## Facts

- Mr. Barnes and Mrs. Barnes divorced, and the divorce decree ordered Mr. Barnes to make periodic child-support payments.
- Mr. Barnes failed to make the required payments and accumulated about $7,000 in child-support arrearages; the contempt order also required payment of $758 in attorney’s fees.
- The trial court held a contempt hearing. Mrs. Barnes made a prima facie showing that Mr. Barnes had the ability to comply, and Mr. Barnes did not claim at that hearing that he was unable to pay.
- The trial court found Mr. Barnes in contempt and ordered (1) confinement for 30 days and (2) continued confinement after that term until he paid the arrearages and attorney’s fees (a “pay-to-purge” commitment).
- Mr. Barnes served more than the 30-day term but remained jailed because he had not paid the purge amounts.
- Mr. Barnes sought habeas relief once before, but it was denied based on the record from the original contempt hearing, where he had not raised inability to pay.
- Mr. Barnes then filed a second petition for writ of habeas corpus in the Texas Court of Appeals, which agreed to consider whether his continued confinement was lawful.
- The court of appeals directed an evidentiary hearing on Mr. Barnes’s present ability to comply. At that hearing, evidence showed Mr. Barnes had no resources of his own, had no family from whom he could borrow, and had been denied loans by multiple lending institutions.
- The trial court found Mr. Barnes lacked the present ability to pay the amounts required to purge the contempt.

## Issues

1. May a court continue to confine a civil contemnor under a pay-to-purge contempt commitment when the evidence conclusively shows the contemnor presently cannot comply with the purge condition?
2. In a habeas proceeding challenging continued civil-contempt confinement, may the court consider later-developed evidence of the contemnor’s present inability to comply even though inability was not asserted at the original contempt hearing?

## Decision

- The court of appeals granted habeas corpus relief and ordered Mr. Barnes discharged from custody.
- The court held that because the record established Mr. Barnes’s present inability to pay the purge amounts, continued confinement could no longer serve a coercive function and was unlawful.
- The court rejected the argument that the earlier failure to claim inability at the contempt hearing barred relief from continued confinement once present inability was shown.

## Legal Principles

- Civil contempt confinement is conditional and coercive; it is justified only so long as the contemnor has the present ability to perform the act required for release.
- A contemnor may not be kept incarcerated for failing to perform an act that is beyond his present power to perform; when compliance becomes impossible, continued confinement is not authorized.
- The legality of coercive civil-contempt confinement is a continuing question. Habeas corpus may be used to test whether present circumstances make the purge condition impossible to satisfy.
- Evidence showing current inability to comply may be considered even if the contemnor did not raise inability at the original contempt hearing, because the inquiry focuses on whether continued confinement remains coercive rather than punitive.

## Conclusion

The Texas Court of Appeals held that a civil contemnor may not remain jailed on a pay-to-purge child-support contempt order once the evidence conclusively shows he presently lacks the ability to pay the amounts required for release, and it granted habeas relief ordering Barnes discharged.


Ex Parte Barnes, 730 S.W.2d 46 (1987)