In Re: Gerald Christopher Walling--Appeal from 247th District Court of Harris County

Writ of Habeas Corpus Granted and Memorandum Opinion filed July 10, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-00558-CV

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IN RE GERALD CHRISTOPHER WALLING, Relator

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ORIGINAL PROCEEDING

WRIT OF HABEAS CORPUS

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M E M O R A N D U M O P I N I O N

In this original habeas corpus proceeding, relator Gerald Christopher Walling seeks release from confinement on the ground that the eight-day delay between his confinement for contempt (for nonpayment of child support) and the signing of a valid commitment order violated his due process rights. We agree and grant relief.

To confine a person for civil contempt, due process requires both a written judgment of contempt and a written order of commitment. Ex parte Hernandez, 827 S.W.2d 858, 858 (Tex. 1992). A commitment order is a warrant, order, or process by which a court directs a ministerial officer to take a person into custody. Id. An arrest for contempt without a written commitment is an illegal restraint from which the prisoner is entitled to habeas relief. Ex parte Amaya, 748 S.W.2d 224, 225 (Tex. 1988).

As an exception to the foregoing rule, a person may be incarcerated for contempt for a short and reasonable time while a commitment order is being prepared. Id. However, for this purpose, even a three-day delay (from Friday to Monday) is unreasonable. Ex parte Jordan, 865 S.W.2d 459, 459 (Tex. 1993); Amaya, 748 S.W.2d at 225.

In this case, Walling was incarcerated on February 26, 2003, pursuant to an Order of Commitment. This order set a period of confinement and stated Let, therefore, commitment issue to the Sheriff of Harris County, Texas, accompanied by a signed copy of this order, but did not actually direct anyone to take Walling into custody. Therefore, it was not a valid written commitment. See Hernandez, 827 S.W.2d at 858-59. Although an order satisfying the necessary requirements was entered by the trial court on March 6, 2003, the lapse of eight days from Walling s incarceration on February 26 to entry of the March 6 order was an unreasonable period of time for him to be incarcerated without a commitment order. Because Walling s due process rights were thereby violated by this incarceration, we grant his petition for writ of habeas corpus and order him discharged from custody.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed July 10, 2003.

Panel consists of Chief Justice Brister and Justices Edelman and Frost.