                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-16-00360-CV


IN RE B.L.                                                            RELATOR




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                          ORIGINAL PROCEEDING
                      TRIAL COURT NO. 233-515485-12

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                        MEMORANDUM OPINION1

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                               I. INTRODUCTION

      In his petition for writ of habeas corpus, Relator B.L. (Husband) complains

about, among other things, a January 5, 2016 order of commitment commanding

that he be confined in jail for 150 days or “until further order of the Court,” a

February 17, 2016 order for a capias warrant to be issued against him, and a

capias warrant issued February 17, 2016. For the reasons explained below, we


      1
       See Tex. R. App. P. 47.4.
will grant the petition for writ of habeas corpus in part and declare the above-

mentioned order of commitment, order for a capias, and the issuance of a capias

void. All other relief sought in Husband’s petition for writ of habeas corpus is

denied.

             II. PERTINENT FACTUAL AND PROCEDURAL BACKGROUND

      On July 30, 2014, Husband and Real Party in Interest, C.Y. (Wife), entered

into an agreed decree of divorce. That decree included several provisions that

placed limitations on Husband’s ability to contact Wife. On March 4, 2015, the

trial court entered an order finding that Husband had violated the decree by

contacting Wife in a manner that violated the terms and conditions of the decree.2

On January 5, 2016, the trial court entered an order of commitment authorizing a

sheriff or constable to seize Husband and keep him in jail “until he serves one

hundred and fifty (150) days, or until further order of the Court.” On February 17,

2016, the trial court entered an order for capias directing the clerk to issue a

capias warrant against Husband. The clerk issued a capias warrant on February

17, 2016, although Husband has not been incarcerated pursuant to the capias

warrant.




      As reflected in that order, Husband pleaded “true” and “guilty” to eighty-
      2

seven separate violations of the decree.


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                               III. OUR JURISDICTION

      Wife contends that we lack jurisdiction because Husband is not restrained

in his liberty. Husband counters that while he has yet to be taken into custody,

the capias issued for his arrest constitutes a sufficient restraint in his liberty to

confer us with habeas jurisdiction.

      Our original jurisdiction to grant habeas relief derives from section

22.221(d) of the Texas Government Code, which provides in relevant part:

      Concurrently with the supreme court, the court of appeals of a court
      of appeals district in which a person is retrained in his liberty, or a
      justice of 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.

Tex. Gov’t Code Ann. § 22.221(d) (West 2004).

      Restraint of liberty is not limited to situations of actual incarceration. See,

e.g., Ex parte Brister, 801 S.W.2d 833, 835 (Tex. 1990) (orig. proceeding)

(holding that probated sentence conditioned on payment of fees, participation in

outpatient counseling, submission to house arrest, and electronic monitoring

constituted sufficient restraint in liberty to confer habeas jurisdiction); Ex parte

Williams, 690 S.W.2d 243, 244 (Tex. 1985) (orig. proceeding) (holding that

relator who was released from jail on condition that he post bond and prosecute

appeal was sufficient restraint in liberty to confer habeas jurisdiction); Ex parte

Duncan, 796 S.W.2d 562, 564 (Tex. App.—Houston [1st Dist.] 1990, orig.



                                      3
proceeding) (holding that probated sentence conditioned upon seeing probation

officer and not traveling outside county was sufficient restraint in liberty to confer

habeas jurisdiction).

      Several of our sister courts have held that the issuance of a capias is a

sufficient restraint of liberty to confer habeas jurisdiction even when the applicant

is not incarcerated.    See, e.g., In re Bourg, No. 01-08-00618-CV, 2008 WL

3522241, at *2 (Tex. App.—Houston [1st Dist.] Aug. 12, 2008, orig. proceeding)

(mem. op.) (“Issuance of a capias is a sufficient restraint of liberty to justify

habeas corpus relief.”); In re Aguilera, 37 S.W.3d 43, 47 (Tex. App.—El Paso

2000, orig. proceeding) (same); see also In re Edwards, No. 01-13-00202-CV,

2014 WL 3738056, at *2 (Tex. App.—Houston [1st Dist.] July 29, 2014, orig.

proceeding) (mem. op.) (“Here, we conclude that Edward’s liberty is restrained

because a writ of commitment for his arrest has been issued and is

outstanding.”). We agree with our sister courts that the issuance of a capias is a

sufficient restraint of liberty to confer us with habeas jurisdiction. Because a

capias has been issued here against Husband, we have jurisdiction over his

petition for writ of habeas corpus.3




      3
        Wife has filed a motion to dismiss for want of jurisdiction, arguing that we
lack jurisdiction because Husband is not restrained in his liberty. For the reasons
stated above, we have habeas jurisdiction in this case, and accordingly, we deny
Wife’s motion.

                                       4
 IV. THE ORDER OF COMMITMENT, ORDER FOR CAPIAS, AND ISSUANCE OF CAPIAS

      Husband argues that the January 5, 2016 order of commitment is void

because it is ambiguous as to the terms of his confinement. He argues that

because the order authorizes him to be jailed for 150 days “or until further order

of the Court,” it “creates an ambiguity that prevents [him] from determining when

he may achieve release from incarceration.” Likewise, Husband argues that the

February 17, 2016 order for capias and the February 17, 2016 issuance of the

capias—both of which stem from the order of commitment—are also void.

      A commitment order “must carry with it no uncertainty, and must not be

susceptible [to] different meanings or constructions, but must be in the form of a

command, and when tested by itself, must speak definitely the meaning and

purpose of the court in ordering.” In re Broussard, 112 S.W.3d 827, 835 (Tex.

App.—Houston [14th Dist.] 2003, orig. proceeding) (quoting Ex parte Slavin, 412

S.W.2d 43, 45 (Tex. 1967)). In Broussard, a commitment order stated that the

relator was to remain in jail for 180 days, served in 48-hour increments, until

“further order of this Court.” Id. at 837–38. The court of appeals held the order

was “susceptible [to] different meanings” due to, on the one hand, the language

that called for incarceration of 180 days, and on the other hand, the language

calling for incarceration until “further order of this Court.” Id. at 838. Because the

language in the order “create[d] an ambiguity that prevent[ed] relator from

determining when he may achieve release from incarceration,” the court of



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appeals held that the provision was void and granted his petition for writ of

habeas corpus. Id. at 838–39.

      Here, the order of commitment, like the commitment order in Broussard, is

susceptible to different meanings because it calls for incarceration of 150 days,

on the one hand, but also calls for incarceration “until further order of the Court,”

on the other hand.     We agree with Husband that the order of commitment

contains an ambiguity that prevents him from determining when he may achieve

release from incarceration. Accordingly, we hold that the order of commitment,

as well as the order for capias and issuance of capias that stemmed from the

order of commitment, are void. See id.

                                  V. CONCLUSION

      Accordingly, we grant the relief sought by Husband in his petition for writ of

habeas corpus to the extent we declare the January 5, 2016 order of

commitment, the February 17, 2016 order for capias, and the capias issued on

February 17, 2016 void. All other relief sought in Husband’s petition for writ of

habeas corpus is denied.4


                                                    /s/ Sue Walker
                                                    SUE WALKER
                                                    JUSTICE


      4
        Husband recently filed two motions for emergency relief asking that we
stay a hearing scheduled for November 18, 2016, and also stay an order
requiring him to pay certain amicus fees while we make a determination relating
to his habeas petition. Because we have made a determination as to his habeas
petition through this opinion, we deny Husband’s motions as moot.

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PANEL: LIVINGSTON, C.J.; WALKER, J.; and CHARLES BLEIL (Senior
Justice, Retired, Sitting by Assignment).

DELIVERED: November 17, 2016




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