Hey Texas! Free Josh Jaros!!!

Source: Joshua Jaros-Facebook

Kenya N. Rahmaan

On the 26th of September 2019, trial judge Patrice McDonald, on behalf of the County Court of Law No. 3 of Montgomery County, Texas sentenced father and parental equality advocate, Mr. Joshua L. Jaros, to six months of incarceration. He was charged with contempt of court for allegedly violating a child support order.  Although Judge McDonald lists several rights that should have been afforded to Mr. Jaros during the trial, including his right to remain silent during the trial, his right to refuse to testify, and, according to Justia US Law (2019), since the case was a quasi [-] criminal case, his right to counsel.  On the trial date, Mr. Jaros appeared in court as a pro se litigant, but he was told that Montgomery County would only appoint him an attorney if he could prove himself as indigent.

Judge McDonald should have offered Mr. Jaros a hearing, or other safeguards, to determine his ability to pay prior to the order of incarceration.  However illegal and unconstitutional, the judge refused to consider that pertinent information and ordered Mr. Jaros to lock-up anyway. The judge did solicit financial information in reference to Mr. Jaros’ ability to afford counsel, however, in a quick ruling, she denied his indigency plea.  Based on the court documents found on Justia US Law (2019), McDonald found that, “you (Jaros) do not meet the criteria of indigency to receive court appointed counsel [.]”. But even at this point in the trial, there is no mention of his financial status as it relates to his ability to pay and possibly avoid incarceration.

Mr Jaros, in his defense, cited several due process violations concerning his arrest and being held in contempt of court for failure to pay the child support debt  According to Texas Supreme Court (2020) these violations include that:

  1. the contempt order does not state that he was advised of his rights, including the right to a court appointed attorney if he were found indigent,
  2. the trial court incorrectly denied his request for an appointed attorney,
  3. the trial court failed to follow the guidelines and rules set forth by the Supreme Court of Texas when determining his ability “to afford costs [ ]” and in “determining indigence”,
  4. the trial court was required to take all allegations in his affidavit of indigency as true,
  5. the order is “void for vagueness and violates due process” because one portion of the order  requires him to pay $150 per month toward arrears, but another portion of the order requires “a different amount of $282”,
  6. the trial court violated his constitutional rights “by rejecting or not properly examining” his affirmative defense of inability to pay,
  7. the trial court allegedly violated his Fifth Amendment right not to testify,
  8. the trial court did not allow evidence to be presented and did not adequately consider “facts and evidence that [Jaros] was able to present regarding his inability to pay as an affirmative defense and also his actual support” of the children,  and 
  9. the “massive budget shortfalls[]” faced by Montgomery County Courts resulted in the trial court not having funds to appoint an attorney for him.

While all points of argument are most certainly valid and strong defenses that should have reversed the illegal incarceration of Mr. Jaros, on February 7th of this year, the Texas Supreme Court denied his Application for Writ of Habeas Corpus, again.  For all of us non-attorneys, this means that the state of Texas refuses to “produce the body” or deliver an imprisoned individual to the court and show valid reason for that person’s detention, (FindLaw). Not only should the representatives of the state of Texas release Mr. Jaros based on the reasons that he has outlined in his application, he should be released explicitly based on #6 and #8 of his arguments which prove the violations to his right to due process.  There are key elements that should have been considered prior to the trial judge sentencing Mr. Jaros to jail.

Judge McDonald, based on her own admission, did not offer or attempt to  examine Mr. Jaros’ ability to pay the child support debt, which had, allegedly, reached almost $20,000 on the day of the trial or prior to sentencing him to jail.  This refusal to examine Mr. Jaros’ ability to pay directly violates his right to due process. In reference to his right to counsel, the Supreme Court of the United States (SCOTUS) made clear in the case of Turner vs. Rogers and according to the Federal Office of Child Support Enforcement (OCSE) (2012) that:

the state does not necessarily need to provide counsel to an unrepresented noncustodial parent if the state has “in place alternative procedures to assure a fundamentally fair determination of the critical incarceration related question, whether the supporting parent is able to comply with the court order.”

While Judge McDonald did offer Mr. Jaros a form to complete in order to determine indigency status as it applied to his ability to retain a private attorney, she either refused to or ignored the mandate ordered by the SCOTUS to offer him the opportunity to provide specific evidence concerning his ability to comply with the child support order.  Therefore, his right to due process has been and continues to be violated every day that Mr. Jaros remains behind bars. He is being held in a debtor prison and the use of this form of punishment has been outlawed for hundreds of years. There are four specific procedures that the SCOTUS outlines in their ruling that states should use as guidelines prior to convicting and incarceration a non-custodial parent for contempt of court.

The four procedures that the SCOTUS considers ‘adequate substitute safeguards’ and should be available to defendants when they are unrepresented by legal counsel in all child support cases are that the tribunal should:

  • Provide notice to the noncustodial parent that “ability to pay” is a critical issue in the contempt proceeding;
  • Provide a form (or the equivalent) that can be used to elicit relevant financial information;
  • Provide an opportunity at the contempt hearing for the noncustodial parent to respond to statements and questions about his/her financial status (e.g., those triggered by his/her responses on the form declaring financial assets); and
  • Requires an express finding by the court that the noncustodial parent has the ability to pay based upon the individual facts of the case, (OCSE).

While financial information was solicited from the judge in the Jaros case, the information was used only to determine if he was eligible to a court appointed lawyer at no charge to him.  There was never any consideration to his ability to pay the purge amount and thus he was unable to pay for the keys to the jail door and to gain his freedom. These are two extremely different issues and both deserved equal and thorough attention by both the ruling judge and the Texas Attorney General’s Office of Attorney prior to a contempt charge being ordered and an arrest warrant being issued.

Although the SCOTUS has left states with certain freedoms in how they prosecute civil contempt cases, the SCOTUS was unequivacable on a few key points when delivering its decision in Turner.  According to the OCSE, states should consider whether the procedures employed in the states’ contempt practices are 1) fundamentally fair and 2) whether additional procedural safeguards should be implemented to reduce the risk of erroneous decision making with respect to the key question in the contempt proceeding, the noncustodial parent’s ability to pay.  While there is straightforward evidence that McDonald used the financial affidavit in regards to whether an attorney should be assigned to the defendant, she did not use that information to determine ability to pay. This decision was an unequivocal violation of Jaros’ right to due process.

In all child support cases and before enforcement tactics can be executed, the accuser is supposed to prove that the obligor is willful in their failure to comply with the child support order.  Texas is no different in this regulation. The State of Texas has a statute found in Section 25.05 of Title 6 of the Penal Code which states that criminal nonsupport occurs when an individual intentionally or knowingly fails to provide support for the individual’s child younger than 18 years ago or for the individual’s child who is subject of a court order requiring the individual to support the child.  The court convicted Mr. Jaros of contempt of court because he was not paying the ordered amount through the state. The judge did not inquire into whether or not Mr. Jaros was providing any type of financial support outside of the court order.

By his own admission, this father could not afford the full amount of monthly child support or arrears payments, but the judge refused to exhaustively examine his financial status prior to incarceration. Contrary to popular belief, money used to support children is still child support, even if it does not pass-through the hands of the state. Furthermore, the form offered by Judge McDonald, although considered sufficient in determining whether Mr. Jaros qualified for a court appointed lawyer, was absent other critical questions required when attempting to to jail a noncustodial parent on a contempt of court charge for willfully failing to pay child support. 

Specifically and according to the OCSE, 

“court officials are accustomed to soliciting information on financial status for purposes of determining whether a party is eligible for court fees to be waived or for appointed counsel, but this inquiry may not be extensive or appropriately tailored to assist the court in determining whether the obligor willfully failed to pay the underlying support order and the obligor’s ability to pay the purge amount.”

This further proves that Judge Montgomery violated Mr. Jaros’ right to due process which means that he should be released immediately.

Another issue with the denial of Mr. Jaros’ Application for Writ of Habeas Corpus is that Judge McDonald supported the Texas Attorney General’s Office in the claim that Mr. Jaro was not indigent based on his possible ability to borrow money from his parents in order to retain legal counsel.  Again, the indigency affidavit may be suitable in determining the ability to pay for a private attorney, (suitability is based on who you ask) the form is insufficient when determining willful contempt of court and ability to pay a purge amount. Based on Turner, the ability to pay determination is based on the individual’s income and assets, and not based on if the person can borrow money from friends and family.  According to OCSE, a determination that the noncustodial parent has the actual and present ability to pay or otherwise comply with the court order should be based upon the individual case before the court.

Source: Emory News-Emory University

Child support orders are not based upon, nor should they ever be, resources and capital owned by family members.  Likewise, those resources should never be considered in contempt of court cases. The proceedings are supposed to be based on the parent’s income, although most child support orders do not consider the custodial parent’s income when deciding child support amounts.  In Mr. Jaros’ case, the documents cite that because his parents had previously loaned their son $100,000 that he should have, therefore been able to borrow more money in order to pay for a lawyer.

It should never be an assumption of child support caseworkers, a judge, or the attorney general’s office, etc., that someone should not be considered indigent ‘for purposes of appointed counsel because he had means by which to retain counsel namely money borrowed from his own parents,’ (TX.Courts.gov). With the court ‘inferring’ that his parents “could” loan him more money is not based on Mr. Jaros’ actual financial status as provided in the financial affidavit nor is it based on his parents’ employing their son so that their resources someone meant direct income for him.  Repeatedly, the officials of Montgomery County, Texas have violated Mr. Jaros’ right to due process by refusing to offer him a hearing (and/or other safeguards) to determine HIS ability to buy his freedom. His parents were not on trial and therefore, their financial status should never have been considered for paying an attorney or for anything else related to the contempt charges.

Lastly, and excluding the child support factors, the use of an abolished debtor prison punishment system must be addressed.  Debtor prisons, as defined by Eli Hager (2015) is any prison, jail, or any other detention facility in which people are incarcerated for their inability, refusal, or failure to pay a debt.  In Mr. Jaros’ case, inability to pay has resulted in his detention in a Texas jail for 180 days. Although deemed unconstitutional by the SCOTUS, Texas along with forty-two other U.S. jurisdiction, have statutes outlawing/banning the use of debtor prisons. (Debtor Prison Statutes: bit.ly/2tKwjfm).  Article 1 of the Texas Constitution (Section 18) states that no person shall ever be imprisoned for debt. And yet, almost every state and jurisdiction violates their statutes and continues to incarcerate low-income and poor parents/persons when they simply cannot afford to pay. the debt.

Based on the Texas statute, Mr. Jaros is being illegally detained in an unconstitutional debtor prison.  Since most states have already added the ban of the use of debtor prisons to their statutes, it is time to force states to honor the existing statutes.  Additionally, the moment is upon the country to amend these existing statutes to include the words that ‘no person shall be imprisoned for owing a child support debt that he/she cannot afford to pay. These changes should start immediately with Mr. Jaros’ case in the Lone Star State.  In order to accomplish this tremendous (although it’s already the law) task, legislation must be introduced to add this provision because we will continue to witness the illegal arrests and unconstitutional use of debtor prisons as is the case with Mr. Jaros and many others.

Debtor prisons are alive and well, not only in Texas, but all over the country as we routinely see police officers conduct child support ‘sweeps’ arresting any parent that they can locate with a child support warrant.  The endless number of news articles rarely, if ever, mention any information about those arrested being granted hearings to determine ability to pay. In an effort to change the guidelines in Texas and force the state to honor the SCOTUS decision in Turner v Rogers, The Reform Child Support NOW! Movement will continue to lobby state legislators in Austin, Texas in an effort to introduce and pass our bill that will amend the Texas Constitution. The amendments will include the abolition of incarceration for indigent citizens and parents allegedly owing a debt, including child support debt, (Texas Bill: http://bit.ly/39pVpPX). 

It is difficult to believe that in 2020, We the People, are still fighting for justice against a system that was abolished hundreds of years ago.  We, as a Movement and as a Nation, must join together in this fight to restore the right to process and to re-abolish the use of debtor prisons. It should never be a crime to be poor and we should never be held in bondage because of our financial status.  Keep Fighting! #FREEJOSHJAROS

References: FindLaw. (2019, February 1). Writ of habeas corpus. Retrieved from https://criminal.findlaw.com/criminal-procedure/writ-of-habeas-corpus.html

Hager, E. (2015, February 23). Debtors’ prisons, then and now: FAQ. Retrieved from https://www.justice.gov/usao-sdal/page/file/918356/download

Joshua Jaros: Fighting for the children of Texas [Video]. (2019, October 3). Retrieved from https://www.youtube.com/watch?v=pzbPjpoq1Wk&fbclid=IwAR1NK-4bvMtt-rBaSVPL_Kc8ICx5dgEcvaSmBZDrmEn_tflzZHN3BDi9lKQ

Justia US Law. (2019). In re Joshua Leroy Jaros appeal from county court at law no 3 of montgomery county (memorandum opinion per curiam). Retrieved February 8, 2020, from https://law.justia.com/cases/texas/ninth-court-of-appeals/2019/09-19-00355-cv.html

Office of Child Support Enforcement. (2012, June 18). Turner v. Rogers guidance. Retrieved from https://www.acf.hhs.gov/css/resource/turner-v-rogers-guidance

The Supreme Court of Texas. (2020, 30). Applicant’s response to state’s response, and emergency temporary relief requested. Retrieved from https://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=32a3ba2e-9700-4f29-9845-99d313e23c20&coa=cossup&DT=BRIEFS&MediaID=edfd9556-4574-4e07-ac1a-5d72f404959b

The Supreme Court of Texas. (n.d.). Response of real party in interest the office of the attorney general of Texas to relator=S petition for writ of habeas corpus. Retrieved from www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=0b372a88-9648-455f-bbc7-8d1358266352&coa=cossup&DT=BRIEFS&MediaID=e781fc4c-5d54-45cd-a63f-006b805bb264

The Texas constitution article 1. Bill of rights of rights. (1985). Retrieved from The State of Texas website: https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm