in the Interest of A.P., a Child

• Court: Court of Appeals of Texas
• Decided: August 25, 2010
• Docket: 10-08-00338-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-08-00338-CV

IN THE INTEREST OF A.P., A CHILD,

From the 272nd District Court Brazos County, Texas Trial Court No. 36990-CV

MEMORANDUM OPINION

The Office of the Attorney General (OAG) sought child support from Appellant

Cicero Jones for A.P., his then-minor daughter. The original child-support order

required Jones to pay $130 per month, beginning February 1, 1993. In February 2005,

the OAG filed a motion for enforcement, and Jones appeared and agreed to an order

that found him in contempt, sentenced him to jail, and deferred his commitment until

August 4, 2005. The commitment was deferred again until February 2, 2006, when his

jail sentence was suspended and he was placed on community supervision for 120

months.

When Jones again failed to timely pay support, the OAG filed a motion to revoke

Jones’s community supervision, and Jones appeared and agreed to another order of contempt that confirmed an arrearage of $34,820.17. A.P.’s mother released

approximately half of that, leaving an unpaid arrearage of $17,854, and Jones was

ordered to pay $250 per month, beginning December 1, 2006. Jones was again

sentenced to jail for 180 days, but commitment was again deferred until April 19, 2007,

by which he was also to pay a lump sum of $500. That commitment date was reset

twice, and on December 20, 2007, the associate judge found no further reason to defer

imposition and ordered Jones to jail for 180 days.

On January 3, 2008, Jones’s notice of appeal of the commitment order was filed.

On January 22, he was released and paid $1,000 toward the arrearage, and on January

24, another notice of appeal of the commitment order was filed. On April 3, the trial

court recessed Jones’s commitment and modified his monthly payment amount.

On September 12, 2008, the OAG moved to dismiss Jones’s appeal, based on its

alleged untimely filing. The trial court heard both motions and dismissed Jones’s

appeal. Jones has filed a notice of appeal of that dismissal. On appeal, Jones complains

in four issues that the district court abused its discretion in dismissing his appeal of the

associate judge’s ruling and also that the district court lacked jurisdiction to do so, that

his 180-day contempt sentence was unconstitutional and unfair, that the associate judge

acted inappropriately in the hearing, and that the district judge only listened to the

State’s side.

The OAG asserts that we lack jurisdiction of Jones’s appeal. We agree. An order

holding a person in contempt is not a final order reviewable by direct appeal. In re

B.A.C., 144 S.W.3d 8, 10-12 (Tex. App.—Waco 2004, no pet.); see also Norman v. Norman,

In the Interest of A.P. Page 2 692 S.W.2d 655, 655 (Tex. 1985). A contempt order involving incarceration is reviewable

only by habeas corpus. See Ex parte Williams, 690 S.W.2d 243, 244 n.1 (Tex. 1985);

Pandozy v. Beaty, 254 S.W.3d 613, 616 (Tex. App.—Texarkana 2008, no pet.). Such an

order not involving incarceration is reviewable only by mandamus. See In re Long, 984

S.W.2d 623, 625 (Tex. 1999); Pandozy, 254 S.W.3d at 616. Also, an order dismissing an

appeal from an associate judge’s ruling that has the effect of granting a motion for

enforcement by contempt is only reviewable by habeas corpus or mandamus. See In re

Office of Attorney General, 215 S.W.3d 913, 915-16 (Tex. App.—Fort Worth 2007, orig.

proceeding). And finally, an order revoking community supervision arising from a

contempt order is not reviewable by direct appeal. See In re A.R.M., No. 09-03-00570-

CV, 2004 WL 2355214 (Tex. App.—Beaumont Oct. 21, 2004, no pet.) (mem. op.); Texas

Dep’t Human Resources v. Hebert, 621 S.W.2d 466, 467 (Tex. Civ. App.—Waco 1981, no

writ); see also Jones v. Texas State Attorney General, No. 01-03-00393-CV, 2003 WL

22054291 (Tex. App.—Houston [1st Dist.]. Aug. 29, 2003, orig. proceeding) (mem. op.).

Accordingly, we dismiss this appeal for lack of jurisdiction.

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Reyna, and Justice Davis (Chief Justice Gray concurs in the judgment to the extent it dismisses the appeal for want of jurisdiction. A separate opinion will not issue.) Dismissed Opinion delivered and filed August 25, 2010 [CV06]

In the Interest of A.P. Page 3