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Click here for the full text of this decision FACTS:R. Jeanette Hammond filed a petition for writ of habeas corpus in this court, seeking to be discharged from confinement pursuant to a trial court order holding her in contempt for failing to pay child support. On Aug. 29, 2003, this court granted the writ and ordered her discharged upon the posting of a $100 bond. HOLDING:The court remands Hammond to the custody of the El Paso County Sheriff to be held until: 1. she purges herself by paying the amounts set forth in the order signed on Aug. 28, 2003, by the 171st Judicial District Court in cause number 89-6831, under the heading “Civil Contempt,” or 2. until further order of the 383rd Judicial District Court in cause number 89-6831. Hammond argues that she was denied her right to a jury trial. When a contemnor has a right to a jury trial, the record must show that the court informed her of the right and that she affirmatively waived that right. Ex parte Sproull, 815 S.W.2d 250 (Tex. 1991). The court cannot presume that a jury was waived when the record is silent on the matter. There is no absolute right to a jury trial in a contempt proceeding. The right generally attaches only when the contemnor is held in criminal contempt and assessed a serious punishment. Confinement for more than six months is considered serious punishment. Confinement for six months or less, on the other hand, is considered petty and does not entail a right to a jury trial. But even if the contemnor is sentenced to no more than six months’ confinement for each of several contumacious acts, the punishment is considered serious if the sentences must be served consecutively and they add up to more than six months’ confinement. A judgment that orders a contemnor confined unless and until she performs some act is a judgment of civil contempt. Unlike confinement for civil contempt, confinement for criminal contempt is for a definite period and is unconditional; there is nothing the contemnor can do to purge herself of the contempt. The trial court initially held Hammond in both criminal and civil contempt. The court ordered her confined for sixty days for each of the 89 separate violations of the prior order. Furthermore, the 60-day sentences were to be served consecutively. Because this adds up to a sentence of 5,340 days in jail, or more than fourteen and a half years, Hammond had a right to a jury. Yet there was no jury, and there is nothing in the record before this court to reflect that Hammond was informed of her right to a jury trial or that she affirmatively waived that right. Accordingly, the portions of the Aug. 15 and Aug. 28 orders that held Hammond in criminal contempt are void. The court notes that the trial court attempted to replace these orders with the Nov. 8 nunc pro tunc order, which eliminated the criminal contempt provisions. Hammond argues that the nunc pro tunc order is ineffective because it does more than correct clerical errors in the earlier orders and was not signed within the period of the trial court’s plenary power. Texas Rule of Civil Procedure 329b, which limits a trial court’s plenary power to alter a judgment, does not apply to contempt orders. Therefore, the nunc pro tunc order would not be rendered ineffective by the court’s failure to sign it within the usual period of plenary power. The supreme court has held that a trial court cannot enter a new contempt judgment after a habeas proceeding has been filed in an appellate court. In those cases, the trial court’s rulings worked to the disadvantage of the contemnor. In this case, the nunc pro tunc order benefitted Hammond by eliminating the finding of criminal contempt. The court finds it unnecessary to decide whether a trial court can modify its contempt judgment to benefit the contemnor while a habeas proceeding is pending. Regardless of whether the nunc pro tunc order validly eliminated the finding of criminal contempt, the portions of the earlier orders finding Hammond in criminal contempt are void and ineffective because Hammond’s right to a jury trial was violated. With the elimination of the criminal contempt finding, only the finding of civil contempt remains at issue. Hammond was not entitled to a jury trial before being found in civil contempt. A person cannot be held in contempt for failing to pay child support if she establishes that she: 1. lacked the ability to provide support in the amount ordered; 2. lacked property that could be sold, mortgaged, or otherwise pledged to raise the needed funds; 3. attempted unsuccessfully to borrow the needed funds; and 4. knew of no source from which the money could have been borrowed or legally obtained. Texas Family Code �157.008(c). The court cannot say that Hammond conclusively established the four elements of �157.008(c). The court cannot say that the trial court’s finding that Hammond has the ability to pay is so completely without evidentiary support that it amounts to a denial of due process. The record does not support Hammond’s claim that she was denied the opportunity to present evidence of a change in her financial circumstances or of her inability to pay. The court overrules Hammond’s remaining issues. OPINION:Larsen, J.; Barajas, C.J., Larsen and Chew, JJ.

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