Petition for Writ of Habeas Corpus Granted and Opinion issued December
12, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00815-CV
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IN RE JAVIER LINAN, JR., Relator
Original Proceeding on Petition for Writ of Habeas Corpus
OPINION
Relator, Javier Linan, Jr., requests habeas corpus relief from a September 16,
2013 trial court “Order Revoking Suspension and for Commitment to County
Jail.”1 On September 27, 2013, after a preliminary review of relator’s petition for
writ of habeas corpus, we ordered relator released upon his posting of a bond in the
1
The underlying case is In the Interest of J.L., III, a child, cause number 2009-
13030, pending in the 247th District Court of Harris County, Texas, the Honorable
Bonnie Crane Hellums presiding.
amount of $1000.00, pending a final determination of his petition. Because we
conclude that relator is entitled to relief, we grant his petition for writ of habeas
corpus, order relator released from the bond set by this Court on September 27,
2013, and order him discharged from custody.
Background
On September 22, 2009, an Order in Suit Affecting the Parent-Child
Relationship was signed by the 247th District Court of Harris County, Texas.
Pursuant to this order, inter alia, relator was ordered to pay child support in the
amount of $338.35 per month to real party in interest, Yanidd Bianca Alvarado.
Relator was also ordered to pay $116.69 every month as additional child support
for health insurance reimbursement.
On April 26, 2013, real party in interest filed a Motion for Enforcement of
Child Support Order against relator. The motion alleged that relator failed to pay
or only partially paid the court-ordered child support and medical reimbursement
for the months of December 2012 through March 2013. The motion requested 180
days jail for each violation, to run concurrently, community supervision for 10
years, judgment on arrears, and attorney’s fees.
On July 2, 2013, relator appeared for a hearing before an associate judge on
the motion for enforcement. At the hearing, relator waived his right to counsel. At
the conclusion of the hearing, relator was found in contempt for failure to make
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child support payments and failure to make medical reimbursement payments for
the months of December 2012 through April 2013. On July 12, 2013, the associate
judge signed an order granting a judgment for child support arrearages and medical
support arrearages and sentencing relator to 180 days in Harris County jail for each
violation, to run concurrently. The associate judge’s order also specified that
relator not be given good conduct time credit for the time spent in jail. Finally, the
order suspended relator’s jail sentence. The terms and conditions for suspended
commitment included paying $50.00 per month towards relator’s child support
arrears, $25.00 per month towards relator’s medical reimbursement arrears,
$700.00 in attorney’s fees, and continued payment of all child support as ordered
by the associate judge. Compliance hearings were set for September 12, 2013 and
December 18, 2013. The record does not reflect that the July 12, 2013 order was
adopted by the referring court. See TEX. FAM. CODE ANN. § 201.007(a)(13) (West
2008) (associate judge’s authority to “order the detention of a witness or party
found guilty of contempt” is limited by the required approval of the referring
court); id. § 201.013(b) (“[T]he proposed order or judgment of the associate judge
becomes the order or judgment of the referring court only on the referring court’s
signing the proposed order or judgment.”).
On September 12, 2013, relator appeared at his compliance hearing. At the
conclusion of the hearing, the presiding judge—a retired district judge apparently
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sitting by assignment—found that relator had not complied with the terms of the
July 12, 2013 order, revoked relator’s suspension, and orally pronounced, “I
reinstate the sentence of . . . 180 days for each contempt violation, as set out in the
judgment of July the 12th, 2013.” The judge then remanded relator to the custody
of the sheriff to be kept in jail until the terms of his sentence were complete or until
relator was brought back to court for further findings. On September 16, 2013, the
trial court signed the Order Revoking Suspension and for Commitment to County
Jail.
On September 26, 2013, relator filed his petition for writ of habeas corpus
with this Court. Subsequently, we ordered relator released upon his posting of a
bond, pending full submission of the matter.
Standard of Review
The purpose of a habeas corpus proceeding is not to determine the ultimate
guilt or innocence of the relator, but only to ascertain whether the relator has been
unlawfully confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). In a
habeas corpus proceeding, the order or judgment challenged is presumed to be
valid until the relator has discharged his burden of showing otherwise. Ex parte
Occhipenti, 796 S.W.2d 805, 809 (Tex. App.—Houston [1st Dist.] 1990, orig.
proceeding). The relator bears the burden of showing that the contempt order is
void and not merely voidable. In re Munks, 263 S.W.3d 270, 272–73 (Tex. App.—
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Houston [1st Dist.] 2007, orig. proceeding). For this Court to order the release of a
relator in a habeas corpus proceeding, we must find that the trial court’s order
directing the relator to be incarcerated is void because of a lack of jurisdiction or
because the relator was deprived of liberty without due process of law. In re
Butler, 45 S.W.3d 268, 270 (Tex. App.—Houston [1st Dist.] 2001, orig.
proceeding). Here, relator does not challenge the trial court’s jurisdiction. All of
his arguments are based on lack of due process.
Analysis
Relator asserts his confinement is illegal because: (1) the commitment order
was not signed until four days after relator was orally sentenced and committed to
jail; (2) the commitment order does not contain sufficient language for
commitment; (3) relator did not receive notice that his suspended commitment
could be revoked and that he would be subject to jail on the date of the compliance
hearing; (4) the contempt order did not specify the length of relator’s suspended
commitment; and (5) the contempt order did not give good conduct time credit for
time spent in county jail.
Delay in Signing Commitment Order
In his first issue, relator asserts that his due process rights were violated
because the Order Revoking Suspension and for Commitment to County Jail was
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not signed until at least four days after the trial court had orally sentenced and
committed relator to jail.
At the conclusion of the September 12, 2013 hearing, the trial court orally
reinstated relator’s 180 days jail sentence to begin immediately and remanded
relator to the custody of the sheriff to be kept in jail until the terms of his sentence
were complete or until relator was brought back to court for further findings. The
trial court subsequently signed the written commitment order on September 16,
2013—four days after the sentence had been orally pronounced. The real party in
interest does not dispute the timeline of these events in her response.
A person may not be imprisoned for contempt without a written order of
commitment. Ex parte Amaya, 748 S.W.2d 224, 224 (Tex. 1998) (orig.
proceeding). An arrest for contempt without a written commitment order is an
illegal restraint from which a prisoner is entitled to habeas relief. See id. at 225.
However, a trial court may cause a contemnor to be detained by the sheriff for a
short and reasonable time while the judgment of contempt and order of
commitment are prepared for the judge’s signature. Id.; In re Butler, 45 S.W.3d at
271. Less than twenty-four hours to prepare a commitment order is a short and
reasonable time. See Ex parte Amaya, 748 S.W.2d at 225; In re Butler, 45 S.W.3d
at 271. Two or three days between oral rendition of commitment and the signing
of the written order of commitment, however, has been held to constitute an unduly
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delay that necessitates habeas relief. See Ex parte Amaya, 748 S.W.2d at 225
(three-day delay too long); Ex parte Jordan, 865 S.W.2d 459, 459 (Tex. 1993)
(orig. proceeding) (same); In re Dominguez, No. 14-08-00206-CV, 2008 WL
1934816, at *3 (Tex. App.—Houston [14th Dist.] May 5, 2008, orig. proceeding)
(mem. op.) (two or three-day delay too long); see also Ex parte Morgan, 886
S.W.2d 829, 832 (Tex. App.—Amarillo 1994, orig. proceeding) (four-day delay
too long).
The fact that an associate judge previously signed a contempt order in July
does not change this analysis. On July 12, 2013, the associate judge signed an
“Order Holding Respondent in Contempt for Failure to Pay Child Support,
Granting Judgment for Arrearages, and Suspending Commitment.” Because this
order was signed only by the associate judge, it was not final. See Graham v.
Graham, No. 01-12-00635-CV, 2013 WL 4520924, at *1 (Tex. App.—Houston
[1st Dist.] Aug. 27, 2013, no pet.) (“Associate judges do not have the power to
render final judgment outside the context of certain limited exceptions . . . .”); In re
J.W.B., No. 14-12-00410-CV, 2012 WL 1695208, at *2 (Tex. App.—Houston
[14th Dist.] May 15, 2012, orig. proceeding) (mem. op.) (“Before the order
becomes the order of the referring court in this case, the referring court must have
signed the proposed order or judgment.”); In re Lausch, 177 S.W.3d 144, 151
(Tex. App.—Houston [1st Dist.] 2005, orig. proceeding.) (“[T]he associate judge’s
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oral pronouncements from the bench and his handwritten Associate Judge’s Report
do no constitute a final order of enforcement.”). An associate judge may “order
the detention of a witness or party found guilty of contempt, pending approval by
the referring court as provided by Section 201.013”. TEX. FAM. CODE ANN.
§ 201.007(a)(13); see also id. § 201.013(b) (“[T]he proposed order or judgment of
the associate judge becomes the order or judgment of the referring court only on
the referring court’s signing the proposed order or judgment.”). Here, the record
shows that the trial court never adopted the July 12, 2013 contempt order. It, thus,
is not a final order and does not impact our analysis in this case.
Because the trial court did not sign a written commitment order until four
days after the oral rendition of commitment, we hold that relator’s due process
rights were violated and that the commitment order is void. We sustain relator’s
first issue.2
Conclusion
We grant relator’s petition for writ of habeas corpus, order relator released
from the bond set by this Court on September 27, 2013, and order relator
discharged from custody.
Laura Carter Higley
Justice
2
Due to the disposition of relator’s first issue, we need not address the remaining
issues presented in his brief.
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Panel consists of Justices Keyes, Higley, and Massengale.
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