Opinion
No. 05-05-01401-CV
Opinion issued October 31, 2005.
Original Proceeding from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-52604-98.
Writ of Habeas Corpus Granted.
Before Justices WRIGHT, O'NEILL, and LANG.
MEMORANDUM OPINION
In this habeas corpus proceeding, relator James T. O'Connor complains of the trial court's order finding him in contempt and ordering him jailed for ten days. Among other issues, O'Connor complains the trial court violated his due process rights by finding him in contempt for actions he failed to take before the underlying order was signed. We agree with O'Connor. Accordingly, we grant the writ of habeas corpus, and we order O'Connor discharged.
O'Connor and his wife were divorced in June 1999. Under the agreed final decree of divorce, O'Connor was ordered to pay child support and to provide health insurance for the children. On May 4, 2005, the trial judge signed an order holding O'Connor in contempt for failing to pay child support, granting judgment for arrearages, and suspending O'Connor's commitment. The trial court ordered the following:
IT IS FURTHER ORDERED that [O'Connor] pay the attorney's fees and costs of $910.00 to Kyle G. Basinger at One Lincoln Center, 5400 LBJ Freeway, Suite 525, Dallas, TX 75240 at the rate of $91.00 per month beginning May 1, 2005 and continuing of [sic] the first day of each month thereafter until paid in full.
Three months later, O'Connor's ex-wife filed a motion to enforce the child support order. Following a hearing on the motion, the trial court found O'Connor guilty of twenty-two acts of contempt, including violating the May 4, 2005 order by not making the May 1, 2005 payment. The judge ordered O'Connor confined in jail for ten days. O'Connor filed this petition for writ of habeas corpus; real party in interest, his ex-wife, did not respond.
In his third issue, O'Connor complains the trial court violated his due process rights by finding him in contempt for failing to make the May 1, 2005 payment. Contempt arising from the violation of a court order is a constructive contempt. Ex parte Rodriguez, 568 S.W.2d 894, 897 (Tex.Civ.App.-Fort Worth 1978, orig. proceeding). It is the written order, signed by the court, which evidences a party's rights and duties. In re Sellers, 982 S.W.2d 85, 87 (Tex.App.-Houston [1st Dist.] 1998, orig. proceeding). A person cannot be held in contempt for conduct that occurred before the court's order is reduced to writing. Ex parte Chambers, 898 S.W.2d 257, 262 (Tex. 1995); Ex parte Rodriguez, 568 S.W.2d at 897; In re Sellers, 982 S.W.2d at 87.
While the commitment order contained findings on twenty-two violations, one of those violations was that O'Connor did not pay $91 to Basinger on May 1, 2005, even though the order giving rise to the obligation was not signed until May 5, 2005. We therefore conclude the trial court could not punish O'Connor for contempt for his failure to pay on May 1. See In re Sellers, 982 S.W.2d at 87 (concluding relator could not be held in contempt for not paying $200 in child support on June 15, 1996, when decree giving rise to obligation was not signed until June 18, 1996.) We sustain the third issue.
The trial court assessed a single punishment in this case for all of the violations — ten days in jail. If one punishment is assessed for multiple acts of contempt, and one of those acts is not punishable by contempt, the entire judgment is void. Ex parte Davila, 718 S.W.2d 281, 282 (Tex. 1986) (orig. proceeding). Consequently, we conclude the commitment order is void. Our disposition of this issue makes it unnecessary for us to address the remaining issues.
We grant habeas corpus relief and order relator James T. O'Connor unconditionally released and discharged from the custody of the Sheriff of Collin County pursuant to, and only from, the October 11, 2005 order holding relator in contempt and granting judgment for commitment to county jail, issued by the judge of the 366th Judicial District Court of Collin County, Texas in cause number 366-52604-98, styled In The Interest of Gillian Leigh O'Connor and Charlotte Grace O'Connor, Children.