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In re White

Court of Appeals of Texas, First District

May 22, 2018

IN RE KELLEY WHITE, Relator

          Original Proceeding on Petition for Writ of Habeas Corpus

          Panel consists of Chief Justice Radack and Justices Massengale and Brown.

          MEMORANDUM OPINION

          PER CURIAM

         This is a challenge to a contempt finding in a suit affecting a parent-child relationship.[*] Relator Kelley White-the mother of the child who is the subject of the proceedings-seeks a writ of habeas corpus or, alternatively, a writ of mandamus. She asks this court to compel the trial court to vacate its December 23, 2017 order of enforcement by contempt and suspension of commitment. The mother raises three issues: (1) the underlying order is not specific enough to support contempt; (2) she did not violate any provisions of the underlying order; and (3) she established the defense of involuntary inability to comply with the underlying order. Because one of the contempt findings did not establish a violation of the underlying order, we grant habeas relief in part. We deny the mother's petition in all other respects.

         Background

         The child's parents signed a mediated settlement agreement in a previous modification and enforcement action. The trial court signed an order incorporating the parties' agreement.

         The child's father-the real party in interest in this original proceeding- subsequently filed a motion for enforcement alleging four violations of the underlying order. The two allegations from this motion that resulted in contempt findings are: (1) "Violation 2"-the mother set up, but then canceled the child's counseling session on September 7, 2017; and (2) "Violation 3"- the mother violated the mediated settlement agreement requiring her to transport the child to and from each counseling session, because the order required counseling to occur at least on a monthly basis, and yet she delivered the child to only four sessions in the six months following the agreement.

          After a hearing, the trial court signed an order of enforcement by contempt. The trial court found that the mother had committed Violation 2 by canceling a September 7, 2017 session, which the court found to be a violation of the provision of the agreement requiring the parties to follow the counselor's recommendation regarding the frequency of sessions. The trial court also found that the mother had committed Violation 3 by transporting the child to and from only four counseling sessions in the six months since the agreement was signed. The trial court assessed punishment for each violation of a period of 179 days in the county jail, with the sentences to run concurrently. The trial court then suspended commitment and placed the mother on community supervision for a period of one year with the conditions that she attend compliance hearings, report to a community supervision officer, and pay the community supervision fee.

         Analysis I. Propriety of habeas corpus relief

         The mother contends that she has been restrained of her liberty and this allows her to seek habeas relief. Alternatively, she seeks mandamus relief. The father argues that neither remedy is appropriate under these circumstances.

         The method for challenging an order of contempt in a civil case is an application for writ of habeas corpus. See In re Reece, 341 S.W.3d 360, 370-71 (Tex. 2011); Ex parte Williams, 690 S.W.2d 243, 244 (Tex. 1985) (orig. proceeding). To obtain habeas relief, a relator must show restraint of liberty, but proof of actual confinement is not necessary. See Williams, 690 S.W.2d at 244; In re Campbell, No. 01-17-00251-CV, 2017 WL 3598251, at *2 (Tex. App.-Houston [1st Dist.] Aug. 22, 2017, orig. proceeding) (mem. op.). The mother asserts that the contempt order restrains her liberty because it requires her to periodically report to a probation officer. The father argues that the mother is not entitled to habeas relief because she is not in custody and her probation conditions do not rise to the level of custody.

         Probation conditions that tangibly restrain a relator's liberty may be sufficient to support a habeas application. See Ex parte Brister, 801 S.W.2d 833, 835 (Tex. 1990) (orig. proceeding) (probated 30-day sentence with conditions of payment of fees, participation in counseling, and 60 days' house arrest sufficient restraint to pursue habeas relief); In re Ragland, 973 S.W.2d 769, 771 (Tex. App.-Tyler 1998, orig. proceeding) (probation requirement of weekly community service for one year sufficient to pursue habeas relief); Ex parte Duncan, 796 S.W.2d 562, 564 (Tex. App.-Houston [1st Dist.] 1990, orig. proceeding) (probation requirement to report to probation officer monthly and prohibiting travel outside Harris County without permission held sufficient to seek habeas relief); In re Sanner, No. 01-09-00001- CV, 2010 WL 2163140, at *3 (Tex. App.-Houston [1st Dist.] May 20, 2010, orig. proceeding) (holding that probation conditions, including reporting to community supervision officer, participating in employment assistance, completing counseling, and having only supervised visitation, constituted sufficient restraint on liberty); In re Boswell, No. 07-03-0527-CV, 2004 WL 253267, at *1-2 (Tex. App.-Amarillo Feb. 11, 2004, orig. proceeding) (holding that community supervision with unspecified conditions were sufficient restraint on liberty to allow relator to seek habeas relief); In re Burleson, No. 05-99-00703-CV, 1999 WL 330375, at *2 (Tex. App.-Dallas May 26, 1999, orig. proceeding) (holding that probation requirement to report to probation officer monthly was sufficient restraint on liberty to permit relator to pursue habeas relief).

         Here, the mother's probation contains two conditions: that she appear for compliance hearings and that she report monthly to a community supervision officer. Although the conditions do not restrict the mother from travel, they are similar to the conditions held by two courts to impose a sufficient restraint on liberty to permit habeas relief. See Boswell, 2004 WL 253267, at *1-2; Burleson, 1999 WL 330375, at *2. Thus, the mother appropriately seeks a writ of habeas corpus.

         II.Review of contempt ...


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