







In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-09-00908-CV
____________

IN RE MARK D. LUEBE, Relator



Original Petition for Writ of Habeas Corpus 




O P I N I O N

 Relator, Mark D. Luebe (Mark), requests habeas corpus relief from the
August 10, 2009 "Order Enforcing Child Support Obligation and Commitment
Order" ("enforcement order").  In four issues concerning his challenge to the
punitive-contempt portion of the order, Mark contends he was not properly notified
of the contempt charges, the contents of the enforcement order were inadequate to
hold him in contempt, he was denied the right to a jury trial, and the prosecutor was
improperly the beneficiary of the order sought to be enforced. Mark's remaining
three issues assert the divorce decree was ambiguous, the motion for enforcement
violated double jeopardy, and the coercive contempt was illegal due to his inability
to pay. (1)  We deny habeas corpus relief regarding Mark's challenges to the punitive-contempt confinement portion of the enforcement order and dismiss as premature
Mark's challenges to the coercive-contempt confinement portion of the enforcement
order.
Factual Background
	In 1996, the trial court signed temporary orders requiring Mark to pay to real
party in interest, Brenda G. Luebe (Brenda), $315 per month in child support.  The
trial court held in 1998 that Mark violated these orders by not paying $3,780 in
child support, and committed him to jail for contempt.  In re Luebe, 983 S.W.2d
889, 890 (Tex. App.--Houston [1st Dist.] 1999, orig. proceeding).  Mark petitioned
this Court for habeas corpus relief, which we granted in January 1999.  Id. at 891.
 The trial court signed a final decree of divorce in 2000, ordering Mark to pay
child support of $250 per month on the first of each month, beginning on March 1,
2000, until the occurrence of certain events that are not relevant here.  In the decree,
the trial court also discharged the parties from the temporary orders, except for
claims for enforcement of accrued unpaid child support and medical health
insurance reimbursement under the temporary orders, which the trial court said
would survive the decree.
	In March 2009, the Office of the Attorney General (AG) filed against Mark a
motion to enforce the 1996 temporary child support order and the child support
order in the 2000 divorce decree, requesting the trial court hold Mark in contempt. 
The motion sought punitive contempt measures of a fine of not more than $500
and/or commitment to the county jail for not more than six months.  The motion
also requested the trial court to order Mark committed to jail with his release
conditioned on payment of the child support arrearage, accrued interest, reasonable
attorney fees, and court costs.
 At the August 2009 enforcement hearing, the trial court found that Mark
failed to pay court-ordered child support in the amount of $250 that was due on the
first of each of the months of January, February, March, and April of 2009.  It held
that each of the four failures to pay constituted a separate act of contempt, and it
ordered Mark committed to confinement for 180 days for each separate act of
contempt with the periods of confinement to run concurrently.  Additionally, as a
civil-coercive measure, the trial court ordered Mark confined until he pays $5,000
in child support arrearage, $150 in attorney's fees, and court costs as billed. 
	Mark began his confinement on August 11, 2009.  Subsequently, he
petitioned this Court for habeas corpus relief.  Mark has not included with his
petition, a transcript or tape of the audio recording of the August 2009 enforcement
hearing.  On October 28, 2009, we ordered the Sheriff to release Mark, upon his
posting a bond, pending our determination of his petition on the merits.
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
unlawfully confined.  Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979).  The
presumption is that the order is valid.  In re Turner, 177 S.W.3d 284, 288 (Tex.
App.--Houston [1st Dist.] 2005, orig. proceeding) (citing Ex parte Occhipenti, 796
S.W.2d 805, 809 (Tex. App.--Houston [1st Dist.] 1990, orig. proceeding)).  In a
habeas corpus action challenging confinement for contempt, the relator bears the
burden of showing that the contempt order is void.  In re Coppock,  277 S.W.3d
417, 418-19 (Tex. 2009) (orig. proceeding).  An order is void if it is beyond the
power of the court to enter it, or if it deprives the relator of liberty without due
process of law.  Id. 
Types of Confinement for Contempt
 In the 2009 enforcement order, the trial court provides for two types of
confinement, (1) punitive-contempt or criminal-contempt confinement and (2)
coercive-contempt or civil-contempt confinement.  The purpose of punitive-contempt confinement is to punish for disobedience for some completed act, which
affronted the dignity of the court.  Ex parte Werblud, 536 S.W.2d 542, 545 (Tex.
1976).  The sentence is not conditioned on some promise of future performance. Id. 
The purpose of civil or coercive-contempt confinement is remedial in nature.  Id.  A
judgment of civil contempt exerts the judicial authority of the court to persuade the
contemnor to obey some order of the court when such obedience will benefit an
opposing litigant.  Id.  Incarceration is conditional upon obedience and, therefore,
the civil contemnor "carries the key of his prison in his own pocket."  Id. 
 As a general rule, when the trial court has provided for both punitive-
contempt confinement and coercive-contempt confinement in the enforcement
order, if the punitive-contempt provision is valid, attacks relative to the coercive-
contempt confinement by a contemnor, who has not completed serving the punitive-contempt confinement, are premature.  See, e.g., Occhipenti, 796 S.W.2d at 810. 
Here, the trial court sentenced Mark to four, 180-day, punitive-contempt periods of
confinement to run concurrently.  However, Mark has not completed serving the
180 days of punitive-contempt confinement due to his release on bond pursuant to
our October 28, 2009 order.  Because he has not yet completed his confinement for
punitive contempt, we first address those issues that affect that portion of the
enforcement order.


Confinement for Punitive Contempt
 Mark's four issues challenging the punitive-contempt portion of the order
contend (A) he was not properly notified of the contempt charges, (B) the contents
of the enforcement order are inadequate to hold him in contempt, (C) he was denied
the right to a jury trial, and (D) the prosecutor was improperly the beneficiary of the
order sought to be enforced.
	A.  Adequacy of Motion for Enforcement 
 In his second issue, Mark asserts that the show cause order did not adequately
give him notice of the contempt charges against him, so that it was unclear that he
was facing a contempt proceeding and possible incarceration.  Mark also contends it
was unclear whether he was being summoned to a contempt hearing or a discovery
proceeding because the show cause order requested that he bring with him his tax
returns, payroll stubs, bank statements, and other specified documents. 	
	A motion for enforcement may be filed to enforce a final order for child
support.  See Tex.  Fam.  Code Ann.§ 157.001 (Vernon 2008).  The Texas Family
Code specifies what must be in the contents of a motion to enforce.  Id. at §
157.002.  The Family Code states,
	A motion for enforcement must, in ordinary and concise language: (1)
identify the provision of the order allegedly violated and sought to be
enforced; (2) state the manner of the respondent's alleged noncompliance; (3) state
the relief requested by the movant; and (4) contain the signature of the movant or
the movant's attorney.   
Id. at § 157.002(a). In addition to these general requirements for motions for
enforcement, a motion concerning enforcement of child support "(1) must include
the amount owed as provided in the order, the amount paid, and the amount of
arrearages; [and] (2) if contempt is requested, must include the portion of the order
allegedly violated and, for each date of alleged contempt, the amount due and the
amount paid, if any." Id. at § 157.002(b)(1),(2).  "The notice of hearing need not
repeat the allegations in the motion for enforcement."  Id. at § 157.062(b).  A
contemnor has sufficient notice when the motion for contempt and the show cause
order clearly show the relator that he is accused of failing to pay child support and
the amount of the arrearage.  Ex parte Jimenez, 737 S.W.2d 358, 360 (Tex.
App.--San Antonio 1987, orig. proceeding). 
	Here, the motion for enforcement identified the provisions of the orders
claimed to have been violated and that it was seeking to enforce them.  See Tex. 
Fam.  Code Ann.§157.002(a)(1) (Vernon 2008).  The AG attached to its motion to
enforce, Exhibit A, which is part of the 1996 temporary order that orders Mark to
pay $315 per month on the first of each month, and Exhibit AAA, which is part of
the divorce decree that orders Mark to pay $250 per month on the first of each
month.  By identifying the provision of the order violated, the motion meets section
157.002(a)(1) of the Family Code.  See id. 
	The motion for enforcement also specified the manner of Mark's
noncompliance.  Id. at § 157.002(a)(2).  In its motion to enforce, the AG attached
and incorporated by reference Exhibit B, which is a "Financial Activity Report"
from its Child Support Enforcement Division showing, among other things, dates
and amounts of child support due from Mark, and dates and amounts of child
support paid by Mark.  The AG alleged that Mark violated the child support orders
and committed a separate act of contempt on each of the occasions shown on
Exhibit B.  Exhibit B shows that for the period of time between October 1, 1998
and February 1, 2009, the only payments Mark made were $175 in May 1999 and
$51.88 in September 2007.  Exhibit B is a detailed statement explaining amounts
that show Mark has a total arrearage of $51,554.86.  This information showing the
manner of Mark's noncompliance with the divorce decree meets the requirements in
section 157.002(a)(2) of the Family Code, as well as section 157.002(b)(1), which
requires that the motion for enforcement of child support include the amount owed,
the amount paid, and the amount of arrearages. See id. at § 157.002(a)(2),
157.002(b)(1).  This information also meets the requirements in section
157.002(b)(2) that requires that the motion include the portion of the order
allegedly violated and, for each date of alleged contempt, the amount due and the
amount paid.  See id. at § 157.002(a)(2), 157.002(b)(1). 
	The motion for enforcement states the relief requested by the AG.  See id. §
157.002(a)(3). The motion requests punitive contempt by a fine and/or six months
confinement; coercive-contempt to commit Mark to jail until he pays the child
support arrearage, accrued interest, attorney's fees, and court costs; and entry of a
judgment for all support arrearage and accrued interest.  See id. § 157.002(a)(3).  
More specifically, the motion to enforce states, "The Court should hold MARK
DOUGLAS LUEBE in contempt and punish him by a fine of not more than $500
and/or commitment to the county jail for not more than six months."  The AG's
signature on the motion complies with that Family Code requirement.  See id. §
157.002(a)(4). 
	Mark's assertion that the show cause order did not adequately give him
notice of the contempt charges against him is unpersuasive because the record
shows the order setting the contempt hearing was served with the motion to enforce,
which plainly notified him he was facing a contempt proceeding with possible
incarceration.  Furthermore, Mark's suggestion that the request that he bring
financial documents to the hearing could have led him to believe he was facing only
a discovery proceeding also lacks merit.  The show cause order was served in
conjunction with the pleading on the motion to enforce, which plainly notified him
of the charges of contempt.  The order setting the contempt hearing requires Mark's
appearance "to respond to the pleading served with this order."  We hold the AG's
motion to enforce complies with the requirements in the Family Code for that type
of motion, and properly notified Mark of the contempt charges.  See id. § 157.001,
157.002.  We overrule the second issue.
	B.  Adequacy of Contents of Enforcement Order
	In his fourth issue, Mark asserts that the enforcement order concerning the
punitive contempt is "fatally vague"  because it "does not state which order [Mark]
allegedly violated."  
  An enforcement order must include "in ordinary and concise language the
provisions of the order for which enforcement was requested."  Tex.  Fam.  Code
Ann.§ 157.166(a)(1) (Vernon 2008).  If the order imposes incarceration for
criminal contempt, an enforcement order must contain findings identifying, setting
out, or incorporating by reference the provisions of the order for which
enforcement was requested."  Id. at § 157.166(b)(1).  "The purpose of an
enforcement order is to notify the contemner of how he has violated the provisions
for which enforcement is sought and . . . to provide sufficient information for an
adequate review."  Turner, 177 S.W.3d at 289 (citing Ex parte Conoly, 732 S.W.2d
695, 697 (Tex. App.--Dallas 1987, orig. proceeding)).  A contempt order is
insufficient if its interpretation requires inferences or conclusions about which
reasonable persons might differ.  Id. 
	Although it should have included the specific provisions sought to be
enforced or incorporated by express reference, the enforcement order sufficiently
notifies Mark of the charges found against him.  Turner, 177 S.W.3d at 290.  The
four violations that the trial court found for punitive contempt were failure to pay
court ordered child support of $250 on the first of the months of January through
April of 2009.  These violations necessarily implicated the divorce decree that
ordered Mark to pay to Brenda child support of $250 per month, payable on the
first of the month.  These are the same violations that were expressly referenced in
the motion for enforcement.  Because of the amounts and dates alleged, these
violations could not have arisen from other decree provisions, nor from the child
support provisions of the 1996 temporary child support provision, which ordered
child support of $315 per month.  We also note that Mark has not alleged that he
has had difficulty or confusion understanding which violations were found by the
trial court.  Furthermore, the order provides adequate information for habeas
corpus review of Mark's grounds for relief.
	The trial court's order apprises Mark of the violations found against him by
implicating the specific violations alleged in the motion for enforcement.  See id. 
We hold the enforcement order adequately identified Mark's violations.  We
overrule the fourth issue concerning the challenges to the punitive contempt. (2)
 C.  Right to Jury Trial
	In his fifth issue, Mark asserts that he is entitled to habeas corpus relief
because the trial court did not give him a jury trial.  Cases of criminal contempt in
which the sentence actually imposed does not exceed six months' confinement are
exempt from the requirement of a jury trial.  Werblud, 536 S.W.2d at 547 (citing
Taylor v.  Hayes, 418 U.S. 488, 495-96, 94 S. Ct.  2696, 2702 (1974)).  Because
the criminal-contempt sentence actually imposed did not exceed six months, Mark
was not entitled to a trial by jury.  See id.  We overrule the fifth isssue.
	D.  Prosecutor was Not Beneficiary of Order
	Mark's sixth issue contends the AG could not act as the prosecutor in the
case because it was the beneficiary of the order sought to be enforced.  "[C]ounsel
for a party that is the beneficiary of a court order may not be appointed as
prosecutor in a contempt action alleging a violation of that order."  In re Davidson,
908 F.2d 1249, 1251 (5th Cir. 1990) (reversing finding of contempt regarding
violation of temporary restraining order because trial court had either tacitly
appointed private counsel for beneficiary of temporary retraining order as
prosecutor against respondent or judge had acted as prosecutor); see Young v.  U.S.
ex rel. Vuitton et Fils S.A., 481 U.S. 787, 809, 107 S. Ct. 2124, 2138 (1987)
(holding that trial court erred in criminal contempt action by appointing  prosecutor
who had been counsel for an interested party in underlying civil litigation).
 	Unlike these cases, the AG is not a beneficiary of the order sought to be
enforced.  Title IV-D of the Social Security Act requires states to "provide
services" relating to "the establishment, modification, or enforcement of child
support obligations."  42 U.S.C.S. § 654 (4) (Supp. 2009); see Office of the
Attorney General of Texas v. Lee, 92 S.W.3d 526, 527 n.1 (Tex. 2002).  The
Family Code designates the Attorney General as Texas's Title IV-D agency and
sets forth its rights and responsibilities to collect child support. Tex. Fam. Code
Ann. § 231.001 (Vernon 2008); § 231.002 (Vernon Supp. 2009-10);  see Lee, 92
S.W.3d at 527 n.1.  "An attorney employed to provide Title IV-D services
represents the interest of the state and not the interest of any other party."  See Tex.
Fam. Code Ann. § 231.109(d) (Vernon 2008).  Because the Family Code
expressly provides that the AG represents the interests of the state only, we hold
the AG's prosecution of the contempt for failure to pay child support does not
create a conflict of interest.  See Davidson, 908 F.2d at 1251; Marshall v. Jerrico,
Inc., 446 U.S. 238, 250-52, 100 S. Ct. 1610, 1617-18 (1980) (recoupment of civil
penalties by an enforcing agency did not create impermissible conflict of interest of
agency's prosecutorial officials).  We overrule the sixth issue.
	Having overruled each of Mark's challenges to the punitive contempt order,
we uphold that portion of the trial court's enforcement order.Coercive Contempt
 In his remaining three issues, Mark challenges the coercive-contempt
portion of the trial court's order by asserting the divorce decree lacks clarity, the
action is barred by double jeopardy, and the confinement is illegal due to his
inability to pay.  Mark's first issue contends that the divorce decree is "fatally
ambiguous" by discharging him from the temporary orders, but then ordering that
the accrued unpaid child support and medical heath insurance claims from the
temporary orders survive the judgment.  This challenge to the temporary orders
does not concern the punitive contempt, which is based on violations for failure to
pay the child support ordered in the 2000 divorce decree only.  In his third issue,
Mark contends that the coercive-contempt portion of the enforcement order
provides that he is to be incarcerated until he purges himself of paying $5,000,
implying that the amount may contain the $3,780 arrearage for which he was
incarcerated in 1998.  In his seventh issue, Mark asserts that the coercive contempt
portion of the enforcement order is void because he has a present inability to make
the $5,000 child support arrearage payment that the trial court set as a condition for
his release from coercive confinement.  These arguments, as well as Mark's
assertion that the attorney's fees and costs are ambiguous in the coercive-contempt
portion of the enforcement order, are premature because they are directed at the
coercive-contempt section of the enforcement order only.  Because Mark has not
completed the 180-day punitive-contempt sentence assessed by the trial court, the
complaints about the coercive-contempt portion of the order are premature.  See
Occhipenti, 796 S.W.2d at 810.  We dismiss the first, third,  and seventh issues, as
well as the part of the fourth issue concerning the coercive contempt.  
Conclusion
	Having determined that none of Mark's contentions attacking the punitive
contempt confinement provisions of the August 10, 2009 enforcement order have
merit, we remand Mark to the custody of the Sheriff to complete the remainder of
his service of the 180-day punitive-contempt confinement in accordance with the
trial court's August 10, 2009 "Order Enforcing Child Support Obligation and
Commitment" and our Memorandum Order of Commitment issued
contemporaneously with the issuance of this opinion.  We dismiss as premature
Mark's challenges to the civil-coercive-contempt confinement without prejudice to
refile them upon his completion of the punitive-contempt sentence.  See id.
(holding when sentence for criminal contempt is valid, it would be premature to
address civil portion of order).     



	Elsa Alcala

	Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.
1. 	The "issues presented" in Mark's petition lists the issues in a different order than they
appear in the body of his petition.  In this opinion, we number the issues in
accordance with the way they appear in the body of Mark's petition.
2. 	In the section concerning the coercive contempt, we address Mark's complaint that
the imposition of attorney's fees and court costs was ambiguous.
