Granted and Opinion Filed February 12, 2018

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-18-00031-CV

IN RE CHRISTOPHER GLENN CHAMBERS, Relator

Original Proceeding from the 254th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DF-10-00874

MEMORANDUM OPINION

Before Justices Francis, Evans, and Schenck

Opinion by Justice Schenck

Before the Court is relator’s January 11, 2018 petition for writ of habeas corpus in which 

he seeks to be discharged from civil confinement for allegedly failing to pay court-ordered child 

support. We find that the orders at issue are void and grant the writ.

Background

This proceeding arises from a contempt action for the alleged nonpayment of child support 

arrearages ordered to be paid in a March 17, 2017 Agreed Order in Suit to Modify Parent-Child 

Relationship. That modification order required relator to pay child support arrearages and unpaid 

medical expenses through monthly payments of $1,200.00. On November 13, 2017, the children’s 

mother filed a motion for enforcement of the modification order. She alleged that relator had failed 

to pay the required amounts from April 1, 2017 to September 1, 2017. She requested criminal and 

civil contempt against relator. Relator was served with notice on December 28, 2017 of a January 

2, 2018 hearing on the motion for enforcement and contempt. Relator appeared pro se at the 
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January 2 hearing. Following the hearing, the trial court signed its “Order Holding Respondent in 

Contempt for Failure to Pay Child Support and Arrearages, Granting Judgment, and for 

Commitment to County Jail” and held relator in criminal and civil contempt. The criminal 

contempt order requires relator to pay a $500 fine and be confined in the county jail for a period 

of 180 days for each violation, with the confinement to be served concurrently. The civil contempt 

order requires relator to be confined in the county for either a period not to exceed 18 months, 

including time served for criminal contempt, or until relator pays $37,518.60 in arrearages and 

$1,835.23 in fees, whichever occurs first. Relator was taken into custody on January 2, 2018. 

In this original proceeding, relator asserts that the trial court’s judgment of contempt and 

commitment order are void and his due process rights are being violated. He seeks a writ of habeas 

corpus. On January 11, 2018, we issued an order setting bond and authorizing his release upon 

posting the bond. We requested responses from the real party in interest and respondent, but no 

responses were filed.

Standard of Review

A court may punish for contempt. TEX. GOV’T CODE ANN. § 21.002 (West 2004). A habeas 

corpus proceeding is a collateral attack on a judgment that imposes punishment for contempt. In 

re Johnson, 337 S.W.3d 486, 488 (Tex. App.—Dallas 2011, orig. proceeding). A petition for writ 

of habeas corpus does not inquire into the guilt or innocence of the relator, but only determines if 

the order of contempt was void. See Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig.

proceeding). A contempt order is void if it is beyond the power of the court to render it or if it 

deprives the relator of liberty without due process of law. Ex parte Barnett, 600 S.W.2d 252, 254 

(Tex. 1980) (orig. proceeding).
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Discussion

Relator argues that the judgment of contempt and commitment order are void because (1) 

he did not receive the statutorily-required 10-days’ notice of the hearing, and (2) he was not 

admonished of his right to counsel and did not waive his right to counsel. After reviewing his 

complaints and the record, we agree.

First, relator did not receive ten days’ notice of the hearing as required by section 

157.062(c) of the Texas Family Code. See TEX. FAM. CODE. ANN. § 157.062(c) (West Supp. 

2017). Lack of ten days’ notice under section 157.062(c) constitutes a deprival of due process 

rights and renders the order void. Ex parte Davis, 161 Tex. 561, 565, 344 S.W.2d 153, 155–56 

(1961) (holding that relator who appeared at hearing without counsel on only two days' notice 

could not be said to have waived his rights or consented to trial based on his failure to protest or 

demand further time because the show cause order compelled his attendance); Target Logistics, 

Inc. v. Office of Attorney Gen. of Texas, 465 S.W.3d 768, 770 (Tex. App.—El Paso 2015, no pet.).

Second, relator appeared pro se and did not waive his right to counsel. In the absence of a 

knowing and intelligent waiver of the right to counsel made on the record, the order holding a 

party in contempt is void. Ex parte Acker, 949 S.W.2d 314, 316 (Tex. 1997) (court’s failure to 

admonish party of her right to counsel rendered the commitment arising from the contempt order 

void); In re Marks, 365 S.W.3d 843, 845–46 (Tex. App.—Fort Worth 2012, orig. proceeding)

(citing Ex parte Gunther, 758 S.W.2d 226, 226–27 (Tex. 1988) (orig. proceeding) (granting 

petition for writ of habeas corpus relief in part because absent knowing waiver of rights, trial court 

was without authority to hold Gunther in contempt)). An intelligent and voluntary waiver of the 

right to counsel occurs in a family law contempt proceeding when two events occur. In re Marks, 

365 S.W.3d at 845–46. First, the trial court admonishes contemnor according to section 157.163. 

Id.; TEX. FAM. CODE ANN. § 157.163 (West Supp. 2017). Next, the contemnor must waive those 
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rights, and that waiver must be made on the record. In re Marks, 365 S.W.3d at 845–46.; In re 

Pass, No. 02–05–00457–CV, 2006 WL 668744, *3 (Tex. App.—Fort Worth Mar. 16, 2006, orig. 

proceeding) (mem. op.) (contemnor’s answer of “[s]ure” to trial court’s request to proceed with 

contempt hearing was an invalid waiver of right to counsel because trial court had not yet 

admonished contemnor under 157.163); In re Leon, No. 01–04–00819–CV, 2004 WL 2306752, at 

*2–3 (Tex. App.—Houston [1st Dist.] Oct. 14, 2004, orig. proceeding) (mem. op.) (holding that 

relator had not waived his right to counsel because trial court held contempt hearing in which 

incarceration was a possibility but denied relator's requests to be allowed time to retain counsel); 

cf., In re Pruitt, 6 S.W.3d 363, 365 n. 3 (Tex. App.—Beaumont 1999, orig. proceeding) (holding 

valid waiver of right to counsel by non-indigent contemnor occurred when trial court admonished 

according to 157.163, inquired whether contemnor wished to continue hearing in order to obtain 

counsel, and contemnor elected to proceed). Section 157.163 “requires courts to admonish pro se 

litigants of their right to counsel, regardless of whether they are indigent or not.” In re Marks, 365 

S.W.3d at 845 (citing Ex parte Acker, 949 S.W.2d at 316). 

Here, the judge told relator that he had the right to counsel, but did not ask relator if he 

wanted counsel, did not inform relator that he was entitled to time to get counsel, did not appoint 

relator counsel, and relator did not waive the right to counsel. Under those circumstances, the 

order is void. See Ex parte Davis, 344 S.W.2d at 156 (contempt order void and failure to protest 

or demand further time does not constitute a waiver of right to counsel where contemnor was 

provided only 2 days’ notice of hearing and nothing in the record shows that “he knew or was 

advised that he was entitled to further time under the statute and the rule in which to obtain counsel 

and prepare for trial”); In re Marks, 365 S.W.3d at 845 (“a contemnor facing incarceration must 

be informed of his right to counsel and must either waive that right or be provided with courtappointed counsel.”) (citing Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 
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L.Ed.2d 530 (1972) (holding that under Sixth Amendment, no person may be imprisoned for any 

offense, whether classified as petty, misdemeanor, or felony, unless he had or waived counsel)).

Conclusion

Accordingly, we grant the writ of habeas corpus and vacate the January 2, 2018 “Order 

Holding Respondent in Contempt for Failure to Pay Child Support and Arrearages, Granting 

Judgment, and for Commitment to County Jail” issued by the 254th Judicial District Court of 

Dallas County, Texas in cause number DF-10-00874. We order that relator Christopher Glenn 

Chambers be unconditionally released and discharged from the custody of the Sheriff of Dallas 

County under the January 2, 2018 “Order Holding Respondent in Contempt for Failure to Pay 

Child Support and Arrearages, Granting Judgment, and for Commitment to County Jail.” We 

further discharge any bond paid by relator in accordance with this Court’s January 11, 2018 order. 

/David J. Schenck/

DAVID J. SCHENCK

JUSTICE