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Ex parte McDaniel

Court of Appeals of Texas, Seventh District, Amarillo

March 22, 2017

EX PARTE ANTHONY MCDANIEL

         ORIGINAL PROCEEDING

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          Per Curiam

         Anthony McDaniel petitioned us for a writ of habeas corpus. Through it, he challenged the validity of the October 26, 2016 "Order of Enforcement by Contempt" executed by the trial court and the punishment levied therein, which punishment included his confinement in the Swisher County jail for 90 days.[1] We grant his petition.[2]

         On June 16, 2016, the trial court signed an Order in Suit to Modify Parent-Child Relationship designating the terms of possession for C.A.M., the child of McDaniel and his ex-wife Elizabeth Pratt. Pratt later moved the trial court to enforce the June 16th decree by way of contempt. She thought herself entitled to such relief because McDaniel allegedly breached various terms of the decree. One of the purported violations included McDaniel's failure to surrender the child on June 15, 2016.

         The trial court convened an evidentiary hearing on Pratt's motion, after which it pronounced McDaniel in contempt of court for failing to surrender the child on June 15, 2016.[3] So too did it subsequently sign an "Order of Enforcement by Contempt" on October 25, 2016, and stated therein that McDaniel violated the modification order by failing to 1) "appear at the Swisher County Courthouse to surrender the child on June 15, 2016, " and 2) "surrender the child on July 31, 2016, the child's birthday." Punishment for both violations then was set at ninety days incarceration in the Swisher County Jail.

         Before a person can be held in contempt for disobeying a court decree, the order "must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him." Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967) (orig. proceeding); see Ex parte MacCallum, 807 S.W.2d 729, 730 (Tex. 1991) (orig. proceeding) (per curiam); In re R.E.D., 278 S.W.3d 850, 858 (Tex. App.-Houston [1st Dist.] 2009, orig. proceeding). Indeed, one committed to jail for a civil contempt "should be able to find somewhere in the record the written order" providing the requisite details to which he must abide. Ex parte Padron, 565 S.W.2d 921, 924 (Tex. 1978) (emphasis added). "Oral orders are poor substitutes . . . ." Id. Consequently, a "contemnor cannot be held in constructive contempt . . . for actions taken prior to the time that the court's order is reduced to writing." Ex parte Chambers, 898 S.W.2d 257, 262 (Tex. 1995); Ex parte Huitrado-Soto, No. 05-16-00545-CV, 2016 Tex.App. LEXIS 6086, at *3 (Tex. App.-Dallas June 8, 2016, orig. proceeding) (mem. op.); In re Reynolds, No. 02-10-00216-CV, 2010 Tex.App. LEXIS 8033, at *3-4 (Tex. App.-Fort Worth Sept. 20, 2010, orig. proceeding) (mem. op.).[4] In other words, a judgment of contempt may not rest upon the violation of an oral order. Ex parte Russell, 875 S.W.2d 467, 469 (Tex. App.-Austin 1994, orig. proceeding); Ex parte Mikeska, 608 S.W.2d 290, 291 (Tex. Civ. App.-Houston [1stDist.] 1980, orig. proceeding).

         As previously mentioned, the trial court found that McDaniel violated its order by, among other things, failing to surrender C.A.M. on June 15th. Yet, on June 15th, there was only an oral order by which he had to abide. The written one had yet to be signed by the trial court. And, because the violation occurred outside the court's presence, it necessarily constituted an alleged constructive contempt. Given these circumstances and the rule prohibiting one from being found in constructive contempt for actions taken before the trial court's order is reduced to writing, the finding of contempt relating to the June 15th omission was improper.

         Furthermore, in redressing the June 15th contempt, the trial court did not assign to it alone any particular punishment. Rather, the punishment levied encompassed all acts found contemptuous by the trial court. This too is problematic for the entire contempt order or judgment is void when the punishment levied for multiple acts of contempt encompasses both contemptable and non-contemptable acts. Ex parte Davila, 718 S.W.2d 281, 282 (Tex. 1986) (orig. proceeding) (per curiam); Ex parte Huitrado-Soto, 2016 Tex.App. LEXIS 6086, at *4-5; Ex parte Russell, 875 S.W.2d at 469-470. So, the contempt order at bar is void in its entirety.[5] Id.

         The October 26, 2016 order of contempt is reversed. Furthermore, we 1) order that Anthony McDaniel be unconditionally released and discharged from the custody of the Sheriff of Swisher County under the October 26, 2016 "Order of Enforcement by Contempt, " and 2) discharge any bond paid by him to secure his temporary release from custody under the October 26th decree.

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Notes:

[1] McDaniel is not currently incarcerated because he posted a $10, 000 appeal bond.

[2] On January 25, 2017, this Court requested that the real party in interest, Elizabeth Pratt, file a response to McDaniel's application by February 6. To date ...


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