Roy Witcher v. R. Darryl Bennett--Appeal from 4th District Court of Rusk County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00069-CV

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ROY WITCHER, Appellant

V.

R. DARRYL BENNETT, Appellee

On Appeal from the 4th Judicial District Court

Rusk County, Texas

Trial Court No. 2002-24

Before Morriss, C.J., Carter and Cornelius,* JJ.

Memorandum Opinion by Justice Carter

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*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

MEMORANDUM OPINION

The parties to this appeal, Roy Witcher and R. Darryl Bennett, were previously involved in litigation over real property located in Rusk County. See Witcher v. Bennett, 120 S.W.3d 922 (Tex. App. Texarkana 2003, pet. denied). That case resulted in a determination that the disputed property was owned by Bennett, and Witcher was permanently enjoined from entering on Bennett's property. Id. at 924. Bennett alleged Witcher continued to trespass on Bennett's property and moved the trial court to hold Witcher in contempt. After the hearing, the trial court made such a finding and ordered Witcher confined in the Rusk County jail for six months. Witcher appeals that order of contempt.

On appeal, Witcher claims he had no notice of the injunction; the award of attorney's fees was not supported by the evidence; and such attorney's fees were not reasonable. For the reasons stated below, we dismiss this appeal for want of jurisdiction.

Decisions in contempt proceedings are not appealable. Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex. 1967); Metzger v. Sebek, 892 S.W.2d 20, 55 (Tex. App. Houston [1st Dist.] 1994, writ denied) (citing Ex parte Williams, 690 S.W.2d 243 n.1 (Tex. 1985)). A contempt judgment is reviewable only by a petition for writ of habeas corpus (if the contemnor is confined) or a petition for writ of mandamus (if no confinement is involved). See In re Long, 984 S.W.2d 623, 625 (Tex. 1999); Kidd v. Lance, 794 S.W.2d 586, 587 (Tex. App. Austin 1990, no writ); see also Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 827 (1960) ("We have uniformly held in this State, however, that the validity of a contempt judgment can be attacked only collaterally and that by way of habeas corpus."). Decisions in contempt proceedings are not appealable, even when appealed along with a judgment that is appealable. Metzger, 892 S.W.2d at 55.

Considering the above authorities, we conclude we do not have jurisdiction to hear Witcher's appeal from this contempt proceeding.

We dismiss the appeal for want of jurisdiction.

Jack Carter

Justice

Date Submitted: January 9, 2006

Date Decided: January 10, 2006