## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 22

- 00436

- CV

___________________________

Original Proceeding 158th District Court of Denton County, Texas Trial Court No. 17

- 2904

- 158

Before Birdwell, Womack, and Walker, JJ. Memorandum Opinion by Justice Walker 

### I N RE 

### S TEPHANIE 

### D UNLAP 

### H ADSALL2 MEMORA

NDUM OPINION
I. I NT RODUCTION Relator Stephanie Dunlap Hadsall (M other) , whom the trial court held in
contempt and confined to jail , filed a petition for writ of habeas corpus in our court in
which she asserted that the tria l cour t had denied her due proce ss and the right to
counsel

. R eal P arty in I nterest Mikel Ray Hadsall (Father) has not file d a response . We agree that the trial court ’ s con tempt and commitment orders are void and grant Moth er ’ s petition for writ of habeas corpus

. II. D IS C U SSION
A. M O THER ’ S C ONTENTI ONS In her p etition , Mother assert s that the trial court de n ied her due process
be cause it denied h er the right to counsel. 1 See Tex. Fam. C ode Ann. § 157.163 ; In re
Riv as
- Luna , 528 S.W.3d 167, 172 (Tex. App.

— El Paso 20 17 , orig. pr oceeding )

. She
maintain s that the trial court failed to advise her of her right to counsel, failed to appoint counsel on the basis of indigence , and

— even if she w er e not indigent

— failed
to afford her th e opportunity to ret ain counsel

.

B
. S ECTION 157.163 OF THE T E XAS F AMILY C ODE Specifically, Mother conte nds that the trial court failed to comply with
Section 157.16 3 of the Texas Family Code, which addresses the ste ps that the trial
court is su pposed to follow when a pro se party (su ch as M other was in the trial c ourt )

1 Mother mai ntain s that she never waived her right to counsel.3

appears in a contempt proceeding

. See T e x . F am . C ode A nn . § 157.163 ; In re Pass , No. 2

- 05

- 457

- CV, 2006 WL 668744, at *1 (Tex. App.

— Fort Worth Mar. 16 , 2006, orig. pro cee ding

) ( mem. op. ). This statute requires the trial court to determine
whether in carceration of the respondent is a possible result of the enforcement proceedings

. Tex. Fam. Code Ann. § 157.163(a)

. If the court determines that the
resp ondent will not be incarcerated as a result of the proce edings, it may require a respondent who is i ndigent to proceed without an attorney. Id. § 157.163 ( c) ; Pass , 2006 WL 668744, at *1. But if incarceration is a possible result , the trial court “ shall
i nform a respondent not represented by an attorney o f the right to be represented by an attorney and, if the respondent is indigent, of the right to the a ppointment of an
attorney
. ” Tex. Fam. Code Ann. § 157.163 (b) ; Pass , 2006 WL 668744, at *1

. I f the

res pondent claims indigency and reques ts the appointme nt of an a ttorney, the court

must require the res pondent to file an affidavit of indigency. Tex. Fam. Code Ann. § 157.163( d

)

. When determining indigency, t he court may also hear evidence

. Id. I f
the co urt determines that the respondent is indigent , it must appoint an attorney to represent the respond ent
. Id. § 157.163(e ). Section 157.163 requires courts to admonish pro se litigants of their right to counsel, regardless of whether they are indigent

. E x parte Acker

, 949 S.W.2d 314, 316 (Tex. 19 97) (orig. proceeding) ; Pass , 2006 WL 668744, at *1. Thu s, a re spondent facing incarceration must be informed of
h er right to counsel and must either waive that right or be represented by counsel. See Argersinge r v. Hamlin , 40 7 U.S. 25, 37 (1 972) ( “ We hold, therefore, that absent a4

knowing and intelligent waiv er, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by
counsel at his trial. ” ); Pass , 2006 WL 6 68744, at *1 ; se e also In re Luebe , 983 S.W.2d 889, 890 (Tex. App.

— Houston [1st Dist. ] 1999, orig. proceeding) (“[C]ontempt cases are considered quasi

- criminal in nature , and their proceedings should conform as nearly
as pract icable to those in criminal ca ses.”). A bsen t a knowing and intelligent waiver of the right to counsel made on the record, an order holding a r e spondent in contempt is void. Pass

, 2006 WL 668744, at *1

. C. T HE T RIAL C OURT DID NOT C OMPLY WIT H S ECTION 1 57. 163
Th e report er ’ s record shows that the trial c ourt was aware that Father was attempting to put Mother in jail fo r contempt
. Tex. Fam. Code Ann. § 157.163 (a)

. The trial court was also a ware t hat Mother was appearing pro se. This triggered the
trial cour t ’ s res ponsibility to inform Mothe r of her right to be represented by an attorney and, if sh e was indigent, of th e right to the appointment of an attorney. Id. § 157.163( b ). The trial court failed to do so

. Inste ad , the trial court

— i gnori n g the requireme nts of Section 157.163

— informed Moth e r that she was n either indi gent no r entitled to appointed counse l.
W hen Mot her informed the trial court that she was not an attorney and could not
afford to retain one , t he trial court ask ed M other how much she made per mo nth

. Mothe r answered that she made $ 4,000 per month, and the court ruled, “ That ’ s beyond that amount at whic h I can grant a court

- appointed attorney. And so you ’ d5

be representing yourself. ” Mo ther qu er i ed, “ So I ’ m no t entitled to counsel? ” The
court respo nded, “ No . You make too much money. ” Although the trial court made an inquir y into whether Mother was i ndigent, it
did not follow the pro cedure set out in Section 157.163. O nc e Mother comm unicated
to the trial court that she was indigent and wanted an attorney, t he trial court was required to have her fill out and file an affidavit of indigency. Id. at § 157.163( d ). The
trial cour t skipped this requirement

. Furthermore, t he fact that Mo ther was employed

— altho ugh certainly a relevant
facto r

— was not necessarily dispositive of whether she was indigent for purposes of having counsel appointed. See Riv as
- Lu na , 528 S.W.3d at 172 n.2 ( “ It is worth noting

. . . that a finding of indigence is no t precluded by evidence that the part y claiming indig ence is employed. The proper inquiry is whether the party ’ s income is exceeded by her expe nses. ” ) ; Luebe , 983 S.W.2d at 890 ( noting that Section 157.163 gives no guidelines for determinin g indigency and that “ [n ]o rigi d standard e xists for determining ind igency for the purp ose of appointing counsel ” ). Mother then asked, “ Okay. Am I entitled to time to retain couns el? ” The court responded, “ Yes, but that will cau se [F ather ’ s] f ees to go up, w hich is something that most likely I ’ d hold you respo nsible for. ” F a ther opposed giving Mother more
time to retain counsel , and Mother again asserted that she was indigent, “ Cur ren tly, I
don ’ t have counsel. I mean, I ca n eith er make r ent or I can make child support. And
I ’ m making rent

. ” Mother did not wa ive her right to counsel merely by s tating on the6

record tha t she coul d not afford an attorney. See , e.g. , Rivas

- Luna , 528 S.W .3d at 17 1 ( “ Relator stated o n the rec ord th a t she could not afford an attorney and she would
have to do the best she could. This does not constitut e a waiver of the right to counsel or an agreement to proceed pr o se . ” ). But cf. In re M

arks , 365 S.W.3d 8 43, 846 (Tex. App.

— Fort Worth 2012, orig. pr oceeding) ( holding that the relator know ingly and intelligently waived his right to counsel after (1) the tr ial court informed him that he had the right to have counsel present and that if he could not afford one , one would be provided for h im , (2) t he rel ator acknowledged to the trial court that he
understood th o se rights , (3) the relat or never asserted that h e was indig ent , and (4) the hearing proceeded after the relator expressly waived his right to remain sile nt )

. I ndeed, as discussed ab ove, Section 15 7.163 is designed to ensure that a respondent ’ s right to couns el is protected regardless of her ability to pay. See Tex. Fam. Code Ann. § 15.163(d)

– (e) . Nevertheless, t he hearing proceeded with Mother unreprese nted by
counsel.
Mother reli e s on Rivas

-

Luna in which the El Paso Court of Appeals wrote,
The record before the C ourt reflects that incarcera tion was certainly a possible result of the enforcement hearin g. Consequently, th e trial court was required to adm onish Relator of her right to counsel, and b ased on her assertion that she could not afford an attor ney, the tria l court should have determine d whether she was entitled to appointed counsel. [T he rea l p arty in interest

] co ntends that Relator is not indige nt because she mentioned at t he hearing that she has a job. It is unnecessary to address this argum ent because t he trial court ’ s failure to admonish Relator of her rig ht to counsel renders the contempt order void.7

Id. at 172. W e agree with Mother that t he t rial court ’ s failure to c omply with Sect ion
157.163 renders the contempt and commitment order s v oid. “ [S]ect ion 157.163 requires courts to admonish pro se litigants of their right to counsel , regardless of
whether they are indigent or not. ” Acker , 94 9 S.W.2d at 316 ; Rivas

- Luna , 528 S.W.3d
at 1 72

. Be cause we hold that the trial cour t did not proper ly admonish M other of her right to counsel and of her right to appointed counsel if she w as indi gent, we need not
address Mother ’ s other contentions.
III. CONCL USION Accordingl y, we grant Mother ’ s petition for writ of habeas corpus. The trial

court ’ s c onte mpt a nd c ommitment orders are void.
Because we previously ordered Mother release d from the Denton County Jail pending final d etermination of her petit ion for writ of habeas cor pus , no further

ac tion regarding her c onfinement is requ ired. /s/ Brian Walker
Brian Walke r Justice
De livered: February 6 , 2023