            TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                           NO. 03-03-00137-CV




                                              In re Carl Ross




                          ORIGINAL PROCEEDING FROM BURNET COUNTY




                                               OPINION


                 In this post-divorce habeas corpus proceeding, relator Carl Ross challenges the district

court=s order that, among other things, ruled Ross committed criminal and civil contempt and ordered that

he serve time in the county jail. Ross was released from jail after he posted a cash bond of $5000.1 We

will grant the petition, modify the portion of the district court=s order related to contempt, deny other relief

requested, and affirm the order as modified.


                                                Background




        1
          Even though Ross is not presently in jail, the restraints on his liberty are sufficient for habeas
corpus review. See Ex parte Williams, 690 S.W.2d 243, 243 (Tex. 1985).
                Ross and the real party in interest Shanney Velwood were divorced in August 2002.2 In

December 2002, Velwood commenced child support enforcement proceedings alleging that Ross was in

arrears on child support payments. Velwood requested that Ross be found in contempt and confined in jail

until he became current on his child support payments. Ross was ordered to appear and show cause for his

child support delinquency. At the hearing on the motion to enforce, the parties and the court discussed this

delinquency issue as well as other issues related to the parties= divorce decree. The court made several

rulings from the bench, and after the hearing, the district court signed a commitment order, which provided:


        Respondent Carl Ross is hereby committed to the Burnet County jail on two counts of
        punitive contempt for 30 days each as rendered in open court this date. Bond is hereby set
        at $5,000 cash bond. A further and formal order will issue with the particular findings and
        rulings of the Court.


                Almost one month later, the district court signed an order entitled, AOrder Confirming

Arrearages, Nunc Pro Tunc, Clarification of Prior Order, Holding Respondent in Contempt and for

Commitment to County Jail.@ In the order, the court ruled that Ross committed contempt in six separate

instances. The court determined that Ross had not complied timely with the divorce decree because he

failed to (1) transfer and deliver documents related to real property at 1503 Bluebonnet Drive, in Marble

Falls; (2) transfer and deliver documents related to real property located on FM 1980; (3) deliver a 2002

Ford truck to Velwood; (4) deliver a stock transfer certificate; (5) pay child support in the amount of $375

        2
         Shanney Velwood was formerly known as Shanney Ross. Also pending in this Court is Carl
Ross=s appeal from the parties= divorce decree, Ross v. Ross, cause number 03-02-00771-CV.




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semi-monthly on several specific dates; and (6) provide medical insurance for the children. The court also

confirmed that Athe amount of unconfirmed child support arrearage accrued by Ross for the support of his

children since the signing of the divorce decree was $3375.@ The court found that the child support

arrearage confirmed in the divorce decree of $7500 after deducting payments made since the signing of the

divorce decree was now $3750. Further, the court found that, as of the date of the hearing, Ross had the

ability to comply with the divorce decree.

                The district court adjudged Ross in criminal contempt, finding that he had violated the

parties= divorce decree on four separate instances by failing to transfer documents to both pieces of

property, deliver the truck, and deliver the stock transfer certificate. The court assessed jail sentences for

each of these four violations with the punishments to run consecutively. The order gave Ross twenty days

from the date of the order to comply with the divorce decree or report to county jail.

                In addition to the four instances of criminal contempt, the court also found Ross in civil

contempt. The court ordered that Ross be confined to county jail until he complied with the following

orders: that within twenty days, Ross must Aexecute and deliver or cause to be executed and delivered to

Shanney Velwood the documents transferring good title to the land on FM 1980 in accordance with the

decree.@ Additionally, the court ordered Ross to pay to Velwood Athrough [the county child support office]

one half of the child support arrearage in the amount of $3375 with the remaining balance due and payable

at the rate of $100 per month, each month thereafter, and remain current on all child support payments

thereafter.@ Finally, the court ordered Ross to provide health insurance coverage for his children as ordered

in the divorce decree. The court also held that Athe civil contempt may be purged by complying with all of


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the conditions previously breached; and [Ross] may be released on such civil contempt confinement upon

the posting of a cash bond in the amount of $5000.@ Ross posted the $5000 cash bond and seeks issuance

of a writ of habeas corpus.

                                               Discussion

                Ross complains (1) he was denied due process because he was not properly noticed about

several of the contempt rulings; (2) the entire contempt portion of the order is void because the motion to

enforce and the resulting contempt rulings referred to violations of a divorce decree signed July 11, 2002,

when actually the divorce decree was signed on August 20, 2002; and (3) the commitment order was

improper.

                This Court will issue a writ of habeas corpus if the contempt order is void because it

deprives the relator of liberty without due process of law or because it was beyond the power of the court

to issue. In re Patillo, 32 S.W.3d 907, 909 (Tex. App.CCorpus Christi 2000, no pet.) (citing Ex parte

Swate, 922 S.W.2d 122, 124 (Tex. 1996)). Due process requires that a court, before imprisoning a

person for violating an earlier order, sign both a written judgment or order of contempt and a written

commitment order. See Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex. 1997). The contempt order must

clearly state in what respect the court=s earlier order has been violated and must clearly specify the

punishment imposed by the court. Id. A commitment order is the warrant, process, or order by which a

court directs a ministerial officer to take custody of a person. Ex parte Hernandez, 827 S.W.2d 858, 858

(Tex. 1992). The form of a commitment order is not important, but the substance is. Id.


Notice

                                                    4
                We first address Ross=s complaint that he was not given proper notice of the four criminal

contempt citations that related to property the divorce decree ordered that he turn over and the two civil

contempt rulings that related to his failure to turn over documents regarding real property and to provide

medical insurance for the children. Ross contends that none of these violations were alleged in Velwood=s

motion nor were they noticed in the order that he appear and show cause. Ross contends the only violation

of the decree of which he received notice was delinquent child support.

                Contempt proceedings are quasi-criminal in nature, and the contemner is entitled to

procedural due process throughout the proceedings. See Ex parte Brister, 801 S.W.2d 833, 835 (Tex.

1990) (Cook, J., concurring) (citing Ex parte Johnson, 654 S.W.2d 415, 420 (Tex. 1983)). Among those

procedural due process rights is the right to reasonable notice of each alleged contemptuous act. The due

process requirement is one of Afull and complete notification@ of the conduct with which the contemner is

charged and the contemner must be given a reasonable opportunity to meet the charges by defense or

explanation. Id. (citing Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979)); Ex parte Adell, 769

S.W.2d 521, 522 (Tex. 1989). A contempt order rendered without such adequate notification is void.

Adell, 769 S.W.2d at 522.

                Velwood agrees with Ross that the motion for enforcement and order to appear and show

cause failed to provide him with notice of every contemptuous act found by the district court. Velwood

concedes that the notice provided to Ross only addressed Ross=s child support delinquency. Velwood asks

this Court to reform or modify portions of the district court=s order that relate to contempt and commitment,




                                                     5
to strike the portions of the order finding Ross in contempt for any act other than his child support

delinquency, and to affirm the ruling that Ross was in contempt for failure to pay child support.

                 Therefore, we sustain Ross=s contention that he was given inadequate notice of several acts

for which he was found in contempt. We hold that the portions of the contempt order that relate to conduct

other than Ross=s failure to pay child support are void. We find no infirmity in the portion of the order ruling

that Ross shall be confined in the county jail until he has paid to Velwood one-half of the confirmed child

support arrearage in the amount of $3375.

                 The void portions of the order relating to contempt do not make the entire order void

because the district court listed the contempt sentences separately. The void portions are capable of being

severed from the valid portions of the order. See Patillo, 32 S.W.3d at 909; Ex parte Ramon, 821

S.W.2d 711, 715 (Tex. App.CSan Antonio 1991, no writ); Ex parte Conoly, 732 S.W.2d 695, 699

(Tex. App.CDallas 1987, no writ). Accordingly, we modify the district court=s order, strike the void

portions of the order, and hold that the remaining portion of the order that relates to Ross=s contempt for

child support delinquency is valid and enforceable.


Signing date of divorce decree

                 We also address Ross=s contention that the district court erred in finding him Aguilty of

separate violations of an order signed on July 11, 2002 when the order in this case was not signed until

August 20, 2002.@ Ross relies upon Ex parte Gordon, in which the court ordered the relator discharged

after concluding that an ambiguity existed due to a mistake in a show cause order that referred to a previous

temporary restraining order instead of a previous temporary injunction. 584 S.W.2d at 689. The Gordon

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court held Athat in situations of contempt committed outside the presence of the court, the contempt

judgment must be based on a valid show cause order or equivalent legal process that contains full and

unambiguous notification of the accusation of contempt.@ Id. at 690.

                In this instance, the error regarding the date of the signing of the divorce decree did not

cause an ambiguity. Unlike the factual situation in Gordon where there had been both a temporary

restraining order and a temporary injunction, here, there was only one divorce decree. The referral to the

mistaken date on which the divorce decree was signed did not cause or otherwise affect the allegations

regarding Ross=s failure to pay child support under the decree. This contention is overruled.


Commitment order

                Finally, we address Ross=s contention that he should be discharged because the district

court failed to sign a proper commitment order that contained the elements of the contempt judgment. To

satisfy due process requirements, it is necessary that there be both a written judgment of contempt and a

written commitment order. See Shaklee, 939 S.W.2d at 145. There is no particular form prescribed by

law for a commitment order, and it may be included in the contempt judgment. See Ex parte Hogan, 916

S.W.2d 82, 87 (Tex. App.CHouston [1st Dist.] 1996, no writ) (citing Hernandez, 827 S.W.2d at 858).

The commitment order must tell the contemner in Aclear, specific and unambiguous words@ how to gain

release from contempt. See Ex parte Price, 741 S.W.2d 366, 367 (Tex. 1987).

                We have determined that the two counts of criminal contempt referred to in the commitment

order signed by the district court on January 22 are void and are unenforceable, as are all other contempt

rulings save the court=s ruling that Ross was in civil contempt for failing to pay child support. The district

                                                      7
court=s order signed February 20 states, AIt is ordered that [Ross] shall be confined in the county jail of

Burnet County, Texas, until [he] has complied with the following orders.@ Further the court=s order

provides, AThe civil contempt may be purged by complying with all of the conditions previously breached;

and [Ross] may be released on such civil contempt confinement upon the posting of a cash bond in the

amount of $5,000.00.@

                As a result of this Court=s modification of the contempt order, the only condition to release

remaining is that Ross pay $3375 of his delinquent child support. We hold that the court=s order contains a

commitment order that details to the contemner in clear, specific and unambiguous language how to gain

release from the remaining civil contempt ruling. We overrule Ross=s contention that there is an improper

commitment order.


                                                Conclusion

                We conclude that the district court=s contempt rulings are void, except for the court=s ruling

that Ross was in contempt for failure to pay child support. Accordingly, we grant the petition, modify the

district court=s order of February 20, 2003, strike all contempt rulings except the contempt ruling related to

Ross=s child support delinquency, deny other relief requested, and affirm the order as modified.




                                                  Mack Kidd, Justice

Before Justices Kidd, Yeakel and Patterson



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Filed: April 17, 2003




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