NO. 12-12-00395-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: §

JOE DAVID ROGERS, § ORIGINAL PROCEEDING

RELATOR §

MEMORANDUM OPINION

In this original habeas proceeding, Relator Joe David Rogers seeks to set aside the 

contempt order signed November 14, 2012, by the Honorable Randall Lee Rogers, Judge of the 

County Court at Law Number 2, Smith County, Texas. We deny habeas corpus relief.

BACKGROUND

Relator and Kelsey Cameron Neal, the real party in interest, are the parents of two minor 

children. Neal sought and obtained a family violence protective order against Relator, which 

was signed on August 28, 2012. Approximately two months later, Neal filed a motion for 

enforcement of the protective order by contempt, alleging that Relator had violated the protective 

order on twenty-four separate occasions. After notice and a hearing, the trial court found Relator 

in contempt and, on November 14, 2012, signed the contempt order that is the subject of this 

proceeding. 

The findings included in the contempt order describe twenty-five separate violations of 

the protective order. The trial court found that on twenty-three occasions (violations 1 through 

15, 17 through 22, 24, and 25), Relator “engaged in conduct directed specifically toward 

KELSEY CAMERON NEAL including following KELSEY CAMERON NEAL that is 

reasonably likely to, and did in fact, harass, annoy, alarm, abuse, or torment KELSEY 

CAMERON NEAL.” The court further found that, on two additional occasions (violations 16 
2

and 23), Relator “communicated directly with KELSEY CAMERON NEAL in a threatening 

manner.” As punishment, Relator was ordered confined to the Smith County jail for a period of 

one hundred eighty days for each of the twenty-five violations, with the periods of confinement 

to run and be satisfied concurrently. Relator is presently confined in the Smith County jail 

pursuant to an order of commitment issued by the trial court. He has filed an original and an 

amended petition for habeas corpus, as well as a motion for emergency relief, in this court. 

AVAILABILITY OF HABEAS CORPUS

A writ of habeas corpus is available to review a contempt order signed by a lower court 

confining a contemnor. Ex parte Gordon, 584 S.W.2d 686, 687-88 (Tex. 1979). An original 

habeas proceeding is a collateral attack on a contempt judgment. Ex parte Rohleder, 424 

S.W.2d 891, 892 (Tex. 1967); In re Ragland, 973 S.W.2d 769, 771 (Tex. App.–Tyler 1998, orig. 

proceeding). Its purpose is not to determine the ultimate guilt or innocence of the relator, but 

only to ascertain whether the relator has been unlawfully confined. Ex parte Gordon, 584 

S.W.2d at 688. 

A court will issue a writ of habeas corpus if the order underlying the contempt order is 

void or if the contempt order itself is void. See Ex parte Shaffer, 649 S.W.2d 300, 301-02 (Tex. 

1983); Ex parte Gordon, 584 S.W.2d at 688. The relator bears the burden to show the contempt 

order is void, not merely voidable, and thus conclusively show his entitlement to the writ. In re 

Taylor, 130 S.W.3d 448, 449 (Tex. App.–Texarkana 2004, orig. proceeding). An order is void 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).

Where a trial court finds multiple instances of contempt, but one or more of those are 

invalid and the order does not separately assess punishment for each violation, the entire order is 

void. See Ex parte Davila, 718 S.W.2d 281, 282 (Tex. 1986) (orig. proceeding). Conversely, if 

the court assesses punishment separately for each violation, only the invalid portion of the 

contempt judgment is void and the remainder of the judgment is enforceable. In re Newby, 370 

S.W.3d 463, 470 (Tex. App.–Fort Worth 2012, orig. proceeding). 

THE CONTEMPT JUDGMENT

Relator asserts that his procedural due process rights were violated because the contempt 
3

order includes a basis of confinement (violation 25) that was not included in the motion for 

enforcement or the show cause order. Essentially, he complains that the contempt finding 

relating to violation 25 is void because the conduct described occurred after the motion for 

enforcement was filed. He also argues that the underlying protective order is not clear, specific, 

and unambiguous as to Relator’s duties and responsibilities. According to Relator, these defects 

render the contempt order void.

Violation 25

Contempt of court is disobedience to or disrespect of a court by an action in opposition to 

its authority. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995). Direct contempt involves 

disobedience or disrespect that occurs within the presence of the court. Id. Constructive 

contempt occurs outside the court’s presence. Id. The distinction between direct and 

constructive contempt is important because it determines the procedural protections that must be 

afforded. Ex parte Gordon, 584 S.W.2d at 688; Ex parte Werblud, 536 S.W.2d 542, 546 (Tex. 

1976) (orig. proceeding).

A person, such as Relator, who is faced with constructive contempt charges is entitled to 

full and complete notification of the subject matter and “when, how, and by what means he has 

been guilty of the alleged contempt.” Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex. 1969) (orig. 

proceeding). A sufficiently specific motion requesting that an order be enforced by contempt 

provides the requisite notice. See Ex parte Carney, 903 S.W.2d 345, 346 (Tex. 1995) (per 

curiam) (orig. proceeding) (contempt order void because motion for contempt not sufficiently 

specific and show cause order merely referred to motion). 

A motion for contempt is comparable to an indictment or information and complaint 

charging several different misdemeanors. Ex parte Chunn, 933 S.W.2d 534, 535 (Tex. App.–

Houston [1st Dist.] 1995, orig. proceeding). A criminal defendant in a misdemeanor case may 

not be convicted of an offense that occurs after the date of filing of the information. Ex parte 

Oliver, 736 S.W.2d 277, 278 (Tex. App.–Fort Worth 1987, orig. proceeding). Similarly, a trial 

court finding that an alleged contemnor is guilty of an offense occurring after the filing of a 

motion for enforcement is void. Ex parte Chunn, 933 S.W.2d at 535; Ex parte Oliver, 736 

S.W.2d at 278-79.

Here, the motion for enforcement was filed on October 15, 2012. According to the 

finding in the contempt judgment, violation 25 occurred “[o]n or about November 2, 2012[,]” 
4

which was eighteen days after the motion for enforcement was filed. Neal argues, however, that 

the following statement in her motion for enforcement gave Relator reasonable notice that he 

would be held in contempt for subsequent conduct that violated the protective order: 

Movant believes, based on the conduct of Respondent, that Respondent will continue to 

fail to comply with the order. Movant requests that Respondent be held in contempt, jailed, and 

fined for each failure to comply with the order of the Court from the date of this filing to the date 

of the hearing of this motion. 

This same argument, based upon similar language in a motion for enforcement, has been rejected 

by at least one court, and we reject it as well. See Ex parte Chunn, 933 S.W.2d at 535 

(allegation that “Movant believes that Respondent will continue to disobey the Orders of the 

Court by not paying the monthly mortgage notes due in June, 1995; July, 1995; and August, 

1995[]” insufficient to permit contempt for violation occurring after motion for enforcement was 

filed). Accordingly, we hold that because violation 25 is based on conduct that occurred after the 

motion for enforcement was filed, the trial court’s contempt finding relating to that violation is 

void.

Language of the Protective Order (violations 1 through 15, 17 through 22, and 24)

It is well established that for a person to be held in contempt for disobeying a court order, 

the order must spell out the details of compliance in clear, specific, and unambiguous terms so 

that the person will readily know exactly what duties or obligations are imposed upon him. Ex 

parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967) (orig. proceeding). The order must “carry with it 

no uncertainty, and must not be susceptible of different meanings or constructions, but must be 

in the form of a command, and, when tested by itself, must speak definitely the meaning and 

purpose of the court in ordering.” Ex parte Duncan, 62 S.W. 758, 760-61 (Tex. Crim. App. 

1901). This is so because “[t]he rights of the parties under a mandatory judgment whereby they 

may be subjected to punishment as contemnors for a violation of its provisions, should not rest 

upon implication or conjecture[.]” Id. 

A court order is insufficient to support a judgment of contempt only if its interpretation 

requires inferences or conclusions about which reasonable persons might differ. Ex parte 

Chambers, 898 S.W.2d at 259. However, the order “need not be full of superfluous terms and 

specifications adequate to counter any flight of fancy a contemnor may imagine in order to 

declare it vague.” Ex parte McManus, 589 S.W.2d 790, 793 (Tex. Civ. App.–Dallas 1979, orig. 
5

proceeding). Our review of an order is not limited to the phrases alleged to be vague; we 

consider the trial court’s order as a whole in determining whether the challenged language is 

ambiguous. See Ex parte Johns, 807 S.W.2d 768, 773 (Tex. App.--Dallas 1991, orig. 

proceeding).

Two provisions in the protective order are the source of controversy here. The first (the 

general conduct provision) prohibits Relator from “engaging in conduct directed specifically 

toward KELSEY CAMERON NEAL including following KELSEY CAMERON NEAL that is 

reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass KELSEY CAMERON 

NEAL.” The second (the communication provision) prohibits Relator from “communicating 

directly with KELSEY CAMERON NEAL in a threatening or harassing manner.” 

1. General conduct provision (violations 1 through 15, 17 through 22, and 24). 

Based upon our reading of the protective order, it is clear that the trial court expected Relator and 

Neal to communicate with each other. In fact, Relator and Neal were ordered to subscribe to Our 

Family Wizard and to use it to arrange exchanges of the children and “facilitate communications 

between the parties.” The order also contains three provisions relating to communications 

between Relator and Neal. These provisions prohibit Relator from (1) communicating directly 

with Neal in a threatening or harassing manner, (2) communicating a threat through any person 

to Neal, and (3) communicating in any manner with Neal, except through Respondent’s attorney 

or through Our Family Wizard. It is clear from these provisions that Relator is prohibited from 

directly communicating with Neal except as specified in the order and from communicating 

threats to her by any means. 

Other provisions of the order relate specifically to “conduct.” The general conduct 

provision, which is at issue here, prohibits Relator from “engaging in conduct directed 

specifically toward KELSEY CAMERON NEAL including following KELSEY CAMERON 

NEAL that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass KELSEY 

CAMERON NEAL.” This expressly prohibits Relator from following Neal, and other 

provisions specify additional prohibited conduct, such as going within certain distances of 

anywhere Relator knows Neal to be, and her places of employment, business, and residence.

The twenty-two communications that form the basis of the trial court’s findings on 

violations 1 through 15, 17 through 22, and 24 were sent to Neal between September 10, 2012,

and October 4, 2012, through Our Family Wizard. They consist primarily of inquiries, 
6

comments, and reports about the welfare of the children. On one occasion, Relator’s 

communication included a lengthy rendition of statistics pertaining to how children are affected 

when they grow up in a fatherless home, particularly if there is controversy between the parents. 

In several of the communications, Relator comments about aspects of his and Neal’s relationship 

and certain personal issues that he believes need to be addressed. In others, he includes 

questions about the children, requests the return of certain personal property, and declines to pay 

child support until Neal files certain documentation. He is persistent and repeats his questions in 

subsequent communications if Neal does not answer them. He is also critical, in some instances, 

of Neal’s conduct as a parent. 

Although Neal, and ultimately the trial court, concluded these communications violated 

the protective order, nothing in the order gives Relator notice that these communications would 

produce such a result. With the exception of the prohibition against communicating threats to 

Neal, the protective order does not contain any specific limitations on the subject matter of 

Relator’s communications with Neal. Instead, the order directs Relator to avoid “conduct” that 

Neal is reasonably likely to find harassing, annoying, alarming, abusive, tormenting, or 

embarrassing.

1

 Thus, in attempting to comply with the order, Relator must anticipate whether 

Neal’s reaction to a communication is reasonably likely to fall within one of these categories. 

This is a subjective standard. Consequently, interpretation of the order requires inferences or 

conclusions about which reasonable persons might differ.2 See Ex parte Chambers, 898 S.W.2d 

at 259. 

As we stated earlier, an order cannot support a contempt judgment unless it sets out the 

terms of compliance in clear, specific, and unambiguous terms so that the person charged with 

obeying the order will readily know exactly what duties and obligations it imposes. Id. The 

general conduct provision does not meet this standard. Therefore, this provision cannot support 

a contempt order. Accordingly, the trial court’s contempt findings for violations 1 through 15, 

17 through 22, and 24 are void.

 

1

 We will assume for purposes of this opinion that “conduct” includes communications.

2

 For example, Relator stated in his September 13, 2012 communication that “I promised the boys that I 

would talk to them soon the last day I saw them, 4 days ago. Can I please talk to them sometime very soon?” In his 

September 30, 2012 communication, Relator stated that “[i]t’s much easier to just create a parenting schedule than 

doing singular events. To save some time in the future[.]” The trial court found that these communications violated 

the protective order. 
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2. Communication provision (violations 16 and 23). In her motion for enforcement, 

Neal alleged that two of Relator’s communications violated the prohibition against 

“communicating directly with KELSEY CAMERON NEAL in a threatening or harassing 

manner.” The trial court found that on two separate occasions (violations 16 and 23), “JOE 

DAVID ROGERS communicated directly with KELSEY CAMERON NEAL in a threatening 

manner.” Neal points out that Relator does not challenge the language of this provision.

Therefore, she contends, the trial court’s contempt findings for these violations must stand. We 

agree. We have not located any argument in Relator’s petition that challenges the 

communication provision of the protective order. Accordingly, we hold that Relator has not met 

his burden to show that the trial court’s contempt findings for violations 16 and 23 are void.

CONCLUSION

We have held that the trial court’s contempt findings for violations 1 through 15, 17 

through 22, 24, and 25 are void. However, Relator has not shown that the trial court’s findings 

for violations 16 and 23 are void. In this case, the trial court assessed punishment separately for 

each violation. Therefore, only the invalid portion of the contempt judgment is void and the 

remainder of the contempt judgment is enforceable. Accordingly, we deny Relator’s amended 

petition for writ of habeas corpus. However, we modify the following sections of the contempt 

order to read as follows:

Contempt Findings

The Court finds that JOE DAVID ROGERS has violated the Court’s Protective Order on 

two occasions as follows:

On or about October 2, 2012, JOE DAVID ROGERS communicated directly with 

KELSEY CAMERON NEAL, in a threatening manner. 

On or about October 2, 2012, JOE DAVID ROGERS communicated directly with 

KELSEY CAMERON NEAL in a threatening manner.

Relief Granted

IT IS ADJUDGED that JOE DAVID ROGERS is in contempt for each of the two (2) 

separate violations of the Protective Order enumerated above.

Criminal Contempt

IT IS ORDERED that punishment for each of the two (2) separate violations is assessed 

at confinement in the county jail of Smith County, Texas, for a period of 180 days to begin on 

November 13, 2012.

IT IS THEREFORE ORDERED that JOE DAVID ROGERS is committed to the county 

jail of Smith County, Texas, for a period of 180 days for each separate violation.

IT IS ORDERED that each period of confinement assessed in this order shall run and be 

satisfied concurrently.

Relator’s motion for emergency relief is overruled as moot.
8

SAM GRIFFITH

 Justice

Opinion delivered December 21, 2012.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

DECEMBER 21, 2012

NO. 12-12-00395-CV

JOE DAVID ROGERS,

Relator

v.

HON. RANDALL ROGERS,

Respondent

 

 

 ORIGINAL PROCEEDING

ON THIS DAY came to be heard the amended petition for writ of habeas 

corpus filed by JOE DAVID ROGERS, who is the relator in Cause No.12-1928-F, pending on 

the docket of the County Court at Law #2 of Smith County, Texas. Said amended petition for 

writ of habeas corpus having been filed herein on November 20, 2012, and the same having been 

duly considered, because it is the opinion of this Court that a writ of habeas corpus should not 

issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said amended 

petition for writ habeas corpus of be, and the same is, hereby DENIED. However, we MODIFY the 

following sections of the contempt order to read as follows:

Contempt Findings

The Court finds that JOE DAVID ROGERS has violated the Court’s Protective Order on 

two occasions as follows:
10

On or about October 2, 2012, JOE DAVID ROGERS communicated directly with 

KELSEY CAMERON NEAL, in a threatening manner. 

On or about October 2, 2012, JOE DAVID ROGERS communicated directly with 

KELSEY CAMERON NEAL in a threatening manner.

Relief Granted

IT IS ADJUDGED that JOE DAVID ROGERS is in contempt for each of the two (2) 

separate violations of the Protective Order enumerated above.

Criminal Contempt

IT IS ORDERED that punishment for each of the two (2) separate violations is assessed 

at confinement in the county jail of Smith County, Texas, for a period of 180 days to begin on 

November 13, 2012.

IT IS THEREFORE ORDERED that JOE DAVID ROGERS is committed to the county 

jail of Smith County, Texas, for a period of 180 days for each separate violation.

IT IS ORDERED that each period of confinement assessed in this order shall run and be 

satisfied concurrently.

Relator’s motion for emergency relief is OVERRULED as moot. It is further ordered that JOE 

DAVID ROGERS pay all costs incurred by reason of this proceeding

Sam Griffith, Justice.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.