Opinion issued June 5, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-09-00386-CV
____________
IN RE DALE CORDER, Relator
Orignal Proceeding on Petition for Writ of Habeas Corpus
MEMORANDUM OPINION
Relator, Dale Corder, requests habeas corpus relief from the civil-coercive- contempt portion of the trial court’s August 19, 2008 contempt order. We dismiss the petition for want of jurisdiction because it is premature.On August 19, 2008, the trial court rejected relator’s inability-to-pay defense and found relator in contempt for not having paid 21 child support payments as they became due. It sentenced realtor to 180 days’ punitive-contempt confinement in the Harris County Jail for each of the 21 missed payments, but ordered the sentences to be served concurrently. The trial court qualified the criminal contempt sentence by stating that the sentence was “for a period of 180 days of criminal contempt, with said sentences to run concurrently from day to day (namely from the date this Order is signed until February 13, 2009 unless the Sheriff of Harris County, Texas, gives this court written notice that Respondent/Obligor is entitled to good time credit).” The trial court further ordered that after relator had served the 180 days of punitive-contempt confinement, that as a civil-coercive measure, relator remain confined from day to day until he paid a child support arrearage of $19,851.73, plus post-judgment interest; $7,735.35 in attorney’s fees, plus post-judgment interest; and $83 in costs to the District Clerk. The sheriff took relator into custody on August 20, 2008.
After having rejected his initial request for habeas corpus relief, on February 3, 2009, this Court ordered relator released on bond until it determined relator’s second amended petition for habeas corpus relief. On February 4, 2009, relator posted bond to be released from the Harris County jail, but authorities from Brazoria County took him from the Harris County jail and incarcerated him in the Brazoria County jail, pending charges on criminal offenses alleged to have been committed in that county, unrelated to any failure to pay child support.
On April 10, 2009, this Court issued its opinion on relator’s second amended petition for habeas corpus relief. We held that the portion of relator’s second amended petition for habeas corpus relief that dealt with the punitive-contempt- confinement portion of the trial court’s August 19, 2008 contempt order was not meritorious. In re Corder, No. 01-09-00004-CV, 2009 Tex. App. LEXIS 2652, at *5–10 (Tex. App.—Houston [1st Dist.] April 10, 2009, orig. proceeding). We also held that the portion of relator’s second amended petition that dealt with the coercive- contempt confinement of the trial court’s August 19, 2008 contempt order was not ripe for consideration. Id. at *10. We issued an order remanding relator to the custody of the sheriff of Harris County to serve the balance of the punitive-contempt confinement sentence. Id. Relator filed a motion for rehearing, explaining that he was in the Brazoria County jail, pending charges for criminal offenses that the State alleged that he had committed. He requested that we credit the time that he had spent in the Brazoria County jail against the remainder of his punitive-contempt confinement. We overruled relator’s motion for rehearing. We did not grant his request to credit his time served in the Brazoria County jail to his punitive-contempt confinement sentence to the Harris County jail.
Before we had ruled on relator’s motion for rehearing on his second amended habeas petition (which our April 10, 2009 opinion disposed of), relator filed a currently pending motion, requesting that this Court accept a “Possibly Prematurely Filed 2nd Petition for Habeas Corpus.” The first ground for the motion was based on the premise that we would grant his motion for rehearing and grant his request that his time served in the Brazoria County jail be credited against the time that he would have to serve on remand to the Harris County jail to complete the balance of his punitive-contempt confinement, as we ordered on April 10, 2009. Relator reasoned that this would make ripe his second petition for habeas corpus relief, which challenges the validity of the civil-coercive portion of the trial court’s August 19, 2008 contempt order. Inasmuch as we did not grant relator’s time-served request, relator’s first ground is now moot.
The second ground for relator’s motion to accept a prematurely filed petition for habeas corpus is that if we consider his second petition for habeas corpus relief to be premature, based on an adverse ruling by us on his time-served request, we should consider his second petition as timely filed for consideration when he begins to serve his civil commitment on the expiration of the punitive-contempt portion of the trial court’s August 19, 2008 contempt order. This would necessitate holding relator’s second petition for habeas corpus relief on our docket for an indefinite period of time. We do not know if or when relator is set for trial on the criminal offense charges in Brazoria County or whether he will be confined until the time of trial or will post bail. If he is convicted of one or both of those charges, we do not know how long relator would have to serve to satisfy the criminal sentence(s) assessed. In not an identical, but a similar situation, a sister court of appeals has held that there is nothing in the Rules of Appellate Procedure providing that a jurisdiction invoking document can be filed in anticipation of an appellate proceeding that may be sometime in the indefinite future. See Ganesan v. Reeves, 236 S.W.3d 816, 817 (Tex. App.—Waco 2007, pet. denied) (holding that Texas Rule of Appellate Procedure 27.1 does not require the court of appeals to docket and hold an appeal open until there is an appealable judgment or order at some future date).
We deny relator’s motion requesting the court to accept a possibly prematurely filed second petition for habeas corpus relief. We dismiss as moot relator’s motion requesting the Court to take notice of the record filed in relator’s first petition for habeas corpus relief. We dismiss as premature relator’s second petition for habeas corpus relief, without prejudice to his refiling such a petition when circumstances render it ripe for consideration.
Tim Taft
Justice
Panel consists of Justices Bland, Sharp, and Taft.