Ex parte Crawford, 767

• Decision Date: 15 February 1974
• Docket Number: No. 767,767
• Citation: 506 S.W.2d 920
• Parties: Ex parte Billy Joe CRAWFORD.
• Court: Texas Court of Appeals

Page 920

506 S.W.2d 920

Ex parte Billy Joe CRAWFORD.

No. 767.

Court of Civil Appeals of Texas,

Tyler.

Feb. 15, 1974.

Loftis, Rowan & Files, F. R. Files, Jr., Tyler, for relator.

PER CURIAM.

This is an original habeas corpus proceeding. Relator, Billy Joe Crawford, alleges he is being illegally restrained by a judgment of contempt for violation of an order requiring him to make child support payments. Our review of the proceeding is necessarily limited, since we do not exercise appellate, but original jurisdiction.

For this contempt proceeding to be subject to collateral attack in this habeas corpus proceeding, it must be void and not merely voidable. Ex parte Tyler, 152 Tex. 602, 261 S.W.2d 833 (1953). Although a writ of habeas corpus is a writ of right, probable cause must be shown before it will issue. It is not a writ of course. Lazaros v. State 228 S.W.2d 972 (Tex.Civ.App., Dallas, 1950, n.w.h.) . We have concluded that petitioner's application is insufficient to show probable cause for the issuance of a writ because the application fails to show that the Relator is, in fact, confined or restrained. 'A mere judgment of contempt will not justify the granting of a writ of habeas corpus.' Ex parte Calhoun, 127 Tex. 54, 91 S.W.2d 1047 (1936). It must be shown that the Relator is actually restrained. Ex parte Beamer, 116 Tex. 39, 285 S.W. 255 (1926). A petition for writ of habeas corpus, though sworn to, is not proof of the facts stated therein. 27 Tex.Jur. 2d sec. 49, p. 726. Ordinarily where a person is restrained by a writ, order or process, a copy thereof must be annexed to the petition, showing the action taken thereon by the person executing the same. 27 Tex.Jur.2d sec. 49, p. 725. The record before us fails to contain an order of commitment or any other evidence showing that the Relator is actually confined or restrained. Proof of actual restraint could have been supplied by attaching the commitment, or a letter, certificate or wire from the sheriff showing that the Relator is, in fact, being restrained. See 'Habeas Corpus Proceedings in the Supreme Court of Texas' by Joe Greenhill and Martin D. Beirne, Jr., St. Mary's Law Journal, Vol. 1, No. 1, 1969.

Perhaps we should conclude this opinion at this point, but in view of the fact that Relator is permitted to make successive applications for a writ, it might be helpful to set forth the additional reasons why we would deem the application deficient even though Relator had fulfilled the requirement of showing actual restraint.

In the second paragraph of his application, Relator avers that he is being restrained by virtue of the judgment finding him to be in contempt. The judgment is as follows: 'LET, THEREFORE, commitment issue to the Sheriff of Wood County, Texas, accompanied by a certified copy of this judgment.' Relator does not aver that no commitment was ever issued. If Relator had shown he was actually restrained, and if he had further shown his restraint resulted from an arrest without a written commitment for the purpose of enforcing the contempt judgment, such restraint would then be illegal and in violation of due process. Ex parte Martinez, 160 Tex. 328,...