The Texas high court today upped its opinion production tally for the current Fiscal Year with five more per curiam opinions. This latest installment of per curiams should give the bean-counters pause. All five petitions involved the same legal issue. All five appeals were disposed of with one-liner opinions. Unlike previous cases involving the same issue, they were not consolidated. Should they be counted as five opinions, as one, or as no opinion at all? If anything, the lesson the Court illustrates today is that mere statistics are sometimes meaningless. What matters is substance, of which there is precious little in evidence here.
In today's five identical per curiam "opinions," the Supremes essentially tell us that they decided not to decide an important issue of constitutional dimensions: whether the procedural limitations on the right to appeal the termination of parental rights in Texas passes constitutional muster. The relevant provision in the Texas Family Code requires that the parent whose rights have been terminated file, within 15 days of the judgment, a statement of points he or she intends to raise on appeal. Failure to do so precludes appellate review, according to the plain words of the statute governing appeals from orders terminating the parent-child relationship. Tex. Fam. Code § 263.405(i).
In Interest of SKA, MA, and SA,
No. 07-1045 (Tex. July 25, 2008)(per curiam)(requirement that respondent in parental rights termination case file statement of points to be raised on appeal within 15 days after judgment to preserve right to pursue appeal)
IN THE INTEREST OF S.K.A., M.A. AND S.A., CHILDREN; from Gregg County; 6th district (06-07-00003-CV, 236 SW3d 875, 10-17-07) 2 petitions
FULL TEXT OF PER CURIAM OPINION (case style omitted)
The petition for review is denied. In denying the petition, we neither approve nor disapprove the holding of the court of appeals regarding the constitutionality of Texas Family Code section 263.405(i).
OPINION DELIVERED: July 25, 2008
Opinion below: In the Interest of S.K.A., M.A., and S.A., Minor Children (Tex.App.- Texarkana, October 17, 2007
Holding of the Court of Appeals: We find subsection (i)'s procedural bar to review unconstitutional as applied to an indigent parent, who after proper request, was not provided appointed counsel during the critical period before the deadline established in subsection (b). Therefore, we have addressed issues raised in the points of appeal filed immediately after counsel was appointed. On reaching the issues raised on appeal as presented in the statement of points, we overrule each of the points of error.
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COMPANION CASES
In Interest of KW and MA, No. 08-0254 (Tex. July 25, 2008) (per curiam) IN THE INTEREST OF K.W. & M.A., CHILDREN; from Tarrant County; 2nd district (02-06-00461-CV, ___ SW3d ___, 02-28-08)
Opinion below: In the Interest of K.W., No. 02-06-00461-CV (Tex.App.- Fort Worth, Feb. 28, 2008)(mem. op.)
Holding of the Court of Appeals: In her first issue, Natasha argues that section 263.405(i) violates the separation of powers doctrine and the Due Process Clause. In a recent en banc decision, this court held that section 263.405(i) is void as a violation of the separation of powers provision of the Texas constitution. See In re D.W., No. 02-06-00191-CV, 2007 WL 467328, at *12 (Tex. App.- Fort Worth Feb. 19, 2008, no pet. h.). We therefore sustain Natasha's first issue.[5] * * *Having sustained Natasha's first issue, but having overruled her second through fourth issues and not reaching her fifth issue, we affirm the trial court's order terminating her parental rights to K.W. and M.A.
In Interest of DW, TW, and SG, No. 08-0258 (Tex. July 25, 2008)(per curiam) IN THE INTEREST OF D.W., T.W. AND S.G., CHILDREN; from Tarrant County; 2nd district (02-06-00191-CV, 249 SW3d 625, 02-19-08) Per Curiam Opinion
In Interest of JJ, No. 08-0299 (Tex. July 25, 2008)(per curiam)
IN THE INTEREST OF J.J., A CHILD; from Tarrant County; 2nd district (02-06-00333-CV, ___ SW3d ___, 03-06-08) 2 petitions
Per Curiam Opinion
In Interest of DF, No. 08-0378 (Tex. 25, 2008)(per curiam)
IN THE INTEREST OF D.F., A CHILD; from Tarrant County; 2nd district (02-07-00056-CV, ___ SW3d ___, 03-27-08)
Per Curiam Opinion
Showing posts with label family law cases. Show all posts
Showing posts with label family law cases. Show all posts
Friday, July 25, 2008
Friday, June 27, 2008
Void TRO against OAG set aside by mandamus
Texas Supreme Court Court vacates trial court orders against Office of Attorney General in Dallas child support collection dispute; says the orders were procedurally defective.
In re OAG,
No. 08-0165 (Tex. 2008) (per curiam) (temporary restraining order TRO declared void and set aside by mandamus)
IN RE OFFICE OF THE ATTORNEY GENERAL; from Dallas County; 5th district (05-08-00208-CV, ___
SW3d ___, 02-28-08)
stay order issued February 29, 2008, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court
conditionally grants the petition for writ of mandamus.
Per Curiam Opinion [ pdf ]
Texas Rules of Civil Procedure 680 and 684 require a trial court issuing a temporary restraining order to: (1) state why the order was granted without notice if it is granted ex parte, Tex. R. Civ. P. 680; (2) state the reasons for the issuance of the order by defining the injury and describing why it is irreparable, id.; (3) state the date the order expires and set a hearing on a temporary injunction, id.; and (4) set a bond, Tex. R. Civ. P. 684.
Orders that fail to fulfill these requirements are void. Interfirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986); Lancaster v. Lancaster , 291 S.W.2d 303, 308 (Tex.
The temporary restraining order and amended orders issued by the trial court violate these rules. The original and first amended orders were granted ex parte but fail to explain why they were granted without notice, see Tex. R. Civ. P. 680; they do not define the injury they were designed to prevent or explain why such injury would be irreparable, see id.; and they were issued without meeting the bond requirement, see Tex. R. Civ. P. 684.
The second amended order purports to carry forth the original temporary restraining order as a temporary injunction, but the trial court issued it without a hearing; thus, it is not properly considered a temporary injunction but, rather, a continuation of the temporary restraining order. See Tex. R. Civ. P. 680; Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex.
Because temporary restraining orders are not appealable, the Attorney General has no remedy by appeal. In reTex. Natural Res. Conservation Comm’n, 85 S.W.3d 201, 205 (Tex. 2002); In re Newton , 146 S.W.3d 648, 652–53 (Tex. Texas
Given the unavailability of appeal and the gravity of interests at issue in this case, we accordingly—without hearing oral argument, pursuant to Texas Rule of Appellate Procedure 52.8(c)—conditionally grant relief and direct the court to withdraw all three of its temporary orders. We are confident that the trial court will comply, and the writ will issue only if the trial court fails to do so.
Links: Other OAG child support enforcement cases | Family law decisions of the Texas Supreme Court |
Other Mandamus Opinions of the Texas Supreme Court |
In re OAG,
No. 08-0165 (Tex. 2008) (per curiam) (temporary restraining order TRO declared void and set aside by mandamus)
IN RE OFFICE OF THE ATTORNEY GENERAL; from Dallas County; 5th district (05-08-00208-CV, ___
SW3d ___, 02-28-08)
stay order issued February 29, 2008, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court
conditionally grants the petition for writ of mandamus.
Per Curiam Opinion [ pdf ]
Texas Rules of Civil Procedure 680 and 684 require a trial court issuing a temporary restraining order to: (1) state why the order was granted without notice if it is granted ex parte, Tex. R. Civ. P. 680; (2) state the reasons for the issuance of the order by defining the injury and describing why it is irreparable, id.; (3) state the date the order expires and set a hearing on a temporary injunction, id.; and (4) set a bond, Tex. R. Civ. P. 684.
Orders that fail to fulfill these requirements are void. Interfirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (
The temporary restraining order and amended orders issued by the trial court violate these rules. The original and first amended orders were granted ex parte but fail to explain why they were granted without notice, see Tex. R. Civ. P. 680; they do not define the injury they were designed to prevent or explain why such injury would be irreparable, see id.; and they were issued without meeting the bond requirement, see Tex. R. Civ. P. 684.
The second amended order purports to carry forth the original temporary restraining order as a temporary injunction, but the trial court issued it without a hearing; thus, it is not properly considered a temporary injunction but, rather, a continuation of the temporary restraining order. See Tex. R. Civ. P. 680; Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (
Because temporary restraining orders are not appealable, the Attorney General has no remedy by appeal. In re
Given the unavailability of appeal and the gravity of interests at issue in this case, we accordingly—without hearing oral argument, pursuant to Texas Rule of Appellate Procedure 52.8(c)—conditionally grant relief and direct the court to withdraw all three of its temporary orders. We are confident that the trial court will comply, and the writ will issue only if the trial court fails to do so.
Links: Other OAG child support enforcement cases | Family law decisions of the Texas Supreme Court |
Other Mandamus Opinions of the Texas Supreme Court |
GRANDPARENT RIGHTS UNDER SCRUTINY: Visitation Order Set Aside by Supreme Court Mandamus
Texas High Court says natural mother was improperly denied opportunity to contest temporary visitation rights for paternal grandparents in an evidentiary hearing. Court grants mandamus relief to throw out interim SAPCR order, citing earlier cases affirming principle that the rights of natural parents trump those of nonparents unless grave circumstances rebut the presumption favoring parents.
In Re Chambless,
No. 07-0767 (Tex. 2008) (per curiam) (orig. proc.) (family law, grandparent visitation suit)(mandamus granted) (parental presumption, preference for natural parent as child's custodian)
IN RE STACY D. CHAMBLESS; from Tarrant County; 2nd district (02-07-00291-CV, ___ SW3d ___, 08-23-07) stay order issued October 24, 2007, lifted Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.
“Possession of or access to a child by a grandparent is governed by the standards established by Chapter 153 [of the Texas Family Code].” Tex. Fam. Code § 102.004(c). A grandparent seeking court-ordered visitation must “overcome[] the presumption that a parent acts in the best interest of the . . . child by proving by a preponderance of the evidence that denial of possession of or access . . . would significantly impair the child’s physical health or emotional well-being.” Id. § 153.433(2).
A trial court abuses its discretion when it grants access to a grandparent who has not met this standard. In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (per curiam).
Stacy complains that the trial court abused its discretion in awarding the paternal grandparents temporary visitation without affording her an opportunity to be heard. She further argues this temporary visitation order violates her fundamental right as a parent. Parents enjoy a fundamental right to make decisions concerning “the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion). This “natural right which exists between parents and their children is one of constitutional dimensions,” Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 622 (Tex. 2004) (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)), and is “far more precious than any property right,” In the Interest of M.S., 115 S.W.3d 534, 547 (Tex. 2003) (quoting Santosky v. Kramer, 455 U.S. 745, 758-59 (1982)).
“So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family.” In re Mays-Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (per curiam) (quoting Troxel, 530 U.S. at 68). The State “[cannot] infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a better decision could be made.” Derzapf, 219 S.W.3d at 333 (quoting Troxel, 530 U.S. at 68).Here, the paternal grandparents concede Stacy is a fit parent and acknowledge Stacy would likely talk to J.A.C. about his father. Stacy also argues that if given the opportunity, she would present evidence that denying the grandparents visitation is in her child’s best interest. A parent must be given a meaningful opportunity to be heard before a trial court awards temporary grandparental visitation. Cf. In the Interest of J.W.T., 872 S.W.2d 189, 198 (Tex. 1994) (Hecht, J., concurring) (noting “that in a free society the State cannot deny a [parent] all right to his child without due process”); see also Stanley v. Illinois, 405 U.S. 645, 651 (1972) (finding that a parent’s right to “the companionship, care, custody, and management of his or her children” is an important constitutional interest that “undeniably warrants deference and, absent a powerful countervailing interest, protection”). Thus, the trial court abused its discretion in awarding the paternal grandparents temporary visitation with J.A.C. without affording Stacy a meaningful opportunity to be heard.
Without hearing oral argument, we conditionally grant mandamus relief and direct the trial court to vacate its August 14, 2007 temporary order granting grandparental visitation. Tex. R. App. P. 52.8(c). We are confident the trial court will promptly comply; our writ will issue only if it does not.
Links: Grandparent and nonparent child custody suits and intervention in Texas Other Family Law Rulings from the Texas Supreme Court
For grandparents rights cases in the Texas Courts of Appeals (most of which not reviewed by the state Supreme Court, see Texas Grandparents Rights TX (Case Law Blog of Grandparent custody, access, visitation)
Sunday, June 1, 2008
Family Reunification Week at the Texas Supreme Court
FLDS-YFZ kids to be released by CPS and returned to their Moms; Dad held in contempt without notice of charges returned to his kids. (In more mundane appellate litigation news from the capitol, Justice Medina writes opinion on district's authority to regulate extraction and use of ground-water).
Guitar Holding Co. LP vs. Hudspeth County Underground Water Conservation District, No. 06-0904 (Tex. May 30, 2008)
(Justice Medina) (water rights) (13 page opinion in pdf)
GUITAR HOLDING COMPANY, L.P. v. HUDSPETH COUNTY UNDERGROUND WATER CONSERVATION DISTRICT NO. 1, ET AL.; from Hudspeth County; 8th district (08-04-00296-CV and 08-05-00115-CV, 209 S.W.3d 172, 08-31-06)
The Court reverses the court of appeals' judgment and renders judgment.
Justice David Medina authored the opinion of the Court.
Supreme Court grants habeas corpus relief in criminal child support contempt case on due process grounds
In Re Zandi, No. 070919 (Tex. May 30, 2008)(per curiam)
(child support contempt, habeas corpus granted, due process)
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
Opinions released May 29, 2008
Supreme Court agrees with Third Court of Appeals to undo CPS anti-polygamy "class-action" against FLDS parents and kids, at least with respect to emergency foster care resulting from the child snatching raid. High Court approves decision of the Austin court of appeals to return the children to their mothers, stating that trial court judge may impose other, less drastic restrictions - if warranted - while the case remains pending. Supreme Court, too, issues its opinion per curiam, but not unanimously.
In re TDFPS (CPS), No. 08-0391 (Tex. May 29, 2008)(per curiam)
(CPS case against FLDS sect, Texas Supreme Court family law decisions)
IN RE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES; from Schleicher County; 3rd district (03-08-00235-CV, ___ S.W.3d ___, 05-22-08) motion for emergency relief denied Per Curiam Opinion
Justice O'Neill delivered an opinion concurring in part and dissenting in part, in which Justice Johnson and Justice Willett joined.
In re Texas DFPS (CPS), No. 08-0403 (Tex. May 29, 2008)(per curiam) (CPS mass custody case) (companion case)
IN RE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES; from Schleicher County; 3rd district (03-08-00298-CV, ___ S.W.3d ___, 05-22-08)motion for emergency relief deniedmotion to exceed page limit granted
Per Curiam Opinion
Justice O'Neill, joined by Justice Johnson and Justice Willett, concurring in part and dissenting in part for the reasons explained in Justice O'Neill's separate opinion in No. 08-0391.
Guitar Holding Co. LP vs. Hudspeth County Underground Water Conservation District, No. 06-0904 (Tex. May 30, 2008)
(Justice Medina) (water rights) (13 page opinion in pdf)
GUITAR HOLDING COMPANY, L.P. v. HUDSPETH COUNTY UNDERGROUND WATER CONSERVATION DISTRICT NO. 1, ET AL.; from Hudspeth County; 8th district (08-04-00296-CV and 08-05-00115-CV, 209 S.W.3d 172, 08-31-06)
The Court reverses the court of appeals' judgment and renders judgment.
Justice David Medina authored the opinion of the Court.
Supreme Court grants habeas corpus relief in criminal child support contempt case on due process grounds
In Re Zandi, No. 070919 (Tex. May 30, 2008)(per curiam)
(child support contempt, habeas corpus granted, due process)
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
Opinions released May 29, 2008
Supreme Court agrees with Third Court of Appeals to undo CPS anti-polygamy "class-action" against FLDS parents and kids, at least with respect to emergency foster care resulting from the child snatching raid. High Court approves decision of the Austin court of appeals to return the children to their mothers, stating that trial court judge may impose other, less drastic restrictions - if warranted - while the case remains pending. Supreme Court, too, issues its opinion per curiam, but not unanimously.
In re TDFPS (CPS), No. 08-0391 (Tex. May 29, 2008)(per curiam)
(CPS case against FLDS sect, Texas Supreme Court family law decisions)
IN RE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES; from Schleicher County; 3rd district (03-08-00235-CV, ___ S.W.3d ___, 05-22-08) motion for emergency relief denied Per Curiam Opinion
Justice O'Neill delivered an opinion concurring in part and dissenting in part, in which Justice Johnson and Justice Willett joined.
In re Texas DFPS (CPS), No. 08-0403 (Tex. May 29, 2008)(per curiam) (CPS mass custody case) (companion case)
IN RE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES; from Schleicher County; 3rd district (03-08-00298-CV, ___ S.W.3d ___, 05-22-08)motion for emergency relief deniedmotion to exceed page limit granted
Per Curiam Opinion
Justice O'Neill, joined by Justice Johnson and Justice Willett, concurring in part and dissenting in part for the reasons explained in Justice O'Neill's separate opinion in No. 08-0391.
Sunday, September 23, 2007
Supreme Court Orders Stalker in Family Law Case Released on $250 Bond
In re Stephanie Ann Bourg, No. 07-0714 (Tex. 2007)(habeas corpus)
Orders Pronounced September 19, 2007
MISCELLANEOUS
RELATOR IS ORDERED RELEASED ON BOND IN THE FOLLOWING PETITION FOR WRIT OF HABEAS CORPUS PROCEEDING:
07‑0714
IN RE STEPHANIE ANN BOURG; from Harris County; 1st district (01‑07‑00623‑CV, ___ SW3d ___, 08‑27‑07) conditioned upon $250.00 bond
See Tex. R. App. P. 52.8(b)(3)
[Note: The petition for writ of habeas corpus remains pending before this Court.]
The First Court of Appeals Denied Habeas Corpus Relief
In re Bourg (Tex.App.- Houston [1st Dist.] Aug. 27, 2007)
August 27, 2007
Civil Causes Decided:
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Jennings
(Before Justices Taft, Jennings and Alcala)
01-07-00623-CV
In re Stephanie Ann Bourg--Appeal from 245th District Court of Harris County
[Trial Court Judge: Hon. Annette Galik n/k/a Judge Annette Kuntz]
IN RE STEPHANIE ANN BOURG, Relator
Original Proceeding on Petition for Writ of Habeas Corpus
MEMORANDUM OPINION
By a petition for writ of habeas corpus, relator, Stephanie Ann Bourg, asserts that she is illegally restrained and seeks relief from a July 26, 2007 order revoking a suspension of commitment and a separate, but contemporaneous, confinement and commitment order.
Statement of Facts
In 2001, Bourg and real party in interest, Chad Clay, had a son. In September 2003, the trial court granted Clay and Bourg's divorce, including an Agreed Order in Suit Affecting the Parent-Child Relationship. The decree contains an agreed permanent injunction prohibiting Bourg from coming within 500 feet of Clay's residence; engaging in harassing conduct directed toward Clay or their son; placing anonymous, offensive, and repetitious phone calls to Clay or their son; and committing family violence. On June 29, 2004, the trial court signed a final protective order containing many injunctive provisions similar to those in the September 2003 decree, enjoining Bourg from stalking, harassing, or contacting Clay and their son.
Subsequently, the trial court signed an agreed order holding Bourg in contempt for five violations of its divorce decree, sentencing her to confinement for 180 days for each separate violation, to run concurrently. The trial court noted that Bourg had been confined from June 4, 2004 to June 29, 2004, and suspended the remaining 155-day balance of the sentence, provided that Bourg abide by certain terms and conditions and comply with all the trial court's previous orders.
On July 18, 2006, the trial court signed an agreed temporary protective order prohibiting Bourg from (1) committing family violence, (2) communicating directly with Clay or their son in a threatening or harassing manner, and (3) communicating in any manner with Clay or their son except through Bourg's attorney. On November 10, 2006, the trial court signed a final protective order containing many injunctive provisions similar to the ones in the decree and the July 18, 2006 agreed temporary protective order.
Clay then filed his "First Amended Petition for Enforcement by Contempt for Violation of Permanent Injunctions, Agreed Temporary Protective Order and (2006) Final Protective Order and Motion to Revoke Suspension of Commitment . . . . " In his motion to revoke the suspension of commitment, Clay asserted, among other things, that Bourg failed to comply with "all the orders of the court." In the petition for enforcement, Clay alleged that Bourg had violated, on 37 separate occasions, the trial court's prior orders. Clay asked the trial court to hold Bourg in contempt for each of these violations and, as punishment, to sentence Bourg to 180 days confinement for each violation.
At the conclusion of a hearing on Clay's motion to revoke suspension of commitment and petition for enforcement by contempt, the trial court in its July 26, 2007 "Order Revoking Suspension of Commitment and for Commitment in the Harris County Jail" ("revocation order"), found that Bourg, on 37 occasions, had contemptuously violated either its September 2003 divorce decree, its July 18, 2006 temporary protective order, or its November 10, 2006 final protective order. The trial court revokeed the suspension of commitment and ordered Bourg confined until completion of her sentence, i.e., for the unserved 155 days.
Contemporaneously, in its separate "Order for Enforcement for Violation of the Final Decree of Divorce, Agreed Temporary Protective Order and (2006) Final Protective Order and for Commitment in the Harris County Jail," the trial court also found that Bourg's violations of its prior orders constituted new instances of contempt for which the trial court sentenced Bourg to confinement for 180 days. (1) The trial court ordered that this contempt sentence commence immediately upon Bourg's completion of the 155-day balance of the prior contempt sentence for the violations, which predated the allegations Clay made in his May 2, 2007 petition for enforcement by contempt.
Standard of Review
A habeas corpus petition is a collateral attack on a judgment, the purpose of which is not to determine the final guilt or innocence of the relator but to ascertain whether the relator has been confined unlawfully. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). The presumption is that the order is valid. In re Turner, 177 S.W.3d 284, 288 (Tex. App.--Houston [1st Dist.] 2005, orig. proceeding) (citing Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex. App.--Houston [1st Dist.] 1990, orig. proceeding)). A writ of habeas corpus issues if a trial court's contempt order is beyond the court's power or the court did not afford the relator due process of law. Turner, 177 S.W.3d at 288 (citing In re Henry, 154 S.W.3d 594, 596 (Tex. 2005)). A relator bears the burden of showing that she is entitled to relief. Turner, 177 S.W.3d at 288 (citing Occhipenti, 796 S.W.2d at 808-09).
Right To A Jury Trial
Bourg first argues that she is entitled to habeas corpus relief because she was not afforded her Sixth Amendment (2) right to trial by jury for serious charges with a punishment of confinement in excess of 180 days.
Under the Sixth Amendment, an alleged contemnor has a right to a jury trial on a "serious" charge of criminal contempt. Ex parte Sproull, 815 S.W.2d 250 (Tex. 1991) (orig. proceeding) (citing Ex parte Werblud, 536 S.W.2d 542, 547 (Tex. 1976) (orig. proceeding). "A charge for which confinement may exceed six months is serious." Werblud, 536 S.W.2d at 547.
At the outset, we note that the trial court did not sentence Bourg to 335 days in jail. Rather, it first revoked suspension of commitment for the unserved 155 days of her previous confinement for prior violations. It then, for new acts of contempt, assessed a punishment that did not exceed 180 days.
The trial court revoked the suspension of commitment in its September 21, 2004 "Agreed Order Holding Respondent in Contempt" ("Agreed Contempt Order") and ordered Bourg incarcerated "until completion of sentence as heretofore rendered by this Court." (Emphasis added.) Bourg agreed to serve five sentences of confinement for 180 days to run concurrently, for each of the five stipulated and agreed to violations of the September 2003 divorce decree. Since Bourg had served 25 days in confinement, from June 4, 2004 to June 29, 2004, she had a balance of 155 suspended and unserved days left to serve on the sentence.
In support of her argument that the trial court's two orders, one revoking the prior suspension of commitment and the other contempt and commitment order may not be considered as separate orders for purposes of punishment, Bourg relies on Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex. 1986) and In re McGonagill, No. 02-07-034-CV 2007 Tex. App. LEXIS 1867, 2007 (Tex. App.--Fort Worth March 5, 2007, orig. proceeding). However, neither Sanchez nor McGonagill applies here.
In Sanchez, the Texas Supreme Court recognized that when a court may impose a sentence exceeding six months, a contemner may not be denied a right to a trial by jury. Sanchez, 703 S.W.2d at 957. It also noted that even when offenses are separate and the sentences for each contempt is less than six months, the contemner is entitled to a trial by jury "if the offenses are aggregated to run concurrently, so as to result in punishment exceeding six months." Id. Here, however, in regard to the trial court's "Order Revoking Suspension of Commitment and Confinement," the trial court had already assessed a punishment of confinement, which it later ordered suspended. In regard to the "Order of Enforcement," the trial court assessed punishment for new offenses committed by Bourg after she had previously been held in contempt.
In McGonagill, the trial court held that on 42 occasions, McGonagill had violated its temporary order to pay certain household expenses and deliver certain property to his wife. McGonagill, 2007 Tex. App. LEXIS 1867, at *2. The trial court sentenced McGonagill to confinement for 10 days for each violation, but suspended commitment conditioned on McGonagill paying certain indebtedness and delivering certain property to his former spouse. Id. Based on allegations that McGonagill had failed to perform the conditions of the suspension of commitment, his former spouse filed a motion to revoke his suspension of commitment. Id. at *3. That same day, his former spouse filed another enforcement motion, alleging that McGonagill had failed to comply with the decree in several respects. Id. After a hearing, the trial court granted the two motions, revoked the suspension of the commitment, and held McGonagill in contempt for failure to comply with the decree. Id. For his failure to comply with the decree, the trial court sentenced McGonagill to confinement for three days. Id. McGonagill petitioned the court of appeals for habeas corpus relief, asserting, among other things, that the trial court's first contempt order sentencing him to 420 days' confinement violated his right to a trial by jury because the sentence exceeded 180 days. Id. at *4-5. The court of appeals granted habeas corpus relief because Mc Gonagill, in the original contempt proceeding, had not waived his right to a trial by jury. Id. at *7-8.
Here, the trial court did not aggregate separate offenses together so that the punishment of confinement exceeded 180 days. Rather, the trial court simply revoked the previous suspension of Bourg's first commitment and then assessed a punishment for subsequently committed contemptuous acts.
Bourg is currently confined pursuant to the trial court's "Order Revoking Suspension of Commitment and for Commitment in the Harris County Jail" (revocation order), serving the reinstated 155-day balance of the punitive contempt sentence the trial court assessed in 2004 for acts committed in 2004 or before. The fact that the trial court issued a new contempt order, finding subsequent violations committed by Bourg and assessing a new and separate punishment for the acts, does not void the revocation order for lack of a jury waiver.
Sufficiency of the Evidence to Support Contempt Findings
Next, Bourg asserts that there is legally insufficient evidence to support six of the trial court's contempt findings in the "Order of Enforcement by Contempt for Violation of the Final Decree of Divorce . . . ." Because Bourg is not currently confined pursuant to this order, this ground for relief is not ripe and we do not address it.
Defective Notice of Charges
Finally, Bourg asserts that for 12 items (violations 26-36) there are inconsistencies between Clay's pleadings and the trial court's revocation order findings of breach of the September 21, 2004 order's terms and conditions of the suspension of commitment and the trial court's findings of contempt in the contempt order. Because Bourg is not confined pursuant to the contempt order, her complaints with respect to it are not ripe and we do not address them. With respect to her assertions regarding the revocation order, we note that they relate to only 12 of the 37 findings. Bourg does not attack the notice, proof, and findings relative to alleged violations 1-25. Proof of any one alleged violation is sufficient to support an order revoking community supervision. In re B.C and N.C., 187 S.W.3d 721, 724 (Tex. App.--Tyler 2006, orig. proceeding).
Thus, notice of one or more alleged breaches of the terms and conditions of the suspension of her commitment, which the trial court found to be true, is sufficient to support the validity of the order. Here, Bourg had notice of one or more of the ways that Clay alleged she had breached the terms and conditions of the suspension of commitment contained in the September 21, 2004 order. Because one or more of the allegations corresponded to the trial court's breach findings, Bourg has failed to discharge her burden to show that she is entitled to relief on the ground of lack of notice.
Conclusion
We conclude that Bourg has not shown that she is illegally restrained by the trial court's July 26, 2007 "Order Revoking Suspension of Commitment and for Commitment in the County Jail." We further conclude that Bourg's challenges to the July 26, 2007 "Order for Enforcement by Contempt for Violation of the Final Decree of Divorce, Agreed Temporary Protective Order and (2006) Final Protective Order and for Commitment in the Harris County Jail," are not ripe. We deny habeas corpus relief.
Terry Jennings
Justice
Panel consists of Justices Taft, Jennings, and Alcala.
1. It is unclear from the order of enforcement by contempt whether the trial court assessed one sentence of 180 days for all 37 violations or 37 sentences of 180 days to run concurrently.
2. U.S. Const. amend. VI.
Orders Pronounced September 19, 2007
MISCELLANEOUS
RELATOR IS ORDERED RELEASED ON BOND IN THE FOLLOWING PETITION FOR WRIT OF HABEAS CORPUS PROCEEDING:
07‑0714
IN RE STEPHANIE ANN BOURG; from Harris County; 1st district (01‑07‑00623‑CV, ___ SW3d ___, 08‑27‑07) conditioned upon $250.00 bond
See Tex. R. App. P. 52.8(b)(3)
[Note: The petition for writ of habeas corpus remains pending before this Court.]
The First Court of Appeals Denied Habeas Corpus Relief
In re Bourg (Tex.App.- Houston [1st Dist.] Aug. 27, 2007)
August 27, 2007
Civil Causes Decided:
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Jennings
(Before Justices Taft, Jennings and Alcala)
01-07-00623-CV
In re Stephanie Ann Bourg--Appeal from 245th District Court of Harris County
[Trial Court Judge: Hon. Annette Galik n/k/a Judge Annette Kuntz]
IN RE STEPHANIE ANN BOURG, Relator
Original Proceeding on Petition for Writ of Habeas Corpus
MEMORANDUM OPINION
By a petition for writ of habeas corpus, relator, Stephanie Ann Bourg, asserts that she is illegally restrained and seeks relief from a July 26, 2007 order revoking a suspension of commitment and a separate, but contemporaneous, confinement and commitment order.
Statement of Facts
In 2001, Bourg and real party in interest, Chad Clay, had a son. In September 2003, the trial court granted Clay and Bourg's divorce, including an Agreed Order in Suit Affecting the Parent-Child Relationship. The decree contains an agreed permanent injunction prohibiting Bourg from coming within 500 feet of Clay's residence; engaging in harassing conduct directed toward Clay or their son; placing anonymous, offensive, and repetitious phone calls to Clay or their son; and committing family violence. On June 29, 2004, the trial court signed a final protective order containing many injunctive provisions similar to those in the September 2003 decree, enjoining Bourg from stalking, harassing, or contacting Clay and their son.
Subsequently, the trial court signed an agreed order holding Bourg in contempt for five violations of its divorce decree, sentencing her to confinement for 180 days for each separate violation, to run concurrently. The trial court noted that Bourg had been confined from June 4, 2004 to June 29, 2004, and suspended the remaining 155-day balance of the sentence, provided that Bourg abide by certain terms and conditions and comply with all the trial court's previous orders.
On July 18, 2006, the trial court signed an agreed temporary protective order prohibiting Bourg from (1) committing family violence, (2) communicating directly with Clay or their son in a threatening or harassing manner, and (3) communicating in any manner with Clay or their son except through Bourg's attorney. On November 10, 2006, the trial court signed a final protective order containing many injunctive provisions similar to the ones in the decree and the July 18, 2006 agreed temporary protective order.
Clay then filed his "First Amended Petition for Enforcement by Contempt for Violation of Permanent Injunctions, Agreed Temporary Protective Order and (2006) Final Protective Order and Motion to Revoke Suspension of Commitment . . . . " In his motion to revoke the suspension of commitment, Clay asserted, among other things, that Bourg failed to comply with "all the orders of the court." In the petition for enforcement, Clay alleged that Bourg had violated, on 37 separate occasions, the trial court's prior orders. Clay asked the trial court to hold Bourg in contempt for each of these violations and, as punishment, to sentence Bourg to 180 days confinement for each violation.
At the conclusion of a hearing on Clay's motion to revoke suspension of commitment and petition for enforcement by contempt, the trial court in its July 26, 2007 "Order Revoking Suspension of Commitment and for Commitment in the Harris County Jail" ("revocation order"), found that Bourg, on 37 occasions, had contemptuously violated either its September 2003 divorce decree, its July 18, 2006 temporary protective order, or its November 10, 2006 final protective order. The trial court revokeed the suspension of commitment and ordered Bourg confined until completion of her sentence, i.e., for the unserved 155 days.
Contemporaneously, in its separate "Order for Enforcement for Violation of the Final Decree of Divorce, Agreed Temporary Protective Order and (2006) Final Protective Order and for Commitment in the Harris County Jail," the trial court also found that Bourg's violations of its prior orders constituted new instances of contempt for which the trial court sentenced Bourg to confinement for 180 days. (1) The trial court ordered that this contempt sentence commence immediately upon Bourg's completion of the 155-day balance of the prior contempt sentence for the violations, which predated the allegations Clay made in his May 2, 2007 petition for enforcement by contempt.
Standard of Review
A habeas corpus petition is a collateral attack on a judgment, the purpose of which is not to determine the final guilt or innocence of the relator but to ascertain whether the relator has been confined unlawfully. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). The presumption is that the order is valid. In re Turner, 177 S.W.3d 284, 288 (Tex. App.--Houston [1st Dist.] 2005, orig. proceeding) (citing Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex. App.--Houston [1st Dist.] 1990, orig. proceeding)). A writ of habeas corpus issues if a trial court's contempt order is beyond the court's power or the court did not afford the relator due process of law. Turner, 177 S.W.3d at 288 (citing In re Henry, 154 S.W.3d 594, 596 (Tex. 2005)). A relator bears the burden of showing that she is entitled to relief. Turner, 177 S.W.3d at 288 (citing Occhipenti, 796 S.W.2d at 808-09).
Right To A Jury Trial
Bourg first argues that she is entitled to habeas corpus relief because she was not afforded her Sixth Amendment (2) right to trial by jury for serious charges with a punishment of confinement in excess of 180 days.
Under the Sixth Amendment, an alleged contemnor has a right to a jury trial on a "serious" charge of criminal contempt. Ex parte Sproull, 815 S.W.2d 250 (Tex. 1991) (orig. proceeding) (citing Ex parte Werblud, 536 S.W.2d 542, 547 (Tex. 1976) (orig. proceeding). "A charge for which confinement may exceed six months is serious." Werblud, 536 S.W.2d at 547.
At the outset, we note that the trial court did not sentence Bourg to 335 days in jail. Rather, it first revoked suspension of commitment for the unserved 155 days of her previous confinement for prior violations. It then, for new acts of contempt, assessed a punishment that did not exceed 180 days.
The trial court revoked the suspension of commitment in its September 21, 2004 "Agreed Order Holding Respondent in Contempt" ("Agreed Contempt Order") and ordered Bourg incarcerated "until completion of sentence as heretofore rendered by this Court." (Emphasis added.) Bourg agreed to serve five sentences of confinement for 180 days to run concurrently, for each of the five stipulated and agreed to violations of the September 2003 divorce decree. Since Bourg had served 25 days in confinement, from June 4, 2004 to June 29, 2004, she had a balance of 155 suspended and unserved days left to serve on the sentence.
In support of her argument that the trial court's two orders, one revoking the prior suspension of commitment and the other contempt and commitment order may not be considered as separate orders for purposes of punishment, Bourg relies on Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex. 1986) and In re McGonagill, No. 02-07-034-CV 2007 Tex. App. LEXIS 1867, 2007 (Tex. App.--Fort Worth March 5, 2007, orig. proceeding). However, neither Sanchez nor McGonagill applies here.
In Sanchez, the Texas Supreme Court recognized that when a court may impose a sentence exceeding six months, a contemner may not be denied a right to a trial by jury. Sanchez, 703 S.W.2d at 957. It also noted that even when offenses are separate and the sentences for each contempt is less than six months, the contemner is entitled to a trial by jury "if the offenses are aggregated to run concurrently, so as to result in punishment exceeding six months." Id. Here, however, in regard to the trial court's "Order Revoking Suspension of Commitment and Confinement," the trial court had already assessed a punishment of confinement, which it later ordered suspended. In regard to the "Order of Enforcement," the trial court assessed punishment for new offenses committed by Bourg after she had previously been held in contempt.
In McGonagill, the trial court held that on 42 occasions, McGonagill had violated its temporary order to pay certain household expenses and deliver certain property to his wife. McGonagill, 2007 Tex. App. LEXIS 1867, at *2. The trial court sentenced McGonagill to confinement for 10 days for each violation, but suspended commitment conditioned on McGonagill paying certain indebtedness and delivering certain property to his former spouse. Id. Based on allegations that McGonagill had failed to perform the conditions of the suspension of commitment, his former spouse filed a motion to revoke his suspension of commitment. Id. at *3. That same day, his former spouse filed another enforcement motion, alleging that McGonagill had failed to comply with the decree in several respects. Id. After a hearing, the trial court granted the two motions, revoked the suspension of the commitment, and held McGonagill in contempt for failure to comply with the decree. Id. For his failure to comply with the decree, the trial court sentenced McGonagill to confinement for three days. Id. McGonagill petitioned the court of appeals for habeas corpus relief, asserting, among other things, that the trial court's first contempt order sentencing him to 420 days' confinement violated his right to a trial by jury because the sentence exceeded 180 days. Id. at *4-5. The court of appeals granted habeas corpus relief because Mc Gonagill, in the original contempt proceeding, had not waived his right to a trial by jury. Id. at *7-8.
Here, the trial court did not aggregate separate offenses together so that the punishment of confinement exceeded 180 days. Rather, the trial court simply revoked the previous suspension of Bourg's first commitment and then assessed a punishment for subsequently committed contemptuous acts.
Bourg is currently confined pursuant to the trial court's "Order Revoking Suspension of Commitment and for Commitment in the Harris County Jail" (revocation order), serving the reinstated 155-day balance of the punitive contempt sentence the trial court assessed in 2004 for acts committed in 2004 or before. The fact that the trial court issued a new contempt order, finding subsequent violations committed by Bourg and assessing a new and separate punishment for the acts, does not void the revocation order for lack of a jury waiver.
Sufficiency of the Evidence to Support Contempt Findings
Next, Bourg asserts that there is legally insufficient evidence to support six of the trial court's contempt findings in the "Order of Enforcement by Contempt for Violation of the Final Decree of Divorce . . . ." Because Bourg is not currently confined pursuant to this order, this ground for relief is not ripe and we do not address it.
Defective Notice of Charges
Finally, Bourg asserts that for 12 items (violations 26-36) there are inconsistencies between Clay's pleadings and the trial court's revocation order findings of breach of the September 21, 2004 order's terms and conditions of the suspension of commitment and the trial court's findings of contempt in the contempt order. Because Bourg is not confined pursuant to the contempt order, her complaints with respect to it are not ripe and we do not address them. With respect to her assertions regarding the revocation order, we note that they relate to only 12 of the 37 findings. Bourg does not attack the notice, proof, and findings relative to alleged violations 1-25. Proof of any one alleged violation is sufficient to support an order revoking community supervision. In re B.C and N.C., 187 S.W.3d 721, 724 (Tex. App.--Tyler 2006, orig. proceeding).
Thus, notice of one or more alleged breaches of the terms and conditions of the suspension of her commitment, which the trial court found to be true, is sufficient to support the validity of the order. Here, Bourg had notice of one or more of the ways that Clay alleged she had breached the terms and conditions of the suspension of commitment contained in the September 21, 2004 order. Because one or more of the allegations corresponded to the trial court's breach findings, Bourg has failed to discharge her burden to show that she is entitled to relief on the ground of lack of notice.
Conclusion
We conclude that Bourg has not shown that she is illegally restrained by the trial court's July 26, 2007 "Order Revoking Suspension of Commitment and for Commitment in the County Jail." We further conclude that Bourg's challenges to the July 26, 2007 "Order for Enforcement by Contempt for Violation of the Final Decree of Divorce, Agreed Temporary Protective Order and (2006) Final Protective Order and for Commitment in the Harris County Jail," are not ripe. We deny habeas corpus relief.
Terry Jennings
Justice
Panel consists of Justices Taft, Jennings, and Alcala.
1. It is unclear from the order of enforcement by contempt whether the trial court assessed one sentence of 180 days for all 37 violations or 37 sentences of 180 days to run concurrently.
2. U.S. Const. amend. VI.
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