Summary
concluding that contempt order providing for suspension of commitment was reviewable by petition for writ of mandamus
Summary of this case from In re MittelstedOpinion
No. 01-02-00959-CV.
Opinion issued March 5, 2003.
Original Proceeding on Petition for Writ of Habeas Corpus or Original Petition for Writ of Mandamus and Writ of Prohibition.
Panel consists of Justices TAFT, KEYES, and HIGLEY.
MEMORANDUM OPINION
Relator Rachel Look requests habeas corpus relief, or, alternatively, mandamus or writ of prohibition relief. We deny any of Rachel's requested relief.
Factual Background
Rachel and David Catching, the parents of two minor children, divorced in 1991. In the 1991 decree, the trial court provided that Rachel make certain child support payments. In December 1999, the trial court modified the child support order by increasing Rachel's child support payments.
In August 2000, David filed against Rachel a motion for enforcement by contempt of child support orders. On November 21, 2000, the trial court held Rachel in contempt of several of its child support orders. It found Rachel's child support arrearage to be $11,000, and assessed $500 attorney's fees against her. As a punitive contempt sentence, the trial court assessed her six months confinement for each of the 75 violations. For a coercive contempt measure, the trial court ordered her confined until she paid the arrearage and attorney's fees. The trial court suspended her commitment, however, and placed her on community supervision for 36 months or until the sum of $11,500 was paid, whichever occurred first. The trial court ordered Rachel to pay the $11,500 at the rate of $350 per month until the entire $11,500 was paid. The suspension of commitment order contained no provision that Rachel report to a community supervision officer or that otherwise imposed restrictions on her beyond the arrearage payments.
On January 7, 2002, David filed a motion to revoke Rachel's suspension of commitment, alleging her failure to make certain arrearage payments. In a February 15, 2002 order, the trial court denied the motion to revoke Rachel's suspension of commitment, but modified the November 21, 2000 contempt order by finding that Rachel had reduced the total arrearage to $6,492.26, assessing her an additional $1,500 attorney's fees, and increasing the amount of her monthly arrearage payments to $450. In the order, the trial court stated that all other provisions of the November 21, 2000 contempt order remained in full force and effect. The February 15, 2002 order added no other restrictions to Rachel's freedom.
In her petition, Rachel stated that her liberty is restrained by the trial court's February 15, 2002 order.
Analysis
Contempt orders that do not involve confinement cannot be reviewed by writ of habeas corpus. In Re Long, 984 S.W.2d 623, 625 (Tex. 1999). Thus, a threshold issue, with respect to Rachel's request for habeas corpus relief, is whether the February 15, 2002 order "confines" Rachel.
The Texas Supreme Court examined such an issue in Ex Parte Williams, 690 S.W.2d 243 (Tex. 1985). In Williams, the trial court found Williams in contempt, assessed punishment of three days in jail and a $150 fine, and then released him on the condition that he post a $3,000 bond and prosecute an "appeal." Id. In holding that Williams was sufficiently restrained to entitle him to habeas corpus review of the contempt order, the Supreme Court stated: "His incarceration is not a speculative possibility where the unfolding of events may render the controversy moot; his bond could be revoked at any time, resulting in his incarceration." Id. at 244.
The Court noted that the trial court erroneously confused the right to appeal with a request for habeas corpus relief. Williams, 690 S.W.2d at 243 n. 1.
The instant case is unlike Williams in that Rachel's incarceration is a speculative possibility. The February 15, 2002 order did not provide for her confinement, and, if she timely complies with its provisions of making the $450 per month arrearage payments until she pays the $7,992.26, she will not be confined. Rachel is not subject to the payment of monthly statutory supervisory fees, participation in a counseling program, or submission to house arrest or electronic monitoring. See, e.g., Ex parte Brister, 801 S.W.2d 833, 834 (Tex. 1990).
Accordingly, we hold Rachel has not sustained her burden of showing she is restrained. See Tex.R.App.P. 52.3(j)(1)(D). We deny habeas corpus relief.
In the alternative, Rachel has requested mandamus or writ of prohibition relief. Texas Rule of Appellate Procedure 52.3(h) requires that the relator make clear and concise argument for the contentions made with appropriate citations to authorities and to the appendix or record. Relator's petition contains no citations to authorities to support her request for mandamus or writ of prohibition relief. Those requests are denied.