                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo
                              ________________________

                                   No. 07-18-00348-CV
                              ________________________

                     IN RE KRISTINA SHEA COOK, PETITIONER



                 Original Proceeding Arising from the 72nd District Court
                                 Lubbock County, Texas
                              Trial Court No. 2018-530,278
             Honorable Mackey Hancock, Senior Judge, Presiding by Assignment


                                     October 30, 2018

                            MEMORANDUM OPINION
                    Before QUINN, C.J., and PIRTLE and PARKER, JJ.


       This petition for writ of habeas corpus arises out of a contempt proceeding wherein

Petitioner, Kristina Shea Cook, was confined for failing to obey a court order requiring her

to place into the registry of the court the sum of $27,000 cash, “before the close of

business on [August 9, 2018].” It is undisputed that the trial court entered a clear and

specific order requiring Petitioner to make that deposit by the time and at the place

specified, that she had the financial means of complying with that order, and that she did
not comply with that order. It is also undisputed that Petitioner had notice of that order

and received adequate due process notice of the trial court’s intent to enforce that order

by contempt. In fact, Petitioner was present and represented by counsel at the hearing

on the Motion for Contempt filed by Darin Michael Benton. What is disputed is whether

the trial court erred by ordering Petitioner’s incarceration without entering a written

judgment of contempt and order of commitment. Because we find Petitioner was being

unlawfully detained, we make permanent our previous order1 granting her request for

emergency temporary relief.


       APPLICABLE LAW

       An original habeas corpus proceeding is an extraordinary remedy that is an

available and appropriate means to collaterally attack a judgment of contempt or order of

commitment whenever a person is being illegally or unlawfully restrained or deprived of

her liberty and there is no other adequate remedy at law. Ex parte Rohleder, 424 S.W.2d

891, 892 (Tex. 1967). It is well-settled that in order to satisfy due process requirements,

both a judgment of contempt and an order of commitment are necessary to imprison a

person for civil constructive contempt of court. Ex parte Barnett, 600 S.W.2d 252, 256

(Tex. 1980) (orig. proceeding) (citing Ex parte Puckitt, 322 S.W.2d 597 (Tex. 1959)). An

oral judgment of contempt or order of commitment is insufficient. Id. A trial judge may

orally command that a party be detained by the sheriff for a “short and reasonable” time

while the judgment of contempt and order of commitment are being prepared. Ex parte




       1 See In re Kristina Shea Cook, No. 07-18-00348-CV, 2018 Tex. App. LEXIS 8340 (Tex. App.—
Amarillo Oct. 10, 2018, orig. proceeding).



                                                2
Calvillo Amaya, 748 S.W.2d 224, 225 (Tex. 1988) (citing Ex parte Puckitt, 322 S.W.2d at

597).


        A judgment of contempt must be a written order that clearly states in what respect

the trial court’s earlier order was violated. Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex.

1997). It also follows that, in order to satisfy due process, the judgment of contempt must

clearly specify the punishment imposed by the court. Id. Furthermore, Texas law is clear

that a petitioner may not be confined for civil coercive contempt unless she has the ability,

at the time of the contempt hearing, to perform or satisfy the order being enforced, but

refuses to do so. In re Gawerc, 165 S.W.3d 314, 315 (Tex. 2005).


        A written order of commitment is the warrant, order, or process by which a trial

court directs a ministerial officer, such as the sheriff, to take a person to jail and detain

her there and it is an essential prerequisite to the imprisonment of a person for contempt.

Ex parte Hardin, 344 S.W.2d 152, 153 (Tex. 1961).             “An arrest without a written

commitment made for the purpose of enforcing a contempt judgment is an illegal restraint

from which the prisoner is entitled to be relieved.” Ex parte Puckitt, 322 S.W.2d 597, 597

(Tex. 1959).    Even when a written judgment of contempt is signed, a written order of

commitment delivered to the sheriff or other appropriate officer is still necessary to legally

imprison a person. Ex parte Hernandez, 827 S.W.2d 858, 858 (Tex. 1992) (citing Ex

parte Hardin, 344 S.W.2d at 153). In Texas, there is no particular form prescribed by law

for an order of commitment, and accordingly, the order of commitment may be contained

within the trial court’s judgment of contempt or it may be a separate order signed by the

judge or the clerk of the court at the judge’s direction. Ex parte Barnett, 600 S.W.2d at

256.

                                              3
       ANALYSIS

       Here, no judgment of contempt was signed by the judge contemporaneously with

the signing of an order of commitment and the actual physical restraint of Petitioner.

Petitioner was originally taken into custody at 10:41 a.m., on Friday, October 5, 2018, on

the basis of an undated card (styled a “Bench Order”), signed by the trial judge and

delivered to the Lubbock County Sheriff. This “order” was later file-marked by the district

clerk on Monday, October 8, 2018. The “order” does not contain the essential elements

of a judgment of coercive contempt because it does not clearly state in what respect a

prior order of the court has been violated; nor does it state how, if at all, Petitioner might

purge herself of contempt. In fact, the “order” does not clearly and specifically order the

sheriff to do anything. It merely states, “TO THE SHERIFF OF LUBBOCK COUNTY,

TEXAS, GREETINGS: . . . [X] Civil Contempt until Kristina Cook purges herself of

contempt or is ordered released by a court order.” As such, it does not order the sheriff

to physically restrain, detain, or otherwise incarcerate Petitioner, nor does it specify in any

manner or form how long she is to be restrained or how she might “purge” herself of

contempt, leaving both the sheriff and Petitioner to only guess how long she might be

imprisoned. Accordingly, this card, standing alone, is not an order of commitment.


       A written order, entitled Order Holding Kristina Shea Cook in Contempt and for

Commitment to Jail, was filed with the district clerk at 8:35 a.m. on Monday, October 8,

2018. While it might be argued that this order was entered within a “reasonable period of

time” following her incarceration, Petitioner contends this order cannot somehow revive

an otherwise null and void order of commitment. This argument, however, presents a

question we need not decide because, even construing the two orders together, both the


                                              4
“Bench Order” and judgment of contempt are still deficient in that they do not contain an

order or directive to the sheriff to confine and restrain Petitioner, nor do they include a

directive to the clerk of the court to issue a written attachment or order of commitment to

a proper officer. Therefore, because the necessary paperwork has yet to be appropriately

completed, we conclude Petitioner was being unlawfully restrained.


      CONCLUSION

      Because we find Petitioner was being unlawfully restrained, we make permanent

our previous order granting her request for emergency temporary relief.


      It is so ordered.




                                                        Per Curiam




                                            5
