Ex Parte Lionel A. Betancourt, Jr.--Appeal from 81st Judicial District Court of Frio County

MEMORANDUM OPINION

No. 04-05-00233-CV

EX PARTE Lionel A. BETANCOURT, Jr.,

From the 81st Judicial District Court, Frio County, Texas

Trial Court No. 94-05-00103-CVF

Honorable Donna S. Rayes, Judge Presiding

Opinion by: Sarah B. Duncan , Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 27, 2006

DISMISSED IN PART FOR LACK OF JURISDICTION AND AFFIRMED IN PART

Lionel A. Betancourt Jr. appeals the trial court's order denying his "Second Amended Application For Pre-Trial Writ of Habeas Corpus, Plea In Bar And/Or Abatement And/Or Motion to Quash" in a child support enforcement proceeding. We dismiss Betancourt's appeal in part for lack of jurisdiction and in all other respects affirm.

In 1994, the trial court signed a judgment declaring Betancourt to be the father of D.L.B., ordering Betancourt to pay $160.00 a month for child support, and awarding the Office of the Attorney General retroactive child support. In October 2003, the Attorney General filed a motion to enforce the 1994 order. As a result of that proceeding the trial court, on August 12, 2004: (1) granted the Attorney General a cumulative judgment for child support arrearages in the amount of $20,899 as of June 30, 2004; (2) ordered Betancourt to make periodic payments on the arrearage; (3) modified Betancourt's child support obligation and ordered him to pay $206.00 for child support and $50.00 for cash medical support each month beginning August 1, 2004; (4) found Betancourt in civil and criminal contempt for failing to make court-ordered child support payments in October, November, and December of 2003 and January of 2004; (5) ordered Betancourt committed to the county jail for 180 days for each act of contempt, to run concurrently; and (6) suspended the commitment order and placed Betancourt on community supervision for ten years, requiring as a condition of supervision that Betancourt pay the arrearage, current child support, and medical support as ordered. Betancourt did not appeal the arrearage judgment or the child support order.

On February 3, 2005, the Attorney General filed a new motion to enforce, seeking a cumulative arrearage judgment and enforcement by contempt of the August 12, 2004, child support order. Betancourt voluntarily appeared and answered and filed his "Second Amended Application For Pre-Trial Writ of Habeas Corpus, Plea In Bar And/Or Abatement And/Or Motion to Quash." Betancourt's motion seeks relief on the grounds that infirmities in the 2004 contempt proceeding render the 2004 contempt judgment void; the current contempt proceeding is barred by double jeopardy and by the doctrines of res judicata, collateral estoppel, merger, and bar; and the punishment the Attorney General seeks to have imposed if Betancourt is found in contempt violates his constitutional rights. After a hearing, the trial court found: errors in the 2004 contempt proceeding preclude enforcement of the 2004 contempt judgment and commitment order; the Attorney General is not seeking to revoke Betancourt's community supervision or otherwise enforce the 2004 contempt judgment; and the Attorney General's current motion to enforce seeks a contempt finding and judgment only for Betancourt's failure to pay current child support of $206.00 beginning August 1, 2004 and monthly thereafter as ordered and does not seek confinement for any alleged violations that occurred before September 1, 2004. The trial court denied Betancourt's motions and denied habeas relief. Betancourt appeals.

1. Jurisdiction. This court's appellate jurisdiction is limited to appeals of final judgments and interlocutory orders for which an appeal is authorized by statute. Materials Evolution Dev. USA, Inc. v. Jablonowski, 949 S.W.2d 31, 33 (Tex. App.-San Antonio 1997, no writ). No statute authorizes an appeal of the interlocutory order denying Betancourt's pleas in bar and abatement and motion to quash. Accordingly, we do not have jurisdiction to review these aspects of the trial court's order. However, the denial of habeas corpus relief in a matter arising out of a civil proceeding is considered a final judgment in a civil case over which this court does have jurisdiction.Harbison v. McMurray, 138 Tex. 192, 158 S.W.2d 284, 287 (1942); see In the Matter of M.C., 915 S.W.2d 118 (Tex. App.-San Antonio 1996, no writ) (court of appeals had jurisdiction because juvenile's appeal was not from temporary detention order but from denial of habeas corpus relief). Accordingly, we have jurisdiction to review the trial court's order to the extent it denies habeas corpus relief.

2. Restraint. An applicant for a writ of habeas corpus must allege and show that he is under some form of restraint of liberty. Ex parte Calhoun, 127 Tex. 54, 91 S.W.2d 1047, 1048 (1936). Betancourt argues that he is restrained by the 2004 contempt judgment, the terms of his community supervision, and the current "threat" to have him jailed for contempt. We disagree. Betancourt is seeking pretrial habeas corpus relief from the current motion for contempt. This motion for contempt is based on the 2004 child support order and not based on or in any way dependent on the 2004 contempt judgment, commitment order, or community supervision order. The record reflects Betancourt is under no restraint by reason of the current contempt motion. He is not in jail, has not been released on bond or bail, and has not yet been found guilty of or jailed for contempt. See Armes v. State, 573 S.W.2d 7, 9 (Tex. Crim. App. [Panel Op.] 1978). A party that is merely under a threat of being confined for contempt is not "under any character of restraint whatever. He may go and come as freely as he sees fit." Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 832 (1960) (on rehearing). Moreover, Betancourt has not shown that he was restrained by the 2004 contempt judgment at the time he filed his application for writ of habeas corpus. He was not in jail or on bond pursuant to that judgment; the conditions of his community supervision did not physically restrain his freedom of movement; and the record reflects there was no pending compliance hearing, outstanding capias, or show cause order. Further, the Attorney General is not seeking to enforce the 2004 contempt judgment, which the trial court found to be unenforceable; and the court clearly stated it does not intend to enforce the judgment. See Calhoun, 91 S.W.2d at 1047-48 (holding that judgment of contempt assessing jail sentence is insufficient restraint to justify granting writ of habeas corpus when order of commitment was never given to sheriff and relator was never arrested or put in jail); Deramus, 333 S.W.2d at 825-26, 832 (relator, who was held in contempt, assessed a jail sentence, and had sentence suspended, and who had been ordered to appear for sentence to be executed was not under any restraint and application for a writ of habeas corpus was premature); Ex parte Hughey, 932 S.W.2d 308, 310-11 (Tex. App.-Tyler 1996, orig. proceeding, writ denied) (when probated jail term for contempt required periodic payment of arrearages and compliance with court's temporary order, but did not include any type of tangible restraint of liberty, relator was not under restraint sufficient to justify habeas relief); cf. Ex parte Duncan, 796 S.W.2d 562, 564 (Tex. App.-Houston [1st Dist.] 1990, orig. proceeding) (conditions of probation that not only required relator to pay child support and arrearage but also required relator to report to a probation officer at least once a month and prohibited travel outside the county without court permission constituted restraint precluding absolute freedom of action). Because Betancourt is not under restraint, the trial court did not abuse its discretion in denying relief. See Ex parte Campos, 936 S.W.2d 23, 23 (Tex. App.-San Antonio 1996, pet. ref'd) (trial court's denial of a pretrial application for writ of habeas corpus is reviewed for abuse of discretion). We therefore affirm the trial court's order denying pretrial habeas corpus relief and in all other respects dismiss Betancourt's appeal.

Sarah B. Duncan , Justice