in Re: Angelia K. Burleson

• Court: Court of Appeals of Texas
• Decided: May 26, 1999
• Docket: 05-99-00703-CV
• Status: Published

Opinion

,

Writ of Habeas Corpus Granted, Opinion and Order issued May 26, 1999

In The

IN RE ANGELIA K. BURLESON f/k/a ANGELIA K. PHELPS, Relator

Original Proceeding from the 330th Judicial District Court Dallas County, Texas Trial Court Cause No. 94-2763-Y

OPINION AND ORDER Before Justices Kinkeade, James, and Roach Opinion By Justice James

In this habeas corpus proceeding, relator Angeli a K. Burleson f/k/a Angeli a K. Phelps was held

in contempt of court for her failure to comply with a divorce decree requirement that she inform her ex-

spouse of her current home address, home telephone number, name of employer, place of employment,

work telephone number, and the address of their child's school or day care center each time any change

occurred. The trial court ordered relator committed to jail for two years but suspended the sentence and

placed relator on two years probation. Because we conclude the trial court's imposition of a two year

sentence of confinement is beyond the maximum allowed by law, we grant the writ of habeas corpus.

Angelia K. Burleson and Scott A. Phelps were married and had one child, Wesley Phelps.

Burleson and Phelps subsequently divorced. The final divorce decree appointed Burleson and Phelps

as joint managing conservators of Wesley, with the dates of their respective rights to possession of

Wesley specified in the decree. The decree also ordered Phelps and Burleson to keep each other informed of his or her current home address, home telephone number, name of employer, place of

employment, work telephone number, and the address of Wesley's school or day care center.

Phelps filed a motion for enforcement of the divorce decree alleging Burleson did not comply

with the decree's provision for Phelps' possession ofWesley approximately thirty-six times. Phelps also

contended Burleson failed to comply with the divorce decree provision requiring Burleson inform him

when she changed her place of residence. Phelps requested the trial court hold Burleson in contempt for

failing to comply with the divorce decree order and impose a jail sentence and fine. After a hearing, the

trial court granted the motion in part. In its order, the trial court crossed through all findings of contempt

except, in pertinent part, the finding that Burleson failed to keep Phelps fully and promptly informed of

changes in her current home address.

The trial court assessed attorney's fees and costs in the amount of $1290 against Burleson. The

trial court also imposed a two year sentence of confinement in jail for the contempt. The tria! court

suspended the sentence and placed Burleson on probation for two years. Burleson then filed this petition

for writ of habeas corpus. In her first issue, Burleson contends probation is a sufficient restraint on her

liberty to permit the filing of a petition for writ of habeas corpus. In her three other issues, Burleson

argues the trial court's order of enforcement and suspension of commitment to confinement is void

because: ( 1) the maximum incarceration period for criminal contempt is six months; (2) the motion for

enforcement was not sufficiently specific as to the alleged violation dates; and (3) the order of

enforcement is not sufficiently specific as to the alleged dates, times, and places where Burleson failed

to inform Phelps of changes in her current home address, home telephone number, and the address of

Wesley's school.

The trial court· s probation order requires Burleson to report to the probation officer each month.

The Texas Supreme Court has held the imposition of probation, with a requirement that the relator report

to a probation officer, is a sufficient restraint on a relator's liberty to entitle the relator to the right to

-2- petition for writ of habeas corpus. See Ex parte Brister, 801 S.W.2d 833, 834-35 (Tex. 1990) (orig.

proceeding). Therefore, Burleson is entitled to habeas corpus review and we sustain her first issue. See

id. However, in order to grant the writ of habeas corpus, this Court must find the commitment order is

void, "either because it was beyond the power of the court or because it deprived the relator of his liberty

without due process oflaw." See Er:parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980) (orig. proceeding).

In this case, the sentence imposed by the trial court in its order of enforcement is for criminal

or "punitive" contempt because the relator cannot by her own actions "purge" herself of the contempt and

avoid the sentence. See Ex parte Johns, 807 S.W.2d 768, 770-71 (Tex. App.-Dallas 1991, orig.

proceeding). The Texas Government Code provides a trial court is limited to imposition of a sentence

of not more than six months confinement for each finding of criminal contempt. See TEX. Gov'T. CODE

A.t'm. § 21. 002(b) (Vernon 1988). We conclude the trial court's enforcement order is void because it

imposes a sentence of two years confinement, which is beyond the maximum sentence permitted qy law.

See id. Therefore, we sustain Burleson's second issue.

In her third and fourth issues, Burleson contends Phelps' motion for enforcement and the trial

court's order do not specify the dates for each alleged act of contempt as required by the Texas Family

Code. The family code provisions referred to by relator involve the requirements for motions to enforce

payment of child support obligations. See TEX. FAM. CODE ANN. § 157.002 (b) (Vernon Supp. 1999).

The particular provision being enforced in this case is not one for payment of child support. Therefore,

we hold the requirement to include the dates of noncompliance does not apply in this case. The family

code requires a motion for enforcement of other provisions of a divorce decree to state in ordinary and

concise language the provision of the order allegedly violated and sought to be enforced, the manner of

noncompliance, and the relief requested, along with the signature of the movant or her attorney. See TEX.

FAM. CoDE ANN. § 15 7. 002 (a) (Vernon 1996). The motion in the present case meets these requirements.

Consequently, we deny Burleson's third and fourth issues.

-3- We hereby GRANT relator's petition for writ of habeas corpus because the trial court improperly

imposed a sentence of more than six months confinement for one act of criminal or "punitive" contempt.

We hereby ORDER Angelia K. Burleson f/k/a Angelia K. Phelps unconditionally released and

discharged from those portions of the orders issued February 1, 1999 by the 33Qth District Court ofDallas

County, Texas in cause number 94-2763-Y styled In the Interest of Wesley Phelps. a Child imposing a

sentence for contempt and conditions of probation for two years on Angeli a K. Burleson f/k/a Angelia

K. Phelps.

Do Not Publish TEX. R. APP. P. 47 990703F.U05

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