                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00415-CV


IN RE DONALD W. DAVIS                                                 RELATOR


                                     ------------

                           ORIGINAL PROCEEDING

                                     ------------

                        MEMORANDUM OPINION1

                                     ------------

                                   I. Introduction

      In five issues, Relator Donald W. Davis seeks relief from Respondent the

Honorable Jonathan Bailey‘s judgment of contempt and commitment order. We

grant Relator‘s requested relief and order that he be discharged from custody.

                    II. Factual and Procedural Background

      Real Party in Interest Julia Davis (RPI) is Relator‘s mother.     Relator‘s

father and RPI executed a power of attorney naming Relator—who has been a


      1
       See Tex. R. App. P. 47.4.
certified public accountant since 1970 and has his own accounting firm—attorney

in fact. After Relator‘s father died in December 2003, RPI executed a new power

of attorney on June 21, 2005, naming both Relator and Charles N. Davis, III,

Relator‘s brother, as attorneys in fact. Relator‘s sisters were named executors of

Relator‘s father‘s estate, and at the September 23, 2011 contempt hearing,

Relator testified that after his father‘s death, he gave his parents‘ financial

records to his sisters so that they could do the work on the estate.

        Relator‘s sisters transferred responsibility for RPI‘s affairs back to him

―some months‖ later.     On February 12, 2009, Relator admitted that he had

―commingled with certain of [his] funds certain funds belonging to [RPI].‖ He

estimated the amount of his mother‘s funds that he had commingled to be

between $400,000 and $550,000 and indicated that he would complete an

analysis of the amount on or before May 15, 2009. 2 RPI sued Relator in October

2009.




        2
        In his March 12, 2010 deposition, Relator admitted that he never told RPI
that he was borrowing money from her and that he needed to repay $564,621.22
to RPI. He also admitted that he should have done ―a far better job of
documenting things,‖ but he stated that he had a complete record of everything
and could show where the money went. Relator contended that the documents
he produced to his mother‘s attorneys were all the documents that would be
necessary to determine the money that had been paid for his mother‘s living
expenses and the money that he owed his mother. However, he acknowledged
that he had not produced documents that would show a transactional history;
rather, ―[t]here‘s a functional summary history of the amounts, including a number
of transactions.‖


                                         2
      On September 3, 2010, RPI filed a motion for partial summary judgment to

compel Relator to provide a complete accounting under probate code section

489B, to include

      at least, a description of the assets or funds of [RPI] that came into
      [Relator‘s] control, care, or possession; a description of what portion
      of those assets or funds were commingled with [Relator‘s] funds;
      and a description of the use and investments made of [RPI‘s] funds
      and those funds of [Relator] that were commingled with [RPI‘s]
      assets and funds, and sufficient information to locate and allow [RPI]
      [to] plead for a constructive trust over such assets and funds of [RPI]
      and such commingled funds whether those be assets or funds of
      [Relator, Relator‘s] business interests, or assets or funds in the
      possession of third parties.

      To her motion, RPI attached, among other things, portions of Relator‘s

March 12, 2010 deposition; the February 12, 2009 letter in which Relator

admitted that he had commingled their funds; the affidavit of Emilia D‘Mello, a

CPA retained to review and attempt to produce a complete accounting from the

documents provided by Relator;3 an August 20, 2010 letter from RPI to Relator

demanding an accounting; and the affidavit of Janese Dudash, a paralegal at the

law firm representing RPI, in which Dudash stated that she served RPI‘s fourth

request for production to opposing counsel‘s office on August 17, 2010, that the

response was due August 27, 2010, and that, as of September 2, 2010, no


      3
       In her affidavit, D‘Mello stated that none of the documents produced by
Relator, individually or in combination, met the requirements of section 489B.
She stated that she had compiled a list of the additional documents necessary to
complete an accounting meeting the requirements of section 489B, which were
incorporated into ―Plaintiff‘s Fourth Request for Production.‖ Plaintiff‘s Fourth
Request for Production was attached as an exhibit to her affidavit.


                                        3
response had been received. The request for production attached as an exhibit

to D‘Mello‘s affidavit requests very specific documents and time periods,

including ―the missing statements for [Relator‘s] account at Wells Fargo ending in

account number x4051, e.g., statements prior to 5/2007 and 3/2008-7/2008‖ and

statements from five other specific banks and account numbers, as well as ―[a]ny

other account in existence or opened for or by [Relator] between May 2005 and

April 2009.‖ It also requests information on RPI‘s accounts from December 2003

―until present or when the account was closed,‖ among other items.

      On December 7, 2010, the Honorable Margaret Barnes granted RPI‘s

motion for partial summary judgment and ordered Relator to

      provide [RPI] with an accounting meeting the requirements of Texas
      Probate Code § 489B and including the information necessary to
      plead for a constructive trust on the assets and accounts derived
      from the funds originating with [RPI] and commingled with the funds
      of [Relator] whether those be assets or funds of [Relator, Relator‘s]
      business interests, or assets or funds in the possession of third
      parties.

Relator‘s deadline to provide the accounting and all supporting documentation

was December 20, 2010.

      Relator did not meet the deadline, and RPI filed her first motion for

contempt on December 21, 2010. On March 7, 2011, Respondent held a hearing

on the motion. In his introductory remarks, RPI‘s counsel stated that Relator had

managed RPI‘s financial affairs from 2003 until mid-2008. He testified that his

firm had not received an accounting from Relator or communications from

Relator or his counsel with regard to any excuse for failure to comply with the


                                        4
order to deliver the accounting and materials supporting the accounting.             He

admitted that the order did not list the requirements of probate code section

489B.

        At the conclusion of the March 7, 2011 hearing, Respondent granted the

motion, stating,

              Okay. [Relator,] I‘m finding you in contempt. I believe the
        order rendered December 7, 2010, was sufficiently specific. I find by
        clear and convincing evidence that you failed to comply with the
        terms of that order.

               I find it particularly bothersome that you made no attempts to
        notify this court either prior to obtaining counsel or subsequent to
        obtaining counsel that you had any questions regarding what was
        expected of you. There was no indication that you did not
        understand what was required of you as a result of that order, no
        attempts to clarify that order, and apparently no attempts to comply
        with the order.

               I am ordering you be taken into custody of the Denton County
        Sheriff and confined until you comply with that order. I don‘t care
        how long it takes. You will make arrangements to have the order
        complied with or you will sit in jail until you do. I‘ve entered a written
        order to those effects to be executed on March 7, 2011.

Respondent ordered that Relator would be confined in the county jail until he had

complied with the following:

           1. [P]rovide [RPI] with an accounting meeting the requirements
        of Texas Probate Code § 489B and including the information
        necessary to plead for a constructive trust on the assets and
        accounts derived from the funds originating with [RPI] and
        commingled with the funds of [Relator] whether those be assets or
        funds of [Relator, Relator‘s] business interests, or assets or funds in
        the possession of third parties;

           2. [P]rovide said accounting, and all supporting documentation
        required to be provided therewith pursuant to Texas Probate Code


                                            5
      § 489B, by delivering same to the offices of Wood, Thacker &
      Weatherly, P.C. at 400 W. Oak, Suite 310, Denton, Texas 76201.
      INSTANTER[.4]

      On March 9, 2011, we denied Relator‘s petition for writ of habeas corpus

and request for temporary relief. In re Davis, No. 02-11-00088-CV, 2011 WL

856904, at *1 (Tex. App.—Fort Worth Mar. 9, 2011, orig. proceeding) (mem. op.).

The supreme court released Relator on bond while his petition for habeas corpus

relief remained pending in that court and requested a response from RPI. See In

re   Davis,   No.     11-0177    (Tex.    Mar.   11,   2011,   order),   available    at

http://www.supreme.courts.state.tx.us/historical/2011/mar/031111.htm.                The

supreme court dismissed Relator‘s petition on October 21, 2011. In re Davis, No.

11-0177       (Tex.       Oct.      21,        2011,     order),     available        at

http://www.supreme.courts.state.tx.us/historical/2011/oct/102111.htm.

      In June 2011, while Relator‘s petition remained pending in the supreme

court, RPI filed a new motion to compel Relator to provide an accounting under

section 489B. Stating that Relator had claimed the original order requiring an

accounting lacked sufficient specificity because the specific provisions of the

code section had ―not been spelled out for him,‖ RPI requested an order directing

Relator to provide the specific items set out in section 489B(d) within five days or,

in the alternative, to comply with only those subparts of section 489B that he has

never complained are vague,


      4
       Respondent wrote in ―INSTANTER‖ and initialed it.


                                           6
      which include the following subparts of § 489B(d) describing
      obligations with regard to the necessary contents of an accounting:

      (1) the property belonging to the principal that has come to the
      attorney in fact‘s knowledge or possession; (2) a complete account
      of receipts, disbursements, and other actions of the attorney in fact,
      including their source and nature, with receipts of principal and
      income shown separately; (3) a listing of all property over which the
      attorney in fact has exercised control, with an adequate description
      of each asset and its current value if known to the attorney in fact;
      (4) the cash balance on hand and name and location of the
      depository where the balance is kept; and (5) all known liabilities.

Respondent granted the motion on June 16, 2011.

      In his June 16, 2011 order, Respondent made clear that because Relator

alleged that the December 7, 2010 order lacked sufficient clarity to be enforced,

      to the extent necessary to the entry of this order and only to that
      extent, the court makes the following additional orders herein to aid
      in the enforcement of its judgments under Texas Rule of Civil
      Procedure 308 and pursuant to the Court‘s inherent power to
      enforce, clarify, modify, and alter its orders during the pendency of
      this suit as follows:

             IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
      [Relator] provide [RPI] with an accounting meeting the requirements
      of Texas Probate Code § 489B which accounting shall include
      specifically the following:

          (1)      the property belonging to [RPI] that has come to
      [Relator‘s] knowledge or into his possession;

          (2)      a complete account of receipts, disbursements, and
      other actions of [Relator] including their source and nature, with
      receipts of principal and income shown separately;

          (3)      a listing of all property of [RPI], with an adequate
      description of each asset and its current value if known to [Relator];

          (4)      the cash balance on hand in any account and the name
      and location of the depository where said balances are kept; and


                                        7
          (5)     all liabilities of [RPI].

Respondent ordered Relator to deliver the accounting to RPI‘s attorneys on or

before June 30, 2011.

      On July 1, 2011, RPI filed her second motion for civil contempt, arguing

that Relator failed to comply with Respondent‘s order, requesting that Relator be

held in civil contempt, and requesting that if Respondent found any part of the

order was not specific enough to be enforced by contempt, that Respondent

enter a clarifying order specifying the duties imposed on Relator and a

reasonable time within which compliance would be required.

      Respondent held a hearing on RPI‘s second motion for civil contempt on

September 23, 2011. RPI called D‘Mello as her first witness. D‘Mello testified

that she had reviewed the information received from Relator—Plaintiff‘s Exhibit

1—in August 2011 and compared it to the information she had received and

analysis she had performed earlier in the case. One of the documents Relator

had previously provided was an inventory and appraisement of the assets

Relator‘s father left to RPI when he died in December 2003; the assets had a

total value of $837,538 as of December 2003. D‘Mello stated that based on her

analysis, approximately $520,000 of the funds were not accounted for when

comparing the December 2003 inventory and appraisement to the records

Relator had provided.




                                              8
      D‘Mello described Plaintiff‘s Exhibit 1 as a handwritten general ledger that

summarized the transactions in several accounts, with a detailed schedule for

each account, ―behind the account there will be a more detailed listing of each

check[] and expenses. And then all of those individual accounts flow into a

summary schedule by year and everything is then summarized on the first page.‖

Nowhere on the document could she locate any statement that specifically

identified what property of RPI had come into Relator‘s possession, and for

several of the transactions, there was no information about the source or nature

of the transaction, just a general description. There was also no listing of RPI‘s

current assets.

      D‘Mello testified that Plaintiff‘s Exhibit 2 was a supplemental accounting

provided by Relator, but she said that it did not include any new information from

that which was provided in Plaintiff‘s Exhibit 1. She said that Plaintiff‘s Exhibit 3

was additional documentation provided by Relator on the week of the hearing

and that, while the additional documentation provided some information for 2004,

it related mainly to Relator‘s accounts, setting out total deposits, total

withdrawals, and ending balances, but nothing else. D‘Mello said that she could

not document a source for approximately $2 million in deposits into Relator‘s

accounts and that Relator‘s accounting was incomplete and inaccurate. D‘Mello

also said that the documentation Relator had provided did not include the

accounts he had received in his 2008 divorce decree, and she opined that




                                         9
producing an accounting that would comply with the June 16, 2011 order would

be within the normal skill set of a CPA.

      On cross-examination, D‘Mello said that Relator stopped handling RPI‘s

funds around April 2009 and admitted that there was probably not a way for

Relator to tell anyone what RPI‘s funds consisted of today, although he could ―do

a list of the assets that he gave possession of.‖ She also agreed that Relator

should not be required to list RPI‘s assets and liabilities ―as of today,‖ but rather

the ones that he surrendered in April 2009.

      Relator testified that he provided an accounting to RPI‘s attorney and that

Plaintiff‘s Exhibit 1 ―sets forth all the transactions in the various bank accounts

belonging to [RPI] over which [he] had knowledge or was involved for the periods

of 2005, 2006, 2007, or 2008.‖ Relator said that the funds and property that

came back into his possession when his father‘s estate closed were reflected in

the summary in Plaintiff‘s Exhibit 1 and that Plaintiff‘s Exhibit 2 was the same

information in a different format.   Relator testified that to his knowledge, the

accounting he provided showed all of RPI‘s property that came into his

possession.

      With regard to the order‘s requirement that he give a complete account of

receipts, disbursements, and other actions he took, including their source and

nature, Relator said that he had included a description of the source of the

different amounts he received. He said that he did not understand what ―receipts

of principal and income shown separately‖ meant and that he just interpreted that


                                           10
requirement to mean a complete record of all the receipts. Relator stated that he

tried the best he could based on his records and the records that he had of RPI‘s

accounts to try to identify where the money went.         He said that additional

information from the banks would be useful but that as he no longer had power of

attorney, he did not believe that he had authority to get his mother‘s bank

records.

      With regard to the order‘s requirement that he provide a list of all of RPI‘s

property with an adequate description of each asset and its current value, Relator

stated that he did not know what RPI‘s current assets were and that he turned his

mother‘s assets over to his siblings at the end of 2008 or in early 2009. Because

he had not handled his mother‘s affairs since 2009, he could not list her current

assets, debts, and liabilities. Relator also stated that he did not believe there

was a way to segregate and trace the commingled funds.

      On cross-examination, Relator admitted that he had not asked his sisters

to help him gather information so that he could figure out which property had

come into his possession. He also admitted that he had not asked Wells Fargo

for any information. When asked why he did not use accounting software to

prepare his accounting, Relator said that he had never used accounting software

for his personal information. He said that it would only take him a few days to

redo the accounting using a computer program.

      Relator‘s sister, Patricia Davis Sherman, testified that Relator supplied the

information for the inventory and appraisement of their father‘s estate. Sherman


                                        11
stated that Relator had records and maintained records regarding RPI‘s financial

affairs from the date of the inventory until 2009.

      At the conclusion of the hearing, Respondent ordered Relator to reappear

the following week, on September 29, 2011.              On September 29, 2011,

Respondent found Relator in contempt because the manner in which he

complied with the order was insufficient in failing to ―comport with either the spirit

or the letter of the prior order‖ and ordered him confined in the Denton County

Jail until he had purged himself of contempt by complying with the order.

      In the September 29, 2011 judgment of contempt and commitment order,

Respondent found, among other things, that Relator failed to provide RPI with an

accounting meeting the requirements of probate code section 489B and including

the information specified in the June 16, 2011 order because his documentation

failed to identify all of RPI‘s property that had come into his possession or

knowledge and failed to specify the nature and source of a significant number of

transactions described in the documentation. With regard to the ―nature and

source‖ requirement, Respondent stated, ―Each transaction should include in the

description of the transaction, the nature and source of the transaction, or a

statement explaining in reasonable detail why the source and nature of the

transaction   cannot   be    described.‖        Respondent   stated   that   Relator‘s

documentation failed to adequately describe how RPI‘s funds and assets that

came into his possession and were commingled into his accounts either left his

accounts ―or where those funds are currently held.‖ And he stated that Relator‘s


                                           12
documentation failed to describe RPI‘s current assets known to Relator that

should, at a minimum, include the date of origination and principal and interest

due and owing on any loans or claims owing from Relator to RPI arising from the

money and property of RPI disbursed to Relator.

      In the contempt judgment, Respondent stated that Relator would be

confined in county jail until he had complied with the following orders:

         (A) provide [RPI] with an accounting meeting the requirements of
      Texas Probate Code § 489B which accounting shall include
      specifically the following:

             (1) the property belonging to [RPI] that has come to [Relator‘s]
                 knowledge or into his possession;

             (2) a complete account of receipts, disbursements, and other
                 actions of [Relator] including their source and nature, with
                 receipts of principal and income shown separately;

             (3) a listing of all property of [RPI], with an adequate
                 description of each asset and its current value if known to
                 [Relator];

             (4) the cash balance on hand in any account and the name
                 and location of the depository where said balances are
                 kept; and

             (5) all liabilities of [RPI].

      (B) deliver the accounting that Relator has been ordered to provide
         herein above to the offices of Wood, Thacker & Weatherly, P.C.
         at 400 W. Oak, Suite 310, Denton, Texas 76201.

      Relator filed a petition for writ of habeas corpus and motion for temporary

relief in this court on October 7, 2011. We denied his motion for temporary relief

on October 14, 2011. On October 17, 2011, Relator filed the reporter‘s record



                                             13
from the September 23, 2011 hearing and a second motion for temporary relief,

which we granted on October 18, 2011; we requested a response from RPI in our

order granting temporary emergency relief.

                                    III. Discussion

      In his fifth issue, Relator claims that certain provisions of the June 16, 2011

order are impossible to perform.5

      ―Texas law is clear that a petitioner may not be confined for civil contempt

unless he or she has the ability but refuses to perform the conditions for release.‖

In re Gawerc, 165 S.W.3d 314, 315 (Tex. 2005) (orig. proceeding). An order of

contempt imposing a coercive restraint is void if the condition purging the

contempt is ―impossible of performance.‖ Ex parte Rojo, 925 S.W.2d 654, 656

(Tex. 1996) (orig. proceeding) (quoting Ex parte Dustman, 538 S.W.2d 409, 410

(Tex. 1976) (orig. proceeding)). Relator bears the burden of proving his inability

to comply.     Ex parte Chambers, 898 S.W.2d 257, 261 (Tex. 1995) (orig.

proceeding).

      The record reflects that Relator gave his parents‘ financial records to his

sisters after Relator‘s father died in December 2003 and that they transferred

      5
      In his remaining issues, Relator complains that Respondent‘s September
29, 2011 order violates his constitutional right against Double Jeopardy; that he
was denied due process because the June 16, 2011 order is ambiguous and fails
to specifically set forth exactly what duties and obligations are imposed upon
him, which also makes the September 29, 2011 contempt judgment and
commitment order insufficiently specific as to notify him of what he has to do to
purge himself of contempt; and that he complied with the June 16, 2011 order.
Based on our disposition of Relator‘s fifth issue, we do not reach these issues.
See Tex. R. App. P. 47.1.

                                          14
them back to him ―some months‖ later.            In March 2011, RPI‘s counsel

acknowledged that Relator had managed RPI‘s financial affairs from 2003 until

mid-2008.

      At the September 2011 hearing, D‘Mello testified that Relator stopped

handling RPI‘s funds around April 2009 and admitted that there was probably no

way for Relator to tell anyone what RPI‘s funds currently consisted of today. She

also agreed that Relator should not be required to list RPI‘s assets and liabilities

―as of today.‖6 Relator testified that he did not know what RPI‘s current assets

were and that he turned his mother‘s assets over to his siblings at the end of

2008 or in early 2009; because he had not handled RPI‘s affairs since 2009, he

said that he could not list her current assets, debts, and liabilities. Sherman,

Relator‘s sister, testified that Relator had maintained records regarding RPI‘s

financial affairs until 2009.



      6
       D‘Mello‘s testimony as an expert witness regarding Relator‘s failure to
comply with the order also tends to show that the order is unclear. For an
underlying order to be enforceable by civil contempt, it must set forth the terms of
compliance in clear, specific, and unambiguous terms so that the person charged
with obeying the order will readily know exactly what duties and obligations are
imposed upon him. In re Tsertos, 01-11-00170-CV, 2011 WL 941571, at *1 (Tex.
App.—Houston [1st Dist.] Mar. 14, 2011, orig. proceeding) (mem. op.) (citing In
re Houston, 92 S.W.3d 870, 877 (Tex. App.—Houston [14th Dist.] 2002, orig.
proceeding)). The same specificity requirement applies to the judgment of
contempt, and it is insufficient if its interpretation requires inferences or
conclusions about which reasonable persons might differ. Houston, 92 S.W.3d
at 877 (stating that when civil contempt is imposed, the contempt order must
spell out exactly what duties and obligations are imposed and what the
contemnor can do to purge the contempt).


                                        15
      Based on the record presented by the parties, it appears impossible for

Relator to present information on the state of RPI‘s assets returned to her by him

after April 2009 at the latest because it is undisputed that he no longer had

control over the assets relinquished by him to his siblings. Because the terms of

the June 16, 2011 order did not include this limitation, we conclude that some of

portions of the June 16, 2011 order are impossible to perform, and we therefore

grant Relator‘s requested relief and order that he be discharged from custody.

See Chambers, 898 S.W.2d at 262 (granting petition for writ of habeas corpus

when relator conclusively established that he was unable to comply with the trial

court‘s order).




                                                  BOB MCCOY
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.

LIVINGSTON, C.J., filed a dissenting opinion.

WALKER, J., filed a concurring opinion.

DELIVERED: February 21, 2012




                                       16
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                                   FORT WORTH

                              NO. 02-11-00415-CV


IN RE DONALD W. DAVIS                                                  RELATOR

                                     ----------

                           ORIGINAL PROCEEDING

                                     ----------

                DISSENTING MEMORANDUM OPINION1
                                     ----------

      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); see In re Moreno, 328

S.W.3d 915, 918 (Tex. App.—Eastland 2010, orig. proceeding).

      We order a relator released from the trial court‘s commitment order only

when the order is void. Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980) (orig.

proceeding); In re Parr, 199 S.W.3d 457, 460 (Tex. App.—Houston [1st Dist.]

2006, orig. proceeding). In order to hold the trial court‘s commitment order void,

      1
       See Tex. R. App. P. 47.4.
we must conclude either that the trial court lacked jurisdiction to enforce the order

or that the trial court ―deprived the relator of his liberty without due process.‖

Barnett, 600 S.W.2d at 254 (citing Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.

1979) (orig. proceeding)).

      Because Relator has repeatedly ignored and refused to follow the trial

court‘s numerous attempts to determine the assets and transactions over which

he had control while agent over his mother‘s assets, I believe the contempt order

to be valid and would deny Relator‘s request for habeas relief.

      While the majority points out that Relator may not be able to provide the

exact current status of assets because what remained has been presumably

transferred upon his removal, any reasonable reading of the order would

necessarily be limited to the information Relator had while acting as his mother‘s

agent under a power of attorney while the assets were subject to his control.

Basically, the entire litigation in the trial court has been the Real Parties‘ attempts

to find out what Relator did with the assets, all this against the backdrop of

Relator‘s numerous admissions to his commingling in excess of $500,000 as set

forth in the majority opinion. Majority Op. at 2. Any attempt beyond Relator‘s

mere pencil markings and obfuscation could at least show an effort on his part to

comply, especially in light of the fact that Relator is a certified public accountant.

I believe the record is replete with Relator‘s admissions of misuse of the property

and his failure to comply with the trial court‘s order. The September 29, 2011

order was sufficiently specific as to what Relator was required to produce and

                                          2
necessarily limited to those transactions under his control. I would deny relief

and therefore respectfully dissent from the majority‘s opinion.




                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

DELIVERED: February 21, 2012




                                         3
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                                  FORT WORTH

                             NO. 02-11-00415-CV


IN RE DONALD W. DAVIS                                                RELATOR

                                    ----------

                          ORIGINAL PROCEEDING

                                    ----------

              CONCURRING MEMORANDUM OPINION1

                                    ----------

      To be enforceable by contempt, an order or decree must set out the terms

of compliance so specifically and unambiguously that the party knows precisely

the duties and obligations he must perform. Ex Parte Hodges, 625 S.W.2d 304,

306 (Tex. 1981) (orig. proceeding). The trial court‘s December 7, 2010 order

clarifying the accounting that Relator Donald W. Davis was ordered to provide is

not sufficiently specific to permit enforcement by contempt. See, e.g., Ex parte

MacCallum, 807 S.W.2d 729, 731 (Tex. 1991) (orig. proceeding) (holding decree

not sufficiently specific to be enforceable by contempt because it was silent

      1
      See Tex. R. App. P. 47.4.
regarding relator‘s obligation to surrender the children at any particular place‖);

Ex parte Brister, 801 S.W.2d 833, 834–35 (Tex. 1990) (orig. proceeding)

(holding provisions of divorce decree not sufficiently specific to be enforceable by

contempt); Ex parte Reese, 701 S.W.2d 840, 842 (Tex. 1986) (orig. proceeding)

(holding judgment ordering relator ―to complete‖ the streets, ―to take back‖ the

water system, to ―begin to restore it to proper condition,‖ and other similar

provisions was not sufficiently specific to be enforceable by contempt because it

failed to set forth exactly what actions relator was required to do to take); Ex

parte Glover, 701 S.W.2d 639, 640 (Tex. 1985) (orig. proceeding) (holding

judgment not sufficiently specific to be enforceable by contempt because it failed

to ―specify whether ‗interest at the rate of 10% per annum‘ means simple interest

or compound interest‖ so that relators ―could [not] ascertain the duties the

judgment required of them‖); Ex parte Slavin, 412 S.W.2d 43, 44–45 (Tex. 1967)

(orig. proceeding) (holding decree unenforceable by contempt because it failed to

spell out the details of compliance in clear, specific, and unambiguous terms so

that a person would readily know exactly what duties or obligations were

imposed upon him); In re Houston, 92 S.W.3d 870, 877 (Tex. App.—Houston

[14th Dist.] 2002, orig. proceeding) (holding injunction ―requiring relator to copy

‗all files,‘ but then ordering him to provide ‗the original policy files and their

complete contents,‘‖ required interpretation as to whether relator had to return

more than original policy files so that it was not sufficiently specific to be

enforceable by contempt); In re Marriage of Alford, 40 S.W.3d 187, 188–90 (Tex.


                                         2
App.—Texarkana 2001, no pet.) (holding decree awarding wife ―[t]he total of

200,000 miles from [relator‘s] frequent flier miles with Lufthansa‖ was not

sufficiently specific to be enforced by contempt). Here, the order requires ―an

accounting meeting the requirements of Texas Probate Code § 489B which shall

include‖ five categories of items. The order in this case does not define what

meets the requirements of Texas Probate Code section 489B or limit the required

accounting to the five categories listed in the order.       Moreover, the five

categories do not set out the terms of compliance so specifically and

unambiguously that Relator knows precisely the duties and obligations he must

perform.   Because the trial court‘s December 7, 2010 order clarifying the

accounting that Relator was ordered to provide is not sufficiently specific to

permit enforcement by contempt, I concur with the Majority Opinion‘s disposition

of granting Relator‘s petition for writ of habeas corpus and ordering him

discharged from custody.2 See, e.g., Ex parte MacCallum, 807 S.W.2d at 731

(holding order more specific than this one unenforceable by contempt); Ex parte

Brister, 801 S.W.2d at 834–35 (same); Ex parte Reese, 701 S.W.2d at 842

(same); Ex parte Glover, 701 S.W.2d at 640 (same); Ex parte Slavin, 412 S.W.2d

at 44–45 (same).

                                                  SUE WALKER
                                                  JUSTICE

DELIVERED: February 21, 2012

      2
      Based on its disposition, the Majority Opinion does not reach this issue.


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