Opinion issued April 30, 2015




                                         In The

                                 Court of Appeals
                                        For The

                            First District of Texas
                              ————————————
                                 NO. 01-15-00019-CV
                              ———————————
                     IN RE CHARLES S. IUPE, JR., Relator



          Original Proceeding on Petition for Writ of Habeas Corpus



                            MEMORANDUM OPINION

      Relator, Charles S. Iupe, Jr. has filed a petition for a writ of habeas corpus,

challenging the trial court’s order holding him in criminal contempt for failure to

personally appear at an October 9, 2014 hearing before the court. In one issue,

Charles1 contends that the contempt order is void because it was issued without

notice and hearing of the alleged act of contempt. In two additional issues, Charles


1
      For clarity, we refer to the parties by their given names.
contends that the trial court violated his due process rights by (1) signing a

contempt order more than two months after the October 9, 2014 hearing and then

signing a modified contempt order, and (2) making a legally insufficient finding

that Charles was properly served with notice of the October 9, 2014 hearing. We

grant the petition for writ of habeas corpus and vacate the order of contempt.

                                    Background

      In October 2012, real party in interest, Michael J. Iupe, filed an application

for the permanent guardianship of Charles’s person and estate. Michael filed a

motion seeking an independent mental examination of Charles and, in April 2014,

filed an amended motion. Citing Texas Estates Code 1101.103 and Texas Rule of

Civil Procedure 204.1, Michael sought “a complete independent mental

examination” of Charles to determine his “capacity as to his person and estate, to

assess his care needs, to assess his judgment to medically care for himself, and his

judgment and ability to make rational financial decisions.” On May 13, 2014, the

trial court signed a second amended order appointing Dr. Priscilla Ray to perform

an independent mental examination of Charles by or before June 27, 2014, and file

a report regarding the evaluation with the trial court. The order directed Charles “to

appear for such mental examination” at or before 5:00 p.m. on June 27, 2014.

      On August 26, 2014, Michael filed his amended motion for contempt and

issuance of a show cause order. Michael asserted that Dr. Ray had not been able to

                                          2
conduct an examination of Charles and all attempts to seek his cooperation in

scheduling the mental examination had failed. Michael asked the trial court to

order Charles to appear before the court and show cause why he should not be

found in contempt for failure to comply with the order for an independent mental

examination or issue a writ of attachment “should [Charles] fail to personally

appear in Court on the show cause date . . . .”

      On September 16, 2014, the trial court signed a “Second Amended Order for

Show Cause for Contempt,” requiring Charles “to personally appear” before the

trial court at 2:30 p.m. on October 9, 2014, “to show cause, if any, why he should

not be held in contempt for failure to appear for an independent mental

examination as ordered by this Court on May 20, 2014, directing [him] to undergo

an independent mental examination to be conducted by Dr. Priscilla Ray, a board

certified psychiatrist in this state on or before June 27, 2014.” Charles was served

with a copy of the show cause order on September 26, 2014.

      The trial court held a hearing on October 9, 2014. Charles’s attorney-ad-

litem attended the hearing; however, the record reflects that Charles did not

personally appear. Dr. Ray testified that she had been appointed to examine

Charles but she had not met or heard from him and had not examined him. At the

end of the hearing, the trial court stated that the parties had “raised some issues,”




                                          3
gave them three weeks to submit briefs, and concluded that he would rule at that

time.

        On December 18, 2014, the trial court signed a judgment of contempt and

order of commitment. The trial court found:

        CHARLES S. IUPE, JR. was afforded due and proper notice of these
        proceedings; and that he was properly served noticed with the Second
        Amended Order For Show Cause For Contempt in this court on
        September 26, 2014.

              The court further finds that CHARLES S. IUPE, JR. is guilty
        of violating the court’s September 16, 2014 order in that he failed to
        personally appear in this Court on October 9th, 2014 at 2:30 p.m.

The court ordered that Charles was “in contempt of this court for the violation of

the Court’s September 16, 2014 order in the following particulars: . . . in that

CHARLES S. IUPE, JR. failed to personally appear in this Court on October 9,

2014 at 2:30 p.m.” The trial court ordered Charles confined for thirty consecutive

days and fined $500.00. On January 9, 2015, the trial court signed a “Judgment

Nunc Pro Tunc-Regarding Judgment of Contempt and Order of Commitment.”2

The trial court found:

        [T]he Second Amended Order For Show Cause For Contempt is in all
        respects proper and sufficient; that CHARLES S. IUPE, JR. was
        afforded due and proper notice of these proceedings; and that he was
        properly served noticed with the Second Amended Order For Show
        Cause For Contempt in this court on September 26, 2014.


2
        The trial court signed this order after a writ of commitment had issued and Charles
        was taken into custody.
                                             4
            The court further finds that CHARLES S. IUPE, JR. is guilty
      of violating the court’s September 16, 2014 order in that he failed to
      personally appear in this Court on October 9th, 2014 at 2:30 p.m.

The trial court ordered that:

      CHARLES S. IUPE, JR. is in contempt of this court for the violation
      of the Court’s September 16, 2014 order in the following particulars:

             CHARLES S. IUPE, JR. is guilty of violating the Court’s
      September 16, 2014 order to personally appear in this Court on
      October 9, 2014 at 2:30 p.m. in that CHARLES S. IUPE, JR. failed
      to personally appear in this Court on October 9, 2014 at 2:30 p.m.

             IT IS FURTHER ORDERED, ADJUDGED AND DECREED
      by this court that the following punishment is imposed on CHARLES
      S. IUPE[,] JR[.] for this act of contempt:

             Because on October 9, 2014 CHARLES S. IUPE JR. violated
      the Court’s September 16, 2014 order to personally appear in this
      Court on October 9, 2014 at 2:30 p.m. in that CHARLE S. IUPE JR.
      failed to personally appear in this Court on October 9, 2014 at 2:30
      p.m., CHARLES S. IUPE JR. is to be confined to the Harris County
      Jail for a period of 30 consecutive days and that CHARLES S. IUPE
      JR. shall be fined $500.00.

             IT IS FURTHUR ORDERED, ADJUDGED AND DECREED
      by this court that CHARLES S. IUPE JR. remain confined for a
      period of 30 consecutive days and that CHARLES S. IUPE JR. is
      fined $500.00 to be paid to Stan Stanart, Harris County Clerk,
      Indigent Bond Program, Registry No. 28190, at 201 Caroline, 8th
      Floor, Room 800, Houston, Texas 77002.

The trial court clerk issued a writ of commitment on December 18, 2014, and

Charles was taken into custody on January 7, 2015.




                                        5
                               Standard of Review

      Texas courts of appeals have very limited jurisdiction over habeas corpus

proceedings. See TEX. GOV’T CODE ANN. § 22.221(d) (West 2004). The purpose of

a habeas corpus proceeding is not to determine a relator’s ultimate guilt or

innocence, but to ascertain whether the relator has been unlawfully confined. Ex

parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979); In re Munks, 263 S.W.3d 270,

272 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding). A writ of habeas

corpus will issue if a trial court’s contempt order is void because the court was

without the power to issue the order or the relator was not afforded due process. In

re Henry, 154 S.W.3d 594, 596 (Tex. 2005). On review, we do not weigh the proof

and determine whether it preponderates for or against the relator; we determine

only whether the contempt order is void. Ex parte Chambers, 898 S.W.2d 257,

259–60 (Tex. 1995); see Ex parte Swate, 922 S.W.2d 122, 124 (Tex. 1996)

(contempt order is void if it deprives applicant of liberty without due process of

law). The relator has the burden to show that a contempt order is void and not

merely voidable. In re Munks, 263 S.W.3d at 272–73. Until the relator has

discharged his burden of showing his entitlement to relief, the contempt order is

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

2006, orig. proceeding).




                                         6
                                   Discussion

      By his first issue, Charles contends that the contempt order is void because

the trial court found him in contempt for failure to appear at the October 9, 2014

hearing without notice and an opportunity to be heard. Michael responds that

Charles “had been afforded notice on numerous occasions” and the amended

motion for show cause provided “notice that a writ may attach for either not

undergoing the medical examination or not appearing in court to show cause why

he should not submit to a mental examination.” Michael asserts that the contempt

order was the “least restrictive alternative” that allowed Charles “to comply by

coming forward and explaining himself rather than holding him in contempt for

not appearing for a medical examination.”

      “Contempt proceedings are quasi-criminal in nature, and the contemnor is

entitled to procedural due process throughout the proceedings.” Ex parte Davis,

305 S.W.3d 326, 330 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding)

(citing Ex parte Adell, 769 S.W.2d 521, 522 (Tex. 1989)). The amount of due

process afforded depends on the type of contempt being charged—constructive or

direct contempt. Disobedience or disrespect of a court that occurs in the court’s

presence is direct contempt. See In re Reece, 341 S.W.3d 360, 365 (Tex. 2011)

(citing Ex parte Gordon, 584 S.W.2d at 689). In a direct contempt case, the court

must have direct knowledge of the behavior constituting contempt and, in some

                                        7
instances, may conduct a summary proceeding without providing the alleged

contemnor with notice and a hearing. In re Reece, 341 S.W.3d at 365 & n.5 (citing

In re Bell, 894 S.W.2d 119, 127 (Tex. Spec. Ct. Rev. 1995)). Constructive

contempt is contempt that occurs outside of the court’s presence. Id. at 365.

Constructive contemnors are afforded more procedural safeguards, including

notice, a hearing to defend or explain the charges, and the opportunity to obtain an

attorney. See In re Krueger, No. 03-12-00838-CV, 2013 WL 2157765, at *4 (Tex.

App.—Austin May 16, 2013, orig. proceeding) (mem. op.) (citing Ex parte

Krupps, 712 S.W.2d 144, 147 (Tex. Crim. App. 1986); Ex parte Werblud, 536

S.W.2d 542, 546 (Tex. 1976) (orig. proceeding)).

      For constructive contempt, due process requires “‘full and complete

notification’ of the charges alleged with a reasonable opportunity to meet the

charges by defense or explanation.” In re Houston, 92 S.W.3d 870, 876 (Tex.

App.—Houston [14th Dist.] 2002, orig. proceeding) (quoting Ex parte Gordon,

584 S.W.2d at 688); see also Ex parte Johnson, 654 S.W.2d 415, 422 (Tex. 1983)

(holding court should not try charges of criminal constructive contempt in alleged

contemnor’s absence). “[A] constructive contemnor is always entitled to notice and

a hearing in order to defend or explain the charges.” In re Reece, 341 S.W.3d at

365 (citing Ex parte Gordon, 584 S.W.2d at 688; Ex parte Werblud, 536 S.W.2d at

546). A contempt order rendered without such adequate notification is void. Ex

                                         8
parte Adell, 769 S.W.2d at 522; see In re Houston, 92 S.W.3d at 876 (stating,

without reasonable notice of each alleged contumacious act, contempt judgment is

void).

         The contempt at issue here—a failure to personally appear at the October 9,

2014 hearing—is constructive contempt. See Ex parte Alloju, 907 S.W.2d 486, 487

(Tex. 1995) (citing Ex parte Gordon, 584 S.W.2d at 688; Ex parte Cooper, 657

S.W.2d 435, 437 (Tex. Crim. App. 1983)) (“Constructive contempt is a violation

of a court order outside the presence of the court, including failure to appear for a

hearing.”); In re Elmakiss, No. 12-10-00219-CV, 2012 WL 4497997, at *3 (Tex.

App.—Tyler Sept. 28, 2012, orig. proceeding) (mem. op.) (characterizing relator’s

failure to appear at hearing as constructive contempt). Accordingly, Charles was

entitled to notice of each act alleged to constitute contempt and “a hearing in order

to defend or explain the charges.” In re Reece, 341 S.W.3d at 365. The record does

not reflect that Charles received notice of, and had an opportunity to be heard on, a

charge of contempt for failure to attend the October 9, 2014 hearing. The alleged

act of contempt of which Charles had notice was a “failure to appear for an

independent mental examination as ordered by the Court on May 20, 2014 . . . .”

The trial court, however, did not find Charles in contempt for failure to appear for

an independent mental examination. Rather, the trial court found him in contempt

for failure to appear at the October 9, 2014 hearing.

                                          9
      Michael does not appear to dispute that a failure to appear at a hearing

constitutes constructive contempt or that notice and an opportunity to be heard

were required. He contends that his amended motion for show cause provided

notice to Charles that a writ might “attach for either not undergoing the medical

examination or not appearing in court to show cause why he should not submit to

mental examination.” However, Michael’s requested relief in his motion was not

notice of an alleged act of contempt for failure to appear at the October 9, 2014

hearing. By his motion, Michael asserted:

      If [Charles] does not appear for the Show Cause, he should be taken
      into custody pursuant to a writ of attachment, and held until such time
      as he can appear before this Court and either have Dr. Ray examine
      him in the Courtroom in an attorney conference room, or until such
      examination has been arranged and a penalty of being attached again
      is assessed as a condition of [Charles’s] release.

Michael requested issuance of a writ of attachment to compel Charles’s attendance

at a show cause hearing to have Dr. Ray examine him or “until such examination

has been arranged and a penalty of being attached again is assessed as a condition

of [Charles’s] release.” See Ex parte Johnson, 654 S.W.2d at 422 (stating

appropriate procedure when alleged contemnor fails to appear at hearing on motion

for contempt is to issue bench warrant, capias, or writ of attachment to compel

attendance); Ex parte Crawford, 684 S.W.2d 124, 127 (Tex. App.—Houston [14th

Dist.] 1984, orig. proceeding) (citing Ex parte Johnson, 654 S.W.2d at 422)

(noting trial court was correct in issuing the writs of attachment and delaying
                                        10
hearing until alleged contemnor was present). The trial court signed a show cause

order that directed Charles to appear on October 9, 2014 to show cause why he

should not be held in contempt for failure to appear for an independent mental

examination. Neither that order nor Michael’s amended motion provides notice of

an alleged act of contempt for failure to appear at the October 9, 2014 hearing.

      Michael also suggests that the contempt judgment is not void because it

“allows [Charles] to comply by coming forward and explaining himself rather than

holding him in contempt for not appearing for a medical examination.” This

assertion ignores the contempt judgment’s language, which orders Charles

confined for a period of thirty consecutive days. This order is criminal in nature in

that the sentence is not conditioned upon a promise of future performance. See In

re R.E.D., 278 S.W.3d 850, 855 (Tex. App.—Houston [1st Dist.] 2009, orig.

proceeding) (citing Ex parte Werblud, 536 S.W.2d at 545). The contempt order

does not include any provision for civil or coercive contempt by which Charles

was committed until he performed an affirmative act required by the court’s order.

See In re Mott, 137 S.W.3d 870, 874 (Tex. App.—Houston [1st Dist.] 2004, orig.

proceeding) (citing Ex parte Johns, 807 S.W.2d 768, 770 (Tex. App.—Dallas

1991, orig. proceeding)). Charles cannot purge himself of contempt and obtain his

release “by coming forward and explaining himself” as Michael contends. We

sustain Charles’s first issue.

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                                     Conclusion

      Because we sustain Charles’s first issue, we need not address his second and

third issues.3 We grant Charles’s petition for a writ of habeas corpus, and vacate

the trial court’s orders, signed on December 18, 2014, and January 9, 2015,

holding him in contempt and ordering that he be confined, and the writ of

commitment issued on December 18, 2014. We further order him discharged from

custody and released from the bond set by this Court on January 12, 2015.




                                               Russell Lloyd
                                               Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.




3
      Michael also contends that contempt must “attach for failure to appear for a
      mental examination in a guardianship proceeding.” We do not address Michael’s
      arguments because the trial court order at issue does not find Charles in contempt
      for failure to comply with the trial court’s order for an independent mental
      examination.
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