In Re Gabriela MacIas v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 30, 2025
• Docket: 03-25-00440-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-25-00440-CV

In re Gabriela Macias

ORIGINAL PROCEEDING FROM TRAVIS COUNTY

MEMORANDUM OPINION

Gabriela Macias seeks mandamus relief from a contempt order that states the

burden of proof that the trial court applied in ruling on the contempt claim. That burden, however,

was a lesser one than what the court needed to apply. We thus conditionally grant relief.

BACKGROUND

Macias was sued by her sister-in-law, Marisela Godinez, who is a real party in

interest here, and they resolved the suit by an Agreed Judgment and Injunction signed by the

trial court. The Agreed Judgment and Injunction prohibits Macias from videoing or otherwise

surveilling Godinez from any distance.

The month after its rendition, Godinez sought enforcement of the Agreed Judgment

and Injunction, moving for contempt and alleging in the motion that Macias had violated the

Agreed Judgment and Injunction in several ways. One of the acts alleged was that Macias had

videoed or surveilled Godinez.

At the evidentiary hearing on the motion, both Godinez’s counsel and Macias’s

referenced the burden of proof of beyond a reasonable doubt. After the hearing, the trial court, ruling partially in Godinez’s favor, issued an Order Granting in Part Plaintiff’s Motion for

Enforcement and Contempt (the Order). Although the court in the Order denied some of the relief

sought by Godinez, it also ruled—expressly, “by a preponderance of the evidence”—that Macias

had willfully and intentionally violated the part of the agreed injunction prohibiting videoing or

surveilling Godinez. The court thus ordered Macias to pay a $500 fine, without conditioning the

fine in any way. Also in the Order, the court warned Macias that further violations of the Agreed

Judgment and Injunction could result in confinement in jail. Macias now seeks mandamus relief.1

DISCUSSION

Macias seeks mandamus relief from the portions of the Order involving holding her

in contempt and imposing the fine. She argues that because the trial court used the wrong burden

of proof for the kind of contempt proceeding and remedy involved here, the Order must be

corrected by mandamus. When, as here, a contempt order imposes a fine but no confinement, “the

only possible relief is a writ of mandamus.” In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig.

proceeding) (per curiam). In such a mandamus proceeding, “the contemnor [must] show that

the trial court abused its discretion.” In re Janson, 614 S.W.3d 724, 727 (Tex. 2020) (orig.

proceeding) (per curiam).

Macias argues that the type of contempt remedy at issue here is criminal. Contempt

may be civil or criminal. In re Jensen, No. 03-20-00207-CV, 2020 WL 4462803, at *2 (Tex.

App.—Austin July 15, 2020, orig. proceeding) (mem. op.). Civil contempt is remedial and

coercive—the remedy there is conditioned on the contemnor’s obedience to the court’s order, and

so the contemnor “holds the key to his release.” Id. The order for a civil-contempt remedy thus

1 We asked Godinez to respond to the mandamus petition, but she elected not to.

2 will often say that the remedy will be imposed unless the contemnor ceases the prohibited conduct

or comes into compliance with the court’s orders, as the case may be.

By contrast, criminal contempt is punitive—the contemnor is being punished for

some completed act that offends the dignity and authority of the court. Id. Criminal contempt

thus typically involves punishment without regard for the contemnor’s performance of any future

act. Id. Because the Order punishes Macias without conditioning the punishment on whether she

performs some future act or otherwise comes into compliance with the court’s orders, the Order

imposes a criminal-contempt remedy. See id.

Macias then argues that for the kind of contempt for which this criminal remedy

was imposed, she was entitled to the protection of the burden of proof of beyond a reasonable

doubt. The process due in a particular contempt adjudication depends on the type of contempt

charged. Id. Contempt in this sense is either “direct”—it occurred in the court’s presence—or

“constructive”—it occurred outside the court’s presence. Id. Because Macias’s alleged underlying

conduct was videoing or surveilling Godinez and no evidence shows that the conduct occurred in

the court’s presence, the contempt at issue here is constructive. See id.

Constructive contempt enforced by a criminal remedy calls for heightened

procedural safeguards, among which is that the movant must prove the violation beyond a

reasonable doubt. See Janson, 614 S.W.3d at 727; In re Kozinn, No. 03-23-00748-CV, 2024 WL

2855077, at *2 (Tex. App.—Austin June 6, 2024, orig. proceeding [mand. denied]) (mem. op.);

Jensen, 2020 WL 4462803, at *3–4. When a contempt order expresses that the court has applied

a particular burden of proof but the particular burden is a lesser one than is required, the court has

abused its discretion, and mandamus issues to ensure that the unlawful order is vacated. See

Jensen, 2020 WL 4462803, at *3–4.

3 Here, the requisite burden of proof was beyond a reasonable doubt because the

Order imposed a criminal remedy for a constructive contempt. Yet the Order says that the trial

court found Macias’s violation only “by a preponderance of the evidence.” The court thus abused

its discretion in the Order, and because Macias lacks any appellate remedy, we conditionally grant

her mandamus relief. See Janson, 614 S.W.3d at 728; Jensen, 2020 WL 4462803, at *4.

CONCLUSION

We direct the trial court to vacate the portions of its Order Granting in Part

Plaintiff’s Motion for Enforcement and Contempt in which the court (a) ruled that Macias violated

the Agreed Judgment and Injunction, (b) ruled that Macias committed a willful and intentional

violation constituting disobedience of the injunction and contempt of court, (c) ordered Macias to

pay the fine, and (d) ruled

that further violations of the permanent injunction as set forth in the Agreed Judgment and Injunction may result in the imposition of additional punishment as set forth in the Texas Government Code Section 21.002, including confinement in jail for up to six months for each violation, in order to ensure compliance with the permanent injunction as set forth in the Agreed Judgment and Injunction.

(Italics removed.) We are confident that the court will comply with this opinion, and the writ will

issue only if the court does not.

__________________________________________ Chari L. Kelly, Justice

Before Justices Triana, Kelly, and Theofanis

Filed: July 30, 2025