                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-08-221-CV


IN RE IGNACIO JACK BURCIE, JR.                                       RELATOR

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                              ORIGINAL PROCEEDING

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                          MEMORANDUM OPINION 1

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                                   I. INTRODUCTION

      This petition for writ of habeas corpus arises out of a contempt order for

failure to pay child support. The trial court found Relator Ignacio Jack Burcie,

Jr. in criminal and civil contempt for failure to pay child support.    Relator

complains, among other things, that the contempt order is void because it does

not specifically identify the dates of noncompliance, how many violations

occurred, or whether the sentences are to run concurrently or consecutively.

Because the contempt order is void, we order Relator discharged.


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          … See T EX. R. A PP. P. 47.4.
                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Relator and Real Party in Interest Christina Tornero Burcie divorced in

2004. In the divorce decree, the trial court ordered Relator to pay child support

of $865.10 on the first day of each month.

      On March 7, 2008, Ms. Burcie filed a motion for enforcement of the child

support order. In the motion, she alleged that Relator had failed to pay the full

amount of child support due on each of the payment dates “shown below.”

The motion thereafter set forth a chart indicating in columns a due date, the

amount due, the date paid, and the amount paid. The motion requested that

Relator be held in contempt for each violation alleged in her chart.

      On May 20, 2008, the trial court held a hearing on Ms. Burcie’s motion

for enforcement and found Relator in contempt. In its order holding Relator in

contempt, the trial court found, among other things, that Relator “failed to pay

child support as ordered to CHRISTINA TORNERO BURCIE through Texas Child

Support Disbursement Unit, P.O. Box 659791, San Antonio, Texas 78265-

9791 in the amounts and on the dates shown below,” after which the trial

court pasted into the order a copy of the chart from the motion for

enforcement. The order further stated that Relator was “guilty of a separate

act of contempt for each such separate failure to pay child support in the

amounts ordered” and that the punishment “for each separate violation” was

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a fine of $500.00 and confinement in the county jail for a period of thirty days

to be served on the weekends.

      On May 27, 2008, Relator filed his petition for writ of habeas corpus with

this court. The following day, we granted temporary relief and ordered Relator

discharged on a $250 bond pending our ruling on his petition.2 We requested

a response from Ms. Burcie as the real party in interest but have received none.

            III. G ENERAL L AW A PPLICABLE TO H ABEAS C ORPUS P ROCEEDINGS

      An original habeas corpus proceeding is a collateral attack on a contempt

judgment.      Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967) (orig.

proceeding); In re Nesevitch, 93 S.W.3d 510, 512 (Tex. App.—Houston [14th

Dist.] 2002, orig. proceeding). The purpose of a writ of habeas corpus is not

to determine the guilt of the contemnor but only to determine whether he was

afforded due process of law or if the order of contempt is void.             Ex parte

Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding); Nesevitch, 93

S.W.3d at 512.        A court will issue a writ of habeas corpus if the order

underlying the contempt is void, Ex parte Shaffer, 649 S.W.2d 300, 302 (Tex.

1983) (orig. proceeding), or if the contempt order itself is void. Gordon, 584

S.W.2d at 688. An order is void if it is beyond the power of the court to enter




      2
          … On May 29, 2008, Relator paid the bond.

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it, or if it deprives the relator of liberty without due process of law. Nesevitch,

93 S.W.3d at 512.

              IV. V OID C ONTEMPT O RDER; N O D UE P ROCESS OF L AW

      In his petition for writ of habeas corpus, Relator raises several complaints

attacking both the motion for enforcement and the contempt order.

Specifically, Relator complains that the order of contempt is void because it

does not identify the dates of noncompliance, how many violations occurred,

or whether the sentences run concurrently or consecutively.

      Due process requires a court, before imprisoning a person for violating an

earlier order, to sign a written judgment or order of contempt and a written

commitment order. See, e.g., Ex parte Barnett, 600 S.W.2d 252, 256 (Tex.

1980) (orig. proceeding). Section 157.166 of the Texas Family Code provides

that an enforcement order must include (1) the acts or omissions that are the

subject of the order and (2) the manner of the respondent’s noncompliance.

T EX. F AM. C ODE A NN. § 157.166(a)(2), (3) (Vernon 2002). The contempt order

must “clearly state in what respect the court’s [earlier] order has been

violated.”   Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex. 1997) (orig.

proceeding) (quoting Ex parte Proctor, 398 S.W.2d 917, 918 (Tex. 1966) (orig.

proceeding)). It follows also that, to satisfy due process, the contempt order

must clearly specify the punishment imposed by the court. Cf. T EX. F AM. C ODE

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A NN. § 157.166(a) (stating that child support enforcement order must specify

relief granted by the court); Shaklee, 939 S.W.2d at 145.

      As previously mentioned, the contempt order in this case states that

Relator “failed to pay child support as ordered to CHRISTINA TORNERO BURCIE

through Texas Child Support Disbursement Unit, P.O. Box 659791, San

Antonio, Texas 78265-9791 in the amounts and on the dates shown below,”

after which the trial court pasted into the order a copy of the chart from the

motion for enforcement. The first few lines of the almost three-page chart are

as follows:

Date Due          Amount Due              Date Paid         Amount Paid

12/01/04          $865.10
                                          12/01/04          $504.30
                                          12/10/04          $504.30
01/01/05          $865.10
                                          01/07/05          $865.10
02/01/05          $865.10
                                          02/25/05          $300.00

The order reflects that Relator timely paid some payments in full, paid more

than due on some occasions, paid less than due on some occasions, and made

multiple payments in the same month on some occasions. In total, the order

sets forth sixty-nine dates on which payments were made, despite the fact that

only forty monthly payments were due during the identified time period.

Although the order further states that Relator was “guilty of a separate act of

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contempt for each such separate failure to pay child support in the amounts

ordered” and that the punishment “for each separate violation” was a fine of

$500.00 and confinement in the county jail for a period of thirty days to be

served on the weekends, it does not specify how many separate violations

there were or whether the separate thirty-day sentences are to run concurrently

or consecutively. Consequently, the contempt order fails to meet the requisites

of section 157.166(a) and violates due process. See T EX. F AM. C ODE A NN. §

157.166(a); Shaklee, 939 S.W.2d at 145; Nesevitch, 93 S.W.3d at 512–13.

Because the order does not specify how many separate violations there were

or whether the thirty-day sentences are to run concurrently or consecutively,

a sheriff relying on the contempt order has no way to determine how long

Relator is to remain in jail. Under these circumstances, the contempt order is

void. See Shaklee, 939 S.W.2d at 145 (holding that contempt order was void

because it failed to specify how many separate violations occurred and whether

the thirty-day sentences are to run concurrently or consecutively); Nesevitch,

93 S.W.3d at 512–13 (holding contempt order void because it did not list child

support payments that relator failed to pay nor the dates he failed to make

those payments). We therefore sustain Relator’s third and fifth issues and need

not reach his remaining issues. See T EX. R. A PP. P. 47.1.




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                               V. C ONCLUSION

     Having sustained Relator’s third and fifth issues, we grant his petition for

writ of habeas corpus and order Relator released from bond and discharged

from custody.

                                                 SUE WALKER
                                                 JUSTICE

PANEL A:   CAYCE, C.J.; GARDNER and WALKER, JJ.

DELIVERED: June 30, 2008




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