Ex Parte: Matthew Rueben Phillips v. the State of Texas

NO. 12-23-00148-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

EX PARTE: §

MATTHEW RUEBEN PHILLIPS, § ORIGINAL PROCEEDING

RELATOR §

MEMORANDUM OPINION
Matthew Rueben Phillips filed a petition for writ of habeas corpus in which he alleges
that he is being illegally detained in the Cherokee County jail.1 He alleges that the order
revoking suspension of a probated contempt sentence violated his right to due process. We grant
the writ.

BACKGROUND
Relator and Real Party in Interest Jessica Marie Phillips (Jessica) were previously
married and share a child, S.P. On March 21, 2022, Respondent issued Agreed Temporary
Orders in which she ordered Relator to pay monthly child support to Jessica for S.P., and
maintain health insurance for S.P. Respondent enjoined both parties from alienating any of the
parties’ property, separate or community, unless specifically authorized, and from signing or
endorsing the other party’s name on any negotiable instrument. Relator was specifically
enjoined from entering or remaining on the premises of the former marital home except by
agreement.
On January 17, 2023, Jessica filed a combined Fourth Amended Motion for Enforcement
of Temporary Orders and Motion to Compel, alleging multiple violations of the court’s

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Respondent is the Honorable Janice Stone, Judge of the County Court at Law in Cherokee County, Texas.
Temporary Orders by Relator. 2 On January 20, Respondent held a hearing on the fourth amended
enforcement motion, 3 at which Relator and Jessica both appeared with their respective counsel.
Jessica and Relator approved the entry of an Agreed Order of Enforcement (the Agreed Order)
stating that Relator failed to comply with the Temporary Orders by: (1) failing to timely make
the ordered child support payments for September, October, November, and December 2022, (2)
failing to make the ordered child support payment for January 2023, (3) failing to maintain
health and dental insurance for S.P., (4) removing a horse trailer, as well as a Bobcat Toolcat
utility work machine and its accompanying hay spear and bucket, from the marital residence and
refusing to return same upon demand, (5) selling the horse trailer, (6) depositing the check from
the sale of the horse trailer into an account to which Jessica had no access, and (7) accessing the
former marital residence without agreement on May 27, 2022. Regarding the Motion to Compel,
the parties further agreed on the record that Relator failed to provide complete responses and
documents in response to production requests served upon him and agreed that Relator would
produce documents responsive to the production requests on or before February 10, 2023.
Respondent entered the written Agreed Order on February 10 and found Relator in civil
contempt for each of the violations of the Temporary Orders. Respondent imposed a sentence of
confinement in the Cherokee County jail for 180 days or until Relator complied with certain of
the court’s orders, namely: (1) pay the January 2023 child support on or before January 23, (2)
obtain a health and dental insurance policy covering S.P. and provide proof of such to Jessica on
or before January 23, (3) post bond of $5,000.00 to secure the payment of monthly child support
with the District Clerk of Cherokee County on or before February 1, (4) pay $8,027.00 in
attorney’s fees to Jessica’s counsel on or before sixty days from the hearing, (5) timely pay the
ordered monthly child support to Jessica going forward, and (6) comply with all other terms of
the Temporary Orders. However, Respondent suspended Relator’s sentence and placed Relator
on 120 months of probation, conditioned upon Relator’s compliance with the above orders as
terms of said probation.

2
Jessica filed her original Motion for Enforcement of Temporary Orders on July 19, 2022, the Amended
Motion for Enforcement on October 5, 2022, the Second Amended Motion for Enforcement on October 17, 2022,
and the Third Amended Motion for Enforcement on January 6, 2023.
3
The January 20 hearing on the Fourth Amended Motion for Enforcement was the first hearing on any of
Relator’s alleged violations of the Temporary Orders.

2
On February 10, the same day Respondent entered the Agreed Order, Jessica moved to
revoke the suspension of Relator’s commitment, alleging that Relator did not make the January
child support payment on or before January 23, obtain a health and dental insurance policy
covering S.P. and provide proof thereof on or before January 23, or post the ordered $5,000.00
bond on or before February 1. Jessica filed an amended motion to revoke on April 6, adding
allegations that Relator did not timely make the April 2023 child support payment, pay the
$8,027.00 in attorney’s fees to Jessica’s counsel on or before sixty days from the hearing, or
comply with the production requests on or before February 10.
On April 10, Respondent held a hearing on Jessica’s motion to revoke, at which both
parties appeared with counsel. Respondent found that Relator violated the terms of his
suspended commitment and the order to comply with the production requests. However, as of
the hearing date, Relator had already made the outstanding child support payments to Jessica,
posted the ordered bond with the District Clerk of Cherokee County, and provided evidence of
health insurance (though not dental insurance) for S.P. Relator paid the outstanding $8,027.00 in
attorney’s fees in open court. Respondent ordered Relator to comply with the outstanding
production requests on or before April 17, and pay an additional $3,160.00 in attorney fees to
Jessica’s counsel as a condition of his suspended commitment. Respondent stated in her Order
on Motion to Revoke, signed April 12, that she would take under advisement “any other
punishment, sanctions, and the continued suspension of commitment under advisement” pending
a review of Relator’s further compliance with the court’s orders. Finally, Respondent ordered
that if Relator was late or delinquent in any other payments due under the orders, Jessica’s
counsel was authorized to file an affidavit setting forth the non-compliance and non-payment,
along with a writ of commitment to revoke Relator’s suspended commitment and incarcerate him
for a period of six months.
On May 8, Respondent entered an order revoking Relator’s suspension and ordering his
commitment to the Cherokee County jail. 4 The order specified that Relator failed to comply with
court’s order of April 12, 2023, ordering him to provide documents responsive to the outstanding
production requests by April 17. Relator was thereafter committed to custody of the Cherokee

4
Relator’s appendix does not contain any affidavit filed by Jessica’s counsel alleging nonpayment or any
other noncompliance with Respondent’s orders. The “Docket Book Report” provided lists that Jessica filed a
proposed writ of commitment and proposed capias on May 8, 2023, but these documents are not before us.

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County jail. This petition followed. We granted Relator’s motion for bond, ordering that he be
released from commitment upon posting of a $10,000.00 cash bond.

AVAILABILITY OF HABEAS CORPUS
Habeas corpus is available to review a contempt order entered by a lower court confining
a contemnor. Ex parte Gordon, 584 S.W.2d 686, 687–88 (Tex. 1979) (orig. proceeding). The
purpose of a habeas corpus proceeding is not to determine the ultimate guilt or innocence of the
relator, but only to ascertain whether the relator has been unlawfully confined. Id. at 688; In re
Mann, 162 S.W.3d 429, 432 (Tex. App.—Fort Worth 2005, orig. proceeding). A writ of habeas
corpus will issue if the order underlying the contempt order is void or if the contempt order itself
is void. See Ex parte Shaffer, 649 S.W.2d 300, 302 (Tex. 1983) (orig. proceeding). In a habeas
corpus proceeding, the order or judgment being challenged is presumed to be valid. In re
R.E.D., 278 S.W.3d 850, 855 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding); In re
Turner, 177 S.W.3d 284, 288 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding). The
relator must show that the order is void and not merely voidable. In re Munks, 263 S.W.3d 270,
272–73 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding). A contempt order is void if it
deprives the relator of liberty without due process of law or if it exceeded the power of the court
to issue. See In re Coppock, 277 S.W.3d 417, 418 (Tex. 2009) (orig. proceeding).

ORDER REVOKING SUSPENSION AND FOR COMMITMENT
Relator argues that the May 8, 2023, Order Revoking Suspension and for Commitment to
County Jail is void because it violates his right to due process.
Applicable Law
A trial court may enforce by contempt any provision of a temporary or final order in a
suit affecting the parent-child relationship. TEX. FAM. CODE ANN. § 157.001 (West 2023). There
are two forms of contempt: civil and criminal. A criminal contempt order is punitive in nature
and is an exertion of the court’s inherent power to punish a party for “some completed act which
affronted the dignity and authority of the court.” Ex parte Johns, 807 S.W.2d 768, 771 (Tex.
App.—Dallas 1991, orig. proceeding) (quoting Ex parte Werblud, 536 S.W.2d 542, 545 (Tex.
1976)) (orig. proc.)). Criminal contempt orders generally require the individual to be
incarcerated for a finite period and that period is unaffected by the individual’s performance of

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any future act. In re Scariati, 988 S.W.2d 270, 272 n.1 (Tex. App.—Amarillo 1998, orig.
proceeding); Ex parte Hosken, 480 S.W.2d 18, 23 (Tex. Civ. App.—Beaumont 1972, orig.
proceeding). In criminal contempt proceedings, the contemnor is being punished for his
improper actions “and no subsequent voluntary compliance on the part of the defendant can
enable him to avoid punishment for his past acts.” Ex parte Johns, 807 S.W.2d at 771 (quoting
Ex parte Hosken, 480 S.W.2d at 23). A judge can impose a fine or imprisonment or both in a
criminal contempt order. Id. The distinguishing feature of criminal contempt is that the penalty
is unconditional. Id.
Texas courts have consistently held that contemnors whose alleged contemptuous
behavior occurred outside of court are entitled to procedural due process protections before they
may be held in contempt. In re Zandi, 270 S.W.3d 76, 77 (Tex. 2008). There is no meaningful
distinction between an individual’s rights which are at stake in a constructive criminal contempt
hearing and those at stake in an ordinary criminal trial where confinement is a possible penal
sanction. Id. Due process of law requires that the constructive contemnor be given full and
complete notification and a reasonable opportunity to “meet the charges by way of defense or
explanation.” Id. (citing Gordon, 584 S.W.2d at 688). Moreover, when a person has been held
in contempt for violation of the court’s order, but his punishment is suspended on condition of
compliance, the court must afford him a subsequent hearing to determine breach of the condition
and must issue an unconditional order of commitment. Ex parte Wilson, 797 S.W.2d 6, 7 (Tex.
1990); In re Matney, 24 S.W.3d 481, 483 (Tex. App.—Houston [1st Dist.] 2000, orig.
proceeding). “A contemnor’s post-contempt conduct cannot be used to subject him to additional
punishment.” Ex parte Swate, 922 S.W.2d 122, 124 (Tex. 1996).
Analysis
Although we are mindful of Relator’s many instances of noncompliant behavior and
Respondent’s understandable frustration with said behavior, we observe several procedural
errors related to the revocation of Relator’s suspension of commitment that ultimately deprived
Relator of liberty without due process of law.
First, although the Agreed Order, Order on Motion to Revoke, and Order Revoking
Suspension each contain findings that Relator failed to timely produce responsive documents to
Jessica, the record before us lacks any written order explicitly finding Relator in contempt for his
discovery-related noncompliance. In the Agreed Order, Respondent found Relator in contempt

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of court for violations of the Temporary Orders and sentenced him to the shorter of 180 days’
imprisonment or imprisonment until he complied with certain of the court’s orders. Respondent
then suspended Relator’s commitment to jail entirely, conditioned on his compliance with those
same orders. The Order on Motion to Revoke contains no additional findings of contempt. Due
process requires a court, before imprisoning a person for violating an earlier order, to sign a
written judgment or order of contempt and a written commitment order. Ex parte Strickland,
723 S.W.2d 668, 669 (Tex. 1987). This requirement applies to both civil and criminal
constructive contempt orders. Id.; In re Broughton, No. 09-09-00550-CV, 2009 WL 5276756,
at *1 (Tex. App.—Beaumont Jan. 14, 2010, orig. proceeding) (mem. op.). Without a written
judgment explicitly finding Relator in contempt for his noncompliance with a specific discovery
order, Relator’s imprisonment violates his right to due process.
Second, the Order Revoking Suspension states that Relator “failed to comply with the
terms and conditions of the order of this Court suspending commitment signed on April 12,
2023.” 5 This order purports to rescind suspension of Relator’s sentence solely because of his
noncompliance with orders that he produce responsive documents by a date certain. But
Relator’s compliance with the discovery orders was not a condition of his suspension. The
Agreed Order conditions the suspension of Relator’s sentence on his compliance with six
separate terms, none of which relate to document production. The Order on Motion to Revoke
sets one additional term for the suspension, namely that Relator timely pay additional attorney’s
fees to Jessica’s counsel. Although both documents compel Relator to provide the delinquent
discovery materials to Jessica by a certain date, neither order sets compliance with the discovery
order as a condition of Relator’s suspension of commitment. Consequently, Relator’s
nonperformance thereof was an improper basis on which to revoke the suspension of his jail
sentence, and revocation on said basis violated his right to due process. See, e.g., Hille v. State,
No. 13-11-00755-CR, 2012 WL 6719452, at *3 (Tex. App.—Corpus Christi Aug. 28, 2012, no
pet.) (mem. op.) (court not authorized to revoke probation without showing that probationer
violated a condition of probation imposed by court) (citing DeGay v. State, 741 S.W.2d 445, 449

5
The Order on Motion to Revoke entered on April 12 does not appear to enact any additional suspension of
commitment, but only takes revocation under advisement “pending a review of [Relator’s] further compliance with
all previous orders of this Court.” The only order on record that suspends commitment is the Agreed Order entered
February 10.

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(Tex. Crim. App. 1987)); see also Zandi, 270 S.W.3d at 77 (where confinement is a possible
sanction, contemnors afforded same procedural due process rights as criminal defendants).
Third, even presuming the Order Revoking Suspension included a proper basis to revoke
Relator’s suspended sentence for contempt as set forth in the Agreed Order (as this is the only
suspended sentence that could be subject to revocation), the sentence ordered is itself erroneous.
The sentence originally imposed and suspended via the Agreed Order was civil in nature,
because Relator could avoid or end his 180-day incarceration by obeying the court’s orders. In
re Montgomery, 138 S.W.3d 569, 572 (Tex. App.—Beaumont 2004, orig. proceeding). The
sentence set by the Order Revoking Suspension is criminal in nature because it affords no
opportunity for Relator to purge himself of the contempt and avoid his 180-day imprisonment.
See Scariati, 988 S.W.2d at 272 n.1. In criminal proceedings, upon revocation of probation, a
trial court may impose the suspended sentence or a lesser sentence but is without authority to
impose a greater sentence. Warren v. State, No. 12-09-00325-CR, 2010 WL 3440439, at *4
(Tex. App.—Tyler Sept. 1, 2010, no pet.) (mem. op.) (citing Kimball v. State, 119 S.W.3d 463,
465 (Tex. App.—Beaumont 2003, no pet.)). Because contempt proceedings are quasi-criminal
in nature, Texas law holds that such proceedings should “conform as nearly as practicable to
those in criminal cases.” Ex parte Balderas, 804 S.W.2d 261, 263 (Tex. App.—Houston [1st
Dist.] 1991, orig. proceeding) (citing Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex. 1986) (when
the trial court revokes probation of sentence for contempt, court may impose punishment no
greater than was originally assessed)). Though the length of Relator’s punishment as set in the
Agreed Order and in the Order Revoking Suspension is identical, the sentence in the Order
Revoking Suspension is more severe because it does not afford Relator any opportunity to purge
himself and avoid, or obtain an earlier release from, confinement. “By imposing other
punishment, the trial court undertook to readjudicate punishment it had previously assessed—and
probated.” Id. However, we note that this error alone does not entitle Relator to release, as he
must show that either the order of commitment or underlying order was void, rather than merely
erroneous. Id.; Ex parte Frazier, No. C14-92-00969-CV, 1992 WL 388133, at *3 (Tex. App.—
Houston [14th Dist.] Dec. 31, 1992, orig. proceeding) (mem. op.) (reforming commitment order
to reflect punishment imposed in original contempt order).
Fourth, the Order on Motion to Revoke, cited by Respondent in the Order Revoking
Suspension, is itself void because it states that the suspension of Relator’s sentence may be

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revoked based solely on an affidavit. The order provides that if Relator is late or delinquent in
any further payments due under the court’s orders, Jessica’s counsel need only file an affidavit
detailing the noncompliance, along with a writ of commitment, 6 after which Relator would be
“jailed without a hearing.” 7 Although it is unclear whether Jessica’s counsel ever submitted such
a notice, an order providing for such a procedure is void under Texas law. See Matney, 24
S.W.3d at 483; Ex parte Hart, 520 S.W.2d 952, 953–54 (Tex. Civ. App.—Dallas 1975, orig.
proceeding). The relator in Hart was held in contempt for disobeying the court’s previous order
to pay child support; the court sentenced him to 180 days’ imprisonment but suspended the
sentence conditioned upon his making certain weekly payments. Hart, 520 S.W.2d at 953. The
trial court also ordered that upon an affidavit of nonpayment from the relator’s ex-wife, “all
commitments, writs . . . and other process necessary for the enforcement of this order” would
issue “without any further notice to [the relator].” Id. In holding that an order permitting
commitment to occur on affidavit is “patently void” and violates due process, the court opined
that such an order

…sanctions imprisonment without providing relator an opportunity to present to the court his
reasons for failing to pay the support ordered. Conceivably, [the relator] could have been confined
even if [the] affidavit was false. We cannot approve such procedures.

Id. (citing Ex parte Hodge, 389 S.W.2d 463 (Tex. 1965)).
Finally, and perhaps most importantly, Respondent erred by not holding a hearing before
issuing the Order Revoking Suspension. Respondent found therein that Relator did not comply
with the provision in the Order on Motion to Revoke requiring him to produce responsive
documents by April 17. However, Respondent was required to hold a hearing to determine
whether a breach of the conditions of suspension occurred before revoking the suspension and
ordering Relator’s incarceration. See Matney, 24 S.W.3d at 483. The accused must be given the
opportunity to present evidence concerning any defenses he may have or must knowingly waive
that right. Ex parte Woodyard, 952 S.W.2d 104, 107 (Tex. App.—San Antonio 1997, orig.
proceeding). Respondent’s failure to permit Relator this opportunity constituted a breach of

6
Respondent agreed on the record that “another event of noncompliance” would trigger counsel’s authority
to file a Notice of Noncompliance, but the written order is more narrowly written.
7
Respondent agreed to this phrasing at the April hearing, although the written order does not explicitly
contain this language.

8
Relator’s due process rights. See Matney, 24 S.W.3d at 483 (“A person’s due process rights are
violated when his incarceration has been made contingent on a particular event and that person is
later incarcerated without a hearing to determine if that event has occurred.”).
For the above reasons, we conclude that Relator was deprived of his due process rights in
the underlying proceeding and is entitled to habeas relief. 8

DISPOSITION
Having examined and fully considered the petition for writ of habeas corpus, we
conclude that Relator met his burden to obtain relief. Accordingly, we grant Relator’s petition
for writ of habeas corpus, order him released from the bond set by this Court on June 6, 2023,
and order him released from confinement.

BRIAN HOYLE
Justice

Opinion delivered July 21, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

8 Because we so conclude, we need not address Relator’s remaining arguments. See TEX. R. APP. P. 47.1.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 21, 2023

NO. 12-23-00148-CV

MATTHEW RUEBEN PHILLIPS,
Relator
V.

HON. JANICE STONE,
Respondent

Appeal from the County Court at Law
of Cherokee County, Texas (Tr.Ct.No. FM2100424)

ON THIS DAY came to be heard the petition for writ of habeas corpus filed by
Matthew Rueben Phillips; who is the relator in appellate cause no. 12-23-00148-CV and a party
to trial court cause no. FM2100424, pending on the docket of the County Court at Law of
Cherokee County, Texas. Said petition for writ of habeas corpus having been filed herein on
June 5, 2023, and the same having been duly considered, it is the opinion of this Court that
Relator’s petition for writ of habeas corpus shall be granted.
It is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition
for writ of habeas corpus be, and the same is, hereby granted, that Relator is forthwith released

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from the bond set by this Court on June 6, 2023, that Respondent will act promptly and vacate
her order of May 8, 2023, and that Relator be released from confinement.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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