In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-22-00177-CV
IN RE WALTER LYNN JOHNSTON, RELATOR
ORIGINAL PROCEEDING
December 20, 2022 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.
Walter “Lynn” Johnston has filed a document entitled “Petition for Writ of
Mandamus or, in the Alternative, Writ of Habeas Corpus” seeking our determination that
the contempt judgment filed by the Honorable Les Hatch, Presiding Judge of the 237th
District Court of Lubbock County, is void. We determine Lynn’s filing is a petition for writ
of mandamus and conditionally grant his requested relief.
BACKGROUND
On February 28, 2019, Cassandra Johnston filed for divorce from Lynn. The trial
court entered temporary orders on June 7, 2019, in which it ordered Lynn to, inter alia, pay $1,253.00 each month for child support and to pay fifty percent of all unreimbursed
health, vision, and dental care expenses.
After Lynn failed to make certain child support payments, medical support
payments, and debt payments, Cassandra filed a motion for enforcement and contempt.
By this motion, Cassandra sought the trial court’s order holding Lynn in contempt for the
late child and medical support payments. The trial court held hearings on contempt,
enforcement, and the final divorce, which concluded on February 9, 2021. On December
13, 2021, the trial court rendered a final decree of divorce, a judgment of contempt for
violations of temporary orders, and a judgment of enforcement for violations of temporary
orders. The trial court’s contempt judgment found that Lynn had committed forty-one
violations of the temporary orders and ordered Lynn to serve a ninety-day jail sentence
but suspended the sentence with “unsupervised probation” and with specified terms of
probation. The contempt judgment also ordered Lynn to pay Cassandra $15,000 in
attorney’s fees.
On March 11, 2022, Cassandra filed a motion to revoke Lynn’s probation. A
hearing was scheduled for May of 2022 but was continued. On June 24, 2022, Lynn filed
a motion for emergency relief with this Court seeking to stay proceedings in the trial court
pending resolution of the matters raised in the instant original proceeding. By order dated
June 28, 2022, we granted Lynn’s motion and stayed proceedings in the trial court.
TYPE OF RELIEF SOUGHT
2 Initially, we must determine the type of relief sought by Lynn. This proceeding
involves a contempt judgment that orders confinement for a period of ninety days with
that sentence suspended and Lynn placed on “unsupervised probation.”
Generally, a petition for writ of habeas corpus is the only method for attacking an
order of contempt. In re Reece, 341 S.W.3d 360, 370 (Tex. 2011) (orig. proceeding).
However, “mandamus is available to challenge an order of contempt not involving
confinement . . . .” Id. (citing In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig.
proceeding) (per curiam), and Rosser v. Squier, 902 S.W.2d 962, 962 (Tex. 1995) (orig.
proceeding) (per curiam)); see Tracy v. Tracy, 219 S.W.3d 527, 530 (Tex. App.—Dallas
2007, no pet.) (“Contempt orders involving confinement may be reviewed by writ of
habeas corpus; contempt orders that do not involve confinement may be reviewed only
through mandamus.”). While courts have extended the concept of “confinement” to
include probation, the terms of probation typically must include some type of tangible
restraint of liberty, such as house arrest or monthly reporting requirements. Ex parte
Hughey, 932 S.W.2d 308, 310 (Tex. App.—Tyler 1996, orig. proceeding).
Because Lynn was placed on “unsupervised probation,” we conclude that he seeks
mandamus relief and we will analyze his claims accordingly.
STANDARD OF REVIEW
Mandamus relief is proper only to correct a clear abuse of discretion when there is
no adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d
204, 207 (Tex. 2009) (orig. proceeding). When seeking mandamus relief, the relator
bears the burden of proving these two requirements. Walker v. Packer, 827 S.W.2d 833,
3 840 (Tex. 1992) (orig. proceeding). Contempt orders are not reviewable by appeal.
Roisman v. Roisman, 651 S.W.3d 419, 433 (Tex. App.—Houston [1st Dist.] 2022, orig.
proceeding) (mem. op.). Because there is no adequate remedy by appeal for Lynn’s
challenge to the contempt judgment, the question remaining here is whether the trial court
abused its discretion in rendering the order. Id. at 434. A trial court clearly abuses its
discretion when it reaches a decision so arbitrary and unreasonable as to amount to a
clear and prejudicial error of law. Walker, 827 S.W.2d at 839. Because a trial court has
no discretion in determining what the law is or applying the law to the facts, a trial court’s
clear failure to analyze or apply the law correctly is an abuse of discretion. Roisman, 651
S.W.3d at 434; Ex parte Dolenz, 893 S.W.2d 677, 680 (Tex. App.—Dallas 1995, orig.
proceeding).
An appellate court should issue a writ of mandamus only if the contempt judgment
is void, and not if it is merely voidable. Ex parte Dolenz, 893 S.W.2d at 679. We review
a contempt judgment to determine whether the findings are “so completely without
evidentiary support [that] the order deprives a relator of due process of law.” Id. at 680.
VALIDITY OF THE CONTEMPT JUDGMENT
Lynn’s first two issues challenge the specificity of Cassandra’s motion for
enforcement and the resulting contempt judgment.
Contempt of court has been defined as “disobedience to or disrespect of a court
by acting in opposition to its authority.” In re Luther, 620 S.W.3d 715, 721 (Tex. 2021)
(per curiam). Because an alleged contemnor’s liberty is at stake, contempt should only
be used as a last resort. Id.
4 Contempt proceedings are quasi-criminal in nature and, as such, the contemnor is
entitled to procedural due process throughout the proceedings. Roisman, 651 S.W.3d at
434. To support a contempt judgment, the underlying order must set forth the terms of
compliance in clear, specific, and unambiguous terms so that the person charged with
obeying the decree will know exactly what duties and obligations are imposed upon him.
Luther, 620 S.W.2d at 722. A court order that fails to meet these requirements of
specificity is not definite and certain enough to support a contempt finding. Id.
We will grant a relator relief only if the underlying order is void. See id. at 721–22;
Ex parte Shaffer, 649 S.W.2d 300, 301–02 (Tex. 1983) (“[O]ne may not be held guilty of
contempt for refusing to obey a void order”). A contempt order rendered without adequate
notice is void. Roisman, 651 S.W.3d at 435. The relator bears the burden of showing
that the contempt judgment is void. Id.
Lynn contends that Cassandra’s motion for enforcement lacked sufficient
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-22-00177-CV
IN RE WALTER LYNN JOHNSTON, RELATOR
ORIGINAL PROCEEDING
December 20, 2022 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.
Walter “Lynn” Johnston has filed a document entitled “Petition for Writ of
Mandamus or, in the Alternative, Writ of Habeas Corpus” seeking our determination that
the contempt judgment filed by the Honorable Les Hatch, Presiding Judge of the 237th
District Court of Lubbock County, is void. We determine Lynn’s filing is a petition for writ
of mandamus and conditionally grant his requested relief.
BACKGROUND
On February 28, 2019, Cassandra Johnston filed for divorce from Lynn. The trial
court entered temporary orders on June 7, 2019, in which it ordered Lynn to, inter alia, pay $1,253.00 each month for child support and to pay fifty percent of all unreimbursed
health, vision, and dental care expenses.
After Lynn failed to make certain child support payments, medical support
payments, and debt payments, Cassandra filed a motion for enforcement and contempt.
By this motion, Cassandra sought the trial court’s order holding Lynn in contempt for the
late child and medical support payments. The trial court held hearings on contempt,
enforcement, and the final divorce, which concluded on February 9, 2021. On December
13, 2021, the trial court rendered a final decree of divorce, a judgment of contempt for
violations of temporary orders, and a judgment of enforcement for violations of temporary
orders. The trial court’s contempt judgment found that Lynn had committed forty-one
violations of the temporary orders and ordered Lynn to serve a ninety-day jail sentence
but suspended the sentence with “unsupervised probation” and with specified terms of
probation. The contempt judgment also ordered Lynn to pay Cassandra $15,000 in
attorney’s fees.
On March 11, 2022, Cassandra filed a motion to revoke Lynn’s probation. A
hearing was scheduled for May of 2022 but was continued. On June 24, 2022, Lynn filed
a motion for emergency relief with this Court seeking to stay proceedings in the trial court
pending resolution of the matters raised in the instant original proceeding. By order dated
June 28, 2022, we granted Lynn’s motion and stayed proceedings in the trial court.
TYPE OF RELIEF SOUGHT
2 Initially, we must determine the type of relief sought by Lynn. This proceeding
involves a contempt judgment that orders confinement for a period of ninety days with
that sentence suspended and Lynn placed on “unsupervised probation.”
Generally, a petition for writ of habeas corpus is the only method for attacking an
order of contempt. In re Reece, 341 S.W.3d 360, 370 (Tex. 2011) (orig. proceeding).
However, “mandamus is available to challenge an order of contempt not involving
confinement . . . .” Id. (citing In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig.
proceeding) (per curiam), and Rosser v. Squier, 902 S.W.2d 962, 962 (Tex. 1995) (orig.
proceeding) (per curiam)); see Tracy v. Tracy, 219 S.W.3d 527, 530 (Tex. App.—Dallas
2007, no pet.) (“Contempt orders involving confinement may be reviewed by writ of
habeas corpus; contempt orders that do not involve confinement may be reviewed only
through mandamus.”). While courts have extended the concept of “confinement” to
include probation, the terms of probation typically must include some type of tangible
restraint of liberty, such as house arrest or monthly reporting requirements. Ex parte
Hughey, 932 S.W.2d 308, 310 (Tex. App.—Tyler 1996, orig. proceeding).
Because Lynn was placed on “unsupervised probation,” we conclude that he seeks
mandamus relief and we will analyze his claims accordingly.
STANDARD OF REVIEW
Mandamus relief is proper only to correct a clear abuse of discretion when there is
no adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d
204, 207 (Tex. 2009) (orig. proceeding). When seeking mandamus relief, the relator
bears the burden of proving these two requirements. Walker v. Packer, 827 S.W.2d 833,
3 840 (Tex. 1992) (orig. proceeding). Contempt orders are not reviewable by appeal.
Roisman v. Roisman, 651 S.W.3d 419, 433 (Tex. App.—Houston [1st Dist.] 2022, orig.
proceeding) (mem. op.). Because there is no adequate remedy by appeal for Lynn’s
challenge to the contempt judgment, the question remaining here is whether the trial court
abused its discretion in rendering the order. Id. at 434. A trial court clearly abuses its
discretion when it reaches a decision so arbitrary and unreasonable as to amount to a
clear and prejudicial error of law. Walker, 827 S.W.2d at 839. Because a trial court has
no discretion in determining what the law is or applying the law to the facts, a trial court’s
clear failure to analyze or apply the law correctly is an abuse of discretion. Roisman, 651
S.W.3d at 434; Ex parte Dolenz, 893 S.W.2d 677, 680 (Tex. App.—Dallas 1995, orig.
proceeding).
An appellate court should issue a writ of mandamus only if the contempt judgment
is void, and not if it is merely voidable. Ex parte Dolenz, 893 S.W.2d at 679. We review
a contempt judgment to determine whether the findings are “so completely without
evidentiary support [that] the order deprives a relator of due process of law.” Id. at 680.
VALIDITY OF THE CONTEMPT JUDGMENT
Lynn’s first two issues challenge the specificity of Cassandra’s motion for
enforcement and the resulting contempt judgment.
Contempt of court has been defined as “disobedience to or disrespect of a court
by acting in opposition to its authority.” In re Luther, 620 S.W.3d 715, 721 (Tex. 2021)
(per curiam). Because an alleged contemnor’s liberty is at stake, contempt should only
be used as a last resort. Id.
4 Contempt proceedings are quasi-criminal in nature and, as such, the contemnor is
entitled to procedural due process throughout the proceedings. Roisman, 651 S.W.3d at
434. To support a contempt judgment, the underlying order must set forth the terms of
compliance in clear, specific, and unambiguous terms so that the person charged with
obeying the decree will know exactly what duties and obligations are imposed upon him.
Luther, 620 S.W.2d at 722. A court order that fails to meet these requirements of
specificity is not definite and certain enough to support a contempt finding. Id.
We will grant a relator relief only if the underlying order is void. See id. at 721–22;
Ex parte Shaffer, 649 S.W.2d 300, 301–02 (Tex. 1983) (“[O]ne may not be held guilty of
contempt for refusing to obey a void order”). A contempt order rendered without adequate
notice is void. Roisman, 651 S.W.3d at 435. The relator bears the burden of showing
that the contempt judgment is void. Id.
Lynn contends that Cassandra’s motion for enforcement lacked sufficient
specificity to support a finding of contempt.
Family Code section 157.002 identifies the pleading requirements for motions to
enforce. See TEX. FAM. CODE ANN. § 157.002. This section requires an enforcement
motion to identify the provision of the order allegedly violated, state the manner of the
respondent’s noncompliance, and state the relief movant requests. Id. § 157.002(a). “[A]
respondent may be found in contempt only for violations that are specifically pled in the
motion for enforcement . . . .” In re Office of Attorney Gen., 422 S.W.3d 623, 630 (Tex.
2013) (orig. proceeding).
5 Because the obligation to pay child support is a duty, not a debt, a person may be
held in contempt and imprisoned for failing to pay child support. Roisman, 651 S.W.3d
at 434. Medical support is a child-support obligation that is also enforceable by contempt.
Id.
Lynn contends that the contempt judgment is void because Cassandra’s motion
for contempt failed to comply with the due process notice requirements. Cassandra’s
motion references the temporary order’s medical support obligation as follows:
Pursuant to section 154.183(c) of the Texas Family Code, the reasonable and necessary health, vision, and dental-care expenses of the children that are not reimbursed by health, vision, or dental insurance, are allocated as follows: WALTER LYNN JOHNSTON is ORDERED to pay 50 percent and CASSANDRA JOY JOHNSTON is ORDERED to pay 50 percent of the unreimbursed health, vision, and dental-care expenses if, at the time the expenses are incurred, WALTER LYNN JOHNSTON is providing health, vision, and dental insurance as ordered.
(emphasis in original). This language fails to provide Lynn notice as to when, how, and
in what manner he was required to comply. The trial court found twenty-eight violations
related to this medical support obligation. Because the underlying order does not set
forth the terms of compliance in clear, specific, and unambiguous terms so that Lynn knew
exactly what duties and obligations are imposed upon him, Lynn was deprived of the
notice required by due process and cannot be held in contempt for these medical support
violations. See Luther, 620 S.W.3d at 722.
When a single punishment is assessed for multiple contemptuous acts but
contempt could not be assessed for one or more of the acts, the entire judgment of
contempt is void. Ex parte Jordan, 787 S.W.2d 367, 368 (Tex. 1990) (per curiam) (orig.
proceeding); Ex parte Davila, 718 S.W.2d 281, 282 (Tex. 1986) (per curiam) (orig. 6 proceeding). As determined above, the contempt judgment is void as to Lynn’s medical
support obligation because the temporary orders upon which the judgment is based do
not specifically identify the terms of compliance. The contempt judgment finds that Lynn
violated the temporary orders forty-one times, but twenty-eight of those violations were
based on Lynn’s claimed failure to pay medical support. Because one sentence was
assessed for forty-one violations but twenty-eight of them will not support an order of
contempt, we find the entire contempt judgment in this case to be void.
Having found the contempt judgment void, we sustain Lynn’s first two issues.
ATTORNEY’S FEES AWARD
By his third issue, Lynn challenges the award of attorney’s fees in the contempt
judgment as an abuse of discretion because the fees were not segregated between those
arising from the enforcement action and the contempt action, the evidence shows the
award is duplicative of other fees awarded, and the fees are void because they are
awarded in a void contempt judgment.1
As addressed above, when a single punishment is assessed for multiple
contemptuous acts but contempt could not be assessed for one or more of the acts, the
entire judgment of contempt is void. Ex parte Jordan, 787 S.W.2d at 368; Ex parte Davila,
718 S.W.2d at 282. When the entire judgment of contempt is void, we are unable to
1 We acknowledge that Lynn does not raise the argument that the attorney’s fees award is void because it is part of a void contempt judgment in his petition for writ of mandamus. He first makes this argument in his reply brief. Nevertheless, we believe that the invalidity of the attorney’s fee award because it is contained in a void contempt judgment is a natural consequence of our determination that the contempt judgment is void. We also note that Cassandra anticipated this argument and addressed it in her responsive brief. 7 reform the judgment by severing out the void portions. In re Henry, 154 S.W.3d 594, 598
(Tex. 2005).
As previously determined, the contempt judgment in the present case is void for
assessing a punishment for twenty-eight violations that will not support contempt.
Because the contempt judgment is void in its entirety, that must include its award of
$15,000 in attorney’s fees.
Having determined that the entire contempt judgment is void, we sustain Lynn’s
third issue.
CONCLUSION
We lift the stay of proceedings in the trial court that we granted on June 28, 2022.
Based on our conclusions that the trial court clearly abused its discretion by entering a
void contempt judgment and Lynn has no adequate remedy by appeal, we conditionally
grant mandamus relief directing the trial court to vacate its judgment holding Lynn in
contempt. We will issue our writ only if the trial court fails to comply.
Judy C. Parker Justice