Opinion
No. 05-19-01572-CV
05-14-2020
IN RE GREGORY DUNCAN, Relator
Original Proceeding from the 116th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-13-08535
MEMORANDUM OPINION
Before Justices Schenck, Reichek, and Evans
Opinion by Justice Reichek
The trial court held relator in civil constructive contempt and jailed him after he failed to answer post-judgment interrogatories and produce documents about his finances. In this original proceeding, relator seeks a writ of habeas corpus ordering that he be released from custody and the contempt order vacated. Relator contends the trial court's contempt and confinement order is void because he was found in contempt in absentia, thus violating his right to due process. After reviewing relator's petition, the real parties in interest's response, the record, and the sealed supplemental record, we conclude that relator is entitled to habeas relief. By finding relator in contempt in absentia the trial court violated relator's right to due process of law. Accordingly, we grant relator's petition for writ of habeas corpus and vacate the trial court's order of contempt and confinement. We leave in place, however, the trial court's capias warrant.
Background
On September 27, 2019, after extensive efforts to obtain relator's compliance with discovery requests, the trial court issued an order compelling relator to appear on October 17, 2019 "to show cause as to why he should not be held in civil contempt" for refusing to answer post-judgment interrogatories and provide documents seeking information about his assets to satisfy a judgment obtained against him by his former employer, Park Place Motorcars Ltd. and Park Place RB Ltd. ("Park Place"). The order to show cause was served on counsel. Relator did not appear at the hearing, but counsel appeared on his behalf, characterizing it as "unfortunate" that relator did not attend and alluding to relator's Fifth Amendment right against self-incrimination. After hearing argument from counsel and considering exhibits, the trial court held relator in contempt, ordered him jailed for six months or until he complied with the discovery requests, and issued a capias for his arrest so he could be brought to the court to answer on a charge of failure to appear. Relator was apprehended and jailed on December 23, 2019, and he filed a habeas application on December 27. We ordered relator released upon his posting a $500 bond pending determination of his habeas petition.
Standard of Review
A habeas corpus proceeding is a collateral attack on a judgment of contempt. In re Johnson, 337 S.W.3d 486, 488 ((Tex. App.—Dallas 2011, orig. proceeding). A petition for writ of habeas corpus does not inquire into the guilt or innocence of the relator, but determines only if the order of contempt was void. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding). A contempt order is void if it is beyond the power of the court to render it or if it deprives the relator of liberty without due process of law. Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980) (orig. proceeding).
Discussion
Relator contends he was denied procedural due process protection when the trial court pronounced him in contempt in absentia rather than issuing a capias or attachment to compel his appearance. Relying primarily on Ex parte Alloju, 907 S.W.2d 486, 487 (Tex. 1995) (per curiam) (orig. proceeding), relator contends the trial court's order of contempt and confinement is void. Park Place offers three responses: (1) the trial court was in the process of bringing relator to court before committing him to jail for contempt making his petition premature; (2) relator received reasonable notice of the show cause hearing and an opportunity to be heard, which is all the due process he is entitled to for purely civil contempt; and (3) relator's petition should be denied because he failed to provide an adequate record.
Adequacy of the Record
Park Place contends relator failed to provide a record upon which this Court may base a proper decision and we should deny relator's petition for this reason. Specifically, Park Place argues that relator's appendix should have included copies of the October 17, 2019 reporter's record and more documents reflecting the procedural history leading up to the show cause hearing, including a copy of the trial court's capias. Relator provided this Court with a certified copy of the order of contempt, a sworn copy of the order to show cause (minus exhibits), relator's affidavit, and a document from the records unit of the sheriff's department showing he was confined in jail.
Rule 52.7(a)(1) requires relator to file "a certified or sworn copy of every document that is material to the relator's claim for relief and that was in any underlying proceeding." TEX. R. APP. P. 52.7(a)(1); See In re Lausch, 177 S.W.3d 144, 150 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding) (relator must bring forward an adequate record to establish the invalidity of the order of which he complains). Given the narrow scope of relator's argument, we find that he complied with Rule 52.7(a)(1).
Relator did not, however, comply with Rule 52.7(a)(2), which requires a habeas applicant to provide "a properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence, or a statement that no testimony was adduced in connection with the matter complained." While relator did not provide a transcript of the underlying hearing, Park Place did, effectively curing relator's failure to comply with Rule 57.7(a)(2). In re Houseman, 66 S.W.3d 368, 373-74 (Tex. App.—Beaumont 2001, orig. proceeding) ("[Relator's] failure to comply with the Rule, in effect, was cured by [real party in interest's] providing us with a copy of relevant testimony from the Rule 12 hearing."). Accordingly, we conclude that the record is sufficient for purposes of this petition for writ of habeas corpus.
Validity of the Contempt and Confinement Order
Contempt that occurs outside the trial court's presence is considered constructive contempt and the contemnor has the right to notice and a hearing to defend against the charges. In re Reece, 341 S.W.3d 360, 365 (Tex. 2011) (orig. proceeding). Contempt may be further divided into civil or coercive contempt, which involves confinement pending obedience to the trial court's order, and criminal or punitive contempt, which results in a punishment for past transgressions. Id. In cases where the trial court seeks to impose criminal or punitive constructive contempt, due process requires a contemnor to either be present or affirmatively waive his or her presence for the contempt hearing. See Ex parte Johnson, 654 S.W.2d 415, 422 (Tex. 1983) (orig. proceeding). When the contemnor fails to appear for the contempt hearing, the trial court must issue a capias or writ of attachment to secure the contemnor's presence. Id.
The supreme court extended the due process protections due to criminal contemnors to civil constructive contemnors in Ex parte Alloju. In Alloju, the supreme court held, "Although the contempt judgment in Johnson assessed only punitive incarceration, and the contempt judgment in this case assessed only coercive incarceration, we conclude that Johnson sets out a clear guideline that should be equally applicable in both contexts." Ex parte Alloju, 907 S.W.2d at 487. Relator argues that the trial court's contempt and confinement order is void under Alloju because the trial court violated his right to due process by finding him in contempt in absentia rather than recessing the proceeding and issuing a capias to compel his attendance.
Park Place cites language in Alloju that, it argues, limits the broader due process protections of civil constructive contemnors to situations where they were summoned to appear with the possibility they could face either criminal or civil contempt. The language Park Place relies on is the statement, "Inasmuch as Alloju was at risk of both punitive as well as coercive sanctions, we conclude that the justice court should not have proceeded on the contempt charges in Alloju's absence without a waiver of his right to be present." Park Place points to the trial court's order to show cause in this case, which expressly limited the potential contempt relator was facing to civil contempt, and thus attempts to distinguish this case from Alloju. This Court and our sister court in Eastland, however, have not taken such a limited view of Alloju in overturning contempt orders. See In re Stroffolino, No. 05- 18-00937-CV, 2018 WL 6521921, at *1-2 (Tex. App.—Dallas Dec. 12, 2018, orig. proceeding) (mem. op.); In re Loeppky, No. 11-16-00322-CV, 2017 WL 1497383, at *2 (Tex. App.—Eastland Apr. 20, 2017, orig. proceeding) (mem. op.). In Stroffolino, the trial court issued a show cause order requiring a corporation to send an officer to explain why the corporation should not be held in contempt for failing to respond to discovery requests. Stroffolino, 2018 WL 6521921, at *1. When no one appeared at the hearing on the corporation's behalf, the trial court held Stroffolino, a corporate officer, in civil contempt and issued a capias for his arrest and confinement until the discovery was produced. Id. In overturning the commitment, this Court cited Alloju for the proposition that "when a party is accused of contempt for failure to attend a hearing and is at risk for coercive incarceration, a trial court should not proceed on the contempt charges in the contemnor's absence without a waiver of his right to be present." Id. at *2. Similarly, the Eastland Court has interpreted Alloju as holding that "a trial court may not hold a person in contempt of court in absentia, regardless of whether the sanction imposed is coercive or punitive." Loeppky, 2017 WL 1497383, at *2.
Park Place is correct in noting that the full range of contempt was implicated in Alloju, Stroffolino, and Loeppky, whereas the trial court's show cause order in this case limited the contempt at issue to civil contempt. We note, however, that in all three cases only civil contempt was ultimately imposed. Park Place cites no authority, and we have found none, holding that such a distinction should affect the result. Instead, Park Place offers dicta in cases about how civil contempt requires only notice and an opportunity to be heard, see In re Williams, No. 11-05-00201-CV, 2005 WL 3315285, at *2 (Tex. App.—Eastland Dec. 8, 2005, orig. proceeding) (mem. op.) (criminal contempt order overturned because relator had no opportunity to be heard); In re Johnson, 150 S.W.3d 267, 271 (Tex. App.—Beaumont 2004, orig. petition) (overturning civil contempt order for lack of notice), and general expressions about how notice and a hearing are all that are required in unrelated types of civil hearings, see In re State, 556 S.W.3d 821, 830 (Tex. 2018) (orig. proceeding) (modification of sex offender civil commitment where all due process protections were afforded at time when original restrictions on liberty were put in place); In re Commitment of Cortez, 405 S.W.3d 929, 933-34 (Tex. App.—Beaumont 2013, no pet.) (same). The same liberty interests at stake in a show cause hearing for punitive contempt are equally at stake in a show cause hearing for coercive contempt. We see no reason to vary the level of due process to which one is entitled based on the reason for the contempt when the consequences are the same.
Effect on the Capias
Notwithstanding this Court's conclusion that relator's due process rights were violated when the trial court pronounced him in contempt in absentia, Park Place argues that the capias under which relator was seized was, and remains, valid. We agree. Unlike the capias we vacated in Stroffolino, which directed coercive commitment, the trial court in this case issued a capias for "failure to appear" and directed the sheriff to take relator to jail to await the availability of the court. See Stroffolino, 2018 WL 6521921, at *2. This was a proper use of a capias warrant.
Conclusion
Because the trial court's order imprisoned relator in violation of his due process rights, we grant relator's petition and vacate the trial court's "Order of Contempt and Confinement" signed October 17, 2019, by the 116th Judicial District Court of Dallas County, Texas, in cause number DC-13-08535. The capias warrant issued on October 21, 2019, remains in place.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE 191572F.P05