Court of Appeals of Texas, Eighth District, El Paso
ORIGINAL PROCEEDING IN HABEAS CORPUS
McClure, C.J., Rodriguez, and Palafox, JJ.
T. RODRIGUEZ, JUSTICE .
Mayorga has filed a habeas corpus petition challenging a
contempt order issued by the Honorable Laura Strathmann,
Judge of the 388th District Court of El Paso County, Texas.
Pending review, this Court issued an order setting bond.
Finding that the portion of the contempt order setting an
ending date for Mayorga's incarceration is void, we
strike that portion of the contempt order. Finding no merit
in the remainder of Mayorga's issues, we deny the
petition for writ of habeas corpus, order the bond revoked,
and remand her to the custody of the El Paso County Sheriff.
April 12, 2016, the 388th District Court entered temporary
orders in cause number 2012-DCM-01701, styled In the
Interest of N.I.G., a Child, providing for
Gallegos's visitation and access to the child. Gallegos
filed a motion to enforce alleging that Mayorga had failed to
surrender the child to him on November 4, 2016, and on
November 6, 2016, and he asked that Mayorga be held in
contempt. The trial court conducted a hearing on
March 1, 2017. On the day of the hearing, Mayorga filed an
answer setting forth affirmative defenses based on Sections
261.106(a) and 262.003 of the Texas Family Code. The trial
court sustained Gallegos' objections to Mayorga's
reliance on these defenses and struck this portion of
Mayorga's written answer. Mayorga argued that she should
not be held in contempt because the child had made an outcry
of sexual abuse and she had been instructed by law
enforcement officers and personnel from the Texas Department
of Family and Protective Services to not turn over the child
to Gallegos on November 4, 2016.
order signed on March 30, 2017, the trial court found Mayorga
guilty of both counts of contempt and ordered her to serve
fifteen days in jail on each count, consecutively, for a
total of thirty days. The contempt order provides as follows:
IT IS ORDERED that punishment for the above numerated [sic]
violations is confinement in the county jail of El Paso
County, Texas, for a period of fifteen (15) days for each
violation, with the respective confinements to run
consecutively for a total of thirty (30) days to be served.
IT IS THEREFORE ORDERED that CAROLINA MAYORGA be committed to
the county jail of El Paso County, Texas, for a cumulative
period of thirty (30) days for the total number of violations
enumerated above. Said commitment shall begin at 6:30 p.m. on
July 1, 2017, and shall end at 6:00 p.m. on July 30, 2017.
17, 2017, Mayorga filed a petition seeking habeas corpus
relief, and she filed a motion for temporary relief the
following day. On July 19, 2017, we issued an order setting a
bond pending our review of the petition.
OF GOOD TIME CREDIT
first issue, Mayorga argues that the contempt order is void
because it impermissibly restricts the sheriff's
authority and discretion to grant her good-time credit under
Article 42.032 of the Code of Criminal Procedure by setting a
beginning and ending date for the period of incarceration
Mayorga is ordered to serve.
commitment order is subject to collateral attack in a habeas
corpus proceeding. In re Henry, 154 S.W.3d 594, 596
(Tex. 2005); Ex parte Barnett, 600 S.W.2d 252, 254
(Tex. 1980). A writ of habeas corpus will issue if the trial
court's contempt order is void, either because it is
beyond the court's power or because the relator has not
been afforded due process. In re Henry, 154 S.W.3d
at 596. The purpose of a habeas corpus proceeding is not to
determine the relator's guilt or innocence, but to
ascertain if the relator has been unlawfully confined. Ex
parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979)(orig.
42.032, § 2 provides: "The sheriff in charge of
each county jail may grant commutation of time for good
conduct, industry, and obedience. A deduction not to exceed
one day for each day of the original sentence actually served
may be made for the term or terms of sentences if a charge of
misconduct has not been sustained against the
defendant." Tex.Code Crim.Proc.Ann. art. 42.032, §
2 (West Supp. 2017). Contemnors incarcerated in the county
jail pursuant to a criminal contempt order are entitled to be
considered for "good time" credit. See Ex parte
Acly, 711 S.W.2d 627, 628 (Tex. 1986). A trial judge has
no authority to set an ending date on a criminal contempt
sentence because that denies the contemnor his right to be
considered for good conduct time ...