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In re Linan

Court of Appeals of Texas, First District, Houston

December 12, 2013

IN RE JAVIER LINAN, JR., Relator

For Relator: Germaine J. Tanner, Houston, TX.

For Real Party in Interest: Arthur J. White III, Houston, TX.

Panel consists of Justices Keyes, Higley, and Massengale.

OPINION

Laura Carter Higley, Justice

Page 695

Original Proceeding on Petition for Writ of Habeas Corpus

Relator, Javier Linan, Jr., requests habeas corpus relief from a September 16, 2013 trial court " Order Revoking Suspension and for Commitment to County Jail." [1] On September 27, 2013, after a preliminary review of relator's petition for writ of habeas corpus, we ordered relator released upon his posting of a bond in the amount of $1000.00, pending a final determination of his petition. Because we conclude that relator is entitled to relief, we grant his petition for writ of habeas corpus, order relator released from the bond set by this Court on September 27, 2013, and order him discharged from custody.

Background

On September 22, 2009, an Order in Suit Affecting the Parent-Child Relationship was signed by the 247th District Court of Harris County, Texas. Pursuant to this order, inter alia, relator was ordered to pay child support in the amount of $338.35 per month to real party in interest, Yanidd Bianca Alvarado. Relator was also ordered to pay $116.69 every month as additional child support for health insurance reimbursement.

On April 26, 2013, real party in interest filed a Motion for Enforcement of Child Support Order against relator. The motion alleged that relator failed to pay or only partially paid the court-ordered child support and medical reimbursement for the months of December 2012 through March 2013. The motion requested 180 days jail for each violation, to run concurrently, community supervision for 10 years, judgment on arrears, and attorney's fees.

On July 2, 2013, relator appeared for a hearing before an associate judge on the motion for enforcement. At the hearing, relator waived his right to counsel. At the conclusion of the hearing, relator was found in contempt for failure to make child support payments and failure to make medical reimbursement payments for the months of December 2012 through April 2013. On July 12, 2013, the associate judge signed an order granting a judgment for child support arrearages and medical support arrearages and sentencing relator to 180 days in Harris County jail for each violation, to run concurrently. The associate judge's order also specified that relator not be given good conduct time credit for the time spent in jail. Finally, the order suspended relator's jail sentence. The terms and conditions for suspended commitment included paying $50.00 per month towards relator's child support arrears, $25.00 per month towards relator's medical reimbursement arrears, $700.00 in attorney's fees, and continued payment of all child support as ordered by the associate judge. Compliance hearings were set for September 12, 2013 and December 18, 2013. The record does not reflect that the July 12, 2013 order was adopted by the referring court. See Tex. Fam. Code Ann. § 201.007(a)(13) (West 2008) (associate judge's authority to " order the detention of

Page 696

a witness or party found guilty of contempt" is limited by the required approval of the referring court); id. § 201.013(b) (" [T]he proposed order or judgment of the associate judge becomes the order or judgment of the referring court only on the referring court's signing the proposed order or judgment." ).

On September 12, 2013, relator appeared at his compliance hearing. At the conclusion of the hearing, the presiding judge--a retired district judge apparently sitting by assignment--found that relator had not complied with the terms of the July 12, 2013 order, revoked relator's suspension, and orally pronounced, " I reinstate the sentence of . . . 180 days for each contempt violation, as set out in the judgment of July the 12th, 2013." The judge then remanded relator to the custody of the sheriff to be kept in jail until the terms of his sentence were complete or until relator was brought ...


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