This is an original habeas corpus brought by relator who was confined under a judgment adjudging him to be in contempt of court for failure to comply with an order of the trial court to make temporary child support payments.
It is settled law that a habeas corpus proceeding is a collateral attack upon the order of commitment and the relator is entitled to be discharged only if it affirmatively appears that that judgment ordering his confinement is void, thus depriving the court of jurisdiction. Ex parte Davis, 161 Tex. 561,344 S.W.2d 153 (1961); Greenhill and Beirne, Habeas Corpus Proceedings in the Supreme Court of Texas, 1 St. Mary's L.J. 1, 10 (1969).
Relator urges that the contempt judgment is void in that he did not receive ten days' notice of the hearing as required by Rule 308-A, Tex.R.Civ.P. In support of this contention, relator cites Ex parte Hoover, 520 S.W.2d 483 (Tex.Civ.App. El Paso 1975, no writ).
The court's conclusion in Hoover is contrary to the express holding of the Supreme Court in Ex parte Cardwell, 416 S.W.2d 382 (Tex. 1967). In considering the question of whether trials for contempt held upon less than ten days' notice will constitute a denial of constitutional due process, the Supreme Court said:
We have held that while the language of the statute (Art. 4639a) and the rule (308-A) is mandatory, trials for contempt conducted upon less than ten days' notice will not constitute a denial of constitutional due process in all instances; and contempt judgments based on such trials may, therefore, be valid. Where there is less than ten days' notice, the relator may be entitled to be discharged because of a lack of due process. Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961). As we said in Davis, each case must be evaluated on its own facts. (416 S.W.2d at 384.)
Thus, the determinative question is whether on the record before us relator has been denied constitutional due process.
Relator and his wife have been embroiled in a contested divorce action for over a year. On August 31, 1976, a temporary order was signed which directed relator to pay certain sums to Mrs. Trodlier for support of his two minor children. On May 9, 1977, Mrs. Trodlier filed a motion that relator be held in contempt for failure to obey such order of the court and a fiat was signed setting a hearing on this motion for May 23, 1977. The Bexar County sheriff was unable to serve relator with the notice *Page 795 and a copy of the motion until May 20, 1977. Relator did not appear for the hearing on May 23rd, either in person or through his attorney. Nor did he subsequently make any response to the motion or seek a rehearing on the motion. On June 15, 1977, he surrendered to the Bexar County sheriff and, on the same date, the application for habeas corpus was filed in our court. Relator was released on bond pending a determination of the validity of the contempt judgment.
Relator supports his claim for lack of constitutional due process solely on the brevity of the notice. He contends a hearing with less than ten days' notice as required by Rule 308-A, Tex.R.Civ.P. violated his constitutional rights to due process as a matter of law. Such a contention was rejected by the Supreme Court in Ex parte Davis, supra, and Ex parte Cardwell, supra, as well as by two courts of civil appeals. See Ex parte Sturdivant, 551 S.W.2d 144 (Tex.Civ.App. Texarkana 1977, no writ); and Ex parte Cox, 479 S.W.2d 110 (Tex.Civ.App. Houston (1st Dist.) 1972, no writ).
Relator made no effort in the trial court or in our court to demonstrate how he was prevented by the short notice from presenting a defense to the motion for contempt, or even from seeking a postponement of the hearing if additional time was required to subpoena witnesses and to prepare for trial. It is significant that the motion was filed ancillary to an on-going judicial proceeding wherein relator was already represented by an attorney. In fact, his attorney filed an appeal bond in the divorce suit the day after the contempt judgment was signed. Yet, relator did not appear pursuant to the notice. We conclude from this record that relator has not shown a constitutional denial of due process.
Relator's application for habeas corpus is denied and he is ordered remanded to the custody of the Sheriff of Bexar County, Texas.