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holding that there was not sufficient restraint of liberty where only the condition of probated sentence was to comply with the terms of the divorce decree without any tangible restraint of liberty
Summary of this case from In re DepeauOpinion
No. 14-08-01070-CV
Memorandum Opinion filed December 4, 2008.
Original Proceeding Writ of Habeas Corpus.
Panel consists of Chief Justice HEDGES and Justices GUZMAN and BROWN.
MEMORANDUM OPINION
On November 24, 2008, relator, Monique Parker, filed a petition for writ of habeas corpus seeking to have her probated thirty-day jail sentence lifted. See Tex. Gov't Code Ann. § 22.221(d) (Vernon 2004); Tex. R. App. P. 52. Relator's petition is denied.
Relator's petition does not comply with the Texas Rules of Appellate Procedure because the documents in the appendix are not sworn or certified, the appendix contains no signed order, there is no certification that the facts in the petition are supported by citation to competent evidence included in the appendix or record, and there is no reporter's record of the hearing. See Tex. R. App. P. 52.3(j) (k); 52.7(a)(1) (2).
Moreover, relator is not restrained under her probated sentence for purposes of habeas corpus relief. Because the function of a writ of habeas corpus is to secure release from an unlawful custody, the relator must show that the contemnor has undergone a restraint of liberty. In re Ragland, 973 S.W.2d 769, 771 (Tex.App.-Tyler 1998, orig. proceeding).
Although actual confinement is the typical restraint of liberty, courts have extended the meaning of term "restraint of liberty" beyond actual imprisonment. Id. The meaning of restraint includes probation where the terms of the probation include some type of tangible restraint of liberty. Id. (citing Ex parte Brister, 801 S.W.2d 833, 834-35 (Tex. 1990) (contemnor required to submit to sixty days' house arrest and electronic monitoring); Ex parte Duncan, 796 S.W.2d 562, 564 (Tex.App.-Houston [1st Dist.] 1990, orig. proceeding) (contemnor was required to report to probation officer once a month and could not leave Harris County without trial court's permission)).
However, when a jail sentence is probated without any type of tangible restraint of liberty, a contemnor is not restrained for purposes of habeas corpus relief when she is merely ordered to make payments that the trial court adjudges that she owes or otherwise comply with the trial court's orders. In re Hughley, 932 S.W.2d 308, 310 (Tex .App.-Tyler 1996, orig. proceeding); Ex parte Shaw, No. 07-01-0196-CV, 2002 WL 483494, at *1 (Tex.App.-Amarillo May 8, 2001, orig. proceeding) (not designated for publication); In re Gill, No. 04-99-00828-CV, 1999 WL 1073938, at *1 (Tex.App.-San Antonio Nov. 24, 1999, orig. proceeding) (not designation for publication).
Here, relator's probated sentence, as set forth in the unsigned order filed with relator's petition, includes no conditions other than to comply with the terms of the divorce decree without any tangible restraint of liberty. Therefore, relator is not restrained for purposes of habeas corpus relief.
Accordingly, we deny relator's petition for writ of habeas corpus.