
Opinion issued February 5, 2009
 









In The
Court of Appeals
For The
First District of Texas



NO. 01-08-00727-CV



In re R.E.D., Relator



On Appeal from the 312th District Court
Harris County, Texas
Trial Court Cause No. 2006-41478



O P I N I O N

	In this original proceeding, relator R.E.D. seeks a writ of habeas corpus to
secure his release from a commitment order issued by the 312th Judicial District
Court of Harris County.  This commitment order arises from a motion for
enforcement filed by the real party in interest, S.C.D., relator's estranged wife, who
alleged that relator violated an agreed order that restricted both relator and S.C.D.
from selling personalty or realty in either their separate or their community estates. 
In four issues, relator argues that the trial court's commitment order is void because
(1) there is no proof that relator intentionally violated the agreed order; (2) real party
in interest's motion to enforce the agreed order is defective and failed to give him fair
notice of the charges against him; (3) the order relator is accused of violating  is
ambiguous and unclear; and (4) the trial court lacked jurisdiction to order that he be
incarcerated until he pays $367,537.00 into the registry of the court.
	We decline to issue the writ and withdraw our temporary order to stay
enforcement of the trial court's commitment order.
Background
 Relator filed an original petition for divorce against S.C.D. on July 6, 2006. 
The parties jointly filed a motion entitled "Agreed Mutual Temporary Injunctions,"
which governed the parties' financial transactions during the interval between the
initial filing and the final resolution of the divorce proceeding.  In the joint motion
on temporary injunctions, the parties agreed to the following language:
	4.3 It is ordered that Petitioner, R.E.D. and Respondent S.C.D. are enjoined
from:
	. . . . 
	k.	Selling, transferring, assigning, mortgaging, or in any other
manner alienating any of the property of Petitioner or
Respondent, whether personalty or realty, and whether separate
or community, except as specifically authorized by order of this
Court.

The trial court signed the order enforcing the parties' joint motion ("the agreed
order") on July 31, 2006.  
	On May 5, 2008, S.C.D. filed her "Third Amended Motion for Enforcement,
or in the Alternative, Motion for Clarification," alleging that relator had violated the
agreed order.  S.C.D. alleged that, on January 16, 2008, relator testified under oath
before the trial court that he had sold stock valued at $600,000 from the parties'
Ameritrade account.
	The trial court convened an enforcement hearing on July 15, 2008 to determine
whether relator had violated the agreed order.  Relator reiterated his prior testimony
that he did sell stock from the parties' Ameritrade account, and he added that he sold
the stock during the period between December 2007 and January 2008 because he
"wanted to pay debt."  However, relator disputed S.C.D.'s claim that the stock was
valued at $600,000.  He testified that he made a $200,000 payment to their children's
trust from the proceeds of the sale because he "wanted to cut the interest amount
down," although he admitted the payment was not due for another 12 months.  He
testified that he placed approximately $367,000 generated from the stock sale in a
checking account.
	Relator reiterated that he sold stock because he chose to sell the stock out of
want rather than need, and he admitted that he had no authorization from S.C.D. or
the trial court to do so.  Relator also admitted that he could have sold stock that had
already been stipulated as his separate property, but he decided to liquidate the
Ameritrade account even though its characterization as separate or community
property was in dispute. 
	Based on relator's testimony and other evidence presented at the hearing, the
trial court found that relator had violated the agreed order and signed an order that
included a written judgment of contempt.  The trial court also signed a commitment
order directing respondent, Harris County Sheriff Tommy Thomas, to take relator into
custody and to confine relator for 10 days in the Harris County Jail.  The commitment
order also directed the sheriff to confine relator beyond the 10-day sentence until
relator deposited the $367,000 generated from the stock sale into the trial court's
registry.  Relator filed a petition with this Court seeking a writ of habeas corpus along
with a motion for temporary relief. On August 28, 2008, this Court granted
temporary relief by staying the commitment order.
Standard of Review on Habeas Corpus
	Here, the agreed order relator was held in contempt for violating  was issued
pursuant to section 6.502 of the Texas Family Code.  Section 6.502 provides, in
relevant part:
Temporary Injunction and Other Temporary Orders
	  (a) While a suit for dissolution of a marriage is pending and on the motion of
a party or on the court's own motion after notice and hearing, the court may
render an appropriate order, including the granting of a temporary injunction
for the preservation of the property and protection of the parties as deemed
necessary and equitable and including an order directed to one or both parties.

	. . . .

	(7) prohibiting the parties, or either party, from spending funds beyond an
amount the court determines to be for reasonable and necessary living
expenses[.]

Tex. Fam. Code Ann. § 6.502 (Vernon 2006).  
	A trial court may enforce any temporary court order in a divorce suit by
punishing a violation with contempt.  Tex. Fam. Code Ann. § 6.506 (Vernon 2006);
see also Ex parte Butler, 523 S.W.2d 309, 311 (Tex. Civ. App.--Houston [1st Dist.]
1975, no writ) (court denied writ of habeas corpus after husband violated clearly
defined temporary trial court order and wife filed motion for contempt).  Relator is
charged with constructive contempt.  Constructive contempt, as opposed to direct
contempt, involves conduct by the relator that occurs outside the presence of the trial
court.  Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979).  Such conduct includes
the relator's failure to comply with a court order.  Id.  
	A judgment of contempt may be either civil or criminal.  Ex parte Werblud, 536
S.W.2d 542, 545 (Tex. 1976).  The purpose of civil contempt is remedial and
coercive.  Id.  A judgment of civil contempt exerts the judicial authority of the court
to persuade the contemnor to obey an order of the court when obedience will benefit
an opposing litigant.  Id.  "Imprisonment is conditional upon obedience and therefore
the civil contemnor 'carries the keys of (the) prison in (his) own pocket.'"  Id.
(quoting Shillitani v. United States, 384 U.S. 364, 368, 86 S. Ct. 1531, 1534 (1966)). 
When a relator has committed civil contempt, he may procure his release by
compliance with the provisions of the court's order.  Id. Criminal contempt, by
contrast, is punitive in nature in that the sentence is not conditioned upon a promise
of future performance; rather, the contemnor is being punished for a completed act
that affronted the dignity and authority of the court.  Werblud, 536  S.W.2d at 545
(citing Shillitani, 384 U.S. at 368, 86 S. Ct. at 1534).  Here, the judgment of contempt
entered against relator by the trial court is a judgment of both civil and criminal
contempt because it both punishes relator by ordering him confined for 10 days for
his violation of the agreed order and coerces his compliance with the agreed order by
ordering his continued confinement until he places the $367,000 received from the
stock sale into the registry of the court. 
	We issue a writ of habeas corpus to release a relator from the trial court's
commitment order only when the order is void.  Ex parte Barnett, 600 S.W.2d 252,
254 (Tex. 1980); In re Parr, 199 S.W.3d 457, 460 (Tex. App.--Houston [1st Dist.]
2006, no pet.).  In order to hold that the trial court's commitment order is void, we
must find either the trial court lacked jurisdiction to enforce the order or the trial court
"deprived relator of his liberty without due process."  Barnett, 600 S.W.2d at 255
(citing Ex parte Gordon, 584 S.W.2d 686 (Tex. 1979)).  
	To satisfy the due process requirements necessary to support a criminal
contempt conviction, there must be proof beyond a reasonable doubt that (1) the court
issued a reasonably specific order, (2) the contemnor violated the court's order, and
(3) the contemnor's violation was a willful act.  Ex parte Chambers, 898 S.W.2d 257,
259 (Tex. 1995).  We do not determine whether the relator is guilty or innocent of
contempt; our role, instead, is to determine whether the relator has been illegally
imprisoned.  Gordon, 584 S.W.2d at 688. The order is presumed to be valid until the
relator discharges his burden of proving otherwise.  In re Turner, 188 S.W.3d 284,
288 (Tex. App.--Houston [1st Dist.] 2005, orig. proceeding).  Unless the petition for
writ of habeas corpus shows that the judgment of contempt is void on its face or is so
completely without evidentiary support as to be rendered void, the petition must be
denied.  Butler, 523 S.W.2d at 311.  An appellate court lacks jurisdiction to weigh the
proof to determine whether it preponderates for or against the relator; it has
jurisdiction only to determine whether the judgment is void.  Chambers, 898 S.W.2d
at 259-60. 
Fair Notice of the Charges
 In his second issue, relator argues that S.C.D.'s motion for enforcement, upon
which the trial court's commitment order is based, is defective and does not provide
relator fair notice of the charges against him.  Relator argues that S.C.D.'s motion to
enforce merely charged relator with testifying that he sold the Ameritrade stock. 
Relator argues that S.C.D.'s motion was defective because the allegations made in the
motion to enforce neither charged him with violating the agreed order nor identified
the particular stock transactions he made. 
	Due process requires that a constructive contemnor must have full notice of any
charges against him and a reasonable opportunity to rebut those charges.  Gordon,
584 S.W.2d at 688.  The trial court must issue adequate legal process to apprise the
contemnor of the charges.  Id.; Ex parte Barlow, 899 S.W.2d 791, 795 (Tex.
App.--Houston [14th Dist. 1995, orig. proceeding).  A judgment of contempt entered
without proper notification is a nullity.  Gordon, 584 S.W.2d at 688; Barlow, 899
S.W.2d at 795.
	Here, S.C.D specifically set out, in her motion to enforce, the language from
the agreed order for mutual temporary injunctions that relator helped to prepare:
	4.3 It is ordered that Petitioner, R.E.D. and Respondent S.C.D. are enjoined
from:
	. . . . 
	k.	Selling, transferring, assigning, mortgaging, or in any other
manner alienating any of the property of Petitioner or
Respondent, whether personalty or realty, and whether separate
or community, except as specifically authorized by order of this
Court.

S.C.D. alleged in her "Third Amended Motion for Enforcement, or in the Alternative,
Motion for Clarification":
		On January 16, 2008, Petitioner R. E. D. testified before this
Court that he had sold all issues of stock with the exception of
three issues in the parties' Ameritrade account and that the sale
generated close to $600,000. 

The motion to enforce specifically alleged that relator admitted under oath that he had
sold $600,000 in stock from the parties' Ameritrade account, thus giving relator
notice of the alleged non-compliance--relator's admission that he sold personalty
from a community asset.  The motion to enforce also alleged a specific date, a specific
account, and a specific monetary sum sufficient to give relator fair notice of the
charges against him.  Because of the specificity of the allegations made, relator had
sufficient notice of the charges asserted against him.  We conclude that S.C.D.'s
motion is not defective and that it provides relator with the necessary details to give
relator fair notice.	
	Relator also had an opportunity to defend himself against the charges made
against him in the motion to enforce.  On July 15, 2008, the trial court held an
enforcement hearing on S.C.D.'s motion to enforce.  At the hearing, the following
exchange took place between relator and counsel for S.C.D.:
	[S.C.D.]:	This is the fourth hearing we've had in this matter, where
you've spoken about the $600,000 that you took out of
Ameritrade, correct?
 
	[Relator]: 	I suspect that's correct.
 
	[S.C.D.]:	Excuse me.  Why not?  Do you recall my question?
 
	[Relator]: 	Will you be kind enough to repeat it?
 
	[ S.C.D.]: 	This is at least, today, this hearing is at least the third time,
at least the third time you've testified that you withdrew
$600,000 from the Ameritrade account, correct?
 
	[Relator]: 	I believe that's correct.
 
	[ S.C.D.]:	Now the first time you testified to that was back in January
of '08, that would have been nearer in time that the
Ameritrade account was, the stocks were negotiated out of
it?
 
	[Relator]:	Yes. 

Counsel for S.C.D. began to ask relator about the location and the amount of the
remaining sums available from the Ameritrade account sales.
	[S.C.D.]:	What I think you've told me, and if I come up anywhere
wrong, stop me, I think you told us under oath more than
once, even today as a matter of fact, that you sold about
$600,000 worth of Ameritrade stock in December in '07. 
Is that what you testified to?
 
	[Relator]: 	That is a fact, yes.
 
	[ S.C.D.]: 	Okay.  I think you've testified that after looking at all of
the Frost Bank account statements from December through
April of this year, that we can, that you could only identify
$367,000 that was deposited in Frost Bank, excuse me, that
Frost Bank account, correct?
 
	[Relator]: 	Correct. 

	Based on this testimony and additional evidence presented at the hearing, the
trial court made the following finding:
	The Court, having heard the evidence and argument of counsel, and
having taken judicial notice of the Court's file, finds that R.E.D. is
guilty of contempt for willfully, intentionally and contemptuously
disobeying and violating this Court's Agreed Mutual Temporary
Injunctions issued on July 31, 2006, by selling, transferring or otherwise
alienating stocks held in the parties' Ameritrade account for the
approximate sum of $367,573 in December of 2007 and/or January of
2008, while the Agreed Mutual Temporary Injunctions were in full force
and effect. 

	In his briefing to this Court, relator does not dispute his testimony at the
hearing on January 16, 2008, in which he admitted that he sold the stock.  Relator
repeated his testimony at the enforcement hearing on July 15, 2008.  S.C.D.'s
allegation merely recalled relator's admission of this fact.  Such an allegation in the
motion to enforce is sufficient to give relator notice of a fact to which relator admitted
twice under oath.  See Ex parte Smith, 467 S.W.2d 411 (Tex. Crim. App. 1971). 
Because he twice testified that he sold stock in the parties' Ameritrade account during
the period between December 2007 and January 2008, relator had sufficient
information in the motion to identify the stock transactions in question.  
	Relator relies on Ex parte Carney to argue that S.C.D.'s motion to enforce is
so lacking in specificity as to deny relator fair notice.  See 903 S.W.2d 345, 346-47
(Tex. 1995).  Carney is inapplicable to this case.  In Carney, the relator was granted
relief after a judgment creditor's motion for contempt based on the trial court's
turnover order was found lacking "the requisite specificity" sufficient for fair notice. 
Id. at 346. In that case, the motion for contempt that charged relator with guilt did not
give relator notice of the subject matter of the motion for contempt because the
turnover order the relator was held in contempt for violating ordered the turnover of
broad categories of assets and documents without identifying any specific documents
or assets to be turned over. Id. (1)  Nor was any other information provided to the relator
at the show cause hearing.  Id.  Real party in interest in this case is not a judgment
creditor; relator is not a judgment debtor; the order violated was not a turnover order; 
and the amount of money derived from the stock sale and ordered to be placed in the
registry of the court was specifically identified and traced to relator's improper sale
of stock both in the motion to enforce and in the hearing.
	In addition to case law, relator relies on subsection 157.002(b)(2) the Texas
Family Code to argue that S.C.D. failed to meet the statutory fair notice requirements
found in the Code.  Relator cites to a section of the Texas Family Code applicable to
motions for enforcement used in suits affecting the parent-child relationship.  See
Tex. Fam. Code Ann. § 157.002(b)(2) (Vernon 2002).  Relator's reliance on
subsection 157.002(b)(2) is misplaced because this subsection governs only motion
for enforcement of child support orders.  See id.; see also id. at § 157.001 ("A motion
for enforcement as provided in this chapter may be filed to enforce a final order for
conservatorship, child support, possession of or access to a child, or other provisions
of a final order.").  
	We hold that relator had fair notice of the subject matter of the contempt
motion. 
	We overrule relator's second issue.
Clear and Unambiguous Order
 In his third issue, relator argues that the trial court's commitment order is void
because the underlying agreed order is unclear, general, ambiguous and subject to
more than one interpretation.  
	In order to support a judgment of contempt, the underlying decree must set
forth the terms of compliance in clear, specific and unambiguous terms so that the
person charged with obeying it will readily know exactly what duties and obligations
are imposed on him.  Chambers, 898 S.W.2d 257, 261.  Generally, a court order is
insufficient to support a contempt conviction only when its interpretation "requires
inferences or conclusions about which reasonable persons might differ."  Chambers,
898 S.W.2d at 260 (citing Ex parte McCallum, 807 S.W.2d 729, 730 (Tex. 1991)). 
To prevent the enforcement of a court order, the resisting party must show that the
order has a reasonable alternative construction.  Id.  The order does not have to use 
language so specific as to counter every alternative interpretation.  Id.
	Relator argues that the following two portions of the agreed order, when read
together, create such ambiguity that the trial court's commitment order is void:
	4.3 It is ordered that Petitioner, R.E.D. and Respondent, S.C.D. are enjoined
from:
	. . . . 
	k.	Selling, transferring, assigning, mortgaging, or in any other
manner alienating any of the property of Petitioner or
Respondent, whether personalty or realty, and whether separate
or community, except as specifically authorized by order of this
Court.
	. . . . 

	4.4 It is further ordered that Petitioner, R.E.D. and Respondent, S.C.D. are
authorized only as follows:
	. . . .

	d.	To engage in acts reasonable and necessary to conduct Petitioner
or Respondent's usual business and occupation.
	. . . . 	
 
Relator agrees that the plain meaning of section 4.3(k) of the agreed order permits
only the reasonable interpretation that relator was prohibited from selling the stock
in the Ameritrade account.  However, relator argues that when section 4.3(k) is read
together with section 4.4(d), the order becomes ambiguous because the trial court
failed to define "usual business and occupation." 
	The purpose of section 4.4(d) is made clear when read in context.  The
following sections comprise the entirety of section 4.4 of the agreed order:
	4.4 It is further ordered that Petitioner, R.E.D. and Respondent S.C.D. are
authorized only as follows:

	a.	To make expenditures and incur indebtedness for reasonable and
necessary living expenses for food, clothing, shelter,
transportation and medical care;
 
	b.	To make expenditures and incur indebtedness for reasonable
attorney's fees and expenses in connection with this suit;
 
	c.	To make withdrawals from accounts in financial institutions only
for the purposes authorized by the Court's Order and

	d.	To engage in acts reasonable and necessary to conduct Petitioner
or Respondent's usual business and occupation.

The purpose of section 4.4 is merely to create narrow exceptions to the prohibitions
outlined in section 4.3 of the agreed order of mutual temporary injunctions.  These
exceptions allow the parties to use funds for basic living expenditures, business
expenses, and legal help.  The exception in section 4.4(d) does not modify the
language in section 4.3.  S.C.D. correctly states that the plain meaning of section
4.3(k) could be interpreted only as a clear prohibition against selling personal
community property, including stock in the Ameritrade account.  
	Relator's own testimony established that he did not seek authorization from the
trial court to sell the stock and, in so doing, violated the court order.  He failed to
make any showing that the stock was sold in the "reasonable and necessary" conduct
of his "usual business and occupation" or to pay necessary expenses.  Rather, relator
chose to pay taxes and to make a deposit in a trust fund account that was due 12
months after relator made the deposit.  Relator testified that he sold the stock because
"he wanted to" do so, and, in so doing, he chose to liquidate an account whose
characterization as community property was disputed rather than to sell stock
stipulated to be his separate property.  
	We conclude that the trial court's commitment order is valid because the agreed
order was sufficiently unambiguous to give relator fair notice of the prohibitions and,
therefore, the trial court's commitment order is valid.
	We overrule relator's third issue.
Intentional and Willful Violation of Trial Court Order
	In his first issue, relator argues that there is no proof beyond a reasonable doubt
that he intentionally and willfully violated the agreed order and, therefore, the
commitment order is void. 
	To raise an inference that a contemnor intentionally and willfully violated a
court order, the contemnor must have notice of an unambiguous court order.  Ex parte
Chambers, 898 S.W.2d at 261.  Here, relator had notice of the "Agreed Mutual
Temporary Injunction" because relator participated in the formation of the agreed
order.  Paragraph 4.3 of the agreed order unambiguously prohibited relator from
selling or transferring any property, whether personalty or realty, separate or
community, "except as specifically authorized by order of this Court."  Relator's
attorney signed the agreed order, approving it on relator's behalf as to form and
substance.  Relator testified he "knew all about" the language and rights set forth in
the agreed order and that he knew an injunction against his actions was in place when
he sold the stock.  The trial court could have found beyond a reasonable doubt that
relator intentionally and willfully violated the trial court's order.  
	We overrule relator's first issue.
Incarceration for a Debt
	In his fourth issue, relator argues that the trial court's commitment order is void
because the trial court lacked jurisdiction to impose incarceration for a debt
obligation.  Relator argues that the trial court's order that he pay $367,000 into the
court registry is unconstitutional because the order creates a debt and also directs
respondent to confined relator for failure to comply with the trial court's order.  See
Tex. Const. art. I, § 18 (providing, "[N]o person shall ever be imprisoned for debt").
	A district court possesses broad powers under the Family Code to "order a
division of the estate of the parties in a manner that the court deems just and right."
See Ex parte Preston, 162 Tex. 379, 382-83, 347 S.W.2d 938, 940 (1961); see also
Tex. Fam. Code Ann. §§ 7.001, 7.002 (Vernon 2008).  The district court cannot
order and bring about a division of the community estate unless the estate is first
subjected to the court's control.  Preston, 347 S.W.2d at 940.  A party who has the
right of control and disposition of the community estate and who reduces a part of
that estate to cash is not a debtor of the other party, but rather he is constructively a
trustee in holding the community assets and may be compelled to account for the
disposition of those assets by the court.  See id.  There is no question about the right
of the trial court to hold a trustee in contempt of court for willfully refusing to obey
an order to pay over funds held in his hands into the registry of the court in such a
case.  See id. at 940-41.  
	Relator relies on In re Nunu to support his argument that a trial court cannot
incarcerate a contemnor for a debt, even if the debt arises from the trial court's
contempt judgment.  See 960 S.W.2d 649 (Tex. 1997).  Nunu is distinguishable from
this case.  In Nunu, the trial court's commitment order ordered the relator imprisoned
until he paid an adjudicated debt for damages reimbursing a homeowner's association
for expenses incurred because of the relator's conduct.  Id. at 649--50.
	Here, the trial court's commitment order does not punish relator for failure to
pay a damages award but for violation of an injunction in the agreed order, issued
pursuant to section 6.502 (a)(7) of the Texas Family Code  for "the preservation of
the property and protection of the parties."  See Tex. Fam. Code Ann. § 6.502(a)(7)
(Vernon 2006).  A trial court in a divorce proceeding may exercise both criminal and
civil contempt powers to enforce its orders when a contempt proceeding is instituted
after its jurisdiction has attached.  See Werblud, 536 S.W.2d at 546-47. (2)  The trial
court's civil commitment order orders relator to place the $367,000 from the stock
sale into the court's registry, and it orders him to be confined in the Harris County Jail
for 10 days as punishment for his violation of the order and to be further confined
until he has placed the money into the registry of the court to coerce his compliance
with the order.  The trial court had the power too punish the violation of the agreed
order, and it had the power to coerce relator's compliance with its order to place the
$367,000 realized from the improper stock sale into the registry of the court.  Relator
"carries the keys of (the) prison in (his) own pocket." Werblud, 536 S.W.2d at 545. 
The trial court had jurisdiction to issue the commitment order.
	We overrule appellant's fourth issue. 
Conclusion	We decline to issue a writ of habeas corpus and withdraw our August 28, 2008
temporary stay of the trial court's order of commitment. 




						Evelyn V. Keyes
						Justice	

Panel consists of Justices Taft, Keyes, and Alcala.
1. 	The turnover order directed the relator to turn over to the judgment creditor "his share
of stock or beneficial interests 'together with all documents or records related to
same,' in seven corporations owned or controlled by [the realtor], including [his] law
practice; any non-exempt partnership distributions; all non-exempt funds in every
account or certificate of deposit in which [he] has an interest; all non-exempt income
distributions due to [him] from all businesses [he] operates or in which he has any
involvement; and all cash on hand."  Ex parte Carney, 903 S.W.2d 345, 346 (Tex.
1995).  .
2.  	"Cases of criminal contempt, where the sentence actually imposed does not exceed
months imprisonment are exempted from the requirements of a jury trial."  Ex parte
Werblud, 536 S.W.2d 542, 547 (Tex. 1976).  Relator's 10-day criminal punishment
for contempt does not invoke the constitutional right to a jury. 

