in Re: James Steven Brownhill

Petition for Writ of Habeas Corpus Granted and Memorandum Opinion filed June June 7, 2007 Petition for Writ of Habeas Corpus Granted and Memorandum Opinion filed June June 7, 2007. In The Fourteenth Court of Appeals ____________ NO.  14-07-00346-CV ____________ IN RE JAMES STEVEN BROWNHILL, Relator ORIGINAL PROCEEDING WRIT OF HABEAS CORPUS M E M O R A N D U M  O P I N I O N Relator James Steven Brownhill filed a petition for a writ of habeas corpus, seeking relief from the trial court=s order revoking the suspension of his commitment for contempt for failing to pay child support. On April 25, 2007, we ordered relator released from custody, subject to bond, pending a final determination of this cause. Because we conclude that relator is entitled to relief, we grant his petition for writ of habeas corpus, vacate the trial court=s commitment order, order relator released from the bond set by this court on April 25, 2007, and order him discharged from custody. Background Relator and real party in interest Rae Lynn Brownhill Heaton were divorced in 1991. In the divorce decree, relator was ordered to pay $400 per month in child support. Rae Lynn subsequently sought to enforce the child support order and, on March 27, 2006, an agreed enforcement order (the Aagreed order@) was entered. The agreed order: (1) awarded Rae Lynn a judgment of $41,800 in child support arrearage; (2) sentenced relator to ten days confinement in the Harris County jail and ordered that he remain confined until he paid the $41,800 judgment and attorney=s fees; and (3) suspended relator=s commitment contingent, in part, on his compliance with the payment schedule set forth. The trial court signed another contempt and commitment order on February 12, 2007 (the AFebruary order@), which: (1) assessed an additional child support arrearage for violations occurring from March 23, 2006 through February 12, 2007; (2) found relator had the ability to pay; (3) awarded Rae Lynn a cumulative child support judgment of $39,200; (4) revoked the suspension of relator=s commitment to jail in the agreed order; and (5) ordered that relator remain confined until the $39,200 arrearage and attorney=s fees, was paid.[1] On April 16, 2007, at the conclusion of a compliance hearing, the trial court signed an order (the AApril order@) which again revoked relator=s suspension of commitment in the agreed order, found that relator failed to pay the arrearages assessed in the February order, and ordered relator committed to the county jail for four days and to remain thereafter, until the $39,200 child support arrearage and attorney=s fees were paid. Relator challenges the April order in this original proceeding. Standard of Review A commitment order is subject to collateral attack in a habeas corpus proceeding. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (orig. proceeding). A writ of habeas corpus will issue if the trial court=s contempt order is void because relator has not been afforded due process. Id. Confinement without a valid commitment order is a violation of due process rights. See Ex parte Swate, 922 S.W.2d 122, 124 (Tex. 1996) (orig. proceeding); Ex parte Wilson, 797 S.W.2d 6, 7 (Tex. 1990) (orig. proceeding). In reviewing a contempt order, we take into consideration the entire record to determine whether due process has been accorded to the relator. Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex. 1967) (orig. proceeding). Due Process In his petition, relator argues that his due process rights were violated because the trial court failed to allow him to present an inability-to-pay defense. A person cannot be incarcerated indefinitely for contempt if he or she does not have the ability to perform the condition required for release.[2] An obligor may assert inability-to-pay as an affirmative defense to Athe violation of a condition of community service requiring payment of child support.@ Tex. Fam. Code Ann. ' 157.008(c) (Vernon 2002). The transcript from the April 16 compliance hearing shows the trial judge would not allow relator to present his defense, stating it was Airrelevant.@ However, relator was permitted to make an offer of proof and testified that: (1) he had a stroke after entering into the agreed order; (2) he is living with his father-in-law and has no current income; (3) his father-in-law is currently supporting relator=s family; (4) relator is unable to practice law; (5) he has tried to borrow the money, but cannot; (6) he has no assets that he can liquidate to obtain the money; (7) he has no legal way to obtain the money to pay the child support arrearage; and (8) if he is sent to jail, he has no way to raise the money and would essentially remain confined Aforever.@ See Tex. Fam. Code Ann. ' 157.008(c). The effect of denying a writ of habeas corpus when the relator cannot purge himself of the contempt is to authorize the trial court to confine the relator for the balance of his natural life.[3] By failing to allow relator the opportunity to present an inability-to-pay defense, the trial court denied relator this due process right. It is not apparent from the record why the trial court concluded the defense was irrelevant. Nor is it apparent from the April order. If the trial court relied on its finding that relator had the ability to pay in the February order, the April order specifically cites to the agreed order as the underlying contempt order, not the February order.[4] Further, the April order standing alone does not contain all the elements of a judgment or order of contempt and, even if it did, due process would require relator be permitted to present his defense.[5] In short, under the circumstances of this case, relator should have been allowed an opportunity to present his inability-to-pay defense. The trial court=s refusal to permit relator to put on evidence of the defense was a violation of relator=s due process rights. Because this issue is dispositive of relator=s petition, we need not address his other grounds. Conclusion We conclude that by refusing to allow relator to present evidence of an inability-to-pay defense, the trial court violated relator=s due process rights; therefore, we hold that relator=s confinement pursuant to the April 16 commitment order is void. Accordingly, we grant relator=s petition for writ of habeas corpus, vacate the April 16 order in its entirety, order relator released from the bond set by this court on April 25, 2007, and order relator discharged from custody.[6] /s/ Richard H. Edelman Justice Petition Granted and Memorandum Opinion filed June 7, 2007. Panel consists of Justices Yates, Edelman, and Seymore. [1] Relator was taken into custody on February 12, but he was ordered released the following day. The reason for relator=s release is not indicated in our record. [2] See In re Gawerc, 165 S.W.3d 314, 315 (Tex. 2005) (orig. proceeding); Ex parte Rojo, 925 S.W.2d 654, 655 (Tex. 1996) (orig. proceeding); Ex parte Chambers, 898 S.W.2d 257, 261 (Tex. 1995) (orig. proceeding) (noting that involuntary inability to comply with an order is a valid defense to criminal contempt). [3] See Ex parte Rojo, 925 S.W.2d at 656. An opportunity to defend against contempt charges is an important due process right belonging to a constructive contemnor. In re Rowe, 113 S.W.3d 749, 752 (Tex. App.CAustin 2003, orig. proceeding) (stating that an opportunity to defend against charges is Aan alleged contemnor=s most fundamental due process right@); see Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding) (noting that constructive contemnor must be given opportunity to meet the charges of contempt by defense or explanation). [4] At the conclusion of the compliance hearing, the trial judge found relator was Anot in compliance,@ but did not specify which contempt order was violated. [5] See Ex parte Swate, 922 S.W.2d at 124; Ex parte Price, 741 S.W.2d 366, 367 (Tex. 1987) (orig. proceeding) (stating that commitment order must inform the contemnor in Aclear, specific and unambiguous words@ how to gain release from contempt); Ex parte Rohleder, 424 S.W.2d 891, 892B93 (Tex. 1967) (concluding that continuing imprisonment without the ability to bring about one=s own release is imprisonment beyond the powers of the trial court); see also In re Gawerc, 165 S.W.3d at 315 (finding evidence presented at time of commitment established relator could not purge himself of the civil contempt); Ex parte Delcourt, 888 S.W.2d 811, 812 (Tex. 1994) (rejecting argument that subsequent additional contempt judgments and commitments may be freely signed weeks later). [6] This does not affect the agreed order or the February order or otherwise exonerate relator from his obligation to pay the child support arrearage.