Here's the scenario:

1) Defendant is ordered to pay child support many years ago.
2) Defendant fails to pay.
3) 1998 - Defendant found in civil contempt, does minimal jail time and is released.
4) 2001 - Defendant still extremely delinquent on his payments.

Question: Does Defendant's 1998 jail time for civil contempt preclude a present-day criminal prosecution under 25.05? Does that jail time act as a bar of any kind, be it double jeopardy, collateral estoppel, or res judicata?

Background: I have a defense attorney throwing up every laches / jeopardy / bar argument against me in my case and the judge seems to be leaning towards buying into it. I think the arguments are bunk. Anyone had this experience before or faced similar claims?

Thanks, y'all.

The most likely defense under the facts you pose would be under 12.01(6), C.C.P. The contempt proceeding in 1998 was for a support obligation accruing more than 3 years ago. While neither the statute nor any cases clarify what the unit of prosecution for "fail to provide support" is, I don't think you can go back more than 3 years before the return of the indictment. Nor does what occurred more than 3 years ago provide any defense to the new criminal charge. There apparently has been no adjudication pertaining to the time period placed in question by the criminal indictment. See Johnson, 948 S.W.2d at 40. I note, however, that the cases speak of this offense as being a "continuing one" and have treated it as a single crime encompassing rather long time periods. In any event, it seems to me the prior adjudication was that the defendant failed to provide support and thus a res judicata argument favors the state. If he was in jeopardy with respect to the motion to enforce, I would still say he was not in jeopardy as to a future failure to provide support.

[This message was edited by Martin Peterson on 12-04-01 at .]

I think under the facts that you listed, a criminal prosecution would not be barred. There is a line of cases on a "dual sovereignty" theory stating that a private party obtaining a contempt order does not block a criminal prosecution for the same conduct (State v. Rhodes, 938 S.W.2d 192 and Ex Parte Jackson, 911 SW2d 230). Plus, under the facts as you have them, you could alleged multiple counts after the defendant was released from jail.

Hope this helps.

RSD

If I'm remembering correctly, there's a Texas case that sez there's no double jeopardy issue because the contempt order is for disrespect of the Court's order, whereas the non-support case is prosecuted for failure to pay itself -- two separate acts.