Ex Parte Hardin

344 S.W.2d 152 (1961)

Ex parte Hubbard L. HARDIN.

No. A-8153.

Supreme Court of Texas.

February 22, 1961.

Ernest L. Sample, Lynn Walker, Beaumont, for relator.

Guy H. Carriker, Nederland, for respondent.

STEAKLEY, Justice.

This is an original habeas corpus proceeding in which relator, Hubbard L. Hardin, seeks release from the custody of the Sheriff of Jefferson County, Texas.

The record before us consists of duly certified copies of "all the court orders entered in the Divorce Minutes of the Criminal District Court of Jefferson County, Texas, pertaining to Cause No. 48,768-C, styled Ann C. Hardin v. Hubbard L. Hardin," together with photostatic copies of the "Civil Docket, District Court case No. 48,768-C," attached thereto and bearing the certification of the District Clerk.

The orders are as follows: order entering judgment nunc pro tunc, dated September, 26, 1960; nunc pro tunc judgment of divorce, child custody, and child support payments entered September 30, 1960, reciting that the cause "came on to be heard on March 13, 1959"; and order "Entered this 5 day of December, 1960," holding relator in contempt of court and assessing a fine of $100 and three days in the county jail, ordering relator to pay $1,199.50, "back child support by December 5, 1960," reducing the child support payments to $28 weekly (the nanc pro tunc judgment setting these payments at $56 weekly), and further ordering that "If said $1199.50 payment is not made by December 5, 1960, then Defendant shall be held in contempt of Court and confined in the County Jail until he purges himself by payment of said sum."

The statement of facts discloses that at the beginning of the hearing on December 1, 1960, pursuant to which the order of December 5, 1960, was entered, the court stated that the hearing was not on "a contempt matter" and that "On 9-17-60, he (referring to Relator) was held in contempt." Apparently, then, relator is in custody pursuant to docket entires as follows: "Divorce granted plaintiff" "3-13-59"; "9-17-59" "defendant is found guilty of contempt *153 of court for failure to pay $1067.00 back child support and ordered to jail until he purges himself * * *"; "3-7-60. Deft. Still in contempt but is ordered released to pay each week as ordered"; "7-28-60. Deft. Still in contempt under order of 9-17-59 & copias ordered issued for his arrest"; "9-30-60. Deft. Released from custody and ordered to pay $35.00 each 2 wks. 1st payment due October 15-60 * * *", "10-27-60. Hearing Reset for December 1, 1960. Defendant ordered to continue to pay $35.00 every two weeks * * *"; "12-1-60. Amount of support fixed at $28.00 per wk. & deft. Held in contempt for failure to pay $900.00 back child support & ordered to jail until paid."

Each of the foregoing docket entries is over the signature of Honorable Owen M. Lord, Judge Presiding.

The record does not disclose that there was any summons, notice or hearing in open court in connection with the docket entry of September 17, 1959, first finding relator guilty of contempt, or the docket entries of March 7, 1960, and July 28, 1960, reciting that the relator was "still in contempt." Relator was thus not accorded due process of law. Ex parte Hill, 122 Tex. 80, 52 S.W.2d 367. Courts are without power to summarily punish for contempt not in the presence of the court. Ex parte Pyle, 134 Tex. 148, 133 S.W.2d 565. There must be notice and an opportunity to be heard, together with evidence heard by the court to sustain its judgment of contempt. Ex parte White, 149 Tex. 155, 229 S.W.2d 1002.

Moreover, the record before us does not disclose any written order of commitment pursuant either to the docket entries or to the judgment of contempt entered December 5, 1960. It is well settled that a written order of commitment, which is the warrant, order or process by which a court directs a ministerial officer to take a person to jail and to detain him there, is an essential prerequisite to the imprisonment of a person for contempt. Ex parte Martinez, Tex., 331 S.W.2d 209; Ex parte Puckitt, 159 Tex. 438, 322 S.W.2d 597; Ex parte Arapis, 157 Tex. 627, 306 S.W.2d 884; Ex parte Smart, 152 Tex. 229, 256 S.W.2d 398; Ex parte Palmateer, 150 Tex. 510, 243 S.W.2d 160; Ex parte Eager, 128 Tex. Cr.R. 97, 79 S.W.2d 136; Ex parte Ray, 101 Tex.Cr.R. 432, 276 S.W. 709; Ex parte Alderete, 83 Tex.Cr.R. 358, 203 S.W. 763.

Relator is ordered discharged.