                          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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