EX PARTE WOODYARD No. 04-97-00468-CV.
952 S.W.2d 104 (1997)
Ex parte Todd Grant WOODYARD.
Court of Appeals of Texas, San Antonio.
August 6, 1997.
John C. Osborne, Houston, for Appellant.
Kenneth Oden, Jr., Oden & Zissa, L.L.P., John Howard Burris, Burris & Burris, Alice, for Appellee.
Before RICKHOFF, DUNCAN and ANGELINI, JJ.
Relator, Todd Grant Woodyard ("Woodyard"), petitions this court for a writ of habeas corpus seeking relief from an order holding Woodyard in contempt of court and ordering him confined. Because we hold that Woodyard was denied due process of law during the course of the contempt proceeding, we order Woodyard discharged.
This habeas proceeding arises out of an action brought by Michelle Reyna Harless ("Harless") against Woodyard seeking enforcement of a child support order. On October 11, 1995, the Honorable Terry A. Canales entered an order in that suit appointing an attorney to represent Woodyard, granting Woodyard additional time to prepare for a hearing on the motion to enforce, and granting Harless a temporary restraining order
On March 19, 1997, a hearing regarding Woodyard's compliance with the October, 1995 order was held. At the end of that hearing, the court entered a second order addressing various issues. With respect to the 401K fund, the court found that Woodyard did not deposit the 401K proceeds into the court registry as ordered. The court announced that it would review the matter again on April 9, 1997. The order notes that the court did not grant an extension, modify or in any other way alter or amend its previous order regarding depositing the funds into the court registry.
The record contains an affidavit dated April 8, 1997, executed by Woodyard's attorney, stating that while engaged in a conference in chambers, Judge Canales told Woodyard's attorney that "if Mr. Woodyard did not deposit the proceeds of his 401K retirement fund into the registry of the court, he would hold Mr. Woodyard in contempt of court and jail him until the funds were deposited." The hearing to review Woodyard's compliance with the order was rescheduled by agreement to May 21, 1997.
On May 21, 1997, the parties appeared before Judge Canales to address various pending motions. At the end of the hearing, the following transpired:
Woodyard subsequently petitioned this court for a writ of habeas corpus. On June 20, 1997, we ordered Woodyard released from jail, upon the posting of a bond, pending a final determination of this matter. No reply was filed by any party in response to our order.
In his brief, Woodyard contends that Judge Canales was without jurisdiction to hold him in contempt before a final judgment was entered confirming the amount of child support arrearage owed, if any. We do not reach this substantive issue because we find that Woodyard was deprived of his due process rights in the contempt proceeding.
Civil contempt proceedings are considered quasi-criminal in nature, and the contemnor is entitled to procedural due process throughout the proceedings. Ex parte Brister, 801 S.W.2d 833, 835 (Tex.1990)(Cook, J., concurring); Ex parte Johnson, 654 S.W.2d 415, 420 (Tex.1983). Where the contempt occurs outside the presence of the court, due process requires that the accused have full and complete notification of the subject matter and that he be given an opportunity to be heard. See Ex parte Swate, 922 S.W.2d 122, 124 (Tex.1996); Ex parte Carlile, 783 S.W.2d 672, 673 (Tex.App.—Houston [14th Dist.] 1989, orig. proceeding); Jordan v. Middleton, 762 S.W.2d 339, 341 (Tex.App.—San Antonio 1988, no writ). "A writ of habeas corpus will issue if the commitment order is void because it deprives the relator of liberty without due process of law." Ex parte Swate, 922 S.W.2d at 124.
In this proceeding, Woodyard was found to be in constructive contempt for failing to pay his 401K fund into the court's registry. See Ex parte Carlile, 783 S.W.2d at 673 (noting failure to pay funds into court's registry constitutes constructive contempt). However, there is no evidence in the record that Woodyard received the requisite notification of the accusation of contempt or that he was given an opportunity to be heard.
In constructive contempt proceedings, the Texas Supreme Court has held that the contempt judgment must be based on "a valid show cause order or equivalent legal process that contains full and unambiguous notification of the accusation of contempt." Ex parte Gordon, 584 S.W.2d 686, 690 (Tex. 1979); see also Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex.1969). Oral notification is inadequate, and an order setting a compliance hearing is not a valid substitute. Ex parte Vetterick, 744 S.W.2d 598, 599 (Tex.1988); Ex parte Chunn, 881 S.W.2d 912, 917 (Tex. App.—Houston [1st Dist.] 1994, orig. proceeding). Furthermore, in order to be given an effective hearing, the accused must be given the opportunity to present evidence concerning any defenses he may have or the accused must knowingly waive that right. Ex parte Carlile, 783 S.W.2d at 673; Ex parte Griffin, 712 S.W.2d 214, 216 (Tex. App.—San Antonio 1986, writ dism'd), overruled on other grounds, Ex parte Jimenez, 737 S.W.2d 358, 361 (Tex.App.—San Antonio 1987, orig. proceeding).
At the May 21, 1997 hearing, Woodyard's attorney alluded to Woodyard's inability to pay the money as directed by the court because the IRS had levied his accounts. Inability to pay might have been a defense available to Woodyard if he was able to meet the burden of proving that defense. See Ex parte Rojo, 925 S.W.2d 654 (Tex.1996). Although the trial court appeared to recognize the need to hear evidence on this issue, the statement of facts reflects that no effective hearing was held. In addition, the record does not reflect that proper written notice of the contempt accusation was given. Therefore, we conclude that Woodyard was deprived of his due process rights in the contempt proceeding and is entitled to habeas relief. See Ex parte Swate, 922 S.W.2d at 124.
Relator, Todd Grant Woodyard, is ordered discharged from custody.
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