in Re Elijah Stewart, Relator

• Court: Court of Appeals of Texas
• Decided: April 27, 2022
• Docket: 07-22-00079-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-22-00079-CV

IN RE ELIJAH STEWART, RELATOR

ORIGINAL PROCEEDING ON PETITION FOR WRIT OF HABEAS CORPUS

April 27, 2022 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Relator Elijah Stewart filed a petition for writ of habeas corpus challenging an order

of the Lubbock County Court at Law No. 1. The latter held him in contempt. Stewart

urges four grounds to void the contempt order. We find the first dispositive and grant the

writ.

Stewart allegedly removed his two children from Lubbock, Texas, in violation of

the geographic restriction in a custody order. The trial court ordered their return on the

behest of their grandmother, Lexy. The latter also moved to hold Stewart in contempt for

violating the custody order. The trial court heard the motion. It executed a written order

on September 16, 2021, entitled “Order of Enforcement by Contempt and Suspension of Commitment for Possession or Access.” Therein, it (1) found Stewart violated the earlier

custody order nine separate times, (2) held him in contempt for each violation, (3) ordered

each instance of contempt to be punished by his serving a separate forty-five-day jail

term, (4) ordered him committed to the local county jail “for a period of 45 days for each

separate violation,” (5) ordered that the commitment be suspended for two years, (6)

appended conditions to suspension of Stewart’s commitment, (7) obligated him to “[s]erve

5 days of jail time” as one such condition, and (8) stated “this Order of contempt is

suspended pending the outcome of . . . Stewart’s Writ of Habeas Corpus, by order of the

court granted August 31, 2021.” The August 31st order read, in pertinent part: “It is

Ordered that . . . the Order of Contempt is suspended, and the Court sets bond at $2,500.”

Stewart posted the $2,500 bond mentioned in the August 31st order and petitioned

for a writ of habeas corpus. The trial court never executed a written order directing the

sheriff or anyone else to seize and commit Stewart to jail, though. The absence of the

latter underlies the first issue before us. Stewart asks if that circumstance renders his

custody illegal and entitles him to the requested writ. We answer, yes.

When considering whether to issue a writ of habeas corpus, ours is not to

determine the ultimate guilt or innocence of the contemnor. In re Kuster, 363 S.W.3d

287, 291 (Tex. App.—Amarillo 2012, orig. proceeding). Rather, we assess the lawfulness

of his confinement. Id. Furthermore, confinement is unlawful if the contempt order is

void, which it is when the trial court denied due process to the relator. In re Henry, 154

S.W.3d 594, 596 (Tex. 2005) (per curiam) (orig. proceeding); In re Kuster, 363 S.W.3d at

291.

2 Next, the right to due process obligates the trial court to execute both written

contempt and written commitment orders before imprisoning someone. Ex parte Barnett,

600 S.W.2d 252, 256 (Tex. 1980) (orig. proceeding); In re Cook, No. 07-18-00348-CV,

2018 Tex. App. LEXIS 8873, at *3 (Tex. App.—Amarillo Oct. 30, 2018, orig. proceeding)

(mem. op.). Execution of those written documents need not be immediate. Indeed, a trial

court may orally direct a sheriff to detain someone. Id. Yet, the delay in executing both

the written judgment of contempt and commitment order must not be undue. In re

Guitierrez, No. 07-14-00406-CV, 2014 Tex. App. LEXIS 13049, at *1–2 (Tex. App.—

Amarillo Dec. 5, 2014, orig. proceeding) (mem. op.); Ex parte Morgan, 886 S.W.2d 829,

831–32 (Tex. App.—Amarillo 1994, orig. proceeding). It may last for no more than a

short, reasonable period. In re Cook, 2018 Tex. App. LEXIS 8873, at *3; In re Guitierrez,

2014 Tex. App. LEXIS 13049, at *1–2. No bright line demarcates what constitutes such

a time period. Nevertheless, under twenty-four hours has been found acceptable, see Ex

parte Morrow, No. 06-02-00082-CV, 2002 Tex. App. LEXIS 4257, at *5 (Tex. App.—

Texarkana June 13, 2002, orig. proceeding) (mem. op.), while two or more days has not.

See In re Guitierrez, 2014 Tex. App. LEXIS 13049, at *2.

Apparently, the trial court found Stewart in contempt sometime before September

1, 2021. The August 31st order suspending the “contempt order” and allowing him to

avoid confinement by posting a $2,500 bond establishes as much. Indeed, to suggest

otherwise would be to suggest that the trial court obligated Stewart to post a bond to avoid

confinement under, and suspend the operation of, a nonexistent order. We opt not to

infer that a trial court would engage in such frivolity.

3 Next, not until September 16, 2021, did the trial court memorialize its decision in

writing; that was the date on which it signed the written contempt order. And, to date, we

have no written commitment order, as acknowledged by all involved.

Needless to say, the delay alone in executing the written judgment of contempt far

exceeded the unacceptable periods mentioned above. And, as for the continuing

absence of a written commitment order, temporarily suspending enforcement of the

contempt order and provisions therein mandating Stewart’s commitment do not relieve

the court of its obligation to issue it. Suspension occurred on the condition that Stewart

post bond. Obligating the contemnor to post bond to avoid commitment remains a

restraint on liberty. See Ex parte Williams, 690 S.W.2d 243, 244 (Tex. 1985) (orig.

proceeding) (acknowledging that “one may be in custody for habeas corpus purposes

despite the fact that such person has been released from jail on bail or personal bond”).

“It is not necessary that the person be actually confined in jail” for habeas relief to issue.

In re Hightower, 531 S.W.3d 884, 887 (Tex. App.—Texarkana 2017, orig. proceeding).

In circumstances like those here, the trial court not only found acts to be contemptuous

but also ordered the one who performed them to be committed. Actual commitment may

be temporarily stayed but only because the contemnor posted a bond as a condition

precedent to same and the suspension of the contempt order. So, we reject

grandmother’s contention about the unnecessity of a written commitment order.

We conclude that both the initial delay in issuing the written contempt judgment

and the continuing absence of a written commitment order evince a denial of due process

that voids the September 16, 2021 “Order of Enforcement by Contempt and Suspension

of Commitment for Possession or Access.” See Ex parte Morgan, 886 S.W.2d at 832

4 (holding that the four-day delay in executing the written contempt judgment violated due

process “thereby voiding the judgment”). Thus, we declare the order void, find Stewart’s

restraint unlawful, grant his petition for writ of habeas corpus, order him discharged from

custody, terminate the condition that he post bond, and discharge any sureties on that

bond.

Brian Quinn Chief Justice