was champion hi good afternoon no please the court my name is austin champion and i represent the appellant stephen k top let's mr topless was found in contempt a state court order and sentenced to a collin county jail for failing to produce documents he does not possess and he cannot obtain in the district court below mr top with saw injunctive relief from the state court commitment order pending review of his pending petition for writ of habeas corpus for the purpose of my argument today i'd like to focus the discussion on the district court's determination that mr thomas was unlikely to succeed on the merits of his writ or his petition habeas corpus and i'd like to specifically focus on how the court erred in its conclusion for two reasons one the state court commitment order violates clearly established federal law as a turn by the united states supreme court to the district court improperly in gauged in extra record speculation to overcome the constitutional shortcomings or failures of state courts contempt judgment and commitment order supreme court has said time and time again that one of the defining characteristics or goals of civil contempt is that of coersion civil contempt is designed to coerce and litigant to take an action as a condition to his release from confinement but the goal of the commitment order from the state court below is quite different the goal here is to coerce a rd party to act by confining the litigant the state courts commitment order is the  abuse of contempt power and it violates well established u s law as decided by the supreme court by design a civil contempt order and a judgment and commitment order must place the key to the contenders prison in his that a contender can be confined i'm sorry cannot be confined unless he alone has the ability to purchase intent this key or this ability to purge is the defining characteristic of civil contempt when we compare it to criminal contempt which is important because criminal contempt carries with it much more heightened safeguards under due process that are not necessarily present in a civil contempt proceeding the module court went on to s to the court in deciding whether to hold someone contempt musser term in whether the content nor has the present ability to comply and whether jail break a deliberate defiance there is no on the record below from state court proceeding that mr topis does not have physical possession of the documents that he was ordered to produce as a condition of his confinement and release the state trial court record held short of making that finding instead it found that mr woods had control over certain documents pursuant to a contract the state court even went further and said on the record that it refused to consider mr top and says ability to obtain the finding of course that mr thomas had failed to request the documents from the trustee or otherwise fail to take some action that he had been ordered to do by the state court notwithstanding any of the rights of a trust agreement the fact remains that to purge contempt mr topics here must actually obtain the documents and produce them according to the terms of the state court judge's order you must do so despite there being no finding that he has the documents no finding that he failed to undertake some act and was held in criminal contempt he must do so at the pleasure of a rd party the trustee of the trust your honor just the inquiry up in here is well established under supreme court precedent the civil contempt requires the contender to carry the keys mr topples doesn't have the key difficulty here is every state court that's looked at it and quite a few have now two federal judges of all said that he can purch and they relied on various pieces of evidence that seem supported to me in the contempt hearing the st being the prior counsel i guess his name's herb back stated that he could produce and would produce or you're familiar with that and then the nd that the trust agreement itself does not have a contractual impediment and when i think your client was asked he couldn't point to one and then the additional sort of track relied on it seems to me supportively is that he didn't even try to get the financial statements are as you put those three together and it seems like there's a factual basis for the consensus of courts that have looked at this record to say he never tried his prior lawyers said he could and he didn't you raise three very good questions let me take them in turn the book by going to notes to follow but st was the issue of the e mail or the promise by parking also to produce documents when you look at the record the record that was before the state board there was no promise to produce anything beyond mr topics as personal tax returns and the trust document that's what the record reflects now mr tomlinson did in fact produce his personal attacks with grams and it will go court the court below specifically says on the record that she was told by him he would produce you're right that there is no order compelling mr topless to produce trust tax returns so he cannot be found with contempt without defi to produce and we can look to the document requests in the record and none of it requires him to produce trust tax returns now you asked me about contractual impediments to producing the documents i think that's a red herring judge and here's why the fact is whether or not he has a right legal contractual or otherwise does not necessarily mean he can actually perform we all have rights to certain things but it doesn't follow that we have it within our own power to achieve those things or to make them happen and this is one example of that we have in the record before the court evidence that he requested every one of the categories of documents that he had been ordered to produce by the trial court below and we have in the record before the state court a response from the trustees saying no that's what we have before the court and the court was obligated to make a determination that he had it within his power to comply at the moment of contempt and free himself and the court did you also talked about the lack of requesting or the failure i'm sorry to request financial documents which was also mr believe made by the courts below in reviewing the record when you go back and you look at the order it was compelling mr topples to produce documents from two thousand and eighteen  court there's never an order compelling him to produce trust financial instruments profit loss statements about shoes that was never before him there was never ordered to produce it and when he got to the hearing on contempt it was the st time that he'd ever been notified that the court believed he had failed to produce some document relating to a trust and so the answer to the question why did he fail to go request those and those documents and specifically because he was never were to produce them to use that as evidence after the fact to suggest that he had somehow engaged in trickery to avoid compliance with a court order i think is improper and we have to look at what he was ordered to do and we have to look at what he did and here he was ordered to produce certain business related instruments he did and then informed everyone involved that he had no further documents and that was the extent of it and as i said i think that is the inquiry i think that's it once we acknowledge that the state court content judgment requires a rd party believe a total of three attorneys representing mr topics over the last eight or nine years and the motion to compel hearing did mr earth she also say that they would get the the requested documents but subject to a protect again i think we have to look very closely at the record never once did mr hershey i believe stayed on the record that he would produce trust related documents subject to a protective order he said it would produce a trust instrument subject to a protect order because of trust and cement had certain confidentiality provisions and it was important that he not violate those provisions in the end did that and then upon ensure the protective order he also produced mr top of his personal tax returns as he had been ordered to do mr topless fully complied with the order by producing everything he could produce within his possession he did not have these trust documents he does not have them today he cannot produce them now so overcome this problem the district court below  want to speculate about what mr top was might do based on a reading of the commitment order that was never advanced in any state court proceeding below and i believe that was improper is improper because one the commitment order itself does not say or produce proper responses this is the safety of our area that the sheriff's counsel has advanced and briefing that's not in the commitment or the commitment order is very clear it says produce the documents on the document identified as exhibit a and then you get out of jail and then you go to exhibit a and it's a form commitment order that was produced to the court by judgment creditor at the contempt hearing that the judge attached to the back of her commit an order as a reference to what categories of contempt when the alleged or reported purging clauses come back and provide a proper response to a document requests at the hearing to avoid all doubt mr top woods testified under oath i do not have these documents that's the response they do not exist in my possession i cannot obtain them i can't give them to you there is no further response that he can offer that would change this and so for that reason i believe it was improper for the court to engage  speculation as to what mr topics might be able to do that might purge contempt and the reason is because the supreme court as established time and time again that the key must be definite we don't put a puzzle in the contenders pocket we put a key and if you doesn't have the key then it's not civil contempt and it's improper what's your larger what was the civil contempt cannot be used to come help or documents that have been given to their party no i'm saying that in the context of a civil contempt proceeding the supreme court established law on the issue says that the contender must possess it within his power to purge contempt that that was why it is simple sense is it wrong for the lower courts to to have said well we know he had the power to do it because at least one maybe two majority said the court didn't like it and when we look at the trust agreement it doesn't on its face say that he can't why isn't just that simple constellation and not well for one little lower court didn't say he had it within his power the lower court the state trial court simply said it had some legal right to obtain the documents and i think that's very different from saying he has it in his power to produce them we know this because he asked for money was told no and so that can't be the solution it can't be or there were hearings in front of the magistrate but not the district court judge the united i couldn't find those transcripts there were no transcripts there was no additional evidence produced at the hearing because the issue at this stage was whether or not the content judgment or violated mr topics as constitutional rights so no additional evidence was offered at that stage of the proceeding and it was requested all right thank you true that the december five commitment and no other commitment talks about the proper response is the judgment the contempt judgment self the record thirty five dollars to forty dollars talks about it so that's been the case forever secondly due process is that d it's impossible for him to comply i think the key ruling is there is a ruling of state law that as a beneficiary in fact has enough rights i think this court should defer to that  secondly possession custody or control is the standard for discovery in both you know federal court under rule thirty four a and in texas court rule when i need to point b and the question on control here the two of the six categories the trust does not have documents responsive re of the six the trust trustee objects to six categories i would submit the record shows it is not impossible under the contempt hearing i think it was did he ever contradict trust counsel statement that that he can't actually i think he said he did not have the documents in his possession and i'll apologize obviously i'm not involved in the underlying state d court suit so i don't know the discovery history as well but i think mr  trustee then gives a response of answers about sixty categories or one of those directions next i think we have to look at the definition of in a d possibility right the federal case is still auto is the case where the supreme court said it ward or the civil contempt order goes too far once or it keeps a man in prison or witnesses in prison who can no longer testify before the grand juries because they're finally discharged and that's true a possibility here mr procedural due process i didn't get the procedure that was due to me right i didn't get counsel or adequate notice here mr tooke was left to proceed on the table now as far as substantive due process since mr copas is challenging a state court action versus an executive action legislative the test is whether the district court of the state court acted arbitrarily or graciously and here the discovery follows the typical pattern right the plaintiff is trying to collect  the power number one if you look at his particular complaints there are all complaints about state law for example did did what do you ordered to produce tax returns only or was it trust tax and is an application of state law to the relevant facts and those facts are more than supported by any measure of evidence facts are the plaintiff is seeking discovery about a trust there is a trust  about prior counsel in representation i read it like you read it which is i thought the prior counsel had said you would produce the tax returns but i will admit that i wasn't involved in that portion and i have been much more focused on what i thought were just the basic process questions so i don't know the nitty gritty i will refer the court though to the transcript of the june twenty five two thousand and eighteen hearing where d that was that was the question of whether the discovery was in the thrust came i interpret it that he had said that but i agree also all acknowledge that it doesn't say trust in someone you know in the in the earlier or compelling toeplitz but i don't think that's i don't see all that ties to mr toad which is due process claim is due process claim is that he does not possess the you respond i think that's incorrect mr topless raised with the texas supreme court in an original proceeding petition for writ of habeas corpus the issue that there was insufficient evidence to suggest or find that he had possession of the documents as it was necessary to support a judgment for contempt keep in mind too coming out of the texas state court here we don't have appellate rights with these judgments of contempt and so the notion of exhaustion is a little different all we can do is collaterally attack the judgments as void in  terminology would be i want to turn to a statement that mr barnes made about the use of subpoena power let me make something very clear this is a post judgment discovery ace and then texas the post judgment debtor has no subpoena power all of the discovery tools are available to the creditor but the debtor mr topless says hands are tied when it comes to using discovery so there is no right or power by mr topless to go out and get these documents from the trustee but let's make no mistake about it there's nothing preventing the judgment creditor from serving the lawful subpoena on the trustee for these documents and if the trustee doesn't comply the judge has it within her power to hold the trustee in contempt of court that's a process that ought to be used here we ought not to be sitting here strangling the law into trying to fit around peg a square hole here what we really do is acknowledge the fact that mr topless has no business being thrown in jail to make a rd party do something when the state rules in texas give the judgment creditor exactly what he needs to accomplish his ins and that's a problem we have here there's also a no by mr barnes here that the order on the motion to compel there's discussion on the record about how this relates to the trust we don't get to go to the record we don't get to look and see what people talked about we look at the order in the trial court order from the motion to compel that was in june two thousand eight hundred dollars says what it says when you look at the order of the order says produce documents responsive to these requests and that's it and we have to look at that to determine whether mr top but then fail to comply such that the trial court could then  denied and so under oath the only evidence before the court because there was no controversy no evidence there's no controversy no evidence other than the legal document that says what it says the only evidence was he could not obtain the documents he did not possess the documents each searched for the documents produced everything he had and that's what got us here is that notwithstanding that testimony that was uncontroverted the trial court below in the state court proceeding said he had to he had to make it happen and i think that's an improper use or an abuse rather of the contempt power i think the final issue raised by mr barnes all touched on is this proper response is language in the content judgment the reason that's not really an issue here is that we're talking about the commitment or that's the order from the trial court that commands mr barnes client the sheriff of collin county to confine so judge here we have a pretty simple dilemma the only record evidence is you don't have the documents it's been eighteen months since this was originally or since was originally found in contempt of court as mr barnes pointed out he's repeatedly tried to get the documents even after the original contempt proceed and he's been denied it so either leave him in jail and we say sorry looks like we found a loophole or we do the right thing and we say the constitution affords you certain protections and so i asked the court to vacate the district court's decision denying the preliminary injunction let this man stay free until we fully resolve this issue the district