in Re Tammy Fountain

Opinion issued December 28, 2012

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-00704-CV
———————————
IN RE TAMMY FOUNTAIN, Relator

Original Proceeding on Petition for Writ of Habeas Corpus

DISSENTING OPINION

I respectfully dissent. I deeply disagree with the majority’s characterization

of the issues in this case, its legal conclusions, and its disposition of this habeas

corpus proceeding.

The trial court found Tammy Fountain in contempt for violating a court

order in a suit affecting the parent-child relationship, sentenced her to jail, and, in
the same order, suspended her commitment.1 The court subsequently revoked its

earlier suspension order and committed Fountain to jail. In five issues, she

contends that the commitment order is void and violates her constitutional due

process rights. The majority first addresses the trial court’s order committing

Fountain to jail and reaches its conclusion that she be returned to jail. It fails to

identify or address any of the five issues raised by Fountain until page eight of its

opinion, swiftly disposes of the first issue, and then lumps her other four issues

together and disposes of those by holding that the statutory and constitutional

procedural safeguards that apply to contempt proceedings do not apply to orders

revoking the suspension of commitment.

I agree with Fountain that the commitment order is void under established

Texas law and that, therefore, her commitment to jail violates her constitutional

right to due process of law. In its contempt order committing Fountain to jail, the

trial court failed to specify the manner in which Fountain had committed two of the

three violations for which it found her in contempt. For the remaining violation,

the trial court found Fountain in contempt for acts that occurred before the court

signed the order giving rise to Fountain’s obligation. The commitment order is,

therefore, void. I would hold that the trial court abused its discretion in revoking

1
The underlying case is In the interest of S.F., a child, No. 2010-31997, in the
309th District Court of Harris County, Texas, the Honorable Sheri Y. Dean,
presiding.
2
its order suspending Fountain’s commitment. I would grant the petition for writ of

habeas corpus, and I would order Fountain discharged.

Background

On October 18, 2011, the trial court signed an order in which Tammy

Fountain and Katherine Katcher agreed to their various rights and duties as

conservators of a child. Among its numerous provisions, this order provided that,

within thirty days after the signing of the order, each party was to “permit the other

conservator to obtain health-care information regarding the child” and to authorize

the disclosure of “protected health information to the other conservator” pursuant

to federal health care law. The order also required each party to notify the “other

party, the court, and the state case registry of any change in the party’s current

residence,” phone number, employer contact information, and other similar

information. The party was required to provide notification of any intended

change in this residency and contact information “on or before the 60th day before

the intended change.” If the party did not know of the intended change in enough

time to provide the sixty-day notice, then the party was required to give notice “on

or before the fifth day after the date that the party knows of the change.”

Several months later, on May 24, 2012, the trial court entered an order of

contempt against Fountain because the court found that she had violated the earlier

October 18, 2011 order by failing to execute the required releases to allow Katcher

3
to obtain the child’s health-care information. Accordingly, the trial court ordered

Fountain committed to Harris County Jail for sixty days. But in the same order,

the court suspended Fountain’s commitment so long as she complied “with each

and every provision of the Agreed Order of October 18, 2011, and of the

Modification Order of May 25, 2012.” To accompany this order, the trial court

prepared a modification order, which imposed new duties and obligations on

Fountain. The hearing on these orders was held on May 11, 2012, but the orders

were not signed and filed until May 24, 2012, thirteen days later.

The May 24, 2012 modification order, among other provisions, required that

Fountain notify the child’s school, in writing with notice to the court, that Katcher

could have lunch with the child at school, pick the child up from school, attend

school activities, and receive all school notices. Fountain was required to notify

the child’s current school by May 15, 2012, four days after the hearing on the new

order, but nine days before the trial court signed the new order giving rise to this

obligation. Additionally, the May 24, 2012 modification order obligated both

parties to exchange contact information and schooling information and, within

thirty-six hours of a change, to post any changes to periods for possession of the

child through an Internet program called “Our Family Wizard.”

A month later, Katcher moved to revoke the suspension of Fountain’s

commitment. She accused Fountain of four violations of the prior orders. First,

4
she alleged that Fountain had failed to provide the required notice of changes to the

child’s residence when Fountain had notified her only on June 19, 2012, that

Fountain and the child would be moving to Galveston County three days later.

Second, she alleged that Fountain had not notified the child’s school by May 15,

2012, that Katcher could visit the child for lunch, pick him up from class, attend

school activities, and receive school notices. Third, Katcher alleged that Fountain

had violated the provision of the May 24, 2012 modification order requiring

communication within thirty-six hours through the Our Family Wizard website

about changes to the scheduled possessory period with the child. Fountain had

allegedly told Katcher that the child would not be available for Katcher’s

scheduled lunch visit on June 6, 2012, because the child would be absent from

school all week, but she then told Katcher on June 8, 2012, that the child had only

been absent on the day scheduled for Katcher’s visit. Fourth, Katcher accused

Fountain of not paying a $77 court cost.

On July 31, 2012, after a hearing, the trial court revoked the suspension of

Fountain’s commitment (“the commitment order”). Using substantially the same

wording as found in Katcher’s motion to revoke, the court found that Fountain had

violated its prior orders three times. First, she failed to “provide the required

notice” that she was moving on June 22, 2012, when she mailed notice of the move

to Katcher on June 18, 2012. Second, Fountain failed to inform the child’s current

5
school by May 15, 2012, that Katcher had permission to access the child there.

Third, Fountain failed to post information to Our Family Wizard as required when

she had told Katcher that the child was unavailable for lunch with Katcher on June

6, 2012. The district court ordered that Fountain be committed in accordance with

“the orders attached hereto as Exhibits A, B, and C.” A copy of the original May

24, 2012 contempt order hand-labeled with an “A” followed the revocation order.

On its second page, the attached contempt order provided that “punishment for the

violation set out above is assessed at confinement in the Harris County Jail for a

period of sixty (60) days.”

Fountain filed an original petition for writ of habeas corpus seeking relief in

this Court, raising five issues. We ordered her released on bond pending our

determination of her request for relief.

Contempt and Commitment Orders

“Criminal contempt is punishment for past disobedience to a court order that

constitutes an affront to the dignity and authority of the court.” In re Houston, 92

S.W.3d 870, 876 n.2 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding).

Civil contempt is remedial and coercive; release may be procured by compliance

with the provisions of the court’s order. Id. “Civil contempt proceedings are

quasi-criminal in nature, and the contemnor is entitled to procedural due process

throughout the proceedings.” Id. at 876. Among the due process rights accorded is

6
the right to reasonable notice of each allegedly contumacious act. Id. Due process

requires “full and complete notification” of the charges with a reasonable

opportunity to meet them by defense or explanation. Id. In addition, criminal

contempt requires proof beyond a reasonable doubt. Id.; see Ex parte Chambers,

898 S.W.2d 257, 259 (Tex. 1995). In order to support a judgment of contempt, the

underlying decree must set forth the terms of compliance in “clear, specific and

unambiguous terms” so that the person charged with obeying the order will know

exactly what duties and obligations are imposed on her. Chambers, 898 S.W.2d at

260; Houston, 92 S.W.3d at 877. The order of contempt may not be susceptible to

more than one interpretation. Houston, 92 S.W.3d at 877.

“Due process requires a court, before imprisoning a person for violating an

earlier order, to sign a written judgment or order of contempt and a written

commitment order.” Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex. 1997) (per

curiam) (citing Ex parte Barnett, 600 S.W.2d 252, 256 (Tex. 1980)). The

contempt order must clearly state in what respect the court’s earlier order has been

violated. Id.; see also Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex. 1969) (order

or other means of notification “must state when, how, and by what means the

defendant has been guilty of the alleged contempt”). Complementing this due

process requirement, the Texas Family Code mandates that motions for

enforcement and orders confining someone for violating a court’s enforcement

7
order must state “the manner of the respondent’s noncompliance.” TEX. FAM.

CODE ANN. §§ 157.002(a)(2), 157.166(a)(3) (Vernon 2008). Further, an order

imposing incarceration for criminal contempt must contain findings identifying

“the date of each occasion when the respondent’s failure to comply with the order

was found to constitute criminal contempt.”2 Id. § 157.166(b).

Standard of Review of Commitment Order

A commitment order is subject to collateral attack in a habeas corpus

proceeding. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (per curiam); see TEX.
2
Family Code section 157.166 provides:

(a) An enforcement order must include:
(1) in ordinary and concise language the provisions
of the order for which enforcement was
requested;
(2) the acts or omissions that are the subject of the
order;
(3) the manner of the respondent’s noncompliance;
and
(4) the relief granted by the court.
(b) If the order imposes incarceration or a fine for criminal
contempt, an enforcement order must contain findings
identifying, setting out, or incorporating by reference the
provisions of the order for which enforcement was requested
and the date of each occasion when the respondent’s failure to
comply with the order was found to constitute criminal
contempt.
(c) If the enforcement order imposes incarceration for civil
contempt, the order must state the specific conditions on
which the respondent may be released from confinement.

TEX. FAM. CODE ANN. § 157.166 (Vernon 2008).
8
GOV’T CODE ANN. § 22.221(d) (granting appellate courts power to issue writs of

habeas corpus). The purpose of the habeas corpus proceeding is not to determine

the guilt or innocence of the relator; rather, the purpose is only to determine

whether she has been unlawfully restrained. Ex parte Gordon, 584 S.W.2d 686,

688 (Tex. 1979). We presume that the contempt order is valid. In re Turner, 177

S.W.3d 284, 288 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding). But we

will issue the writ if the trial court’s contempt order is void because it is beyond

the court’s power or the court did not afford the relator due process of law. Id.

(citing Henry, 154 S.W.3d at 596).

The relator bears the burden of showing that she is entitled to relief. Id. In

reviewing the record, we do not weigh the proof; rather, we determine only if the

contempt order is void because, for example, the relator has been confined without

a proper hearing or with no evidence of contempt to support her confinement.

Chambers, 898 S.W.2d at 259–60.

Validity of Commitment Order

Here, the trial court’s order committed Fountain to jail as punishment for

past violations of the court’s May 24, 2012 contempt order. Therefore, the

commitment order is an order of criminal contempt. See Houston, 92 S.W.3d at

876 n.2.

9
 In her petition, Fountain points out numerous deficiencies and errors in the

revocation motion and order that committed her to jail for contempt. She argues

that two of the contempt violations are improper because the commitment order

does not state the manner in which she failed to comply with the prior court orders,

as required by due process and the Texas Family Code. See TEX. FAM. CODE ANN.

§ 157.166(a)(3); Shaklee, 939 S.W.2d at 145 (“The contempt order must clearly

state in what respect the court’s earlier order has been violated.”) (citation

omitted). Fountain argues that the remaining contempt violation is improper

because the trial court found that she violated a provision in the court’s order that

required compliance before the court even signed the order imposing that particular

obligation. See Chambers, 898 S.W.2d at 262 (contemnor cannot be held in

contempt of court for actions that predate when court’s order is reduced to

writing).

Because I find these arguments dispositive in determining that the

commitment order is void, I would not reach Fountain’s other issues.

I. Deficiencies in the Revocation Motion and Order

While the commitment order states that Fountain failed to comply with

several provisions of prior court orders, the order does not state the manner of her

noncompliance. The order states:

Violation 1. On June 18, 2012, respondent mailed to movant a notice
that as of June 22, 2012, her residence and that of the child was
10
 changed to an address in Galveston County. This does not provide the
required notice.

This violation was accompanied by a copy of the text of the October 18, 2011

agreed order that required the parties to inform each other of changes to the child’s

current address within sixty days or within five days of learning of a change of

address if the party did not know of the change in enough time to meet the sixty-

day requirement. For the other violation, the order states:

Violation 4. Respondent has interfered with movant’s lunches with
the child at school by violation of the order concerning posting
information on Our Family Wizard. Movant had scheduled lunch
with the child at school for June 6, 2012; respondent notified movant
that the child would not be at school all that week. Respondent
changed this schedule, and notified movant — at lunch time on June
8, 2012 — that in fact he had been at school all that week, except for
the Wednesday movant had scheduled. Respondent failed to post this
change timely, presumably to prevent movant’s being able to
reschedule and have lunch with the child a different day of the week.

This language is quoted verbatim from Katcher’s motion to revoke. Preceding the

violation, the court’s May 24, 2012 modification order is quoted, which required

that each party promptly post:

b. knowledge that a child will not be attending a previously scheduled
extracurricular activity — immediately, or as soon as practicable
under the circumstances; but no less than eight hours; . . .

f. any other changes — within thirty-six hours of the change.

These findings do not state the manner of Fountain’s noncompliance. In the

first violation, stating that Fountain had failed to report that she was moving with

11
the child to Galveston County, the findings do not mention how Fountain failed to

notify Katcher. Did the court find that Fountain had known when she was moving

earlier, and so it found that she had failed to notify Katcher within the five-day

time limit imposed by the October 18, 2011 order? Or did the court find that

Fountain had known she was planning to move much earlier, and thus she failed to

notify Katcher sixty days before the move as the October 18, 2011 order required?

In the other violation, noting that Fountain had failed to update the Our

Family Wizard program on the week Katcher attempted to visit the child at lunch,

the findings again fail to state how Fountain had violated the May 24, 2012

modification order. Did she violate the modification order when she reported to

Katcher that the child would be gone from school all week but then two days later

reported he had been in school some days that week? The earlier order did not

require her never to change the child’s itinerary, only to report changes to the

Family Wizard program. So, did Fountain fail to update the program at all? Or

did she fail to update the program within the thirty-six hour time limit? For both

violations, on what date did Fountain fail to comply with the previous orders? See

id. (requiring order to identify date of each violation found to constitute contempt).

The face of the commitment order does not answer these questions.

The commitment order is insufficient because these findings of violations of

prior orders are unclear. See Houston, 92 S.W.3d at 877. The contempt order

12
must spell out exactly what duties and obligations are imposed and what the

contemnor can do to purge the contempt. Id. (citing Ex parte Proctor, 398 S.W.2d

917, 918 (Tex. 1966)). Generally, in the contempt context, the order or motion

must be clear and unambiguous, which means the order or motion must be capable

of only one reasonable interpretation. Chambers, 898 S.W.2d at 260. Although the

revocation motion and the subsequent commitment order listed dates and described

Fountain’s actions, these documents are amenable to multiple reasonable

interpretations as to how or even whether Fountain had violated the earlier orders.

See id. (“A court order is insufficient to support a judgment of contempt only if its

interpretation requires inferences or conclusions about which reasonable persons

might differ.”) (emphasis in original) (citing Ex parte MacCallum, 807 S.W.2d

729, 730 (Tex. 1991)). This is fatal to the commitment order because Fountain

lacked the requisite notification of how to purge her contempt and how she might

avoid violating court orders in the future. See Shaklee, 939 S.W.2d at 145

(invalidating contempt order for failing to specify when contemnor violated earlier

orders); Ex parte Blasingame, 748 S.W.2d 444, 446–47 (Tex. 1988) (invalidating

contempt order punishing couple for taking action that they reasonably interpreted

as not violating prior orders).

The majority states that Fountain “wrongly assumes that Katcher’s motion to

revoke and the trial court’s revocation order must satisfy all of the procedural

13
safeguards for an enforcement motion under [Family Code] chapter 157, as if a

separate allegation, finding, and sentence for contempt of court were at issue.”

Slip Op. at 12. The majority then cites several cases for the proposition that a

motion to revoke the suspension of commitment actually “functions as a separate

enforcement motion,” and is therefore subject to chapter 157’s procedural

requirements, including section 157.166’s requirement that the contempt order

specifically state the manner of the contemnor’s noncompliance with a previous

court order, when the trial court, in a revocation proceeding, makes additional

contempt findings and imposes a different punishment. Slip Op. at 12–13. The

majority concludes that these cases are distinguishable and that chapter 157’s

procedural requirements are inapplicable, because, here, when the trial court

revoked the suspension of Fountain’s commitment it “did not enter additional

findings of contempt,” but instead it imposed the “original sentence” for the

“original, admitted episodes of contempt.” Slip Op. at 13.

The majority justifies its holding by stating,

In other cases, these [procedural] safeguards in fact have been applied
under circumstances when a party has been found in contempt and
sentenced, the commitment has been suspended subject to compliance
with specified conditions, and then in further proceedings to revoke
the suspension of commitment a trial court made additional findings
of contempt and imposed a different punishment. In such
circumstances, with new allegations of contempt and enhanced
sanctions, the motion to revoke does not merely invoke a previously
rendered judgment of contempt, but the new motion instead functions
as a separate enforcement motion for purposes of chapter 157.
14
Slip Op. at 12. The majority reasons that because Katcher “did not request and the

trial court did not enter additional findings of contempt,” but “merely enforced the

provisions of its own suspended commitment order,” “subchapter D of chapter 157

and its detailed procedures applicable to an original enforcement hearing” do not

apply. Slip op. at 13. The majority cites no authority for its holding. Rather, it

refuses to follow established authority on allegedly distinguishable factual

grounds. I, therefore, take the majority to be making its own law without authority

and in conflict with established law.

I disagree that the procedural safeguards applicable to enforcement motions

and orders are not applicable here. And I disagree that there are material factual

distinctions between this case and the prior cases in which the law has been

established.

The original May 24, 2012 contempt order found Fountain in contempt for

violating the provision of the October 18, 2011 agreed order requiring her to

execute all necessary releases to permit Katcher to obtain health-care information

concerning the child. The court ordered Fountain confined for sixty days in the

Harris County Jail and ordered her to pay $5,000 to Katcher in attorney’s fees, but

the court then suspended the commitment pursuant to Fountain’s compliance with

the October 18, 2011 agreed order and the May 24, 2012 modification order. In

the commitment order, which revoked the suspension of Fountain’s commitment,
15
the court ordered that Fountain be confined for sixty days in the Harris County Jail,

that Fountain pay $5,000 to Katcher, as ordered in the May 24, 2012 contempt

order, and that Fountain pay, “in addition to the attorney’s fees and costs assessed

in the order suspending commitment signed on May 24, 2012,” an additional

$4,379 in attorney’s fees and costs to Katcher’s attorney.

The court also found that Fountain violated the October 18, 2011 agreed

order by not “provid[ing] the required notice” that she and the child were moving

to Galveston County and the May 24, 2012 modification order by failing to notify

the child’s school of Katcher’s access and by failing to timely update Our Family

Wizard. The commitment order thus identified additional violations of ongoing

obligations without specifying how Fountain failed to comply with these

obligations and imposed a greater punishment than the original contempt order.

See Houston, 92 S.W.3d at 877 (contempt order must spell out duties and

obligations imposed and what contemnor can do to purge contempt). Thus, the

commitment order was not clear and unambiguous, as required for a holding of

contempt. See Chambers, 898 S.W.2d at 260.

I would conclude that the commitment order is functionally equivalent to an

original enforcement order, and, therefore, Family Code chapter 157’s procedural

safeguards, including section 157.166(a)’s requirement that the enforcement order

state the manner of the contemnor’s noncompliance, apply equally to this

16
proceeding. See Ex parte Durham, 708 S.W.2d 536, 537–38 (Tex. App.—Dallas

1986, orig. proceeding) (“The purpose of this commitment order is to enforce the

punishment provisions imposed by the original order holding relator in contempt.

Consequently, we hold that this commitment order is an ‘enforcement order’ under

[the predecessor to section 157.166].”); see also Houston, 92 S.W.3d at 876

(holding that civil contempt proceedings are quasi-criminal, entitling contemnor to

procedural due process “throughout the proceedings”). I would hold that

procedural statutory and constitutional due process safeguards were violated in this

case. See TEX. FAM. CODE ANN. § 157.166(a)(3); Shaklee, 939 S.W.2d at 145;

Houston, 92 S.W.3d at 875–77. Therefore, the commitment order is void. See

Houston, 92 S.W.3d at 875–77.

II. Confinement for Violating Court’s Command Before Court Issued
Order Imposing Obligation

Even if the trial court had clearly stated the manner of Fountain’s

noncompliance in the commitment order, the order would still be void for finding

Fountain in contempt of court for violating the court’s May 24, 2012 order on a

date predating the date on which the court actually signed that order. See

Chambers, 898 S.W.2d at 262 (“A contemnor cannot be held in constructive

contempt of court for actions taken prior to the time that the court’s order is

reduced to writing.”). It is the written order, signed by the court, that evinces a

party’s rights and duties, not oral admonitions at the hearing. In re Sellers, 982
17
S.W.2d 85, 87 (Tex. App.—Houston [1st Dist.] 1998, orig. proceeding) (citing Ex

parte Price, 741 S.W.2d 366, 367 (Tex. 1987)).

The second violation in the contempt order was for Fountain’s failure to

inform the child’s school about Katcher’s rights of access to the child by May 15,

2012. The underlying order giving rise to this obligation, however, was signed on

May 24, 2012, nine days after the date on which Fountain allegedly violated the

order. Under Texas law, this invalidates the commitment order. See Chambers,

898 S.W.2d at 262; Sellers, 982 S.W.2d at 87; see also Dunn v. Street, 938 S.W.2d

33, 35 n.3 (Tex. 1997) (per curiam) (voiding contempt judgment because

contemnor “did not violate a written order of the trial court”).

The trial court assessed a punishment of sixty days’ confinement and

required the payment of attorney’s fees for all of the contumacious acts it found.

This means that even if only one of the violation findings was invalid, the entire

order would be void.3 Ex parte Davila, 718 S.W.2d 281, 282 (Tex. 1986) (per

curiam) (“If one punishment is assessed for multiple acts of contempt, and one of

those acts is not punishable by contempt, the entire judgment is void”); Ex parte

Sealy, 870 S.W.2d 663, 667 (Tex. App.—Houston [1st Dist.] 1994, orig.

proceeding) (holding same). The commitment of a person to jail on a void order

violates constitutional due process. See Gordon, 584 S.W.2d at 688 (“Where the

3
Because none of the three acts in the commitment order will support a finding of
contempt, I would not reach Fountain’s other issues.
18
judgment ordering confinement is ‘void,’ the confinement is illegal and the relator

is entitled to discharge.”); In re Alexander, 243 S.W.3d 822, 827 (Tex. App.—San

Antonio 2007, orig. proceeding) (“A writ of habeas corpus will issue when the

relator has not been afforded due process, or when the order requiring confinement

is void.”).

Conclusion

I would hold that the trial court abused its discretion in revoking its order

suspending Fountain’s commitment to jail and that the commitment order is void.

Accordingly, I would grant the petition for writ of habeas corpus, and I would

order Fountain released from her bond and discharged.

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Justice Keyes, dissenting.

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