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Click here for the full text of this decision FACTS:Jemece Mays Richard was appointed guardian of her father, Jimmy Mays, and was attempting to recover her father’s property. Mays’ wife received a $24,000 check made payable to Mays and was ordered to pay the money into the court registry. The wife, instead, deposited the check into a credit union, withdrew the entire amount in cash and gave it to Benji Johnson for safekeeping. Johnson allegedly buried the money under a pine tree that he could see from his front porch. When the wife returned to claim the money, Johnson discovered that the money had been stolen from its hiding place. The trial court in Mays’ guardianship proceeding ordered Johnson and the wife to pay the money into the court registry the next day. When the money was not paid, the trial court found them both in contempt and ordered them both jailed. In his original appeal, Johnson argued that he was wrongly imprisoned for debt. This court held on Oct. 7, 2004, that Johnson was not imprisoned for his debt. Instead, Johnson had an obligation � based on his possession � for the safekeeping of the property the trial court had previously ordered paid into the court’s registry. That the property is money does not mean Johnson’s legal duty is a debt, the court finds. “The trial court found he is still able to place the money in the registry of the court. He is holding another’s property and has been ordered to surrender the property. We conclude relator is not being imprisoned for nonpayment of a debt within the meaning of Article I, Section 18 of the Texas Constitution.” The court added that once the money was traced to Johnson’s possession, he was presumed to possess the entire amount traced and was required to show that he did not have all or part of it. The trial court was free to disbelieve Johnson’s “incredible account” of what happened to the money, and Johnson did not otherwise establish an involuntary inability to comply with the trial court’s second order to pay the money into the court’s registry. On motion for rehearing, Johnson argues his right to due process was violated, because he was not given proper notice of the contempt, was not given the opportunity to retain counsel and did not have an opportunity to defend himself at a contempt hearing. HOLDING:Writ granted. This is a civil contempt order designed to coerce Johnson to comply with the trial court’s second order to pay the money into the court’s registry. The contempt is constructive because the offending behavior happened outside the court’s presence. The hearing at which Johnson testified was held to resolve a motion to show cause and to convert the Richard’s temporary guardianship over Mays into a permanent one. Additionally, Johnson’s explanation for his failure to deliver the cash involves disputed facts concerning out-of-court conduct. “The notice provided to relator, which the record reflects was less than twenty-four hours, was not sufficient. Johnson was a witness at the show cause hearing. He was not the respondent. Considering the inadequacy of the notice provided in this case, the contempt order is a nullity.” OPINION:Gaultney, J.; McKeithen, C.J., Burgess and Gaultney, JJ. CONCURRENCE AND DISSENT:Burgess, J. “I concur with opinion of the Court on motion for rehearing. Because I disagree with the majority’s opinion on the substantive issue originally presented in the relator’s petition, I respectfully dissent.” The dissent states that the proper remedy for what Johnson did is not to find him in contempt and jail him but to bring a suit of conversion against him.

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