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Click here for the full text of this decision FACTS:Martha and Vance Tracy divorced in December 2003. As part of the amended decree of divorce, a trial court ordered Vance to apply for refinancing of the marital residence and pay Martha $50,000 upon closing of the refinancing. Martha was ordered to tender a special warranty deed to the closing agent for the refinancing. The agent would hold the deed in trust until the transaction closed and Martha received the $50,000. In September 2005, Vance brought a petition to enforce the decree, complaining that Martha had failed and refused to deliver the deed after he paid her $50,000. Vance alleged that Martha demanded he pay her an additional $10,000 before she would tender the deed. Vance requested that Martha be held in contempt, jailed and fined for each violation of the divorce order. He also sought reasonable attorneys’ fees. Two days Vance filed his petition, Martha delivered a deed to Vance. At the enforcement hearing, Vance’s counsel acknowledged receipt of the deed but argued that he was entitled to attorneys’ fees “that could have been avoided had Ms. Tracy followed the terms and conditions of the decree.” He asked the trial judge to hold Martha in contempt and have her jailed until she paid his attorneys’ fees. At the conclusion of the hearing, the trial judge found Martha in contempt of court and awarded Vance $2,360 in attorneys’ fees and costs. In his written order, Judge Charles Sandoval found that Martha violated the divorce decree by failing to deliver a special warranty deed to the property after having received the $50,000, continued to refuse to execute the deed although requested to do so, and made demand for an additional $10,000 before tendering the deed to Vance. Sandoval ordered Martha confined in the county jail for a period not to exceed 18 months or until she paid Vance’s attorney his fees and costs of $2,360. Sandoval then ordered the commitment be suspended on the conditions that Martha execute the special warranty deed and pay Vance’s attorneys’ fees by 5 p.m. on Oct. 26, 2005. The order further provided that if Martha failed to pay the attorneys’ fees in accordance with the order, a writ of commitment would issue. Martha did not pay the attorneys’ fees and instead filed a motion to vacate and/or amend the order. In the motion, Martha contended that the award of attorneys’ fees could not be enforced by contempt. Additionally, she asserted that there was “newly discovered evidence” that she may have executed a special warranty deed and returned it to the lender on or about Dec. 1, 2003. At the hearing on this motion, Martha’s trial counsel explained that Martha had, in fact, executed the deed before the petition for enforcement was filed. Counsel explained that he was not aware of the document at the previous hearing, because he did not prepare the document nor did he have a copy in his file. Further, he explained that Martha did not realize she had signed the deed and only found a copy of the last page after the last hearing. Sandoval refused to set aside the contempt order for the attorneys’ fees. Sandoval ultimately denied the motion to vacate but agreed to suspend imposition of his order until Martha completed her appeal. HOLDING:Dismissed for want of jurisdiction with advice to the trial judge on how to handle the matter. The court found that it lacked jurisdiction to review a contempt order on direct appeal. Contempt orders involving confinement may be reviewed by writ of habeas corpus, the court stated, while contempt orders that do not involve confinement may be reviewed only through mandamus. Thus, the court lacked jurisdiction over Martha’s appeal. Nevertheless, because Martha risked confinement in county jail until she paid the attorneys’ fees, the court felt “compelled” to express its views on the validity of this contempt order. While the trial judge, the court stated, suspended confinement of Martha on condition that she execute the deed and pay the attorneys’ fees, Martha had already met the former requirement. Consequently, the court found the record clear that under the order of contempt, Martha could only avoid jail by paying the attorneys’ fees. Under Art. I, �18 of the Texas Constitution, a trial court shall not imprison a person for debt. Nor does Texas law allow collection of attorneys’ fees by contempt proceedings, the court stated. Because the order in Martha’s case is against the law, the court stated that it is void. The court “presume[d] a judge will not attempt to enforce a void order and direct confinement thereunder.” OPINION:Francis, J. Whittington, Francis and Lang, J.J.

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