In Re Estrello

STEVE McKEITHEN, Chief Justice,

dissenting.

I join the Court’s opinion on the first part of issue one and all of issues three and four. I dissent to the majority opinion on the second part of issue one and all of issue two. The majority ignores the plain language in the trial court’s order. There is only one judgment of contempt in this case. The trial judgment adjudged Estrel-lo to be in criminal contempt for violating the grandparent access order on nine separate dates: March 10, 2000, April 14, 2000, May 12, 2000, June 9, 2000, July 3, 2000, July 10, 2000, August 18, 2000, September 8, 2000, and October 13, 2000. For that contempt Estrello received nine separate sentences of thirty days of confine*397ment in the county jail. Without identifying any act of continuing contempt, that same judgment adjudged Estrello to be in civil contempt and ordered him to be confined in the county jail “until Respondent has complied with the orders contained herein.” The trial court assessed attorney fees of $2,800 against Estrello.

The 2003 order is a revocation order combined with a commitment order, not a contempt judgment. The order states that Estrello violated the terms of the suspension of commitment on six separate dates: April 2, 2003, May 9, 2003, June 18, 2003, July 1, 2003, July 16, 2003, and August 6, 2003. Obviously, all of these dates describe conduct occurring after the date of the contempt judgment. The trial court assesses an additional $2,187 in attorney fees against Estrello, and revokes the suspension of commitment from 2000.

Here is where the majority, in its self-proclaimed pragmatism, departs from reality. With the handwritten portions appearing in italic script, the commitment order states the following:

IT IS ORDERED that Respondent, DANIEL J. ESTRELLO, is committed to the custody of the sheriff of JEFFERSON County, Texas, to be confined for a period of nineteen (19) thirty days, for the six (6) violations enumerated above as ordered-by the- order-suspending- commitment,- and then for so long thereafter until Respondent has complied with the following terms and conditions: (1) payment of $2800.00 attorneys fees to [the Billeauds’ attorney] for attorneys fees previously assessed amd pursuant to the Order of December 12, 2000 pursuant-do the which included and is pursuant to the civil commitment contained therein.

This language clearly and unequivocally assessed a new nineteen day sentence of confinement for the violations of April 2, 2003, May 9, 2003, June 18, 2003, July 1, 2003, July 16, 2003, and August 6, 2003. Estrello was not and never has been adjudged to be in contempt for denying the Billeauds access to D.J.E. or D.R.E. on April 2, 2003, May 9, 2003, June 18, 2003, July 1, 2003, July 16, 2003, and August 6, 2003. By committing Estrello to the custody of the county sheriff for nineteen days for six violations of an order for which Estrello has never been adjudged in criminal contempt, the trial court deprived the relator of due process. The civil contempt is also based on the relator’s failure to comply with an order that did not exist prior to the judgment.

I see no valid ground for distinguishing the holdings of Patillo: (1) that a commitment order may not impose a greater sentence than was imposed in the contempt judgment; and (2) a contemnor’s post-contempt conduct cannot be used to subject him to additional punishment. Ex parte Patillo, 32 S.W.3d 907, 910-11 (Tex.App.Corpus Christi 2000, orig. proceeding). The trial court did not reduce Estrello’s sentence from nine concurrent thirty day to six concurrent nineteen day confinements, and we should not pretend that it did. Common sense cannot justify this unconstitutional deprivation of the relator’s liberty.