Opinion issued May 1, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00087-CV
                           ———————————
                    IN RE PATRICK GRIFFITH, Relator



         Original Proceeding on Petition for Writ of Habeas Corpus


                                    OPINION

      Relator, Patrick Griffith, requests habeas corpus relief after the trial court

sentenced him to thirty days’ confinement in Brazoria County Jail following a

finding of direct contempt.1 On February 4, 2014, after a preliminary review of

relator’s petition for writ of habeas corpus, we ordered relator released upon his


1
      The underlying case is In the Matter of the Marriage of Angela Griffith and
      Patrick Griffith, cause number 72063, pending in the 300th District Court of
      Brazoria County, Texas, the Honorable K. Randall Hufstetler presiding.
posting of a bond in the amount of $100.00, pending a final determination of his

petition. Because we conclude that relator is entitled to relief, we grant his petition

for writ of habeas corpus, order relator released from the bond set by this Court on

February 4, 2014, and order relator discharged from custody.

                                    Background

      This habeas proceeding arises out of a divorce proceeding in the trial court.

On January 6, 2014, relator testified before the trial court. While relator was being

questioned by real party in interest Angela Griffith’s attorney, the trial court

admonished relator and stated the following after relator failed to answer the

questions being asked:

      Let me tell you what we’re going to do. The next time that you are
      nonresponsive to the question that is asked of you, we’re done and
      we’re going to just move right into a Show Cause hearing where I will
      determine whether or not you should be held in contempt for failing to
      follow my instructions that I’ve given you now three times to answer
      just the question that’s asked. That’s why I’m not giving it to you a
      fourth time. . . . [B]ecause of some reason unknown to me, you aren’t
      getting it. So, here’s what you need to get. The next time Ms. Leleux
      asks you a question and you don’t answer it and you go off on
      something else, we’ll stop and I’ll determine whether or not you’re
      going to be held in contempt. For each violation that I hold you in
      contempt, you’re looking at up to 180 days in Brazoria County
      Detention Center and a fine of up to $500 for each occasion.

      Subsequently, following additional testimony, the trial court held relator in

direct contempt for failing to answer the questions asked by relator’s own counsel.




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Specifically, the court stated:

      So, here’s your first 30 days. You’re not leaving today because I’m
      holding you in contempt for directly violating my order to answer the
      questions that are asked of you. 30 days in the Brazoria County
      Detention Center, that’s your first 30. We’ll go for another the next
      questions that’s asked of you, and we’ll keep going till we get done
      with this hearing. . . . She’s asking you a very specific question that
      you can’t answer. . . . I’m not letting this one go. 30 days in jail.
      We’ll recess until 9:00 a.m. Henry, I’ll make a docket entry, so that
      you can take Mr. Griffith and bring him back in the morning if you
      would, please, sir.

The trial court made a docket entry reflecting the contempt finding, but the court

did not sign a written contempt or commitment order.

      On January 30, 2014, relator filed his petition for writ of habeas corpus with

this Court. Subsequently, we ordered relator released upon his posting of a bond,

pending full submission of the matter. The Court also requested a response to

relator’s petition for writ of habeas corpus from Angela Griffith; however, no

response was filed. See TEX. R. APP. P. 52.4 (stating that filing response is not

mandatory, but that Court may not grant relief before response is requested).

                                  Standard of Review

      An original habeas proceeding is a collateral attack on a contempt judgment.

Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967) (orig. proceeding). 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). In a

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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). For this Court to order the release of a relator in a habeas

corpus proceeding, we must find that the trial court’s order directing the relator to

be incarcerated is void because of a lack of jurisdiction or because the relator was

deprived of liberty without due process of law. 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 Turner, 177 S.W.3d 284, 288

(Tex. App.—Houston [1st Dist.] 2005, orig. proceeding).

                                       Analysis

       Relator asserts his confinement is illegal because: (1) the trial court failed to

sign a written order of commitment; (2) the trial court limited its warning of

contempt to the next time opposing counsel asked a question, not relator’s counsel;

and (3) relator’s conduct did not obstruct or tend to obstruct the administration of

justice. Because we sustain relator’s first issue, we do not address the remaining

issues in relator’s petition.

       In his first issue, relator asserts that his due process rights were violated

because the trial court did not sign a written order of commitment. We agree.

       It is well settled in Texas that a person may not be imprisoned for contempt

without a written order of commitment. Ex pare Amaya, 748 S.W.2d 224, 224


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(Tex. 1988) (orig. proceeding); Ex parte Supercinski, 561 S.W.2d 482, 483 (Tex.

Crim. App. 1977) (orig. proceeding). This is true in cases of both direct contempt

and constructive contempt.2 See Ex parte Supercinski, 561 S.W.2d at 483–84

(holding that no one may be restrained for contempt, either direct or constructive,

without written order of commitment); Ex parte Christofferson, 345 S.W.2d 410,

411 (Tex. Crim. App. 1961) (orig. proceeding) (granting relief where trial court

found relators in direct contempt and orally ordered them taken to jail but never

signed written order of commitment); see also Ex parte Camara, 628 S.W.2d 803,

804 (Tex. Crim. App. 1982) (orig. proceeding) (“In absence of a written order of

contempt . . . , petitioner may not be restrained for contempt.”). In regard to direct

contempt specifically, the Beaumont Court of Appeals has explained:

      If faced with a direct act of contempt, . . . the trial court may cause the
      contemnor to be detained by the sheriff for a short and reasonable
      time while the judgment of contempt and order of commitment are
      being prepared for the judge’s signature. Thereafter, if no written
      order is signed, the contemnor must be released in compliance with
      due process.


2
      Direct contempt is that kind of disobedience or disrespect that occurs in the
      presence of the court. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995)
      (orig. proceeding). In contrast, constructive contempt occurs outside the court’s
      presence. In re Reece, 341 S.W.3d 360, 365 (Tex. 2011) (orig. proceeding). Due
      process requirements may differ in cases involving direct contempt versus
      constructive contempt. See Ex parte Daniels, 722 S.W.2d 707, 709–10 (Tex.
      Crim. App. 1987) (orig. proceeding). However, due process requires a written
      order of commitment in cases of direct contempt and constructive contempt. See
      Ex parte Supercinski, 561 S.W.2d 482, 483–84 (Tex. Crim. App. 1977) (orig.
      proceeding).

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In re Sheard, 102 S.W.3d 808, 810 (Tex. App.—Beaumont 2003, orig. proceeding)

(internal citations omitted).

      Here, the trial court found relator in direct contempt during trial and

sentenced him to thirty days’ confinement for failing to answer the questions asked

of relator during relator’s testimony. However, the trial court never signed a

written order of commitment. Instead, the trial court made a docket sheet notation

stating that relator was ordered to remain in custody on the contempt charge for

thirty days.   A docket sheet notation is not sufficient to satisfy due process

requirements; a written order of commitment is required.            See Ex parte

Supercinski, 561 S.W.2d at 483 (granting relief where there was no written

commitment order and record revealed only judge’s oral order and docket sheet

notations); In re Gonzales, No. 11-05-00388-CV, 2006 WL 133703, at *1 (Tex.

App.—Eastland Jan. 19, 2006, orig. proceeding) (mem. op.) (granting relief where

docket sheet noted that relator was held in contempt and committed to jail but

record contained no written commitment order); Ex parte Thompson, 803 S.W.2d

876, 877 & n.1 (Tex. App.—Corpus Christi 1991, orig. proceeding) (ordering

discharge on other grounds, but noting that written order of commitment was

necessary even though docket sheet entry revealed that trial court held relator in

contempt); see also State v. Shaw, 4 S.W.3d 875, 878 (Tex. App.—Dallas 1999, no

pet.) (“A docket sheet entry cannot stand as an order. . . . Rather, a docket sheet


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entry is a memorandum made for the convenience of the trial court and clerk.”

(internal citations omitted)).

      Because the trial court did not sign a written commitment order after holding

relator in direct contempt, we hold that relator’s due process rights were violated.

We sustain relator’s first issue.

                                    Conclusion

      We grant relator’s petition for writ of habeas corpus, order relator released

from the bond set by this Court on February 4, 2014, and order relator discharged

from custody.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Bland, and Brown.




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