Texas Judiciary Online - HTML Opinion

Conclusion

We conclude that by = refusing to=20 allow relator to present evidence of an inability-to-pay defense, = the=20 trial court violated relator=3Ds due process rights; = therefore, we hold that relator=3Ds confinement = pursuant to the=20 April 16 commitment order is void. Accordingly, we grant=20 relator=3Ds petition for writ = of habeas=20 corpus, vacate the April 16 order in its entirety, order relator = released=20 from the bond set by this court on April 25, 2007, and order = relator=20 discharged from custody.^{^[6]}

/s/ =20 Richard H. Edelman

Justice

Petition Granted and = Memorandum=20 Opinion filed June 7, 2007.

Panel consists of = Justices=20 Yates, Edelman, and Seymore.

^{^[1]} =20 Relator was taken into = custody on=20 February 12, but he was ordered released the following day. = The=20 reason for relator=3Ds release is not indicated in our = record. =20

^{^[2]} =20 See In re = Gawerc, 165 S.W.3d 314, 315 (Tex. 2005) (orig. = proceeding); Ex parte Rojo, 925 S.W.2d 654, 655 (Tex. 1996) = (orig.=20 proceeding); Ex parte Chambers, 898 S.W.2d 257, 261 (Tex. = 1995)=20 (orig. proceeding) (noting that involuntary inability to comply = with an=20 order is a valid defense to criminal contempt).

^{^[3]} =20 See Ex parte = Rojo, 925 S.W.2d at 656. An = opportunity to=20 defend against contempt charges is an important due process right=20 belonging to a constructive contemnor. In re Rowe, = 113 S.W.3d=20 749, 752 (Tex. App.CAustin 2003, orig. proceeding) (stating = that an=20 opportunity to defend against charges is Aan alleged contemnor=3Ds most fundamental due process = right@); see Ex parte Gordon, 584 = S.W.2d 686, 688=20 (Tex. 1979) (orig. proceeding) (noting that constructive contemnor = must be=20 given opportunity to meet the charges of contempt by defense or=20 explanation).

^{^[4]} =20 At the conclusion of the = compliance=20 hearing, the trial judge found relator was Anot in compliance,@ but did not specify which contempt = order was=20 violated.

^{^[5]} =20 See Ex parte = Swate, 922 S.W.2d at 124; Ex parte = Price, 741=20 S.W.2d 366, 367 (Tex. 1987) (orig. proceeding) (stating that = commitment=20 order must inform the contemnor in Aclear, specific and unambiguous = words@ how to gain release from contempt); = Ex parte=20 Rohleder, 424 S.W.2d 891, 892B93 (Tex. 1967) (concluding that = continuing=20 imprisonment without the ability to bring about one=3Ds own release is imprisonment beyond the = powers of=20 the trial court); see also In re Gawerc, 165 S.W.3d at 315 = (finding=20 evidence presented at time of commitment established relator could = not=20 purge himself of the civil contempt); Ex parte Delcourt, = 888 S.W.2d=20 811, 812 (Tex. 1994) (rejecting argument that subsequent = additional=20 contempt judgments and commitments may be freely signed weeks=20 later).

^{^[6]} =20 This does not affect the = agreed order=20 or the February order or otherwise exonerate relator from his = obligation=20 to pay the child support arrearage.=20