Petition for Writ of Habeas Corpus Granted and Memorandum Opinion filed
November 5, 2019.
In The
Fourteenth Court of Appeals
NO. 14-19-00753-CV
NO. 14-19-00756-CV
IN RE NOE SANTANA, Relator
ORIGINAL PROCEEDING
WRIT OF HABEAS CORPUS
309th District Court
Harris County, Texas
Trial Court Cause Nos. 2004-21815 & 2017-30600
MEMORANDUM OPINION
On September 30, 2019, relator Noe Santana filed a petition for writ of habeas
corpus in this Court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P.
52. In the petition, relator asks this court to order his release from confinement in
the Harris County Jail for contempt based on two commitment orders dated
September 27, 2019. We ordered relator temporarily released from custody upon
posting bond. We now grant relator’s petition for writ of habeas corpus.
I. BACKGROUND
Relator is obligated to pay child support for two children in two orders in
separate trial court cause numbers. In the first case, cause number 2004-21815, a
July 11, 2005 order directed relator to pay $450.00 in monthly child support (the
“2005 order”). In the second case, cause number 2017-30600, an April 26, 2019
order directed relator to pay $1,710.00 in monthly child support (the “2019 order”).
Mother moved to enforce the order both orders. Mother alleged that relator
had made no child support payments under the 2005 order from July 1, 2005 through
June 1, 2017. Mother requested that relator be held in contempt, sentenced to serve
180 days in jail for each violation, sentences to run concurrently, and be fined
$500.00 for each violation.
With respect to the 2019 order, Mother alleged that relator had failed to make
child support payments on April 1, 2019 and May 1, 2019, and failed to make
payments to Mother’s attorney, which were due on April 12, 2019 and April 26,
2019. Mother similarly requested that relator be held in contempt, sentenced to serve
180 days in jail for each violation, sentences to run concurrently, and fined $500.00
for each violation.
On August 9, 2019, the trial court signed two orders holding relator in
contempt for failure to pay child support. In cause number 2004-21815, the trial
court sentenced relator to serve 180 days in jail, sentences to run concurrently, and
assessed a $500.00 fine for each violation of the 2005 order for criminal contempt.
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In cause number 2017-30600, the trial court sentenced relator to serve 180
days in jail, sentences to run concurrently, and assessed a $500.00 fine for each
violation of the 2019 order. Additionally for civil contempt in cause number 2017-
30600, the trial court sentenced relator to no more than eighteen months in jail,
including time served for criminal contempt, or until relator has complied with the
following terms, whichever occurs first: relator pays (1) $3,420.00 for child support
arrearages through the Texas State Disbursement Unit; (2) a $2,000.00 fine to the
Harris County District Clerk; and (3) $85,471.00 to Mother’s attorney.
The trial court, however, suspended relator’s commitment in each case. In
cause number 2004-21815, relator’s suspension of commitment was conditioned
upon relator’s compliance with the following terms: relator pays (1) $20,000.00 as
a lump sum payment for child support arrearages through the Texas State
Disbursement Unit; (2) $1,500.00 per month for child support arrearages beginning
on August 1, 2019 to the Texas State Disbursement Unit and on the first of each
month thereafter until he has paid the arrearage in full; and (3) Mother’s attorney
$10,375.42 in two $5,187.71 payments.
Mother moved to revoke the suspension of relator’s commitment in each case,
alleging that relator had not complied with the terms of the suspension of
commitment. The trial court held a hearing on September 27, 2019, found that
relator was not in compliance with the court’s orders suspending relator’s
commitment, revoked the suspension of commitment in each case, and ordered
relator taken into custody.
For criminal contempt in cause number 2004-21815, the trial court sentenced
relator to serve 180 days in jail for each violation, sentences to run concurrently. For
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civil contempt, the trial court ordered that relator’s confinement would continue after
completing his sentences for criminal contempt until relator had purged himself of
any contempt by paying (1) $39,784.59 toward child support arrearages to either the
Texas State Disbursement Unit or the Domestic Relations Office; (2) $10,375.42 to
Mother’s attorney; and (3) $63.00 to the Harris County District Clerk for
commitment and steno fees.
For criminal contempt in cause number 2017-30660, the trial court sentenced
relator to serve 180 days in jail for each violation, sentences to run concurrently. For
civil contempt, the trial court ordered that relator’s confinement would continue after
completing his sentences for criminal contempt until relator had purged himself of
any contempt by paying (1) $6,480.00 toward child support arrearages to either the
Texas State Disbursement Unit or the Domestic Relations Office; (2) $3,000 to
Mother’s attorney; and (3) $63.00 to the Harris County District Clerk for
commitment and steno fees
Relator filed a petition for writ of habeas corpus, asserting that the September
27, 2019 orders revoking relator’s suspended commitment orders are void for lack
of due process. On October 4, 2019, we issued an order directing the Harris County
Sheriff to release relator from custody upon payment of a $500.00 bond.
II. STANDARD OF REVIEW
The purpose of a writ of habeas corpus is not to determine the guilt or
innocence of the contemnor, but to determine whether he was afforded due process
of law or if the order of contempt or commitment is void. Ex parte Gordon, 584
S.W.2d 686, 688 (Tex. 1979) (orig. proceeding). An order is void if it is beyond the
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power of the court to enter it or if it deprives the relator of liberty without due
process. In re Markowitz, 25 S.W.3d 1, 3 (Tex. App.—Houston [14th Dist.] 1998,
orig. proceeding). It is presumed that a contempt order is valid. In re Spates, No.
14-15-00235-CV, 2015 WL 1393265, at * 2 (Tex. App.—Houston [14th Dist.] Mar.
15, 2015, orig. proceeding) (mem. op.). A relator bears the burden of showing that
the trial court’s order is void. In re Coppock, 277 S.W.3d 417, 418 (Tex. 2009)
(orig. proceeding).
III. ANALYSIS
In his second issue, relator asserts that the September 27, 2019 orders are void
because they only identify generally the orders alleged to have been violated without
identifying specifically the provisions of those orders that were violated or stating
how the orders were violated.1
The purpose of an enforcement order is to notify the contemnor of how he has
violated the provisions for which enforcement is sought and how he can purge
himself of contempt, to notify the sheriff accordingly so that he may do his duty, and
to provide sufficient information for adequate review. Ex parte Conoly, 732 S.W.2d
695, 697 (Tex. App.—Dallas 1987, orig. proceeding). The contempt order must
contain specific findings so that the contemnor will be fully apprised of his alleged
act of misconduct so that he may overcome by proof, if any is available, the
presumption that the order is valid. In re Sanner, No. 01-09-00001-CV, 2010 WL
1
Relator brings three issues. Because the second issue is dispositive we address it and do
not address the remaining two issues.
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2163140, at *10 (Tex. App.—Houston [1st Dist.] May 20, 2010, orig. proceeding)
(mem. op.) (quotation marks and citations omitted).
Section 157.166 of the Texas Family Code sets forth the requirements of an
enforcement order. Tex. Fam. Code Ann. § 157.166. That section states:
(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.
Id.
As relevant to the September 27, 2019 orders, an enforcement order may
comply with section 157.166 by (1) copying the provisions for which enforcement
was sought in the order; (2) attaching a copy of the order for which enforcement was
sought as an exhibit and incorporating by reference; or (3) giving the volume and
page numbers in the minutes of the court where one can find the order for which
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enforcement was sought. Ex parte Tanner, 904 S.W.2d 202, 205 (Tex. App.—
Houston [14th Dist.] 1995, orig. proceeding) (addressing the predecessor to section
157.166). While these three methods are adequate to comply with section 157.166,
they are not the exclusive methods for doing so. Id.; see also id. (holding that
paraphrasing of order set out the provision to be enforced with sufficient specificity
and particularity to fairly notify relator of his alleged acts).
This court has previously held that a form order signed by the trial court was
insufficient because it did not contain findings setting out or incorporating by
reference the provisions of the order for which enforcement was requested. See In
re Levingston, 996 S.W.2d 936, 938 (Tex. App.—Houston [14th Dist.] 1999, orig.
proceeding). Instead, the form order contained the following:
(2) on November 30, 1989, Respondent was ordered to make periodic
payments of child support, which order appears of record at Volume
___, starting at Page ___, of the minutes of this court[.]
Id. at 938. This court concluded that the order did not satisfy the methods of
compliance with section 157.166. Id. at 939. “Exhibit A” was attached to the
enforcement order in Levingston. Id. at 939 n.1. Exhibit A was a table of past due
child support payments showing the relator’s failure to pay child support payment.
Id. However, it did not set out the provisions of the divorce decree sought to be
enforced or the date of the relator’s alleged noncompliance as reflected by the total
arrearage as found by the court. Id. Therefore, the relator’s due process rights were
violated, and the order was void. Id. at 939.
The September 27, 2019 orders in this case contain the identical provision as
that discussed in Levingston:
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2. on August 9, 2019, Respondent was ordered to make periodic
payments of child support, which order appears of record at
Volume ___, starting at Page ___, of the minutes of this Court[.]
“Exhibit A” is attached to order in cause number 2017-30600. Exhibit A is a
table of “Past Due Child Support Payments,” which shows the date the payment was
due, the amount due, the amount paid, and the arrearage due for each violation, but
does not set forth the provisions of the August 9, 2019 order sought to be enforced.
The order in cause number 2004-21815 refers to “Exhibit A,” but the exhibit is not
in the habeas corpus record.
As in Levingston, the September 27, 2019 orders revoking suspension do not
comply with section 157.166. See id.; see also In re Harrison, 14-15-00545-CV,
2015 WL 5829791, at *1–2 (Tex. App.—Houston [14th Dist.] Oct. 6, 2015, orig.
proceeding) (mem. op.) (holding that commitment order was not in compliance with
section 157.166 because it did not include the provisions of the orders for which
enforcement was requested but only the dates of the orders without the volume and
page numbers in the minutes of court where they could be found); In re Edwards,
No. 01-10-00992-CV, 2011 WL 2089805, at *3–4 (Tex. App.—Houston [1st Dist.]
May 18, 2011, orig. proceeding) (mem. op.) (holding contempt order was void
because the trial court did not specify the volume and page numbers in the minutes
of the court in which the support order could be found and the court did not attach a
copy of the support order sought to be enforced or incorporate it by reference); Ex
parte Stanley, 826 S.W.2d 772, 773 (Tex. App.—Dallas 1992, orig. proceeding)
(holding that typographical error in identifying the volume of the court’s minutes
where the order sought be enforced was located was fatal to the contempt order and
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rendered it void). We hold that both September 27, 2019 orders violate relator’s
right to due process and, therefore, are void. We sustain relator’s second issue.
Accordingly, we grant relator’s petition for writ of habeas corpus, vacate the
trial court’s commitment orders of September 27, 2019, and order relator discharged
from custody and released from bond.
PER CURIAM
Panel consists of Justices Jewell, Bourliot, and Zimmerer.
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