Original Proceeding on Petition for Writ of Habeas Corpus
consists of Justices Lloyd, Kelly, and Hightower.
Lamonica Fox has filed a petition for writ of habeas corpus,
raising four issues. Fox also filed a motion for emergency
relief. On March 20, 2019, we granted the emergency motion
and set bail at $1, 000.00. We directed real parties in
interest to file a response by April 3, but no response has
been filed. We grant the petition.
underlying case is a contempt proceeding for nonpayment of
child and medical support. The trial court signed an order of
contempt on August 16, 2017 and placed relator on community
supervision. A second amended motion to revoke suspension of
commitment was filed and a revocation hearing was held on
February 20, 2019. Community supervision was revoked by order
granting real party's motion on February 21, 2019.
commitment order is subject to collateral attack in a habeas
corpus proceeding. See In re Henry, 154 S.W.3d 594,
596 (Tex. 2005). The writ shall issue "if the trial
court's contempt order is void, either because it is
beyond the court's power or because the relator has not
been afforded due process." Id. In four issues,
Fox contends that the trial court deprived her of liberty
without due process and the commitment order is void.
first issue, Fox complains that the trial court's order
is void because she was deprived of due process when she
appeared at the hearing pro se and was not admonished of her
right to counsel. The hearing record does not indicate that
the trial court admonished Fox of her right to counsel.
Although the trial court addressed Fox's claim that she
was indigent and could not afford an attorney, the trial
court heard Fox's testimony and determined that Fox was
not indigent. Fox asked if she could have additional time to
try to obtain funds to hire an attorney, but the trial court
denied this request and proceeded with the revocation
Fourteenth Amendment guarantee of due process incorporates
the Sixth Amendment right to counsel in a criminal
prosecution. See In re Leon, No. 01-04- 00819-CV,
2004 WL 2306752, at * 2 (Tex. App.-Houston [1st Dist.] Oct.
14, 2004, orig. proceeding). This right extends to cases in
which the party may be deprived of liberty if she loses.
157.163 of the Texas Family Code requires the trial court
when hearing a motion for enforcement or a motion to revoke
community service to first determine if incarceration may
result and, if so, the court "shall inform a respondent
not represented by an attorney of the right to be represented
by an attorney and, if the respondent is indigent, of the
right to the appointment of an attorney." Tex. Fam. Code
§ 157.163(b). Thus, the trial court must admonish a
respondent of the right to counsel whether he or she is
indigent or not. See Ex parte Acker, 949 S.W.2d 314,
316 (Tex. 1997). And if the respondent is facing
incarceration, the trial court must either provide
court-appointed counsel or obtain a waiver of the right to
counsel. See In re Marks, 365 S.W.3d 843, 845 (Tex.
App.-Fort Worth 2012, orig. proceeding) (citing to
Argersinger v. Hamlin, 407 U.S. 25 (1972)).
the trial court determined that Fox was not indigent and thus
not entitled to appointed counsel, but the trial court denied
Fox's request for time to obtain retained counsel. The
record does not show that Fox waived her right to counsel.
The trial court's denial of Fox's request for time to
retain counsel violated her Sixth Amendment right to counsel.
See Leon, 2004 WL 2306752, at *3.
the trial court violated Fox's right to counsel and
deprived her of liberty without due process of law, the
February 21, 2019 order revoking suspension of commitment and
committing Fox to county jail is void. Because our resolution
of this issue is dispositive, we need not address her other
grant the petition and order Fox discharged from the custody
of the Harris County Sheriff and released from the bond she
posted until our final determination of her petition.