Relator, Gordon L. Yates, applies here for a writ of habeas corpus from an order of commitment entered by the judge of the 153rd District Court of Tarrant County, Texas. The commitment was ordered pursuant to a judgment entered by the Court on September 18, 1964, adjudging Yates guilty of civil contempt for failure to comply with the Court’s judgment entered in a divorce suit on December 3, 1963. The Relator seeks release from the custody of the sheriff of Tarrant County, Texas, on the ground that the action of the judge in finding him guilty of civil contempt for failure to obey that portion of the divorce judgment dealing with the community property owned by Gordon L. Yates and his wife, Mary Ruth Yates, at the time of the divorce, amounts to an imprisonment for debt in violation of Article I, Section 18, of the Constitution of the State of Texas, Vernon’s-Ann.St.
The order of commitment recites that the defendant, Gordon L. Yates, is “* * * adjudged to be guilty of civil contempt, and is remanded to the custody of the sheriff of Tarrant County, Texas, for three days- and thereafter until he purges himself by payment of all arrears of the judgment against him * *
We have concluded that the judgment of contempt is void insofar as it directs that Yates shall remain in custody “until he purges himself by payment of all arrears of the judgment.”
Relator’s wife filed a suit for divorce and division of the community property. During the pendency of the cause, relator was-enjoined from disposing of any of the community property. Trial was had before-a jury; and, after the jury had retired,, counsel for the wife moved for a non-suit. The Court permitted the non-suit and discharged the jury. Thereafter, the court determined that it was lacking authority to-grant the nonsuit and recalled the foreman of the jury to have him sign the verdict. This “verdict” was in favor of relator, and his counsel entered a motion for judgment,, while the wife’s counsel moved the court to declare a mistrial. The court declared a mistrial, after which the wife amended her petition and the cause came on again for trial.
On December 3, 1963, the Court entered its judgment dissolving the marriage, and ordered a division of the community property.1
*379In April, 1964, after the divorce judgment became final, Mrs. Yates filed a motion to have the relator adjudged in contempt of the Court for disobedience of the partition decree. In determining whether or not Yates is guilty of contempt, this Court is particularly concerned with that provision of the divorce judgment which reads:
“(3) The plaintiff shall have $67,-920.75 of the debt of Gordon Yates Lumber Company to Gordon L. Yates. More than said sum is evident by a promissory note of said corporation to the defendant’s order. He shall deliver said note to the plaintiff as security for her payment, but may redeem the note by instalment payments of $500.00 per month principal and one twelfth of four per cent, interest per annum on the unpaid balance of $67,920.75. * :¡: »
It is apparent that Mrs. Yates and the Court proceeded upon the theory that the failure of relator to exercise the right to redeem the Gordon Yates Lumber Company note in the manner provided in the judgment constituted a willful and contumacious act punishable by contempt. It is also apparent from the record in this proceeding that relator, before the entry of the divorce judgment, and without the knowledge of the Court, pledged the note to a bank as .security.
On September 3, 1964, after the Court had granted relator several postponements, the Court proceeded with the hearing and found relator guilty of civil contempt. However, the Court’s order of commitment was withheld in order to give relator a reasonable opportunity to purge himself of •contempt by paying to Mrs. Yates all unpaid monthly installments as provided in the divorce judgment.
On September 18, 1964, Yates was ordered committed for his failure to purge himself of contempt.
The order of commitment contains the following fact findings:
1. Relator willfully concealed the pledging of the note until after the partition decree.
2. Relator never intended to perform the partition decree.
3. Relator has always intended, and now intends, to defraud the wife of her rights adjudged by the decree.
4. Relator has been continuously able to perform the decree, and his refusal to do so is willful and contumacious.
The case does not come before us as one in which relator is being committed for pledging the note in violation of the court’s injunction against disposition of community property during the pendency of the divorce action.
Assuming without deciding that the recitation in the divorce judgment that Yates “may redeem the note by instalment payments of $500.00 per month principal and one twelfth of four per cent, interest * * * ” is decretal in nature and forms a part of the divorce judgment, we, nevertheless, hold that the court could only assess the appropriate punishment for willfully concealing the pledging of the note. Therefore, that portion of the order of commitment which remands Yates to the custody of the sheriff of Tarrant County, Texas, for three days is left undisturbed.
We cannot agree with the respondent’s argument that the case of Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938 (1961), rules the present case. In the Preston case, the trial court found that Preston had in his possession the sum of $21,000 of community property, and that $10,000 thereof had been awarded to Preston’s wife. The trial court in the Preston case did not order that any sum of money be paid to Mrs. Preston, but *380ordered Preston to pay the money into the hands of the court The money was in the possession of and in complete control of Preston. The only purpose in ordering Preston originally to pay over the $21,000 to the clerk of the court was so that the court would have possession and control over the community property in order to carry out its duty to make a division between the parties. In holding the acts of Preston to he contumacious, this Court cited Ex parte Britton, 127 Tex. 85, 92 S.W.2d 224, 226 (1936), wherein it was held:
“The rule is established that a court having jurisdiction of the parties and the res of the litigation has undoubtedly authority to order the surrender of property held by the defendant or any other person who is a party to the suit.”
Another case, cited with approval by this Court in the Preston case, is that of Ex parte Latham, 47 Tex.Cr.R. 208, 82 S.W. 1046 (1904). The appellate court in the Latham case declined to follow the relator’s contention that the trial court was not authorized to imprison him for debt. The appellate court in Latham held that since it was competent for the trial court to make partition of the community property then the trial court was authorized to require the relator to turn over the community property conceded then to be in his hands for the purpose of distribution, and further the court was authorized to enforce its decree by a contempt proceeding.
This Court held that the order entered in the Preston case was not void, and that the facts demonstrated that the enforcement of the order would not constitute imprisonment for debt in violation of Article I, Section 18, of the Texas Constitution. The basis for this holding was the fact that the order merely directed Preston to “pay over money in his possession that rightfully belongs not to him but to his wife.” The judgment of divorce did not purport to decree that Preston was indebted to his wife. The judgment of divprce siñaply ordered a division of the money- and-directed Preston to pay over to the clerk of the court that portion which had been awarded to the-wife.
We decline to apply the rule announced in the Preston case to the factual situation presented in this case. The order holding Yates in contempt conforms to the facts in evidence. The order itself reveals that the money which Yates was being ordered to pay to Mrs. Yates was not property found to be owned by Mrs. Yates and in the possession of Yates, but was money to be earned by Yates in the future. The order does not, as in Preston, make a division of the property and direct a surrender to the-clerk of the court property held by Yates. The record clearly shows that Yates is being imprisoned for debt in violation of the Texas Constitution. Therefore, that portion of the order which remands Yates to-the custody of the sheriff of Tarrant County, Texas, until he “purges himself by payment of all arrears of the judgment against him * * *» js void. However, that portion of the order finding Yates in contempt: for willfully concealing the pledging of the note until after the partition decree is held' to be valid.
The relator Yates is ordered remanded to the custody of the sheriff of Tarrant County, Texas, and the relator Yates shall remain in such custody until he has completed serving the three day jail sentence-provided in the judgment of the trial court. Upon completion of the sentence, the relator shall be discharged from custody and his-, sureties released from liability on his bond..
NORVELL and STEAKLEY, JJ., dissenting.. In part, the judgment provides as follows : “Upon the evidence the Oourt finds that the estate is wholly personal and all community property, of value $191,101.51. The Court finds that the plaintiff should be charged $6,500.00 for alimony received pending the suit, and that she is now entitled to property of value $89,050.75. To effect the division of the estate the Court deems just and right, it is now ORDERED, ADJUDGED and DECREED:
(1) On or before December 6, 1963, the defendant shall pay the plaintiff $5,-000.00.
(2) The plaintiff shall have the interest of the estate in two promissory notes of Glen Yates, Inc. * * *
(3) The plaintiff shall have $67,920.75 of the debt of Gordon Yates Lumber Company to Gordon L. Yates. More "than said sum is evident by a promissory note of said corporation to the defendant’s order. He shall deliver' said *379note to the plaintiff as security for her payment, but may redeem the note by instalment payments of $500.00 per month principal and one twelfth of four per cent, interest per annum on the unpaid balance of $67,920.75. » * * ”