Ex Parte Hodge

389 S.W.2d 463 (1965)

Ex parte Richard Mack HODGE.

No. A-10646.

Supreme Court of Texas.

April 7, 1965.

John Howze, Lee Arnett, Odessa, for relator.

Merritt F. Hines, Midland, for respondent.

SMITH, Justice.

This is an original habeas corpus proceeding in which relator, Richard Mack Hodge, seeks release from the custody of respondent, the sheriff of Midland County, Texas. The relator is ordered discharged.

The order of commitment was issued out of the 142nd Judicial District Court of Midland, Texas, on October 12, 1964. The relator was confined under this written commitment on February 26, 1965. The commitment recites that relator was committed to jail for "the offense of contempt of court * * *." He was released on bond by order of this court pending a determination of the validity of the judgment ordering him confined.

The precise question with which we are concerned is whether on the record before us relator was denied constitutional due process. The record shows that the relator was committed to the custody of the sheriff of Midland County, Texas, by virtue of the above-mentioned order of commitment without the issuance of a show cause order by the trial court, and without a hearing. Clearly, the relator was denied due process when he was committed to the custody of the sheriff by virtue of the order of commitment alone. In cases involving constructive contempt like the present where the record does not show a show cause order was issued much less timely served, and where an adequate hearing was denied, the contempt judgment is invalid. See Ex parte Winfree, 153 Tex. 12, 263 S.W.2d 154, 157, 41 A.L.R.2d 1259 (1953).

The respondent, in effect, admits that relator was not accorded a hearing before the issuance of the order of commitment on October 12, 1964, or at any other time, but contends that the relator was not *464 being held in custody under that order. The respondent further contends that the relator was being held in custody under a capias issued on February 19, 1965, in Cause No. 16,016, The State of Texas v. Richard Mack Hodge, pending in the County Court of Midland County, Texas. The sheriff served the capias by arresting the relator and placing him in jail on February 26, 1965. The sheriff of Midland County, on March 1, 1965, accepted and approved an appearance bond in the amount of $1,000 to insure the relator's appearance in the County Court to answer the charges contained in the complaint pending there. The record discloses, however, that the sheriff declined to release the relator, assigning as his reason that relator was also being held by virtue of the commitment order of October 12, 1964.

On the facts before us we are constrained to hold that relator was denied due process of law. See Ex parte Hill, 122 Tex. 80, 52 S.W.2d 367 (1932); Ex parte Hardin, 161 Tex. 567, 344 S.W.2d 152 (1961); Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961).

Relator is ordered discharged.