It Takes a Heap o' Writing to Make a Jail Contempt Stick.

In Texas's First Court of Appeals in Houston, a panel of justices of justices Evelyn Keyes, Michael C. Massengale, and Harvey G. Brown decided Tammy Fountain's application for a writ of habeas corpus against a Houston family court. Justice Massengale wrote for the majority and Justice Keyes dissented. Fountain stipulated to violating an order in a suit affecting the parent-child relationship on October 18, 2011. On May 24, 2012, she was found in contempt of court and sentenced to 60 days in jail, but her jailing was suspended, conditioned upon her following the October 18 court order and some modifications dated May 24, 2012 from that point into the future. About a month after May 24, Katcher, the other party to this case, moved to jail Fountain. On July 31, 2012, the court Fountain jailed (She bonded out.). Her three violations were:

1. Failing to provide required notice timely to Katcher that Fountain was moving on June 22 by giving notice on June 18, 2012,
2. Failing to give notice to the child's school by May 15, that Katcher could pick the child up there, and
3. Failing to post information to a website that Fountain was obliged to.

Justice Keyes argued that the July 31 order failed to specify the manner in which Fountain had committed two of the three acts for which it held her in contempt and as for the third, the purported contemptuous act arose under the May 24 modification but took place before May 24. The majority held that the October 18 proceeding was all orderly, and that the procedures for the revocation of the suspension had been good enough in view of that fact.

Reading through the papers of this case I am reminded of an Italian proverb- that a lawsuit plants a tree in a lawyer's garden. At least five lawyers have worked on this case, not counting justices and staff at First Court. Still, jailing people is not to be done unless the rules are observed, that is, unless the alleged contemnor gets timely notice of what is complained of and the sheriff is given written notice of the basis for the commitment order. When a panel splits like this, it often behooves respondent's counsel to seek that the whole appeals court reconsider, and, if that does not free the client, to file an application with the higher court, in this case, the Texas Supreme Court.

Commitment orders are hard to write. They are generally drafted before the hearing and have to marked up after. The decision to commit someone to jail often comes at the end of a long day, often after the judge has been listening to testimony for hours. At some point the judicial belly just becomes full of this matter and everyone in the courtroom is exhausted, yet movant's counsel must be painstaking with the paperwork and get the judge to dot every "i" and cross every "t" so as to reduce the likelihood of months of expensive games of ring-around-the-rosie in appellate courts.
In re Tammy Fountain, No. 01-12-00704-CV(Tex. App.--Houston (1st Dist.), Dec. 28, 2012) (orig. proceeding).

Chief Justice McKeithen Gets with the Dominant Rule re Nonparent SAPCR Standing

Two women live together and share the care of a son of one of them. They break up, but still share the care of the boy on and off. Eventually, the nonmother sues for custody in a suit affecting the parent-child relationship. The mother seeks to have the case dismissed on the ground that the nonmother lacked standing to interfere with the custody of a fit mother, but the trial court granted the nonmother temporary possessory-conservator rights. The mother took the case up on mandamus on these two issues, and the Nines ruled for her. Justice Hollis Horton wrote for a panel including Justice Charles Kreger and Chief Justice Steve McKeithen. The Chief Justice concurred that although he had dissented in In re K.K.C., 292 S.W.3d 788 (Tex.App.-Beaumont 2009) (orig. proceeding), he felt that he had to recognize the majority opinion in that case as precluding him from taking the same view in this current case.
In re Stephanie Wells, No. 09-12-00158-CV (Tex. App.--Beaumont June 14, 2012) (orig. proceeding).