In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-19-00409-CV ___________________________
IN RE K.D., Relator
Original Proceeding Trial Court No. 18-8906-431
Before Birdwell, Bassel, and Womack, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION
Relator, K.D., filed this original proceeding seeking release from confinement
after the trial court found him to be in contempt and ordered him incarcerated for
failing to timely respond to discovery and for failing to pay attorney’s fees the trial
court had imposed as discovery sanctions. After reviewing relator’s petition for writ of
habeas corpus, we ordered him released on his own recognizance and requested a
response from the real party in interest. See Tex. R. App. P. 52.8(b)(3), 52.10(b). We
did not receive one. We grant relief.
Background
The underlying suit is for a divorce. In August 2019, real party in interest filed a
motion to compel discovery, alleging that relator had failed to respond to a request
for disclosure, interrogatories, and a request for production of documents that real
party in interest had served on March 29, 2019.
The trial judge sent the parties a letter in which he stated that the motion would
be submitted “at the Court’s earliest convenience following the submission date
referenced above,” which was September 13, 2019. The trial court also ordered that a
written response to the motion should be “filed and served on the Movant no later
than seven (7) days prior to the submission date referenced above.” The letter warned
the parties that if the trial court granted the motion it was required to award
reasonable expenses and attorney’s fees under Texas Rule of Civil Procedure 215.1(d)
and that the trial judge could impose additional sanctions “against a party found to be
2 abusing the discovery process.” Tex. R. Civ. P. 215.1(d). The letter further gave
“notice of the Court’s intent to award expenses and to impose sanctions for abuse of
the discovery process” and concluded,
In the event that either party wishes to proceed in that manner following receipt of the Court’s ruling, the Court will set a hearing for the purpose of receiving evidence and argument regarding the amount of expenses and attorney fees, the nature of other sanctions requested, and whether such expenses or sanctions should be imposed against the party, the attorney, or both of them.
Relator filed a response on September 13, 2019, which acknowledges that final
trial was scheduled for October 15, 2019. In the response, relator’s counsel stated that
relator had served responses to the requests for production and disclosure1 after the
motion to compel had been filed. After a hearing on September 23, 2019, the trial
court granted the motion to compel and signed an order requiring relator to
“completely and fully respond” to the request for disclosure, interrogatories, and
request for production, on or before September 30, 2019. The trial court ordered
relator to pay real party in interest’s attorney’s fees and expenses “in an amount to be
determined.” The trial court noted in the order that relator’s counsel had failed to
timely respond to the motion to compel.
On October 15, 2019, the trial court signed an Order of Dismissal and Order
to Appear and Show Cause for Contempt, which references its September 23, 2019
order on the motion to compel. The order notes that relator failed to appear for final
1 Both documents show a service date of September 13, 2018, but that is clearly an error.
3 trial without good cause. In the order, the trial court dismissed relator’s claims for
affirmative relief. The trial judge also found that real party in interest “was not ready
or able to proceed to trial” because relator had not properly responded to discovery
and that relator had “failed and refused to comply with the court’s lawful order.”
The trial judge thus ordered relator to
1. Serve Respondent’s [real party in interest’s] counsel with Petitioner’s [relator’s] answers to Respondent’s interrogatories––without objection–– by 5:00 p.m. on October 29, 2019;
2. Serve Respondent’s counsel with Petitioner’s response to Respondent’s request for production of documents––without objection––by 5:00 p.m. on October 29, 2019;
3. Serve Respondent’s counsel with Petitioner’s response to disclosures–– without objection––by 5:00 p.m. on October 29, 2019;
4. Pay Respondent’s counsel . . . $3,500 by cash or cashier’s check by 5:00 p.m. on October 29, 2019; and
5. Appear before the Court on November 1, 2019, at 3:00 PM to offer evidence and argument and show cause why he should not be held in criminal contempt for failing and refusing to comply with the court’s lawful order set forth above.
The trial court also ordered the clerk to issue process for personal service of
the order on relator. The trial court’s order further contained a “NOTICE TO
ALLEGED CONTEMNOR” warning that contempt is punishable by a fine up to
$500, confinement in the county jail for not more than six months, or both a fine and
confinement. Finally, the notice warned that a failure to appear would result in the
issuance of a capias for relator’s arrest.
4 The online docket attached as an appendix to relator’s petition indicates that
the clerk mailed the trial court’s show cause order to the Collin County Constable for
Precinct Four, but a note next to the entry states, “Unserved.”
Relator supplemented his response to the request for production on
October 31, 2019. He also responded to the interrogatories on that day.
Relator appeared with his counsel on November 1, 2019. The trial court found
that relator had violated its October 15, 2019 order by failing to timely respond to the
specified discovery and by failing to pay real party in interest’s counsel his attorney’s
fees. The trial court found relator to be in criminal contempt and ordered him to be
confined in the Denton County jail for ninety days. The Denton County Sheriff’s
Office took relator into custody that same day.
Contempt for Failure to Pay Attorney’s Fees Void
In his first issue, relator claims that confining him for contempt for failing to
pay the attorney’s fees sanction is improper. He is correct.
A contempt judgment ordering imprisonment for disobeying a sanctions order
to pay attorney’s fees or costs is void as an unconstitutional imprisonment for a debt.
See In re McLaurin, 467 S.W.3d 561, 564–66 (Tex. App.––Houston [1st Dist.] 2015,
orig. proceeding) (citing cases and distinguishing such awards in child support
enforcement cases, which do not constitute a debt); see also Tex. Const. art. I, § 18.
Accordingly, we sustain relator’s first issue.
5 Contempt Order Void for Lack of Service
Relator argues in his second issue that the contempt order for the failure to
timely respond to discovery is void for lack of service. Again, we agree.
Before a trial court may impose criminal contempt for conduct occurring
outside the judge’s presence, “due process requires that the alleged contemnor receive
full and unambiguous notification of the accusation.” Ex parte Vetterick, 744 S.W.2d
598, 599 (Tex. 1988) (orig.
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-19-00409-CV ___________________________
IN RE K.D., Relator
Original Proceeding Trial Court No. 18-8906-431
Before Birdwell, Bassel, and Womack, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION
Relator, K.D., filed this original proceeding seeking release from confinement
after the trial court found him to be in contempt and ordered him incarcerated for
failing to timely respond to discovery and for failing to pay attorney’s fees the trial
court had imposed as discovery sanctions. After reviewing relator’s petition for writ of
habeas corpus, we ordered him released on his own recognizance and requested a
response from the real party in interest. See Tex. R. App. P. 52.8(b)(3), 52.10(b). We
did not receive one. We grant relief.
Background
The underlying suit is for a divorce. In August 2019, real party in interest filed a
motion to compel discovery, alleging that relator had failed to respond to a request
for disclosure, interrogatories, and a request for production of documents that real
party in interest had served on March 29, 2019.
The trial judge sent the parties a letter in which he stated that the motion would
be submitted “at the Court’s earliest convenience following the submission date
referenced above,” which was September 13, 2019. The trial court also ordered that a
written response to the motion should be “filed and served on the Movant no later
than seven (7) days prior to the submission date referenced above.” The letter warned
the parties that if the trial court granted the motion it was required to award
reasonable expenses and attorney’s fees under Texas Rule of Civil Procedure 215.1(d)
and that the trial judge could impose additional sanctions “against a party found to be
2 abusing the discovery process.” Tex. R. Civ. P. 215.1(d). The letter further gave
“notice of the Court’s intent to award expenses and to impose sanctions for abuse of
the discovery process” and concluded,
In the event that either party wishes to proceed in that manner following receipt of the Court’s ruling, the Court will set a hearing for the purpose of receiving evidence and argument regarding the amount of expenses and attorney fees, the nature of other sanctions requested, and whether such expenses or sanctions should be imposed against the party, the attorney, or both of them.
Relator filed a response on September 13, 2019, which acknowledges that final
trial was scheduled for October 15, 2019. In the response, relator’s counsel stated that
relator had served responses to the requests for production and disclosure1 after the
motion to compel had been filed. After a hearing on September 23, 2019, the trial
court granted the motion to compel and signed an order requiring relator to
“completely and fully respond” to the request for disclosure, interrogatories, and
request for production, on or before September 30, 2019. The trial court ordered
relator to pay real party in interest’s attorney’s fees and expenses “in an amount to be
determined.” The trial court noted in the order that relator’s counsel had failed to
timely respond to the motion to compel.
On October 15, 2019, the trial court signed an Order of Dismissal and Order
to Appear and Show Cause for Contempt, which references its September 23, 2019
order on the motion to compel. The order notes that relator failed to appear for final
1 Both documents show a service date of September 13, 2018, but that is clearly an error.
3 trial without good cause. In the order, the trial court dismissed relator’s claims for
affirmative relief. The trial judge also found that real party in interest “was not ready
or able to proceed to trial” because relator had not properly responded to discovery
and that relator had “failed and refused to comply with the court’s lawful order.”
The trial judge thus ordered relator to
1. Serve Respondent’s [real party in interest’s] counsel with Petitioner’s [relator’s] answers to Respondent’s interrogatories––without objection–– by 5:00 p.m. on October 29, 2019;
2. Serve Respondent’s counsel with Petitioner’s response to Respondent’s request for production of documents––without objection––by 5:00 p.m. on October 29, 2019;
3. Serve Respondent’s counsel with Petitioner’s response to disclosures–– without objection––by 5:00 p.m. on October 29, 2019;
4. Pay Respondent’s counsel . . . $3,500 by cash or cashier’s check by 5:00 p.m. on October 29, 2019; and
5. Appear before the Court on November 1, 2019, at 3:00 PM to offer evidence and argument and show cause why he should not be held in criminal contempt for failing and refusing to comply with the court’s lawful order set forth above.
The trial court also ordered the clerk to issue process for personal service of
the order on relator. The trial court’s order further contained a “NOTICE TO
ALLEGED CONTEMNOR” warning that contempt is punishable by a fine up to
$500, confinement in the county jail for not more than six months, or both a fine and
confinement. Finally, the notice warned that a failure to appear would result in the
issuance of a capias for relator’s arrest.
4 The online docket attached as an appendix to relator’s petition indicates that
the clerk mailed the trial court’s show cause order to the Collin County Constable for
Precinct Four, but a note next to the entry states, “Unserved.”
Relator supplemented his response to the request for production on
October 31, 2019. He also responded to the interrogatories on that day.
Relator appeared with his counsel on November 1, 2019. The trial court found
that relator had violated its October 15, 2019 order by failing to timely respond to the
specified discovery and by failing to pay real party in interest’s counsel his attorney’s
fees. The trial court found relator to be in criminal contempt and ordered him to be
confined in the Denton County jail for ninety days. The Denton County Sheriff’s
Office took relator into custody that same day.
Contempt for Failure to Pay Attorney’s Fees Void
In his first issue, relator claims that confining him for contempt for failing to
pay the attorney’s fees sanction is improper. He is correct.
A contempt judgment ordering imprisonment for disobeying a sanctions order
to pay attorney’s fees or costs is void as an unconstitutional imprisonment for a debt.
See In re McLaurin, 467 S.W.3d 561, 564–66 (Tex. App.––Houston [1st Dist.] 2015,
orig. proceeding) (citing cases and distinguishing such awards in child support
enforcement cases, which do not constitute a debt); see also Tex. Const. art. I, § 18.
Accordingly, we sustain relator’s first issue.
5 Contempt Order Void for Lack of Service
Relator argues in his second issue that the contempt order for the failure to
timely respond to discovery is void for lack of service. Again, we agree.
Before a trial court may impose criminal contempt for conduct occurring
outside the judge’s presence, “due process requires that the alleged contemnor receive
full and unambiguous notification of the accusation.” Ex parte Vetterick, 744 S.W.2d
598, 599 (Tex. 1988) (orig. proceeding); see In re Wal–Mart Stores, Inc., 545 S.W.3d 626,
632 & n.3 (Tex. App.––El Paso 2016, orig. proceeding) (citing numerous El Paso and
other intermediate appellate court opinions citing Vetterick). “This notice should be by
show cause order or equivalent legal process personally served on the alleged contemnor, and
it should state when, how and by what means the defendant has been guilty of
contempt.” Vetterick, 744 S.W.2d at 599 (emphasis added). Verbal notice will not
suffice. Id.
The motion to compel here did not ask the trial court to hold relator in
contempt. The docket entry indicating that the clerk mailed the order to the constable
also noted, “Unserved.” And the trial court’s contempt order does not recite that
relator was properly served with the order. Thus, nothing shows that relator was
served with notice of contempt in a manner that satisfies due process. See id. We
therefore sustain relator’s second issue.
6 Conclusion
Having determined that the trial court’s November 1, 2019 contempt order is
void and sustained both of relator’s issues––and having already released relator on his
own recognizance––we grant relator’s petition, vacate the trial court’s November 1,
2019 order, and order relator discharged from any further confinement under that
order.
/s/ Wade Birdwell
Wade Birdwell Justice
Delivered: January 9, 2020