in Re Augustine Gonzales ( 2006 )

Opinion filed January 19, 2006

Opinion filed January 19, 2006

                                                                        In The

        Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00388-CV

                                                     __________

                                    IN RE AUGUSTINE GONZALES

                                            Original Habeas Corpus Proceeding

                                              M E M O R A N D U M   O P I N I O N

This is an original habeas corpus proceeding.  Augustine Gonzales challenges the validity of his confinement to jail following a hearing on a motion for enforcement of child support.  Relator argues that the confinement violates his due process rights because the trial court confined him to jail without a written commitment order. We ordered relator released upon the posting of a bond pending a decision in this case; and we requested Juanita Gonzales, the real party in interest, to file a response to relator=s petition on or before December 16, 2005. The real party in interest did not file a response.  Because relator=s confinement without a written commitment order violates his due process rights, we grant the petition for writ of habeas corpus and order relator immediately discharged from custody.

The record contains the trial court=s docket sheet.  An October 17, 2005 entry in the docket sheet notes that the trial court held relator in contempt and committed him to the county jail of Ector County, Texas, for a period of six months.  The docket sheet also notes that relator could purge himself of the contempt by paying $10,132 in back child support.  The record demonstrates that the Ector County Sheriff took relator into custody on October 17, 2005.  The record does not contain a written commitment order.

To confine a person for civil contempt, due process requires both a written judgment of contempt and a written order of commitment.  Ex parte Hernandez, 827 S.W.2d 858 (Tex. 1992); Ex parte Seligman, 9 S.W.3d 452, 454 (Tex. App.CSan Antonio 1999, orig. proceeding).  A commitment order is a warrant, order, or process by which a court directs a ministerial officer to take a person into custody.  Ex parte 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.  Ex parte Seligman, 9 S.W.3d at 454.  An arrest for contempt without a written commitment order is an illegal restraint from which the prisoner is entitled to habeas relief.  Ex parte Amaya, 748 S.W.2d 224, 225 (Tex. 1988).

Relator was confined without a written commitment order.  Therefore, the confinement violates relator=s due process rights.  Ex parte Amaya, 748 S.W.2d at 225.  We grant the petition for writ of habeas corpus and discharge Augustine Gonzales from custody.

PER CURIAM

January 19, 2006

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.