Ex Parte Dewees, 210 S.W.2d 145 (Tex. 1948). · Go Syfert
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Ex Parte Dewees, 210 S.W.2d 145 (Tex. 1948). Cases Citing This Book View Copy Cite
139 citation events (9 in the last 25 years) across 3 distinct courts.
Strongest positive: Ex Parte Rojo, 925 S.W.2d 654 (Tex. 1996)
Treatment trajectory · 1949 → 2026 · click a year to view as-of
1949 1987 2026
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Cited for
210 S.W.2d at 147 Defining civil contempt as remedial and coercive14 citing cases
  • Ex Parte Rojo, 925 S.W.2d 654 (Tex. 1996).published
    This factor, while possibly relevant to the criminal contempt sanction, see Ex parte DeWees, 146 Tex. 564 , 210 S.W.2d 145, 147 (1948), does not bear on the question of whether Rojo had the ability, when the trial court committed him, to p…
  • Ex Parte Duncan, 796 S.W.2d 562 (Tex. App.—Houston [1st Dist.] 1990).published
    Ex parte De Wees, 146 Tex. 564, 567 , 210 S.W.2d 145, 147 (1948); Ex parte Williams, 704 S.W.2d at 467 .
  • Ex Parte Mabry, 792 S.W.2d 588 (Tex. App.—Houston [1st Dist.] 1990).published 2 cites
    Relying on Ex parte De Wees, 146 Tex. 564, 567 , 210 S.W.2d 145, 147 (1948), relator complains that his confinement is illegal because he cannot pay the debt and therefore cannot purge himself of the contempt.
  • Ex Parte Thomas, 609 S.W.2d 829 (Tex. Civ. App.—Tyler 1980).published
    This is the rule prevailing in Texas, having been adopted by our Supreme Court in Ex parte DeWees, 146 Tex. 564 , 210 S.W.2d 145, 147 (1948), and reaffirmed in Ex parte Ramzy, 424 S.W.2d 220, 224 (Tex.Sup.1968).
  • Ex Parte Sanders, 608 S.W.2d 343 (Tex. App. 1980).published
    Ex parte De Wees, 146 Tex. 564 , 210 S.W.2d 145, 147 (1948); Ex parte McCrary, 538 S.W.2d 2 (Tex.Civ.App.-Houston [1st Dist.] 1976, no writ).
  • Anderson, in Re, 604 S.W.2d 338 (Tex. Civ. App.—Tyler 1980).published
    Ex parte De Wees, 146 Tex. 564 , 210 S.W.2d 145, 147 (1948).
  • Block v. Waters, 564 S.W.2d 113 (Tex. Civ. App.—Beaumont 1978).published
    Cf. Ex parte DeWees, 146 Tex. 564 , 210 S.W.2d 145, 147 (1948); Ex parte Gonzales, 414 S.W.2d 656 (Tex.1967); Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967).
  • Ex Parte Stringer, 546 S.W.2d 837 (Tex. Civ. App.—Houston [1st Dist.] 1976).published 2 cites
    Ex parte De Wees, 146 Tex. 564 , 210 S.W.2d 145, 147 (1948).
  • Ex parte Wright, 538 S.W.2d 483 (Tex. App. 1976).published
    The time and the place for his testimony with reference to impossibility of compliance with the court’s order [under the rationale of Ex parte DeWees, 146 Tex. 564 , 210 S.W.2d 145, 147 (1948) 2 ] was in the trial court when the matter was…
  • Ex Parte Werblud, 536 S.W.2d 542 (Tex. 1976).published 2 cites
    Ex parte DeWees, 146 Tex. 564 , 210 S.W.2d 145, 147 (1948).
Show 4 more citing cases
  • In the Interest of Whittington, 521 S.W.2d 121 (Tex. App. 1975).published
    It has long been recognized in Texas that impossibility of performance is a defense to a contempt action arising out of failure to comply with a support order, gee, e. g., Ex parte De Wees, 146 Tex. 564 , 210 S.W.2d 145, 147 (1948); Ex par…
  • In re McLemore, 515 S.W.2d 356 (Tex. Civ. App.—Dallas 1974).published
    He relies on Ex parte De Wees, 146 Tex. 564 , 210 S.W.2d 145, 147 (1948), wherein the court, speaking through Justice Hickman, said: Where it is not within the power of a person to perform the act which alone will purge him of contempt, th…
  • Ex Parte Hosken, 480 S.W.2d 18 (Tex. Civ. App.—Beaumont 1972).published
    This is the rule prevailing in Texas, having been adopted by our Supreme Court in Ex parte DeWees, 146 Tex. 564 , 210 S.W.2d 145, 147 (1948), and reaffirmed in Ex parte Ramzy, 424 S.W.2d 220, 224 (Tex.Sup.1968).
  • Ex Parte Williams, 469 S.W.2d 449 (Tex. Civ. App.—Beaumont 1971).published
    Chief Justice Hickman, in Ex parte De Wees, 146 Tex. 564 , 210 S.W.2d 145, 147 (1948), laid down the rule that impossibility of compliance will discharge the contemner of further coercive restraint, saying: “Where it is not within the powe…
210 S.W.2d at 146 cited at this page1 citing case
  • Ex Parte Brooks, 604 S.W.2d 463 (Tex. Civ. App.—Tyler 1980).published
    Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967); Ex parte De Wees, 146 Tex. 564 , 210 S.W.2d 145, 146-7 (1948).
210 S.W.2d at 224 cited at this page1 citing case
  • Ex Parte Ramzy, 424 S.W.2d 220 (Tex. 1968).published
    Ex parte Gonzales, 414 S.W.2d 656 (Tex. Sup.1967); Ex parte Thetford, 369 S.W.2d 924 (Tex.Sup.1963); Ex parte Helms, 152 Tex. 480 , 259 S.W.2d 184 (1953); Ex parte De Wees, 146 Tex. 564 , 210 S.W.2d 145 *224 (1948).
Other citing cases6 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Ex Parte Juanita Sue Dewees.
A-1561.
Texas Supreme Court.
Apr 7, 1948.
Published opinion
210 S.W.2d 145
1948 Tex. LEXIS 398
W.F. Nix and Morgan, Coulton, Morgan Britain, all of Amarillo, for relator. The district judge, in this case, had no jurisdiction to enter the order committing relator to jail "until the child is delivered to the physical possession of" its father, as such order under the circumstances of this case might and could be for life, or at least for a longer term than three days provided in Article 1911, R.C.S. Holman v. Mayor, 34 Tex. 668 ; Ex parte Carroll, 141 Tex. 566 , 175 S.W.2d 251 ; Ex parte Johnson, 137 Tex. Crim. 433 , 131 S.W.2d 971 ; Ex parte Lake, 37 Tex. Crim. 656 , 40 S.W. 727 . Hazlewood Richards and John Hazlewood, of Amarillo, for complainant. The judgment of the trial court committing relator to the custody of the sheriff until the child is delivered to complainant is a valid order and should be affirmed. Bender v. Young, 252 S.W. 691 ; Ex parte Coffee, 72 Tex.Crim. Rep., 161 S.W. 975 ; San Antonio St. Ry. Co. v. State, 38 S.W. 54 ; Ex parte Kottwitz, 117 Tex. 583 , 8 S.W.2d 508 .
MR. CHIEF JUSTICE <italic>H</italic>ICKMAN delivered the opinion of the Court..
Cited by 64 opinions  |  Published
Mr. Chief Justice .Hickman

delivered the opinion of the Court.

In this original proceeding the relator, Mrs. Juanita Sue DeWees, seeks to be discharged from an order of the District Court of Oldham'County committing her to jail for contempt. We heretofore ordered her release on bond temporarily, since which time the case has been argued and is now before us for final disposition. The material facts leading up to the order of commitment are:

In December, 1946, R. C. Valentine, Jr., was awarded a divorce from his wife, Juanita Sue Valentine, by the District Court of Oldham County, and was also awarded the care, custody, and control of their infant child, Billye Sue Valentine, a girl about two years of age. Mrs. Stella Glasscock, the mother by adoption of Mrs. Valentine, intervened in the suit, seeking an award of the custody of the child, but the prayer of her intervention was denied. From that judgment Mrs. Valentine and Mrs. Glasscok perfected an appeal to the Court of Civil Appeals at Amarillo, which court, after a hearing, affirmed the judgment of the trial court. Mandate was issued from the Court of Civil Appeals in July, 1947, and was forthwith filed in the office of the District Clerk of Oldham County. A writ of execution was issued out of the district court in January, 1948, commanding the Sheriff of Oldham County to seize the infant wherever found and deliver her to her father, R. C. Valentine^ Jr. This writ was returned by the sheriff unexecuted because the whereabouts of the child was unknown to him. After the Valentines were divorced, Juanita Sue Valentine married Jack De-Wees, and is still his wife. The child was in the possession of its mother and grandmother, Mrs. Stella Glasscock, at the time the divorce suit was originally filed, and has remained ever since in the possession of one or both of them.

Sometime prior to July 30, 1947, Mrs. Glasscock moved to[*566] Craig County, Oklahoma, taking the child with her. On the date last mentioned she filed in the district court of that county an application for a writ of habeas corpus alleging that she had the lawful custody of the child, naming R. C. Valentine, Jr., as respondent, and praying that custody of the child be awarded to her. A writ was issued in that cause and served on Mr. Valentine in Texas, but he ignored it and made no appearance in the case. The mother of the child, Juanita Sue DeWees, filed in the same cause an application for a writ of habeas corpus claiming the right to share in the custody of the child, and naming her former husband and Mrs. Stella Glasscock as respondents. Service on this application was had in the same manner upon Mr. Valentine, but he ignored it also. Thereafter, on September 24, 1947, a final judgment was rendered in the Oklahoma court awarding the custody of the child to Mrs. Glasscock and Mrs. DeWees jointly upon a finding of changed conditions, and expressly decreeing that she not be removed from the jurisdiction of that court until further orders of the court.

Thereafter, on December 6, 1947, Valentine filed an affidavit in the original cause in the District Court of Oldham County alleging that his former wife, relator herein, had knowingly and willfully secreted the child or otherwise put her beyond the reach of law, as a result of which he had been unable to obtain possession of her, and praying that Mrs. DeWees be cited to show cause and that upon hearing she be adjudged in contempt of court. Upon a hearing of the contempt matter on January 2, 1948, the court took the case under advisement, and on January 14 thereafter entered an order adjudging the relator guilty of contempt by willfully disobeying the court’s judgment of December 19, 1946, which awarded the custody of the child to its father; by willfully obstructing and hindering the service of a writ of execution; and by willfully and constantly refusing to give physical possession of the child to its father. The penalty prescribed by the court was:

“And the court does further consider, adjudge, order and direct that the said respondent and contemner, Juanita Sue DeWees, be imprisoned in the jail of Oldham County, Texas, until the child, Billye Sue Valentine, is delivered into the physical possession of R. C. Valentine, Jr., in the 69th Judicial District courtroom, located in the courthouse of Oldham County, Texas, in Vega, Texas.”

The parties devote much space in their brief to a discus[*567] sion of the question of whether full faith and credit should be given the Oklahoma judgment under Article IV, Section 1, of the Federal Constitution. However, the view we take of the case makes consideration of this question unnecessary.

We assume that for the acts which she committed the court had the power to adjudge relator to be in contempt of court and to assess a penalty against her on that account. But the question to which our inquiry is directed is whether or not the court had the power to assess the particular punishment prescribed in its order. Neither a fine nor imprisonment for a definite term was assessed against relator, but the decree was that she be imprisoned until her child be delivered into the physical possession of R. C. Valentine, Jr., in the courthouse at Vega, Texas. The order does not contemplate that she herself will deliver the child into the possession of Mr. Valentine, evidently recognizing that she could not do so while confined in jail, but it directs that she be imprisoned until the child “is delivered.” Presumably, it was thought that imprisonment of relator would cause Mrs. Glasscock to redeem her by delivering the child in accordance with the decree.

Mrs. Glasscock and the relator were both parties to the suit in Oklahoma, and for them, or either of them, to remove or conspire to have the child removed from the jurisdiction of the Oklahoma court would subject them to punishment for contempt of that court. The decree in this case presents the anomalous situation of a district court in Texas assessing the penalty of imprisonment in a contempt proceeding, and providing in its decree that the only method by which the con-temner can be purged of the contempt is by the commission of a contempt against a district court in Oklahoma.

To order that one be imprisoned for an indefinite period in a civil contempt is purely a remedial measure. Its purpose is to coerce the contemner to do an act within his or her power to perform. He must have the means by which he may purge himself of the contempt. Ex parte Carroll, 141 Texas 566, 175 S. W. (2d) 251; State v. District Court, 58 Mont. 355, 192 Pac. 829; In re Burns, 83 Mont. 200, 271 Pac. 439; Ex parte Silvia, 123 Cal. 293, 55 Pac. 988, 60 Am. St. Rep. 58; Brown v. Brown, 205 Ind. 664, 187 N. E. 836. The theory is well expressed in the case of Staley v. South Jersey Realty Co., 83 N. J. Eq. 300, 90 Atl. 1042, 1043, L. R. A. 1917B, 113, Ann. Cas. 1916B, 955, in this language:

[*568] “In a 'civil contempt’ the proceeding is remedial, it is a step in the cause the object of which is to coerce one party for the benefit of the other party to do or to refrain from doing some act specified in the order of the court. Hence, if imprisonment be ordered, it is remedial in purpose and coercive in character, and to that end must relate to something to be done by the -defendant by the doing of which he may discharge himself. As quaintly expressed, the imprisoned man ‘carries the keys to his prison in his own pocket.’ ”

The same theory is expressed by the Supreme Court of Kansas in Davison v. Davison, 125 Kan. 807, 266 Pac. 650, 654, in this language:

“It need hardly be repeated that courts * * * may send recalcitrants to jail until such proper orders are complied with, but that elementary doctrine implies that the court’s orders can be obeyed. Since the sheriff has seized the automobile and the money is gone, the incarceration of this hapless petitioner until she surrenders the car and produces the money is tantamount to life imprisonment, and therefore void. U. S. Const. Fourteenth Amendment.”

Where it is not within the power of a person to perform the act which alone will purge him of contempt, the court is without power to imprison him for an indefinite term as punishment for an offense already committed. The effect of a denial of relief in this proceeding would be to authorize the trial court to confine this woman in jail for the balance of her natural life. If it be urged that her mother by adoption would come to her rescue, it is a sufficient answer to say that it cannot be determined that she would do so. Our concern is not what will certainly happen if relief is denied, but what could happen. Obviously, the thing that could happen is the lifetime imprisonment of relator, and a denial of relief would be a recognition by this court of the power of the trial judge to enter an order having that effect.

We give full recognition to the rule that an alleged con-temner who has voluntarily and contemptuously brought upon himself the disability to obey a decree of court cannot avail himself of the plea of inability to perform as a defense to a charge of contempt. Such contemner may be punished for contempt, notwithstanding his inability at the time of the contempt decree to perform, but the limit of such punishment is by fine not exceeding $100.00 and by imprisonment not exceeding three days, as provided in R. S. Article 1911. We do[*569] not hold that the court in the instant case could not assess that penalty against relator, but we do hold that the court exceeded its power in entering the particular decree on which the order of commitment was issued.

The relator is discharged.

Opinion delivered. April 7, 1948.

Rehearing overruled May 5, 1948.