In Re Clark

984 S.W.2d 644, 1998 Tex. App. LEXIS 2138, 1998 WL 161834

• Court: Court of Appeals of Texas
• Decided: April 9, 1998
• Docket: 14-97-01356-CV
• Status: Published

Opinions

OPINION

LEE, Justice.

In this petition for writ of habeas corpus, relator, Teddy Charles Clark, contends that a cash bond set by the Honorable Susan Baker Olsen, Judge of the 306 th Judicial District Court of Galveston County, fails to comply with the Tex. Fam.Code Ann. § 157.101 (Vernon 1996) and thus, is an illegal restraint of his liberty. Relator requests this court to issue a writ directing the trial court to vacate orders setting the bond and denying his motion to reduce bond. We deny the writ.

Background

Relator and the real party in interest, Linda Lou Clark (“Linda”), were divorced in February 1996. By agreement, relator was awarded primary custody of the parties’ older child and Linda was awarded primary custody of their two younger children. In the summer of 1996, the younger children visited relator in Oklahoma. At the end of the summer visitation, relator did not return the children to Linda as required by the divorce decree. As a result, Linda filed a motion for enforcement by contempt, petition for writ of habeas corpus and motion for modification of custody. On August 13,1996, the trial court signed orders directing relator to appear and produce the children in court on August 26,1996. Despite being personally served with the writ and an order to appear, relator failed to appear or produce the children in court on August 26th. Two days later, the trial court issued an alias capias for relator’s arrest and set a cash bond in the amount of $25,000 per child to secure relator’s appearance. In September 1996, relator returned the children after being advised by the Galveston district attorney that Linda had filed a criminal complaint. Relator subsequently filed a motion to reduce the bond. After a hearing, the trial court denied the motion on May 5,1997. In September 1997, the trial court set the modification for trial on February 2, 1998. That ease has since been continued. On December 5, 1997, relator filed this petition for writ of habeas corpus contending the trial court did not comply with section 157.101 of the Family Code when it set a $50,000 cash bond.

Analysis

An original habeas corpus proceeding is a collateral attack on a contempt judgment. Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967). The purpose of a writ of habeas corpus is not to determine the guilt of the contemnor, but only to determine whether he was afforded due process of law or if the order of contempt was void. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.1979). A court will issue a writ of habeas corpus if the order underlying the contempt is void, Ex parte Shaffer, 649 S.W.2d 300, 302 (Tex.1983), or if the contempt order itself is void. Gordon, 584 S.W.2d at 688. An order is void if it is beyond the power of the court to enter it, or if it deprives the relator of liberty without due process of law. Ex parte Friedman, 808 S.W.2d 166, 168 (Tex.App. — El Paso 1991, orig. proceeding).

Here, while relator violated the court orders to appear and produce the children, the trial court did not find relator in contempt. Rather, the trial court ordered relator’s arrest and set bond. While the issuance of a capias may be a sufficient restraint of a person’s liberty to justify habeas corpus relief, see Ex parte Rosser, 899 S.W.2d 382, 385 n. 6 (Tex.App. — Hous.[14th Dist] 1995, orig. • proceeding), relator does not complain that the orders setting the bond and denying the motion to reduce bond are void or that such orders violated his due process rights. Nor does relator dispute the trial court’s authority to set a bond. Instead, relator’s complaint is that the trial court abused its discretion by misapplying the law. Such a complaint is not appropriate for a writ of habeas corpus. Because relator has failed to establish his right to relief, we deny relator’s petition.