Original Proceeding on Petition for Writ of Habeas Corpus
consists of Chief Justice Radack and Justices Massengale and
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
child's parents signed a mediated settlement agreement in
a previous modification and enforcement action. The trial
court signed an order incorporating the parties'
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.
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.
I. Propriety of habeas corpus
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.
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.
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).
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 ...