Dissenting opinion issued August 2, 2018

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-17-00520-CV

———————————

ADELINA MICHELLE CLINE, Appellant

V.

JASON W. CLINE, Appellee

On Appeal from the 22nd District Court

Comal County, Texas

Trial Court Case No. C2012-0499A
2

DISSENTING OPINION

This is an attempted appeal from an order enforcing a mother’s obligation to 

pay $781.32 in child support by jailing her for 180 days. The mother, Adelina 

Michelle Cline, was found in contempt of court on four separate counts, in each 

case for failure to make a court-ordered child-support payment in the amount of 

$195.33. She also was found indigent by the trial court, and a lawyer was 

appointed to represent her at public expense.1

The mother has attempted to appeal from the order committing her to jail on 

the basis of her affirmative defense: she can’t afford to pay.2 The court dismisses 

that part of her appeal, reasoning that contempt orders are unappealable. As noted 

by the court, our prior precedent suggests the general unappealability of contempt 

 

1 The commitment order that the mother attempts to appeal ordered her to 

appear before the court to begin her jail sentence on August 30, 2017. 

Although the mother’s brief makes reference to her being jailed on May 24, 

2017, nothing in our record confirms whether she has actually served all, 

some, or none of the jail sentence.

2 See TEX. FAM. CODE § 157.008(c) (“An obligor may plead as an affirmative 

defense to an allegation of contempt . . . that the obligor: (1) lacked the 

ability to provide support in the amount ordered; (2) lacked property that 

could be sold, mortgaged, or otherwise pledged to raise the funds needed;

(3) attempted unsuccessfully to borrow the funds needed; and (4) knew of no 

source from which the money could have been borrowed or legally 

obtained.”). 
3

orders.3 Family Code section 109.002 authorizes an appeal from any “final order” 

rendered under Title 5 of the Code, which governs suits affecting the parent-child 

relationship. My research has not revealed any precedent of the Supreme Court of 

Texas or of this court that squarely holds that a contempt order in a child-support 

enforcement action does not qualify as such an appealable “final order” under the 

current Family Code. Prior to the adoption of the recodified Family Code, 

including section 109.002, our Supreme Court did hold in Norman v. Norman4that 

a court of appeals lacked jurisdiction to review an order that declined to hold a 

father in contempt for child-support arrearages, applying section 14.09 of the thenapplicable version of the Family Code. The authority relied upon by Norman was 

Wagner v. Warnasch,

5 which stated the rule thus: “A judgment of a court 

 

3 E.g., Metzger v. Sebek, 892 S.W.2d 20, 54 (Tex. App.—Houston [1st Dist.] 

1994, writ denied); see also Jones v. Tex. State Attorney Gen., No. 01-03-

00393-CV, 2003 WL 22054291, at *1 (Tex. App.—Houston [1st Dist.] 

Aug. 29, 2003, no pet.) (mem. op.) (in attempted appeal from contempt 

order arising from failure to pay child support, court notified appellant that 

the decision was “subject to attack only by petition for writ of habeas 

corpus,” then subsequently granted appellant’s motion to transform the 

appeal into a petition for writ of habeas corpus).

4 692 S.W.2d 655 (Tex. 1985) (per curiam).

5 295 S.W.2d 890 (Tex. 1956).
4

convicting a person of contempt is not subject to revision in any other tribunal, 

unless specially authorized by statute.”6

At the time Wagner was decided, Texas statutes “made no provision for an 

appeal from an adjudication and commitment for contempt, and none for review by 

writ of error.”7 Since the relevant statutory authority has changed materially 

since Wagner was decided in 1956 and Norman was decided in 1984, the 

continuing viability of these authorities cannot be assumed. Thus, although the 

Attorney General expressly relied on Norman in a letter sent to this court to 

suggest a lack of jurisdiction in lieu of filing a brief, it is not apparent that Norman

is binding authority after the adoption of Title 5 of the Family Code effective 

April 20, 1995.8 The relevant statutory authorization for an appeal at the time 

Norman was decided provided: “An appeal may be taken by any party to a suit 

affecting the parent-child relationship from an order, decree, or judgment . . . 

entered under Chapter 14 of this code appointing or refusing to appoint a managing 

conservator; appointing or refusing to appoint a possessory conservator; ordering 

or refusing to order payments for support of a child; or modifying any such order 

 

6

Id. at 893 (quoting 9 Tex. Jur., Contempt § 45) (emphasis supplied).

7

Id.

8 Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113.
5

previously entered . . . .”

9 By contrast, the Family Code now authorizes appeals 

from final orders in SAPCR cases in much broader terms: “An appeal may be 

taken by any party to a suit from a final order rendered under this title.”10

Our court tried to avoid this non-merits disposition of the mother’s issue by 

notifying her lawyer about the jurisdictional issue and the availability of habeas 

corpus or mandamus review as alternatives.11 In response, counsel insisted that the 

contempt order was appealable and did not request that the challenge be considered 

as a request for habeas corpus or mandamus relief. Counsel did not attempt to 

 

9 Act of May 25, 1973, 63rd Leg., R.S., ch. 543, § 1, 1973 Tex. Gen. Laws 

1411, 1419, and Act of May 26, 1983, 68th Leg., R.S., ch. 962, § 1, 1983 

Tex. Gen Laws 5233 (former Tex. Fam. Code § 11.19(b)(2)) (emphasis 

supplied); repealed by Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 

Tex. Gen. Laws 113.

10 TEX. FAM. CODE § 109.002(b); cf. Lehmann v. Har–Con Corp., 39 S.W.3d 

191, 195 (Tex. 2001) (“A judgment is final for purposes of appeal if it 

disposes of all pending parties and claims in the record, except as necessary 

to carry out the decree.”).

11 Cf. CMH Homes v. Perez, 340 S.W.3d 444, 453-54 (Tex. 2011) (appellant 

who filed an appeal from an unappealable order was nevertheless entitled to 

have its appeal treated as a petition for writ of mandamus because it 

specifically requested mandamus relief and because requiring the filing of a 

separate document entitled “petition for writ of mandamus” would 

“unnecessarily waste the parties’ time and further judicial resources”); Jones 

v. Brelsford, 390 S.W.3d 486, 497 n.7 (Tex. App.—Houston [1st Dist.] 

2012, no pet.) (“in an appropriate case, we may treat an appeal as a petition 

for writ of mandamus, and an appellant who specifically requests that her 

appeal be treated as a mandamus petition invokes this Court’s original 

jurisdiction”). 
6

distinguish or otherwise address the authorities this court identified as being 

relevant to the jurisdictional issue.12

There has been no contest to the mother’s indigence, and rational actors who 

could avoid spending half a year in jail by paying a debt of $781.32 would do so. 

Moreover, the Texas Bill of Rights specifically forbids imprisoning a person for 

debt.13 It would be far more efficient to fix the procedural deficiencies of this case 

now so that the merits can be addressed, rather than requiring the appellant’s courtappointed lawyer to start over with a new filing at public expense.

In furtherance of our Supreme Court’s policy of treating “minor procedural 

mishaps with leniency, preserving the right to appeal,”14 the court should have 

 

12 Our order referenced In re B.A.C., 144 S.W.3d 8, 11 (Tex. App.—Waco 

2004, no pet.), for the proposition that contempt findings are generally not 

appealable and are subject to challenge only by original proceeding, and 

Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex. App.—Fort Worth 2001, 

pet. denied), for the proposition that “[a] contempt judgment is reviewable 

only via a petition for writ of habeas corpus (if the contemnor is confined) or 

a petition for writ of mandamus (if no confinement is involved).” Our order 

also referenced Family Code section 109.002(b), yet the mother has 

presented no argument that this statute authorizes an appeal in SAPCR cases 

as an exception to the general rule precluding appeal from a contempt order.

13 TEX. CONST. art. I, § 18 (“No person shall ever be imprisoned for debt.”).

14 Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 665 (Tex. 2011) (per 

curiam); see also Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997)

(“appellate courts should not dismiss an appeal for a procedural defect 

whenever any arguable interpretation of the Rules of Appellate Procedure 

would preserve the appeal”).
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exercised its authority to invite a satisfactory merits-based submission of the case 

by requesting additional briefing addressing the mother’s indigency 

defense in the correct procedural form.15 Because the court fails to do so, I 

respectfully dissent.

Michael Massengale

Justice

Panel consists of Chief Justice Radack and Justices Massengale and Brown.

Justice Massengale, dissenting.

 

15 See TEX. R. APP. P. 38.9(b) (“If the court determines, either before or after 

submission, that the case has not been properly presented in the briefs, or 

that the law and authorities have not been properly cited in the briefs, the 

court may postpone submission, require additional briefing, and make any 

other order necessary for a satisfactory submission of the case.”); see also St. 

John Missionary Baptist Church v. Flakes, 547 S.W.3d 311 (Tex. App.—

Dallas 2018, pet. filed) (en banc) (Schenck, J., dissenting) (discussing the 

authority of Rule 38.9(b) and the power of a court of appeals to request 

additional briefing to ensure a proper presentation of a case to facilitate a 

disposition on the merits).