in Re Kenneth Dewey Ferrell Jr.

Opinion

NUMBER 13-14-00130-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE KENNETH DEWEY FERRELL JR.

On Petition for Writ of Habeas Corpus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Justice Benavides1

On February 27, 2014, relator, Kenneth Dewey Ferrell Jr., filed a petition for writ

of habeas corpus through which he seeks release from incarceration for punitive

contempt based on his failure to pay past-due child support.2 On March 22, 2013 and

April 9, 2013, the associate judge proposed and the trial court entered an order enforcing

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not

required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). 2 This original proceeding arises from trial court cause number 97-1235-B, In the Interest of K.N.F., a Child, in the 117th District Court of Nueces County, Texas, the Honorable Sandra Watts presiding. and modifying relator’s support obligation. The order found relator in punitive contempt

of court for failing to timely make four separate child support payments when relator had

the ability to make the payments, but did not, and ordered relator to be jailed for 180 days

for each violation with the commitments to run concurrently. By order issued on

November 13, 2013, the trial court found no reason why sentence should not be imposed

and ordered relator incarcerated. We grant the petition for writ of habeas corpus as stated

herein.

I. STANDARD OF REVIEW

The purpose of a habeas corpus proceeding is not to determine the ultimate guilt

or innocence of the relator, but only to ascertain whether the relator has been unlawfully

confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). In a habeas corpus

proceeding, the order or judgment being challenged is presumed to be valid. In re R.E.D.,

278 S.W.3d 850, 855 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding); In re

Turner, 177 S.W.3d 284, 288 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding); Ex

parte Occhipenti, 796 S.W.2d 805, 809 (Tex. App.—Houston [1st Dist.] 1990, orig.

proceeding). In order to obtain relief by habeas corpus, the relator must establish that

the underlying order is void because of a lack of jurisdiction or because the relator was

deprived of liberty without due process of law. In re Turner, 177 S.W.3d at 288; In re

Butler, 45 S.W.3d 268, 270 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). The

relator bears the burden of showing that he is entitled to relief. In re Munks, 263 S.W.3d

270, 272–73 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding); In re Turner, 177

S.W.3d at 288.

2 II. ANALYSIS

Relator filed a petition for bankruptcy on January 21, 2008 and was not discharged

from bankruptcy until April 12, 2013. By three issues in this original proceeding, relator

contends that: (1) his bankruptcy proceeding stayed the accrual of the past-due child

support payments, (2) the commitment order was entered in violation of the bankruptcy

stay and is void; and (3) the contempt and commitment orders are substantially

ambiguous.

This Court requested that the real party in interest, the Office of the Attorney

General of Texas (“OAG”), file a response to the petition for writ of habeas corpus, and

such response was duly filed on March 7, 2014. In its response, the OAG states that it

was unaware of the bankruptcy stay when it initiated its motion to enforce relator’s child

support obligation. The OAG concedes that “the trial court lacked jurisdiction to issue its

April 9, 2013 order because the automatic stay of the bankruptcy action was never lifted,”

thus, that order was void. The OAG thus requests that we grant relator’s petition for writ

of habeas corpus and order relator to be released from the Nueces County jail.

An automatic stay in bankruptcy prohibits the commencement or continuation of

any judicial action or proceeding against the debtor and any property within the debtor's

bankruptcy estate. See 11 U.S.C.A. § 362(a); Eguia v. Eguia, 367 S.W.3d 455, 458–59

(Tex. App.—Corpus Christi 2012, no pet.). The automatic stay deprives state courts of

jurisdiction over proceedings against the debtor, and any action taken against the debtor

while the stay is in place is void and without legal effect. See Kalb v. Feuerstein, 308

U.S. 433, 439 (1940); Howell v. Thompson, 839 S.W.2d 92, 92 (Tex. 1992); Continental

Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex. 1988); Eguia, 367 S.W.3d

3 at 458; In re Pegasus Funds TFN Trading Partners, LP, 345 S.W.3d 175, 176–77 (Tex.

App.—Dallas 2011, orig. proceeding); In re De La Garza, 159 S.W.3d 119, 121 (Tex.

App.—Corpus Christi 2004, orig. proceeding).

Accordingly, we sustain relator’s first and second issues. The trial court’s orders

of March 22, 2013, April 9, 2013, and November 13, 2013 are void because they were

issued during the pendency and in violation of the bankruptcy stay. Because we have

sustained relator’s first and second issues, we need not address relator’s third and final

issue. See TEX. R. APP. P. 47.1, 47.4.

III. CONCLUSION

The Court, having examined and fully considered the petition for writ of habeas

corpus and the response thereto, is of the opinion that relator has met his burden to obtain

relief. We GRANT relator's petition for writ of habeas corpus and ORDER relator released

and discharged from the custody of the Sheriff of Nueces County, Texas.

JUSTICE GINA M. BENAVIDES

Delivered and filed the 7th day of March, 2014.