Ex parte Floyd Earl FIEDLER
No. 14831.
Court of Civil Appeals of Texas. San Antonio.
Oct. 15, 1969.
Rehearing Denied Nov. 12, 1969.
Frank Y. Hill, Jr., San Antonio, for appellee.
KLINGEMAN, Justice.
This is an original habeas corpus proceeding pursuant to the provisions of
Hearings were held on three separate occasions in connection with such contempt proceedings. On September 2, 1969, Relator was adjudged in contempt for failure and refusal to make child support payments in the total sum of $1,450.00 of which he was in arrears. Relator did not appear at this hearing. The trial court withheld
Relator asserts that the record made at the hearings below conclusively established his inability to perform the order of the court requiring him to pay the sum of $1,450.00 and confining him in jail until such sum in paid in full, and that the judgment in such coercive respect is void.
A question is presented at the outset concerning Relator‘s right to file an original habeas corpus proceeding in this Court after the trial court had denied a similar plea for relief.
It is true that Relator had the right of appeal from the erroneous denial by the trial court of his application for habeas corpus. Harbison v. McMurray, 138 Tex. 192, 158 S.W.2d 284 (1942). However, such a relief has never prevented application for a writ of habeas corpus by a person confined under a void judgment or order. Obviously, the time element necessary for appeal reduces its desirability in the eyes of the wrongfully confined prisoner.
The writ of habeas corpus is a prerogative writ regarded as the bulwark of human liberty. The writ is one of right, designed to protect the individual against any character of restraint, and to obtain a speedy adjudication of his right to release from an illegal imprisonment. Justice Greenhill, Habeas Corpus Proceedings in the Supreme Court of Texas, Vol. 1, No. 1, St. Mary‘s Law Journal; Ex Parte Ramzy, supra.
To compel one who is illegally confined in jail by virtue of a void order to await the
A habeas corpus proceedings is a collateral attack on a judgment of contempt and one may be relieved of its impositions only if the judgment is void. Ex parte Thetford, 369 S.W.2d 924 (Tex.Sup.1963); Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1953). Relator has served the three days assessed against him as punishment for his disobedience of the court‘s support order and we are concerned here with only the coercive part of the order. Under the provisions of
We have carefully considered the testimony adduced at the three hearings. Relator did not have permanent employment. Prior to his being incarcerated for contempt, he had been employed at a service station for two weeks, where he had earned about $55.00 per week. He had no money in the bank or anywhere else, in fact, the uncontradicted testimony is that his only assets were his clothing. He testified that he had no source from which he could borrow the $1,450.00. He had gotten behind for smaller amounts on previous occasions and was able to borrow such arrears from his stepfather, a city policeman. However, he testified that his stepfather did not have $1,450.00 at this time and could not help him. Certainly, his incarceration for a period of over seven days before filing this writ of habeas corpus is some corroboration of this uncontradicted testimony. Furthermore, it is obvious that his credit opportunities while incarcerated would be very limited. There was no testimony from any source which attempted to discredit, impeach, or disprove the assertions of Relator relative to his inability to make the payment ordered by the court.
The record supports the conclusion that relator was able to pay some, if not all, of the weekly payments in the past as they accrued. He recognizes this default and this fact by his willingness, as stated in the record, to double up on his payments until such arrears are paid. There is no justification for his action in failing to make such payments for the necessary support of his minor child as they accrued. However, he had more than served the sentence properly imposed on him for this contempt. The uncontradicted record before us is that he is not able to purge himself by paying said sum of $1,450.00, in that he has no funds and no means of obtaining such an amount. We hold, therefore, that the trial court exceeded its power in ordering that Relator be imprisoned until said sum of $1,450.00 is paid. Ex parte Rohleder, supra; Ex parte Gonzales, supra; Ex parte De Wees, supra.
The Relator is therefore ordered discharged.
CADENA, Justice (dissenting).
I cannot join in an opinion which permits a party, once he has unsuccessfully sought
It is true that at early common law the denial of relief to an applicant for the writ of habeas corpus, that “darling of the English Law,” was not a bar to a second application for the writ, and that in England one restrained of his liberty could apply for the writ to every justice of the kingdom having the right to grant such writs, with each successive tribunal determining the merits of the application unfettered by the decision of every other tribunal, even if the grounds urged in each application were exactly the same. Rex v. Gee Dew, (1924) 33 BC 524, 3 DLR 153.
I am not convinced that we are bound by the fact that our Supreme Court, in the cases relied on in the majority opinion, allowed successive applications for relief based on the same evidence. There is nothing in those opinions to indicate that the point urged upon us in this case was brought to the attention of the Supreme Court.
It must be borne in mind that the common law rule permitting a party to present his application for habeas corpus as many times and before as many judges as he may see fit was evolved during a period when there was no appeal from an order denying the writ. But in Texas, the order of the trial judge in this case remanding relator to the custody of the sheriff is appealable as in any other civil case. Harbison v. McMurray, 138 Tex. 192, 158 S.W.2d 284 (1942). Where a disappointed relator has the right to appeal, the rule that a denial of an application is not res judicata should not apply. State ex rel. Gaster v. Whitcher, 117 Wis. 668, 94 N.W. 787 (1903); Ex parte Tail, 144 Neb. 820, 14 N.W.2d 840 (1944).
It is true that, in Ex parte Ramzy, 424 S.W.2d 220, 228 (Tex.Sup.1962), Mr. Justice Norvell, in a concurring opinion, recommended the procedure here followed by relator. But, in fact, in Ramzy, the Supreme Court was acting on a motion for rehearing of its denial of a petition for habeas corpus originally filed in that Court. No other court had heard and rejected an application for the writ. The recommended procedure was not followed by the relator in Ramzy.
Relator in this case has chosen his forum. Disappointed with the decision there, he has sought, and found, a more sympathetic tribunal. Under the majority opinion, had his petition been denied here, he could then apply, relying on the same evidence, to the Supreme Court of this State, and, if refused relief there, he would be free to begin a grand tour of the district courts of this State, filing petition after petition. Surely, the opinion of this Court filed today opens the door wide to the abuse of “the prerogative writ regarded as the bulwark of human liberty.”
The prevention of such abuse does not make a “mockery” of the writ of habeas corpus. Remedy by resort to habeas corpus was available to relator and he sought relief in the district court, where he was afforded a speedy hearing. Neither in his petition filed in this Court, nor in his belief in support of such petition, does relator claim that he was denied a fair hearing.
In any event, the record in this case does not establish, as a matter of law, relator‘s inability to perform the condition necessary to purge himself of contempt. The only effort made by relator to obtain the money necessary to discharge his obligation was an appeal to his stepfather for a loan. Such appeal was unsuccessful because the stepfather, who on previous occasions had
I would remand relator to the custody of the Sheriff of Bexar County. If, after a bona fide effort to obtain the money, going beyond one appeal to a person who had no money to advance, relator is unable to perform, he may then, armed with such new evidence, again seek the protection of the writ of habeas corpus.