In Re David Smith v. The State of Texas

 
Writ of Habeas Corpus Granted, Opinion issued December 14, 2011
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-11-01427-CV
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IN RE DAVID SMITH, Relator
 
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Original Proceeding from the 255th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-07-18708-S
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OPINION
Before Justices Morris, Francis, and Myers
Opinion by Justice Francis
 
 
Before the Court is relator's petition for habeas corpus
relating to the trial court's commitment order dated October 18, 2011.
Relator complains that the trial court ordered his incarceration despite
evidence proving he was unable to pay the amount of child support owed.
We agree with relator. Accordingly, we grant the writ of habeas corpus,
set aside the order of commitment, and order relator discharged.
A contempt order imposing a coercive restraint is void and
subject to collateral attack by habeas corpus if the condition for
purging the contempt is impossible of performance. Ex parte Dustman, 538
S.W.2d 409, 410 (Tex. 1976) (orig. proceeding). In other words, “a
person cannot be incarcerated indefinitely for contempt if he or she
does not have the ability to perform the condition required for
release.” In re Brownhill, No. 14-07-00346-CV, 2007 WL 1624776, at *2
(Tex. App.-Houston [14th Dist.] June 7, 2007, orig. proceeding).
 
Accordingly, a person who is obligated to pay child support may plead,
as an affirmative defense to an allegation of contempt, that he: “(1)
lacked the ability to provide support in the amount ordered; (2) lacked
property that could be sold, mortgaged, or otherwise pledged to raise
the funds needed; (3) attempted unsuccessfully to borrow the funds
needed; and (4) knew of no source from which the money could have been
borrowed or legally obtained.” Tex. Fam. Code Ann. § 157.008(c) (West
2008). The obligor is required to prove this affirmative defense by a
preponderance of the evidence. Ex parte Roosth, 881 S.W.2d 300, 301
(Tex. 1994) (orig. proceeding).
In this case, the court required relator to make a lump sum
payment of $1000 toward his child support arrearage. Relator testified
before the court that he was not able to pay a lump sum, addressing each
of the four elements required by § 157.008(c). The attorney general did
not present any evidence to contradict relator's testimony, nor any
evidence that relator had the ability to pay the $1000 at the time of
the hearing. Relator conclusively established his inability to pay the
amount owed; denying relator's petition for habeas corpus in this
instance would, in effect, “authorize the trial court to confine the
relator for the balance of his natural life.” See Ex parte Rojo, 925
S.W.2d 654, 656 (Tex. 1996) (orig. proceeding).
Therefore, we GRANT habeas corpus relief and VACATE the
October 18, 2011, order of commitment signed by Honorable Lori C.
Hockett, presiding judge of the 255th Judicial District Court of Dallas
 
County, Texas, in cause number DF-07-18708-S, styled In the Interest of
Triniti Lajames Dabney, a Child. We ORDER that relator David Smith be
unconditionally released and discharged from the custody of the Sheriff
of Dallas County based on that same order of commitment. We further
DISCHARGE the bond paid by relator in accordance with this Court's order
of October 21, 2011.
 
MOLLY FRANCIS
JUSTICE
111427F.P05
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