Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00574-CV
EX PARTE Telesforo CONTRERAS Jr.
Original Habeas Corpus Proceeding 1
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: September 18, 2013
PETITION FOR WRIT OF HABEAS CORPUS DENIED
On August 22, 2013, relator, Telesforo Contreras Jr., filed a pro se petition for writ of
habeas corpus contending he is being illegally confined after the trial court found him in contempt
for failure to pay previously ordered child support and ordered him confined for 180 days.
Specifically, Contreras asserts: (1) the trial court failed to inform him of his right to counsel under
the Texas Family Code; (2) the trial court failed to make a determination of his ability to purge
himself of the child support obligation; and (3) Sheriff Susan Pamerleau has failed to give him
“good time” credit in violation of his right to equal protection under the law. See TEX. FAM. CODE
ANN. §§ 157.008, 157.163 (West 2008). This court requested and received a response from the
respondent judge addressing issues raised in the habeas petition.
1
This proceeding arises out of Cause No. 1993-CI-08093, styled In the Interest of J.A.C. and C.J.C., Children, pending
in the 285th Judicial District Court, Bexar County, Texas, the Honorable Jim Rausch presiding.
04-13-00574-CV
A relator is entitled to habeas corpus relief if he establishes he was deprived of liberty
without due process of law, or if we conclude the judgment ordering confinement is void. See In
re Henry, 154 S.W.3d 594, 596 (Tex. 2005); In re Alexander, 243 S.W.3d 822, 824 (Tex. App.—
San Antonio 2007, orig. proceeding). The purpose of a habeas corpus proceeding is not to
determine the relator’s guilt or innocence, but to ascertain if the relator has been unlawfully
confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979); Alexander, 243 S.W.3d at 827.
In family law enforcement proceedings, the Family Code requires the trial court to
determine whether the proceeding is one in which incarceration may result and, if so, the court is
obligated to inform a respondent of the right to counsel and, if indigent, the right to an appointed
attorney. See TEX. FAM. CODE ANN. § 157.163 (a), (b). The record before us contains an Order on
Appointment of Counsel and Setting Cause for Trial, signed July 10, 2013. The order provides,
“this is a proceeding in which incarceration of the Respondent may result” and reflects the trial
court’s finding that Contreras “is not indigent and not entitled to the appointment of an attorney.”
We conclude the trial court properly informed Contreras of his right to counsel in accordance with
the Family Code. See TEX. FAM. CODE ANN. § 157.163.
Contreras also complains the trial court failed to make a determination of his ability to
purge himself of the child support obligation. The Family Code provides that an obligor may plead
as an affirmative defense to an allegation of contempt that he lacked the ability and resources to
provide support in the amount ordered. See TEX. FAM. CODE ANN. § 157.008 (c). However, it is
Contreras’s burden in the trial court to conclusively establish the affirmative defense. See Ex parte
Rojo, 925 S.W.2d 654, 656 (Tex. 1996). It is also his burden as relator in this proceeding to provide
this court with a record sufficient to establish his right to habeas corpus relief. See TEX. R. APP. P.
52.7(a); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). The record reflects
the trial court’s findings that Contreras could have timely paid the court-ordered child support
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04-13-00574-CV
amounts but failed to do so, and was able to pay the amounts identified in arrearages, attorney fees
and court costs. Contreras has failed to provide this court with a record supporting his claim that
he conclusively established an affirmative defense of inability to pay in the trial court.
Finally, Contreras contends he is being denied equal protection under the law by the denial
of “good time” credits on his sentence when such credits are available to prisoners serving
sentences on criminal charges. While article 42.032 of the Texas Code of Criminal Procedure gives
the sheriff discretion to award “good time” credit to those being punished by criminal contempt
orders, the statute does not apply to those being punished by coercive civil contempt orders. See
TEX. CODE CRIM. PROC. ANN. art. 42.032 § 2 (West Supp. 2012); Ex parte Acly, 711 S.W.2d 627,
628 (Tex. 1986). Contreras is not entitled to consideration for “good time” credit under the statute
for the criminal contempt portion of his sentence until he has satisfied the coercive contempt
portion of the order. See Acly, 711 S.W.2d at 628. There is nothing in the record to demonstrate
that Contreras has satisfied the coercive contempt portion of his sentence. Therefore, we are unable
to say that there is any abuse of discretion in the failure to award “good time” credits in this
instance. TEX. R. APP. P. 52.7(a); Walker, 827 S.W.2d at 837. Contreras has not established that
he is entitled to habeas corpus relief as a result of a violation of his right to equal protection under
the law. See TEX. CODE CRIM. PROC. ANN. art. 42.032 § 2; Acly, 711 S.W.2d at 628.
Relator’s petition for writ of habeas corpus is denied.
PER CURIAM
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