






In re Edward Ray Ustick
















IN THE
TENTH COURT OF APPEALS
 

No. 10-00-034-CV

EX PARTE EDWARD RAY USTICK


 

 Original Proceeding
                                                                                                                

O P I N I O N
                                                                                                                

      Relator, Edward Ray Ustick, is being held in jail for failing to appear for his commitment
for contempt.  He brings this Petition for Writ of Habeas Corpus claiming he should be
discharged from custody.  We agree and grant the writ.
Background
      Pursuant to a decree of divorce, Ustick was ordered to pay $216.00 per month as child
support for his child.  The Attorney General’s Office filed a motion to enforce the order of
child support.  In August of 1999, after a hearing before a court master, Ustick was found to
be in arrears on his child support obligation in the amount of $11,815.20.  The court found
Ustick to be guilty of contempt and ordered coercive and punitive contempt which included
four concurrent 180 day sentences in the county jail.  Ustick was ordered to appear again
before the court on November 18, 1999, to begin his commitment to the county jail. 
      Ustick failed to appear as ordered to begin his period of commitment.  The court issued a
capias for his arrest on November 29, 1999.  Ustick was arrested on January 20, 2000, and
taken to the McLennan County jail.  He has filed a petition for writ of habeas corpus and, in
three issues, contends he must be released from custody.
Jurisdiction
      Although Ustick did not discuss the topic of jurisdiction, it is important to decide first
whether we have jurisdiction to review his habeas petition.  The courts of appeals, concurrent
with the Texas Supreme Court, have limited jurisdiction of habeas proceedings by virtue of the
Texas Government Code.  See Tex. Gov’t Code Ann. § 22.221(d) (Vernon Supp. 2000). 
This section provides, in part:
(d) Concurrently with the supreme court, the court of appeals...may issue a writ of
habeas corpus when it appears that the restraint of liberty is by virtue of an order,
process, or commitment issued by a court or judge because of the violation of an
order, judgment, or decree previously made, rendered, or entered by the court or
judge in a civil case....

Id.  We do not have original habeas corpus jurisdiction in criminal law matters.  Ex parte
Hawkins, 885 S.W.2d 586, 588 (Tex. App.—El Paso 1994, orig. proceeding).  Because
Ustick’s restraint is due to his violation of a civil court order to pay child support, we have
jurisdiction to consider his petition.
Commitment For Contempt
      In his third issue, Ustick contends that the Order Enforcing Child Support Obligation
signed by the master and the district court judge does not constitute a valid commitment order. 
He does not contest the validity of the contempt order within the enforcement order.  Due
process requires both a written judgment of contempt and a written order of commitment to
punish a person for constructive contempt of court.  Ex parte Strickland, 723 S.W.2d 668, 669
(Tex. 1987); see also Ex parte Hardin, 344 S.W.2d 152, 153, 161 Tex. 567 (1961).  If
properly drafted, the two orders may be contained in the same document.  Ex parte Hernandez,
827 S.W.2d 858 (Tex. 1992).  A commitment order is the warrant, process, or order by which
a court directs a ministerial officer to take custody of a person.  Id.  Although the form of a
commitment order is not important, the substance of one is.  Id.
      In this case, under the punitive contempt section, the enforcement order provides:
The Court ORDERS EDWARD RAY USTICK committed to the county jail for 180
days for each separate act of contempt, said commitments to run concurrently.

Under the coercive contempt section, the enforcement order provides:
 
The Court FINDS that Obligor EDWARD RAY USTICK can pay the amounts listed
below and ORDERS him committed to the county jail until he pays $1000.00 in child
support arrearages.

There is no other language or document that could be construed as a written commitment
order.
      Two sister courts of appeals have construed the above language to be sufficient
commitment orders.  See Ex parte Johns, 807 S.W.2d 768, 774 (Tex. App.—Dallas 1991,
orig. proceeding); In re Dotson, 981 S.W.2d 237, 238 (Tex. App.—Houston [1st Dist.] 1998,
orig. proceeding).  However, since the Dallas Court’s opinion in Johns, the Texas Supreme
Court has held that a contempt order does not satisfy the requirement for a commitment order
unless it directs the sheriff or other ministerial officer to take a contemnor into custody and
detain him under the terms of the judgment.  Hernandez, 827 S.W.2d at 859.  This is true even
if the contemnor is ordered to be confined in the county jail for a period of time, ordered to
pay a fine and court costs, and allowed to be released on probation after serving only part of
his sentence.  Id.  See also Ex parte Culp, 816 S.W.2d 564, 565 (Tex. App.—Houston [14th
Dist.] 1991, orig. proceeding). 
      In distinguishing Hernandez, the First Court in Houston claimed the difference between
Dotson, Johns, and Hernandez was that in Hernandez, the order did not say that the contemnor
was “committed” to jail.
 Dotson, 981 S.W.2d at 238.  After reading Hernandez, we do not
believe the term “committed” is determinative of a sufficient commitment order.  The Supreme
Court specifically stated that the order in Hernandez did not direct the sheriff or other
ministerial officer to take Hernandez into custody and detain him pursuant to the contempt
order.  We believe this language to be dispositive in determining the sufficiency of a
commitment order.  Therefore, we decline to follow Johns and Dotson and follow, as we must,
the lead of the Supreme Court in Hernandez.  The enforcement order against Ustick is not
sufficient as a commitment order.
Other Issues
      In his first issue, Ustick contends he must be discharged because he was not brought
before the court within one day of his arrest pursuant to section 157.105 of the Texas Family
Code.  Tex. Fam. Code Ann. § 157.105 (Vernon 1996).  Ustick’s confinement was not due
to his failure to appear for a motion to enforce a child support order, and section 157.105 is
inapplicable.  Due to the disposition of his third issue, we do not reach his second issue.
Conclusion
      Because the enforcement order did not direct anyone to take Ustick into custody and detain
him pursuant to its order of contempt, no sufficient commitment order exists, and Ustick is
being restrained illegally.
      We grant Ustick’s petition for a writ of habeas corpus and order him immediately
discharged from custody.


                                                                   TOM GRAY
                                                                   Justice

Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Writ granted
Opinion delivered and filed February 8, 2000
Publish
