Ex parte Arapis

• Decision Date: 20 November 1957
• Docket Number: No. A-6521,A-6521
• Citation: 306 S.W.2d 884,157 Tex. 627
• Court: Texas Supreme Court
• Parties: Ex parte R. B. ARAPIS.

Page 884

306 S.W.2d 884

157 Tex. 627

Ex parte R. B. ARAPIS.

No. A-6521.

Supreme Court of Texas.

nov. 20, 1957.

Baker & Branch, Houston, Victor F. Branch, Houston, argued orally, for relator.

CALVERT, Justice.

This is an original proceeding instituted in this court by R. B. Arapis for a writ of habeas corpus to secure his release from confinement in the Dallas County jail. Relator is held in custody pursuant to a judgment of contempt entered by the Juvenile Court of Dallas County, Texas, on April 11, 1956, with enforcement suspended, and a subsequent judgment entered on July 31, 1957, revoking the suspension of enforcement of the first judgment.

The record reflects that on April 11, 1956 relator was found to be in contempt of a former judgment of the Court ordering him to make periodic child support payments. It is admitted by relator that the April 11th judgment of contempt was entered only after due notice and hearing. The judgment assessed relator's punishment at confinement in jail for a period of 72 hours and thereafter until he had purged himself of the contempt 'by the payment of the sum of $680.00 for the support of his children.' The judgment then continued: 'It Is Further ordered that all commitments, writs, attachments and other process necessary for the enforcement of this order be issued. Enforcement of this order suspended for 30 days on condition the defendant maintains current payments to $20.00 per week and before the expiration of 30 days pays the amount of $200.00, and beginning May 19, 1956, adds $5.00 to the regular current payments.'

On July 31, 1957, some sixteen and one-half months after entry of the contempt judgment described above, the court, on an ex parte hearing, entered a new judgment of contempt, identical in all material respects with the judgment of April 11, 1956, except that at the end of the language quoted in the preceding paragraph hereof the following was added: 'On 7-31-57 it appearing to the court that the defendant has failed to comply with the terms of the suspension, the suspension is revoked and an attachment is ordered issued.'

A writ of attachment and commitment was issued by the clerk of the court on July 31, 1957 commanding any sheriff or constable of the State of Texas, in obedience to an order of the court 'made and entered on the 11th day of April, 1956', to take relator into custody and commit him to jail and there keep him until 72 hours had expired and until he had 'paid the amount of $680.00 in back child support.' The writ contained the following direction: 'Herein Fail Not, but due return make of this writ within fifteen days from the date hereof, showing how you have executed the same.'

On August 29, 1957, a period of fourteen days after the return date in the writ, the sheriff of Harris County, Texas, took relator into custody and committed him to jail. He was subsequently removed to the Dallas County jail from which he was released on bond on September 4, 1957 in compliance with an order of this court.

The first question to be decided is whether the writ of attachment and commitment became functus officio after its return date, and whether the attempt to execute it after such time was without legal authority.

We have discovered no Texas authorities on this precise question. Most of the cases in this state dealing with the question in any way are cases in which it is held that writs of citation and writs of execution become functus officio after their return date and thereafter wholly without out legal force or effect. Towns v. Harris, 13 Tex. 507, 513; Hester v. Duprey, 46 Tex. 625; Lemothe v. Cimbalista by Gates, Tex.Civ.App., 236 S.W.2d 681, error refused; Reynolds v. Farmers & Merchants Nat. Bank of Nocona, Tex.Civ.App., 135 S.W.2d 556, no writ history; Blanton Banking Co. v. Taliaferro, Tex.Civ.App., 262 S.W. 196, no writ history. In the case last cited it is said: "Functus officio' is a term applied to a writ or process that once had life, but has expired by its own terms, or has become exhausted by reason of having accomplished the purpose of its issuance.' Relator argues that a writ of attachment and commitment in contempt should not be in a different class. We are inclined to agree. No authority to the contrary has been found and consistent with this view is 6 C.J.S. Arrest § 68, where at page 682, it is said concerning warrants of arrest:

'After the term to which process is returnable, it is functus officio where no alias has been issued and defendant's arrest thereunder is unauthorized.'

The only case cited by Corpus Juris Secundum for the quoted statement (and we have found no other) is the South Carolina case of Butler v. Corbitt, 33 S.C.L. 1, 2 Strob. 1. In that case process for the defendant's arrest was, on its face, made returnable at the next term of court. The process was executed by arrest of the defendant after the return date. The court held the writ to be functus officio and set the service aside.

A 'commitment' is a warrant, order or process by which a court or magistrate directs a ministerial officer to take a person to jail or to prison and to detain him there. 7A Words and Phrases, Commitment, p. 577, et seq. It is the written authority under which the officer acts. 'There is no particular form prescribed by law for a commitment.' Ex Parte Palmateer, 150 Tex. 510, 243 S.W.2d 160, 161. It may consist of an authenticated copy of the court's judgment which itself directs that a person be placed in jail and be there detained, Ex Parte Coward, 110 Tex. 587, 222 S.W. 531, or it may take the form of a separate written order, signed by the judge or magistrate, or of a written order issued and signed by the clerk of the court by direction of the court.

In this case no authenticated copy of the court's judgment was placed in the hands of the sheriff, and neither was he furnished an order signed by the judge directing that a relator be placed in jail and...