Ex Parte Seymour

688 S.W.2d 139, 1985 Tex. App. LEXIS 6431

• Court: Court of Appeals of Texas
• Decided: January 31, 1985
• Docket: 09 84 383 CV
• Status: Published

Opinions

OPINION

BURGESS, Justice.

Relator filed an application for writ of habeas corpus alleging illegal confinement in the Jefferson County jail. A brief recitation of the sequence of events is necessary. On March 18, 1983, relator was divorced and was required to make periodic child support payments. On October 25, 1983, the 317th District Court of Jefferson County, Texas, found relator in contempt of court for failing to make the child support payments previously ordered and placed him on probation for five years. On November 6, 1984, relator’s ex-wife filed a sworn motion to revoke his probation alleging non-compliance with the order of probation. The 317th District Judge ordered a warrant issued instanter for the production of relator. A warrant was issued on November 8,1984, and relator was incarcerated in the Jefferson County Jail on December 21, 1984. His application for writ of habeas corpus was filed in this court on December 28, 1984.

Relator, alleges his confinement¹ is illegal for two reasons. First, although the relator acknowledges he is being held as a result of a warrant, he alleges the issuance of the warrant was illegal because he was not given any notice and was denied due process in violation of the U.S. and Texas Constitutions.

Tex.Fam.Code Ann. sec. 14.12(d) (Vernon Pamph.Supp.1985) states:

“If a probationer violates a condition of probation, the court may cause the probationer’s arrest by warrant as in other cases....”

Relator cites no cases which hold a statute such as this unconstitutional, although it could be applied as such. Here, the warrant was issued as a result of sworn motion which included a copy of official court records. Certainly, this is minimal due process and thus the warrant was properly issued.

Relator’s second allegation is he has not been brought promptly before the court causing the arrest and has not been afforded a hearing on the motion to revoke his probation.

Tex.Fam.Code Ann. sec. 14.12(d) (Vernon Pamph.Supp.1985) further states in pertinent part:

“An arrested probationer shall be brought promptly before the court causing the arrest, and the court, after a hearing without a jury, may continue, modify, or revoke the probation as the evidence warrants.”

Partially recalling the sequence of events, the relator was confined in the Jefferson County, Texas Jail on December 21, 1984, a Friday. Because of the weekend, December 22 and 23, and a holiday period, December 24 and 25, the next working day was December 26,1984. As of the filing of the application for writ of habeas corpus, December 28, 1984, the relator had not been brought before the court causing the arrest, nor had a hearing on the motion to revoke his probation been held. Did the failure to promptly bring the probationer before the court result in an illegal confinement subject to habeas corpus relief? We believe so.

Obviously, the legislature wanted arrested probationers brought before the court causing the arrest or they would not have said so in clear and concise language. Thus, the only question is, what is “promptly”? We believe a reasonable definition of “promptly” is seventy-two (72) hours from the time the arrested probationer arrives in the county jail of the court causing the arrest, excluding weekends and holiday periods. This is not to hold that every confinement, in this situation, beyond that period, is illegal per se, only that confinement past that period would be a pri-ma facie illegal confinement, subject to a showing of extraordinary circumstances.

Further, the hearing contemplated by the statute need not be held within 72 hours. We only hold the arrested probationer should be brought before the court for the purposes of determining such matters as whether the probationer is represented by counsel or is indigent, if bail is appropriate, to advise the probationer of the date, time and place of the hearing, etc.

The relator, having been arrested and confined in the county jail for a period in excess of 72 hours and not having been brought before the court causing his arrest within that time, has been illegally confined and is entitled to habeas corpus relief.

It is ordered that relator be discharged from such confinement and released from any liability on his bond.

1 . Actually upon the filing of the application for writ of habeas corpus, the relator was allowed bail by the Court of Appeals.