Granted and Opinion Filed February 12, 2018




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-00031-CV

                   IN RE CHRISTOPHER GLENN CHAMBERS, Relator

                 Original Proceeding from the 254th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DF-10-00874

                              MEMORANDUM OPINION
                           Before Justices Francis, Evans, and Schenck
                                   Opinion by Justice Schenck
       Before the Court is relator’s January 11, 2018 petition for writ of habeas corpus in which

he seeks to be discharged from civil confinement for allegedly failing to pay court-ordered child

support. We find that the orders at issue are void and grant the writ.

                                           Background

       This proceeding arises from a contempt action for the alleged nonpayment of child support

arrearages ordered to be paid in a March 17, 2017 Agreed Order in Suit to Modify Parent-Child

Relationship. That modification order required relator to pay child support arrearages and unpaid

medical expenses through monthly payments of $1,200.00. On November 13, 2017, the children’s

mother filed a motion for enforcement of the modification order. She alleged that relator had failed

to pay the required amounts from April 1, 2017 to September 1, 2017. She requested criminal and

civil contempt against relator. Relator was served with notice on December 28, 2017 of a January

2, 2018 hearing on the motion for enforcement and contempt. Relator appeared pro se at the
January 2 hearing. Following the hearing, the trial court signed its “Order Holding Respondent in

Contempt for Failure to Pay Child Support and Arrearages, Granting Judgment, and for

Commitment to County Jail” and held relator in criminal and civil contempt. The criminal

contempt order requires relator to pay a $500 fine and be confined in the county jail for a period

of 180 days for each violation, with the confinement to be served concurrently. The civil contempt

order requires relator to be confined in the county for either a period not to exceed 18 months,

including time served for criminal contempt, or until relator pays $37,518.60 in arrearages and

$1,835.23 in fees, whichever occurs first. Relator was taken into custody on January 2, 2018.

       In this original proceeding, relator asserts that the trial court’s judgment of contempt and

commitment order are void and his due process rights are being violated. He seeks a writ of habeas

corpus. On January 11, 2018, we issued an order setting bond and authorizing his release upon

posting the bond. We requested responses from the real party in interest and respondent, but no

responses were filed.

                                       Standard of Review

       A court may punish for contempt. TEX. GOV’T CODE ANN. § 21.002 (West 2004). A habeas

corpus proceeding is a collateral attack on a judgment that imposes punishment for contempt. In

re Johnson, 337 S.W.3d 486, 488 (Tex. App.—Dallas 2011, orig. proceeding). A petition for writ

of habeas corpus does not inquire into the guilt or innocence of the relator, but only determines if

the order of contempt was void. See Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig.

proceeding). A contempt order is void if it is beyond the power of the court to render it or if it

deprives the relator of liberty without due process of law. Ex parte Barnett, 600 S.W.2d 252, 254

(Tex. 1980) (orig. proceeding).




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                                             Discussion

       Relator argues that the judgment of contempt and commitment order are void because (1)

he did not receive the statutorily-required 10-days’ notice of the hearing, and (2) he was not

admonished of his right to counsel and did not waive his right to counsel. After reviewing his

complaints and the record, we agree.

       First, relator did not receive ten days’ notice of the hearing as required by section

157.062(c) of the Texas Family Code. See TEX. FAM. CODE. ANN. § 157.062(c) (West Supp.

2017). Lack of ten days’ notice under section 157.062(c) constitutes a deprival of due process

rights and renders the order void. Ex parte Davis, 161 Tex. 561, 565, 344 S.W.2d 153, 155–56

(1961) (holding that relator who appeared at hearing without counsel on only two days' notice

could not be said to have waived his rights or consented to trial based on his failure to protest or

demand further time because the show cause order compelled his attendance); Target Logistics,

Inc. v. Office of Attorney Gen. of Texas, 465 S.W.3d 768, 770 (Tex. App.—El Paso 2015, no pet.).

       Second, relator appeared pro se and did not waive his right to counsel. In the absence of a

knowing and intelligent waiver of the right to counsel made on the record, the order holding a

party in contempt is void. Ex parte Acker, 949 S.W.2d 314, 316 (Tex. 1997) (court’s failure to

admonish party of her right to counsel rendered the commitment arising from the contempt order

void); In re Marks, 365 S.W.3d 843, 845–46 (Tex. App.—Fort Worth 2012, orig. proceeding)

(citing Ex parte Gunther, 758 S.W.2d 226, 226–27 (Tex. 1988) (orig. proceeding) (granting

petition for writ of habeas corpus relief in part because absent knowing waiver of rights, trial court

was without authority to hold Gunther in contempt)). An intelligent and voluntary waiver of the

right to counsel occurs in a family law contempt proceeding when two events occur. In re Marks,

365 S.W.3d at 845–46. First, the trial court admonishes contemnor according to section 157.163.

Id.; TEX. FAM. CODE ANN. § 157.163 (West Supp. 2017). Next, the contemnor must waive those


                                                 –3–
rights, and that waiver must be made on the record. In re Marks, 365 S.W.3d at 845–46.; In re

Pass, No. 02–05–00457–CV, 2006 WL 668744, *3 (Tex. App.—Fort Worth Mar. 16, 2006, orig.

proceeding) (mem. op.) (contemnor’s answer of “[s]ure” to trial court’s request to proceed with

contempt hearing was an invalid waiver of right to counsel because trial court had not yet

admonished contemnor under 157.163); In re Leon, No. 01–04–00819–CV, 2004 WL 2306752, at

*2–3 (Tex. App.—Houston [1st Dist.] Oct. 14, 2004, orig. proceeding) (mem. op.) (holding that

relator had not waived his right to counsel because trial court held contempt hearing in which

incarceration was a possibility but denied relator's requests to be allowed time to retain counsel);

cf., In re Pruitt, 6 S.W.3d 363, 365 n. 3 (Tex. App.—Beaumont 1999, orig. proceeding) (holding

valid waiver of right to counsel by non-indigent contemnor occurred when trial court admonished

according to 157.163, inquired whether contemnor wished to continue hearing in order to obtain

counsel, and contemnor elected to proceed). Section 157.163 “requires courts to admonish pro se

litigants of their right to counsel, regardless of whether they are indigent or not.” In re Marks, 365

S.W.3d at 845 (citing Ex parte Acker, 949 S.W.2d at 316).

       Here, the judge told relator that he had the right to counsel, but did not ask relator if he

wanted counsel, did not inform relator that he was entitled to time to get counsel, did not appoint

relator counsel, and relator did not waive the right to counsel. Under those circumstances, the

order is void. See Ex parte Davis, 344 S.W.2d at 156 (contempt order void and failure to protest

or demand further time does not constitute a waiver of right to counsel where contemnor was

provided only 2 days’ notice of hearing and nothing in the record shows that “he knew or was

advised that he was entitled to further time under the statute and the rule in which to obtain counsel

and prepare for trial”); In re Marks, 365 S.W.3d at 845 (“a contemnor facing incarceration must

be informed of his right to counsel and must either waive that right or be provided with court-

appointed counsel.”) (citing Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32

                                                 –4–
L.Ed.2d 530 (1972) (holding that under Sixth Amendment, no person may be imprisoned for any

offense, whether classified as petty, misdemeanor, or felony, unless he had or waived counsel)).

                                          Conclusion

       Accordingly, we grant the writ of habeas corpus and vacate the January 2, 2018 “Order

Holding Respondent in Contempt for Failure to Pay Child Support and Arrearages, Granting

Judgment, and for Commitment to County Jail” issued by the 254th Judicial District Court of

Dallas County, Texas in cause number DF-10-00874. We order that relator Christopher Glenn

Chambers be unconditionally released and discharged from the custody of the Sheriff of Dallas

County under the January 2, 2018 “Order Holding Respondent in Contempt for Failure to Pay

Child Support and Arrearages, Granting Judgment, and for Commitment to County Jail.” We

further discharge any bond paid by relator in accordance with this Court’s January 11, 2018 order.




                                                 /David J. Schenck/
                                                 DAVID J. SCHENCK
                                                 JUSTICE




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