Opinion
No. 10-07-00278-CV
Opinion delivered and filed October 4, 2007.
Appeal from the 21st District Court, Burleson County, Texas, Trial Court No. 24,146.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Douglas Val Stephens was held in contempt and ordered confined at a future date for failure to pay child support and medical support. He filed a petition for writ of habeas corpus with this Court. On our own motion, we granted a stay in all proceedings in the trial court.
This court has jurisdiction to issue a writ of habeas corpus when it appears there is some restraint of liberty by virtue of an order, process, or commitment issued by a court or judge because of the violation of an order, judgment, or decree previously made, rendered, or entered by the court or judge in a civil case. TEX. GOV'T CODE ANN. 22.221(d) (Vernon 2004). The function of a writ of habeas corpus is to secure release from unlawful custody. In re Pierre, 50 S.W.3d 554, 558 (Tex.App.-El Paso 2001, orig. proceeding). Thus, it must be shown that the contemnor has undergone a restraint of liberty. Id.; Ex parte Crawford, 506 S.W.2d 920, 921 (Tex.Civ.App. — Tyler 1974, orig. proceeding). Habeas corpus relief is not available where there is no restraint. Rosser v. Squier, 902 S.W.2d 962 (Tex. 1995); Ex parte Williams, 690 S.W.2d 243, 244 (Tex. 1985). It is not required that the applicant for a writ of habeas corpus be actually confined in a jail. Williams, 690 S.W.2d at 244. Any character of restraint which precludes absolute and perfect freedom of action will justify the issuance of the writ. Id.
Although actual confinement is the typical restraint of liberty, courts have extended the meaning of the term "restraint of liberty" beyond actual imprisonment. In re Ragland, 973 S.W.2d 769, 771 (Tex.App.-Tyler 1998, orig. proceeding). The Texas Supreme Court has held that when a contemnor is sentenced to jail and released on bond pending review by habeas corpus, there is sufficient restraint of liberty to justify issuance of the writ of habeas corpus. Williams, 690 S.W.2d at 244; Ragland, 973 S.W.2d at 771. The rationale is that imprisonment is not merely a speculative possibility where the unfolding of events may render the controversy moot. Id. Courts have also extended the meaning of restraint to include probation. Ragland, 973 S.W.2d at 771. In most of these cases, however, the terms of probation include some type of tangible restraint of liberty. See, e.g., Ex parte Brister, 801 S.W.2d 833, 834-35 (Tex. 1990); Ex parte Duncan, 796 S.W.2d 562, 564 (Tex.App.-Houston [1st Dist.] 1990, orig. proceeding). Although the Tyler Court has held that a probated contempt sentence which merely required the relator to pay child support and attorney fee arrearages, comply with the terms of Temporary Orders, and pay related attorney fees and court costs did not constitute sufficient restraint to entitle him to habeas corpus relief, Ex parte Hughey, 932 S.W.2d 308 (Tex.App.-Tyler 1996, orig. proceeding), it has held that the requirement of weekly community service over the course of a year constitutes a restraint on one's liberty entitling one to pursue relief by petition for writ of habeas corpus. Ragland, 973 S.W.2d at 771.
In this case, Stephens was held in contempt for failure to pay child support and failure to pay medical support. This contempt order was part of an associate judge's report which was signed on May 9, 2007. The associate judge also ordered the sheriff of Burleson County to arrest Stephens and commit him to jail for 180 days for each act of contempt, to run concurrently. Stephens was also ordered to appear before the court at 9:00 a.m. on September 12, 2007 to begin the commitment. The associate judge recommended that the proposed order be adopted as the judgment of the court. It was adopted on June 4, 2007, but Stephens had filed a notice of appeal of the associate judge's report on May 11, 2007. A demand for a jury trial was filed on May 23, 2007. A trial is set for October 9, 2007, with a pretrial conference to have been held on September 24, 2007. The trial court also ordered the parties to mediation to occur before the pretrial conference.
Stephens is not now incarcerated. And because he filed a notice of appeal to the associate judge's determination that he should be held in contempt and committed to jail for 180 days on each act of contempt, and the new trial is set for October 9, 2007, we do not have any reason to believe that he will be incarcerated before his new trial. See TEX. FAM. CODE ANN. § 201.015 (Vernon 2002). Under these facts, we hold Stephens is not confined, and we have no jurisdiction to issue a writ.
Therefore, Stephens' petition for writ of habeas corpus is dismissed. This Court's ordered stay is lifted.