Sad Prisoner Behind BarsA new Texas law broadly expands the options parents have for enforcing orders pertaining to children. A new law effective September 1, 2015, provides that a court may enforce “any provision” of either a temporary or final order rendered in a suit regarding a child. Further, the new law goes on to expand the availability of contempt of court to “any provisions” of either a temporary or final order rendered in a suit regarding a child.

The law also broadens the definition of a “temporary order” under the statute to include a temporary restraining order, standing order, injunction, and any other temporary order rendered by a court.

Contempt of court is a very strong remedy, usually involving jail time for the accused if he or she is found to have violated a court order. The length of jail time may be up to 6 months. Prior to this new law being passed, contempt was typically only available for enforcement of certain types of family law orders such as child support and possession orders. This new expansion of the law appears to open up contempt remedies to other types of provisions that would not traditionally have been enforceable by contempt.

For example, some court orders regarding children may order a parent to pay for college expenses of a child. Because the law in Texas does not require a parent to support a child beyond the later of the 18th birthday or graduation from high school, the parent cannot be required to pay college expenses, making such an order a debt under Texas law. (Child support is not a “debt” under the law, making it subject to enforcement by contempt and jail time.) A debt cannot be enforced by contempt and jail time according to the Texas Constitutions.

The Texas Constitution provides, “No person shall ever be imprisoned for debt.” Tex. Const. art. I, §18. Therefore, the failure to comply with an order to pay a debt is not contempt punishable by imprisonment. Ex Parte Hall, 854 S.W.2d 656, 658 (Tex. 1993)(orig. proceeding). An adjudicated debt may be enforced by other legal processes, such as execution or attachment of property, but not by imprisonment of the debtor. In re Nunu, 960 S.W.2d 649, 650 (Tex. 1997).

So an order to pay college expenses would be a debt under the law, not enforceable by contempt. But, the new law purports to expand contempt to include other types of orders that would or should not be subject to jail time. I do not think that the new law will magically apply to the example I give. The Texas Constitution still trumps the Texas Family Code. But, there will be a lawyer out there who asks for it and a judge who grants it.

The remedy for a party who is jailed for contempt for violation of an order that should not otherwise be subject to contempt/jail enforcement must challenge that confinement through a writ of habeas corpus proceeding to the court of appeals. Writs of habeas corpus are very difficult to win because the contempt order or the order being enforced must be shown to be wholly void, but jailing someone in violation of the Texas Constitution would come under that category.

See the enrolled version here.

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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.