in Re Lindsey Scott Armstrong

• Court: Court of Appeals of Texas
• Decided: August 6, 2009
• Docket: 02-09-00086-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-09-086-CV

IN RE RELATOR LINDSEY SCOTT ARMSTRONG

------------ ORIGINAL PROCEEDING ------------

MEMORANDUM OPINION 1

------------

On December 11, 2008, the trial court signed an order finding Lindsey

Scott Armstrong in contempt of the trial court’s October 17, 2008 temporary

orders by failing to make the September, October, and November 2008

mortgage payments as ordered. Armstrong was ordered confined in the Denton

County Jail for a period of 180 days for each violation, to run concurrently,

until he had complied with the provisions of the temporary orders. The

December 2008 order suspended the commitment and placed Armstrong on

1 … See Tex. R. App. P. 47.4. community supervision for three years from the date of the order. As terms

and conditions of his community supervision, Armstrong was ordered to

1. Timely pay the mortgage for the residence located at 250 Hilltop Drive, Justin, Texas, until the property is sold or until further order of the Court[;]

2. Pay the September 2008, October 2008, and November 2008 mortgage for the residence located at 250 Hilltop Drive, Justin, Texas in a timely manner[; and]

3. Pay attorney fees as ordered herein.

The December 2008 order also assessed $1,900 in attorney’s fees against

Armstrong and required him to make monthly payments of $100 towards the

attorney’s fees.

Real Party in Interest, Cynthia Ann Armstrong, filed a motion to revoke

the suspension of commitment on March 2, 2009. In her motion, Cynthia

argued that Armstrong had failed to comply with the trial court’s December

2008 order by failing to make the September, October, November, and

December 2008 and the January and February 2009 mortgage payments in a

timely manner. Cynthia also alleged that Armstrong had made only one

payment of $19.00 towards the $1,900 in attorney’s fees. On March 12,

2009, after a hearing on the matter, the trial court signed an order revoking the

suspension of commitment and ordering Armstrong committed to the county

jail for 180 days for the failure to make the December 2008 and January and

2 February 2009 mortgage payments and the failure to pay attorney’s fees as

ordered.

On March 19, 2009, Armstrong filed a petition for writ of habeas corpus

seeking release from the Denton County Jail and seeking that the trial court’s

December 11, 2008 order of enforcement by contempt and suspension of

commitment and March 12, 2009 order revoking suspension of commitment

and for commitment be declared void. After the petition was filed, this court

ordered Armstrong released on a $100 bond pending the outcome of this

original proceeding.2 Armstrong complains he is imprisoned for nonpayment of

a debt in violation of the Texas Constitution.3 We grant habeas corpus relief.

A writ of habeas corpus will issue when a contemnor has not been

afforded due process or when a contempt or commitment order is void.4

A trial court’s order to pay a debt is unenforceable by confinement for

criminal contempt because such confinement would amount to imprisonment

2 … See Tex. R. App. P. 52.8(b)(3). 3 … See Tex. Const. art. I, § 18. 4 … In re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (orig. proceeding); In re Mann, 162 S.W.3d 429, 432 (Tex. App.—Fort Worth 2005, orig. proceeding).

3 for debt in violation of article I, section 18 of the Texas Constitution.5 In fact,

even a willful failure to comply with an order to pay a debt is not contempt

punishable by imprisonment.6 An order imprisoning a person for failure to pay

a debt is therefore void.7

Here, the trial court’s criminal contempt and commitment orders confining

Armstrong for failure to pay the mortgage payments imprison him for failure to

pay a debt and are therefore void.8 Consequently, we grant Armstrong’s

requested habeas corpus relief, vacate the two void orders, lift our order of

March 19, 2009, and order Armstrong released from bond and discharged from

custody immediately.

PER CURIAM

PANEL: DAUPHINOT, LIVINGSTON, and GARDNER, JJ.

DELIVERED: August 6, 2009

5 … See Tex. Const. art. I, § 18; In re McGonagill, No. 02-07-00034-CV, 2007 WL 704888, at *3 (Tex. App.—Fort Worth Mar. 5, 2007, orig. proceeding) (mem. op.); In re Bielefeld, 143 S.W.3d 924, 927–28 (Tex. App.—Fort Worth 2004, orig. proceeding) (op. on reh’g). 6 … In re Estrello, 130 S.W.3d 391, 394 (Tex. App.—Beaumont 2004, orig. proceeding). 7 … In re Bielefeld, 143 S.W.3d at 927–28. 8 … See In re McGonagill, 2007 WL 704888, at *3; In re Bielefeld, 143 S.W.3d at 927–28.