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In re Mayorga

Court of Appeals of Texas, Eighth District, El Paso

November 30, 2017

IN RE: CAROLINA MAYORGA, RELATOR

         AN ORIGINAL PROCEEDING IN HABEAS CORPUS

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          YVONNE T. RODRIGUEZ, JUSTICE .

         Carolina 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.

         FACTUAL SUMMARY

         On 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.[1] 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.

         In an 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.

         On July 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.

         DENIAL OF GOOD TIME CREDIT

         In her 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.

         A 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. proceeding).

         Article 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 ...


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