                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-14-00198-CV


IN RE D.A.




                                         ----------

                             ORIGINAL PROCEEDING
                         TRIAL COURT NO. 324-410099-06

                                         ----------

                           MEMORANDUM OPINION1

                                         ----------

                                      I. Introduction

          In four issues, Relator D.A. asks this court to discharge her from her

commitment for contempt. We previously ordered that Relator be released on

bond pending the outcome of this proceeding, and we now conditionally grant

relief.



          1
          See Tex. R. App. P. 47.4.
                                 II. Background

      Relator and her ex-husband, one of the real parties in interest (RPI), were

appointed joint managing conservators of their daughter in December 2012. In

the order, RPI was given, among other rights, the exclusive rights to designate

the child’s primary residence and to receive $150 per week in child support,

$180.24 per month as cash medical support, and 50% of unreimbursed health

care expenses from Relator. Child support payments were to go through the

Texas Child Support Disbursement Unit. The order warned that failure to obey

could result in contempt of court and that a finding of contempt “MAY BE

PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF

UP TO $500 FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR

PAYMENT OF ATTORNEY’S FEES AND COURT COSTS.” The trial court also

ordered Relator to pay $3,000 in attorney’s fees for RPI’s attorney.

      On March 15, 2013, RPI filed a motion for enforcement and order to

appear, alleging that Relator had failed to pay child support twenty-two times

from October 5, 2012 to March 1, 2013, resulting in total arrearages of $1,350;

that she had failed to pay cash medical support six times from Oct. 1, 2012 to

March 1, 2013, resulting in total arrearages of $1,081.44; that she had failed to

pay 50% of an unreimbursed health care bill that totaled $2,160; and that she

had failed to pay the ordered $3,000 in attorney’s fees. RPI asked that Relator

be confined in county jail until she complied with the court’s orders; that for each

violation, she be held in contempt, jailed for up to 180 days, and fined up to $500;

                                         2
and that each period of confinement run and be satisfied concurrently. The court

heard the motion on May 21, 2013.

      On September 13, 2013, the trial court entered an order finding that

Relator had failed to pay and had had the ability to pay periodic medical support

payments on January 1, 2013; February 1, 2013; and March 1, 2013; and to pay

child support on December 21, 2012; December 28, 2012; January 4, 2013;

January 11, 2013; January 18, 2013; January 25, 2013; February 1, 2013;

February 8, 2013; February 15, 2013; February 22, 2013; and March 1, 2013.

The trial court confirmed an arrearage of $8,542.93 as of May 21, 2013, which

included the unpaid child support and medical support, the unreimbursed health

care expenses, and the balance owed on the “previously confirmed” arrearages

for attorney’s fees and interest on those arrearages. It found Relator in contempt

for not making child support payments on the eleven occasions set out above

and for not making periodic medical support payments on January 1, 2013;

February 1, 2013; and March 1, 2013. It ordered her committed to the Tarrant

County Jail for 180 calendar days for each violation, to be served concurrently,

for a total of 180 calendar days. It then suspended the commitment order and

put Relator on community supervision for ten years. As a condition of community

supervision, Relator was to pay RPI $150 per week in child support starting May

24, 2013, $180.24 per month in medical support starting June 1, 2013, and $200

per month in arrearages starting June 1, 2013. The new order again warned



                                        3
about contempt for noncompliance and assessed attorney’s fees and court costs

against Relator in the amount of $4,171.

      On January 17, 2014, the other real party in interest in this case, the

Domestic Relations Office (DRO), filed a motion to revoke Relator’s community

supervision, alleging, among other things, that Relator had violated the terms and

conditions of her community supervision by failing to pay child support on

September 20, 2013; September 27, 2013; October 4, 2013; October 11, 2013;

October 18, 2013; October 25, 2013; November 1, 2013; November 8, 2013;

November 15, 2013; November 29, 2013; December 6, 2013; and December 13,

2013; by failing to pay monthly medical support on October 1, 2013, and

November 1, 2013; by failing to pay unreimbursed health care expenses resulting

in an arrearage of $242.50 as of September 24, 2013; by failing to make periodic

arrearage payments on October 1, 2013, and November 1, 2013; and by failing

to report to her community supervision counselor in September 2013. A warrant

was issued for Relator’s arrest on January 17, 2014. Relator was served with the

warrant and arrested on February 15, 2014; her bond was executed the next day,

and her counsel was appointed on February 18.

      Relator filed a plea to the jurisdiction, special exceptions,2 and an answer

to the motion to revoke, arguing that her right to due process was violated under


      2
       The DRO waived some of the paragraphs in its motion to revoke in
response to Relator’s special exceptions, but it did not waive any of the ones set
out above.

                                        4
family code section 157.215(a) when the trial court issued an ex parte warrant for

her arrest without giving her notice and opportunity to be heard before the arrest.

She also filed a motion for continuance because she was suffering from a

shingles outbreak and because she could not procure the testimony of a witness

vital to her defense—her terminally ill father—and needed to obtain his testimony

through his deposition on written questions. The court reset the hearing to May

27, 2014.

      At the hearing, the trial court denied Relator’s plea to the jurisdiction. The

DRO’s witnesses—Relator’s community supervision counselor and RPI—testified

that Relator had not paid child support on the dates set out in the motion to

revoke—September 20 and 27, 2013; October 4, 11, 18, and 25, 2013;

November 1, 8, 15, and 29, 2013; and December 6 and 13, 2013—and that she

had not paid current monthly medical support on October 1, 2013, and November

1, 2013, or the $200 per month in arrearages on October 1, 2013, and November

1, 2013. The trial court admitted certified copies of the suspended contempt

order and Attorney General’s financial activity report of Relator’s payments as of

May 27, 2014.

      Relator’s counsel was appointed based on her representation of indigence,

and the trial court waived Relator’s court costs and filing fees based on her

indigence. Relator testified that she had not had the ability to pay the amounts

due on the dates set out in the motion to revoke; that she still did not have the

ability to pay them; that she lacked any property that could have been sold,

                                         5
mortgaged, or otherwise pledged to raise those funds; and that she had been

unable to borrow the funds. Relator was evicted for past due rent on April 3,

2014, and her vehicle was repossessed on May 8, 2014. The parties stipulated

that Relator’s father had cancer.

      Relator’s father testified by deposition. He said that he had terminal stage

4 cancer, among other health problems; that he required full-time care; and that

Relator had provided sixteen to eighteen hours of care for him daily since May

2013 except when he was in the hospital. The care provided by Relator included

shaving and bathing him, maintaining his catheter, cooking, cleaning, washing

his bedding, tending his wounds, administering his medications, driving him to all

of his doctor’s appointments, communicating with his doctors on his behalf, and

managing his blood pressure.

      At the conclusion of the hearing, the trial court revoked Relator’s

community supervision on the grounds pertaining to her failure to pay child

support, periodic medical support, and periodic arrearages payments and pointed

out to Relator that, notwithstanding her circumstances, she had never moved to

modify the amount of child support that she owed.3 It committed Relator to jail to


      3
       If Relator had been able to afford an attorney, she might have been able
to pursue a modification that would have allowed her to avoid the initiation of
contempt proceedings and the subsequent revocation proceeding. However, the
record reflects that Relator was managing full-time care for an elderly, dying
parent while facing major financial setbacks and that she had a high school
education; it seems unlikely that she would have been able to successfully
pursue this option pro se, assuming that she had been aware of it.

                                        6
serve the remainder of her 180-day sentence (177 days) on weekends so that

Relator would have the weekdays to take her father to his medical

appointments.4

                                 III. Discussion

      In her first two issues, Relator argues that her current incarceration is void

because her initial arrest and incarceration were made without notice and an

opportunity to be heard and because of lack of proper courtroom identification.

In her third issue, Relator argues that the trial court erred by rejecting her

inability-to-pay defense, and in her fourth issue, she argues that the commitment

order violates due process because the trial court failed to consider options other

than incarceration.

      There is no adequate remedy by appeal if a trial court abuses its discretion

when holding someone in contempt. See In re Office of Att’y Gen. of Tex., 215

S.W.3d 913, 916 (Tex. App.—Fort Worth 2007, orig. proceeding).          On review,

we do not weigh the proof and determine whether it preponderates for or against

the relator; we determine only whether the contempt order is void because the

relator has been confined without a hearing or with no evidence of contempt to

support her confinement. Ex parte Chambers, 898 S.W.2d 257, 259–60 (Tex.

1995) (orig. proceeding).



      4
       Per Relator’s counsel’s request, we judicially notice that Relator’s father
died on June 28, 2014.

                                         7
      Relator was arrested under the family code sections providing that the

DRO may file a verified motion alleging violations of terms and conditions of

community supervision; that if the motion to revoke alleges a prima facie case of

community supervision violation, the court may order arrest by warrant; and that

the court shall hold a hearing not later than the third working day after the

respondent is arrested, after which it can continue, modify, or revoke community

supervision. See Tex. Fam. Code Ann. §§ 157.214–.216 (West 2014).

      Relator was arrested, but she bonded out before the third working day

under the statute, her community supervision was not revoked until after a

hearing, and the hearing was continued at her request, giving her ample time to

prepare for it. Cf. Ex parte Sauser, 554 S.W.2d 239, 241 (Tex. 1977) (orig.

proceeding) (stating that order directing sheriff to immediately arrest relator and

bring him to court for show-cause hearing did not provide due process because it

gave insufficient notice with regard to time to prepare for the hearing); Ex parte

Herring, 438 S.W.2d 801, 801, 803 (Tex. 1969) (orig. proceeding) (stating that

committing a person to jail for contempt when he had no personal notice or

knowledge of the show-cause hearing at which he was held in contempt violated

due process); Ex parte Bush, 619 S.W.2d 298, 299–300 (Tex. Civ. App.—Tyler

1981, orig. proceeding) (holding that relator was deprived of due process when

attachment order jailed relator to purge him of contempt without notice and a

hearing first). Because we do not see how Relator’s arrest warrant based on the

verified affidavit is any different from the issuance of an arrest warrant in a

                                        8
criminal case after a finding of probable cause, or how Relator was deprived of

due process under the circumstances presented here prior to the hearing, we

overrule her first issue.   See Tex. Code Crim. Proc. Ann. art. 45.014 (West

2006).

      With regard to Relator’s second issue, Relator’s community supervision

counselor testified that he was familiar with Relator and identified her in the

courtroom. He stated that Relator had been assigned to his case load since she

was placed on community supervision and that he completed her initial briefing

with regard to her reporting instructions, payments, and other terms and

conditions of her community supervision in May 2013. He said that at the initial

briefing, Relator indicated that she understood what was expected by the

community supervision unit with regard to her actions going forward and what the

potential consequences were if she did not comply with the terms and conditions

of her community supervision. He further stated that when he briefed Relator, he

required her to sign the back of the community supervision order to verify that it

had been discussed with her.

      RPI testified that he was the child’s father, identified Relator by her full

name, and stated that Relator had not made any of the payments listed in the

motion to revoke.    The trial court admitted certified copies of the suspended

contempt order and Attorney General’s financial activity report of Relator’s

payments as of May 27, 2014. Based on the foregoing, we conclude that the trial



                                        9
court did not abuse its discretion by finding that Relator had been adequately

identified, and we overrule Relator’s second issue.

      With regard to Relator’s third issue, an obligor may plead as an affirmative

defense to the violation of a condition of community supervision requiring

payment of child support that she lacked the ability to provide support in the

amount ordered; lacked property that could be sold, mortgaged, or otherwise

pledged to raise the funds needed; attempted unsuccessfully to borrow the funds

needed; and knew of no source from which money could have been borrowed or

legally obtained. See Tex. Fam. Code Ann. § 157.008(c) (West 2014). The

inability to pay child support is an affirmative defense that must be proved by a

preponderance of the evidence. See id. § 157.006(b) (West 2014); Ex parte

Roosth, 881 S.W.2d 300, 301 (Tex. 1994) (orig. proceeding).

      Relator’s testimony supported these grounds and more when she

explained why she had been unable to pay child support on the dates listed in

the revocation order and how she had been unable to secure any loans from

friends, family, or third party sources. Her testimony was uncontroverted by any

other witness: RPI and her community supervision counselor both testified that

Relator had failed to pay, while Relator testified about her unemployment, her

eviction, and the repossession of her vehicle. She and her terminally ill father

testified about the care that she provided to him and why this had precluded her

from working anywhere but home since she began caring for him full-time on

May 15, 2013, when he was discharged from the hospital. No one testified or

                                       10
presented any evidence that Relator had the ability to pay at the time the money

was owed or at the hearing. See In re Smith, 354 S.W.3d 929, 931 (Tex. App.—

Dallas 2011, orig. proceeding) (stating that relator conclusively proved his

inability to pay the amount owed when his testimony addressed each of the four

elements required by section 157.008(c) and the attorney general did not present

any evidence to contradict this testimony or to show that relator had the ability to

pay the money). Therefore, the record shows that Relator did not willfully violate

the court’s order and that she is entitled to relief on her third issue with regard to

her inability-to-pay defense. See Chambers, 898 S.W.2d at 261 (stating that the

involuntary inability to comply with an order is a valid defense that rebuts the

willfulness element of contempt liability).     We sustain Relator’s third issue.

Based on our resolution of Relator’s third issue, we do not reach her fourth issue.

                                  IV. Conclusion

      Having sustained Relator’s third issue, we vacate the order of commitment.

We order Relator released from the bond set by this court on June 20, 2014, and

order her discharged from custody.




                                                    PER CURIAM

PANEL: MCCOY, GARDNER, and WALKER, JJ.

WALKER, J., concurs without opinion.

DELIVERED: August 14, 2014

                                         11
