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Ex parte Linder - 783 S.W.2d 754 (Tex. App. 1990)

Rule:

In Tex. Fam. Code Ann. § 14.33(a) the court order is statutorily required to contain the findings set forth in that section. The court also notes that § 14.31(b) specifically requires certain factual allegations to be contained in the contempt motion itself. However, § 14.32(f), mandating the trial court to admonish an alleged contemnor appearing pro se of his right to counsel or his right to have one appointed if he is indigent, does not require the trial court to include in its contempt order any findings on this requirement. Nor does this section address waiver of these rights to counsel. 

Facts:

Relator ex-husband, Michael Lynn Linder, failed to pay child support and upon ex-wife's motion, a trial court found Linder in contempt for each separate count of nonpayment, confining him to the county jail for 180 days for each separate count of contempt. On application for writ of habeas corpus, Linder sought release from the county jail claiming the trial court's contempt order was void for defective form or execution, impossibility of performance, improper notice, and lack of a proper waiver of the right to counsel.

Issue:

Was the contempt judgment by the trial court void because it does not contain a recitation that Linder "knowingly and intelligently" waived his right to counsel?

Answer:

No

Conclusion:

The appellate court denied Linder’s application and remanded him back to the county jail; however, the court did sever and declare void part of the judgment confining relator for failing to make one payment, instead of voiding the whole judgment. There was no due process violation as the judgment contained both a judgment and commitment order. Moreover, relator relied on case law that was either distinguishable or specifically overruled by the court. The court overruled Ex Parte Martinez, 775 S.W.2d 455 (Tex. App.--Dallas 1989, orig. proceeding). The court rejected the relator's contention that the contempt judgment is void because it does not contain a recitation that he "knowingly and intelligently" waived his right to counsel. 

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