Opinion
03-23-00002-CV
10-31-2024
Tilana J. Toney, Appellant v. Steven Choe Strickland, Appellee
FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-10-006146, THE HONORABLE ORLINDA NARANJO, JUDGE PRESIDING
Before Byrne, Chief Justice Smith and Theofanis, Justices.
MEMORANDUM OPINION
Edward Smith, Justice
On December 27, 2022, the trial court signed an order finding Appellant Tilana J. Toney in contempt for multiple violations of an earlier order requiring Toney to pay child support and health-insurance premiums and to reimburse appellee Steven Choe Strickland for health-care expenses. The court sentenced her to thirty days in county jail for each violation, setting those sentences to run concurrently. On January 18, 2023, Toney filed her notice of appeal.
On that same date, Toney filed a second notice of appeal, which stated that she was appealing from a November 3, 2022 temporary order. However, the record does not reflect that any orders were signed on that date.
We do not have jurisdiction to review an order of contempt via direct appeal; such orders may only be reviewed via a petition for writ of habeas corpus or writ of mandamus. In re Janson, 614 S.W.3d 724, 727 (Tex. 2020) (orig. proceeding) ("Because contempt orders are not appealable, they are reviewable only by writ of mandamus or habeas corpus."); Pereira v. Pereira, No. 03-23-00402-CV, 2023 WL 5311503, *1 (Tex. App.-Austin, Aug. 18, 2023, no pet.) (mem. op.) ("Neither an order holding a party in contempt nor a temporary order in a suit to modify the parent-child relationship is appealable."); Cline v. Cline, 557 S.W.3d 810, 812 (Tex. App.-Houston [1st Dist.] 2018, no pet.) ("[d]ecisions in contempt proceedings cannot be reviewed on direct appeal because contempt orders are not appealable, even when appealed along with a judgment that is appealable").
When we asked Toney to explain how we might exercise jurisdiction over this appeal, she responded with arguments that limiting review of a contempt order to a habeas proceeding "would effectively allow the trial court to impose any sentence it sees fit as part of a contempt order, with the only recourse being after the service of the sentence, effectively rendering the appeal moot at that point"; that we should consider the contempt order a final, appealable order; that limiting review to habeas or mandamus review violates her "right to be heard in a Texas court of review" and allows trial courts to act without any check on their power; and that we should instead adopt the reasoning of other states and allow a contempt order to be reviewed via appeal. However, "[a]s an intermediate appellate court, we are not free to mold Texas law as we see fit but must instead follow the precedents of the Texas Supreme Court unless and until the high court overrules them or the Texas Legislature supersedes them by statute." Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565 (Tex. App.-Austin 2004, no pet.); see Lubbock County, Tex. v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) ("[i]t is not the function of a court of appeals to abrogate or modify established precedent"-that role lies exclusively with Texas Supreme Court).
Texas precedent is clear that an order of contempt may be reviewed only by a petition for writ of mandamus or writ of habeas corpus. Toney filed neither and instead sought review by direct appeal. See, e.g., Janson, 614 S.W.3d at 727; Pereira, 2023 WL 5311503, at *1; Cline, 557 S.W.3d at 812. We have no alternative but to dismiss her appeal for want of jurisdiction. See Pereira, 2023 WL 5311503, at *1.
We will occasionally construe an appeal as a petition for extraordinary relief in order to reach an appellant's issues rather than dismissing the appeal. See, e.g., In re Strickland, No. 03-22-00304-CV, S.W.3d, 2024 WL 3842012, at *34 (Tex. App.-Austin Aug. 16, 2024, orig. proceeding) (plaintiff appealed from order sustaining challenge to his assertion of indigence; majority construed appeal as request for mandamus relief because trial court's failure to comply with ministerial duty to hold de novo hearing was apparent on face of record and "implicate[d] issues of due process and access to justice"); In re Texas Dep't of Fam. & Protective Servs., No. 03-23-00155-CV, 2023 WL 4534970, at *2 (Tex. App.-Austin July 14, 2023, orig. proceeding) (mem. op.) (Department appealed from order granting new trial signed after trial court lost plenary power; we construed Department's appeal from void order as request for mandamus relief). However, as the majority explained in Strickland, "our typical practice is to construe an appeal as a mandamus petition only when the party specifically requests such treatment in the alternative." 2024 WL 3842012, at *3. In that case, the majority explained that it was deviating from that policy primarily due to concerns about due process and access to justice. Id. at *34. In this case, we asked Toney to provide a response about how we might exercise jurisdiction, explaining that our "jurisdiction is limited to appeals in which there exists a final or appealable judgment or order that has been signed by a judge" and that the issues Toney sought to appeal arose from "a contempt order that is not final or appealable," citing her to In re Janson, 614 S.W.3d 724, 727 (Tex. 2020) (orig. proceeding). In her response (and again in a reply brief filed after appellee also challenged our jurisdiction over the appeal), Toney argued that the trial court's contempt order "invokes the Constitutional protections" and that "to only allow the hearing of contempt orders through habeas is an unconstitutional limiting of the right to be heard on appeal." In other words, Toney specifically stated she was not seeking extraordinary relief. Further, her appellate issues challenge the trial court's evidentiary decisions and, importantly, our review of the record does not indicate that the trial court violated its ministerial duty, as in Strickland, when the trial court failed to conduct a required hearing, or that it lacked authority to act as in TDFPS, when the court signed an order well after it had lost jurisdiction.
Dismissed for Want of Jurisdiction