Child support enforcement is akin to a criminal prosecution and must be handled with the utmost eye toward the due process rights of the accused.  It is a well-settled and obvious rule that, in order to hold someone in jail on an enforcement case, such as for nonpayment of child support, both the contempt order and the commitment order must be in writing and signed by the judge immediately following the commitment.  Failure to do both of these things renders the commitment void. 

The Houston 1st District Court of Appeals decided a case illustrating this point recently.  There, the mother sued the father for enforcement of child support and medical support payments he failed to make.  The trial court found against father and held him in contempt with a sentence of 180 days confinement for each violation to run concurrently. The sentence was initially suspended pending compliance, but father failed to comply and revocation was heard.  The court revoked the sentence orally and committed father to jail for 180 sentence. Four days later, the trial court entered its revocation and commitment order.

Father sought habeas corpus, which was granted.  The court of appeals held that 4 days is too long between commitment and entry of the order according to due process. A person may not be imprisoned for contempt without a written order of commitment. An arrest for contempt without a written commitment order is an illegal restraint from which a prisoner is entitled to habeas relief. However, a trial court may cause a contemnor to be detained by the sheriff for a short and reasonable time while the judgment of contempt and order of commitment are prepared for the judge’s signature. Less than twenty-four hours to prepare a commitment order is a short and reasonable time. Two or three days between oral rendition of commitment and the signing of the written order of commitment, however, has been held to constitute an unduly delay that necessitates habeas relief. Because the trial court did not sign a written commitment order until four days after the oral rendition of commitment, Father’s due process rights were violated and that the commitment order is void.

In re Linan, ___ S.W.3d ___, 2013 WL 6504766 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding) (12/12/13)

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.