COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00407-CV
IN RE CARY JORGE RELATOR
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ORIGINAL PROCEEDING
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MEMORANDUM OPINION1
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Relator Cary Jorge filed a petition for writ of habeas corpus challenging the
validity of his commitment to jail after the trial court found him in contempt for
violating the terms of agreed temporary orders. We ordered Relator discharged
upon the posting of bond pending a final determination of his petition in this case.
1
See Tex. R. App. P. 47.4.
See Tex. R. App. P. 52.8(b)(3).2 Because no order of commitment exists, we
grant Relator’s petition for writ of habeas corpus.
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, 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 civil
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. (holding that contempt order was not
commitment order because it contained no directive to the sheriff and that,
2
We requested a response from Real Party in Interest Joleen Jorge, see
Tex. R. App. P. 52.8(b)(1), but none was filed.
2
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
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 on Respondent’s Second Amended Petition
for Enforcement” found Relator in contempt for violating agreed temporary orders
by failing to make certain payments required by the agreed temporary orders and
by intentionally, knowingly, or recklessly causing Real Party in Interest bodily
injury. Relator was ordered, in part, “committed to the county jail of Denton
County, Texas, for a period of forty-five (45) days for each separate violation.”
Relator was confined pursuant to the trial court’s order on the day that the order
was signed––September 28, 2012. Relator filed his petition for writ of habeas
corpus with this court on October 4, 2012, alleging that he was illegally restrained
because no commitment order had been signed.3 As in Hernandez and Zapata,
the trial court’s contempt order does not direct the sheriff or other ministerial
officer to take custody of Relator, 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
3
Prior to ordering Relator discharged upon the posting of bond pending our
final determination of his petition in this case, the clerk of our court by telephone
confirmed with the trial court that no commitment order had been signed.
3
is no commitment order, Relator is being illegally restrained; we grant his petition
for writ of habeas corpus, we order him immediately discharged from custody,
and we order Relator and any sureties discharged from all obligations on
Relator’s bond.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
DELIVERED: October 26, 2012
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