Debtor’s Prison in Texas

By Fred A. Simpson and Eric Muñoz

We have come a long way since the days
of enslaving debtors,1 slicing up deadbeats2 and slitting the nostrils of non-payers.3 But it is not always clear exactly to where we have come. Although all six versions of the Texas Constitution4 provide that “No person shall ever be imprisoned for debt,”5 certain situations arise where one may land in jail just because he owes money. This is possible because Texas courts hold that, although money is actually owed, certain obligations are not debt, notwithstanding generally accepted meanings of “debt.”

debt: That which is due from one person to another; obligation; guilt.6 or

debt: something owed; a state of owing; the common law action for the recovery of money held to be due.7

Imprisonment for debt is generally unacceptable, but can occur where contemnors fail to observe court orders. However, as the Texas Supreme Court explained, “It is not the policy of the law to enforce collection of mere civil debts by contempt proceedings.”8 Amplifying that principle, the Court held in 1997 that payment of expenses a contemnor caused third parties when he violated an injunction could not be a condition of his release from jail.9 But, there are almost always exceptions to general rules.
The “interpretive commentary” to the current Texas Constitution provides some explanation:

All causes of action become debts when they are placed in the form of judgments, but ‘there are many instances in the proceedings of the courts where the performance of an act may be enforced by imprisonment and would not come within the prohibition of the Constitution although it might involve the payment of money.’10

For instance, “debt” does not include fines imposed in criminal cases.11 A criminal incarcerated for a certain number of years and fined as well must wait until he serves his time before he can claim he is destitute and is being imprisoned for failure to pay the fine.12 Violation of a theft of services statute also does not establish any “debt.” Imprisonment is based on the thief’s intent to take the services without paying for them,13 similar to the punishment for fraudulently passing bad checks.14
“Debt” also does not include certain fines and costs in some civil cases. Due to the deference given to social policy, courts may find, even as they struggle with constitutional language, that there are good reasons why incarceration for money owed is constitutionally acceptable. An illustrative case, with the unlikely name of In re Sam Houston,15 involved a $500 fine for civil contempt of a court order where such contempt was not committed in the presence of the court. Because the contempt order turned out to be defective, and therefore void on other grounds, the court did not determine whether a fine imposed as punishment for contempt arising out of a civil proceeding is a debt for which incarceration is prohibited.16 Nevertheless, the court’s opinion is instructive because of its analysis of earlier cases on the subject of civil debt and the propriety of imprisonment.

Fines in Criminal Cases
An early example, decided under the Constitution for the Republic of Texas, is an 1847 case involving fines due in criminal proceedings.17 The following language of an 1840 statute designed for “punishing crimes and misdemeanors” was under attack:

For all fines assessed and costs of prosecution in criminal cases not capital, the person convicted may stand committed to prison by order of the court until such fine and costs be paid; and when it shall be made to appear to the court that the person so committed hath no estate or means to pay such fine and costs, it shall be the duty of the court to discharge such person from further imprisonment for such fine and costs, as in its discretion may deem proper.18

The Texas Supreme Court held that the words “imprisonment for debt” in the 1836 Constitution had a well defined and well known meaning - without giving a definition or meaning.19 The Court concluded that the framers never intended the words to apply to the administration of criminal laws or the punishment of crimes.20 According to the Court, the framers knew that other jurisdictions had held laws that abolished imprisonment for debt consistent with laws that made criminal fraud to avoid debt payment punishable by imprisonment.21 “It could not have been their intention to degrade the subject of misfortune to the level of criminal, and to confound debt with crime.”22
Thus, it was clear over 150 years ago that the constitutional guarantee was designed to shield unfortunate debtors, not to allow criminals to escape their punishment in the form of fines. For example, imprisonment may be used to enforce monetary criminal penalties to pay restitution to injured victims.23 In essence, if criminal defendants blatantly refuse to accept monetary punishment, they should go to prison. But, if such a defendant simply cannot pay his assessed punishment due to a lack of income or property, he should be set free. The Declaration of Rights, related to the 1836 Constitution, embraced that principle, stating: “No person shall be imprisoned for debt in consequence of inability to pay.”24 The U.S. Supreme Court agreed in 1971, when it found that a Texan who was too poor to pay his accumulated traffic fines could not be imprisoned.25

Imprisonment in Civil Cases
In the civil context, imprisonment for money owed can occur within constitutional boundaries. Such circumstances may involve consent orders, trusts, turnover orders, divorce, or child support.
The Texas Supreme Court has held that a husband’s imprisonment for failure to hand over a portion of his retirement benefits to his spouse, as ordered in a divorce consent decree, does not constitute imprisonment for debt.26 The rationale is that the husband must surrender property to the wife that is already hers under the divorce decree. The Fifth Circuit used similar reasoning when it found imprisonment was constitutional in Texas for money owed under a consent order to enforce the Interstate Land Sale Full Disclosure Act.27 This money was not debt because it already belonged to the property buyers under the order.28 Contempt was appropriate because “[c]ourts do not sit for the idle ceremony of making orders” just to have them “flouted, obstructed and violated with impunity.”29 These latter holdings are consistent with an exception to the general rule that applies to trustees, including constructive trustees, who contemptuously refuse to pay over funds to those rightfully entitled to them.30

Federal Cases
Federal courts have a statutory duty to follow debt imprisonment prohibitions in state constitutions.31 Accordingly, consistent with interpretations of state law, a bankrupt person can be imprisoned for failing to hand over property to the trustee of his bankruptcy estate,32 and, although imprisonment for failure to pay federal income tax may be unconstitutional,33 imprisonment for failure to file tax returns is not.34

Turnover Orders
A judgment debtor’s willful failure to comply with a federal court’s turnover order was punishable by imprisonment where the contemnor could not demonstrate his inability to pay.35 Precedent was established by a 1991 case, Buller v. Beaumont Bank, which tested the Texas turnover statute. A bank was challenged for attempting to use a turnover order that compelled the executrix of her husband’s estate to pay money.36 When the executrix refused to pay, she was jailed until she did.37 The appellate court found the turnover statute was constitutional and that the executrix was not imprisoned for debt, but for breaching her fiduciary duty to her dead husband’s creditors.38 The appellate court distinguished a 1965 divorce case, Ex Parte Yates, where the court found unconstitutional an order to a husband to pay a property division of $500 per month in money he had not yet earned.39 The Ex Parte Buller dissent cited to the Mauzy dissent in Beaumont Bank v. Buller,40 and noted that the origin of the obligation determines whether it is debt.41
Where attorney’s fees are part of an award to judgment creditors, a trial court may not enforce turnover orders by contempt proceedings.42 In Ex parte Roan, the district court assessed attorney fees as part of the turnover order. When Roan violated the turnover order, he was found in contempt and ordered to be incarcerated.43 The appellate court found, however, that a party may not collect attorney fees through contempt proceedings, even if awarded in connection with a turnover order.44 Also, the Roan turnover order erroneously instructed the contemnor to pay into the trial court’s registry for the judgment creditor’s benefit. Because the payment would benefit the creditor, not the State, it could not be classified as a fine and could not serve as a basis for contempt proceedings leading to imprisonment.45

Spousal Payments
Courts concluded long ago that community property in a relator’s physical possession or control at the time the divorce decree is signed46 is held by the relator in a constructive trust for the benefit of the other spouse.47 That constructive trust principle is now codified,48 as is the principle that courts may not enforce by contempt awards in decrees of divorce “in the nature of a debt” unless the payments are (a) money in existence at the time of the decree, or (b) “a matured right to future payments,”49 such as vested retirement benefits. Unlike retirement pay, disability compensation benefits paid by the U.S. Department of Veteran Affairs are not earned property rights to be shared with a divorced spouse, and a relator cannot be held in jail for failure to turn them over.50
For a property division to be paid in future installments, the divorce decree must show that the property itself, or the vested right to that property, exists at the time the divorce decree is signed.51 If orders to deliver payments out of spousal income or property are otherwise framed as personal obligations,52 or include interest on past due sums,53 they may be considered as debt and are not enforceable by contempt proceedings.
Maintenance payments to a former spouse may be enforced by contempt, according to 1997 and 2001 statutes establishing such payments54 and “may be enforced by any means available for the enforcement of judgment for debts.”55 Thus, there are situations where relators must pay out their own property or future earnings, but have affirmative defenses under the statute if the relators “lacked the ability to provide maintenance in the amount ordered.”56 While this certainly quacks like a debt for which imprisonment should not be allowed, it is likely, given public policy, that when this statute is challenged it will be upheld,57 notwithstanding that the spousal relationship has terminated and despite the fact that the supreme court has previously held that judgments providing for support payments out of future earnings, cannot be enforced by imprisonment.58
Temporary support payments to a wife, pending divorce, may be enforced by imprisonment, as may temporary spousal support in the form of fees payable to that spouse’s attorney,59 but if a divorce court orders an opposing spouse to make note payments to a third party, that is debt that cannot be enforced by contempt.60

Child Support
A child support order does not create a “debt” within the meaning of the prohibitive constitutional provision.61 A 1980 application for habeas corpus resulted in a review of a statute enabling the collection of child support judgments. That statute allows judgments to “be enforced by any means available for the enforcement of judgments for debt.”62 The court reflected on the well-settled law63 that the natural and legal duties of parents to support their children does not involve debt, as the obligation to pay money for food, clothing, shelter and other necessities arises from the relationship and its inherent obligations.64
Unless there are special circumstances described by the Family Code,65 imprisonment to enforce child support payment created by spousal agreement or otherwise ceases to be permissible if the child is emancipated66 or when the child turns 18.67
Despite the general rule that attorney’s fees may not be collected by contempt proceedings,68 the supreme court decided in 1953 that an order to enforce payment of attorney’s fees or costs to collect child support are of the same nature as child support. Therefore, such an order does not violate the constitutional right against imprisonment for debt,69 nor does an order requiring payment of a child’s necessary medical or psychiatric care.70 However, ad litem fees and expenses are ordinary debt.71
Although payment of child support and attorney’s fees against the defaulting party may be enforceable by imprisonment for contempt,72 this is not true if the order adds attorney’s fees and costs allocable to the enforcement of other things such as visitation orders.73 Nor is imprisonment allowable for failure to pay incremental weekly increases in child support payments designed solely to bring past due child support current.74 On the other hand, incarcerating a contemnor who fails to pay attorney’s fees incurred to determine paternity does not violate the Constitution because of the strong public policy that favors establishing responsibility for child support and enforcement of other parental duties.75

Need For Precision in Orders of Contempt
Unless coercive contempt orders strictly prescribe fines, and clearly do not compel payment of underlying debts, the imprisonment orders are void.76 For example, failure to pay on an order for discovery sanctions of $15,000 in attorneys’ fees was not punishable by imprisonment because it was not a fine and was therefore not “punitive in nature.”77 Also, failure to show in a judgment that attorney’s fees and court costs are payable out of property in a relator’s possession may be fatal to enforcement by imprisonment.78 Similarly, where a contempt order compels a person to pay child support (enforceable by contempt, see supra) but includes (a) an order to reimburse a community debt (also enforceable by imprisonment), and (b) an order to pay an ordinary debt to a third party (not enforceable by imprisonment), the entire order is void if the single penalty imposed for failure to obey all three orders is imprisonment.79 For example, in a 1977 case, attorneys were wrongfully paid their fees from an estate. The order compelling the attorneys to repay those fees failed to identify a specific “fund in being,” and, as a result, the order was ruled a direction to pay debt that could not be enforced by contempt and imprisonment.80 In addition, a 1959 divorce case explains that the failure of an order to show that shares of stock in a public company had an “especial value,” as described in Rule 308, causes the writ of seizure to be void, and the ex-husband could not be incarcerated.81 And, within the criminal context, the inclusion of attorney’s fees and costs related to investigating charges of contempt, if assessed as part of the punishment, may render an entire contempt order void.82

Conclusion
By considering previous decisions, one can assess the odds of a debtor escaping prison under a writ of habeas corpus. Assuming contempt orders are not defective for other reasons, these are a contemnor’s likely fate:

1. If the contempt orders describe money due for child support or temporary spousal support or food, clothing, shelter, or necessary medical care of either, or attorney’s fees to enforce collection, relators stay in jail.

2. If contempt orders describe attorney’s fees incurred to determine paternity, relators stay in jail.

3. If contempt orders describe a duty for relators to turn over property owned by others or property being held for the benefit of others, relators stay in jail.

4. If contempt orders describe payments enforceable by contempt (e.g. child support, reimburse a community debt) and payments not enforceable by contempt (e.g. order to pay an ordinary debt to third party), orders in their entirety may be void if a single cited penalty for failure to obey is imprisonment.

5. If contempt orders include attorney fees associated with investigating charges of contempt in a criminal context, assessed as part of the punishment, the orders may be void in their entirety.

Given all the above, it is safe to conclude that there really are times when Texans who owe money to others may go to jail for failure to pay, despite constitutional guarantees that appear to read otherwise.

Fred Simpson is a partner in the Houston Litigation Section of Jackson Walker L.L.P. engaged in insurance law, appellate law, arbitration and mediation. He cautions readers that the authors’ views are not necessarily those of Jackson Walker or
its clients.

Eric Muñoz is a graduate of the University of Houston Law Center, with an A.B. in Economics from Stanford University. Muñoz is serving as clerk to the Hon. Kenneth M. Hoyt, United States District Judge, Southern District of Texas, Houston Division.

Endnotes
1. See, e.g., Deuteronomy 15:12, Exodus 22:2. See also, James Lindgren, Symposium: Why the Ancients May Not Have Needed a System of Criminal Law, 76 B.U.L. Rev. 29 (1996) for an interesting discussion of debts as a result of tortuous conduct and recourse available to the creditor. 2. Roman Civilization, Volume I: The Republic 103-04 (Lewis & Reinhold eds., 1951) (describing the Twelve Tables as adopted around 450 B.C.; Table III includes provisions regarding creditors rights, including dividing up the debtor among the various creditors). See also Livy, The Early History of Rome From Its Foundation: Books I-V 129-30 (Aubrey de Selincourt trans., Penguin Books 1981) (1951) (telling the story of an old soldier that had become indebted and who said, “[e]ven my body was not exempt from it for I was finally seized by my creditor and reduced to slavery: nay worse—I was hauled away to prison and the slaughterhouse.”). 3. See, Pratap Ravindran, Money and Mayhem Revisited, Business Line, Apr. 27, 1999 (stating that the Danes imposed a poll tax on the Irish and slit the noses of those that did not pay and the practice may have been the basis for the famous phrase “paying through the nose”). But See, Steele Commager, Paying Through the Nose and Other Taxing Phrases, Forbes, Apr. 13, 1981, at 146 (acknowledging that the phrase may be based on the practice but also expressing some uncertainty about the practice itself). 4. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 229 (Tex. 1991) (Mauzy dissent). 5. Tex. Const. art. I, §18 6. Webster’s Dictionary and Roget’s Thesaurus, 41 (1997). 7. Merriam-Webster’s Collegiate Dictionary, 297 (10th ed. 1993). 8. Ex parte Britton, 127 Tex. 85, 92 S.W.2d 224, 227 (Tex. 1936). 9. In re Nunu, 960 S.W. 2d 649 (Tex. 1997) (adjudicated debt may be enforced by other legal processes, but not by imprisonment), citing to Ex parte Hall, 854 S.W.2d 656, 658 (Tex. 1993); Wallace v. Briggs, 162 Tex. 485, 348 S.W.2d 523, 525-26 (1961). 10. Tex. Const. art. I, § 18, Inter. Commentary (Vernon 1997), quoting from Ex parte Davis, 101 Tex. 607, 111 S.W. 394 (1908). 11. Lyons v. State, 835 S.W.2d 715, 718 (Tex. App.—Texarkana 1992, pet ref’d). 12. See Shafer v. State, 842 S.W.2d 734, 736 (Tex. App.—Dallas 1992, no pet). 13. See Rhodes v. State, 441 S.W.2d 197, 198 (Tex. Crim. App. 1969, no pet.). 14. See Colin v. State, 145 Tex. 371, 168 S.W.2d 500, 501 (Tex. Crim. App. 1943, no pet.). 15. In Re Sam Houston, 92 S.W.3d 870 (Tex. App. – Houston [14th Dist.] 2002, orig. proceeding). 16. Id. at 876. 17. Dixon v. State, 2 Tex. 481 (1847). 18. 1 Stat. 187, sec. 47. 19. Id. 20. Id. 21. Id. 22. Id. at 483. 23. See Thompson v. State, 557 S.W.2d 521, 525 (Tex. Crim. App. 1977). 24. See Ex parte Wagner, 905 S.W.2d 799, 802 (Tex. App. – Houston [14th Dist.] 1995, orig. proceeding) (Justice Fowler providing a summary of the bloody history of imprisonment for debt in footnote #1 of her opinion). 25. Tate v. Short, 401 U.S. 395, 91 S.Ct. 688, 28 L.Ed.2d 130 (1971). See also Ex parte Tate, 445 S.W.2d 210 (Tex. Crim. App. 1969), on remand, 471 S.W.2d 404 (1971). 26. Ex parte Gorina, 595 S.W.2d 841, 847 (Tex. 1979). 27. Pierce v. Vision Investments, Inc., 779 F.2d 302, 310 (5th Cir. 1986). 28. Id. 29. Id. at 309, citing Waffenschmidt v. Mackay, 763 F.2d 711, 716 (5th Cir. 1985) (citations omitted). 30. See Ex parte Rogers, 633 S.W.2d 666, 670 (Tex. App.—Amarillo 1982, orig. proceeding), citing to Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938, 940 (1961); Ex parte Thomas, 610 S.W.2d 213, 214 (Tex. Civ. App.—Houston [1st Dist.] 1980, orig. proceeding). 31. 28 U.S.C.A. § 2007(a). 32. See In re Schlesenger, 102 F.117 (N.Y. 19000). 33. See Ex parte Chacon, 607 S.W.2d 317, 318 (Tex. Civ. App. – El Paso 1980, orig. proceeding). 34. See United States v. Merritt, 639 F.2d 254, 256 (5th Cir. 1981). 35. Santibanez v. Wier McMahon & Co., 105 F. 3d 234, 242 (5th Cir. 1997), citing to Ex parte Buller, 834 S.W.2d 622, 626 (Tex. App.—Beaumont 1992, orig. proceeding). 36. Buller v. Beaumont Bank, N.A., 806 S.W.2d 223 (Tex. 1991). 37. Ex parte Buller, 834 S.W.2d 622 (Tex. App.—Beaumont 1992, orig. proceeding). 38. 834 S.W.2d at 626. 39. See Ex parte Yates, 387 S.W.2d 377, 380 (Tex. 1965). 40. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 229 (Tex. 1991). Mauzy’s dissent focused on the inappropriateness of using the turnover statute, because it could not be applied to Buller in her individual capacity. 41. Citing to Ex parte Shaver, 597 S.W.2d 498 (Tex. Civ. App.—Dallas 1980, orig. proceeding) (“The nature of the obligation depends on its origin, not the manner of its enforcement.”). 42. See Ex parte Roan, 887 S.W.2d 462 (Tex. App.—Dallas 1994, orig. proceeding). 43. Id. at 463 44. Id. at 465 45. Id. 46. See Troutenko v. Troutenko, 503 S.W.2d 686 (Tex. Civ. App.—Houston [1st Dist.] 1973, no writ). 47. Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938 (1961); Ex parte Latham, 47 Tex. Cr.R. 208, 82 S.W. 1046 (1904). 48. Tex. Fam. Code Ann § 9.011. 49. Tex. Fam. Code Ann § 9.012. 50. See Ex parte Johnson, 591 S.W.2d 453, 454 (Tex. 1979). 51. See Ex parte Neff, 542 S.W.2d 268, 270 (Tex. Civ. App.—Fort Worth 1976, orig. proceeding). 52. Contractual alimony or support payments to an ex-wife are personal obligations. See Francis v. Francis, 412 S.W.2d 29, 32-33 (Tex. 1967). 53. See Ex parte Sutherland, 515 S.W.2d 137, 141 (Tex. Civ. App.—Texarkana 1974, writ dism’d). 54. Tex. Fam. Code Ann §§ 8.009(a) and 8.059(a). 55. Tex. Fam. Code Ann §§ 8.009(b) and 8.059(b). 56. Tex. Fam. Code Ann §§ 8.009(c) (1) and 8.059(c) (1). 57. See, e.g., In re: Taylor, 130 S.W.3d 448 (Tex. App. – Texarkana 2004, orig. proceeding). See also In re: Dupree, 118 S.W.3d 911 (Tex. App. -- Dallas 2003, orig. proceeding). 58. Ex parte Yates, 387 S.W.2d 377, 380 (Tex. 1965). See also Ex parte Choate, 582 S.W.2d 625 (Tex. Civ. App.—Beaumont 1970, orig. proceeding); Ex parte Duncan, 462 S.W.2d 336, 338 (Tex. Civ. App.—Houston [1st Dist.] 1970, orig. proceeding); Ex parte Jackson, 590 S.W.2d 775, 776-77 (Tex. Civ. App.—El Paso 1979, orig. proceeding.). 59. See Ex parte Kimsey, 915 S.W.2d 523, 527 (Tex. App. – Corpus Christi 1995, orig. proceeding). 60. Ex parte Delcourt, 868 S.W.2d 373, 375 (Tex. App.—Houston[1st Dist.] 1993, orig. proceeding). See also Ex parte Weatherly, 605 S.W.2d 661, 663 (Tex. Civ. App.—Amarillo 1980, orig. proceeding). 61. See Freeland v. Freeland, 313 S.W.2d 943, 946 (Tex. Civ. App.—Dallas 1958, no writ). 62. Tex. Fam. Code Ann. § 14.09(c) (Vernon 1975). 63. See Ex parte McManus, 589 S.W.2d 790, 792 (Tex. Civ. App.—Dallas 1979, orig. proceeding). 64. Ex parte Shaver, 597 S.W.2d 498, 500 (Tex. Civ. App.—Dallas 1980, orig. proceeding). But see Ex parte Harwell, 538 S.W.2d 667, 671 (Tex. Civ. App.—Waco 1976, orig. proceeding). Compare Ex parte Willbanks, 722 S.W.2d 221, 224 (Tex. App.—Amarillo 1986, orig. proceeding.) 65. Tex. Fam. Code Ann. § 154.001(a). 66. See Ex parte Williams, 420 S.W.2d 135, 136 (Tex. 1967). 67. See In re Cobble, 592 S.W.2d 46, 49 (Tex. Civ. App.—Tyler, 1979, writ denied). 68. See Wallace v. Briggs, 162 Tex. 485, 348 S.W.2d 523, 525-26 (1961). 69. Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184, 188 (1953). See also Ex parte Hightower, 877 S.W.2d 17, 21 (Tex. App.—Dallas 1994, orig. proceeding); Ex parte Myrick, 474 S.W.2d 767, 771-72 (Tex. Civ. App.—Houston [1st Dist.] 1971, orig. proceeding). See Ex parte Hall, 611 S.W.2d 459, 461 (Tex Civ. App.—Dallas 1980, orig. proceeding); but see Ex parte Prevost, 598 S.W.2d 310, 311 (Tex. Civ. App.—Beaumont 1979, orig. proceeding). 70. See Ex parte Davila, 709 S.W.2d 15, 18 (Tex. App. – Corpus Christi 1986, orig. proceeding). 71. See Ex parte Hightower, 877 S.W.2d at 21. But see Ex parte Shields, 779 S.W.2d 99, 101 (Tex. App.—Houston [1st Dist.] 1989, orig. proceeding). 72. See Ex parte Binse, 932 S.W.2d 619, 621 (Tex. App. – Houston [14th Dist.] 1996, orig. proceeding). 73. See Ex parte Rosser, 899 S.W.2d 382, 386 (Tex. App. – Houston [14th Dist.] 1995, orig. proceeding). 74. See Frank v. Reese, 594 S.W.2d 119 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ). 75. See Ex parte Wagner, 905 S.W.2d 799, 803 (Tex. App. – Houston [14th Dist.] 1995, orig. proceeding). 76. See Ex parte Roan, 887 S.W.2d at 465. 77. Ex parte Dolenz, 893 S.W.2d 677, 679 (Tex. App. – Dallas 1995, orig. proceeding). 78. Ex parte Choate, 582 S.W.2d 625, 628 (Tex. Civ. App.—Beaumont 1979, orig. proceeding). 79. See In re Roberts, 584 S.W.2d 925, 926 (Tex. Civ. App.—Dallas 1979, orig. proceeding). See also Ex parte Harwell, 538 S.W.2d 667, 671 (Tex. Civ. App.—Waco 1976, orig. proceeding). 80. Currei v. Drake, 550 S.W.2d 736, 741 (Tex. Civ. App.—Dallas 1977, writ ref’d n.r.e.). 81. Ex parte Prickett, 159 Tex. 302, 320 S.W.2d 1 (1958). 82. See Ex parte Morris, 352 S.W.2d 125, 128 (Tex. Crim. App. 1961).

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