IN RE: ALBERT ACEVEDO, JR.--Appeal from County Court at Law No 1 of Victoria County

NUMBER 13-05-335-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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IN RE ALBERT ACEVEDO

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On Petition for Writ of Habeas Corpus ___________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Per Curiam Memorandum Opinion

Albert Acevedo, Jr., relator, has filed a petition for writ of mandamus arguing that his due process rights were violated by an judgment of contempt entered against him by the judge of the County Court at Law No. 2 of Victoria County. Because a writ of attachment for relator's arrest has been issued and is outstanding, this Court will construe Acevedo=s petition as a petition for a writ of habeas corpus. See Ex parte Casillas, 25 S.W.3d 296, 298 n.1 (Tex. App.BSan Antonio 2000, orig. proceeding).

Acevedo, an attorney representing a criminal defendant before the Victoria County Court at Law No. 2, allegedly failed to appear for announcements on February 9, 2005, although he attempted to file a motion for continuance with the court on that date. On February 10, the court issued a Ashow cause citation@addressed to Acevedo which stated

You are hereby commanded to appear before the honorable County Court at Law No. 2 of Victoria County, Texas at the Courthouse of said County in Victoria, Victoria County, Texas on the 23rd day of February, 2005 at 9:00 o=clock a.m. to answer to the demand made by [the county court judge]. Nature of the above mentioned demand is substantially to have a hearing to show cause why you should not be held in contempt of court.

Acevedo asserts that this show cause citation was not personally served on him, and the record establishes that the Officer=s Return and Certificate of Delivery accompanying the citation was incomplete and unsigned. Acevedo did appear at the originally scheduled show cause hearing on February 23, 2005 and moved to recuse the sitting judge of the county court at law. A judge was assigned to hear the recusal and the show cause hearing was apparently rescheduled for March 24, 2005. A certified letter notifying Acevedo of the upcoming hearing was sent through the mail and he was again not personally served with notice of the proceedings. The Agreen card@ indicating receipt of the letter showing the new hearing time and date was returned signed by someone other than Acevedo.

Acevedo did not appear at the March 24 hearing and, in his absence, the court entered a judgment of contempt. The trial court imposed a $3,000 fine and assessed ten days= confinement in the Victoria County Jail. A writ of attachment directing the Victoria County sheriff to arrest Acevedo for this finding of contempt was issued by the judge on the same day. This order was later amended on May 18 to reduce the fine to $500, the statutory limit for such fines.

Acevedo attempted to appeal the order holding him in contempt to this Court. We dismissed the appeal for lack of jurisdiction, holding that contempt orders can only be reviewed by the filing of original proceedings with the courts of appeals. See Acevedo v. State, No. 13-05-222-CR, 2005 Tex. App. LEXIS 3668 at *3 (Tex. App.BCorpus Christi May 12, 2005, no pet.) (per curiam). Acevedo then filed his petition for writ of habeas corpus with this Court. Pending our decision on this writ of habeas corpus, this Court granted Acevedo the right to post bail upon his being taken into custody by an order dated May 25, 2005.

An original habeas corpus proceeding is a collateral attack on a contempt judgment. Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967); In re Houston, 92 S.W.3d 870, 875 (Tex. App.BHouston [14th Dist.] 2002, orig. proceeding). A writ of habeas corpus will issue if the contempt order is void because it deprives the relator of liberty without due process of law, see Ex parte Swate, 922 S.W.2d 122, 124 (Tex. 1996), or because the order of contempt was beyond the power of the court to issue. See Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980); In re Houston, 92 S.W.3d at 875-76.

In Ex parte Johnson, 654 S.W.2d 415, 422 (Tex. 1983), the Texas Supreme Court held that a court should not try charges of criminal constructive contempt in the alleged contemnor's absence, but should instead issue a capias or writ of attachment to bring the alleged contemnor before the court. AConstructive contempt is a violation of a court order outside the presence of the court, including failure to appear for a hearing.@ Id. (citing Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979); Ex parte Cooper, 657 S.W.2d 435, 437 (Tex. Crim. App. 1983)). See also Ex Parte Alloju, 907 S.W.2d 486, 487 (Tex. 1995) (per curiam) (Athe justice court should not have proceeded on the contempt charges in [defendant=s] absence without a waiver of his right to be present@); In re White, 45 S.W.3d 787, 790 (Tex. App.BWaco 2001, orig. proceeding) (requiring personal appearance of defendant at contempt hearing). The Ex parte Johnson opinion also addressed the issue of a party=s right to waive his presence at the contempt hearing:

It is the burden of the moving party, not the accused, to affirmatively demonstrate that a defendant in a criminal proceeding had sufficient notice to appreciate the criminal nature of the proceeding against him and that he has knowingly, intelligently, and voluntarily waived his right to be present and participate at trial. . . . Courts, moreover, must exercise due care to ensure the accused is aware of the processes taking place and of his right and obligation to be present. . . . This is particularly true in cases of constructive criminal contempt where the alleged contemptuous act has taken place outside the presence of the court.

Ex parte Johnson, 654 S.W.2d at 421 (citations omitted).

Given that there was no affirmative finding by the trial court that Acevedo knowingly and intelligently waived his right to attend and participate at the hearing,[1] the trial court could not lawfully have found Acevedo guilty of contempt in his absence, but rather should have issued a capias or writ of attachment and brought him before the court to face the contempt charges.

Furthermore, the record establishes that the show cause order and service of this order was inadequate and could not support the trial court=s finding. Due process requires that the alleged contemnor be personally served with a show cause order or that it be established that he had knowledge of the content of such order. Ex Parte Blanchard, 736 S.W.2d 642, 643 (Tex. 1987) (per curiam). In this case, the officer=s return was incomplete and does not indicate that Acevedo was personally served with the original show cause citation, and the notice sent to Acevedo alerting him to the change in the date of the show cause hearing was sent to him via certified mail, not personal service. In addition, the show cause notice Adoes not specify the contemptuous acts@ as is required. See id. Show cause notices must advise the alleged contemnor of the specific acts of contempt and provide notice that criminal confinement and a criminal penalty will be sought as punishment. See id.; In re Houston, 92 S.W.3d at 877. The terse language of the show cause notice issued in this case accomplished none of these tasks, and therefore violated the due process rights of Acevedo as the accused party.

Furthermore, we note that the original order of contempt assigned a fine of $3,000. This was in violation of the contempt statute, which authorizes fines of not more than $500 or confinement in county jail for not more than six months, or both. See Tex. Gov=t Code Ann. ' 21.002(b) (Vernon 2004). The order was later modified on May 18, 2005, following Acevedo=s first appeal to this Court, in order to conform to the statutory limits for contempt fines. While a trial court may modify typographical errors in a contempt judgment while it maintains plenary power, see Ex parte Hogan, 916 S.W.2d 82, 85 (Tex. App.BHouston [1st Dist.] 1996, orig. proceeding), the trial court may not modify a contempt judgment weeks after the original judgment has been entered without rehearing the issue. See In re Houston, 92 S.W.3d at 878 (citing Ex parte Delcourt, 888 S.W.2d 811, 812 (Tex. 1994); Ex parte Anderson, 900 S.W.2d 333, 335 (Tex. 1995). Thus, the original order was entered in violation of the statute while the modified version of the order was entered too late to satisfy Acevedo=s due process rights.

Therefore, given that the record establishes that Acevedo was not present at the show cause hearing in which he was sentenced to a punitive fine and ten days= imprisonment, as well as the various problems with the service and contents of the contempt judgment, we conclude that the contempt order signed on March 24, 2005 and amended May 18, 2005 is void as it deprived Acevedo of liberty without due process of law. See Ex parte Swate, 922 S.W.2d at 124. We order Acevedo discharged and released from the bond he executed pursuant to our May 25, 2005 order.

PER CURIAM

Do not publish. Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 22nd day of July, 2005.

[1]In the findings of fact filed with the judgment of contempt, the county court at law judge noted that, AAt 8:55 a.m. on March 24, 2005, Mr. Acevedo contacted the Court and indicated that he could not appear due to a conflicting trial setting in Bexar County. Mr. Acevedo was informed by the Court that the hearing would be held in his absence.@ However, given that Acevedo was not properly served and may not have known about the March 24 hearing before calling the court that morning, we do not consider this phone call to have served as an effective waiver of Acevedo=s right to be present at the hearing. Acevedo was pointing out the impossibility of his being present, not indicating his willingness to voluntarily absent himself from the proceedings. Moreover, there was still no affirmative finding of waiver by the trial court. See Ex parte Johnson, 654 S.W.2d at 421.