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Click here for the full text of this decision Relator’s current incarceration is illegal under the new Texas Government Code 21.002(h). FACTS:This original proceeding arises from a highly-disputed divorce proceeding. In several orders, the trial court found the relator, Richard Surgent, to be in contempt of court for failure to pay spousal support and failure to disclose his assets. The court ordered his incarceration. The relator contends he is being unlawfully incarcerated. HOLDING:The court grants relator’s petition for writ of habeas corpus. The bankruptcy proceeding was initiated by or against the relator in 1995. Although the bankruptcy case was pending at the time his wife filed for divorce, the automatic stay did not serve as a complete bar to the divorce action in state court. The trial court had jurisdiction to hear matters pertaining to the dissolution of the marriage, even though it was constrained in matters relating to property that was part of the bankruptcy estate. Accordingly, the court will not dismiss the divorce action or declare all of the trial court’s orders void for lack of subject matter jurisdiction. Relator contends the various commitment orders are void because his current incarceration is illegal under Texas Government Code �21.002(b). This section limits the punishment for criminal contempt to a fine of not more than $500 or confinement in the county jail for not more than six months. Because these limitations are applicable only to criminal contempt, the court first addresses whether the relator’s current confinement is the result of criminal contempt. The Dec, 17, 1999 order imposed a punitive sentence: community supervision for 180 days. This sentence was imposed as a penalty for the relator’s failure to pay temporary spousal support and was not coercive. When the relator violated the terms of the order by failing to appear in court as required by the condition of the community supervision, he was incarcerated. Thus, his initial incarceration was the result of criminal contempt. However, his incarceration became the result of civil contempt in February 2000. After relator was initially incarcerated, the court held hearings regarding his continued incarceration. During the February 8, 2000 hearing, the court found relator had purposely attempted to conceal his assets and failed to comply with the order requiring him to provide an inventory of his property. At that time, the court conditioned relator’s release from jail on his compliance with the discovery order. The court explicitly stated the incarceration was intended to elicit relator’s compliance with discovery orders. After a second hearing, the trial court issued a written order, dated February 21, 2000, conditioning relator’s release on his compliance with the discovery order. The November 6, 2001 order noted relator’s continued failure to comply with the court’s order and again stated relator’s incarceration was conditioned on compliance with the discovery order. Under these orders, relator was able to purge the contempt and secure his release by complying with the court’s order. Thus, these orders were coercive and show that his continued incarceration was for civil contempt. Because his current incarceration is based on civil contempt, �21.002(b) of the government code does not apply. However, the Legislature recently passed an act adding �(h) to �21.002 of the government code. The act became effective on June 20, 2003. The court’s oral order of Feb. 8, 2000, and subsequent written orders dated Feb. 21, 2000, and Nov. 6, 2001, provided for the potentially unlimited incarceration of relator. The effect of these orders was to authorize the coercive incarceration of relator for approximately 44 months based on his failure to comply with the discovery order. These orders resulted in an incarceration in excess of the limits set by the new subsection (h) and are, thus, void. The relator is entitled to release from incarceration. OPINION:Per curiam.

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