Opinion filed December 16, 2010




                                           In The


   Eleventh Court of Appeals
                                         __________

                                   No. 11-10-00360-CV
                                       __________

                                  IN RE JAIME MORENO

                             Original Habeas Corpus Proceeding


                                         OPINION

       This is an original habeas corpus proceeding. The trial court held Jaime Moreno in
contempt for failing to comply with its order appointing Delfa Rodriguez temporary guardian of
the person and estate of Josefina Moreno and ordered him held in jail for fifteen days. Jaime
filed a petition for writ of habeas corpus with this court. We set a bond and have now considered
his petition. Because the trial court found Jaime in contempt without providing due process, we
grant the writ.
                                      I. Background Facts
       Delfa Rodriguez, Josefina’s daughter, filed an application for the appointment of a
temporary guardian of the person and estate of Josefina. The trial court held an evidentiary
hearing on November 23 and appointed Delfa temporary guardian. Josefina had been living with
her sons, Jaime and Juan Moreno. The trial court orally instructed the parties to accomplish the
change of residence that day and suggested that it be done by 6:00 p.m. The trial court then
instructed Jaime and Juan:
               That means, Brothers, that I don’t want any objections. I don’t want any
       fights. I don’t want any loud language. I don’t want any threats. I don’t want the
       police to have to come.
              Ms. or Mrs. Delfa Rodriguez will go to your home and pick up the mother
       and the items that she needs with regard to medicines and necessities and
       transport them to her home where she will be kept.

The trial court signed a written order that same day. Delfa was named temporary guardian
beginning at 6:00 p.m. on November 23. Our record indicates that Delfa was unable to pick
Josefina up but not why. The trial court held a second hearing on November 30. The court did
not allow any testimony but reminded Jaime of its order requiring the exchange of custody and
expressed its displeasure with him for not complying with this order. The trial court then
sentenced Jaime to fifteen days confinement.
                                           II. Issues
       Jaime challenges his confinement with a single issue, contending that the trial court
abused its discretion by sentencing him to fifteen days confinement because it did so without
providing him notice and an evidentiary hearing.
                                        III. Discussion
       Contempt of court is disobedience to or disrespect of a court by an action in opposition to
its authority. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995). Actions constituting
contempt of court can be divided into two categories: direct and constructive. Direct contempt
involves disobedience or disrespect that occurs within the presence of the court. Constructive
contempt occurs outside the court’s presence.        Id.     The distinction between direct and
constructive contempt is important because it determines the procedural protections that must be
afforded. In re Acceptance Ins. Co., 33 S.W.3d 443, 449 (Tex. App.—Fort Worth 2000, orig.
proceeding).
       Jaime faced constructive contempt charges.          He was, therefore, entitled to full and
complete notification of the subject matter and the when, how, and by what means he was guilty
of the alleged contempt. Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex. 1969); see also Ex parte
Brister, 801 S.W.2d 833, 835 (Tex. 1990) (Cook, J., concurring) (amongst the due process rights
accorded an alleged contemnor is the right to reasonable notice of each alleged contumacious
act). Jaime’s right to notice flows from his rights to due process. Ex parte Jackman, 663 S.W.2d
520, 523 (Tex. App.—Dallas 1983, orig. proceeding).

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       The question is not the clarity of the court’s underlying order or Jaime’s obligation. The
trial court’s written order named Delfa temporary guardian effective as of 6:00 p.m. the day of
the hearing. And the court unambiguously instructed the parties that it wanted the change in
custody to occur without incident. The question is whether the court provided sufficient notice
before finding Jaime in contempt and sentencing him to jail.
       The notice must conform to any relevant procedural requirements and be actually
delivered to the alleged contemnor in a timely fashion. In re Acceptance Ins., 33 S.W.3d at 449.
Notice given to the attorney is inadequate; the notice must be served personally on the
contemnor. Ex parte Herring, 438 S.W.2d 801, 803 (Tex. 1969). The notice must ordinarily be
in writing. See Ex parte Vetterick, 744 S.W.2d 598, 599 (Tex. 1988) (notice should be by show
cause order or other equivalent legal process personally served on the alleged contemnor).
Notice must also be given a reasonable time before the hearing. Hayes v. Hayes, 920 S.W.2d
344, 346-47 (Tex. App.—Texarkana 1996, writ denied).
       The trial court did not provide Jaime with written notice that it intended to consider
whether he should be held in contempt for violating the November 23 order. Jaime’s issue is,
therefore, sustained. Because the trial court has the authority to reconsider this matter, we find it
appropriate to discuss the other due process issues that could arise.
       Contempt punishment can be divided into criminal and civil. Civil contempt is coercive,
and the contemnor may obtain his release by complying with the court’s order. In re Houston,
92 S.W.3d 870, 876 n.2 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding). In criminal
contempt proceedings, the court punishes the contemnor for improper actions and no subsequent
voluntary compliance can avoid punishment for past acts. Ex parte Busby, 921 S.W.2d 389, 391
(Tex. App.—Austin 1996, orig. proceeding). Jaime had no opportunity to purge himself of his
contempt. Consequently, he faced criminal contempt.
       Criminal contempt proceedings require additional due process protections. See Int’l
Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827 (1994) (criminal penalties
may not be imposed on someone who has not been afforded the protections that the constitution
requires of such criminal proceedings).      The required constitutional protections depend on
whether the criminal contempt is “serious” or not.           Serious criminal contempt involves
imprisonment for more than six months. See Taylor v. Hayes, 418 U.S. 488, 495 (1974) (party
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facing serious criminal contempt charges has a right to a jury trial). However, even for non-
serious criminal contempt proceedings, courts have held that parties are entitled to advance
notice of their potential punishment. See In re Smith, 981 S.W.2d 909, 911 (Tex. App.—
Houston [1st Dist.] 1998, no pet.). If the trial court reconsiders this matter, Jaime is entitled to
be personally served with not only notice of his alleged contempt of court but also of his
potential punishment.
       Finally, because due process requires not only notice, but an opportunity to be heard,
Jaime is also entitled to present a defense to the alleged contempt. Ex parte Jackman, 663
S.W.2d at 523 (due process requires notice and an opportunity to defend).
                                         IV. Conclusion
       The petition for writ of habeas corpus is granted. We order Jaime Moreno discharged
and his bond released.




                                                     RICK STRANGE
                                                     JUSTICE


December 16, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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