In re Robert Lee Gill, Jr., Relator--Appeal from 225th Judicial District Court of Bexar County

99-00828 In re Gill.wpd No. 04-99-00828-CV
In re Robert Lee GILL, Jr.
Related Trial Court Proceeding
225th Judicial District Court, Bexar County, Texas
Trial Court No. 93-CI-14511
Honorable David Berchelmann, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Paul W. Green, Justice

Delivered and filed: November 24, 1999

PETITION FOR ORIGINAL APPLICATION FOR HABEAS CORPUS DISMISSED FOR LACK OF JURISDICTION

Robert Lee Gill, Jr. has filed a Petition for Original Application for Writ of Habeas Corpus complaining of a contempt order arising out of his failure to pay child support.(1)

The courts of appeals have limited jurisdiction to issue writs of habeas corpus. Ex Parte Layton, 928 S.W.2d 781, 782 (Tex. App.-Amarillo 1996, orig. proceeding). Our jurisdiction extends only to those situations where a person "is restrained in his liberty . . . by virtue of an order, process, or commitment issued by a court or judge because of the violation of an order, judgment, or decree previously made, rendered or entered . . . in a civil case." Tex. Gov. Code Ann. 22.221(d) (emphasis added); see Tex. R. App. P. 52(j)(D) (requiring proof of restraint with petition for habeas corpus). Although it is not necessary for the petitioner to actually be confined to jail, there must be some restraint to justify relief. See Ex Parte Crawford, 91 S.W.2d 1047, 1048 (Tex. 1936); Ex Parte Layton, 928 S.W.2d at 782; Ex Parte Sealy, 870 S.W.2d 663, 666 (Tex. App.-Houston [1st Dist.] 1994, orig. proceeding).

Gill's petition contains no proof of restraint. See Tex. R. App. P. 52(j)(D). In fact, he admits in his petition that he paid $1,000.00 of the amount owed and was released from confinement.(2) Gill does not suggest that he is currently required to report to the court or a probation officer, or that he is otherwise restrained in any way from carrying on his daily business. He simply remains under order to pay the back child support adjudged by the court along with court costs. This is not sufficient restraint to invoke our jurisdiction. See Ex Parte Hughey, 932 S.W.2d 308, 310-11 (Tex. App.-Tyler 1996, orig. proceeding); Ex Parte Sealey, 870 S.W.2d at 666. Accordingly, we dismiss Gill's Petition for Original Application for Writ of Habeas Corpus.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. Gill also filed a Motion for Leave to File Original Application for Writ of Habeas Corpus. A motion for leave is no longer required by the rules. See Tex. R. App. P. 52 & comment. Accordingly, we deny the motion for leave as moot.

2. It also appears that this petition may be moot or premature. The trial court's order stated that if Gill paid $1,000.00 on or before the date his sentence commenced, the commitment order would be suspended and further orders entered. Gill states that he paid the money and was released. We do not know what further orders may have been entered.