Opinion issued June 12, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-13-01001-CV
                              NO. 01-13-01094-CV
                            ———————————
               IN RE ANTHONY L. BANNWART, JR., Relator



 Original Proceeding on Petition for Writ of Habeas Corpus and Petition for
                            Writ of Prohibition


                                    OPINION

      Relator, Anthony L. Bannwart, requests habeas corpus relief from a

November 19, 2012 trial court “Judgment of Contempt-Anthony Bannwart” and

seeks a writ of prohibition preventing the trial court from holding further criminal
contempt proceedings.1 On November 26, 2013, after a preliminary review of

relator’s petition for writ of habeas corpus, we ordered relator released upon his

posting of a bond in the amount of $1000.00, pending a final determination of his

petition. Because we conclude that relator is entitled to habeas relief, we grant his

petition for writ of habeas corpus, order relator released from the bond set by this

Court on November 26, 2013, and order him discharged from custody. We deny

relator’s petition for writ of prohibition.

                                     Background

      The underlying suit involves the foreclosure of real property located in

Brazoria County, Texas.        Relator represented third-party defendant, Michael

Robinson (“Robinson”), in the underlying suit. In 2011, real party in interest,

Black Sigma, LLC (“Black Sigma”), sought a temporary injunction to prevent

Robinson from conducting a trustee’s sale of the Brazoria County property. An

order granting the temporary injunction was signed by the trial court on

September 1, 2011. On October 7, 2011, the trial court signed an amended order

granting the temporary injunction, which “relate[d] back to, the Order granting

temporary injunction of September 1, 2011.”         Subsequently, an interlocutory



1
      The underlying case is Black Sigma, LLC v. John P. Benkenstein, David A.
      Chaumette, Howard F. Cordary, Jr., and Michael P. Robinson, cause number
      64769, pending in the 23rd District Court of Brazoria County, Texas, the
      Honorable Ben Hardin presiding.

                                              2
appeal from the amended temporary injunction order was filed in this Court,

appellate cause number 01-11-00917-CV, by relator’s client, Robinson.2

      On May 22, 2012, Black Sigma filed a “Motion for Contempt and for

Referral to the Trial Court to Enforce Temporary Injunction” in appellate cause

number 01-11-00917-CV, arguing that relator, among others, should be held in

contempt for violating the trial court’s temporary injunction orders. In its motion,

Black Sigma asserted that relator was involved in the substitute trustee’s sale of the

Brazoria County property in violation of the trial court’s temporary injunction

orders.

      On June 7, 2012, this Court issued an “Order of Abatement and Referral of

Enforcement Proceeding to the Trial Court,” which referred the enforcement

proceeding of the temporary injunction orders to the trial court for that court to

hear evidence and grant appropriate relief. The contempt proceedings, which are

the subject of relator’s petition for writ of habeas corpus and for writ of

prohibition, subsequently commenced in the trial court.

      On November 19, 2012, the trial court found relator guilty of civil contempt

for violating the September 1, 2011 temporary injunction order. Specifically, the

trial court found that relator violated the trial court’s order:



2
      Relator has since withdrawn as counsel for Robinson and no longer represents
      Robinson in appellate cause number 01-11-00917-CV.

                                            3
      1.     By advising Michael Robinson that the Order Granting
             Temporary Injunction of September 1, 2011 was void; and

      2.     By failing to advise Michael Robinson not to proceed with a
             substitute trustee’s sale on September 6, 2011.

The contempt order further provided that relator “shall be confined in the Brazoria

County Jail until he purges himself of contempt by taking action to cause the

execution and recording of a document in form acceptable to the Court vacating

the said substitute trustee’s deed, effective September 6, 2011.”

      On August 9, 2013, relator attempted to purge himself of contempt by filing

an “Amended Motion to Vacate Substitute Trustee’s Deed.” In response, on

October 7, 2013, the trial court presented relator with an “Order and Declaratory

Judgment on Amended Motion to Vacate Substitute Trustee’s Deed,” as a means

of reversing the September 6, 2011 substitute trustee’s sale. The order required

relator to acknowledge by signature approval of both the substance and form of the

proposed order. The order also required the signature of relator’s client, Robinson,

and a certification by relator that Robinson’s signature was genuine. The signed

order, along with other documents, was to be presented to the trial court by

November 4, 2013. It does not appear from the record that relator returned the

documents to the trial court complete with the required signatures and certification.

      In his petition, relator states that, at the time Robinson’s signature was

required on the trial court’s proposed order, Robinson was located out of state and


                                          4
was unable to travel due to serious health conditions. Therefore, relator could not

certify the authenticity of Robinson’s signature, who could not sign the order in

relator’s presence.3

      On November 8, 2013, the trial court issued a capias for the arrest of relator

based on the trial court’s November 19, 2012 civil contempt order.                Relator

subsequently filed a petition for writ of habeas corpus and writ of prohibition with

this Court.4 We ordered relator released upon his posting of a bond, pending full

submission of the matter. We also requested a response from Black Sigma, which

was filed on December 18, 2013.

                               Writ of Habeas Corpus

Standard of Review

      The purpose of a habeas corpus proceeding is not to determine the ultimate

guilt or innocence of the relator, but only to ascertain whether the relator has been

3
      Relator also notes that on November 4, 2013, the trial court allowed relator to
      withdraw as Robinson’s counsel, finding that Robinson had discharged relator.
4
      The portion of relator’s petition relating to relator’s request for a writ of
      prohibition concerns criminal contempt proceedings, rather than the
      aforementioned civil contempt proceedings, that were also initiated against relator
      in 2012. The criminal contempt proceedings against relator were referred by the
      trial court to The Honorable Olen Underwood, the Presiding Judge of the Second
      Judicial Administrative Region, pursuant to Texas Government Code section
      21.002(d). See TEX. GOV’T CODE ANN. § 21.002(d) (West 2004). Judge
      Underwood assigned The Honorable Bob Wortham, now former judge of the 58th
      District Court of Jefferson County, to hear and determine the criminal contempt
      proceedings. At the time relator filed his petition, relator stated that the criminal
      contempt proceedings were still pending. To date, the parties have not notified the
      Court otherwise.

                                            5
unlawfully confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig.

proceeding). In a habeas corpus proceeding, the order or judgment challenged is

presumed to be valid. Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex. App.—

Houston [1st Dist.] 1990, orig. proceeding). For this Court to order the release of a

relator in a habeas corpus proceeding, we must find that the trial court’s order

directing the relator to be incarcerated is void because of a lack of jurisdiction or

because the relator was deprived of liberty without due process of law. In re

Butler, 45 S.W.3d 268, 270 (Tex. App.—Houston [1st Dist.] 2001, orig.

proceeding). The relator bears the burden of showing that he is entitled to relief.

In re Turner, 177 S.W.3d 284, 288 (Tex. App.—Houston [1st Dist.] 2005, orig.

proceeding).

Analysis

      Relator asserts his confinement is illegal because: (1) the September 1, 2011

order of temporary injunction upon which relator’s contempt is founded is void;

(2) the charges of contempt are too vague and ambiguous to provide relator with

adequate notice to prepare a defense; (3) the September 1, 2011 temporary

injunction order did not enjoin the conduct for which relator was found in

contempt; (4) the judgment of civil contempt is void because it lacks specificity

regarding the acts relator must perform to purge himself of contempt; (5) the

evidence was legally and factually insufficient to support a finding of civil


                                         6
contempt; and (6) the capias was not issued sufficiently close in time to the trial

court’s judgment of civil contempt. Because we sustain relator’s fourth issue, we

do not address the other issues in relator’s petition.

         In his fourth issue, relator asserts that his due process rights were violated

because the trial court’s judgment of civil contempt did not specify in clear and

unambiguous language what relator must do to purge himself of contempt. We

agree.

         The trial court found relator guilty of civil contempt in its November 19,

2012 order of contempt. Civil contempt is considered remedial and coercive in

nature. Ex parte Werblud, 536 S.W.2d 542, 545 (Tex. 1976) (orig. proceeding); In

re Houston, 92 S.W.3d 870, 876 n.2 (Tex. App.—Houston [14th Dist.] 2002, orig.

proceeding). “The object of civil contempt is to coerce the contemnor to comply

with some order of the court.” Ex parte Durham, 921 S.W.2d 482, 485 (Tex.

App.—Corpus Christi 1996, orig. proceeding); see also Ex parte Zinn, No. 04-95-

00525-CV, 1996 WL 11423, at *4 (Tex. App.—San Antonio Jan. 11, 1996, orig.

proceeding) (not designated for publication) (“The purpose [of civil contempt] is to

persuade the contemnor to obey a prior order.”).

         A contemnor may procure his release from the restraint on his liberty by

compliance with the provisions of the court’s order. In re Houston, 92 S.W.3d at

876 n.2; see also Ex parte Zinn, 1996 WL 11423, at *4 (“Imprisonment is


                                           7
conditional upon obedience; the judgment provides that the contemnor is to be

imprisoned unless and until he performs a specified affirmative act.”). Because of

this, when civil contempt is imposed, the order must spell out exactly what duties

and obligations are imposed and what the contemnor can do to purge the contempt.

In re Tsertos, No. 01-11-00170-CV, 2011 WL 941571, at *1 (Tex. App.—Houston

[1st Dist.] Mar. 14, 2011, orig. proceeding) (mem. op); In re Houston, 92 S.W.3d

at 877; see also In re Johnson, No. 14-09-00775-CV, 2009 WL 4345405, at *2

(Tex. App.—Houston [14th Dist.] Dec. 3, 2009, orig. proceeding) (mem. op.)

(“[O]rder must tell the contemnor in clear, specific, and unambiguous words how

to gain release from contempt.”); Ex parte Williams, 866 S.W.2d 751, 753–54

(Tex. App.—Houston [1st Dist.] 1993, orig. proceeding) (“[O]rder must specify in

clear language the actions which the contemnor must perform in order to gain

release.”). The failure of an order of contempt to specify in clear and unambiguous

language what the contemnor is required to do to purge himself and escape the

restraint on his liberty renders the order invalid. See Ex parte Zinn, 1996 WL

11423, at *4–5; Ex parte Rosser, 899 S.W.2d 382, 387 (Tex. App.—Houston [14th

Dist.] 1995, orig. proceeding).

      Here, the trial court’s civil contempt order stated the following with respect

to the manner in which relator may purge himself of civil contempt:

      Anthony Bannwart shall be confined in the Brazoria County Jail until
      he purges himself of contempt by taking action to cause the execution
                                         8
      and recording of a document in form acceptable to the Court vacating
      the said substitute trustee’s deed, effective September 6, 2011.

      This purging condition does not clearly or specifically notify relator of the

action he needs to take to purge himself of contempt and escape the restraint on his

liberty. The provision fails to specify the type of document relator is required to

execute and record in order to vacate the substitute trustee’s deed and leaves open

for interpretation the form of the required document, given that the only guideline

is that it must be in a “form acceptable to the [trial court].”

      We hold that the purging provision of the contempt order does not “spell out

exactly” in clear and unambiguous language what relator must do to purge the

contempt. See In re Houston, 92 S.W.3d at 877; see also In re Johnson, 2009 WL

4345405, at *2 (order must tell contemnor in “clear, specific, and unambiguous

words” how to purge himself of contempt). Therefore, the contempt order is void.

See Ex parte Rosser, 899 S.W.2d at 387 (order that does not clearly set out action

relator must take is void). Relator’s fourth issue is sustained.

                                 Writ of Prohibition

      In his petition, relator also seeks a writ of prohibition “directing Judge

Wortham to abate further activity against [relator] in the criminal contempt

matter.” Relator asserts that the writ of prohibition is “necessary to protect the

subject matter of this appeal and the prior appeal of the underlying Injunction

Order.” We presume relator is asserting that the writ of prohibition is necessary to

                                            9
protect the subject matter of the interlocutory appeal from the amended temporary

injunction order that is pending in this Court, appellate cause number 01-11-

00917-CV.

      An appellant court may issue a writ of prohibition to protect the subject

matter of an appeal or to prohibit unlawful interference with enforcement of an

appellate court’s judgment. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680,

683 (Tex. 1989).      However, relator does not demonstrate how the criminal

contempt proceedings involving relator are a threat to the subject matter of an

appeal currently pending in this Court. Cf. Burton v. Trevathan, No. 01-91-00218-

CV, 1991 WL 36987, at *2 (Tex. App.—Houston [1st Dist.] Mar. 19, 1991, orig.

proceeding) (not designated for publication) (declining to prevent trial court from

hearing contempt proceedings arising from alleged violation of temporary

injunction that was being appealed because relator failed to show how subject

matter of pending appeal would be destroyed).

      Further, in appellate cause number 01-11-00917-CV, we specifically abated

the appeal and referred the enforcement proceeding of the temporary injunction

orders to the trial court to hear evidence and grant appropriate relief. See TEX. R.

APP. P. 29.4 (“[T]he appellate court may refer any enforcement proceeding to the

trial court with instructions to . . . hear evidence and grant appropriate relief.”). In

accordance with this Court’s order, both civil and criminal contempt proceedings


                                          10
were commenced against relator in the trial court. Relator now seeks to prohibit,

through his request for a writ of prohibition, the continuance of the criminal

contempt proceedings which were initiated pursuant to this Court’s “Order of

Abatement and Referral of Enforcement Proceeding to the Trial Court.” We deny

relator’s petition for writ of prohibition.

                                      Conclusion

      We grant relator’s petition for writ of habeas corpus, order relator released

from the bond set by this Court on November 26, 2013, and order relator

discharged from custody.5 We deny relator’s petition for writ of prohibition.




                                                   Laura Carter Higley
                                                   Justice

Panel consists of Chief Justice Radack and Justices Higley, and Brown.




5
      Since the capias was issued to enforce the contempt order which has been found
      void, the capias is also hereby rendered void. See Ex parte Rosser, 899 S.W.2d
      382, 387 n.13 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding).

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