in Re Pearl Mae Williams

Opinion filed December 8, 2005 Opinion filed December 8, 2005 In The Eleventh Court of Appeals __________ No. 11-05-00201-CV __________ IN RE PEARL MAE WILLIAMS Original Habeas Corpus Proceeding M E M O R A N D U M   O P I N I O N This is an original habeas corpus proceeding. The trial court held Pearl Mae Williams in contempt for failing to deliver a Jeep to her attorney and ordered her held in jail for 60 days. Williams filed a petition for writ of habeas corpus with this court. We set a bond and have now considered her petition. Because the trial court found Williams in contempt without providing due process, we grant the writ. Background Facts This original proceeding arises out of a divorce action. The trial court held a hearing on September 28, 2004. The following day the court faxed a letter to both attorneys with its findings and rulings. The letter was unsigned when faxed, but was signed later that day and was included in the clerk=s file. Williams acknowledged that her attorney timely received the court=s letter. The letter includes the following provision: AThe Court orders the Jeep sold....Jeep is ordered surrendered to [David Hall=s] office[1] no later than 5:00 p.m., Thursday, September 30, 2004.@ Respondent=s attorney, Kenneth L. Maxwell, was asked to prepare the Final Decree of Divorce. Maxwell did so; but, in the interim, the parties conducted post-hearing settlement discussions, and the decree was not submitted to the trial court until November 16. It was signed that same day. The decree states that it was Ajudicially PRONOUNCED AND RENDERED@ on September 28. (Emphasis in original) The trial court acknowledged in a subsequent hearing that this statement was incorrect and that it made no findings at the end of the September 28 hearing. Williams did not turn over the Jeep. Instead, she traded it in for a Mustang on November 17. Her former husband apparently did not realize that she no longer had the Jeep because he filed a petition for enforcement on December 14 complaining of Williams=s failure to turn over the Jeep and asking the court to order her to deliver the Jeep. The petition refers to the Final Decree of Divorce but not the September 29 letter. The trial court held a hearing on the petition for enforcement and found Williams in contempt on January 20, 2005. The court then set a hearing for February 17, 2005, to determine the appropriate sanction and/or punishment. That hearing was continued until June 17, 2005. The trial court assessed 60 days confinement in the county jail and awarded Williams=s ex-husband damages of $4,500 and attorney=s fees of $750. Williams=s Request for Habeas Corpus Williams raises four challenges to the contempt finding, alleging lack of notice and impossibility of performance. We need not address impossibility of performance because we find that there was a lack of sufficient notice that Williams might be held in contempt and that her punishment might be confinement in jail. Williams contends that she did not have full and unambiguous notice of the accusation of contempt, notice or knowledge of the order she was charged with violating, and notice in the petition that she had failed to comply with the September 29 fax. Williams was entitled to due process which generally requires reasonable notice and an opportunity to be heard. See In re Johnson, 150 S.W.3d 267, 271 (Tex.App. - Beaumont 2004, orig. proceeding). The process due is measured by a flexible standard depending on the practical requirements of the circumstances. Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Williams faced constructive contempt charges. Thus, she was entitled to full and complete notification of the subject matter and the when, how, and by what means she was guilty of the alleged contempt. Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex.1969); see also Ex parte Brister, 801 S.W.2d 833, 835 (Tex.1990)(Cook, J., concurring)(amongst the due process rights accorded an alleged contemnor is the right to reasonable notice of each alleged contumacious act). She was also entitled to present a defense to the alleged contempt. Williams=s due process rights are impacted by whether she faced civil or criminal contempt. Criminal contempt is punishment for past conduct. Civil contempt is coercive, and the contemnor may obtain his release by complying with the court=s order. In re Houston, 92 S.W.3d 870, 876 n.2 (Tex.App. - Houston [14th Dist.] 2002, orig. proceeding). Because she was being punished for past conduct and had no opportunity to purge herself of her contempt, Williams faced criminal contempt proceedings. Consequently, Williams was entitled to heightened constitutional protections. See International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 827 (1994)(criminal penalties may not be imposed on someone who has not been afforded the protections that the constitution requires of such criminal proceedings).[2] In Ex parte Vetterick, 744 S.W.2d 598 (Tex.1988), the relator was the administrator of an estate. The trial court entered an order requiring him to appear and show cause why he should not be ordered to turn over estate assets. The court held a hearing and, on that same day, entered an order compelling him to deliver property and provide a sworn accounting. The court also scheduled a second hearing for approximately two months later. At this second hearing, the court held the relator in contempt for failing to comply with the original turnover order. Id. The supreme court reversed the contempt order, finding that the relator had received insufficient notice. Specifically, the court wrote: In a case involving conduct outside the presence of the court, due process requires that the alleged contemnor receive full and unambiguous notification of the accusation of any contempt. This notice should be by show cause order or equivalent legal process personally served on the alleged contemnor, and it should state when, how and by what means the defendant has been guilty of contempt. (Emphasis added) Id. at 599. The court found that this standard was unsatisfied because no motion for contempt was filed and because no show cause order or equivalent legal process was issued before the second hearing. Id.[3] Courts have also held that a party facing criminal contempt charges is entitled to advance notice of their potential punishment. See In re Smith, 981 S.W.2d 909, 911 (Tex.App. - Houston [1st Dist.] 1998, no pet=n). In Smith, the movant asked for civil contempt, but the trial court assessed a criminal contempt punishment. The Houston Court of Appeals reversed, holding that the relator=s due process rights were violated when the trial court went beyond the requested relief. There was no motion filed for an order and hearing for Williams to show cause why she should not be held in contempt, and no such order was issued. Williams was not afforded notice that, if she were held in contempt, the trial court might assess jail time or punishment. Because Williams was not personally served with this notice, her due process rights were violated, and her writ of habeas corpus is granted. Court Costs Williams=s final issue contends that she is entitled to payment of court costs based upon her indigency pleadings. Williams filed a verified motion for a free reporter=s record and a sworn statement of indigency with the district clerk. The trial court denied her motion. Because this is an original proceeding, TEX.R.APP.P. 20.1(c)(2) required that the affidavit be filed with the Court of Appeals. The trial court, therefore, had no jurisdiction to grant her request. Williams=s final issue is overruled. Conclusion We grant the writ of habeas corpus and order Williams discharged. JIM R. WRIGHT CHIEF JUSTICE December 8, 2005 Not designated for publication. See TEX.R.APP.P. 47.2(a). Panel consists of: Wright, C.J., and McCall, J. W. G. Arnot, III, retired effective July 31, 2005 and is, therefore, not participating. [1]Williams=s attorney. [2]The required constitutional protection depends on whether the criminal contempt is Aserious@ or not. Serious criminal contempt involves imprisonment for more than six months. See Taylor v. Hayes, 418 U.S. 488, 495 (1974)(party facing serious criminal contempt charges has a right to a jury trial). Because Williams=s sentence was 60 days, those additional provisions are not applicable. [3]The supreme court=s opinion indicates that other equivalent legal process refers to something such as a subpoena which compels the relator=s attendance. Ex parte Vetterick, 744 S.W.2d at 599.