Criminal Non Support

No person shall ever be imprisoned for debt.

Article 1, Section 18, Texas Constitution.

Besides criminal defense I also take a limited number of family law cases. Most Texans understand that if you fail to pay child support the court can find the debtor/obligor in contempt, and jail that person for up to 6 months. I have prosecuted and defended civil child support cases where the defendant was sent to jail for non payment. There are so many of these cases that Attorney General child support court (IV-D) often has as many inmates on the jail chain as a misdemeanor or felony docket.

The ability to seek incarceration of the obligor is (not surpisingly) a powerful advantange in litigation. “Oh, you can’t pay your arrearage, fine, we’ll ask the judge to put you in jail.” Such a line leaves little room for negotiation.

Hint to obligors- Don’t proceed pro se on civil or criminal non support cases.

Section 18 seems to be an expicit prohibition on incarcerating debtors. We certainly don’t want credit card companies et al to have this power. How could the lege enact a law to imprison those who fail to pay support?

This is low hanging fruit for pols. These debtor/defendants are one of the most politically unpopular groups this side of sex offenders and murderers- the Deadbeat Dad. Our lege was going to get this money and incarcerate these debtors. To that end they carefully crafted the statute to survive constitutional challenges (see Lowry v. State, No. 627-84, COURT OF CRIMINAL APPEALS OF TEXAS, 692 S.W.2d 86).

Further, our appellate courts came through with some logical gymnastics to explain that child support isn’t really a debt, so we aren’t really jailing debtors. Instead, we are jailing debtors for contempt/disobedience of a court order. Ohhh.

Here is an example from a 1992 case, Lyons vs State, 825 SW2d 715.

Imprisonment assessed as punishment for the violation of a statute or court order is not imprisonment for debt, even if the statute or court order has the effect of requiring a payment of money. TEX. CONST. art. I, § 18 commentary, citing Ex parte Robertson, 27 Tex. Civ. App. 628, 11 S.W. 669 (1889); Dixon v. State, 2 Tex. 481 (1847); see also Freeland v. Freeland, 313 S.W.2d 943 (Tex. Civ. App.-Dallas 1958, no writ), holding that a child support order does not create a debt within TEX. CONST. art. I, § 18.

So what’s the law on criminal non support? Let’s look at the Texas Penal Cdoe 25.05-

25.05. CRIMINAL NONSUPPORT. (a) An individual commits
an offense if the individual intentionally or knowingly fails to
provide support for the individual’s child younger than 18 years of
age, or for the individual’s child who is the subject of a court
order requiring the individual to support the child.
(b) For purposes of this section, “child” includes a child
born out of wedlock whose paternity has either been acknowledged by
the actor or has been established in a civil suit under the Family
Code or the law of another state.
(c) Under this section, a conviction may be had on the
uncorroborated testimony of a party to the offense.
(d) It is an affirmative defense to prosecution under this
section that the actor could not provide support for the actor’s
child.
(e) The pendency of a prosecution under this section does
not affect the power of a court to enter an order for child support
under the Family Code.
(f) An offense under this section is a state jail felony.

The affirmative defense isn’t as helpful as you would think. An affirmative defese shitfs the burden of proof (initially) to the defendant to establish inability to pay, then the State has to rebut. Debtors must show that at the time the State alleges they didn’t pay, they couldn’t.

Sounds easy right? Just show up with your tax returns and bills and make your case. Not so fast. Some debtors work in construction or other industries in which it is common to pay cash or have employees set up as independent contractors. Such jobs tend to skew towards the lower end of the pay scale and eschew the formalities otherwise associated with employment. Therefore, many debtors don’t have the documentation necessary to raise such a defense.

What happens when defendants are without evidence to support an affirmative defense and charged with a felony? In general, these debtors become what we call probationers, or inmates.