Opinion issued May 30, 2019




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-19-00155-CV
                            ———————————
                       IN RE LAMONICA FOX, Relator



          Original Proceeding on Petition for Writ of Habeas Corpus


                          MEMORANDUM OPINION

      Relator Lamonica Fox has filed a petition for writ of habeas corpus, raising

four issues.1 Fox also filed a motion for emergency relief. On March 20, 2019, we

granted the emergency motion and set bail at $1,000.00. We directed real parties in




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      The underlying case is In the Interest of H.S.F. and T.E.F., cause number 2013-
      55225, pending in the 247th District Court of Harris County, Texas, the Honorable
      Janice Berg presiding.
interest to file a response by April 3, but no response has been filed. We grant the

petition.

      The underlying case is a contempt proceeding for nonpayment of child and

medical support. The trial court signed an order of contempt on August 16, 2017 and

placed relator on community supervision. A second amended motion to revoke

suspension of commitment was filed and a revocation hearing was held on February

20, 2019. Community supervision was revoked by order granting real party’s motion

on February 21, 2019.

      A commitment order is subject to collateral attack in a habeas corpus

proceeding. See In re Henry, 154 S.W.3d 594, 596 (Tex. 2005). The writ shall issue

“if the trial court’s contempt order is void, either because it is beyond the court’s

power or because the relator has not been afforded due process.” Id. In four issues,

Fox contends that the trial court deprived her of liberty without due process and the

commitment order is void.

      In her first issue, Fox complains that the trial court’s order is void because she

was deprived of due process when she appeared at the hearing pro se and was not

admonished of her right to counsel. The hearing record does not indicate that the

trial court admonished Fox of her right to counsel. Although the trial court addressed

Fox’s claim that she was indigent and could not afford an attorney, the trial court

heard Fox’s testimony and determined that Fox was not indigent. Fox asked if she


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could have additional time to try to obtain funds to hire an attorney, but the trial

court denied this request and proceeded with the revocation hearing.

      The Fourteenth Amendment guarantee of due process incorporates the Sixth

Amendment right to counsel in a criminal prosecution. See In re Leon, No. 01–04–

00819–CV, 2004 WL 2306752, at * 2 (Tex. App.—Houston [1st Dist.] Oct. 14,

2004, orig. proceeding). This right extends to cases in which the party may be

deprived of liberty if she loses. See id.

      Section 157.163 of the Texas Family Code requires the trial court when

hearing a motion for enforcement or a motion to revoke community service to first

determine if incarceration may result and, if so, the court “shall inform a respondent

not represented by an attorney of the right to be represented by an attorney and, if

the respondent is indigent, of the right to the appointment of an attorney.” TEX. FAM.

CODE § 157.163(b). Thus, the trial court must admonish a respondent of the right to

counsel whether he or she is indigent or not. See Ex parte Acker, 949 S.W.2d 314,

316 (Tex. 1997). And if the respondent is facing incarceration, the trial court must

either provide court-appointed counsel or obtain a waiver of the right to counsel. See

In re Marks, 365 S.W.3d 843, 845 (Tex. App.—Fort Worth 2012, orig. proceeding)

(citing to Argersinger v. Hamlin, 407 U.S. 25 (1972)).

      Here, the trial court determined that Fox was not indigent and thus not entitled

to appointed counsel, but the trial court denied Fox’s request for time to obtain


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retained counsel. The record does not show that Fox waived her right to counsel.

The trial court’s denial of Fox’s request for time to retain counsel violated her Sixth

Amendment right to counsel. See Leon, 2004 WL 2306752, at *3.

      Because the trial court violated Fox’s right to counsel and deprived her of

liberty without due process of law, the February 21, 2019 order revoking suspension

of commitment and committing Fox to county jail is void. Because our resolution of

this issue is dispositive, we need not address her other issues.

      We grant the petition and order Fox discharged from the custody of the Harris

County Sheriff and released from the bond she posted until our final determination

of her petition.

                                   PER CURIAM
Panel consists of Justices Lloyd, Kelly, and Hightower.




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