Contempt Litigation Webinar Part 5: Appellate Remedies for Contempt Enforcement

Michelle O'Neil:

Alright, welcome back. This is Michelle O'Neil and this is our contempt webinar brought to you by O'Neil Wysocki. And I'm joined by Karri Bertrand. She is my appellate associate. We handle family law appeals and we specifically handle appeals from contempt cases. So we're going to talk to you in this session about what the remedies, appellate remedies, are for contempt cases because it's a little bit complicated and it has a lot of nuances in it that are not just necessarily obvious. Alright, so jumping in here, whenever you have a contempt case and the person is put in jail for contempt, what is the remedy?

Michelle O'Neil:

A writ of Habeas Corpus.

Michelle O'Neil:

And so Karri, what does Habeas Corpus mean?

Karri Bertrand:

It literally means that you have the body.

Michelle O'Neil:

That sounds like a pickup line.

Karri Bertrand:

Not a very good one, it may not work.

Michelle O'Neil:

I don't know. I think some single guy at a bar, some young lawyer, would think that might be funny.

Karri Bertrand:

You know, maybe a lawyer talking to another lawyer.

Michelle O'Neil:

Oh, a contempt lawyer to lawyer at a bar. That's still pretty bad.

Michelle O'Neil:

Alright, so Habeas Corpus means you have the body. So, there are two types of habeas proceedings in family law. So, we want to make sure that we distinguish between them and sometimes in the trial court we'll file a writ of Habeas Corpus and when do we do that?

Karri Bertrand:

That’s usually a child custody issue where we're wanting a child returned to the custody of another parent.

Michelle O'Neil:

So, somebody would illegally possessed the body of the child and you'd fall a habeas proceeding and the trial court to obtain the rightful possession back. That's not what we're talking about here. Here, we're talking about a habeas proceeding more like in the criminal context where the government, the sheriff, the jail, whatever is illegally restraining the liberty of the client. Right?

Karri Bertrand:

Right.

Michelle O'Neil:

So, when is habeas review the appropriate method of appellate review?

Karri Bertrand:

It functions when we have an unlawful custody, someone is being unlawfully restrained as to their personal liberties.

Michelle O'Neil:

So, the obvious time is whenever somebody is in jail, when they're put in jail on contempt. But there are also times where probation can be a restraint of liberty and so a habeas can be used sometimes when probation restraints their liberty also. So, Habeas is a maybe on a probation case. What are some other appellate remedies that we need to talk about in the context of contempt litigation?

Karri Bertrand:

So when a habeas corpus is not appropriate because you don't have the unlawful restraint of custody, you can use mandamus and that also can apply when you have a suspension of a commitment of a sentence, which I guess with even in a probated sentence, possibly you could use mandamus.

Michelle O'Neil:

Right, so that’s the maybe. Might can do habeas, you probably can do mandamus. And then mandamus review can also address some of the other issues in a contempt order that do not specifically relate to a habeas restraint of liberty. And then sometimes we have a direct appeal in a enforcement proceeding, so it's a little complicated. It's not just the obvious, like normally in a normal family law, say a divorce trial or whatever, a direct appeal is what you would have, that's your remedy. Mandamus is something that, in family law at least, we more do during the case because there's some error that's happened in the middle of a case but in a contempt enforcement, you may have one or the other, there could be a circumstance where you'd have both a habeas review and a direct appeal potentially. So it's very confusing. There was a case just recently out of the Dallas Court of Appeals, December of 2017, so a little over a year ago. The Daniel's case, and we'll post a link to that in the comments. So, in that case, the contemptor filed mandamus in that. And that’s a little bit of an interesting case because the trial court held a hearing in abstentia of the respondent and entered a default judgment, but in the default judgment, ordered probation. So suspended commitment and ordered the guy to comply or he’d be put in jail. And so the father, the respondent, I'm sorry, the mother has filed the mandamus of it and the mandamus got granted. So it said that basically it held that you can't have a contempt hearing by default. Right. But in that case, the thing that I think is important about that case is that mandamus was found to be the appropriate remedy. So even though it was a default and it was a probated sentence, the mandamus was the appropriate remedy, not a habeas corpus. So I think that's very interesting that that case came out of Dallas a little over a year ago in the Daniel's matter. And then there's another new case or newer case, November of 2018 so maybe six months ago, called enray ACP out of the Houston 14th district. And that one was a direct appeal and so I think that's an interesting example of a time when a direct appeal was the appropriate appellate remedy. So Karri, in that ACP case, what made direct appeal the appropriate remedy there?


Karri Bertrand:

They had pled in the alternative a request for clarification as to the contemptible order language because the father he filed the motion asking the trial to hold the mother in contempt based on visitation provisions of the order and the contempt portion was dismissed, but because he had also filed for clarification as to the specificity of the language in the contemptible enforceability of the language in the order, they were able to direct appeal on the clarification, where they weren't able to on the contempt of the visitation provisions.

Michelle O'Neil:

And so what the Court of Appeals held was that the trial court erred by dismissing the clarification requests and by denying a trial, so direct appeal was found to be appropriate remedy in that case. So I think that's very interesting and that's a good example of a time when you don't have habeas, obviously, and you don't have mandamus, but you have direct appeal as the appellate remedy. So thinking about other times when direct appeal might be the appropriate remedy. We have a case that we've handled where there were confirmation of judgements and confirmation of attorney's fees or award of attorney's fees in a contempt case. So in that case we direct appealed that and then there's other times where maybe a judge might do something other than contempt.
So let's say, I don't know, a judge gives probation and then maybe adds some conditions like Jerri said in the last session, the judge orders the guy to make him breakfast every day. And so you have a complaint about the conditions of probation, right? That would not necessarily be a habeas, but it might be a mandamus remedy. So that's an interesting interplay of different appellate remedies that's a little bit higher level than what we see in a normal appeal. Right? And so there's different standards for appeal depending on which your remedy is. So let's talk about habeas. What is the standard for your appeal when the habeas is your remedy?

Karri Bertrand:

I meant to come talk to you about this one when we were going through your notes.

Michelle O'Neil:

So the order is void.

Karri Bertrand:

Yeah. Okay.

Michelle O'Neil:

It’s a void orders. So in order to prevail in the habeas proceeding and writ of Habeas Corpus in the court of appeals, the standard is, is the order void, not voidable, not the trial court shouldn't have done it, not I wouldn't have done it if I was the trial court, but is the contempt order void? And there's basically two broad areas where a contempt order is going to be void. One is that the trial court lacked jurisdiction to enter the order and the other is that due process wasn't followed. So one or the other of those is going to be the way to get out of jail free card in a habeas proceeding. So what are some common reasons why a judgment would be void?

Karri Bertrand:

Like you said, lack of jurisdiction, notice impossibility as to performance, the Fifth Amendment right to counsel, or not fifth amendment, but the right to counsel because of the quasi criminal nature.

Michelle O'Neil:

And the Fifth Amendment, self-incrimination.

Karri Bertrand:

Right, the jury trial issue and then self-incrimination.

Michelle O'Neil:

So what that means is, so first of all, under like a jurisdictional thing, the trial court has to have the jurisdiction or the authority subject matter of personal jurisdiction to enter the order. So that means that the respondent in the contempt case must be personally served with notice. If he's not personally served with notice, then the court doesn't have jurisdiction. Right? And that also kind of goes into due process as well, because if the respondent hasn't been personally served with notice, then the respondent hasn't been given due process. And then you’ve got the underlying order, did the trial court have the jurisdiction enter the underlying order because jurisdiction can't be waived. So if the underlying order that they're trying to enforce doesn't comply with jurisdictional mandates, then the underlying order is void and therefore the contempt of that underlying order can be void.

Karri Bertrand:

Tara's talked about some of the issues with the timing of the signing of the order and especially like with motions for new trial and stuff, so that definitely can get

Michelle O'Neil:

Right, I mean it can be difficult. I think he talks specifically about a situation where a case gets DWOPP’d and then an order gets entered after the DWOP but the DWOP isn't sufficiently set aside. That order is void and it's not enforceable in the future. So that's something to watch out for whenever you've got DWOPs to be sure and follow your motion to reinstate and all that, all the motions the right way and verify and all that to make sure that that taken care of. So let's talk about procedure for a Habeas Corpus proceeding. So let's say that you have the contempt hearing, your respondent is held in contempt, taken immediately without passing, go to the jail cell and the contempt order gets entered. What's the next step in following a writ of Habeas Corpus?

Karri Bertrand:

Well, you're going to file your petition and

Michelle O'Neil:

You're going to run back to the office and you're going to call your associate and be like, oh my gosh, we lost Karri, we got a draft, we had to stay up all night because our guys in jail and you don't want them to be in jail any longer then they have to be right and get it all drafted, right?

Karri Bertrand:

Yes, time is of the essence obviously, you need to drop that petition and get your appendix proof of restraint and your record all together and filed as quickly as possible because your guy's sitting in jail and they don't want to be.

Michelle O'Neil:

So you and I have had some cases where we preemptively prepare the writ of Habeas Corpus or have it almost prepared kind of draft form before the contempt hearing so that we're ready.

Karri Bertrand:

That's probably smart.

Michelle O'Neil:

So you don't want your guy to sit in jail for very long if you can help it. So getting it filed as quickly as possible is super important. Now you mentioned a couple of other things. So you have your petition for writ of Habeas Corpus and obviously your petition is a brief outlining all the reasons why you know, your guy out to be let out of jail, I say guy but it could be a girl too. I've represented some girls that have been put in jail, so why your person needs to be let out of jail. Then you also have to file an appendix.
So the appendix to the writ of Habeas Corpus has to have certain things in it, like the contempt order. You can also include in it some case law or statutory authority or whatever. And with all the new e-filing rules, I have just learned, I know that you've been able to do this for a while, but I'm old and I don't know how, but I've learned that our paralegals know how to hyperlink within the brief. So you can hyperlink to cases in Westlaw in your petition, you can hyperlink to your appendix, so that if you cite to appendix tab A then the justice can click on that and go straight to the appendix and see whatever's in that appendix, so you can hyperlink to the appendix.

Karri Bertrand:

And we can upload the paper on how to do electronic.

Michelle O'Neil:

So we will upload in the comments a link to the paper about electronic briefs and that tells how to do that. I was so excited when we learn how to do that. So you have your petition, you have your appendix, then you also have to affirmatively file your record. That's an area of where habeas or writ litigation is different than a normal appeal. So in a normal appeal, the court reporter is charged with filing the record with the court of appeals and the clerk of the court is charged with filing the clerk's record with the court of Appeals. How does that differ in a habeas or a mandamus proceeding?

Karri Bertrand:

I think time is the problem and we can't wait for the court reporter and the clerk to gather all those documents, so we need to attach whatever we want them to look at right away with that petition.

Michelle O'Neil:

Right, so you're charged, when you're filing the writ with filing the record. So part of that record is the Clark's record or the record of the petitions, the documents in the case. So you have to affirmatively prepare the record. So it's very important, one of the distinctions is that you either have to file certified copies, which is expensive and difficult and time consuming or you can file a sworn affidavit that swears to the accuracy of the documents. So don't forget to do that cause that's very important. If you forget to do that, it's a fatal variance in your writ and they can deny it without ruling on the merits. So you file your pleadings under affidavit as the clerk's record, but I find that one of the most difficult aspects of doing writ litigation, whether it's mandamus or habeas, but in a habeas, obviously time is of the essence. We want to get this done quickly. One of the things that I find is one of the biggest challenges to filing a habeas is that the court reporter does not necessarily think that it's as important as you or your clients sitting in jail think it is and then that court reporter may not get you that transcript very quickly. And so what are some off the cuff tips for how to get a court reporter to get a record done more quickly.

Karri Bertrand:

Ask nicely.

Michelle O'Neil:

That's a good one.

Karri Bertrand:

You know, let 'em know that there's some urgency. You want to get them paid quickly, courier a check to them, whatever you need to do.

Michelle O'Neil:

Money talks.

Karri Bertrand:

Money talks, talking nicely. I don't know what else.

Michelle O'Neil:

For me, I think having that long-term relationship with those court reporters, if it's a court that I practice in regularly, kind of the care and feeding of a court reporter. When you don't need them, be nice to them when you don't need them, take them sweets or presents or something, I don't know, whatever being nice to them when you don't need them carries a lot of weight when you do.

Karri Bertrand:

Absolutely.

Michelle O'Neil:

As with anybody. I mean that's just a general rule of life, Karri. Then obviously the payment issue, I mean a court reporter isn't going to do it without payment.

Karri Bertrand:

so if you quickly get an estimate and get them a check and tell them it's important, they'll probably start working on it for you right away and especially if you have a good relationship.

Michelle O'Neil:

I find that that is one of the biggest impediments to getting a habeas filed. Your guy may sit in jail several extra days because of that. I think personally, I believe that you can, it's not best practice, but if you've got a court reporter who's kinda dug her heels in and says, you know, I'm not going to get to this for three weeks. I would prepare the habeas, prepare everything you can file it and ask the court of appeals to compel the court reporter to make a better effort. I mean, that's not the ideal.

Karri Bertrand:

Have you ever had to do that?

Michelle O'Neil:

I've never had to do that. I've always had court reporters who were respectful if the person was in jail. I mean, if they're not in jail, then it’s not as crucial to get it done so quickly. But I do think that could be an remedy if you've got a court reporter who's just intentionally dragging her feet while you're guy sits in jail. Guy or gal sits in jail. Alright, so a habeas petition. There's some things that we have to do with the habeas petition. You have to plead the court's jurisdiction. Speaking of court, what court does a habeas corpus get filed in?

Karri Bertrand:

The appellate court for the jurisdiction of the district court.

Michelle O'Neil:

Right, obviously it doesn't get filed, we’re not in district court land in this type of habeas because the district court is who put them in jail. In a civil contempt case, there is concurrent jurisdiction between the Supreme Court of Texas, the Court of Criminal Appeals of Texas and the Courts of Appeals. So when you have a situation like that in an in appellate land where all three of those levels have concurrent jurisdiction, everybody presumes that the court of appeals is where you're going to file. So the Supreme Court's not going to really hear you, they're not going to hear you talking if you haven't gone to the Court of Appeals first. If you go to the Court of Appeals first and the Court of Appeals denies your relief, then you can file in the Supreme Court. But FYI, it's not an appeal of the Court of Appeals denial. It's actually the merits of your writ in the Supreme Court, but you have to have checked the box on going to the court of appeals first.

Michelle O'Neil:

So besides your petition, you mentioned a couple of other things that have to get filed with the Court of Appeals to have your writ perfected. So we talked about an appendix, we've talked about the record, but the reporter's record and the clerk's record. What's the last thing that has to get filed?

Karri Bertrand:

The proof of restraint.

Michelle O'Neil:

And that can be difficult, let me tell Ya. So a lot of times sheriffs don't know what this is you’re asking them to sign because Habeas says don't happen all that often. And so they're not familiar with the process of proving that they actually have your clients. So there's a couple of ways that you can prove that your client is actually being restrained. One of those, and the one that I do most often, is preparing a document for the sheriff or the designated person to sign at the sheriff's department that says, we are presently holding so-and-so in the custody, blah, blah, blah, blah, blah. So that's one way of doing it. Another way is if you have the separate writ of commitment order that the trial court directs the sheriff to hold this person in jail. It's kind of almost like a, it looks kinda like a citation. There should be a return at the bottom, if you draft it correctly, there should be a return at the bottom where the sheriff certifies compliance with the writ of commitment. So if you've got the executed writ of commitment signed at the bottom by the sheriff saying, yes, I've executed this writ of commitment and I'm holding this person in jail, then that can be proof of restraint. Another type of proof of restraint is the jail's record of prisoners. So if you can get your hands on that, which in a lot of counties is online,

Karri Bertrand:

They are, with pictures.

Michelle O'Neil:

With pictures, with the mugshots, so you might have the jails record of prisoners that shows that this person is in jail, which can be proof of restraint. And then the last one kind of goes back to this question of habeas versus mandamus. If the person is put on probation and probation is considered a deprivation of liberty, then you could have a probation officer certify the probation. So there's four types of proof of restraint that you can file. If you don't file your proof of restraint, the Court of Appeals can deny your writ without any consideration. So it's very important that you check that box. It's a very simple box or can be, but it has to be checked for sure. Alright, so procedure. So the writ of Mandamus is substantially similar in procedure to the writ of Habeas Corpus, right?


You have to file a petition. You have to file your clerk's record and your reporter's record. You have an appendix on your petition, but obviously in a mandamus you're not going to have a proof of restraint because your person's not being restrained. But a direct appeal is very different from that procedure because the court reporter is going to file the record. The clerk is going to file the record. You still have to file a petition and you still have to file an appendix, but those other things kind of fall off on those. What happens next? Let's say you file your writ of Habeas Corpus, your petition for writ of Habeas Corpus, seeking the voiding of the order and release of your person. What do you, as the petitioner, what do you file next with your petitioner or concurrently or shortly thereafter?

Karri Bertrand:

Do you need to formally request that they issue bond and release?

Michelle O'Neil:

Yep. So a motion for temporary orders or a motion for stay or a motion for bond and it doesn't matter really what you call it as long as you ask for it. And you should ask for bond, usually what happens from the court's standpoint is they'll review on its face, the writ of Habeas Corpus and if it alleges something that seems to be questionable, then they can grant bond. And I've had them grant a personal recognizance bond for the defendant. I've had them grant a regular bond, where they have to go to a bond company or whatever. So there's a couple of different ways they can do it. They can also just release them without a bond, which is possible, and I've had them do that too. I think it somewhat depends on how meritorious or how strongly they feel upon the initial reading of whether you're going to win or not. Now in a mandamus, you can also follow motion for temporary orders. And so what are the types of things you might file a motion for temporary orders on in a mandamus proceeding?

Karri Bertrand:

Well, if it's dealing with custody, you might actually have a custody issue as far as whatever you've mandamused, the court may need to make orders to deal with a school issue or a possession and access issue

Michelle O'Neil:

or the trial…

Karri Bertrand:

Yes, staying the trial deadlines or baiting discovery, whatever you may need to have done, depending on where you are in the procedure or the case. You may need to ask them to step in and help you out while you wait.

Michelle O'Neil:

So what if the court, the trial court denies content, is there an appellate remedy from a denial of content?

Karri Bertrand:

Not that I'm aware of.

Michelle O'Neil:

Zero Zip, Nada, not available. You cannot appeal writ or mandamus, a denial of contempt. But like in that case, that ACP case, if you have pled both contempt as an enforcement remedy and other enforcement remedies, the denial of those might conceivably be appealable if denied. Right? So in that ACP case, the court dismissed the contempt, but then denied a trial on the request for clarification. So that was a direct appeal, so that's possible. Alright, so then procedurally you file your petition, you file your motion to stay the ruling and then what do they do? What does the Court of Appeals do next?

Karri Bertrand:

That's a good question. They will either request a response if they want a response, they may go ahead and issue an order right away. They may make you wait very long time. So whatever they want, I guess.

Michelle O'Neil:

There's no requirements on how long the Court of Appeals can take in issuing an order. And by the way, we didn't say this in the beginning, but there's no time limit or deadline to file a writ of Habeas Corpus. There's no deadline to follow a mandamus, but there is a latches argument. In other words, don't wait too long cause they might say, Eh, you didn't use due diligence rights. So there's not a deadline. It's not like a direct appeal where you have 30 days to file your notice of appeal, but you do have to kind of get on with it. But so the Court of Appeals doesn't have a timeframe to rule. They cannot grant the writ without asking for a response, but they can sure deny it without asking for a response and they can deny it with a full opinion as we recently saw, without asking for a response. So if they are interested in it, if they think that it alleges error, they're going to ask the other side for a response and give the other side of deadline to respond. Then can they ask for oral argument?

Karri Bertrand:

Yes.

Michelle O'Neil:

So I had an Enray Dupree was one of the first cases on a contempt, a question of contempt of an alimony, a contractual alimony. So in that case they granted the PR bond and the sheriff didn't want to acknowledge the granting the order on the PR bond. So I had to get the Court of Appeals, Chief Justice to call the sheriff and say, yes, that really is my order and I wrote meant for you to let him bond out. So he bonded out and then the Court of Appeals asked for oral argument. So this is an important point because it doesn't happen very often, but in that writ of Habeas Corpus proceeding where my client was out on bond, when they asked for oral argument on the writ hearing, the procedure for that is different than in a normal appeal. They require the sheriff of the county where he was restrained and may go back to being restrained to be present at the hearing. And you have your argument in the habeas proceeding, take to the court of Appeals. They take a break. I mean, this is how it happened in the Dupree case. I don't know that it happens this way and every one of them, but in the Dupree case, we presented our argument. My client was there, the sheriff was in the back prepared to take him into custody depending on the ruling, the Court of Appeals, the three judge panel says, thank for your argument, we will recess and return in a few minutes with our decision and they literally left the courtroom, we're like sitting there like, is my guy going back to jail or not? And they literally took about 30 minutes and came back into the courtroom and issued their decision in open court.

Karri Bertrand:

That’s wild.

Michelle O'Neil:

That's the only time in appellate land that I've ever seen or heard of that happening is in a writ of Habeas Corpus proceeding where the guy was out on bond. So they thankfully came back in and agreed with me and granted the writ and released him on the spot. But talk about stressful, you're sitting there, and of course the sheriff in that case because he was already annoyed with me for like challenging him on granting the bond, the sheriff brought leg irons to the hearing.

Karri Bertrand:

Oh Wow.

Michelle O'Neil:

So while we're sitting there waiting on the Court of Appeals to rule, they’re back there like clanking the leg irons, you know. But thankfully we won that one and he got to go and sleep in his own bed that night instead of the jail cell. But that is a difference in the procedure of a writ that that is a very different procedure than any other appellate remedy than I'm aware of. So that's something that's to be considered or you can just call an appellate lawyer who's been there and done that. Alright, well we have gone a smidge over our 30 minutes on this session. So that concludes this session and it also concludes our contempt webinar that we've presented to you today. I hope you've enjoyed it. I hope you've commented a lot because we love comments and if you want CLE credit for it, just make sure you've paid the registration fee at the Event Bright link in the event on Facebook and we will make sure that you get that credit. If you have any questions, feel free to email us or call us or give us a shout out in the comments, we'd love to hear from you! Thank you for joining us today, Michelle O’Neil, O’Neil Wysocki. Peace out!