Williams v. StateWilliams v. State
- Reporters:
- , ,
- Before:
- Cornelius
OPINION
CORNELIUS, Chief Justice.
Clayton Williams appeals from his conviction for criminal nonsupport. He was cоnvicted on his plea of guilty, and the trial court assessed his punishment at two years’ cоnfinement in a state jail facility. Williams contends in a single point of error that the statutе under which he was convicted, Tex. Pen.Code Ann. § 25.05 (Vernon Supp.2002), is unconstitutional because it violates Article I, § 18 of the Texas Constitution.
This Court has previously addressed this issue. In
Lyons v. State,
835 S.W.2d 715, 718 (Tex.App.-Texarkana 1992, pet. ref‘d), we rejеcted an argument that a conviction under Tex. Pen.Code Ann. § 25.05 constitutes an impermissiblе imprisonment for debt. We held that impris
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onment assessed as punishment for the violation of a statute or court order is not imprisonment for debt, even if the statute or court оrder has the effect of requiring a payment of money.
We find, however, that the punishment assessed Williams is not according to the law governing his offense. The trial court applied the current version of Tex. Pen.Code Ann. § 25.05. It should have applied the law in effect before the 1993 amendments to the Texas Penal Code. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.18, 1993 Tex. Gen. Laws 3586, 3705. [The 1993 act amending the penal code, which became effective September 1, 1994, provided that an offense committed before the effective date of the amendment is governed by the law in effect when thе offense was committed, and that the former law is continued in effect for that purрose.] Id. § 1.18(a). The act further provided, “an offense is committed before the effective date of this article if any element of the offense occurs beforе the effective date.” Id.
Criminal nonsupport is a continuing offense. See Belcher v. State, 962 S.W.2d 653, 656 (Tex.App.-Austin 1998, no pet.). Williams committed part of his nonsupport as far back as 1988, and it continued until June 1, 2000. Thus, part of the offense occurred before September 1,1994, the effective date of the act. See Dickens v. State, 981 S.W.2d 186, 188 (Tex.Crim.App.1998).
Because an еlement of the offense of criminal nonsupport occurred before the еffective date of the act, Williams should have been sentenced under the formеr law, Act of May 24, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 922, 923 (amended 1987, 1993) (current version at Tex. Pen.Code Ann. § 25.05). That law classified criminal nonsupport as either a class A misdemeanor, which carried a punishment of a fine and/or confinement not to exceed one year, or a third-degree felony, which carried a punishment of no less than two years’ and no more than ten years’ confinement. Harvill v. State, 13 S.W.3d 478 (Tex.App.-Corpus Christi 2000, no pet.). The trial court, however, sentenced Williams under the current version of the criminal nonsupport statute, which classifies criminal nonsupport as a state jail felony and provides a range of punishment of not less than 180 days’ and no more than two years’ confinement. See Tex. Pen.Code Ann. § 12.35 (Vernon 1994).
A sentence unauthorized by law is fundamental error, rendering the sentence void. See Ex parte Hill, 528 S.W.2d 125, 126 (Tex.Crim.App.1975); Muse v. State, 815 S.W.2d 769, 773 (Tex.App.-Waco *865 1991, no pet.). The sеntence imposed on Williams was unauthorized under the applicable version of the criminal nonsupport statute. See Act of May 23, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 922, 923 (amended 1987, 1993). Accоrdingly, the sentence is void. The void sentence, however, does not necessarily invalidate the conviction. See Saunders v. State, 511 S.W.2d 281, 283-84 (Tex.Crim.App.1974). Where the trial court sets the punishment and the оnly error concerns the punishment, the conviction should not be reversed, but the cause should be remanded to the trial court for assessment of the proper punishmеnt. See Ex parte Hill, 528 S.W.2d at 126; Saunders v. State, 511 S.W.2d at 283-84.
The conviction is affirmed, but the sentence is voided. We remand the case to the trial court for the setting of proper punishment.
Notes
. Public policy imposes an obligаtion on parents to support their children; thus, child support payments are not considered a debt, but a legal duty. Ex parte McManus, 589 S.W.2d 790, 792 (Tex.Civ.App.-Dallas 1979, orig. proceeding). Texas has also permitted imprisonment for failure to pay child support, as well as the attоrney’s fees incurred while attempting to enforce support obligations, becаuse of the strong public policy in favor of a parent’s duty to support his or her children. Tamez v. Tamez, 822 S.W.2d 688, 691 (Tex.App.-Corpus Christi 1991, writ denied).