt proceedings are generally criminal in nature; accordingly, the proceedings in contempt cases should conform as nearly as practicable to those in criminal cases. Id. at 829.
Here, the trial court held a contempt hearing in which incarceration was a possibility and denied relator's repeated requests to be allowed time to retain counsel. Nothing in the record supports a finding that relator had waived his right to counsel. In fact, relator repeatedly requested that he be allowed to retain an attorney.
Dayle cites In re Butler, 45 S.W.3d 268, 272 (Tex.App.-Houston [1st Dist.] 2001, orig. proceeding) for the proposition that relator did not preserve error because he did not file a written motion for continuance. Butler is substantively distinguishable because Butler actually had retained counsel who was in trial in another court and had not filed a written motion for continuance. "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly the reasons presented to the trial judge at the time the request is denied." Ex parte Hosken, 480 S.W.2d 18, 21 (Tex.Civ.App.-Beaumont 1972, no writ) (quoting Unger v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 850 (1964)). Here, relator informed the trial court that he had no notice that a hearing on the motion for contempt would be conducted on July 1, 2004, and that he needed time to retain a lawyer. Accordingly, the trial court should have allowed relator a reasonable time to retain counsel. See Tex. Code Crim. Proc. Ann. Art. 1.051(a) (Vernon Supp. 2004-2005) ("A defendant in a criminal matter is entitled to be represented by counsel in an adversarial judicial proceeding. The right to be represented by counsel includes the right to consult in private with counsel sufficiently in advance of a proceeding to allow adequate preparation for the proceeding."); Ex parte Gonzales, 945 S.W.2d 830, 835-836 (Tex.Crim.App. 1997) (holding that article 1.051 should apply to criminal contemnors).
The trial court's denial of relator's request for time to retain counsel for the July 1 hearing violated relator's Sixth Amendment right to counsel as made applicable to the states under the Fourteenth Amendment, and relator's right to counsel under Article I, section 10 of the Texas Constitution. Accordingly, we sustain relator's third issue.
We hold that the portions of the July 1, 2004 contempt and commitment order that (1) sentence relator to 26 concurrent, 180-day periods of punitive confinement and (2) order him confined until he purges himself by paying the $276,250 child support arrearage, attorney's fees, and court costs, are void. We order relator discharged from the custody of the Harris County Sheriff and released from the $500 cash bond that he had posted until our final determination of relator's petition.
Because our resolution of relator's third issue concerning the violation of his due process rights to counsel disposes of relator's petition, we need not address his first, second, fourth, and fifth issues.