concurring and dissenting.
I agree that a defendant may be held in contempt and confined for violating an order made pursuant to art. 26.05(e). I also agree that a contemnor is entitled to legal representation in a contempt proceeding. But I do not agree with the majority’s conclusion that applicant is entitled to relief from the order of contempt in this case.
The majority determines that applicant is entitled to relief because she was not informed of her right to have counsel at the hearing. First, that is not the basis of applicant’s claim. In her Amended Petition for Writ of Habeas Corpus, she alleges that the trial court’s failure to appoint counsel violated her rights under various constitutional and statutory provisions. She does not claim that the court failed to inform her that she had a right to counsel. Since the majority, as I understand it, accepts the trial court’s finding that applicant was not indigent, applicant’s claim should fail — the court was not required to appoint counsel to a non-indigent.
Second, as applicant concedes in her Amended Petition, the trial court “insisted that the Applicant hire a lawyer.” The judge told applicant that if she did not make her payments, she would need a lawyer. He asked her if she understood that and she replied, “Yes.” This is the admonishment to which the judge later referred when he told her that he was not going to appoint an attorney because she was not indigent. Though applicant was not told in so many words that she had a right to counsel, the judge’s comments put applicant on notice that she needed an attorney. It seems to me that such a statement necessarily informed her that she had a right to counsel. And, again, applicant does not argue that the court failed to inform her of the right to counsel.
In short, the majority grants relief on the basis of a claim not made by applicant. And, even if she had claimed that the court failed to inform her of her right to counsel, applicant would not be entitled to relief. I therefore join Parts I and IIA of the majority opinion but, with respect, I dissent to Part IIB.