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Ex parte Keith

Court of Appeals of Texas, Fourth District, San Antonio

November 22, 2017

EX PARTE Rollie Bryan KEITH

         Original Habeas Proceeding[1]

          Sitting: Marialyn Barnard, Justice, Luz Elena D. Chapa, Justice Irene Rios, Justice

          Luz Elena D. Chapa, Justice Concurring

          MEMORANDUM OPINION

          Marialyn Barnard, Justice

         Rollie Bryan Keith was arrested and jailed pursuant to an Order for Issuance of Capias issued by Associate Judge Eric J. Rodriguez. Keith has filed a petition for a writ of habeas corpus, complaining the Order and capias were issued in violation of his right to due process of law.

         Background

         The Office of the Attorney General filed a motion for enforcement of a child support order against Rollie Bryan Keith, seeking a judgment for arrearages and to hold Keith in contempt. Although Keith had not yet been served, on May 22, 2017, he filed an answer and an objection to the assignment of an associate judge. On June 20, Keith was served with a notice of hearing and an order to appear on June 26, 2017, in Room 411 of the Bexar County Courthouse. Room 411 is the location of the Bexar County Child Support Court, which is presided over by Associate Judge Eric Rodriguez. Keith moved for a continuance on the grounds that he received insufficient service and notice and that the matter could not be heard by the Associate Judge in Child Support Court. See Tex. Fam. Code Ann. § 201.005 (West Supp. 2017) (providing that referring court shall hear trial on merits if timely objection to associate judge is filed); id. § 157.062(c) (requiring service of notice not later than tenth day before hearing). At the hearing on the motion for continuance held in Presiding Court, District Court Judge Renée Yanta signed an order continuing the June 26, 2017 hearing and ordering the matter be reset at a mutually agreeable date and time in Presiding Court.

         Several days later, the Assistant Attorney General sent Keith's counsel an email, attaching a waiver of service and a draft reset order to be signed by Keith and his attorney. The draft reset order states the case is reset for August 30, 2017 at 8:31 a.m. in Room 411, the Child Support Court, and orders Keith to appear. However, the draft reset order had not been signed by a judge, and the Assistant Attorney General's email stated:

I am aware that you have objected to the Associate Judge; this is a mechanism to get the reset in place, not to get you to agree to the Associate Judge. I figure we can get a hearing set in Presiding once the service has been accomplished.

         Both Keith and his counsel signed the draft reset order resetting the hearing on the motion to enforce. Both noted that their signatures were made "subject to, and without waiving previous objection to associate judge." Counsel's sworn petition for a writ of habeas corpus states that he also spoke to the Assistant Attorney General on the telephone, who told counsel that the matter would not proceed on the date in the reset order because of Keith's objection to the associate judge and the previous order requiring a setting in Presiding Court.

         The trial court's docket sheet suggests the Associate Judge signed a Reset Order on June 29, 2017, and the subsequent Order For Issuance of Capias recites that Keith was served with a notice to appear on August 30, 2017, for a hearing in the case. However, Keith's counsel swears he has no evidence that a copy of the reset order and notice to appear, signed by the judge, was ever served. Neither the Attorney General nor Respondent controverted this assertion in their responses in this original proceeding.

         Neither Keith nor his counsel appeared in Child Support court on August 30, 2017. On September 11, 2017, the Associate Judge signed an order recommending issuance of a capias based upon Keith's failure to appear after having been "duly served with notice to appear at the designated date, time and place for a hearing on a Motion for Enforcement." This order was signed and "Approved and Ordered" by the Presiding Judge on September 12, 2017. A capias issued and Keith was arrested on October 4, 2017. His attorney filed this original habeas proceeding with a request for emergency relief the same day. Keith was released after this court granted the emergency motion.

         Discussion

         Relator is entitled to discharge in a habeas corpus proceeding if the order requiring his confinement is void, either because the court that issued the order lacked jurisdiction to enter it or because it deprived relator of his liberty without due process of law. In re Aguilera, 37 S.W.3d 43, 47, 53 (Tex. App.-El Paso 2000, orig. proceeding); see Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153, 154-57 (1961) (orig. proceeding). Keith contends the Order for issuance of Capias was issued in violation of his right to due process because he did not receive notice that ...


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