Original Proceeding on
Petition for Writ of Habeas Corpus
MEMORANDUM OPINION
By way of direct appeal, William Jones challenged an order revoking community supervision in which the trial court carried out its contempt order by committing him to county jail for not making child support payments.
On June 26, 2003, this Court issued an order stating that decisions in contempt proceedings are not appealable, but subject to attack only by petition for writ of habeas corpus. We advised Jones that, unless he responded to the order with legal authority demonstrating his right to proceed by way of direct appeal, the appeal would be dismissed for lack of jurisdiction. Jones responded with a motion requesting that his appeal be changed to a petition for writ of habeas corpus. That motion is granted.
In the petition's first ground for relief, relator asserts that the trial court's order revoking community supervision is void because it enforces an August 3, 1990 "Order To Establish Parent-Child Relationship," which is itself void. This cause originated as a "Title IVD" (1) case in which the Texas Attorney General sought to establish relator as the father of minor child, P. H., in order to recover money for public assistance that the State of Texas had paid on her behalf and to establish child support for her in the future. The trial court, on August 7, 1989, had issued an omnibus order appointing a master to hear all IVD cases in which a hearing was requested. The Attorney General's action against relator was referred to the IVD master. The master held a hearing and recommended to the trial court the adoption of orders finding relator to be P.H.'s father, and directing him to pay $6174.00 to reimburse the State for public assistance it had previously paid on the child's behalf, as well as $135 per month child support for her in the future. The trial court adopted the orders recommended by the master and issued its August 3, 1990 order.
As authority for the proposition that the 1990 order establishing parent-child relationship is void, relator quotes from Abramson v. Abramson, 788 S.W.2d 860, 862 (Tex. App.--Houston [14th Dist.] 1990, pet denied):
the law requires issuance of an order of referral which may limit the power or duties of the master. [Id. § 54.006.] If the order fails to impose limitations, then the statute itself says what those powers shall be. It lists eleven specific powers followed by a grant of authority to do whatever is necessary and proper to the exercise of those powers. Id. § 54.007.
Relator is apparently arguing that because neither the August 7, 1989 omnibus order, nor section 54.007 of the Texas Government Code explicitly authorizes the master to determine a person's paternity, the master was without authority to do what he did, and, therefore, the 1990 order determining his paternity is void.
We disagree. Former section 54.005(a) of the Texas Government Code, (2) in effect at the time of the paternity hearing, provided that the judge of a court having a master appointed could refer to the master any aspect of a civil case "involving a matter over which the referring court has jurisdiction under Title 1, 2, or 4, Family Code . . . ." Former § 54.005(a). In 1990, Texas Family Code Title 2, specifically, former section 13.08, (3) gave a family district court the authority to find that an alleged father was the father of a child. Former § 13.08. Texas Government Code, former section 54.006(b), (4) provided that by its order of referral, the trial court could limit the powers or duties of the master. Former § 54.006(b).
In this case, the August 7, 1989 omnibus order of referral contained no limiting language. Among the powers and duties enumerated by Texas Government Code, former section 54.007(10) (5) for a master whose order of appointment contained no limiting language, was the power and duty to recommend the judgment to be made in a case. Former § 54.007(10). In this case, pursuant to Texas Government Code former section 54.005, the trial court referred an aspect of a civil case involving a matter over which it had jurisdiction under Texas Family Code former section 13.08, to wit, the determination of paternity. The master's action of recommending to the trial court that it adopt its proposed orders finding relator to be P.H's father was authorized by Texas Government Code former section 54.007(10). Thus, the 1990 order was not void.
Relator's first ground for relief is without merit.
In his next ground for relief, relator asserts that the trial court's August 7, 1989 order may not be taken as an order of referral. Relator relies on In Re Rio Grande Valley Gas Co., 8 S.W.3d 303 (Tex. 1999) for this proposition, which is inapplicable to the instant case. The citation is to a dissenting opinion, which is not valid legal authority. Furthermore, the subject of the opinion-transfer of cases from one court to another-is not pertinent to this case. In this case, the trial court did not transfer relator's case to another court, but rather referred it to a master, and then adopted the master's proposed orders as its own.
Relator's second ground for relief is without merit.
In his third ground for relief, relator asserts that the October 5, 1998 "Order Enforcing Child Support Obligation" is void because the trial court's jurisdiction to issue the order had ended three days earlier, when P.H. became age 18.
Although the motion for enforcement on which the October 5, 1998 order is predicated is not in the clerk's record, it was obviously filed before October 2, 1998, when P.H. turned 18. (6)
Texas Family Code section 157.005(a) provides:
The court retains jurisdiction to render a contempt order for failure to comply with the child support order if the motion for enforcement is filed not later than the sixth month after the date:
(1) the child becomes an adult; or
(2) on which the child support obligation terminates under the order or by operation of law.
Tex. Fam. Code Ann. § 157.005(a) (Vernon 2002).
Because the Attorney General filed the motion for enforcement before P.H. turned 18, or the date on which the child support obligation terminated under the order or by operation of law, (7) the trial court had jurisdiction to issue the October 5, 1998 order. See In Re M.E.G., 48 S.W.3d 204, 207, 210 (Tex. App.--Corpus Christi 2000, no pet.) (Attorney General who filed motion to enforce child support order on September 30, 1996 before the August 7, 1997 18th birthday of youngest child held to have invoked trial court's contempt jurisdiction under § 157.005(a), even though trial court did not sign contempt order until March 25, 1999, after youngest child's 18th birthday). The cases on which relator relies, Red v. Red, 552 S.W.2d 90, 92 (Tex. 1997), Harkins v. State, 773 S.W.2d 401, 404 (Tex. App.--Houston [14th Dist.] 1989, no writ), and McCullough v. McCullough, 483 S.W.2d 869, 870, 871(Tex. Civ. App.--Waco 1972, no writ), are inapplicable to this case because these were decided before the enactment of §157.005(a), enacted in 1995. Tex. Fam. Code Ann. § 157.005 (Vernon 2002).
Relator's third ground for relief is without merit.
Relator's petition for writ of habeas corpus is denied.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Alcala and Higley.
1. See 42 U.S.C.S. § 651(Lawyer's Ed. 1998).
2. 3. 4. 5. 6. 7.