in Re: Joseph Stroffolino ( 2018 )

Denied and Opinion Filed August 16, 2018
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00930-CV
IN RE JOSEPH STROFFOLINO, Relator
Original Proceeding from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-00125-2018
MEMORANDUM OPINION
Before Justices Bridges, Brown, and Boatright
Opinion by Justice Bridges
Before the Court is relator’s petition for writ of habeas corpus in which he complains of
the trial court’s March 23, 2018 capias and bench warrant. In that order, the trial court found
relator in contempt for failing to comply with prior discovery orders and failing to appear at the
March 23, 2018 show cause hearing and directed the Collin County Sheriff to take relator into
custody until relator complies with the trial court’s orders. Relator states that he was arrested
pursuant to the bench warrant on August 13, 2018. In this original proceeding, relator seeks a writ
of habeas corpus directing relator’s release from custody and dissolving the bench warrant.
A contempt judgment may be collaterally attacked in an original habeas corpus proceeding.
Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967). The purpose of a writ of habeas corpus is
not to determine the guilt of the contemnor, but only to determine whether he was afforded due
process of law or if the order of contempt was void. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.
1979). A court will issue a writ of habeas corpus if the order underlying the contempt is void, or
if the contempt order itself is void. Id. An order is void if it is beyond the power of the court to
enter it, or if it deprives the relator of liberty without due process of law. In re Stein, 331 S.W.3d
538, 540 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (citing Ex parte Shaffer, 649 S.W.2d
300, 302 (Tex.1983) and Ex parte Barlow, 899 S.W.2d 791, 794 (Tex. App.—Houston [14th Dist.]
1995, orig. proceeding)). A judgment of contempt imposing a coercive restraint is void if the
conditions for purging the contempt are impossible to perform. Ex parte Jones, 602 S.W.2d 400,
402 (Tex. Civ. App.—Waco 1980, orig. proceeding). But the burden is on the relator to establish
in the trial court that he cannot perform the act necessary to purge himself. Id.
To obtain habeas relief, the relator must provide proof that he is currently being restrained.
TEX. R. APP. P. 52.3(k)(1)(D); In re Kuster, 363 S.W.3d 287, 293 (Tex. App.—Amarillo 2012,
orig. proceeding). The record includes no proof that relator was arrested or that relator remains
confined or restrained. The petition, therefore, does not provide the Court with the proof of current
restraint required by Rule 52 and should, therefore, be denied.
Accordingly, we deny relator’s August 15, 2018 “petition for writ of habeas corpus and
dissolution of warrant” without addressing the merits of the petition.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
180930F.P05
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