I respectfully dissent. I would handle the matter thusly:
NO. 09-87-194 CV EX PARTE
CHARLES MONROE BERRYHILL
ORIGINAL PROCEEDINGS
ORDER This is a habeas corpus action. Relator was ordered confined by the 279th District Court of Jefferson County. The order of confinement grows out of a motion to revoke his previously ordered probation. He was previously held in contempt and placed on probation March 25, 1985. Relator alleges the present threat of confinement is illegal because it is predicated on the March 25, 1985 order and that that order is void because, although indigent, he was not represented by counsel. Relator attaches an affidavit to his application wherein he swears he informed the court of his indigent status and requested the appointment of counsel. The March 25th hearing was before the effective date of TEX.FAM.CODE ANN.sec. 14.32(b) (Vernon 1986) which prohibits the entry of a contempt *Page 191 order unless the court reporter makes a record of the proceeding.1
Rather than accept relator's uncontradicted allegations, we feel constrained to abate this proceeding for a hearing to determine whether Berryhill was required to proceed, in March 1985, upon a motion for contempt without counsel at a time when the question of his indigency was raised. See Ex parteHamill, 718 S.W.2d 78, 79 (Tex.App. — Fort Worth 1986, no writ).
We, therefore, abate this proceeding and direct the judge of the 279th District Court to conduct a hearing in accordance with this opinion. Thereafter, within 30 days of said hearing the record shall be transmitted to this court. Relator shall file a brief within 20 days and briefs on behalf of the court or any interested party may be filed within 20 days of the filing of relator's brief.
ABATED WITH DIRECTIONS.
PER CURIAM
November 5, 1987
Do not publish
Since the majority determines to handle the matter in a different manner, I respectfully dissent.