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

IN RE STEPHANIE DUNLAP HADSALL
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MEMORANDUM OPINION

I. INTRODUCTION

Relator Stephanie Dunlap Hadsall (Mother), 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 trial court had denied her due process and the right to 

counsel. Real Party in Interest Mikel Ray Hadsall (Father) has not filed a response. 

We agree that the trial court’s contempt and commitment orders are void and grant 

Mother’s petition for writ of habeas corpus.

II. DISCUSSION

A. MOTHER’S CONTENTIONS

In her petition, Mother asserts that the trial court denied her due process 

because it denied her the right to counsel.1 See Tex. Fam. Code Ann. § 157.163; In re 

Rivas-Luna, 528 S.W.3d 167, 172 (Tex. App.—El Paso 2017, orig. proceeding). She 

maintains 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 were not indigent—failed 

to afford her the opportunity to retain counsel. 

B. SECTION 157.163 OF THE TEXAS FAMILY CODE

Specifically, Mother contends that the trial court failed to comply with 

Section 157.163 of the Texas Family Code, which addresses the steps that the trial 

court is supposed to follow when a pro se party (such as Mother was in the trial court) 

1Mother maintains that she never waived her right to counsel.
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appears in a contempt proceeding. See Tex. Fam. Code Ann. § 157.163; In re Pass, 

No. 2-05-457-CV, 2006 WL 668744, at *1 (Tex. App.—Fort Worth Mar. 16, 2006, 

orig. proceeding) (mem. op.). This statute requires the trial court to determine 

whether incarceration of the respondent is a possible result of the enforcement 

proceedings. Tex. Fam. Code Ann. § 157.163(a). If the court determines that the 

respondent will not be incarcerated as a result of the proceedings, it may require a 

respondent who is indigent 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 

inform a respondent not represented by an attorney of the right to be represented by 

an attorney and, if the respondent is indigent, of the right to the appointment of an 

attorney.” Tex. Fam. Code Ann. § 157.163(b); Pass, 2006 WL 668744, at *1. If the 

respondent claims indigency and requests the appointment of an attorney, the court 

must require the respondent to file an affidavit of indigency. Tex. Fam. Code Ann. 

§ 157.163(d). When determining indigency, the court may also hear evidence. Id. If 

the court determines that the respondent is indigent, it must appoint an attorney to 

represent the respondent. 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. Ex parte Acker, 949 S.W.2d 314, 316 (Tex. 1997) (orig. proceeding); Pass, 

2006 WL 668744, at *1. Thus, a respondent facing incarceration must be informed of 

her right to counsel and must either waive that right or be represented by counsel. See 

Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) (“We hold, therefore, that absent a 
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knowing and intelligent waiver, 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 668744, at *1; see 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 practicable to those in criminal cases.”). Absent a knowing and intelligent waiver 

of the right to counsel made on the record, an order holding a respondent in 

contempt is void. Pass, 2006 WL 668744, at *1.

C. THE TRIAL COURT DID NOT COMPLY WITH SECTION 157.163

The reporter’s record shows that the trial court was aware that Father was 

attempting to put Mother in jail for contempt. Tex. Fam. Code Ann. § 157.163(a). 

The trial court was also aware that Mother was appearing pro se. This triggered the 

trial court’s responsibility to inform Mother of her right to be represented by an 

attorney and, if she was indigent, of the right to the appointment of an attorney. Id.

§ 157.163(b). The trial court failed to do so.

Instead, the trial court—ignoring the requirements of Section 157.163—

informed Mother that she was neither indigent nor entitled to appointed counsel. 

When Mother informed the trial court that she was not an attorney and could not 

afford to retain one, the trial court asked Mother how much she made per month. 

Mother answered that she made $4,000 per month, and the court ruled, “That’s 

beyond that amount at which I can grant a court-appointed attorney. And so you’d
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be representing yourself.” Mother queried, “So I’m not entitled to counsel?” The 

court responded, “No. You make too much money.” 

Although the trial court made an inquiry into whether Mother was indigent, it 

did not follow the procedure set out in Section 157.163. Once Mother communicated

to the trial court that she was indigent and wanted an attorney, the trial court was

required to have her fill out and file an affidavit of indigency. Id. at § 157.163(d). The 

trial court skipped this requirement. 

Furthermore, the fact that Mother was employed—although certainly a relevant 

factor—was not necessarily dispositive of whether she was indigent for purposes of 

having counsel appointed. See Rivas-Luna, 528 S.W.3d at 172 n.2 (“It is worth noting

. . . that a finding of indigence is not precluded by evidence that the party claiming 

indigence is employed. The proper inquiry is whether the party’s income is exceeded 

by her expenses.”); Luebe, 983 S.W.2d at 890 (noting that Section 157.163 gives no 

guidelines for determining indigency and that “[n]o rigid standard exists for

determining indigency for the purpose of appointing counsel”).

Mother then asked, “Okay. Am I entitled to time to retain counsel?” The 

court responded, “Yes, but that will cause [Father’s] fees to go up, which is something 

that most likely I’d hold you responsible for.” Father opposed giving Mother more 

time to retain counsel, and Mother again asserted that she was indigent, “Currently, I 

don’t have counsel. I mean, I can either make rent or I can make child support. And

I’m making rent.” Mother did not waive her right to counsel merely by stating on the 
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record that she could not afford an attorney. See, e.g., Rivas-Luna, 528 S.W.3d at 171 

(“Relator stated on the record that she could not afford an attorney and she would 

have to do the best she could. This does not constitute a waiver of the right to 

counsel or an agreement to proceed pro se.”). But cf. In re Marks, 365 S.W.3d 843, 846

(Tex. App.—Fort Worth 2012, orig. proceeding) (holding that the relator knowingly 

and intelligently waived his right to counsel after (1) the trial 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 him, (2) the relator acknowledged to the trial court that he 

understood those rights, (3) the relator never asserted that he was indigent, and (4) the 

hearing proceeded after the relator expressly waived his right to remain silent). 

Indeed, as discussed above, Section 157.163 is designed to ensure that a respondent’s 

right to counsel is protected regardless of her ability to pay. See Tex. Fam. Code Ann. 

§ 15.163(d)–(e). Nevertheless, the hearing proceeded with Mother unrepresented by 

counsel.

Mother relies on Rivas-Luna in which the El Paso Court of Appeals wrote,

The record before the Court reflects that incarceration was certainly a 

possible result of the enforcement hearing. Consequently, the trial court 

was required to admonish Relator of her right to counsel, and based on 

her assertion that she could not afford an attorney, the trial court should 

have determined whether she was entitled to appointed counsel. [The 

real party in interest] contends that Relator is not indigent because she 

mentioned at the hearing that she has a job. It is unnecessary to address 

this argument because the trial court’s failure to admonish Relator of her 

right to counsel renders the contempt order void.
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Id. at 172. We agree with Mother that the trial court’s failure to comply with Section 

157.163 renders the contempt and commitment orders void. “[S]ection 157.163 

requires courts to admonish pro se litigants of their right to counsel, regardless of 

whether they are indigent or not.” Acker, 949 S.W.2d at 316; Rivas-Luna, 528 S.W.3d 

at 172. Because we hold that the trial court did not properly admonish Mother of her 

right to counsel and of her right to appointed counsel if she was indigent, we need not 

address Mother’s other contentions. 

III. CONCLUSION

Accordingly, we grant Mother’s petition for writ of habeas corpus. The trial 

court’s contempt and commitment orders are void. 

Because we previously ordered Mother released from the Denton County Jail 

pending final determination of her petition for writ of habeas corpus, no further 

action regarding her confinement is required.

/s/ Brian Walker

Brian Walker

Justice

Delivered: February 6, 2023