                              NUMBER 13-09-00149-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


                         EX PARTE JOSE T. CORONADO


                    On Petition for Writ of Habeas Corpus.


                              MEMORANDUM OPINION

         Before Chief Justice Valdez and Justices Garza and Vela
                 Memorandum Opinion by Justice Vela

       Relator, Jose T. Coronado, filed a petition for a writ of habeas corpus seeking relief

from an order finding him in contempt for failing to pay his child support obligations. We

deny the petition for writ of habeas corpus.

                                      I. BACKGROUND

       On August 29, 2007, the Child Support Division of the Texas Attorney General’s

Office filed a “Motion for Enforcement and Suit for Modification of Support Order” through

which it sought, inter alia, to hold Coronado in contempt for failing to pay child support. On
November 14, 2007, the trial court held a hearing on this motion, and the following day the

trial court signed an “Order Enforcing and Modifying Child Support Obligation,” finding

Coronado in contempt for failing to pay child support. The court sentenced Coronado to

180 days in jail as punitive contempt for failing to pay four $180 child support payments on

grounds that Coronado could have timely paid these amounts in full.           Each failure

constituted a separate act of contempt. The court assessed 180 days of imprisonment for

each act of contempt and ordered the sentences to run concurrently. The order further

mandated that Coronado could pay $3,000 in child support arrearages and $556 in court

costs, and provided that he should be incarcerated until these amounts were paid. The

“Commitment” provision of the order stated that “said commitments [are] to run

concurrently.” The order commanded Coronado to appear on February 1, 2008 to begin

his sentence.

       On February 1, 2008, Coronado did not appear as ordered. That same day, the trial

court entered a second commitment order. Coronado was arrested pursuant to the second

commitment order on August 17, 2008.

       On August 21, 2008, the trial court signed a “Conditional Release Order,” stating

that Coronado had served five days in jail and had paid $1,500 toward his child support

arrearage, but the court further found that Coronado had not yet purged his contempt. The

court ordered Coronado to appear on November 7, 2008, to serve the remainder of the

contempt sentence previously imposed.

       On November 7, 2008, Coronado did not appear as ordered. That same day, the

trial court issued a third commitment order. Coronado was arrested pursuant to this third

commitment order on February 28, 2009. Coronado remains incarcerated at the present

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time.

        This original proceeding ensued. By petition for writ of habeas corpus, Coronado

contends that: (1) the trial court’s failure to hold a hearing to determine Coronado’s

present ability to pay child support prior to incarceration violated his due process rights;

and (2) he cannot be held in contempt for failing to pay sums of money not referenced in

the contempt order. This Court requested and received a response from the Office of the

Attorney General of Texas, Child Support Division.

                                II. HABEAS CORPUS REVIEW

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

or innocence of the relator, but to ascertain only whether the relator has been 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). The relator must bring forward an adequate record to establish the invalidity

of the order of which he complains. See TEX . R. APP. P. 52.3(j), (k), 52.7.

        A writ of habeas corpus will issue if the trial court's contempt order is void, either

because it is beyond the court's power or because the relator has not been afforded due

process. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (orig. proceeding) (per curiam);

see Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980) (orig. proceeding); see also Ex

parte Swate, 922 S.W.2d 122, 124 (Tex. 1996) (orig. proceeding). Although the Texas

Constitution provides that “no person shall ever be imprisoned for debt,” see TEX . CONST .

art. I, § 18, a person may be confined under a court's contempt powers for failing to pay



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child support because the obligation to support a child is viewed as a legal duty and not as

a debt. Henry, 154 S.W.3d at 596; see TEX . FAM . CODE ANN . §§ 157.001(b), 157.166-.167

(Vernon 2008).

                                      III. CONTEMPT

       A judgment of contempt may be either civil or criminal. Ex parte Werblud, 536

S.W.2d 542, 545 (Tex. 1976) (orig. proceeding). The purpose of civil contempt is remedial

and coercive. Id. A judgment of civil contempt exerts the judicial authority of the court to

persuade the contemnor to obey an order of the court when obedience will benefit an

opposing litigant. Id. “Imprisonment is conditional upon obedience and therefore the civil

contemnor ‘carries the keys of (the) prison in (his) own pocket.’” Id. (quoting Shillitani v.

United States, 384 U.S. 364, 368 (1966)); Ex parte Rojo, 925 S.W.2d 654, 654 (Tex. 1996)

(orig. proceeding) (per curiam). When a relator has committed civil contempt, he may

procure his release by complying with the provisions of the court's order. Id. Criminal

contempt, by contrast, is punitive in nature in that the sentence is not conditioned upon a

promise of future performance; rather, the contemnor is being punished for a completed

act that affronted the dignity and authority of the court. Werblud, 536 S.W.2d at 545.

       The contempt order before us is both criminal in nature because it imposes

confinement for Coronado’s past failure to make child support payments, and civil in

nature, in that it provides for further confinement until Coronado purges the contempt by

paying the arrearage.

       Texas law is clear that a petitioner may not be confined for civil contempt unless he

or she has the ability, but refuses, to perform the conditions for release. In re Gawerc, 165



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S.W.3d 314, 315 (Tex. 2005) (orig. proceeding); Rojo, 925 S.W.2d at 655; Ex parte

Rohleder, 424 S.W.2d 891, 892 (Tex. 1967) (orig. proceeding). Stated otherwise, a person

cannot be incarcerated indefinitely for civil contempt if he or she does not have the ability

to perform the condition required for release. Rojo, 925 S.W.2d at 654; see, e.g., Ex parte

Dustman, 538 S.W.2d 409, 410 (Tex. 1976) (orig. proceeding); Rohleder, 424 S.W.2d at

892. An order of contempt imposing a coercive restraint is void if the condition for purging

the contempt is impossible of performance. Rojo, 925 S.W.2d at 655. Similarly, the

involuntary inability to comply with an order is a valid defense to criminal contempt. Ex

parte Chambers, 898 S.W.2d 257, 261 (Tex. 1995) (orig. proceeding); In re Lausch, 177

S.W.3d 144, 155 (Tex. App.–Houston [1st Dist.] 2005, orig. proceeding).

       The relator bears the burden of proving his inability to comply. Chambers, 898

S.W.2d at 261; Lausch, 177 S.W.3d at 155. We do not weigh the evidence, but determine

only if there is no evidence to legitimize the relator's confinement. Chambers, 898 S.W.2d

at 261; Lausch, 177 S.W.3d at 155. Thus, the issue in habeas corpus review is whether

the relator has conclusively established his inability to comply. Chambers, 898 S.W.2d at

261; Lausch, 177 S.W.3d at 155.

                                    IV. INABILITY TO PAY

       In the instant case, Coronado alleges that he was denied the right to present

evidence regarding his inability to pay the child support arrearage referenced in the order

of contempt. With regard to civil contempt orders, we examine the obligor’s ability to pay

as determined at the time of the hearing on contempt. See Gawerc, 165 S.W.3d at 315;

Rohleder, 424 S.W.2d at 892. In this regard, the obligor’s past ability to pay is not relevant



                                              5
to whether the contemnor has the ability to purge himself from civil contempt. Gawerc, 165

S.W.3d at 315 (citing Rojo, 925 S.W.2d at 656). In contrast to civil contempt, the current

inability to pay is no defense to criminal contempt. Ex parte Robertson, 880 S.W.2d 803,

803 (Tex. App.–Houston [1st Dist.] 1994, orig. proceeding). As a defense to criminal

contempt, the person ordered to pay must show inability to pay at the time each time

payment accrued. Ex parte Ramon, 821 S.W.2d 711, 713 (Tex. App.–San Antonio 1991,

orig. proceeding). “If he fails to carry that burden as to even one delinquent payment, the

criminal contempt judgment is not void.” Id.

       The foregoing principles are codified in the Texas Family Code, which provides that

a child support obligor may plead as an affirmative defense to an allegation of contempt

that the obligor:

       (1)    lacked the ability to provide support in the amount ordered;

       (2)    lacked property that could be sold, mortgaged, or otherwise pledged
              to raise the funds needed;

       (3)    attempted unsuccessfully to borrow the funds needed; and

       (4)    knew of no source from which the money could have been borrowed
              or legally obtained.

TEX . FAM . CODE ANN . § 157.008(c) (Vernon 2008). A contemnor is not entitled to habeas

relief based on this statute unless he conclusively established all four elements in the trial

court. See Rojo, 925 S.W.2d at 656; In re Hammond, 155 S.W.3d 222, 228 (Tex. App.–El

Paso 2004, orig. proceeding); Ex parte Hightower, 877 S.W.2d 17, 20 (Tex. App.–Dallas

1994, orig. proceeding).

       The “issue of the existence of an affirmative defense to a motion for enforcement



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does not arise unless evidence is admitted supporting the defense.” TEX . FAM . CODE ANN .

§ 157.006(a) (Vernon 2008). The affirmative defense must be proven by a preponderance

of the evidence. See id. § 157.006(b). The testimony adduced at the contempt hearing

must be examined to determine if relator has discharged his burden to prove that he could

not pay the child support as ordered. Ramon, 821 S.W.2d at 713; Ex parte Papageorgiou,

685 S.W.2d 776, 778 (Tex. App.–Houston [1st Dist.] 1985, orig. proceeding).

       It is clear that a child support obligor is entitled to a hearing when charged with

constructive contempt based on the failure to pay child support obligations. In re Zandi,

270 S.W.3d 76, 77 (Tex. 2008) (orig. proceeding) (per curiam); see Chambers, 898 S.W.2d

at 259 (noting that the failure to pay child support constitutes constructive rather than direct

contempt); Ex parte Daniels, 722 S.W.2d 707, 708-09 (Tex. Crim. App. 1987) (orig.

proceeding) (holding that constructive contempt requires testimony or documentary

evidence to establish the contemptuous conduct); Ex parte Woodyard, 952 S.W.2d 104,

107 (Tex. App.–San Antonio 1997, orig. proceeding) (noting that the relator was unable to

prove inability to pay without a hearing); see also Ex parte Hiester, 572 S.W.2d 300, 302

(Tex. 1978); In re Bryce, 981 S.W.2d 887, 888 (Tex. App.–Houston [1st Dist.] 1998, orig.

proceeding). Because the court does not have direct knowledge of the facts surrounding

the contempt, due process requirements must be satisfied. See Woodyard, 952 S.W.2d

at 107.

                                         V. RIPENESS

       The attorney general contends that Coronado’s complaints regarding the civil

portion of the contempt order are not ripe for our review. If there is a valid criminal



                                               7
contempt sentence, a challenge to the validity of the civil portion of the order is premature

until the criminal contempt has been served. In re Parr, 199 S.W.3d 457, 462 (Tex.

App.–Houston [1st Dist.] 2006, orig. proceeding); In re Anascavage, 131 S.W.3d 108, 112

(Tex. App.–San Antonio 2004, orig. proceeding); In re Scariati, 988 S.W.2d 270, 272 & n.2

(Tex. App.–Amarillo 1998, orig. proceeding); Ex parte Durham, 921 S.W.2d 482, 487 (Tex.

App.–Corpus Christi 1996, orig. proceeding); Ex parte Brown, 875 S.W.2d 756, 761-62

(Tex. App.–Fort Worth 1994, orig. proceeding); Occhipenti, 796 S.W.2d at 810.

       The rationale for this rule is that the contemnor has the opportunity to avoid

spending any additional time in jail by purging the civil, or coercive contempt portion of the

order while serving the criminal contempt sentence. See Durham, 921 S.W.2d at 488;

Occhipenti, 796 S.W.2d at 810. In such cases, the likelihood of continued restraint caused

by the civil contempt is hypothetical, and courts cannot decide hypothetical issues or

render advisory opinions. Anascavage, 131 S.W.3d at 112; Ex parte Hogan, 916 S.W.2d

82, 87 (Tex. App.–Houston [1st Dist.] 1996, orig. proceeding); see Ex parte Hughey, 932

S.W.2d 308, 310-11 (Tex. App.–Tyler 1996, orig. proceeding) (refusing to issue a writ of

habeas corpus since the petitioner was not subject to restraint). If the contemnor remains

in jail after serving the criminal contempt because he has not purged the civil contempt,

another habeas proceeding may be brought at that time where the contemnor may re-urge

the issues related to his civil contempt. See Occhipenti, 796 S.W.2d at 810; Brown, 875

S.W.2d at 761-62; see also Durham, 921 S.W.2d at 487.

        Thus, if Coronado’s criminal contempt sentence is valid, we may not address his

allegations regarding civil contempt. Accordingly, we proceed to address his issues as



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they pertain to the criminal contempt provisions of the trial court’s order.

                                                  VI. Analysis

         Based on the “Order Enforcing and Modifying Support Obligation,” by which the trial

court found Coronado in contempt, Coronado appeared at the hearing on the motion to

enforce in person and by attorney. The order states that Coronado agreed to the entry of

the order. The order further recites that a record of the proceeding was waived by the

parties with the consent of the court.1 The order was signed by both Coronado and his

counsel.

         The family code clearly places the burden on Coronado to plead and establish his

inability to pay as an affirmative defense. See TEX . FAM . CODE ANN . § 157.007 (Vernon

2008), id. § 157.008. In the instant case, the record before us is devoid of any pleading

or motion asserting that Coronado lacked the ability to pay child support. The record is

further devoid of any indication that Coronado requested the opportunity to present

evidence to the trial court regarding his inability to pay the child support arrearage that was

the subject of the contempt order.

         In support of his argument, Coronado relies on authority holding that an order

finding one in contempt, but suspending punishment on condition of compliance with the

order, provides no authority in itself for arrest and confinement, and a subsequent hearing

on the alleged breach of the condition and an unconditional commitment are necessary for

due process. See Ex parte Hart, 520 S.W.2d 952, 953 (Tex. Civ. App–Dallas 1975, orig.

        1
           See T EX . F AM . C OD E A N N . § 157.161(a),(b)(1) (Vernon 2008) (providing that a record of the hearing
in a m otion for enforcem ent shall be m ade, but is not required if the parties agree to an order). W ithout a
reporter's record, we will indulge all presum ptions in favor of the trial court's findings and the judgm ent. See
Bryant v. United Shortline, Inc. Assurance Servs., N.A., 972 S.W .2d 26, 31 (Tex. 1998); Univ. of
Houston-Clear Lake v. Marsh, 981 S.W .2d 912, 916 (Tex. App.–Houston [1st Dist.] 1998, no pet.).

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proceeding); Ex parte Hodge, 389 S.W.2d 463 (Tex. 1965) (orig. proceeding); Ex parte

Hardin, 161 Tex. 567, 568, 344 S.W.2d 152, 153 (1961) (orig. proceeding); Ex parte

Winfree, 153 Tex. 12, 15, 263 S.W.2d 154, 157 (1953) (orig. proceeding); Ex parte Sauser,

554 S.W.2d 239, 241 (Tex. Civ. App.–Dallas 1977, orig. proceeding). The Texas Supreme

Court has recently reaffirmed this principle in the context of a motion to revoke suspension

of commitment for contempt for failure to pay child support. Zandi, 270 S.W.3d at 77-78;

see TEX . FAM . CODE ANN . § 157.214 (Vernon 2008) (providing that a motion to revoke must

be verified and must allege specifically the conduct that constitutes a violation of the terms

of community supervision).

       We find the case at hand to be distinguishable. Coronado contends that he was

“ordered incarcerated on August 17, 2008 without a hearing,” and that the writs of

commitment were issued without the benefit of further hearings. However, relator was

afforded a hearing in November 2007, as referenced above, which resulted in the contempt

order at issue. The “Conditional Release Order” did not suspend punishment on condition

that Coronado comply with the previous contempt order. Rather, this order provided that

Coronado was to be released for a specific period of time with the proviso that he return

to serve the remainder of his sentence. Similarly, the commitment orders entered in this

cause did not act to suspend Coronado’s sentence for the period that he complied with the

contempt order. Accordingly, we decline to apply these authorities to the instant case.

       The record before this Court contains some evidence suggesting that Coronado

may not have had the necessary funds to pay his child support arrearage. The appendix

to Coronado’s petition for writ of habeas corpus includes affidavits from Coronado’s

mother, Rosa Coronado, and the mother of Coronado’s children, Christina Puentes. The

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appendix also includes a letter from Puentes to the attorney general’s office which states

that Puentes was satisfied with the money that she had received from Coronado, that she

wanted to dismiss the lawsuit filed on her behalf against him, and that she wanted the

orders for his arrest to be withdrawn. By affidavit, Puentes testified that, at a hearing in

August 2008,2 there was no evidence presented which established that Coronado was

financially able to pay child support. She testified that Coronado was not working and was

looking for a job, but was unable to find one.

        Rosa Coronado testified by affidavit regarding Coronado’s occasional employment,

periods of inability to locate work, and delineated periods in which the children lived with

her and her son. At “the hearing,” Rosa testified that there was neither evidence presented

regarding her son’s ability to pay child support, nor was there evidence presented

regarding the months that the children had resided with him. She testified that she had

borrowed the money that Coronado used to pay the sum of $1,500 toward his past-due

child support. Rosa further testified that her son was indigent and that she could not help

him financially. Moreover, we note that relator’s current incarceration may be considered

as some evidence of his inability to pay. See Ex parte Garrison, 853 S.W.2d 784, 788

(Tex. App.–Houston [1st Dist.] 1993, orig. proceeding).

        Nevertheless, it is clear that the evidence presented in this proceeding fails to meet

the standard contemplated by the family code to establish the defense. There is no

testimony from Coronado and the proffered evidence from his mother and ex-wife fails to

address the requisite elements of a defense based on an inability to pay as provided in the


        2
         The record before the Court fails to include a statem ent of facts regarding any such hearing. W e
assum e that Puentes refers to a hearing related to the conditional release order.

                                                    11
family code. See TEX . FAM . CODE ANN . § 157.008(c). For instance, there is no evidence

that Coronado attempted unsuccessfully to borrow the money and knew of no source from

which the money could have been borrowed or otherwise legally obtained. See id.

       Moreover, the evidence presented herein was not presented to the trial court for its

consideration. We note that at least one case has allowed evidence regarding the inability

to pay to be submitted with a petition for writ of habeas corpus. See id. Other courts have

abated the cause to the trial court for a hearing on the alleged inability to comply with the

contempt order. See Ex parte King, 819 S.W.2d 944, 944 (Tex. App.–Houston [14th Dist.]

1991, orig. proceeding); Ex parte Barnes, 730 S.W.2d 46, 47 (Tex. App.–San Antonio

1987, orig. proceeding). Given the fact that inability to pay is an affirmative defense which

must be pleaded and proved by the preponderance of the evidence, we do not believe that

this defense can be raised for the first time in the appellate court or that abatement is a

proper remedy. Accordingly, we overrule this issue without reference to the merits and

without prejudice to Coronado’s right to re-urge this issue, if such action should be

necessary, following appropriate proceedings in the trial court.

                           V. SPECIFICITY OF CONTEMPT ORDER

       In his second issue, Coronado further contends that he was denied due process

because he is being incarcerated based on his failure to pay amounts which are not

referenced in the contempt order or writ of commitment. A contempt order requiring the

relator to pay a sum of money that includes amounts that could not be the basis for

contempt is void and requires that the relator be discharged from confinement. Henry, 154

S.W.3d at 594.



                                             12
       As evidence for his argument, Coronado points to a letter from the Office of the

Attorney General addressed to his counsel:

       I am in receipt of a letter signed by Christina Puentes, on your letter head,
       instructing the Office of the Attorney General to withdraw the Writ of
       Commitment, which was ordered at the November 7, 2008 compliance
       hearing, for Mr. Coronado’s failure to appear. I have spoken to Ms. Puentes
       this day and she also verbally requested withdrawal of the Writ of
       Commitment.

       I explained to Ms. Puentes, as I am explaining to you in this letter, that the
       Writ of Commitment will not be withdrawn, due to the fact that Mr.
       Coronado’s arrears are mostly assigned to the State of Texas. Specifically,
       of the $5,887.96 child and medical support arrears currently owed, Ms.
       Puentes can only release $1,568.80, with the remaining $4,319.16 being
       owed to the State of Texas. Until all arrears owed to the State of Texas are
       paid in full, the Writ of Commitment will not be withdrawn. The figures
       quoted above are subject to change, as current support obligations are
       continuing in this matter.

       I have set a meeting with Ms. Puentes later this week for her to sign an
       appropriate release of her portion of the arrears.

Coronado’s confinement in this matter is directed, circumscribed, and limited by the original

contempt order, which provides that he will purge himself of civil contempt if he pays

$3,000 in child support arrearages and $556 in court costs, and is not engendered by the

aforementioned correspondence from the attorney general’s office. In other words, relator

has not shown that his confinement is the result of any action or inaction on the part of the

attorney general. Accordingly, we overrule this issue.

                                     VII. CONCLUSION

       Since we have sustained the criminal contempt portion of the trial court's order, our

consideration of relator's issues as they pertain to the civil contempt portion of the order

is premature. Such issues may, however, be re-urged in the event that Coronado has not

purged himself of civil contempt on the completion of his confinement for criminal

                                             13
contempt. See Scariati, 988 S.W.2d at 273-74.

      As stated herein, the petition for writ of habeas corpus is DENIED.




                                               Rose Vela
                                               Justice


Memorandum Opinion delivered and filed
this 9th day of April, 2009.




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