Opinion issued April 16, 2015




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-15-00218-CV
                            ———————————
                         IN RE TRACY GIBBS, Relator



          Original Proceeding on Petition for Writ of Habeas Corpus


                          MEMORANDUM OPINION

      Relator, Tracy Gibbs, petitions this Court for habeas corpus relief. * Because

we were of the tentative opinion that Gibbs was entitled to relief, we ordered him

released upon his executing a bond, pending our final determination of the petition,

and we ordered the real party in interest, Rhonda Kay Pogue, to file a response by

March 24, 2015. Pogue filed her response on March 24, 2015. We grant relief.
*
      The underlying case is In the Interest of [C.M.G.], cause number 2001-25797,
      pending in the 257th District Court of Harris County, Texas, the Hon. Judy Warne
      presiding.
                                   Background

      On November 28, 2005, the trial court held Gibbs in contempt for failing to

make child support payments to Pogue. The trial court sentenced Gibbs to a total

of 180 days’ confinement in jail as punitive incarceration for criminal contempt,

but the trial court suspended the imposition of that sentence on specified terms and

conditions.

      On December 18, 2006, the trial court found that Gibbs violated the terms

and conditions of his suspended sentence, revoked the suspension of his

commitment, and ordered him committed to the county jail.

      The trial court, however, once again suspended the imposition of Gibbs’

sentence on March 30, 2007. And, on May 7, 2008, the trial court issued an

“Amended Agreed Order Revoking Commitment and Amended Order for Payment

of Previous Judgment for Child Support Arrearages and Order to Appear,” finding

that Gibbs had served 39 days of his sentence and suspending imposition of the

remainder of the sentence conditioned on Gibbs’ compliance with specified terms

and conditions.

      On May 14, 2014, the trial court, for the second time, revoked the

suspension of Gibbs’ sentence and committed Gibbs to the county jail to serve his

180-day sentence for criminal contempt. Further, as a civil-coercive-contempt

measure, the trial court ordered that after Gibbs had served the punitive-contempt



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sentence, he remain in jail until he paid $25,788.21 towards his child support

arrearage, $1,500 in attorney’s fees, and $63 in court costs, for a total of

$27,351.21.

      Gibbs’ confinement started on May 14, 2014. By October 2, 2014, he had

served the equivalent of the remainder of his 180-day criminal-contempt sentence.

Thus, from October 2, 2014, through March 11, 2015, when he posted the bond

authorized in our prior order, Gibbs was incarcerated pursuant to the civil-

coercive-contempt provision of the May 14, 2014 order.

                                     Analysis

      In his sole issue, Gibbs contends that the trial court’s order committing him

to jail as a civil-coercive-contempt provision is void because he is financially

unable to perform the condition of paying $27,351.21 to purge his contempt. In a

March 4, 2015 affidavit attached to his petition, Gibbs asserts that he does not have

the financial resources to satisfy the civil-coercive-contempt provision assessed

against him; that because of his incarceration he is unemployed and receives no

income from any business; that he receives no rent payments, interest, or dividend

income; that he has no inheritance; that he has no tax refund; that he receives no

money from governmental agencies; that he has no pension, retirement, or annuity

accounts; that no person owes him money and he is indebted to friends; that he has

no property he could sell or mortgage; that his vehicle has been repossessed; that



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he was evicted from his residence; that his personal possessions are worth only a

few hundred dollars if he were able to sell them; that he has no equipment, tools, or

firearms he could sell; that he has no stocks or securities; that he is not able to

borrow money from friends or from any lending institutions; that he knows of no

source from which he could obtain the funds to purge his civil contempt; and that

his friend has paid his legal fees but cannot loan him the money to purge his civil

contempt.

      Pogue’s response asserts that Gibbs “must establish impossibility of

compliance with release provisions under civil or coercive contempt at the time of

the commitment order.” Pogue further asserts that the trial court held two hearings

on two “Motion[s] for Jail Review and Early Release,” that the trial court denied

the first motion on October 7, 2014, and denied the second motion on January 8,

2015, and that Gibbs failed to provide records of those hearings to this Court when

he filed his petition for writ of habeas corpus. Pogue neither addresses Gibbs’

current ability to purge the trial court’s civil-coercive-contempt order nor

controverts the assertions in Gibbs’ March 4, 2015 affidavit.

      “An order of contempt imposing a coercive restraint is void if the condition

for purging the contempt is impossible of performance.” Ex parte Dustman, 538

S.W.2d 409, 410 (Tex. 1976) (orig. proceeding). Therefore, unless a relator has

the means by which he may purge himself of contempt, he must be discharged



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from jail. See id. Further, because “keeping a person until he performs an act,

which is beyond his power to perform, is no more acceptable when the inability

arises after he is imprisoned than it would be if the inability existed at the time the

imprisonment began,” a showing of a relator’s present inability to pay renders a

trial court order imposing a coercive restraint void.       Ex parte Garrison, 853

S.W.2d 784, 785 (Tex. App.—Houston [1st Dist.] 1993, orig. proceeding).

      Here, Gibbs has filed an uncontroverted affidavit establishing his present

inability to purge the civil contempt provision imposed by the trial court’s May 14,

2014 order, and the affidavit is corroborated by Gibbs’ 160 days of incarceration

under the civil portion of the contempt order, after completing the criminal portion

of his contempt sanctions. See Ex parte Dustman, 538 S.W.2d at 410; In re

Kaptain, No. 01-04-00001-CV, 2004 WL 213492, at *2 (Tex. App.—Houston [1st

Dist.] Feb. 5, 2004, orig. proceeding) (mem. op.); In re Beckham, No. 01-00-

00058-CV, 2000 WL 232918, at *3 (Tex. App.—Houston [1st Dist.] Feb. 24,

2000, orig. proceeding) (not designated for publication); Ex parte Garrison, 853

S.W.2d at 787–88.      And Pogue’s argument that Gibbs failed to provide the

statements of facts from the hearings held on October 7, 2014, and January 8,

2015, is without merit; although evidence of Gibbs’ inability to pay in October

2014 and January 2015 may be relevant, it “is not necessary to show his present,

uncontested inability to pay.” Ex parte Garrison, 853 S.W.2d at 787. Therefore,



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we conclude that Gibbs is currently unable to perform the condition of paying

$27,351.21 specified by the trial court for him to secure his release. See In re

Kaptain, 2004 WL 213492, at *2.

                                    Conclusion

      Accordingly, we hold the portion of the May 14, 2014 order committing

Gibbs to the county jail until the $27,351.21 is paid to be void and order the Sheriff

to unconditionally release Gibbs from confinement. See Ex parte Dustman, 538

S.W.2d at 410; In re Kaptain, 2004 WL 213492, at *2; In re Beckham, 2000 WL

232918, at *3–4; Ex parte Garrison, 853 S.W.2d at 788. This, of course, does not

relieve Gibbs of his obligation to pay the child support arrearage, attorney’s fees,

and court costs.




                                              Sherry Radack
                                              Chief Justice

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




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