Published by JoyceMesias | June 3, 2021 | Firm News

Can I be put in Jail for not paying court-ordered attorney (or amicus) fees?

As the proverbial law school answer goes, it depends.

No Debtors Prison

In Texas, “No person shall ever be imprisoned for debt.” Tex. Const. Art. 1 § 18. You might wonder then how non-custodial can be put in jail for failure to pay child support. Simple, the obligation to support a child is viewed as a legal duty and not as a debt. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005). So, can an individual be legally locked up in Texas for not paying child support? Absolutely, and it happens all the time.

The general rule in a Suit Affecting Parent-Child Relationship (SAPCR)

OK, back to attorney fees. Generally, in a SAPCR, child support can only be collected as a debt. TFC 106.002(b). Modifications allow one extra method for collection of attorney fees if the modification is found to be filed frivolously. TFC section 156.005.

Fees awarded in enforcement actions

In an enforcement action, attorney fees which were incurred enforcing child support can be collected the same way child support can, 157.167(a). Additionally, any order in an enforcement matter which is necessary to ensure the child’s physical or emotional health or welfare can be enforced by any means available for the enforcement of child support, including contempt, but not including income withholding. 157.167(a).

Lastly, a court can order that amicus attorney, an attorney ad litem for the child, or a guardian ad litem for the child are necessaries for the benefit of the child. TFC 107.023(d). Thus if one of these appointments are made in an enforcement action the fees awarded can be enforced by any means available for the enforcement of child support, including contempt, but not including income withholding, under 157.167(a).