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Ex parte Hayes

Court of Appeals of Texas, Fifth District, Dallas

July 7, 2017

EX PARTE LOREN TODD HAYES, Relator

         Original Proceeding from the 254th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-05-19243

          Before Justices Bridges, Fillmore, and Schenck

          MEMORANDUM OPINION

          ROBERT M. FILLMORE JUSTICE

         On the Court's own motion, we withdraw and vacate our prior opinions and orders dated May 9, 2017, and June 30, 2017. The following is now the opinion of the Court.

         Relator Loren Todd Hayes is confined in the Dallas County jail as a result of the trial court's March 6, 2017 order holding him in criminal and civil contempt for failing to pay court-ordered child support. Relator filed his petition for writ of habeas corpus on May 5, 2017 claiming the underlying commitment order is void and his due process rights are being violated. He seeks to be discharged from confinement. We denied the petition because the record did not show that relator was in custody at the time of filing the petition and did not include a transcript of the trial court's March 6, 2017 hearing. Relator filed proof of current confinement and a reporter's record with his May 29, 2017 motion for rehearing, which is now before the Court. By order dated June 8, 2017, we requested the real party in interest and respondent to file responses to the motion for rehearing and the petition for writ of habeas corpus by June 15, 2017. No responses were filed. We grant relator's motion for rehearing and deny relator's petition for writ of habeas corpus.

         Procedural History

         Relator's divorce was finalized on June 29, 2007. The final decree ordered relator to pay monthly child support. By May 2008, relator was in arrears on those payments. In a May 1, 2008 order enforcing the child support obligation, the trial court found relator in contempt but suspended a commitment to county jail and placed him on community supervision. By November 2009, relator was $21, 435.61 in arrears. In a November 19, 2009 order, the trial court granted judgment on the arrearages against relator and ordered him to pay $200.00 a month until the judgment was satisfied in full or "on termination of the child support obligation for any child the subject of this suit." The court continued the 2008 suspension of its commitment order and continued relator's community supervision. The court entered a similar order on December 2, 2013. By December 2014, relator's arrearages had reached $34, 440.29. On December 8, 2014, the trial court entered an order enforcing the child support obligation but again suspended the commitment, placed relator on community supervision, and set up a monthly payment plan. Following the 2014 order, it appears relator paid monthly until he lost his job and failed to pay the October, November, and December 2016 payments and the January 2017 payment. As a result, the Dallas County Domestic Relations Office moved to revoke relator's community supervision and to enforce the child support order.

         Relator appeared in person and through counsel at the March 6, 2017 hearing on the motion to revoke. Relator testified that he missed the four payments because he lost his job and could not pay. In the past he could only find work paid through straight commissions. But he testified that he was able to pay and did pay his child support obligations when he was employed, sometimes more than the monthly amount required, but he could not pay during times of unemployment. He also testified that he had been employed as a salaried employee since January 2017 and could now make the monthly payments. This was the first salaried job he has had in a number of years, so the child support obligations could be deducted automatically by the

         State from his paycheck. Relator testified that if he is confined in jail he will lose his job and be unable to pay monthly child support and the arrearages. The evidence showed that relator was required to pay $13, 300.00 between November 2014 and the date of the hearing and had paid $12, 286.54 during that time.

         In a March 6, 2017 order, the trial court granted the motion to revoke, and relator was taken into custody. The court ordered relator to remain in custody for 180 days and until relator has paid the full child support arrearages of $34, 440.29 and $208.00 in fines and court costs. Specifically, the order states that the court revokes the community supervision and orders the following:

(a). that Obligor shall be committed and confined in the County Jail of Dallas County, TX., for 180 days, and
(b). until such time as Obligor has paid the court fine to the Dallas County Domestic Relations Office, in the amount of $100.00, as imposed and ordered on December 2, 2013; and
(c). until such time as Obligor has paid the full child support arrearages of $34, 440.29; and
(d). until such time as Obligor has paid the full amount of $108.00 as costs of Court to the Dallas ...

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