                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                               FORT WORTH

                             NO. 02-12-00129-CV


IN RE WILLIAM J. MARKS                                                RELATOR


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                           ORIGINAL PROCEEDING

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                                   OPINION

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                                I. INTRODUCTION

      This is a habeas corpus proceeding.        The primary issue before us is

whether Relator William J. Marks knowingly and intelligently waived his right to

counsel. Because we hold that the totality of circumstances demonstrates that

Marks did waive his right to counsel, we overrule Marks’s sole issue and deny his

requested relief.

                                II. BACKGROUND

      The trial court held a hearing on Real Party in Interest’s, Rebecca Blocker

(RPI), Third Amended Motion for Enforcement of Child Support on March 23,
2012. At the beginning of the hearing, the following colloquy took place between

the trial court and Marks:

      [Trial Court]: Mr. Marks, you are charged with contempt of this
      court. As such, you’re entitled to be represented by an attorney and
      if you’re too poor to afford one, a court appointed attorney will
      represent you. You’re entitled to have a record of this hearing made
      by a court reporter.

            The contempt charge against you must be proven beyond a
      reasonable doubt. You have the right to remain silent and not make
      any statements and you may not be forced to testify in this hearing if
      you do not wish to do so.

            If the written charging instrument requests that you be
      imprisoned for more than six months or requests you be fined more
      than $500.00 you have the right to a jury trial on the contempt
      charge.

             Do you understand those rights, Mr. Marks?

      [Marks]: Yes, sir.

      [Trial Court]: Do you want to waive your right to remain silent?

      [Marks]: Yes, sir.

      [Trial Court]: All right. The Court will find that Mr. Marks has been
      warned of his rights under the Fifth Amendment of the United States
      Constitution. He has voluntarily waived his right to remain silent and
      has elected to testify here today.

             You may proceed, [RPI’s attorney].

      From there, the trial court conducted the contempt hearing and found that

Marks violated the terms of a previous court order; namely, that Marks failed to

file a certificate of completion regarding parenting classes with the clerk of the

trial court by the date required under the trial court’s previous order, and that
Marks failed to timely notify RPI, the trial court, or the State Disbursement

Registry of his changed address. The trial court assessed punishment at 180

days’ confinement in the county jail for each separate violation, with the

sentences to run concurrently. This habeas followed.

                                   III. DISCUSSION

      In his sole issue, Marks argues that the trial court’s order to confine him to

jail is void because he did not knowingly and voluntarily waive his right to have

counsel present at the hearing. We disagree.

A.    Standard of Review

      Marks’s original habeas corpus proceeding in this court is a collateral

attack on the contempt order. Ex parte Dustman, 538 S.W.2d 409, 410 (Tex.

1976) (orig. proceeding). As such, Marks may be relieved of that order only if the

judgment is void. Id.; Ex parte Thetford, 369 S.W.2d 924, 925 (Tex. 1963) (orig.

proceeding).    When collaterally attacked in a habeas corpus proceeding, a

judgment is presumed valid until the relator has discharged his burden showing

otherwise. Ex parte Occhipenti, 796 S.W.2d 805, 808–09 (Tex. App.—Houston

[1st Dist.] 1990, orig. proceeding).

B.    Family Law Contempt Proceedings and the Right to Counsel

      Family law contempt proceedings are considered quasi-criminal in nature,

and their proceedings should conform as nearly as practicable to those in

criminal cases.    Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex. 1986) (orig.

proceeding); see also In re Luebe, 983 S.W.2d 889, 890 (Tex. App.—Houston
[1st Dist.] 1999, orig. proceeding) (“[C]ontempt cases are considered quasi-

criminal in nature, and their proceedings should conform as nearly as practicable

to those in criminal cases.”).     The United States Constitution’s Fourteenth

Amendment guarantee of due process incorporates the Sixth Amendment

assurance that the accused in a family law contempt proceeding has the right to

counsel if contemnor is at risk of incarceration. In re Butler, 45 S.W.3d 268, 271

(Tex. App.—Houston [1st Dist.] 2001, orig. proceeding) (citing Ridgway v. Baker,

720 F.2d 1409, 1413 (5th Cir. 1983)).

      To this end, the family code outlines the procedure to be followed in family

law enforcement proceedings.       See Tex. Fam. Code Ann. § 157.163 (West

2008). This statute requires the trial court to determine whether incarceration of

the respondent is a possible result of the enforcement proceedings and, if it is,

the trial 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.” Id. § 157.163(a), (b).     If the court

determines that the respondent will not be incarcerated as a result of the

proceedings, the court may require a respondent who is indigent to proceed

without an attorney.    Id. § 157.163(c).   Otherwise, the court shall appoint an

attorney to represent the respondent if the court determines that the respondent

is indigent. Id. § 157.163(e).

      This statute requires courts to admonish pro se litigants of their right to

counsel, regardless of whether they are indigent or not. Ex parte Acker, 949
S.W.2d 314, 316 (Tex. 1997) (orig. proceeding).        Thus, a contemnor facing

incarceration must be informed of his right to counsel and must either waive that

right or be provided with court-appointed counsel. See Argersinger v. Hamlin,

407 U.S. 25, 37, 92 S. Ct. 2006, 2012 (1972) (holding that under Sixth

Amendment, no person may be imprisoned for any offense, whether classified as

petty, misdemeanor, or felony, unless he had or waived counsel).           Section

157.163’s admonishments make an alleged contemnor aware of his right to

counsel when incarceration is a possible result of the proceedings. Presumably,

once aware of the right to counsel, the alleged contemnor can then intelligently

exercise the right or waive it. In re Henderson, No. 10-12-00005-CV, 2012 WL

638457, at *3 (Tex. App.—Waco Feb. 15, 2012, orig. proceeding) (mem. op).

      In the absence of a knowing and intelligent waiver of the right to counsel

made on the record, the order holding relator in contempt is void. See Ex parte

Gunther, 758 S.W.2d 226, 226–27 (Tex. 1988) (orig. proceeding) (granting

petition for writ of habeas corpus relief in part because absent knowing waiver of

rights, trial court was without authority to hold Gunther in contempt).         An

intelligent and voluntary waiver of the right to counsel occurs in a family law

contempt proceeding when two events occur. First, the trial court admonishes

contemnor according to section 157.163. See Tex. Fam. Code Ann. § 157.163;

see also Acker, 949 S.W.2d at 316 (holding that trial court’s failure to admonish

contemnor of her right to counsel under 157.163 rendered subsequent contempt

order void, despite the fact parties had agreed to the contempt order); In re Pass,
No. 02–05–00457–CV, 2006 WL 668744, *3 (Tex. App.—Fort Worth Mar. 16,

2006, orig. proceeding) (mem. op.) (holding that contemnor’s answer of “[s]ure”

to trial court request to proceed with contempt hearing an invalid waiver of right

to counsel because trial court had not yet admonished contemnor under

157.163). Second, the contemnor must waive those rights, and that waiver must

be made on the record. In re Leon, No. 01-04-00819-CV, 2004 WL 2306752, at

*2–3 (Tex. App.—Houston [1st Dist.] Oct. 14, 2004, orig. proceeding) (mem. op.)

(holding that relator had not waived his right to counsel because trial court held

contempt hearing in which incarceration was a possibility but denied relator’s

requests to be allowed time to retain counsel); In re Pruitt, 6 S.W.3d 363, 365 n.3

(Tex. App.—Beaumont 1999, orig. proceeding) (holding valid waiver of right to

counsel by non-indigent contemnor occurred when trial court admonished

according to 157.163, inquired whether contemnor wished to continue hearing in

order to obtain counsel, and contemnor elected to proceed).

      In this case, the trial court admonished Marks according to family code

157.163. Specifically, the trial court informed Marks that he had the right to have

counsel present and that if he could not afford one, one would be provided for

him. Marks acknowledged to the trial court that he understood these rights. The

trial court also went beyond the mandates of family code section 157.163 by

informing Marks that he had the constitutional right to remain silent and that he

did not have to testify at the hearing. Marks also acknowledged this right and

indicated that he wished to waive it. The trial court, on the record, found that
Marks had been informed of his rights and had “elected to testify here today.”

Furthermore, the record also indicates that Marks did in fact have retained

counsel regarding numerous proceedings related to RPI’s attempts to enforce

child support. Marks even discussed the trial court’s previous order that he pay

child support and acknowledged that he had not read it “[be]cause I have an

attorney.” There is also evidence presented by RPI that in relationship to the

numerous proceedings regarding this cause, Marks signed an appearance

document specifically stating, “I have been advised by the court that I have the

right to employ an attorney to represent me in this matter at this time or at a later

date.” Based on the totality of the circumstances, the record supports that Marks

knowingly and intelligently waived his right to counsel and elected to proceed

with the contempt hearing. See Pruitt, 6 S.W.3d at 365 (denying relator’s writ of

habeas corpus where trial court properly complied with the strictures of family

code 157.163). We overrule Marks’s sole issue and deny his requested relief.
                                IV. CONCLUSION

      Having overruled Marks’s sole issue, he has not shown entitlement to the

writ. Accordingly, we deny his writ for habeas corpus.




                                                  BILL MEIER
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

DELIVERED: April 19, 2012
