in Re Joseph Andre Davis

• Court: Court of Appeals of Texas
• Decided: November 13, 2014
• Docket: 01-14-00838-CV
• Status: Published

Opinion

Opinion issued November 13, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00838-CV ——————————— IN RE JOSEPH ANDRE DAVIS, Relator

Original Proceeding on Petition for Writ of Habeas Corpus

MEMORANDUM OPINION

Relator Joseph Andre Davis, acting pro se, has filed a petition for writ of

habeas corpus requesting that we compel the trial court to vacate (1) a temporary

restraining order issued against relator and (2) an order in a suit to modify the parent-child relationship granting the maternal grandparents temporary custodial

managing conservatorship of relator’s child.1

The circumstances under which this court has original habeas jurisdiction

are narrow. Specifically, this court has original jurisdiction to issue a writ of

habeas corpus in civil matters only when it appears that a person is restrained in his

liberty “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). Thus, an original habeas corpus proceeding in our Court

is a collateral attack on a contempt decree. See Ex parte Rohleder, 424 S.W.2d

891, 892 (Tex. 1967).

Here relator has not demonstrated that the relief he requests is authorized by

§ 22.221(d) because relator has not shown that the complained of orders arose

from his being held in contempt. See In re McLane, No. 01-08-00763-CV, 2009

WL 4358857, at *1 (Tex. App.—Houston [1st Dist.] Nov. 30, 2009, no pet.)

(dismissing habeas petition in child custody case for lack of jurisdiction because

relator failed to demonstrate that orders arose from being held in contempt); see

also In re Barnard, No. 09-13-00150-CV, 2013 WL 1790240, at *1 (Tex. App.—

1 The underlying case is In the Interest of J.A.D., cause number 1997-09681, pending in the 245th District Court of Harris County, Texas, the Honorable Roy L. Moore presiding. 2 Beaumont April 25, 2013, no pet.) (“This Court lacks original jurisdiction of a

habeas proceeding for the return of a child.”). Accordingly, this Court lacks

original jurisdiction to issue a writ of habeas corpus under the facts presented. See

TEX. GOV’T CODE ANN. § 22.221(d); In re McLane, 2009 WL 4358857, at *2.

We note that there is no indication that relator has filed an application for a

writ of habeas corpus for return of the child with the trial court. See TEX. FAM.

CODE. ANN. § 157.371(a) (West 2014) (“The relator may file a petition for a writ

of habeas corpus in either the court of continuing, exclusive jurisdiction or in a

court with jurisdiction to issue a writ of habeas corpus in the county in which the

child is found.”). It is well-established that a trial court’s order granting or denying

a writ of habeas corpus in a child-custody case is not an appealable order. See, e.g.,

Gray v. Rankin, 594 S.W.2d 409, 409 (Tex. 1980). However, mandamus may lie to

correct the erroneous denial of a habeas petition seeking possession of a child

under Chapter 157 of the Family Code. See In re Kubankin, 257 S.W.3d 852, 858

(Tex. App.—Waco 2008, no pet.); In re deFilippi, 235 S.W.3d 319, 322 (Tex.

App.—San Antonio 2007, no pet.).

We dismiss the petition for writ of habeas corpus for lack of jurisdiction.

PER CURIAM Panel consists of Justices Massengale, Brown, and Huddle.