*1 properly preserved, and cannot be been appeal. time on West
raised for the first (Tex. Corp. v. Kownslar
inghouse Credit 531; Insur Plasky v. Gulf
1973) 496 S.W.2d 581; (Tex.1960) 335 S.W.2d
ance Co. (Tex.Civ.App. v. Henderson
Schwertner dismissed, w. o. writ
1978) 575 S.W.2d (Tex.Civ.App. v. Johnston
j.; McLemore 347, no writ.
1979) 585 S.W.2d
Appellee’s brief contains two contending the doc
cross-points, one estoppel any recovery by precludes
trine
Appellant, contending that and the other bring authority to this
DHR was without action; carefully those
We have considered being
cross-points and overrule same as Appellee’s merit. brief concludes
without be reversed and prayer
with a that the case favor, Appellee’s in the alter
rendered in or
native, that the case be affirmed. judgment. affirm the trial court’s
We
AFFIRMED. ALMENDAREZ, Necho Relator.
No. Texas, Appeals of
Court of Civil
Fort Worth.
Aug. Sept.
Rehearing Denied
(on rehearing). *2 MASSEY, J.,
Before C. and HUGHES SPURLOCK, JJ.
OPINION HUGHES, Justice. Almendarez,
Necho in this habeas seeks re- proceeding, adjudication view contempt of the ren- against granted dered him. We the rela- pending tor’s writ final determination. He posted custody. bond and was released from 2, wife, 1979 the relator and his Almendarez, Charlotte were divorced. The relator monthly pay- was ordered to make ments of the $150.00 children 1, marriage beginning of the on 22, September attorney’s 1980 the district County office of Tarrant filed a motion for hearing charging show cause through September 1980 relator was in $3,000.00. arrears in the amount of An hearing order of show cause was upon issued and served him. hearing
November 1980 the was held. Upon the master’s recommendation the dis- guilty trict court held the relator of two contempt. counts of The first was for ar- rearages and the second was for his failure pay through Support Child Office. He was ordered to be committed to two day jail consecutive 180 terms from which by payment he could obtain release $3,300.00. arrearages in the amount of 1980 the relator was re- jail pursuant leased from to an order based promise $250.00 Novem- regular per ber and the $150.00 month support payments plus $100.00 $3,050.00. per month on an January attorney’s 1981 the district office filed a second motion for hearing. The November having 1980 release was order cited as been violated. The relator was notified of a Greer, Worth, appellant. Mark L. Fort set for March Curry, Atty., (The Tim Criminal Dist. and Lar- appear. but failed to relator was or- Brown, Worth, ry F. Atty., Asst. Dist. Fort days. dered to be committed for 180 This appellee. order, however, us.) is not before The first contends that the June contempt judg-
The record then reflects a ordering which ordered ment dated to 180 relator be committed the reason that his commitment is void for hearing held on pursuant to a show cause evidence to establish there was insufficient The states that he was that date. support his that he and refused to failed $3,865.00 through June arrears ability. children accordance with his *3 a show There is no motion for corpus Where a relator seeks habeas June 9 hearing nor citation as to the cause record, ground on the that he is unable to hearing although relief found in the the purge contempt by paying to ar- was cited himself of relator that the recites support, burden rearages in child he has the appear. establishing conclusively that he has no hearing, In relation to the June 9 two might expected to source from which he dated June 1981are found in the orders arrearage. pay The obtain funds to the granting the record. The first is an order must, by specific proof, establish Appeal Findings by relator’s “Notice (1) personal he lacks sufficient or real that Request Hearing by the Master and for mortgaged property which could be sold or Court”. The second order dated June 10 sum; (2) and that he to raise the needed temporarily jail pending him from released unsuccessfully attempted to borrow the has 15,1981. hearing The relator a set for June such as sum from financial institutions spent jail. evidently June 9 and 10 banks, unions, companies; credit and loan The 1981 a was held. source, (3) that he knows of no other and contempt judg- rendered a district court relatives, the sum including from whom was ordered confined for ment. Relator secured. could be borrowed or otherwise or until day 180 terms consecutive three (Tex. parte Lindsey, 574 Ex such time as he satisfied an 1978,original proceeding). Civ.App.—Dallas $3,835.00. through June 1 of at The evidence introduced the relator particular, found In the district court primarily hearing on June 15 went to the pay to as the district that the relator failed would his sources of income. Such evidence on November 1980 court had ordered proceeding appropriate more if a have been the probation of revoked the and therefore child to modification of future previously ordered. two 180 sentences support obligations were involved. How- findings Among specific its the district ever, we have before us the issue as to the failed to court found that the relator had sup- delinquent child ability pay to relator’s regular payment of due $150.00 make the port. although February he was em- on 1981 was that so. Recited able to do ployed and The showed that the rela evidence make the he was in for failure to pay his car keep was able to current tor payment 1 it was ordered February and pertinent per month at all ments of $148.41 jail that he be committed to times; voluntarily he incurred the also that sentence to contempt; act of with this that family by a obligation to maintain a second the two 180 he had served be served after wife. new probation had been day sentences on which that the relator failed to conclu- We hold begun was then revoked. Confinement resources, lacked sively establish that he scheduled habeas as to which this court that presently procurable, owned or either hearing. arrearag- satisfy the would be sufficient relator to obtain order for the In support. es on the ordered affirmatively appear that discharge it must that the The relator further contends is ordering his confinement the is for the reason Alvarado, contempt judgment void part void. Ex make the failed he that finding pro Paso (Tex.Civ.App.—El ordered, payment due as ceeding). supported by serving is not the motion as The relator also contends that the con- premise hearing. judgment ordering tempt his commitment is void because the order of release party re a requires process Due jail—dated from November 1980—had complete ceive full and notification of the finding of him of purged that he be him in order against charges opportunity afforded a reasonable to ade quately respond. Gordon, The district court’s “Order of Release (Tex.1979). S.W.2d 686 from Jail” is a form document which has relating long several blanks filled in to how was not Conceding that etc., spent jail, the relator had given being charged notice as to his with agreed manner in which he had being pay in default of the arrearages. paragraph ment, The last of the or- we persuaded nevertheless are not appears der that the entire order is as follows: void. *4 IS, that “IT _ THEREFORE ORDERED involving
A situation notify a failure to jail upon be released from his charged one be contempt to in of an arrear- month, promise pay to as set age particular as to a forth above. If as that for which payments promises a relator was found these and are contempt to be in carried out, presented Rine, in parte purged Contempt. Ex then he will be 603 S.W.2d of (Tex.Civ.App.—Waco 1980, original pro- 268 Upon payments failure to make these as ceeding). acknowledged There the court set forth above a warrant will be issued existing authority to the effect that a whole arrest, immediately and he will be judgment was tainted and void where it is placed in until the full amount of found that a contemnor could not be held in paid.” arrears has been contempt for one of several acts for which It is the relator’s contention that the fail- judgment single the had penalty fixed a ure to fill in the blank renders the order of applicable on, to all. The court went how- vague release and therefore the order ever, distinguish ground facts on the that interpreted having purged should be as him the record on the contempt order showed contempt. of precisely the basis of the order and the interesting is only It to note that it is the punishment monthly payment for the viola- subject paragraph which contains an order tion of which the relator was not notified. that the relator’s release and the fact of Citing Williams, conceded, release is upon. in fact relied (Tex.Civ.App.—Beaumont 1971, 453 proceeding) proper the court held that the susceptible Because the is order to more procedure would be to deduct the amount interpretation give than one we it that in- (not delinquency unspecified pleaded) of the terpretation “which will render it the more from the total paid by amount ordered rela- reasonable, conclusive, effective and purge tor to contempt. himself of make it which will harmonize with the facts Inasmuch as contempt the district court’s ought and law of the case and be such as judgment ordering the relator’s commit- Clark, have been rendered”. Keton v. 67 specifically ment assessed a term of 180 (Tex.Civ.App.—Waco 1933, 439 days February for his 1 default we hold Therefore, ref’d). writ we hold that it was part that of the to be void and purged not intended that the relator be of February the amount of the 1 delinquency contempt the found on November 1980 ($150.00)is to be deducted from the amount but, instead, that it was intended that he be the purge relator must in order to conditionally jail. released from contempt himself of and obtain his release. holding prejudice purged
This is relator was not of without to the Because power adjudicate previous contempt, of the court to later this we reach his final the contempt failing in contention that the June 15 order of con payment. pleading make the finement is void for want of It is complaint any charge, rehearing that the relator in his motion for time, through the the revo- payments relator, failed to make his attacks for the first County Support We Tarrant Child Office. probation regard cation of to the first agree apprised not that the relator was count of found on November ground contempt. the second (failure to make ordered child payments). Despite this late attack we separate penalty was im- A and distinct appropriate deem it for our consideration. and, posed for this act of as that presented by petition Were it a new true, is be enforced because it is should not writ of habeas relator would appropriate to be considered deleted from —and privileged only the trial court’s order. We hold that a be to do this—we believe it and, portion of the June 15 appropriate appropriate would be if at (as sen- to the probation time, was revoked which surely appropriate such it is on the confinement) tence of 180 is void. rehearing. motion for remains, independently, There valid reason particular, points In to the period prescribed. for confinement for a motion for reasoning Our discussed in to the 22,1980 September alleged filed delinquency applicable is also the relator was in arrears in the amount of here. $3,000.00 through September 1980. The custody The relator is remanded to the points relator then to the November 3 con- County. of Tarrant In view of Sheriff tempt judgment response to the rendered holdings our sen- that two of motion, September 22 which held him in void, tences are he is to be committed for *5 arrearages in contempt for the amount of time as day term or until such only one 180 through $3,300.00 1980. It is contempt by paying purges he himself apparent that the relator was not notified $3,685.00 ($3,835.00 minus that he would be called to answer for $150.00). alleged support failure to make the November; payments due in October and OPINION ON MOTION FOR therefore, he cannot be held in REHEARING payments. parte failure to make these It is to be remembered that on June Gordon, (Tex.1979). 1981 the district court sentenced Inasmuch as the district court fixed a serve three consecutive single aggregate of the sentence for the sentences. Two of these sentences arose as monthly delinquencies through relator’s No a result of a held on November portion in con 1980 at which the relator was held vember the entire tempt separate judgment relating on two counts. These two November 3 to the first probated sentences were on November count of is void. Ex probation two sentences 1980. The of these Brown, (Tex.Civ.App.— was revoked in the dat 1978, original proceeding). Waco ed June 1981. The third sentence was Having ultimately determined that June ordered for the first time on contempt judgment ordering the relator at- On submission is void in that the relator be confined pro- tacked the district court’s revocation particulars, all its we order that the relator the second count of bation discharged. in the order dated Novem- found 3,1980 (failure pay through the child ber office) the third sentence which originally on June ordered origi-
We sustained his assertions made on submission;
nal nevertheless a count re- properly con-
mained which we held him
fined.