in Re Mark Lee Newby, 370 S.W.3d 463

Background

This is an original proceeding challenging a contempt order in a divorce enforcement case; RPI filed motions for child-support enforcement and for enforcing a protective order; the trial court held relator in contempt for 16 missed child-support payments, 16 health-care reimbursements, and 50 violations of the protective order, sentencing him to 24 months’ confinement for criminal contempt and then incarcerating him until purge of civil contempt.
The purge conditions required payment of $15,426.01 arrearages plus six percent interest, plus $11,421 in attorney’s fees, plus monthly payments for ongoing child support and health care premiums.
Relator argued the 24-month criminal-contempt sentence violates the right to a jury trial; he also challenged the civil contempt purge amounts and the trial judge’s comments.
Relator contends that he did not waive the jury trial right, and the record shows the court did not properly inform him of the right to a jury trial; the sentence exceeds six months when aggregated, and thus required jury waiver or trial.
The court held the criminal contempt portion void for lack of proper jury waiver, modified the civil-contempt purge amounts to reflect only amounts for which relator was actually held in contempt, and vacated the attorney’s-fees portion helping purge, leaving amended purge terms totaling $10,188.32.
The opinion also discusses preservation of the inability-to-pay defense and notes the civil-purge-amount issue as the principal remedy, with other issues overruled or deemed nonessential to the decision, and DENIES habeas relief on the remaining civil-contempt portion as modified.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was relator entitled to a jury trial for the criminal-contempt sentence?	Newby contends his 24-month confinement violated jury-trial rights.	The right to jury trial in contempt is not absolute; only serious criminal contempts require a jury trial.	Criminal-contempt portion void; jury-trial issue sustained.
Was the civil-purge amount properly limited to amounts actually found in contempt?	Newby argues purge should match the actual contempts found; no support for additional sums.	RPI sought full arrearage and fees as purge, including amounts not tied to specific contempts.	Civil purge modified to $10,188.32; invalid portions (attorney’s fees and future payments) void.
Was relief for inability to pay properly preserved and considered?	Newby claimed inability to pay to purge, especially for past-due arrearage.	Relator did not preserve inability-to-pay defense for the child-support motion.	Inability-to-pay not preserved; issue overruled.
Did the trial judge's remark about 'It’s not the truth' implicate admissibility rules?	Comment could improperly influence weight of evidence.	Comment related to admissibility ruling and not directed at jury; no reversible error.	Overruled; no reversible error.

Key Cases Cited

Muniz v. Hoffman, 422 U.S. 454 (U.S. 1975) (criminal contempt with serious punishment requires jury trial)
Ex parte Griffin, 682 S.W.2d 261 (Tex. 1984) (contempt involving potential criminal sanctions requires protections)
Ex parte Sproull, 815 S.W.2d 250 (Tex. 1991) (jury-trial rights in criminal contempt when punishment substantial)
Ex parte Werblud, 536 S.W.2d 542 (Tex. 1976) (definitions of petty vs. serious contempt; jury rights concerns)
Ex parte Sanchez, 703 S.W.2d 955 (Tex. 1986) (right to jury when multiple counts could aggregate beyond six months)
Davila, 718 S.W.2d 281 (Tex. 1986) (voids entire order when invalid counts render purge improper)
Patillo, 32 S.W.3d 907 (Tex. App. Corpus Christi 2000) (modify contempt orders to reflect actual purging amounts; preserve valid portions)
Williams, 866 S.W.2d 751 (Tex. App. Houston 1993) (partial voids; preserve valid portions; basis for modification approach)
Anascavage, 131 S.W.3d 108 (Tex. App. San Antonio 2004) (cannot hold relator in contempt indefinitely for future payments; future-payments void)