Article I, section 18 of the Texas Constitution prohibits imprisonment for debt: “No person shall ever be imprisoned for debt.” For that reason, the Fifth Court of Appeals granted a petition for habeas corpus arising out of a divorce case. The trial court ordered the former wife to pay the former husband $40,000 within six months of the divorce. When the former wife failed to make the payment, the trial court committed her to jail until she paid. In re Kinney, No. 05-14-00159-CV (Tex. App. – Dallas Mar. 25, 2014, orig. proceeding) (mem. op.).
Yet not all orders for the payment of money are orders for payment of a debt. According to section 9.012(b) of the Texas Family Code, a court may order payment of “(1) a sum of money in existence at the time the decree was rendered; or (2) a matured right to future payments.” In those instances, the court is not ordering payment of a debt.
The court provided some examples:
- In re Henry, 154 S.W.3d 594, 596 (Tex. 2005, orig. proceeding) (per curiam): “A person may be held in coercive contempt for failure to satisfy an obligation to deliver specific property pursuant to a division of the community estate.”
- Ex parte Sutherland, 526 S.W.2d 536, 539 (Tex. 1975, orig. proceeding): “Relator was constituted a trustee by the court to collect and remit to the clerk the one-half of the pay awarded to the wife. In performing that duty he will not be paying a debt but will be surrendering the share to which his former wife is legally entitled. His confinement to compel payment of the arrearage in the wife’s one-half of the retainer pay is not imprisonment for debt.”
- Ex parte Preston, 347 S.W.2d 938, 940 (1961, orig. proceeding): “The award of $10,000 to the wife in the division of the community property is not a debt in the ordinary sense owing by the husband in contemplation of the constitutional inhibition. He has in his possession $21,000 of community property, $10,000 of which has been awarded to the wife.”
In short, said the court, for an order to be enforceable by contempt, “the divorce decree must indicate the funds existed at the time the decree was rendered or specify particular community funds from which the amount is to be paid.”