in Re Gonzalo Saldana

• Court: Court of Appeals of Texas
• Decided: September 27, 2012
• Docket: 10-12-00332-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-12-00332-CV

IN RE GONZALO SALDANA

Original Proceeding

OPINION

In this original proceeding, Relator Gonzalo Saldana seeks habeas corpus relief

after having been found in contempt by the respondent trial judge for violating

temporary orders in the underlying divorce case. See TEX. GOV’T CODE ANN. § 22.221(d)

(West 2004). Gonzalo also seeks mandamus relief as to the temporary orders on the

ground they are void.

This proceeding arises out of a divorce case in Navarro County. The trial court

signed the divorce decree on October 13, 2011. After his motion for new trial was

overruled by operation of law, Gonzalo filed a notice of appeal on January 12, 2012. We

docketed the appeal, but it was then transferred to the Houston (First) Court of Appeals pursuant to a docket-equalization order of the Texas Supreme Court.1

Estela Saldana, the real-party-in-interest in this original proceeding, had filed a

motion for temporary orders pending appeal in the trial court, and on March 12, 2012,

the trial court signed temporary orders that required, among other things, Gonzalo to

pay temporary spousal support ($16,300 per month) during the pendency of the appeal

or until further order. Several months later, Estela filed a motion for enforcement of the

temporary orders, alleging that Gonzalo had failed to pay temporary spousal support

as ordered. After a hearing, on August 24, 2012, the trial court signed an order finding

that Gonzalo had failed to pay temporary spousal support as ordered on four occasions

and was guilty of contempt. The August 24 order rendered a judgment for arrearages,

attorney’s fees, and court costs, and it ordered as punishment for each violation a $200

fine and ninety days’ confinement in the county jail of Navarro County, with each

period of confinement to run concurrently.

Gonzalo was also ordered to surrender himself on August 24, which he did. In

this original proceeding, Gonzalo asserts that the trial court’s March 12, 2012 order is

void because it was rendered more than thirty days after his appeal was perfected. See

TEX. FAM. CODE ANN. § 6.709(a) (West 2006) (providing that, not later than 30th day

after date appeal is perfected, trial court may render temporary order necessary for the

preservation of the property and for the protection of the parties during the appeal); In

re Boyd, 34 S.W.3d 708, 710-11 (Tex. App.—Fort Worth 2000, orig. proceeding); see also

1Despite the direct appeal’s transfer, we have jurisdiction of this original proceeding. See In re Thomason, No. 09-98-00462-CV, 1999 WL 130130, at *1 (Tex. App.—Beaumont Mar. 11, 1999, orig. proceeding) (not designated for publication); see also In re Cantrell, 97 S.W.3d 722, 723 (Tex. App.—Texarkana 2003, no pet.); Varner v. Koons, 888 S.W.2d 511, 513 (Tex. App.—El Paso 1994, orig. proceeding).

In re Saldana Page 2 Bass v. Bass, 106 S.W.3d 311, 315 (Tex. App.—Houston [1st Dist.] 2003, no pet.). And

Gonzalo also asserts that, because the March 12 order is void, the August 24 order

holding him in contempt is void.

In his sole issue, Gonzalo asserts that he is entitled to habeas corpus relief

because the March 12 order that he was alleged to have violated is void. As to the

August 24 contempt and commitment order, Gonzalo seeks habeas corpus relief in the

form of his immediate discharge on the ground that the order is void.2 As to the March

12 order, Gonzalo seeks to have it vacated on the ground that it is void.

We requested a response to Gonzalo’s request for emergency relief and petition

for writ of habeas corpus. Estela responded that Gonzalo’s request for emergency relief

and petition for writ of habeas corpus have merit and that she does not object to the

requested relief.3

Because the trial court’s March 12 order was rendered more than thirty days after

Gonzalo had perfected his appeal of the January 12 divorce decree, the March 12 order

is void. Boyd, 34 S.W.3d at 711; Walters v. Walters, No. 05-03-00469-CV, 2004 WL

2595846, at *3-4 (Tex. App.—Dallas Nov. 16, 2004, no pet.) (mem. op.); Thomason, 1999

WL 130130, at *1. Gonzalo cannot be held in contempt for violating a void order. In re

2In an interim order, we granted only the motion for emergency relief and ordered Gonzalo released on September 14, 2012. See TEX. R. APP. P. 52.8(b)(3). Nevertheless, as long as the order is otherwise in effect, Gonzalo’s liberty is at risk and he suffers sufficient restraint on his liberty interest such that the issue is not moot and we may address it in his petition for writ of habeas corpus.

3Estela’s counsel’s response states: “After verifying the factual statements in Relator’s Request and Petition with trial counsel and after reviewing the relevant case law, undersigned believes that Relator’s Request for Emergency Relief and Petition for Writ of Habeas Corpus have merit and on behalf of Wife does not object to the granting of the Request for Emergency Relief or the Petition for Writ of Habeas Corpus.”

In re Saldana Page 3 Sloan, 214 S.W.3d 217, 224 (Tex. App.—Eastland 2007, orig. proceeding) (citing Ex parte

Shaffer, 649 S.W.2d 300, 301-02 (Tex. 1983), and Ex parte Lillard, 159 Tex. 18, 314 S.W.2d

800 (1958)). Accordingly, the August 24, 2012 order of contempt and commitment is

void, and we set it aside. See In re Henderson, No. 10-12-00005-CV, 2012 WL 638457, at *5

(Tex. App.—Waco Feb. 15, 2012, orig. proceeding) (setting aside void contempt and

commitment order); Sloan, 214 S.W.3d at 224 (same). We sustain Gonzalo’s issue and

grant the petition for a writ of habeas corpus and render a final order unconditionally

releasing Gonzalo from the restraint ordered by the trial court in its August 24, 2012

“Order Holding Respondent in Contempt for Failure to Pay Temporary Spousal

Support Pending Appeal and Granting Judgment and Order for Commitment to

County Jail.”

Because the March 12, 2012 “Order on Motion for Temporary Orders Pending

Appeal” is void, we also set it aside. See Sloan, 214 S.W.3d at 224 (setting aside void

temporary orders in original habeas proceeding); Walters, 2004 WL 2595846, at *4

(vacating void temporary orders pending appeal); see also Boyd, 34 S.W.3d at 711

(granting mandamus relief as to order that was void under section 6.709(a)).

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Petition granted Opinion delivered and filed September 27, 2012

In re Saldana Page 4