In re Hall, 433 S.W.3d 203

Background

Clifford Hall was ordered (July 25, 2012) to pay $530/month (including $50 toward a prior judgment); payments were to be withheld from wages. The signed order is dated August 23, 2012.
Donna Lane filed a motion for enforcement (Apr. 19, 2013) alleging multiple missed/underpaid monthly support payments and custody/possession violations; Hall was served Apr. 30, 2013.
At the Nov. 18, 2013 enforcement hearing the trial court found Hall guilty of five counts of criminal contempt for missed support (Aug–Dec 2012) and three counts of civil contempt for possession/access violations; concurrent jail terms of 180 days were imposed for each criminal count; civil contempt detention conditioned on payment of $3,716 in attorney’s fees.
Hall filed habeas in this Court (Jan. 23, 2014) contending the commitment order was void for multiple reasons (including a wrongful September 1 finding, defects in the written order, lack of OAG notice, lack of willfulness, and repeal of Fam. Code §157.162(d)).
The trial court later entered agreed nunc pro tunc orders (Feb. 14, 2014) correcting the hearing date and court designation; this Court issued the writ, set bond, and ultimately struck only the September 1, 2012 contempt finding, denying relief on other claims and remanding Hall.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Severability of Sept. 1, 2012 contempt finding	Sept. 1 finding is factually wrong (Hall paid) and its inclusion voids the entire commitment order	Trial court separately listed each missed-payment count and assessed separate concurrent punishments	Only the Sept. 1 count was void and severable; that 180‑day confinement was stricken, remainder of order upheld
Notice / reliance on nunc pro tunc and incorrect cause number in motion	Commitment is void because it relied on an unsigned nunc pro tunc order and the motion used the wrong trial-court cause number, depriving Hall of notice	Motion and contempt order identified the July 25, 2012 order; caption and allegations made clear the dates/amounts alleged; trial court referenced the final order at hearing	Overruled — Hall had adequate notice of the order alleged and the motion met Fam. Code §157.002 requirements
Procedural sufficiency of written commitment (hearing date, court number, directive to sheriff)	Written commitment contained errors (wrong hearing date, wrong court, and allegedly failed to direct sheriff to take custody), rendering it void	Errors were corrected by agreed nunc pro tunc; the order’s language sufficiently directed the Harris County Sheriff to detain Hall	Overruled — nunc pro tunc fixed date and court; commitment language was sufficient to direct sheriff to take custody
Repeal of Fam. Code §157.162(d) ("purging" provision) / ex post facto claim	Repeal deprived Hall of an affirmative defense in effect when alleged missed payments occurred, so applying repeal at hearing was ex post facto and violated due process	Repeal was procedural, and Hall had opportunity (served Apr. 30, 2013) to become current by June 13, 2013 before repeal effective June 14, 2013; he did not cure arrearage by that date	Overruled — purging provision was substantive but repeal’s application did not violate Hall because he had a reasonable opportunity before repeal to avail himself of the defense; therefore no ex post facto violation

Key Cases Cited

Ex parte Barnett, 600 S.W.2d 252 (Tex. 1980) (courts’ power to punish contempt and need for written commitment to imprison)
In re Henry, 154 S.W.3d 594 (Tex. 2005) (habeas review of contempt orders; voidness standard)
Ex parte Rohleder, 424 S.W.2d 891 (Tex. 1967) (contumacious inability to comply defense and when contempt may be void)
Ex parte Johnson, 697 S.W.2d 605 (Tex. Crim. App. 1985) (distinguishing procedural vs. substantive changes for ex post facto analysis)
Ex parte Abahosh, 561 S.W.2d 202 (Tex. Crim. App. 1978) (retroactivity and deprivation of substantive protections)
Office of the Attorney Gen. v. In re, 422 S.W.3d 628 (Tex. 2013) (construction of §157.162(d) purging provision as akin to an affirmative defense)
Ex parte Gordon, 584 S.W.2d 686 (Tex. 1979) (habeas limited to unlawful restraint inquiry)
In re Stein, 331 S.W.3d 538 (Tex. App.—Houston [14th Dist.] 2011) (commitment order deficiency when it fails to direct sheriff to take custody)
Ex parte Hernandez, 827 S.W.2d 858 (Tex. 1992) (commitment order may be clerk or court issue but must direct officer to take custody)