                                 NUMBER 13-14-00674-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG

                        IN RE BENANCIO VALLE PUENTE JR.


                        On Petition for Writ of Habeas Corpus.


                             MEMORANDUM OPINION
      Before Chief Justice Valdez and Justices Garza and Longoria
              Memorandum Opinion by Justice Longoria1

        On November 26, 2014, relator, Benancio Valle Puente Jr., proceeding pro se,

filed a petition for writ of habeas corpus through which he seeks release from

incarceration for punitive contempt and coercive contempt based on his failure to pay

child support and medical support. Relator subsequently filed an amended petition on



        1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
December 1, 2014. Relator contends generally that his incarceration is illegal because

he has been incarcerated without due process and specifically, because he has not been

provided with a hearing under sections 157.101 and 157.105 of the Texas Family Code.

See TEX. FAM. CODE ANN. §§ 157.101, 157.105 (West, Westlaw through 2013 3d C.S.).2

We deny the petition for writ of habeas corpus as stated herein.

                                          I. BACKGROUND

       Relator was divorced from Clarissa Morin and was ordered to pay child support for

his three minor children. On April 10, 2013, the trial court ordered relator to pay monthly

child support of $572 and monthly medical support of $171. The Office of the Attorney

General (“OAG”) thereafter filed a motion to enforce and modify relator’s support

obligations. The associate judge held a hearing on the OAG’s motion on April 22, 2014

and entered an order granting the OAG’s motion that same day. The order issued by the

associate judge, the “Order Enforcing Child Support and Medical Support Obligation[s]

and Modifying Support,” was adopted and countersigned by the trial court judge on April

28, 2014.

       In this order, the trial court concluded that relator owed $7,333.16 in child support

arrearages and $31.20 in medical support arrearages. The trial court reduced relator’s

monthly child support obligation to $500 per month and medical support obligation to $62

per month. The trial court concluded that relator failed to pay his current child support

and medical support on four separate occasions and held relator in punitive or criminal

contempt for the eight separate failures to pay child support and medical support. The



       2 This cause arises from trial court cause number 00-1453-0-CV-B in the 156th District Court of
Bee County, Texas. The respondents in this original proceeding are the Honorable Joe Vickers, Associate
Judge, and the Honorable Joel Johnson, Judge of the 156th District Court.

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trial court sentenced relator to 180 days of incarceration in the Bee County Jail for each

separate count of punitive contempt with each sentence running concurrently. The trial

court also concluded that relator should be held in coercive contempt until he paid

$7,364.36 in past due child support arrearages and $348 in court costs. In this same

order, the trial court ordered the Sheriff of Bee County to arrest relator and commit him to

jail for the 180 days of confinement. The trial court ordered relator to appear at court on

July 25, 2014 to begin his confinement. Relator failed to appear as ordered on July 25,

2014, and the trial court issued a commitment order that same day. Relator was arrested

on October 24, 2014. Relator remains confined in the Bee County Jail.

       The April 22, 2014 order states that relator, Morin, and the OAG appeared at the

hearing on the motion to modify. The order further recites that relator appeared pro se

and “was advised of his rights, including the right to a court appointed attorney if found

indigent.” The court’s order recited that relator “knowingly and intelligently waived his

rights and proceeded [p]ro [s]e and agreed to the entry of these orders as evidenced by

his signature.” Relator signed the fifteenth and final page of the order as did Morin and

counsel for the OAG.

       This original proceeding ensued. The Court requested a response to the petition

for writ of habeas corpus from the real party in interest, Morin, or any others whose

interest would be directly affected by the relief sought. See TEX. R. APP. P. 52.2, 52.4,

52.8. The OAG filed a response to the petition for writ of habeas corpus.

                              II. HABEAS CORPUS STANDARD

       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 unlawfully



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confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979); In re Mann, 162 S.W.3d

429, 432 (Tex. App.—Fort Worth 2005, orig. proceeding). A writ of habeas corpus will be

issued if the order underlying the contempt order is void or if the contempt order itself is

void. See Ex parte Shaffer, 649 S.W.2d 300, 302 (Tex. 1983) (orig. proceeding). In a

habeas corpus proceeding, the order or judgment being challenged is presumed to be

valid. In re R.E.D., 278 S.W.3d 850, 855 (Tex. App.—Houston [1st Dist.] 2009, orig.

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

orig. proceeding); Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex. App.—Houston [1st

Dist.] 1990, orig. proceeding). In order to obtain relief by habeas corpus, the relator must

establish that the underlying order is void because of a lack of jurisdiction or because the

relator was deprived of liberty without due process of law. In re Henry, 154 S.W.3d 594,

596 (Tex. 2005) (orig. proceeding) (per curiam); Ex parte Merrikh, 361 S.W.3d 209, 210

(Tex. App.—Houston [14th Dist.] 2012, orig. proceeding) (per curiam); In re Turner, 177

S.W.3d at 288; 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 Munks, 263 S.W.3d 270, 272–73 (Tex. App.—Houston [1st Dist.] 2007, orig.

proceeding); In re Turner, 177 S.W.3d at 288.

                            III. CHILD SUPPORT ENFORCEMENT

       The Texas Constitution prohibits a trial court from confining a person under its

contempt powers as a means of enforcing a judgment for debt. TEX. CONST. art. I, § 18

(“No person shall ever be imprisoned for debt.”); see Tucker v. Thomas, 419 S.W.3d 292,

297 (Tex. 2013). In contrast, a child support obligation and attorney's fees related to a

child support enforcement proceeding are viewed as a legal duty and are not considered



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

see also Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184, 189 (1953). Therefore, a trial

court may use its contempt power as set forth in Chapter 157—including the possibilities

of confinement, garnishment of wages, and suspension of the obligor's driver's license—

to ensure that child support obligors pay overdue child support. See TEX. FAM. CODE ANN.

§§ 158.0051, 232.003 (West, Westlaw through 2013 3d C.S.); In re Henry, 154 S.W.3d

at 596. In view of the myriad mechanisms available to a trial court to enforce child support

obligations, the Texas Supreme Court has characterized the collection of child support as

“without question, serious business.” In re Office of Att'y Gen., 422 S.W.3d 623, 627

(Tex.2013).

       A contempt judgment may be either civil or criminal in nature. See In re Reece,

341 S.W.3d 360, 365 (Tex. 2011). Civil contempt is “remedial and coercive in nature”

because the confinement is conditioned on obedience with the court's order. See id.; Ex

parte Werblud, 536 S.W.2d 542, 545 (Tex. 1976); In re Bannwart, 439 S.W.3d 417, 421

(Tex. App.—Houston [1st Dist.] 2014, orig. proceeding). Thus, a judgment that provides

that the contemnor is to be committed unless and until the contemnor performs the

affirmative act required by the court's order is a civil contempt order. In re Mott, 137

S.W.3d 870, 874 (Tex. App.—Houston [1st Dist.] 2004, orig. proceeding). In contrast,

criminal contempt is punitive insofar as the contemnor is being punished for disobedience

to a court order that constituted an affront to the dignity and authority of the court. See In

re Reece, 341 S.W.3d at 365; Ex parte Werblud, 536 S.W.2d at 545; In re R.E.D., 278

S.W.3d 850, 855 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding).




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                                              IV. ANALYSIS

        By one issue, relator contends that his confinement is illegal and violates due

process because he has not been afforded a hearing after being incarcerated. 3 Relator

contends that Texas Family Code section 157.101 through 157.105 ensures that a

respondent is to be afforded access to the court after being taken into custody.

        Under the Texas Family Code, a motion for enforcement may be filed to effectuate

a child support order. TEX. FAM. CODE. ANN. § 157.001(a) (West, Westlaw through 2013

3d C.S.). If a respondent who has been personally served with notice fails to appear at

an enforcement hearing, the trial court may order the issuance of a capias for the arrest

of the respondent. Id. § 157.066 (West, Westlaw through 2013 3d C.S.). When the trial




         3 The “Issues Presented” section of relator’s amended petition for writ of habeas corpus provides

as follows:

                 Illegal restraint of the Petitioner without Due Process of Law being observed, by
        either the Authority of the 5th Amendment of the U.S. Constitution, and Illegal restraint of
        the Petitioner by the authority of Law as defined within Texas Statutes Family Code
        [Sections] 157.101-157.105[.]

                  That the Petitioner has under color of Law as defined and delineated above, the
        right to take and be presented before a Court in order that Due Process is observed, and
        his rights are afforded to him.

                 That he has been deprived of those rights by the actions of the Court and the
        Assistant State Attorney General[s] Office in this matter, and that the only recourse of this
        Denial is the issuance of the Writ by this Court.

                 The continued incarceration of the Petitioner by the authority of the 156th Judicial
        District Court, absent Due Process, makes the continued confinement of the Petitioner
        Illegal.

                 The continued incarceration of the Petitioner in violation of Texas Statutes Family
        Code 157.105, deprives the Petitioner of Due Process, in light of the mandatory language
        of the Statute.

                The continued incarceration of the Petitioner in violation of the 5th Amendment to
        the United States Constitution, deprives the Petitioner of Due Process of Law.

                 Said deprivation of Due Process constitutes Illegal restraint, correctable by this
        Court.

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court orders the issuance of a capias, it must also set an appearance bond or security,

payable to the obligee or to a person designated by the court, in a reasonable amount.

Id. § 157.101(a) (West, Westlaw through 2013 3d C.S.). Thereafter, if the respondent is

taken into custody and not released on bond, he must be brought before the trial court on

or before the third working day after his arrest to determine whether his appearance in

court at a designated time and place can be assured by a method other than by posting

the bond previously established. Id. § 157.105(a) (West, Westlaw through 2013 3d C.S.).

If the trial court is not satisfied the respondent's appearance in court can be assured and

the respondent remains in custody, a hearing on the alleged contempt must be held as

soon as practicable, but not later than the seventh day after the respondent was taken

into custody, unless the respondent and his attorney waive the accelerated hearing. Id.

§ 157.105(c) (West, Westlaw through 2013 3d C.S.).

       In the instant case, relator was not incarcerated by virtue of a capias in order to

ensure his presence at an enforcement hearing. Instead, relator was incarcerated by

virtue of a commitment order issued after an enforcement hearing at which relator

appeared, and which resulted in an order enforcing and modifying support obligations,

including the contempt provisions at issue in this original proceeding, which had been

agreed to by the parties. Relator’s confinement was not due to his failure to appear for a

motion to enforce a child support order, and section 157.105 and the attendant sections

of the family code are thus inapplicable. See id.; Ex parte Ustick, 9 S.W.3d 922, 925

(Tex. App.—Waco 2000, orig. proceeding). Accordingly, we reject relator’s contention

that he has been denied due process by any alleged failure to afford him an additional

hearing after incarceration.



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       To the extent that relator raises any additional due process arguments, such as

his alleged ability or inability to pay the child support arrearage, we conclude that any

additional arguments are waived due to insufficient briefing and the failure of relator to

furnish this Court with a complete record in support of these allegations. The record

provided by relator includes only the trial court’s “Commitment Order,” correspondence

to relator from the OAG, the “Order Enforcing Child Support and Medical Support

Obligation[s] and Modifying Support,” a letter from one of relator’s children, two sheets of

payroll information for one pay period for relator, and copies of some of the cases

referenced in the petition. The order at issue in this original proceeding states that the

parties waived a record of the trial court proceedings with the consent of the trial court.

       Section 157.161 of the Texas Family Code provides that a record of the hearing in

a motion for enforcement “shall” be made by a court reporter unless the parties agree to

an order, or the motion does not request incarceration and the parties waive the

requirement of a record. See TEX. FAM. CODE ANN. § 157.161(a), (b). According to the

recitations in the trial court’s order, the parties agreed to an order within the meaning of

section 157.161 so as to preclude the requirement of a record. See id. § 157.161(b)(1);

see also In re Sheridan, No. 03-14-00589-CV, 2014 WL 6140078, at *2 (Tex. App.—

Austin Nov. 14, 2014, orig. proceeding) (mem. op.); Ex parte Coronado, No. 13-09-00149-

CV, 2009 WL 961948, at *5 (Tex. App.—Corpus Christi Apr. 9, 2009, orig. proceeding)

(mem. op.).

       Under the presumption of regularity of judgments, we are required to presume

recitations in the final judgment are correct absent any evidence to the contrary. Sedona

Pac. Hous. P'ship v. Ventura, 408 S.W.3d 507, 511 (Tex. App.—El Paso 2013, no pet.);



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Vernon v. Perrien, 390 S.W.3d 47, 58 (Tex. App.—El Paso 2012, pet. denied); S. Ins. Co.

v. Brewster, 249 S.W.3d 6, 12–14 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).

The trial court’s order affirmatively states that relator could have timely paid the specified

child support and medical support, but failed to do so. The record before this Court in this

original proceeding fails to contain any evidence contradicting the recitations in the

judgment. Accordingly, based on the limited record available to us, we reject relator’s

remaining arguments regarding the invalidity of the trial court’s order.

                                      V. CONCLUSION

       The Court, having examined and fully considered the amended petition for writ of

habeas corpus, the response, and the applicable law, is of the opinion that relator has not

met his burden to obtain relief. See In re Munks, 263 S.W.3d at 272–73; In re Turner,

177 S.W.3d at 288. Accordingly, relator’s petition for writ of habeas corpus is denied.

See TEX. R. APP. P. 52.8(a).




                                                  NORA L. LONGORIA
                                                  JUSTICE


Delivered and filed the
19th day of December, 2014.




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