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COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Cause No 01-12-00704-CV; In re Tammy Fountain, Relator

Original Proceeding on Petition for Writ of Habeas Corpus from Order 

Revoking Suspension and for Commitment to County Jail, Cause 

No. 2010-31997, in the 309th District Court of Harris County, Texas.

Relator Tammy Fountain was found in contempt of the trial court’s orders in 

an order dated May 24, 2012. Fountain filed this original habeas corpus 

proceeding, and we ordered her released on bail pending resolution of the 

proceeding. Finding no error in the trial court’s contempt finding, this court denied 

habeas corpus relief with written opinions issued on December 28, 2012.

On January 2, Fountain filed a motion for rehearing, in which she belatedly 

informed the court of a rule 11 agreement between the parties in their ongoing 

proceeding in the family court, dated December 12, 2012. The agreement 

concerned various matters including: details about scheduling possession of a child

during holidays; details about supervision, upbringing, and medical care of the child; 

a dispute resolution procedure; and payment of attorney’s fees. In addition, the 

specific portions of the agreement that relate to the habeas corpus proceeding filed in 

this court are as follows:

13. This agreement is to temporary orders with a status 

conference in June 2013 except # 11, 12, 14, which will be 

part of a final order.

14. The current enforcement shall be dismissed with 

prejudice. Ms. Katcher shall inform the Court of Appeals 

she no longer opposes the pet. for habeas corpus.

Katcher responded to the motion for rehearing, offering the explanation that 

“The intent of the parties as reflected in the agreement was that they would perform 

under the agreement for a 6-month period — until June 2013 — at which time they 

would attend a status conference in the trial court to obtain a final order.” Katcher 
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requested that we abate the proceeding until July 1, 2013 to permit the parties to 

effectuate their agreement. We granted the request for abatement and ordered the 

parties to file a status report or a motion to dismiss by July 1, 2013. We also 

ordered the parties to timely notify the court of all events affecting the status of the 

case.

Katcher filed a status report on July 1, 2013, informing the court that a status 

conference has been set for July 2, 2013 and that Fountain filed a motion for 

continuance to hire another attorney. We requested than a further update be 

provided within three days of any further status conference, specifically requesting 

updates about (a) any request that the trial court enter a final order as referenced in 

paragraph 13 of the parties’ rule 11 agreement dated December 12, 2012, (b) any 

dismissal of Katcher’s enforcement petition with prejudice as referenced in 

paragraph 14 of the agreement, (c) any other developments that may have mooted 

this original proceeding, and (d) any reason why this original proceeding should not 

be reinstated.

Neither party filed the requested report within three days of the hearing. 

Over thirty days later, on August 9, Katcher filed another status report, informing us 

that:

A status conference was held on July 2, 2013. At that status 

conference, at which testimony was taken from 

MS. FOUNTAIN, the trial judge ordered temporary custody to 

KATHY KATCHER and a psychological evaluation to be 

performed on MS. FOUNTAIN. No further action will be taken 

until there is at least a preliminary report from Dr. Ed Silverman, 

who is performing the evaluation. This preliminary report was 

to have been made by August 14 at the latest; however, 

Dr. Silverman has notified the parties that he cannot meet that 

deadline. The status conference was recessed until August 14, 

2013; given Dr. Silverman’s inability to provide a report by that 

date, it is likely it will again be recessed.

Fountain filed her own status report on August 21. In response to the specific 

inquiries in our July 2 order, it advised
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a. “the trial court has not been requested to enter a final order as 

referenced in paragraph 13 of the parties’ rule 11 agreement 

dated December 12, 2012. The issue is awaiting a 

judge/attorney conference.”

b. “Katcher has not dismissed her enforcement petition with 

prejudice as referenced in paragraph of the parties’ rule 11 

agreement dated December 3 12, 2012 because the parties are 

awaiting the judicial conference.”

c. She contends that the original proceeding is not moot “at this 

time.”

d. She further contended, “This case should not be reinstated on 

the court’s active docket as the agreement has not been 

entered, perfected, or set aside. The parties are awaiting the 

pleasure of the Court, who is addressing the best interest of 

the child’s issues at this point.”

It is the internal operating procedure of this court to attempt to resolve 

motions for rehearing within 30 days. Nevertheless an abatement was ordered, at 

Katcher’s request, to allow the parties six months to implement their agreement 

which contemplated a resolution by June 2013. Now nearly nine months after our 

original opinions, there still is no apparent resolution. The abatement cannot 

continue indefinitely and the parties have not given us any indication that the matter 

will be concluded within short order.

It bears reiteration that this original proceeding was filed well over a year ago, 

in May 2012, to challenge the revocation of the suspension of an order committing 

Fountain to a 60-day jail term. Fountain did not remain incarcerated pending our 

consideration of the habeas corpus petition, and no party has indicated that she was 

jailed at any time after this court declined to order habeas corpus relief. Moreover, 

this court’s resolution of the habeas corpus proceeding does not preclude the parties 

from conducting further proceedings before the trial court with respect to the 

contempt finding, including presenting for that court’s consideration whatever 

agreements the parties may reach concerning their dispute. But in any case, the 

pending motion for rehearing notwithstanding, this court cannot be bound by any 

agreement by the parties as to the granting of habeas corpus relief. Likewise, the 

fact that we found no error in the trial court’s order does not preclude the trial court 

from implementing the parties’ agreements with respect to the contempt finding.
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In light of the foregoing, we lift our prior order of abatement, and we direct 

the Clerk of the court to reinstate the case on the court’s docket. Any further 

submission relating to the pending motion for rehearing should be filed no later than 

Tuesday, October 1.

It is so ORDERED.

Judge’s signature: /s/ Michael Massengale

 Justice Massengale, Acting for the Court

Panel consists of Justices Keyes, Massengale, and Brown

Date: September 24, 2013