                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-079-CV


IN RE BRIAN DURANT                                                   RELATOR

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

                            ORIGINAL PROCEEDING

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

                         MEMORANDUM OPINION 1

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

      On March 10, 2009, the trial court signed an order finding Brian Durant

in contempt of the trial court’s June 10, 2005 Agreed Final Decree of Divorce

for failing to return his daughter K.E.D. to her mother, Real Party in Interest

Jennifer Durant, at the conclusion of Brian’s court-ordered 2008 Christmas

visitation on December 26, 2008 at 12:00 p.m. Brian was ordered confined in

the Parker County Jail beginning on March 13, 2009 for ninety-six consecutive

hours of his sixty-day sentence, the remainder of which would be probated for




      1
          … See Tex. R. App. P. 47.4.
a period of five years. Also on March 10, 2009, the trial court signed an order

committing Brian to jail for a term of “four (4) days, 96 straight, continuous

hours in jail,” beginning on or before 6:00 p.m. on Friday, March 13, 2009.

      On March 12, 2009, Brian filed a petition for writ of habeas corpus

seeking release from the Parker County Jail and asking that the trial court’s

March 10, 2009 Order of Contempt and Commitment (“the contempt order”)

be declared void. After the petition was filed, this court ordered Brian released

on a $100.00 bond pending the outcome of this original proceeding.2 We grant

habeas corpus relief in part and deny it in part.

      An original habeas corpus proceeding is a collateral attack on the

contempt judgment.3 A writ of habeas corpus will issue when the relator has

not been afforded due process or when the order requiring confinement is void.4

Guilt or innocence of the relator is not an issue; the only issue concerns the

lawfulness of the relator’s imprisonment.5 If this court concludes that Brian


      2
          … See Tex. R. App. P. 52.8(b)(3).
      3
      … See Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967) (orig.
proceeding); In re Bielefeld, 143 S.W.3d 924, 927 (Tex. App.—Fort Worth
2004, orig. proceeding) (op. on reh’g).
      4
      … In re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (orig. proceeding); In
re Mann, 162 S.W.3d 429, 432 (Tex. App.—Fort Worth 2005, orig.
proceeding).
      5
          … See Henry, 154 S.W.3d at 596; Mann, 162 S.W.3d at 432.

                                        2
was deprived of his liberty without due process of law, or that the contempt

and commitment orders are void, we must order his release.6

      Brian argues that the contempt order is void and unenforceable because

it violates section 157.166 of the Texas Family Code. 7        Specifically, Brian

contends that the order fails to comply with section 157.166(b) because it does

not set forth or copy the provisions of the order for which enforcement was

sought, attach a copy of the order, or give the volume and page number of the

minutes of the order to be enforced. 8 Section 157.166(b) of the family code

provides,

            If the order imposes incarceration or a fine for criminal
      contempt, an enforcement order must contain findings identifying,
      setting out, or incorporating by reference the provisions of the
      order for which enforcement was requested and the date of each
      occasion when the respondent’s failure to comply with the order
      was found to constitute criminal contempt. 9

      The contempt order states that Brian violated the June 10, 2005 Agreed

Final Decree of Divorce by willfully and intentionally failing to return K.E.D. to




      6
       … See Henry, 154 S.W .3d at 596; Ex parte Swate, 922 S.W.2d 122,
124 (Tex. 1996) (orig. proceeding); In re Alexander, 243 S.W.3d 822, 824
(Tex. App.—San Antonio 2007, orig. proceeding).
      7
          … See Tex. Fam. Code Ann. § 157.166 (Vernon 2009).
      8
          … See id. § 157.166(b).
      9
          … Id.

                                        3
Jennifer at 12:00 p.m. on December 26, 2008, at the conclusion of his

court-ordered 2008 Christmas visitation. The contempt order also states that

he did not return K.E.D. until 7:00 p.m. on December 26, 2008. Accordingly,

the contempt order indicates that Brian violated the divorce decree provision

requiring him to return K.E.D. to Jennifer at 12:00 p.m. on December 26, 2008,

when he did not return her until approximately 7:00 p.m. on December 26,

2008.      Because the contempt order identifies the provision of the divorce

decree for which enforcement was requested and the date on which Brian’s

failure to comply with the divorce decree occurred, the contempt order

comports with the requisites of section 157.166(b).10

      Brian next argues that the contempt order is void and unenforceable

because the divorce decree which he was found to have violated is not

sufficiently specific. Specifically, Brian argues that there is a conflict between

the specific Christmas holiday possession provisions and the general Thursday

possession provisions. Brian notes that December 25, 2008 was a Thursday

and that he is entitled to Thursday night visitation ending at the time K.E.D.’s

school resumes on Friday at the school. He argues that the decree does not

specify whether the Christmas possession supersedes the Thursday overnight




      10
           … See id.

                                        4
possession and that the conflicting visitation provisions render the divorce

decree not sufficiently specific because he cannot read the decree and readily

know what he is ordered “to do or not to do.” Therefore, Brian argues, the

order is void and unenforceable.

      However, the divorce decree specifically states that conflicts between

general and specific periods of possession are resolved in favor of the specific

periods of visitation. In any event, we note that Brian failed to comply with

either provision—the specific provision requiring him to return K.E.D. at 12:00

p.m. on December 26, 2008, or the general provision requiring him to return

K.E.D. at the time her school resumed on Friday—by failing to return her until

7:00 p.m. on Friday. We therefore reject Brian’s argument.

      Brian next argues that the order is void and unenforceable because the

trial court orally rendered its decision on February 23, 2009, but did not sign

the contempt order until March 10, 2009. Brian contends that a contempt

order must be signed by a judge within a “short and reasonable time” after the

finding of contempt, and because the contempt order was not signed shortly

after the oral rendition, the order is void and unenforceable. 11 Brian’s argument

is misplaced.



      11
       … See Ex parte Cavillo Amaya, 748 S.W.2d 224, 225 (Tex. 1988) (orig.
proceeding).

                                        5
      The Amaya court held that a trial court has no authority to verbally order

a person confined for contemptuous acts committed outside the presence of

the court and, thereafter, unduly delay signing a contempt judgment and

commitment order. 12 A trial court may cause a contemnor to be detained by

the sheriff or other officer for a short and reasonable time while the judgment

of contempt and the order of commitment are being prepared for the judge’s

signature.13 Here, though, Brian was not confined on a verbal order by the trial

court; he was confined only after the trial court signed the contempt and

commitment orders. Moreover, it was Brian’s counsel who sought the delay of

incarceration during the February 23, 2009 hearing so that he could prepare

this original proceeding. Accordingly, we reject this argument.

      Brian also contends that the contempt order is void and unenforceable

because it contains civil contempt language. Specifically, the contempt order

states that Brian shall be incarcerated “until he has served the full term of this

commitment order and continuing for so long thereafter until such time as [he]

has purged himself of his contemptuous conduct by full and complete

compliance with the terms of this Order.” [Emphasis added.]



      12
           … Id. at 224.
      13
       … Id. at 225; see also Ex parte Barnett, 600 S.W.2d 252, 257 (Tex.
1980) (orig. proceeding).

                                        6
      Based on the hearing transcript, it is clear that the trial court held Brian

in criminal contempt—there is no way that Brian could purge himself of his

conduct of returning K.E.D. too late. Therefore, the civil contempt language,

italicized above, is erroneous and void. 14 If a severable portion of a contempt

or commitment order is void, an appellate court may strike the offending portion

and deny relief as to the valid portion of the order. 15 Accordingly, we strike the

challenged language. 16 That is, we delete “and continuing for so long thereafter

until such time as [he] has purged himself of his contemptuous conduct by full

and complete compliance with the terms of this Order.”            The challenged

statement shall now read,

      IT IS FURTHER ORDERED that the Clerk of this Court shall
      immediately issue this commitment order . . . , ordering said Sheriff
      . . . to arrest the Respondent and physically place Respondent in
      the Parker County Jail located in Weatherford, Parker County,
      Texas, until he has served the full term of this commitment order.




      14
           … See Henry, 154 S.W.3d at 596; Swate, 922 S.W.2d at 124.
      15
        … See Ex parte Roosth, 881 S.W.2d 300, 301 (Tex. 1994) (orig.
proceeding) (severing provision barring good behavior credit and denying relief
as to remainder of order); In re Zapata, 129 S.W.3d 775, 780 (Tex. App.—Fort
Worth 2004, orig. proceeding) (deleting findings not supported by motion); In
re Patillo, 32 S.W.3d 907, 909 (Tex. App.—Corpus Christi 2000, orig.
proceeding); In re Aarons, 10 S.W.3d 833, 834 (Tex. App.—Beaumont 2000,
orig. proceeding).
      16
           … See Roosth, 881 S.W.2d at 301.

                                        7
      Because of this disposition, we do not reach Brian’s remaining arguments

regarding this challenged statement.

      Brian also argues that the order is vague and ambiguous because it could

be read to require his incarceration until K.E.D. is eighteen years old, which

would be when he had fully complied with the divorce decree. Specifically, he

challenges the following provisions:

      IT IS ORDERED that after Respondent has served 96 consecutive
      hours of the said 60 day sentence in the Parker County Jail,
      Respondent shall then be released from jail and placed on probation
      for a period of 5 years pending Respondent’s full compliance . . .
      with EACH of the terms and conditions of this order as set out
      hereinbelow, to wit:

            1.     Respondent shall fully comply with each and every term
      of the parties’ Agreed Final Decree of Divorce signed on June 10,
      2005 together with any and all modifications of the said Agreed
      Final Decree of Divorce . . . . [Emphasis added.]

      Judgments are construed and interpreted under the same rules as other

written instruments.17   Written instruments are to be read and interpreted

reasonably.18 The “pending” phrase immediately follows and therefore modifies

“placed on probation.” “Released from jail” has no modifiers. Accordingly, we




      17
       … See Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 404–05 (Tex.
1971) (orig. proceeding).
      18
      … See Westwind Exploration, Inc. v. Homestate Sav. Ass'n, 696
S.W.2d 378, 382 (Tex. 1985).

                                       8
reject Brian’s argument that his release from jail could be conditioned on him

complying with the decree until K.E.D. reaches the age of majority.

      Brian’s complaints about the first enumerated condition of probation,

however, are another matter. To satisfy due process, a contempt order must

clearly specify the punishment imposed by the court.19 The first condition could

be read to require full satisfaction of Brian’s responsibilities under the decree

within five years, even though the child is only seven years old. Also troubling,

the condition requires obedience to all modifications to the decree without

requiring that such modifications be valid. Accordingly, we delete the condition

that “Respondent shall fully comply with each and every term of the parties’

Agreed Final Decree of Divorce signed on June 10, 2005 together with any and

all modifications of the said Agreed Final Decree of Divorce” as void.20

      Brian does not challenge the remaining conditions of probation; therefore,

we do not address them.




      19
       … Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex. 1997) (orig.
proceeding).
      20
      … See Henry, 154 S.W.3d at 596; Swate, 922 S.W.2d at 124; Roosth,
881 S.W.2d at 301.

                                       9
      We grant Brian’s requested habeas corpus relief to the extent that we

sever the void provisions as detailed above. We deny all other relief, lift our

order of March 13, 2009, and remand Brian Durant to the custody of the Parker

County Sheriff.




                                                LEE ANN DAUPHINOT
                                                JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.

DELIVERED: September 10, 2009




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