Ex parte Simpson

OPINION

BURGESS, Justice.

This is a habeas corpus arising out of a child support contempt case. In a 1978 decree of legitimation, Relator was ordered to pay child support. In 1982, he was found in contempt for failure to pay the support and placed on probation for five years. On July 11, 1985, a motion was filed seeking to revoke the probation and capias was issued for Relator. In March 1987, Relator was placed in custody as a result of the capias and other unrelated criminal charges. On April 2, 1987, the court set bond and scheduled a hearing for April 6, 1987. At the hearing, the court revoked Relator’s probation and ordered him confined for six months and thereafter until the arrearage had been paid. Relator filed this writ of habeas corpus urging, among other things, that his confinement is illegal because at the April $ hearing, he was not advised that if he was indigent he was entitled to court-appointed counsel.

The law is clear that an indigent has the right to court-appointed counsel in a child support contempt proceeding. Ex parte Lopez, 710 S.W.2d 948 (Tex.App.— San Antonio 1986, no writ); Ex parte Hamill, 718 S.W.2d 78 (Tex.App. — Fort Worth 1986, no writ); Ex parte Sustrik, 721 S.W.2d 592 (Tex.App. — Fort Worth 1986, no writ); Ex parte Young, 724 S.W.2d 423 (Tex.App. — Beaumont 1987, no writ). Each of these cases holds that when the issue is raised the court is obligated to advise the alleged contemner of the right to a court-appointed attorney. A recent case, Ex parte Strickland, 724 S.W.2d 132 (Tex. App. — Eastland 1987, no writ), treats the subject in a slightly different manner. The Eastland court recognizes the established rule but views it as a question of waiver, holding that an individual cannot intelligently and intentionally waive the right to counsel unless he has been advised of that right. The court goes on to hold that without a valid waiver of counsel a judgment of contempt is void.

It does not seem too onerous a burden to require that all alleged contemners be advised of the right to court-appointed counsel if indigent without requiring that the question be raised. We, however, do not need to reach that result in the instant case. At the time of the hearing, the question of indigency was raised by Relator. On April 3, 1987, Relator sent the court a letter. While the letter is not explicit on the issue, there are numerous allusions to indigency. While Relator did not offer any testimony at the hearing, he certainly asked “questions” which were in the nature of testimony. Included in these “questions” were declarations which raise the question of his indigency. The question having been raised, the trial court should have informed Relator of his right to court-appointed counsel. Because the court failed to do so, the subsequent orders of revocation of probation and contempt were void. The writ of habeas corpus is granted and Relator discharged.