in Re Michele Renee Henderson & Burton F. Henderson

IN THE
TENTH COURT OF APPEALS

No. 10-12-00005-CV

IN RE
MICHELE RENEE HENDERSON
AND BURTON F. HENDERSON

Original Proceeding

MEMORANDUM OPINION

In this original proceeding, Relators Michele Henderson and Burton (Burt)

Henderson (who are married to each other) seek mandamus and habeas corpus relief

after having been found in contempt by the respondent trial judge.

Gary Southerland, the real-party-in-interest and Michele’s former husband, filed

a motion for enforcement against Michele and Burt for allegedly violating two court

orders and a McLennan County Standing Order when they relocated S.A.S., the minor

daughter of Gary and Michele, to Kansas. Gary asserted nine separate violations

against Michele and Burt and asked the trial court to hold them in contempt and to jail

and fine them. Gary also requested an award of attorney’s fees payable to his attorney.
An order to appear for the hearing on the motion for enforcement was issued on

September 9, 2011, and the hearing was set for November 17, 2011.

On November 14, 2011, Michele and Burt filed a pro se motion for continuance,

which asserted that on September 11, 2011, Gary assaulted Michele, Burt, and S.A.S.

during a visitation exchange and that he was subsequently arrested and charged with

three counts of assault. The motion for continuance further asserted that, since then,

their time and “remaining savings” had been consumed by dealing with the aftermath

of the assault, including medical care, counseling for S.A.S., legal fees or expenses, and

dealing with numerous levels of law enforcement and Child Protective Services.

The motion for continuance also asserted that Michele and Burt had lost

“thousands of dollars” in wasted preparation for a September 13, 2011 hearing that

Gary had reset, that their attorneys had withdrawn due to lack of funds and also in part

because of an alleged “extrajudicial proposal” by Gary’s attorney that all attorneys in

the case withdraw. The motion specifically asserted: “We are contacting McLennan

County Legal Aid sources for assistance and need time to go through that process, in

order to obtain counsel for adequate defense.”

At the hearing on Gary’s motion for enforcement, the trial court first heard the

motion for continuance of Michele and Burt, who appeared pro se. Burt argued that

they were unprepared—they needed time to find counsel. Their since-withdrawn

attorneys had stayed on “unpaid” and he and Michele were “out of cash.” The trial

court denied their motion for continuance and proceeded with the hearing on Gary’s

motion for enforcement.

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 In closing argument, Gary’s attorney asserted that he did not think that “a point

is going to be made until there is some time spent in jail … .” The trial court found

Michele and Burt in contempt and assessed punishment at sixty days’ confinement in

the McLennan County jail for each violation, with commitment to begin on December 2,

2011, and with each period of confinement to run and be satisfied concurrently. Their

commitment to jail was ordered suspended if, on or before November 28, 2011, they

returned S.A.S. to reside in McLennan County and enrolled her in school in McLennan

County and they paid court costs of $135 and attorney’s fees of $2,500. 1 Separate

contempt orders were entered for Michele and Burt, and each order states that each of

them “waived the right to counsel.”

In their joint “petition for writ of mandamus/habeas corpus,” Michele and Burt’s

first issue asserts that the contempt orders are void because the trial court’s failure to

admonish them under Family Code section 157.163 deprived them of due process and

because they did not waive their right to counsel.

We first address the request for mandamus relief. We recently noted:

A contempt order involving incarceration is reviewable only by habeas
corpus. See Ex parte Williams, 690 S.W.2d 243, 244 n.1 (Tex. 1985); Pandozy
v. Beaty, 254 S.W.3d 613, 616 (Tex. App.—Texarkana 2008, no pet.). Such
an order not involving incarceration is reviewable only by mandamus. See
In re Long, 984 S.W.2d 623, 625 (Tex. 1999); Pandozy, 254 S.W.3d at 616.

In re A.P., No. 10-08-00338-CV, 2010 WL 3342001, at *1 (Tex. App.—Waco Aug. 25, 2010,

1 According to Gary’s response, Michele and Burt did not meet these conditions to suspend their
commitment to jail and have not surrendered themselves, but a capias or arrest warrant has not been
issued. Depending on the outcome of this proceeding, he anticipates moving to revoke the suspension of
their commitment to jail. Under these circumstances, and even though they are not actually incarcerated
at this time, a sufficient restraint on their liberty exists to support their pursuit of habeas corpus relief. See
Ex parte Williams, 690 S.W.2d 243, 244 (Tex. 1985).

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no pet.) (mem. op.). Because the contempt orders in this case involve incarceration,

they are not reviewable by mandamus and are reviewable only by habeas corpus.

Accordingly, to the extent that Michele and Burt seek mandamus relief, their petition is

denied.

We next turn to whether Michele and Burt waived their right to counsel, as the

contempt orders state.

Courts use the rules of criminal procedure to evaluate problems
presented in child support collection cases because those proceedings are
quasi-criminal. See, e.g., In the Interest of B.C.C., 187 S.W.3d at 723 n.2
(citing Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex. 1986)); see also Ex parte
Scott, 133 Tex. 1, 10, 123 S.W.2d 306, 311 (1939) (Further, we acknowledge
that proceedings in contempt cases should conform as nearly as
practicable to those in criminal cases.). A defendant in a criminal case
may waive the right to counsel, but to be effective, a waiver of counsel
must be made competently, knowingly, intelligently, and voluntarily. See
Collier v. State, 959 S.W.2d 621, 625-26 (Tex. Crim. App. 1997) (citing
Godinez v. Moran, 509 U.S. 389, 400-01, 113 S.Ct. 2680, 2687, 125 L.Ed.2d 321
(1993)). This means the defendant must have a full understanding of the
right to counsel and a meaningful awareness of the dangers and
disadvantages of self-representation. Collier, 959 S.W.2d at 625.

Hutchins v. State, No. 12-09-00258-CV, 2010 WL 3249858, at *2 (Tex. App.—Tyler Aug.

18, 2010, no pet.) (mem. op.).

Nothing in the record indicates that Michele and Burt waived their right to

counsel. They instead complained in their motion for continuance and before the

contempt hearing about needing but not having an attorney. Gary’s response does not

attempt to support the trial court’s waiver finding. The trial court’s finding that

Michele and Burt waived their right to counsel is erroneous. Cf. Ex parte Gunther, 758

S.W.2d 226, 226 (Tex. 1988) (orig. proceeding); In re Pass, No. 02-05-00457-CV, 2006 WL

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668744 (Tex. App.—Fort Worth Mar. 16, 2006, orig. proceeding) (mem. op.).

Section 175.163 provides in pertinent part:

(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.

(c) If the court determines that the respondent will not be
incarcerated as a result of the proceedings, the court may require a
respondent who is indigent to proceed without an attorney.

(d) If the respondent claims indigency and requests the
appointment of an attorney, the court shall require the respondent to file
an affidavit of indigency. The court may hear evidence to determine the
issue of indigency.

(e) Except as provided by Subsection (c), the court shall appoint an
attorney to represent the respondent if the court determines that the
respondent is indigent.

TEX. FAM. CODE ANN. § 157.163 (West 2008) (emphases added).

We have reviewed the reporter’s record of the hearing on Gary’s motion for

enforcement, and it and Gary’s motion plainly show that incarceration was a possible

result of the proceedings. The reporter’s record does not reflect that the trial court

informed Michele and Burt, who were appearing pro se, of their right to be represented

by an attorney and, if they were indigent, of their right to the appointment of an

attorney.

In his response, Gary tacitly admits that the trial court did not comply with

section 157.163 with his argument that the record shows that, by requesting a

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continuance to have time to obtain an attorney, Michele and Burt were aware of their

right to an attorney and that the trial court’s failure to comply with section 157.163 is

thus not erroneous. See Ex parte McIntyre, 730 S.W.2d 411, 415 (Tex. App.—San Antonio

1987, orig. proceeding) (en banc) (“the record clearly establishes that relator was aware

of his right to be represented by an attorney at the hearing and that he was not

indigent”). But see In re Dooley, 129 S.W.3d 277, 278-79 (Tex. App.—Corpus Christi 2004,

orig. proceeding) (granting habeas corpus relief where relator indicated need for more

time to get attorney and did not waive right to counsel, and section 157.163 was not

complied with). We disagree. See Dooley, 129 S.W.3d at 278-79; see also Pass, 2006 WL

668744, at *2-3 (granting habeas corpus relief where relator indicated need for more

time to get attorney, trial court found relator was not indigent, and relator did not

waive right to counsel).

What the record establishes is that Michele and Burt were aware of their need for

an attorney; it does not show that they were aware of their right to an attorney under

section 157.163 because incarceration was a possible result of the proceedings. This

distinction is important, especially so given that they did not waive their right to

counsel. Section 157.163’s admonishments make an alleged contemnor aware of their

right to counsel when incarceration is a possible result of the proceedings. Presumably,

once aware of the right to counsel, the alleged contemnor can then intelligently exercise

the right or waive it.

Gary also argues that Michele and Burt withdrew any notion that they were

indigent, focusing on one sentence (“It really wasn’t a complaint about the money.”) by

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Burt when he was arguing the grounds in their motion for continuance about their

“time and money” being consumed by the aftermath of Gary’s alleged assault of them.

We again disagree. Cf. Ex parte Acker, 949 S.W.2d 314, 316 (Tex. 1997) (orig. proceeding)

(“section 157.163 requires courts to admonish pro se litigants of their right to counsel,

regardless of whether they are indigent or not”).

First, Burt’s one statement relied on by Gary is ambiguous. Furthermore, the

motion for continuance specifically stated that their “remaining savings” had been

consumed and that they were contacting “McLennan County Legal Aid” for assistance.

Additionally, in arguing the motion for continuance, Burt said that they were “out of

cash.” Based on these complaints of financial hardship and the possible result of

incarceration, under section 157.163, the trial court was required to inform Michele and

Burt that, if they were indigent, they had the right to appointment of an attorney and

that, if they claimed indigency, they were to file affidavits of indigency. TEX. FAM. CODE

ANN. § 157.163(b, d).

If a trial court fails to admonish an alleged contemnor in accordance with section

157.163, in the absence of a knowing and intelligent waiver of the right to counsel, there

is a violation of a statutory due-process right and the contempt and commitment order

is void. See Acker, 949 S.W.2d at 316; Ex parte Keene, 909 S.W.2d 507, 507-08 (Tex. 1995)

(orig. proceeding); Gunther, 758 S.W.2d at 226; Dooley, 129 S.W.3d at 279; In re Ohiri, 95

S.W.3d 413, 415 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding); In re Castro, 998

S.W.2d 935, 937 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding).

This statute [section 157.163] requires courts to admonish pro se litigants of

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 their right to counsel, regardless of whether they are indigent or not. Ex
parte Acker, 949 S.W.2d 314, 316 (Tex. 1997) (orig. proceeding). Thus, a
relator facing incarceration must be informed of his right to counsel and
must either waive that right or be provided with court-appointed counsel.
See Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012 (1972)
(holding that under Sixth Amendment, no person may be imprisoned for
any offense, whether classified as petty, misdemeanor, or felony, unless he
had or waived counsel); see also In re Luebe, 983 S.W.2d 889, 890 (Tex.
App.—Houston [1st Dist.] 1999, orig. proceeding) (“[C]ontempt cases are
considered quasi-criminal in nature, and their proceedings should
conform as nearly as practicable to those in criminal cases.”). In the
absence of a knowing and intelligent waiver of the right to counsel made
on the record, the order holding Relator in contempt is void. See Ex parte
Gunther, 758 S.W.2d 226, 226-27 (Tex. 1988) (orig. proceeding) (granting
petition for writ of habeas corpus relief in part because absent knowing
waiver of rights, trial court was without authority to hold Gunther in
contempt); In re Lehr, No. 04-05-00934-CV, 2006 WL 228941, at *1 (Tex.
App.—San Antonio Feb. 1, 2006, orig. proceeding) (mem. op.).

Pass, 2006 WL 668744, at *1.

Because Michele and Burt did not waive their right to counsel and because

section 157.163 was not complied with, the November 21, 2011 orders of contempt and

commitment are void. We sustain issue one and set aside those orders.2

REX D. DAVIS
Justice

Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Petition for writ of habeas corpus granted
Petition for writ of mandamus denied
Opinion delivered and filed February 15, 2012

2 We need not address issue two, which asserts that Michele and Burt were denied their right to counsel.

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