### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00589- CV

In re Anthony Sh eridan

ORI GINAL P ROCEEDI NG F ROM WI LLIAM SO N COUNTY

M E M O R A N D U M O P I N I O N

I n this orig inal proce eding , rela tor Anthony Sheridan seeks a writ of habea s corpus,
arg uing that the di strict court’s order h o l d i n g h i m in contempt and for commitm ent i s void. The 1 Offic e of the Attorney Gene ral conce des that the trial court err ed in waiving a rec ord of the contempt
proce eding s without the reque st or consent of the p ar t ies and that this Court cannot resolve the issues raised in Sher idan’s application without a rec ord. Acc ording ly , we g rant Sheridan’s writ of habea s corpus.

BACK GR OUND

On May 17, 2011, Sheridan appea red pro se at a

hear ing c onducted by

an assoc iate judge in T ravis County district court to respond to a show ca use order resulting from his f ailure to
pay child support as order ed in Dec ember 2009. Sheridan reque sted an indige ncy hear ing, and afte r

This proce eding challeng es an order rende red J une 10, 2011, in the 126th J udicial District 1 Court of Travis County , the Honora ble L ora L ivingston, J udg e Presiding. The case was subsequently

transfe rre d to Wi lliamson Count y .hear ing evidenc e, the associate judge denied Sheridan’s reque st for an app o i n t ed at torney

. The 2
h ea ri ng was rece ssed t o allow t he parties to neg otiate, and following rec ess, t he parties submitt ed

an ag ree d order

. Under the terms of the proposed ag ree d order , the associate judge adjudicate d Sheridan in contempt for failure to pay court-or dere d child support, assessed punishment at 180 day s confine ment for punitive or criminal contempt, found that he was able to pay $1,000, order ed him committed to the county jail until that amount was paid for coer cive or civil contempt, and order ed him to repor

t on November 29, 2011, to beg in commitment. The ag ree d order states that Sheridan

was advised of his rig hts, including the rig ht to court-a ppointed counsel if found indige nt, and that his reque st for a court-a

ppointed attorney was denied. The ag ree d order also states that a rec ord of the proce eding s was “wa ived by the court.” The associate judge signe d the ag ree d proposed order , and the district cour

t subsequently

adopted the pr oposed orde r. On November 29, 2011, Sheridan was conditionally rele ased upon pay ment of a cash b o n d an d order ed to appea r on Fe bruar

y 28, 2012, to revie w his compliance with the order

. On
Fe bruar y 28, 2012, the case was transfe rre d to Wil liamson County and rec essed until May 25, 2012,
at which time Sheridan was order ed to repor t for commitment on Aug ust 25, 2012. Sheridan failed

The rec ord provided by Sheridan in this proce eding provides a less-than-c o m p l et e 2 proce dural ba ckg round, and some fac ts state d here in a re draw n from the rec ord filed in his rela ted appea l, Sherida n v. Of

fice of Att’y Gen. , No. 03-14-00176- CV, which we dismiss for lack of jurisdiction in an opinion issued this same date. We take judicial notice of the rec ord in that appea l, as we may do, whether reque sted by a party or on our own, at any stag e in the proce eding

. See Tex. R. Evid. 201(b), (c) , (f) ; HealthTronics, Inc. v. L i s a Laser USA, Inc. , 382 S.W .3d 567, 576 (Tex. App.—Aust in 2012, no pet.) (taking judicial notice of California trial court rec o rd s n o t contained in rec ord but submitt ed to appellate court); In the Interest of J .F. , No. 02-08-00183- CV, 2009 Tex. App. L EXI S 2130, at *2 n.3 (Tex. App.—For t Worth Mar. 26, 2009, pet. denied) (mem. op.) (taking judicial notice of repor ter’s rec ord in prior appea l of case wher e audiotape rec ording of proce eding s was blank)

. 2to appea

r, and a capia s for his arr est was issued. On Marc h 7, 2014, a second capia s was issued. On September 16, 2014, Sher idan filed this application for writ of habe as cor

pus.

HABEAS CORPUS STANDARD The purpose of a writ of habea s corpus is not to de termine the g uilt or innocenc e of the contemnor, but r ather to de termine whether he was a ffor ded due proce ss of law or whether the order of contempt is void. See Ex parte Gordo n , 5 8 4 S

. W

. 2 d 686, 688 (Tex. 1979) (orig

. proce eding ). A writ of habeas corpus wi l l b e i s s u ed if the order underly ing the contempt order i s void, or if the contempt order itself is void. See Ex parte Shaffer , 649 S.W .2d 300, 302 (Tex. 1983) (orig

. proce eding ); Gordon , 584 S.W .2d at 688. An order i s void if it is bey ond the power of the
court to enter it or if it deprive s the rela tor of liberty without due proce ss of law. In re Henry , 154 S.W .3d 594, 596 (Tex. 2005) (orig

. proce eding ) (per curia m); Ex p a rte Merrikh , 361 S.W .3d 209, 210 (Tex. App.—Houston [14t h Dist.] 2012, orig

. p ro ce ed i n g ) (per curia m);
In re Ross , 125 S.W .3d 5 4 9 , 5 5 2 (T ex. App.—Austin 2003, orig

. proce eding ). The rela tor bear s the burden of showing his entitlement to relief in a habea s corpus proce edi n g. In re Turner , 177 S.W .3d 284, 288 (Tex. App.—Houston [1s t Dist.] 2005, orig . proce eding ).

DISCUSSIO N
I n his first issue, Sheridan arg ues that the district court’s contempt order is v o i d beca use the associate judge waived the making of a rec ord on her own motion. Section 157.161 of the Family Code provides that a rec ord of the hear ing in a motion for enfor ceme nt shall be made by

a court repor

ter unless the parties ag ree to an order or the motion does not reque st incar cer ation and

3the parties waive th e requirement of a rec ord. See Tex. Fam. Code § 157.161(a) , (b). Her e, 3 althoug h the parties ultimately ag ree d to an order , they did not d o s o u n t i l afte r the district court had taken evidenc e on and denied Sheridan’s reque st for a deter mination of indige nce and a
court-a ppointed attorney and rec essed the hear ing so that the p ar t i es could neg otiate. Be cause Sheridan did not ag ree to an order un t i l afte r the evidentiar y portion of the hear ing—the critica l portion of the rec ord we would revie w—we cannot co n cl u d e that the parties ag ree d to an order within the meaning of section 157.161 so as to prec lude the require ment o f a re co rd

. See id. § 157.161(b)( 1).

Fur ther, the order states that a rec ord of the proce eding s was “wa ived by the court.” Under section 201.009 of the Family Code, a court repor ter is not require d in a hear ing befor e an associate judge unless the judge presides over a jury trial o r a final termination hear ing. See id. § 201.009(a) ; In re P.L.L. , No. 0 7 -0 5 -0 0 2 2 6 -CV, 2006 Tex. App. L EXI S 600, at *2 (Tex. App.—Amar illo J an. 25, 2006) (mem. op.). Section 201.009 further provides that in the absenc e of

a co u rt re p o rt er , the record may be preserve d by any means approved by the associate j udg e. See
T ex. Fam. Code § 201.009(c) ; In re P.L.L. , 2006 Tex. App. L EXI S 600, at *2. I n such i nstance s , the rec ord is g ene ra l l y p re s er ved by audio rec ording

. See, e.g. , In the Interest of B.R.G. , 4 8 S.W .3d 812, 816 (Tex. App.—El Paso 2001); In re Carlton , No. 09-07-0241 -C V, 2007 Tex. App. L EXI S 4879, at *2 (Tex. App.—B eaumont J une 21, 2007, orig

. proce eding ) (mem.
op. ) (per curia m); In re P.L.L. , 2006 Tex. App. L EXI S 600, at *2. I n this case , the associate judge

Al t h o u gh Sheridan relies on section 105.003(c) of the Fa mily Code, which applies 3 g ener al l y i n suits aff

ecting the parent-child relationship, we apply section 157.161, which applies specific ally

to enforc ement proc eeding s. See Tex. Fam. Code §§ 105.003(c ), 157.161. 4interlineate d the orde r to ref lect that rather than ma

ke a r ecor d by

audio re cording , she wa ived the making of a rec ord. Having alre ady taken evidenc e on Sheridan’s reque st for indige nce and a courtappointed attorney prior to the prese ntment of an ag ree d order , the associate judge did not have the authority to waive the rec ord. See Tex. Fa m . Code § 157.161(a) (b); In the Interest of Brattain , No. 05-98-00978- CV, 1999 Tex. App. L EXI S 9099, at *1–2 (Tex. A pp.—Dallas Dec

. 6, 1999, no pet.) (mem. op., not desig nated fo r p u b l i cation) (whe re order was not ag ree d and parties did not waive require ment of rec ord, trial court d i d n ot have authority to waive rec ord); cf. Ex parte Coronado , No. 13-09-00149- CV, 2009 Tex. App. L EXI S 2474, at *11–12 (Tex. Ap p.—Corpus Christi Apr. 9, 2009, orig

. proce eding ) (mem. op.) (re quirements of section 15 7

. 1 61 met wher e
ag ree d order stat ed re cord of proce eding waived by parties with consent of court). The Attorney Gene ral c oncede s err or.

Be cause the associate judge did not have the authority to waive the making of a

rec o rd , S h er i d an h as met his burden to show that the contempt order is void on this basis. See
Ex parte Merrikh , 361 S.W .3d at 210; In re Stein , 331 S.W .3d 538, 540 (Tex. App.—Houston [14t h Dist.] 2001, orig

. proce eding ); In re Turner , 177 S.W .3d at 288. We sustain Sheridan’s first issue. Having conclude d that the order i s v o id on the basis of S herida n’s first issue, we do not rea ch the

rema inder of his issues, in which he arg ues that his due proce ss rig hts wer e vio l at ed beca use the associate judge denied his reque sts for a deter mination of indige nce and court-a p p o i n t ed counsel without finding s on a rec ord and beca use he did not knowing ly and intentionally waive his rig ht to counsel on the r ecor d. See Tex. R. App. P . 47.1, 47.4.

5CONCLUSION After revie wing the application, the Offic e of the Attorney Gene ral’s response , and the rec ord submitt ed by the parties, we conclude that rela tor has established that he is entitled to relief and, acc ording ly , we g rant the application for writ of habea s corpus and vacate the trial court’s judgme nt of contempt and punishment ente red on June 10, 2011. See Tex. R. App. P . 52.8.

__________________________________________ Melissa Goodwin, Jus tice
Be fore Chief J ustice Jones, J ustices Rose and Goodw in Filed: Nove mber 14, 2014

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