concurring.
Sixth Amendment Right To Counsel
While I concur there is a right to counsel in support contempt cases, I disagree with the holding that the Sixth Amendment right to assistance of counsel clause applies. I believe that is an improvident grant of the Sixth Amendment right. Before so easily applying that provision, this Court should consider two things: what is the real purpose of the contempt hearing in a child support case and is it necessary to decree a blanket extension of the Sixth Amendment right to counsel in these cases.
The underlying purpose of enforcement of child support orders is to protect the child’s interests. The sole objective is not punishment of the nonpaying parent. In that regard it is not a “criminal prosecution” as contemplated by the Sixth Amendment provision. The duty to pay child support has already been determined; it derives from the parent/child relationship. Therefore, the parent is not charged with a crime, simply with not obeying the court’s order of child support. The unseen participant at these hearings is the public, for the public benefits when the children of the community are supported by their parents, and it suffers when this is not done. Obviously there is more at stake in the enforcement proceedings than the trial court assuring itself that the nonpaying parent’s rights are protected.
This is not to say that the nonpaying parent may not be entitled to representation by counsel at the hearing. By all means that entitlement must be recognized *420by the trial court, and, on review, by this Court. But implicating the Sixth Amendment is not the way.
I doubt that this intermediate State court has the authority to interpret the United States Constitution Sixth Amendment right to counsel clause and hold it applies to contempt proceedings in child support cases. Assuming that we do, the majority would hold that the Sixth Amendment right to assistance of counsel clause mandates that counsel always be appointed for an indigent contemnor. What the court refuses to reckon with is that it may say this right is limited only to indigent con-temnors, but that would not be the real result. Relator is correct when he argues that if the Sixth Amendment counsel clause does apply, the right to counsel also is his right, irrespective of his pecuniary status. The Equal Protection Clause of the Fourteenth Amendment assures that right to all contemnors, not just indigent ones, if the Sixth Amendment would apply.
Remember that Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) also spoke only of the indigent accused. However, after Gideon, in all felony trials, all defendants must have counsel, whether they are indigent or not, or they must follow strict procedures to waive counsel. Where there is likelihood of imprisonment in misdemeanor cases, all those defendants must also have counsel or waive the presence of counsel to assist them. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). But see, Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) (modifying the right which does not attach if defendant not actually sentenced to jail).
The process due an indigent contemnor derives from the Due Process Clause of the Fourteenth Amendment. It is this clause that the Supreme Court applied to protect juveniles charged with an offense, brought to trial, and facing possible imprisonment. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). In addition, probation may be revoked only upon proof of a violation by a preponderance of the evidence. Further, parole revocation does not invoke the Sixth Amendment right to counsel.
The court’s statement that a contemnor would not be entitled to counsel [under the Sixth Amendment] when the evidence shows he is not indigent must fail. Because when the tentacles of that particular Sixth Amendment clause are followed to their logical ends according to constitutional law, counsel would be required for relator at trial. If the Sixth Amendment mandates counsel, and any contemnor did not waive that right, he must, perforce, be discharged.
Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) is a termination of parental rights case, certainly a deprivation of great magnitude. In applying the protections of the Due Process Clause of the Fourteenth Amendment, the Supreme Court acknowledged the potential liberty loss involved and recognized the right to be represented by counsel at such a trial. However, the Court declined to hold that failure to appoint counsel in that particular case was error. It suggested that each case must be examined by the trial court on a case-by-case basis to determine when counsel should be appointed. It emphasized that fundamental fairness is the touchstone of the Due Process Clause and, in such cases, the court would balance private and public interests: the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
This is the flexible method permitted under the Fourteenth Amendment Due Process Clause. It demonstrates the procedural due process language employed now by the Supreme Court. It is the trial court which is in the best position to determine the need for appointed counsel in contempt cases. This is not a rigid formula with the costly rigid application and encumbrances of the Sixth Amendment. If we assume we have the authority to interpret the United States Constitution, why do we not hold that under the Due Process Clause of the *421Fourteenth Amendment a trial court must always advise an indigent contemnor of his right to counsel and appoint one if one is requested or it determines one should be appointed. A trial court should also advise a non-indigent of his right to counsel, but would not be required to appoint counsel. Waiver forms would not be required, and costly undue delays would not result. Useless expense to the State and counties (the taxpayers) would be avoided, and constitutional rights would be protected. Just as important, the child’s best interests would be protected.
Why should this Court do this unnecessary thing when the present Supreme Court does not apply the Sixth Amendment right to counsel to cases outside the realm of criminal prosecution. It is the Due Process Clause of the Fourteenth Amendment which would apply, not the Sixth Amendment.1 Therefore I dissent to its application.
Under the Due Process Clause of the Fourteenth Amendment the facts of this case do not warrant appointment of counsel nor require written waiver of counsel. The result is correct according to that provision. However, the majority ruling, if upheld, will lead to a successful future collateral attack on that point (no waiver).
Burden of Proof
The duty to support a child is imposed by the parent/child relationship. The con-temnor has already been placed under a court order of support. The question before the Court is failure to obey the order. The contemnor may show the Court why it is impossible to comply.
I agree with the overruling of Lopez, which held that the movant in a child support contempt case must prove the con-temnor had the ability to pay the support, and that the movant has the further burden of proving this beyond a reasonable doubt. While I have not examined all the state courts’ decisions in the United States regarding placement of this burden, I have not found one which added this novel view to that state’s jurisprudence. Apparently this panel decision (one justice dissenting] stands alone. The law in Texas, as stated in the majority opinion, has been well established and approved by our Supreme Court. It is also the accepted law in other states. The burden is upon the obligor parent to establish that he or she does not have the ability to pay the child support which was previously ordered by the court.
This firmly established law may only be changed by the Supreme Court or our Legislature. In all likelihood either occurrence may be considered remote. The Lopez holding as to the burden of proof is correctly overruled.
. See, TEX. CONST, art. I, § 10, which sets out this State’s “right to counsel" clause. Art. I, § 19 is the “Due Process Clause" of the Texas Constitution.