Sunday, June 1, 2008

Prayer Heard - Dad's Body Ordered Released

Texas Supreme Court rediscovers its role in correcting a miscarriage of justice; grants habeas corpus on finding that father should not be jailed on criminal contempt for not paying child support for the kids while they were living with him - at least not without proper notice. And it's not even Father's Day yet. Gaudeamus igitur.

In Re Zandi, No. 07­0919 (Tex. May 30, 2008)(per curiam) (child support contempt, habeas corpus granted on due process grounds; father entitled to notice and opportunity to establish affirmative defense of offset and/or reimbursement)

“Texas courts have consistently held that alleged constructive contemnors are entitled to procedural due process protections before they may be held in contempt.” Ex parte Johnson, 654 S.W.2d 415, 420 (Tex. 1983). There is “no meaningful distinction between an individual’s rights which are at stake in a constructive criminal contempt hearing . . . and those at stake in an ordinary criminal trial where confinement is a possible penal sanction.” Id. at 421. “Due process of law requires that the constructive contemnor be given ‘full and complete notification’ and a reasonable opportunity to meet the charges by way of defense or explanation.” Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979).

A motion to revoke criminal probation “must be specific enough to give the accused notice of alleged violation of law contrary to conditions of probation.” Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977). Similarly, section 157.214 of the Family Code provides that a motion to revoke suspension of commitment for contempt for failure to pay child support must “alleg[e] specifically that certain conduct of the respondent constitutes a violation of the terms and conditions of community supervision.” In the present case, no motion was filed to revoke Zandi’s suspension of commitment.

* * *
The purpose of notice is to apprise the respondent of the allegations he faces and provide him time to prepare to respond. Because that notice was lacking in this case, the court’s order revoking suspension of commitment must be set aside. Accordingly, we grant the petition for habeas corpus, and without hearing oral argument, Tex. R. App. P. 52.8(c), order that Zandi and his bond are discharged.

IN RE REZA ZANDI; from Denton County; 2nd district (02-07-00348-CV, ___ S.W.3d ___, 10-18-07)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the petition for writ of habeas corpus is granted and relator is ordered discharged. Per Curiam Opinion

Links: Other Texas Child Support Contempt Cases Other Texas Family Law cases 2008 Texas Supreme Court Decisions with Links to Opinions

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