                               Fourth Court of Appeals
                                      San Antonio, Texas

                                  MEMORANDUM OPINION
                                          No. 04-14-00808-CV

                                 EX PARTE Jose L. VILLARREAL

                                 Original Habeas Corpus Proceeding 1

PER CURIAM

Sitting:          Karen Angelini, Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: December 10, 2014

PETITION FOR WRIT OF HABEAS CORPUS DENIED

           On November 20, 2014, relator Jose L. Villarreal filed an original pro se petition for writ

of habeas corpus contending he is illegally incarcerated pursuant to the trial court’s orders finding

him in contempt for failure to pay previously ordered child support and committing him to county

jail for 180 days. Specifically, Villarreal asserts: (1) the trial court failed to inform him of his right

to counsel under the Texas Family Code; (2) the trial court failed to inquire as to his income and

make a determination of his ability to purge himself of the child support obligation; and (3) Sheriff

Susan Pamerleau has failed to give him “good time” credit in violation of his right to equal

protection under the law. See TEX. FAM. CODE ANN. §§ 157.008(c), 157.163 (West 2014).




1
 This proceeding arises out of Cause No. 2005EM502156, styled In the Interest of J.I.V. and E.M.V., Children,
pending in the 225th Judicial District Court, Bexar County, Texas, the Honorable Nick Catoe Jr. presiding.
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       This court received from the trial court clerk copies of the trial court’s Order Enforcing

Child Support and Medical Support Obligation/Order Suspending Commitment dated June 4,

2010, and Order Concerning Community Supervision dated May 18, 2012.

       A relator is entitled to habeas corpus relief if he establishes he was deprived of liberty

without due process of law, or if we conclude the judgment ordering confinement is void. See In

re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (orig. proceeding); In re Alexander, 243 S.W.3d 822,

824 (Tex. App.—San Antonio 2007, orig. proceeding). The purpose of a habeas corpus proceeding

is not to determine the relator’s guilt or innocence, but to ascertain if the relator has been

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

Alexander, 243 S.W.3d at 827.

       In family law enforcement proceedings, the Family Code requires the trial court to

determine whether the proceeding is one in which incarceration may result and, if so, the court is

obligated to inform a respondent of the right to counsel and, if indigent, the right to an appointed

attorney. See TEX. FAM. CODE ANN. § 157.163(a), (b). The Order Concerning Community

Supervision, which was signed by Villarreal, indicates that a hearing was conducted on May 15,

2012, and reflects that Villarreal “appeared in person Pro Se and was advised of his rights,

including the right to court appointed attorney if found indigent. It is FOUND that JOSE LUIS

VILLARREAL JR. knowingly and intelligently waived his rights and proceeded Pro Se; agreed

to the entry of these orders as evidenced by his signature.” We conclude the trial court properly

admonished Villarreal of his right to counsel in accordance with the Family Code. See TEX. FAM.

CODE ANN. § 157.163.

       Villarreal also complains the trial court failed to inquire as to his income and make a

determination of his ability to purge himself of the child support obligation. The Family Code

provides that an obligor may plead as an affirmative defense to an allegation of contempt that he
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lacked the ability and resources to provide support in the amount ordered. See TEX. FAM. CODE

ANN. § 157.008(c). However, it is Villarreal’s burden in the trial court to conclusively establish

the affirmative defense. See Ex parte Rojo, 925 S.W.2d 654, 656 (Tex. 1996) (orig. proceeding).

It is also his burden as relator in this proceeding to provide this court with a record sufficient to

establish his right to habeas corpus relief. See TEX. R. APP. P. 52.7(a); Walker v. Packer, 827

S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). The trial court’s Order Enforcing Child Support

and Medical Support Obligation includes findings that Villarreal “could have timely paid the above

specified child support in full” and “could have provided the required medical support during each

specified time period.” Villarreal’s signature also appears on this Order. Villarreal has failed to

provide this court with a record supporting his claim that he is entitled to habeas corpus relief on

the basis of conclusively establishing an affirmative defense in the trial court.

       Finally, Villarreal contends he is being denied equal protection under the law by the denial

of “good time” credits on his sentence when such credits are available to prisoners serving

sentences on criminal charges. While article 42.032 of the Texas Code of Criminal Procedure gives

the sheriff discretion to award “good time” credit to those being punished by criminal contempt

orders, the statute does not apply to those being punished by coercive civil contempt orders. See

TEX. CODE CRIM. PROC. ANN. art. 42.032 § 2 (West Supp. 2014); Ex parte Acly, 711 S.W.2d 627,

628 (Tex. 1986) (orig. proceeding). The trial court’s Order Enforcing Child Support and Medical

Support Obligation in this case imposes both punitive contempt and coercive civil contempt

findings. Villarreal would not be entitled to consideration for “good time” credit under the statute

for the criminal contempt portion of the order until he has satisfied the coercive contempt portion

of the order. See Acly, 711 S.W.2d at 628. The record does not demonstrate that Villarreal has

satisfied the coercive contempt requirements of the trial court’s order. Accordingly, we are unable

to say that there is any abuse of discretion in the failure to award “good time” credits in this
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instance. TEX. R. APP. P. 52.7(a); Walker, 827 S.W.2d at 837. Villarreal has not established that

he is entitled to habeas corpus relief on this ground. See TEX. CODE CRIM. PROC. ANN. art. 42.032

§ 2; Ex parte Acly, 711 S.W.2d at 628.

       Relator’s petition for writ of habeas corpus is denied.


                                                 PER CURIAM




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