dissenting.
While I agree that relator was not entitled to appointed counsel under the facts of this case and that he voluntarily and intelligently waived his right to be represented by retained counsel, I disagree with that portion of Justice Dial’s opinion which concludes, contrary to the holding in Ex parte Lopez, 710 S.W.2d 948 (Tex.App.—San Antonio 1986, no writ), that the burden is on an alleged contemnor to prove that it was impossible to comply with the child support order or with the purging condition embodied in the contempt order.
Justice Dial correctly points out that contempt proceedings should conform as nearly as possible to criminal proceedings. But his conclusion that placing the burden of persuasion, or risk of nonpersuasion, on an alleged contemnor satisfies this requirement cannot be defended. In a criminal prosecution for nonsupport, the burden is on the State to prove, beyond a reasonable doubt, the ability of the accused to support his children, and the State of Texas cannot constitutionally provide that inability to support is an affirmative defense as to which defendant has the burden of persuasion. Lowry v. State, 692 S.W.2d 86 (Tex.Crim.App.1985). Stated differently, in a criminal case ability to pay is an element of the offense, while in a contempt proceeding *422ability to pay, instead of being an element of the offense, is an affirmative defense. The difference between a criminal proceeding and a contempt proceeding is, indeed, a substantial one.
The resemblance between criminal proceedings and contempt proceedings is obvious. In both instances the purpose of the proceeding is to impose imprisonment or a fine, or both, as a sanction for violating a governmental command or prohibition. Insofar as the so-called criminal aspect of a contempt proceeding is concerned, the real party in interest is patently the State, since the purpose of the sanction is to punish for violation of an order of a state agency. The movant in a contempt proceeding has no interest in this aspect of the case, since punishment of the contemnor yields no benefit to the private movant. This much is clear from the many statements, such as the one found in Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 420, 31 S.Ct. 492, 492, 55 L.Ed. 797 (1911), that in the case of criminal contempt the “sentence” is punitive, “to vindicate the authority of the court”, while in the case of civil contempt the imprisonment is “remedial”, “for the benefit of the complainant.”
Unless we are content with stopping after only a superficial analysis, it is apparent that the distinction between criminal and civil contempt is more imaginary than real. The purpose of the “remedial” imprisonment is intended to coerce the defendant to obey the order of the court. It is not for the benefit of the complainant but, in every sense of the word, has as its primary purpose compelling obedience with a governmental order. Dobbs, Contempt of Court: A Survey, 56 CORNELL L.REV. 183, 235-36 (1971). Since the primary purpose is to compel obedience to the prior order of the court, the benefit to the private complainant is, at best, incidental. It takes no great imagination to realize that, even in a case where the imprisonment is only punitive, as where the defendant is merely imprisoned for the permissible period of time without a purge condition, the imprisonment, although spoken of as being merely punishment for past offenses, will inevitably have the effect of inducing the defendant to comply with the court order in the future. Thus, even where the punishment must be viewed, under the traditional distinction, as punishment for criminal contempt, it has the incidental effect of bringing about a benefit to the private movant.
There are those who tirelessly invoke the old saw that, with respect to the coercive part of the order, the defendant “carries the keys to his prison in his pocket,” apparently for the purpose of pointing out that such portion of a contempt order does not constitute punishment. But the Supreme Court of the United States has pointed out that, if the defendant is unable to comply with the purge condition, the purpose of the condition cannot be said to be to coerce compliance with the court’s order. See Maggio v. Zeitz, 333 U.S. 56, 76, 68 S.Ct. 401, 411, 92 L.Ed. 476 (1948); Ex parte Sanders, 608 S.W.2d 343 (Tex.Civ.App.— Houston [14th Dist.] 1980, no writ). The truth is that the cliche is objectionably misleading because it conveys the idea that the defendant’s confinement for civil contempt is, in fact, voluntary or self-inflicted and is not really confinement at all. It draws attention away fr'om the fact that the sovereign has locked up the defendant who, to gain release, must comply with a command of the sovereign. In every important sense, the sovereign, not the defendant, retains control of the keys.
The entire contempt proceeding, irrespective of the labels used to camouflage the fact, is a situation in which the might and power of the sovereign is arrayed against the defendant. Not only may the court appoint an attorney to aid the claimant to obtain an order locking up the defendant, but iri many instances the case is filed by a state agency which may be represented by a public prosecutor. There is a public wrong to be vindicated, since there has been an alleged defiance of a court order and, in fact, an alleged violation of a criminal statute. TEX.PENAL CODE ANN. § 25.05 (Vernon 1974). Even with tongue firmly in cheek is it difficult to characterize such a proceeding, the purpose of which is to incarcerate the defendant, as anything short of a criminal proceeding.
*423The opinion of Justice Dial shifts the burden of proof from the accuser to the accused by the simple expedient of holding that defendant’s inability to make the required payments is an affirmative defense. The term “affirmative defense” is used to designate what a defendant must prove in order to mitigate, or exculpate himself from, the offense with which he is charged. At common law, the defendant bore the burden of persuasion as to all defensive issues. J. WIGMORE, EVIDENCE §§ 2485-87 (3rd ed. 1940). Since 1895, this rule has suffered considerable erosion in favor of the view which requires that the prosecution bear the risk of nonpersuasion throughout a criminal case. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895). See, generally, Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden of Persuasion Practices in Criminal Cases, 77 YALE L.J. 880 (1968). In the latter half of the present century, a constitutional element has been injected into the controversy concerning the proper allocation of the burden of persuasion.
The current dispute can be traced to the holding in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) that the burden is on the state to prove each element of the offense charged beyond a reasonable doubt. In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Supreme Court treated what the state had statutorily classified as an affirmative defense as an element of the crime charged and held unconstitutional the Maine law which allowed a defendant to reduce murder to manslaughter if he established that he acted in the heat of passion produced by sudden provocation. In reaching this conclusion the Court stressed the degree to which the effort of Maine to classify the issue of sudden passion as an affirmative defense affected the defendant’s interest in retaining his personal liberty. The Court did say, however, that a different result might be reached in situations where requiring the state to prove a fact less critical to guilt might impose a “unique hardship” on the prosecution. 421 U.S. at 702, 95 S.Ct. at 1891. This indicates that the Court was not intending to create a rule invalidating all affirmative defenses.1
In Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Court held unconstitutional a statute defining a criminal offense whose elements were possession of illegally imported marihuana with knowledge of its illegal importation because the statute contained a presumption that proof of possession established guilt under the statute “unless the defendant explains his possession to the satisfaction of the jury.” The Court held that there was no rational relationship between possession and knowledge of illegal importation. Id. at 53, 89 S.Ct. at 1557.
Justice Dial bases his conclusion that the defendant in a contempt proceeding should bear the burden of proving inability to comply on several considerations. Each of these “broad considerations of fairness, convenience and policy based upon experience in the various situations” will now be analyzed to determine if they support the conclusion reached by Justice Dial.
1. The interest of relator that he not be confined for conduct beyond his control. The key factor to be considered here is whether the conduct for which the defendant is being punished is voluntary conduct. For this reason, absent defendant’s ability to comply, a purge condition in a contempt order is void. Maggio v. Zeitz, supra. With rare exceptions, our society *424does not punish conduct unless that conduct is both voluntary and the result of a culpable mental state. The Texas Penal Code specifies that, unless the definition of an offense plainly dispenses with a mental state, a person commits an offense only if he voluntarily engages in an act or omission and does so with a culpable mental state. TEX.PENAL CODE ANN. §§ 6.01, 6.02 (Vernon 1974). Thus, both statute and case law evidence the importance attributed to the factor of whether the act committed was voluntary.
Justice Dial, while giving lip service to this concept, dismisses its importance by focusing instead upon the desirability of obtaining reliable evidence and the inconvenience of requiring the movant to obtain discovery. The due process provisions of our constitution may be “inconvenient” and “impractical” but that is because personal liberty is of primary importance.
The interest in personal liberty cannot be so lightly dismissed. In Lassiter v. Department of Social Services, 452 U.S. 18, 25, 101 S.Ct. 2153, 2158-59, 68 L.Ed.2d 640 (1981), the Supreme Court said, “[I[t is the defendant’s interest in personal freedom, and not simply special Sixth and Fourteenth Amendments right to counsel in criminal cases which triggers the right to appointed counsel.” The Court also noted that the defendant’s interest in liberty of his person creates a presumption that he is entitled to court-appointed counsel. This interest in personal liberty may justifiably be regarded as second in importance only to the interest in life.
2.The interest of the state that court orders be obeyed, particularly orders directing the payment of child support. Of course, the state has an interest in insuring that provisions of the Penal Code be enforced, but it cannot be concluded that the interest of the state in preventing criminal offenses outweighs the interest of the accused in avoiding imprisonment for conduct beyond his control. Otherwise, in murder prosecutions the state could rightfully saddle the defendant with the burden of persuasion concerning intent to kill and the presence of provocation resulting in heat of passion. We know that the Texas law concerning burden of proof with reference to heat of passion is to the contrary. Bradley v. State, 688 S.W.2d 847 (Tex.Crim.App.1985). Would anyone seriously suggest that a state could define murder in such a way as to include all killings unless defendant proved that he did not intend to kill? Is the prosecution of homicide less important than the enforcement of orders pertaining to child support?
3. Prior determination of relator’s ability to pay a specified sum of child support. This prior finding, of course, was the one made in the divorce action. But we must not stretch the doctrine of res judica-ta too far. Judicial factual determinations are made ex post facto and are applicable only to facts in existence prior to or on the date of the judgment which is based on such factual determinations.
Here, even assuming that relator was able to make each monthly payment as it became due, the coercive portion of the contempt order which requires his continued incarceration until he pays the arrear-age of $5,100.00 cannot stand. Certainly, it must be conceded that his failure to make payments as they fell due cannot be viewed as establishing his ability to pay the sum of the periodic payments which he failed to make.
It is also significant that the factual findings in the divorce case are based merely on proof by a preponderance of the evidence, rather than proof beyond a reasonable doubt, which is the quantum of proof required in cases where defendant’s liberty is at stake. If we are to ignore the difference in the required degree of proof, it could justifiably be argued that an indictment furnishes sufficient basis for relieving the state of the burden of persuasion as to elements of the crime, or at least, that the return of an indictment establishes the existence of probable cause to believe that defendant is guilty.
4. The Legislature has provided for modification of support orders. In a contempt hearing we are dealing with defendant's present ability to comply with a previous support order. The fact that he could *425have moved to modify the order is irrelevant on the question of his present ability to comply with the existing order.
5. Burden on party best able to offer accurate evidence. This is the “comparative convenience test” first formulated by Justice Cardozo in dictum in Morrison v. California, 291 U.S. 82, 88-91, 54 S.Ct. 281, 284-85, 78 L.Ed. 664 (1933). In Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943) the Court said that the relative convenience test was merely a “corollary” to the rational connection test and that the latter was controlling, since the relative convenience test could not save a presumption from constitutional infirmity in the absence of a rational connection between the fact proved and the fact presumed. This proposition was affirmed in Leary v. United States, supra.
In every criminal case the defendant has at least an equal familiarity with the facts and in most cases a greater familiarity with them than the prosecution. It is probably true that the defendant always knows more about his connection with the crime than does the prosecution. In Tot v. United States, supra, the Supreme Court held that because of these circumstances it might be argued that it would be proper in all criminal cases to place on defendant the burden of producing evidence, but the court pointed out that if this argument were sound, the legislature might validly command that the finding of an indictment, or mere proof of the identity of the accused should create a presumption of the existence of all facts necessary to establish guilt. “This,” said the Court, “is not permissible.” 319 U.S. at 469, 63 S.Ct. at 1246. If it is not permissible to place the burden of producing evidence on defendant because of convenience, then it certainly should not be permissible to shift the burden of persuasion on the basis of convenience. It is not easy to understand the argument which justifies depriving a person of his liberty in order to avoid inconveniencing his opponent.
Justice Dial speaks of allocating the burden of persuasion on the “basis of experience in the various situations.” The word “experience” appears to refer to the judicial estimate of the probabilities, based on experience. When we speak of a judicial estimate of the probabilities, it would appear that we are referring to the “rational connection test” applied in Tot and Leary.
What has been our experience concerning the coexistence of fact A (non-payment) and fact B (ability to pay)? In this case, we are asked to accept proof of non-payment as proof of ability to pay. There is no rational connection between non-payment and ability to pay. Stated differently, proof of the existence of fact A (nonpayment) is no evidence whatever of the existence of fact B (ability to pay). The proposition, “If A then B” has no basis in experience. The correlation between A and B is too low to justify shifting the burden of producing evidence and is necessarily insufficient to justify shifting both the burden of producing evidence and the burden of persuasion.
Before a presumption can be constitutionally valid, a high degree of precision must be required. There must be significant rational relationship between the fact proved and the fact presumed. Where we are dealing with an affirmative defense which, unlike a presumption, shifts not only the burden of producing evidence, but also the burden of persuasion, the correlation should be significantly higher than that required for upholding a presumption.
In Western and Atlantic RR v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884 (1929), the Supreme Court held that a statute requiring a railway defendant to establish an absence of negligence by a preponderance of the evidence once the plaintiff proved an injury resulting from a railroad collision violated the due process clause of the constitution because there was no rational basis between the fact proven and the presumption of negligence. The Court distinguished its holding in Henderson from its earlier decision in J. & K.C.R. Co. v. Tumipseed, 219 U.S. 35, 43, 31 S.Ct. 136, 138, 55 L.Ed. 78 (1910) noting that the statute in Tumipseed required only that the defendant present some evidence refuting negligence.
*426In this case, forcing the defendant to prove his inability to pay by a preponderance of the evidence once the movant has established a failure to pay is as arbitrary and unconstitutional as it was in Henderson.
. Two years later the Supreme Court upheld a New York statute which provided that a defendant charged with murder could mitigate his offense to manslaughter if he proved by a preponderance of the evidence that he had acted under the influence of extreme emotional distress. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). The Court found significant differences between the Maine and New York statutes which it concluded made Mullaney inapplicable. Unlike Mullaney the offense of murder under the statute challenged in Patterson required proof only of an intentional killing and allowed an affirmative defense by proof of factors which did not constitute an element of the offense. This, the Court reasoned, was very different from requiring the defendant to negate the existence of malice as required by the Main statute in Mullaney. Id. at 216, 97 S.Ct. at 2330.