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In re Rivas-Luna

Court of Appeals of Texas, Eighth District, El Paso

May 31, 2017

IN RE: LETICIA RIVAS-LUNA, RELATOR

         AN ORIGINAL PROCEEDING IN MANDAMUS

          Before McClure, C.J., Rodriguez, and Palafox

          OPINION

          YVONNE T. RODRIGUEZ, Justice

         Leticia Rivas-Luna has filed a mandamus petition against the Honorable Yahara Lisa Gutierrez, Judge of the 65th District Court of El Paso County, Texas, to challenge a contempt order on the ground that Respondent did not advise Relator of her right to be represented by counsel at the contempt hearing. We conditionally grant mandamus relief.

         FACTUAL SUMMARY

         Relator and Luna were divorced on August 28, 2015, and the parties were named joint managing conservators of the children with a standard possession order. Luna subsequently filed a petition for enforcement of possession alleging that Relator had denied him access to the children on twenty-five occasions. In his second amended motion for enforcement, Luna specifically requested that Relator be confined in the county jail for eighteen months, and that she be placed on community supervision for two years following her release from jail. On June 9, 2016, Relator attended the enforcement hearing without counsel. The following exchange took place at the beginning of the hearing when the court asked for announcements and Relator identified herself:

[The Court]: All right. And you'll be representing yourself.
[Relator]: I couldn't afford an attorney so I'm here to do the best I can.
[The Court]: Okay. I want you to understand that I'm not going to treat you any differently than I would a lawyer. Okay?
[Relator]: Correct.

         The trial court did not announce a ruling on the enforcement motion at the conclusion of the hearing. On August 29, 2016, the court signed an order finding Relator in contempt as alleged in each of the twenty-five counts of contempt set forth in Luna's motion. The court ordered Relator confined in the El Paso County Jail for 30 days on each separate violation until she has complied with the court's order that she pay attorney's fees to Jeff Rago in the amount of $1, 000.[1] The court suspended commitment and placed Relator on community supervision for twenty-four months through the El Paso County Domestic Relations Office, and it further provided that community supervision would be terminated when she paid the attorney's fees required by the contempt order.

         AVAILABILITY OF MANDAMUS RELIEF

         The first issue the Court must address is whether mandamus or habeas corpus is the appropriate avenue to challenge the contempt order. It is well established that an order of contempt is not appealable. In re Long, 984 S.W.2d 623, 625 (Tex. 1999); Ex parte Gray, 649 S.W.2d 640, 642 (Tex.Crim.App. 1983). If the contemnor has been confined or released on bond, a contempt order is reviewed by petition for writ of habeas corpus. See Rosser v. Squier, 902 S.W.2d 962, 962 (Tex. 1995). A contempt order that suspends the commitment and places the contemnor on community supervision can be reviewable by habeas corpus if it imposes conditions which constitute a sufficient restraint on liberty. See In re Pierre, 50 S.W.3d 554, 558-59(Tex.App.--El Paso 2001, orig. proceeding)(requirements that contemnor report monthly to community supervision office and remain in the county were a restraint on liberty); In re Ragland, 973 S.W.2d 769, 771 (Tex.App.--Tyler 1998, orig. proceeding)(requirement that contemnor perform community service each week for a year constituted a restraint on liberty). If a contempt order does not involve confinement or some type of restraint on liberty, the only possible relief is a writ of mandamus. In re Long, 984 S.W.2d at 624.

         Relator is not in jail or on bond. The contempt order suspended the commitment and placed her on community supervision, but the only condition imposed is that Relator pay attorney's fees in the amount of $1, 000 ($84 per month until paid). Courts have held that suspended contempt orders which only require the contemnor to pay attorney's fees and otherwise comply with the trial court's orders do not constitute a sufficient restraint on liberty to allow the contemnor to challenge the contempt order by habeas corpus. See Ex parte Hughey, 932 S.W.2d 308, 310-11 (Tex.App.--Tyler 1996, orig. proceeding)(community supervision order only required contemnor to pay child support and attorney's fee arrearages and otherwise comply with the court's orders); Ex parte Sealy, 870 S.W.2d 663, 665-66 (Tex.App.--Houston [1st Dist.] 1994, orig. proceeding) (suspended contempt order only required contemnor to pay attorney's fees and costs and otherwise comply with visitation orders). The mere ...


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