In re Rolando Garza, Individually and d/b/a Law Office of Garza and Whitaker, P.C.--Appeal from County Court at Law of Starr County

PER CURIAM

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: April 21, 2004

PETITION FOR WRIT OF HABEAS CORPUS DENIED

On March 1, 2004, relator filed a motion for emergency stay and petition for writ of habeas corpus from a judgment of civil and criminal contempt. The trial court found relator in contempt for failing to comply with a discovery order to produce bank records for an in camera inspection by the court. A capias for the arrest of relator by the Sheriff of Starr County, Texas, was issued pursuant to the court's judgment of contempt and commitment order signed on February 5, 2004. This Court granted relator's request for an emergency stay of the capias and contempt judgment pending final disposition of the petition for writ of habeas corpus. Tex. R. App. P. 52.10. We ordered a response to relator's habeas corpus petition. Tex. R. App. P. 52.8(b). On March 19, 2004, the real party in interest, Lidieth Leal, guardian of the minor child Elsa Garcia, filed a response to the petition.

The Court has considered relator's petition for writ of habeas corpus and motion for emergency relief filed on March 1, 2004. The court is of the opinion that relief should be denied. Relator's request that this Court determine whether the contempt judgment is void is premature in view of the mandatory referral procedure providing for an independent determination of relator's guilt or innocence by a district court other than the court that made the initial finding of contempt. See Tex. Gov't Code Ann. 21.002(d) (Vernon 2004); Ex parte Waters, 499 S.W.2d 309, 310-11 (Tex. Crim. App. 1973). As an officer of the court, an attorney has a right, upon proper motion filed in the offended court, to be released on his own personal recognizance pending a de novo determination of his guilt or innocence by a judge other than the judge of the offended court. Ex parte Howell, 488 S.W.2d 123, 126 (Tex. Crim. App. 1972); Ex parte Avila, 659 S.W.2d 443, 445 (Tex. Crim. App. 1983). Once a finding of contempt has been entered and an attorney has filed a motion for referral, the trial court has a ministerial duty to refer the contempt proceeding to the presiding judge of the administrative judicial region in which the alleged contempt occurred for assignment of a judge to re-adjudicate the issues of guilt or innocence and punishment. Tex. Gov't Code Ann. 21.002(d); see Howell, 488 S.W.2d at 126; see also In re Abraham, 22 S.W.3d 512, 515 (Tex. App.--El Paso 1999, orig. proceeding). Therefore, relator has an adequate remedy at law. Accordingly, relator's petition for writ of habeas corpus and motion for emergency relief are denied. Tex. R. App. P. 52.8(a). Relator shall pay all costs incurred in this proceeding.

PER CURIAM

1. This proceeding arises out of Cause No. PR: 00-36 styled In the Matter of Elsa Garcia, a Minor, filed in the County Court at Law of Starr County, Texas. The Honorable Romero Molina presided over the hearing and signed the judgment of contempt and commitment order that is the subject of this habeas corpus proceeding.