In re Wesley Thomas Bowie--Appeal from 216th Judicial District Court of Bandera County

PER CURIAM

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: December 8, 2004

MOTION FOR TEMPORARY RELIEF DENIED; PETITION FOR WRIT OF HABEAS CORPUS DENIED; AFFIRMED AS MODIFIED

On October 29, 2004, relator Wesley Thomas Bowie filed a petition for writ of habeas corpus complaining he is incarcerated for nonpayment of child support without due process of law. We agree Bowie may not be held in contempt and committed to jail for amounts that are not yet in arrears. However, the remainder of the trial court's judgment (2) and commitment order comport with the requirements of due process and the Texas Family Code. Accordingly, we modify the judgment and commitment order. See In re Watson, 108 S.W.3d 531, 533 (Tex. App.-Houston [14th Dist.] 2003, orig. proceeding). With respect to the trial court's judgment, signed September 30, 2004, the portion of the judgment concerning civil contempt, beginning on page 4, is modified to read as follows:

Civil Contempt

IT IS ORDERED that Respondent, Wesley Thomas Bowie, shall be confined in the county jail of Bandera County, Texas, until Respondent has complied with the following orders. IT IS ORDERED that Respondent -

1. Pay $49,688.78, through the state disbursement unit, as child support arrearage (including any accrued interest); and

2. Maintain medical insurance on the child.

With respect to the trial court's COMMITMENT ORDER, signed October 1, 2004, all references to amounts payable as attorney fees, court costs, and fines are deleted. The COMMITMENT ORDER is modified to read in pertinent part:

. . . committed the Obligor to the county jail for 168 separate violations at 5 (five) days for each separate act of contempt, said commitments to run consecutively, and committed the Obligor to the county jail for 2,740 days or until Obligor pays $49,688.78 in child support arrearage, whichever comes first.

The trial court's judgment and commitment order are affirmed as modified. (3) Bowie's motion for temporary relief and petition for writ of habeas corpus are denied.

PER CURIAM

1. This proceeding arises out of Cause No. 4401-88, styled In the Interest of Katelee Elizabeth Bowie, A Child, pending in the 216th Judicial District Court, Bandera County, the Honorable Stephen B. Ables and the Honorable Susan Baker presiding.

2. This court will refer to the trial court's ORDER HOLDING RESPONDENT IN CONTEMPT FOR FAILURE TO PAY CHILD SUPPORT, GRANTING JUDGMENT FOR ARREARAGES, AND COMMITMENT as "the judgment."

3. Any other complaints Bowie may have about his civil contempt commitment are premature, and we do not address them here. See In re Anascavage, 131 S.W.3d 108, 112 (Tex. App.-San Antonio 2003, orig. proceeding).