                                Fourth Court of Appeals
                                        San Antonio, Texas

                                   MEMORANDUM OPINION
                                            No. 04-13-00638-CV

                                   EX PARTE Jesus M. ANGUIANO

                                   Original Habeas Corpus Proceeding 1

PER CURIAM

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: October 2, 2013

PETITION FOR WRIT OF HABEAS CORPUS DENIED

           On September 19, 2013, relator, Jesus M. Anguiano, filed an original pro se petition for

writ of habeas corpus contending he is being illegally confined after the trial court found him in

contempt for failure to pay previously ordered child support and ordered him confined for 180

days. Specifically, Anguiano asserts: (1) the trial court failed to inform him of his right to counsel

under the Texas Family Code; (2) the trial court failed to make a determination of his ability to

purge himself of the child support obligation; and (3) Sheriff Susan Pamerleau has failed to give

him “good time” credit in violation of his right to equal protection under the law. See TEX. FAM.

CODE ANN. §§ 157.008, 157.163 (West 2008).




1
  This proceeding arises out of Cause No. 1994EM503312, styled In the Interest of J.A. and J.A., Children, pending
in the 288th Judicial District Court, Bexar County, Texas, the Honorable Janet Littlejohn presiding.
                                                                                       04-13-00638-CV


       This court received from the trial court clerk a copy of the trial court’s Order Enforcing

Child Support Obligation. The order indicates that a hearing was conducted on May 17, 2011 and

reflects that Anguiano, “appeared in person Pro Se and was advised of his rights, including the

right to court appointed attorney if found indigent.” The order reflects the trial court’s finding that

Anguiano, “knowingly and intelligently waived his rights and proceeded Pro Se.”

       A relator is entitled to habeas corpus relief if he establishes he was deprived of liberty

without due process of law, or if we conclude the judgment ordering confinement is void. See In

re Henry, 154 S.W.3d 594, 596 (Tex. 2005); In re Alexander, 243 S.W.3d 822, 824 (Tex. App.—

San Antonio 2007, orig. proceeding). The purpose of a habeas corpus proceeding is not to

determine the relator’s guilt or innocence, but to ascertain if the relator has been unlawfully

confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979); Alexander, 243 S.W.3d at 827.

       In family law enforcement proceedings, the Family Code requires the trial court to

determine whether the proceeding is one in which incarceration may result and, if so, the court is

obligated to inform a respondent of the right to counsel and, if indigent, the right to an appointed

attorney. See TEX. FAM. CODE ANN. § 157.183 (a), (b). In the present case, the trial court’s order

includes a warning that a finding of contempt may be punished by confinement for up to six

months. It further indicates that Anguiano was advised of his right to counsel and knowingly

waived his rights and elected to proceed pro se. We conclude the trial court properly admonished

Anguiano of his right to counsel in accordance with the Family Code. See TEX. FAM. CODE ANN.

§ 157.163.

       Anguiano also complains the trial court failed to make a determination of his ability to

purge himself of the child support obligation. The Family Code provides that an obligor may plead

as an affirmative defense to an allegation of contempt that he lacked the ability and resources to

provide support in the amount ordered. See TEX. FAM. CODE ANN. § 157.008 (c). However, it is
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                                                                                       04-13-00638-CV


Anguiano’s burden in the trial court to conclusively establish the affirmative defense. See Ex parte

Rojo, 925 S.W.2d 654, 656 (Tex. 1996). It is also his burden as relator in this proceeding to provide

this court with a record sufficient to establish his right to habeas corpus relief. See TEX. R. APP. P.

52.7(a); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Anguiano has

failed to provide this court with a record supporting his claim that he is entitled to habeas corpus

relief on the basis that he met his burden of conclusively establishing an affirmative defense in the

trial court.

        Finally, Anguiano contends he is being denied equal protection under the law by the denial

of “good time” credits on his sentence when such credits are available to prisoners serving

sentences on criminal charges. While article 42.032 of the Texas Code of Criminal Procedure gives

the sheriff discretion to award “good time” credit to those being punished by criminal contempt

orders, the statute does not apply to those being punished by coercive civil contempt orders. See

TEX. CODE CRIM. PROC. ANN. art. 42.032 § 2 (West Supp. 2012); Ex parte Acly, 711 S.W.2d 627,

628 (Tex. Crim. App. 1986). The record reflects the trial court’s findings on both punitive

contempt and coercive contempt. Anguiano is not entitled to consideration for “good time” credit

under the statute for the criminal contempt portion of the order until he has satisfied the coercive

contempt portion of the order. See Acly, 711 S.W.2d at 628. Because the record does not reflect

that Anguiano has fully satisfied the coercive contempt portion of the order, we are unable to say

that there is any abuse of discretion in the failure to award “good time” credits in this instance.

TEX. R. APP. P. 52.7(a); Walker, 827 S.W.2d at 837. Anguiano has not established that he is entitled

to habeas corpus relief on this ground. See TEX. CODE CRIM. PROC. ANN. art. 42.032 § 2; Acly, 711

S.W.2d at 628.

        Relator’s petition for writ of habeas corpus is denied.

                                                   PER CURIAM
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