                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-12-00407-CV


IN RE CARY JORGE                                                         RELATOR




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                            ORIGINAL PROCEEDING

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                         MEMORANDUM OPINION1

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      Relator Cary Jorge filed a petition for writ of habeas corpus challenging the

validity of his commitment to jail after the trial court found him in contempt for

violating the terms of agreed temporary orders. We ordered Relator discharged

upon the posting of bond pending a final determination of his petition in this case.




      1
       See Tex. R. App. P. 47.4.
See Tex. R. App. P. 52.8(b)(3).2 Because no order of commitment exists, we

grant Relator’s petition for writ of habeas corpus.

      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, 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 civil

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. (holding that contempt order was not

commitment order because it contained no directive to the sheriff and that,

      2
       We requested a response from Real Party in Interest Joleen Jorge, see
Tex. R. App. P. 52.8(b)(1), but none was filed.

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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

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 on Respondent’s Second Amended Petition

for Enforcement” found Relator in contempt for violating agreed temporary orders

by failing to make certain payments required by the agreed temporary orders and

by intentionally, knowingly, or recklessly causing Real Party in Interest bodily

injury.       Relator was ordered, in part, “committed to the county jail of Denton

County, Texas, for a period of forty-five (45) days for each separate violation.”

Relator was confined pursuant to the trial court’s order on the day that the order

was signed––September 28, 2012. Relator filed his petition for writ of habeas

corpus with this court on October 4, 2012, alleging that he was illegally restrained

because no commitment order had been signed.3 As in Hernandez and Zapata,

the trial court’s contempt order does not direct the sheriff or other ministerial

officer to take custody of Relator, 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
          3
        Prior to ordering Relator discharged upon the posting of bond pending our
final determination of his petition in this case, the clerk of our court by telephone
confirmed with the trial court that no commitment order had been signed.

                                        3
is no commitment order, Relator is being illegally restrained; we grant his petition

for writ of habeas corpus, we order him immediately discharged from custody,

and we order Relator and any sureties discharged from all obligations on

Relator’s bond.


                                                   SUE WALKER
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DELIVERED: October 26, 2012




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