In re Mark Taylor McDonald--Appeal from 310th District Court of Harris County

Opinion issued August 30, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00616-CV

IN RE MARK TAYLOR MCDONALD JR., Relator

Original Proceeding on Petition for Writ of Habeas Corpus

MEMORANDUM OPINION

Relator, Mark Taylor McDonald, Jr., petitions this Court for habeas corpus relief, asserting he is illegally restrained as the result of a May 25, 2005 order of commitment arising from a child-support dispute. We grant habeas corpus relief.

Factual Background

On July 13, 1995, the trial court s master heard the Attorney General s petition to establish the parent-child relationship between relator and B. Garcia, born July 19, 1981, and K. McDonald, born December 8, 1987. Based on the master s recommendation and the agreement of the parties, on September 15, 1995, the trial court signed an agreed order establishing the parent-child relationship between relator and B. and K. The trial court ordered relator to pay $200 per month child support, provide health insurance coverage for the girls, and pay for their unreimbursed health care expenses. The agreed order made no provision for a lump-sum child support payment.

On February 20, 2003, the master of the trial court signed an order reducing relator s child support to $175 per month and specified that it applied to K. only. // The master s order also ordered real party in interest, Mary J. Garcia, to obtain health insurance coverage for K. This order made no provision for a lump sum child support payment. Additionally, it is not signed by the trial court judge.

On December 14, 2004, Mary filed a motion for enforcement against relator, asserting that he had violated orders signed by the trial court on July 13, 1995, July 31, 2002, // and February 20, 2003. On April 11, 2005, the trial court signed an enforcement order holding relator in contempt, but on May 25, 2005, it signed another order vacating the April 11, 2005 contempt order.

On May 25, 2005, without signing a new contempt order, the trial court signed an order of commitment. In it the trial court stated the following:

MARK TAYLOR McDONALD, JR. stands charged with Contempt of Court in failing and refusing to comply with the terms of the judgment/order by this Court entered on or about the 13 day of July 1995 & July 31, 2002 & February 20, 2003, wherein the Court ordered him/her to pay the sum of $17,000 each to MARY JANE GARCIA through the Harris County Child Support Department for the support and maintenance of his/her minor children.

AND IT APPEARING to the Court that the said MARK TAYLOR McDONALD, JR. has been duly cited; and the Court after having heard all the evidence and arguments offered in this matter, is of the opinion and so finds that the said MARK TAYLOR McDONALD, JR. is guilty of contempt of this Court in that he/she has failed and refused to pay child support as heretofore ordered in an amount of $2,300.00 for UNINSURED MEDICAL COSTS (see reverse) // and FAILED TO PAY and MAINTAIN HEALTH INSURANCE.

IT IS ACCORDINGLY ORDERED, ADJUDGED, AND DECREED by the Court that the said MARK TAYLOR McDONALD, JR. be and is hereby found guilty of Contempt of Court by reason of his failure and refusal to make the paymens of child support heretofore ordered in an amount of $17,000 in defiance of the terms of the judgment/order hereinabove referred to, and his/her punishment for such contempt is here fixed at confinement in the Harris County Jail for a period of 180 days, and to remain there in confinement until he/she has made payment of the following, as hereby Ordered by the Court:

Child Support Arrearage:$17,000.00

Accrued Cost of Court$ 116.00

Cost of Attorney s Fees$ 3,000.00

Upon payment of said $17,000.00, he/she will be purged of this contempt and will be released from confinement . . . .

A sheriff s office statement shows relator has been incarcerated since May 25, 2005. On June 29, 2005, we set a briefing schedule and ordered relator released, conditioned upon his posting a bond, pending our final determination of the matter. Mary has not filed a response to relator s petition.

Standard of Review

For this court to order the release of a relator in a habeas corpus proceeding, we must find that the trial court s order directing relator to be incarcerated is void either because it is beyond the power of the court to issue or because it deprives the relator of his liberty without due process of law. In re Butler, 45 S.W.3d 268, 270 (Tex. App. Houston [1st Dist.] 2001, orig. proceeding).

Analysis

In his petition, relator complains that the trial court has not signed an enforcement order stating what portions of a prior trial court order he violated and that the commitment order is unclear in that it does not set out the times, dates, and places of each failure to comply.

The Texas Family Code provides: (a) An enforcement order must include: (1) in ordinary and concise language the provisions of the order for which enforcement was requested; . . . . Tex. Fam. Code Ann. 157.166(a)(1) (Vernon 2002). The trial court s order of commitment here, the trial court identified three orders for which enforcement was requested. Of those, the alleged July 13, 1995 order is apparently misidentified, having been signed instead on September 25, 1995. The second, the alleged July 31, 2002 order, apparently never existed. The third, the February 20, 2003 order, was signed by the master, but not by the trial court. The commitment order recites that relator stands charged with contempt of court in failing and refusing to comply with the term of these three orders, which ordered him to pay $17,000 each . . . for the support and maintenance of his/her minor children. None of the orders in the record order relator to pay child support of $17,000 each for his minor children. We conclude that, contrary to the provisions of 157.166(a)(1), the trial court did not identify the provisions of the order for which enforcement was requested.

The Texas Family Code further provides:

(b) If the order imposes incarceration or a fine for criminal contempt, an enforcement order must contain findings identifying, setting out, or incorporating by reference[,] the provisions of the order for which enforcement was requested and the date of each occasion when the respondent s failure to comply with the order was found to constitute criminal contempt.

Tex. Fam. Code Ann. 157.166(b) (Vernon 2002). Here, the trial court did not set out the dates on which relator failed to pay $2,023 for uninsursed medical costs, failed to pay and maintain health insurance, and failed to pay $17,000 in child support.

Conclusion

Due process requires that, before incarcerating a person for violating an earlier order, the trial court must sign a written judgment or order of contempt that clearly states in what respect the court s earlier order has been violated. Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex. 1997). Here, the trial court s May 25, 2005 commitment order did not identify the portions of the prior orders that it found relator had violated and did not identify how relator violated prior orders, as exemplified by the court s failure to identify the dates on which it found relator had violated its prior orders. We conclude that the May 25, 2005 order is, therefore, void, and order relator released from confinement by the Harris County Sheriff.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Hanks.