Tag Archives: Texas

When Keeping Kids Is a Crime

Hammack v. State, No. PD-0636-19, Tex. Crim. App. May 19, 2021. Judge Newell wrote for the 7-2 majority; Presiding Judge Keller and Judge Keel dissented.

Michael Anthony Hammack was convicted of the crime of interference with child custody and sentenced to five years’ probation. On appeal, he argued that the evidence was legally insufficient to convict him because there was no proof he knew the express terms of the order he was charged with violating. The Texarkana Court of Appeals affirmed the conviction, as did the Texas Court of Criminal Appeals.

Hammack was charged and convicted of interference with child custody. The Penal Code makes it a state jail felony to “take[] or retain[] a child younger than 18 years of age” if the person taking or retaining the child “knows that [doing so] violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody.” Tex. Penal Code § 25.03(a)(1), (d).

I want to point out that neither the majority nor the dissent discussed the taking-or-retaining element in any depth. According to the majority’s recitation of the facts, Hammack’s daughter escaped CPS custody and went to her grandmother’s. Even if she wound up in Hammack’s physical custody, one could argue that he never took her from CPS’s custody. Was it sufficient that he “took” her from her grandmother’s? The court doesn’t say.

Instead, the appeal focused on Hammack’s knowledge of the express terms of the order he violated. Hammack did not challenge the existence of the order or that he violated it. He conceded that CPS had obtained an emergency order giving CPS temporary custody of his 16-year-old daughter. He also conceded that he violated that order by keeping the girl for about a week after she “escaped” CPS custody. (Among other things, he chased CPS out of his mother’s house, where the girl was staying, and took her to Oklahoma for a shotgun wedding to her 18-year-old boyfriend.)

Instead, Hammack challenged his conviction on the ground that he could not have known that keeping the girl for a week “violate[d] the express terms” of the order because he had not been formally (or informally) served with the order or told its express terms.

The majority concluded that he had been told the express terms and held that formal service of the order violated is not an element of the crime of interference with child custody. The statute only requires proof that the defendant knew his conduct violated the express terms of the order. While proof of service “may provide sufficient evidence of knowledge in a given case,” it is not necessary in every case. The State can also carry its burden with circumstantial evidence. In this case, the State presented evidence that Hammack was told about the order on three different occasions, including specifically the “express term” that gave CPS custody.

The dissent disagreed about whether he was told the express terms of the order. The dissent emphasized the distinction between being told that CPS had “custody” and being told that CPS had “sole custody.” Here, Hammack was told several times that CPS had been given “custody,” not “sole custody.” Without that key word (“sole”), the dissent would have determined that there was not sufficient evidence to support the conviction.

The majority took some pains to distinguish Tex. Penal Code § 25.07 and Harvey v. State, 78 S.W.3d 368 (Tex. Crim. App. 2002). Section 25.07 criminalizes the violation of a list of “statutorily defined orders, each one having specific notice requirements, among them actual service, necessary to make each respective order ‘binding’.” Section 25.03, on the other hand, criminalizes the violation of custody orders, which may or may not require prior notice to be binding. For example, an ex parte CPS removal order is binding with or without service for up to 14 days. See Tex. Fam. Code § 262.102, 103.

In sum—formal service of the violated order is not an essential element of the crime of interference with child custody. Though the state must prove knowledge of the express terms of the order, it may do so through circumstantial evidence, such as testimony by a witness that she told the offender about the order in sufficient detail that he knew what its express terms required.

The Case of the Precedent for Refusing to Leave Office

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The case of the week is Ex Parte Rodriguez, 39 Tex. 705 (Tex. 1873).

Jose Rodriguez was arrested on December 13, 1873, for voting twice in the gubernatorial election of December 2, 1873. Three days later, he filed a petition for writ of habeas corpus. He was represented by former Texas Governor A.J. Hamilton and made a simple argument:

Rodriguez was arrested for voting twice, but
the election of December 2, 1873, was unconstitutional and therefore invalid, so
it could not be a crime to vote twice in that election.

The State was represented initially by Frank Spencer, the district attorney for Harris County. He was not opposed to the relief sought — he agreed that Rodriguez should be released — but his basis was that the arrest was not a real arrest but an engineered ploy to test the constitutionality of the election. He submitted an affidavit from George Goldthwaite to the effect that the former sheriff of Harris County (A.B. Hall) paid Rodriguez to get arrested and paid Hamilton to file the petition. When the court declined to accede to his request, he withdrew and the court appointed Bingham Trigg, the district attorney of Travis County, to take over for the state and defend the constitutionality of the election. Trigg made many of the same arguments as Spencer.

The court ultimately sided with Rodriguez. The Constitution of 1869 provided:

All elections for State, district and county officers shall be held at the county seats of the several counties, until otherwise provided by law; and the polls shall be opened for four days, from 8 o’clock a.m. until 4 o’clock p.m. of each day.

Tex. Const. of 1869 art. 3, § 6 (emphasis added). In March of 1873, the Republican-controlled Legislature passed a statute providing that elections could be held in the justice of the peace precincts (which may or may not be in the county seat), but limiting elections “to one day only . . . from 8 o’clock a.m. to 6 o’clock p.m.” The statute also provided that voting more than once in the same election was a felony.

The court was ok with the first part. The location provision of article 3, section 6 was modified by the phrase “until otherwise provided by law.” The March 1873 statute “otherwise provided by law,” so no problem there.

The Legislature undoubtedly have the power to provide for holding the elections at places other than the county seats;
but it is equally clear that the Constitution is mandatory, and that the Legislature have no power to limit the time within which the elections must be held;
and Section 12 of the act of March 31, 1873, is in open conflict with the Constitution, and for that reason is null and void;
and no valid election having been held at the city of Houston, in the county of Harris, on the second day of December, 1873, the relator is not guilty of a felony, and is therefore entitled to his enlargement.

39 Tex. at 774 (bullet points added for clarity). In other words, the semicolon meant that the Legislature could not change the Constitutional mandate of four-day polls, and any election that lasted less than four days was invalid.

But Rodriguez’s release is not quite the end of the story. First, the three judges of that court (Moses B. Walker, Wesley B. Ogden, and John D. McAdoo) collectively came to be called the “Semicolon Court.” Its opinions are generally not considered binding authority on other Texas courts. Second, the case report ends with a note from the reporters:

To the historian, rather than the law reporter, belongs the duty of perpetuating the memory of the events connected with the installment of the State officers chosen at the general election pronounced illegal by this opinion. Those who are not familiar with what followed will find it faithfully detailed in “a lengthy note to Pasehal’s Digest of the Laws of Texas. (Edition of 1874, Vol. 2, page 1398e et seq.) The note contains the dispatches between the President, Attorney-General of the United States, and ex-Governor Davis, in regard to the application made by the latter for military assistance to prevent Governor Coke from occupying the executive office.
We may properly say, that the question before the court in [Ex] Parte Rodriguez received its final practical solution as a political and not a judicial question.

39 Tex. at 776 (reporters’ note).

The sitting governor, Republican Edmund J. Davis, had lost the election of December 2, 1873, to Democrat Richard Coke by something like a 2-to-1 margin. But, following the decision, Davis physically refused to leave office. Coke and the Democrats got the keys to the Capitol and took possession anyway. Davis called in the Travis Rifles (sort of a local militia) to help keep him in office, but they aligned with themselves with Coke. Davis then called on President Grant to send in federal troops, but he too declined. Davis found himself on the bad end of Andrew Jackson’s warning — “John Marshall has made his decision; now let him enforce it!” When Davis realized he couldn’t enforce the Semicolon Court’s judgment, he left the office, locked the door on his way out, and took the keys. Coke was inaugurated as governor the next day, and his first act of office was literally to break down the door with an axe.

After Davis, there wouldn’t be another Republican in the governor’s mansion for 105 years.

Scheming to Hide the Kids

The Story

Trisha and Craig were married in 2004. They divorced in 2008 with two young kids, both under 3 years old. Their divorce decree contained a standard possession order modified to address visitation before the kids’ third birthdays. Apparently, Trisha was “stingy” with visitation during the first year and eventually orchestrated a “scheme” to deprive Craig of visitation by coaching her kids to make unfounded accusations of sexual assault. SCOTEX, 556 S.W.3d at 297-99. “DFPS ultimately ruled out all sexual-abuse allegations,” and no charges were filed. SCOTEX, 556 S.W.3d at 298. But Trisha still refused to let Craig see the kids. On August 31, 2011, the trial court “held [Trisha] in contempt and imposed jail time for violating the standard possession order.” SCOTEX, 556 S.W.3d at 298. But, according to Craig’s attorney: “I walked out of this courtroom and I had not touched the button to go down the elevator when I was approached by the other lawyer saying, ‘We’ll sign a parental termination immediately’.” COA, 492 S.W.3d at 374 n.11. The trial court stayed the contempt order to allow time for Trisha to reconsider, but ultimately terminated her parental rights. SCOTEX, 556 S.W.3d at 298-99.

But that’s not the end of the story. Throughout this ordeal, Trisha’s parents had tried to help her with the kids. In fact, the first battle was fought when Trisha asked her mother to take the kids to a birthday party even though it was Craig’s turn to have them. SCOTEX, 556 S.W.3d at 297. Things got really bad really fast. DFPS (more commonly known as “CPS”) got involved, and Trisha’s parents agreed to stay with her and supervise her contact with the children as part of DFPS’s safety plan. But, according to the Supreme Court, they

quickly found their monitoring duties burdensome, and Grandfather began pressuring DFPS for a resolution. At one point, at his wit’s end with the situation, Grandfather told DFPS that (1) Mother was a “perfect” mother; (2) Father was a nut with poor parenting skills; and (3) Father used to abuse his daughters and would brainwash them.
SCOTEX, 556 S.W.3d at 298.

Craig was upset about his in-laws’ actions. After Trisha voluntarily terminated her rights, Craig sued his former in-laws under Chapter 42 of the Family Code for aiding and assisting her in blocking his visitation.

The Law

Chapter 42 of the Family Code says that a “person who takes or retains possession of a child or who conceals the whereabouts of a child in violation of a possessory right of another person may be liable for damages to that person.” Tex. Fam. Code § 42.002(a). The available damages include the actual costs and expenses incurred locating the child, recovering possession, and enforcing the possession order, as well as any mental anguish damages. Exemplary damages are available if the interfering person “acted with malice or with an intent to cause harm to the plaintiff.” Tex. Fam. Code § 42.006. And anybody who “aids or assists” the interfering person “is jointly and severally liable” with them if they either (1) had actual notice of the existence and contents of the possession order, or (2) had reasonable cause to believe that an order existed and that their actions “were likely to violate that order.” Tex. Fam. Code § 42.003(a).

The Supreme Court rendered judgment in favor of Trisha’s parents for two main reasons. First:

Chapter 42 does not cover mere schemes. Section 42.003 allows liability for assisting “in conduct for which a cause of action is authorized by this chapter,” and a cause of action is authorized for actually “tak[ing] or retain[ing]” possession of a child or “conceal[ing]” the child’s whereabouts, not for planning to do so.
SCOTEX, 556 S.W.3d at 301.

In other words, Trisha’s schemes weren’t enough, and merely taking sides is not enough. Chapter 42 requires specific action to prevent visitation.

Second, Craig proved “only one specific violation of the standard possession order—the two-hour birthday-party weekend.” SCOTEX, 556 S.W.3d at 301. But he did not prove that his former in-laws actually knew that it was his weekend or that they knew that their actions “were likely to violate” the order. SCOTEX, 556 S.W.3d at 301. He did not prove that they knew what the terms of the visitation order were (i.e., that it was his weekend). And, because the parties had done visitation by agreement for most of the time post-divorce and because of the onset of the DFPS investigation, Trisha’s parents may or may not have known that it was Craig’s weekend and that they should not have kept the kids that weekend.

Without proof of a specific, knowing violation of the possession order, Craig’s claim under Chapter 42 failed.

Jeremy M. Masten

Attorney and Counselor at Law