Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00504-CV
EX PARTE Gabriel SALAS
Original Habeas Corpus Proceeding 1
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: August 28, 2013
PETITION FOR WRIT OF HABEAS CORPUS DENIED
On July 29, 2013, relator Gabriel Salas filed an original habeas corpus proceeding
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 committed to the county jail for 180 days.
Specifically, Salas asserts: (1) the trial court failed to inform him of his right to counsel as required
by 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).
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This proceeding arises out of Cause No. 2011CI06284, styled In the Interest of C.M.S., et al. Minor Children, pending
in the 438th Judicial District Court, Bexar County, Texas, the Honorable Nick Catoe Jr. presiding.
04-13-00504-CV
Upon request, this court received from the trial court clerk a copy of the trial court’s Order
Granting Re-hearing and Order Enforcing and Modifying Support Obligation, which had been
signed by the Associate Judge on May 13, 2013 and adopted by the presiding judge four days later.
This order, which was not signed by Salas, contained the trial court’s contempt findings and
indicated that Salas appeared in person pro se at a hearing on May 8. The order did not reflect that
Salas had been advised of his right to counsel, or to a court appointed attorney if found indigent.
We requested and received a response to the habeas corpus petition on behalf of the respondent
judge which included additional material from the trial court’s record.
The supplemental record materials include a copy of the trial court’s Order Enforcing and
Modifying Support Obligations signed by the associate judge on April 8, 2013 and adopted by the
presiding judge three days later, and the trial court’s Order on Appointment of Counsel and Setting
Cause for Trial, also signed on April 8. Both of these orders were signed by Salas. The order
enforcing the support obligation indicates that Salas appeared pro se at a hearing on April 8, was
advised of his right to counsel, knowingly and intelligently waived his right, and agreed to the
entry of the child support order. The order also contains the trial court’s findings regarding Salas’s
monthly resources, current and past due child support obligations, and on contempt. The order on
appointment of counsel provides, “this is a proceeding in which incarceration of the Respondent
may result” and reflects the trial court’s finding that Salas “is not indigent and not entitled to the
appointment of an attorney.”
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
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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). In the present case, Salas’s signature on
the two orders following the hearing on April 8 reflect that he was advised of his right to counsel,
was found not to be indigent and agreed to proceed pro se. We conclude the trial court properly
admonished Salas of his rights in accordance with the Family Code. See TEX. FAM. CODE ANN.
§ 157.163.
Salas 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 Salas’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). Salas has failed to provide
this court with a record supporting his claim that he is entitled to habeas corpus relief on the basis
that he conclusively established an affirmative defense to the charges of contempt in the trial court.
Finally, Salas 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 time 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
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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.
Crim. App. 1986). The record reflects the trial court’s findings on both punitive contempt and
coercive contempt. Salas is not entitled to consideration for “good time” credit under the statute
for the criminal contempt portion of the order until he has satisfied the coercive contempt portion
of the order. See Acly, 711 S.W.2d at 628. Because the record does not reflect that Salas has fully
satisfied the coercive contempt portion of the order, 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. Salas has not established that he is entitled to habeas corpus relief on
this ground. See TEX. CODE CRIM. PROC. ANN. 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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