COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00232-CV
IN RE S.W.
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ORIGINAL PROCEEDING
TRIAL COURT NO. 233-305590-00
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MEMORANDUM OPINION1
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Relator S.W. filed a petition for writ of habeas corpus, and through seven
issues, challenged the validity of her commitment to jail after the trial court found
her in contempt for violating the terms of a modified divorce decree. We ordered
S.W. discharged upon the posting of bond pending a final determination of her
petition in this case. See Tex. R. App. P. 52.8(b)(3). Because no order of
commitment exists, we grant S.W.’s petition for writ of habeas corpus.
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See Tex. R. App. P. 47.4, 52.8(d).
A writ of habeas corpus will issue if the trial court’s contempt order is void,
either because it is beyond the trial court’s power or because the relator has not
been afforded due process. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (orig.
proceeding); In re Zapata, 129 S.W.3d 775, 776–77, 780 (Tex. App.—Fort Worth
2004, orig. proceeding). Both a written judgment of contempt and a written order
of commitment are required by due process to imprison a person for constructive
contempt. Ex parte Hernandez, 827 S.W.2d 858, 858 (Tex. 1992) (orig.
proceeding); Ex parte Wilson, 797 S.W.2d 6, 7 (Tex. 1990) (orig. proceeding)
(holding that it is well settled that to satisfy due process requirements, a valid
commitment order is essential).
A commitment order is the warrant, process, or order by which a court
directs a ministerial officer to take custody of a person. Hernandez, 827 S.W.2d
at 858. The order containing this directive need not take a particular form and
may be a separate order issued by the court, an attachment or order issued by
the clerk at the court’s direction, or included in the contempt judgment. Id. But
an order that lacks any directive to the sheriff to take a person into custody
cannot constitute a commitment order. Id. at 858–59 (holding that contempt
order was not commitment order because it contained no directive to the sheriff
and that, consequently, the relator was not validly confined); Zapata, 129 S.W.3d
at 780 (holding that the relator was illegally restrained because “[t]he trial court’s
order in this case does not contain any language whatsoever directing the sheriff
or any other appropriate person to take custody of [the r]elator, and no additional
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document was ever signed by the trial judge or issued by the court clerk that
contained the required directive.”).
Here, the trial court’s “Order Holding Respondent in Contempt and for
Commitment of Respondent” found S.W. in contempt for violating a modified
divorce decree in that she failed to make certain payments; sign up for required
family programs; notify the court of employment or name changes; adhere to
visitations as ordered in the decree; or changed her child’s class enrollment
without mutual consent. S.W. was ordered, in part, “confined in the county jail of
Tarrant County, Texas, for 180 days.” S.W. was confined pursuant to the trial
court’s order on the day that the order was signed—July 13, 2015. S.W. filed her
petition for writ of habeas corpus with this court on July 20, 2015, alleging that
she was illegally restrained because no commitment order had been signed.
As in Hernandez and Zapata, the trial court’s contempt order does not
direct the sheriff or other ministerial officer to take custody of S.W., and no other
document was signed by the trial court or issued by the court clerk containing the
required directive. See Hernandez, 827 S.W.2d at 858–59; Zapata, 129 S.W.3d
at 780. Because there is no commitment order, S.W. is being illegally restrained;
we grant her petition for writ of habeas corpus, we order her discharged
immediately from custody, and we order S.W. and any sureties discharged from
all obligations on S.W.’s bond. S.W.’s remaining issues are rendered moot or
have never been briefed.
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Moreover, in the interim between S.W. filing this habeas proceeding and
this court issuing this holding, Real Party in Interest filed “Real Party in Interest’s
Motion to Disqualify” arguing that this court should disqualify S.W.’s habeas
attorney. The attorney, however, withdrew and S.W. is now represented by
unchallenged counsel. Thus, Real Party in Interest’s motion is moot and we
dispose of it as such.
PER CURIAM
PANEL: MEIER, J.; LIVINGSTON, C.J.; and GARDNER, J.
DELIVERED: August 28, 2015
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