in Re Jeffery John Gallien ( 2009 )

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MEMORANDUM OPINION
No. 04-09-00532-CV
IN RE Jeffery John GALLIEN
Original Mandamus Proceeding1
PER CURIAM
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Delivered and Filed: September 30, 2009
PETITION FOR WRIT OF HABEAS CORPUS GRANTED
On August 24, 2009, relator Jeffery John Gallien filed a petition for writ of habeas corpus,
complaining that the combined contempt and commitment order, holding him in contempt for failure
to pay child support, is void. On August 13, 2009, Gallien was found in contempt for failure to pay
child support and was taken into custody by the Sheriff of Bexar County. An order holding Gallien
in contempt and committing him to the county jail was not signed until August 19, 2009. This
combined contempt and commitment order outlines the findings of the court, finds that Gallien is
in arrears in the amount of $12,570.32, finds him in contempt of court, and orders him confined in
1
… This proceeding arises out of Cause No. 2005-CI-04507, pending in the 73rd Judicial District Court, Bexar
County, Texas, the Honorable Andy Mireles presiding. However, the challenged order was signed by the Honorable
David A. Berchelmann, presiding judge of the 37th Judicial District Court, Bexar County, Texas.
04-09-00532-CR
the county jail “for a period of 30 days thereafter Respondent shall remain confined in the county
jail of Bexar County, Texas until he has complied with the following order: IT IS ORDERED that
Respondent pay $12,570.32, through the state disbursement unit, as child support arrearage
(including any accrued interest). . .”
On August 24, 2009, Gallien filed a petition for writ of habeas corpus with this court,
alleging in part that his due process rights were violated when the trial court neglected to sign the
contempt and commitment order until six days after he was taken into custody. The record included
certification from the sheriff that Gallien was still in custody. On August 26, 2009, we granted him
interim relief, and ordered Gallien conditionally released from jail upon posting a cash bond. The
respondent and the attorney for the real party in interest were provided an opportunity to respond to
Gallien’s petition. No response has been filed.
The purpose of a habeas corpus proceeding is not to determine the guilt or innocence of the
relator, but to determine if the relator has been unlawfully confined. Ex parte Gordon, 584 S.W.2d
686, 688 (Tex. 1979). Both a written judgment of contempt and a written commitment order are
necessary to imprison a person who violates a court order outside the court’s presence. Ex parte
Amaya, 748 S.W.2d 224, 224-25 (Tex. 1988) (orig. proceeding); Ex parte Seligman, 9 S.W.3d 452,
454 (Tex. App—San Antonio 1999, orig. proceeding). A person found to be in contempt may be
detained by the sheriff for a short and reasonable amount of time while contempt and commitment
orders are prepared for the judge’s signature. See Ex parte Amaya, 748 S.W.2d at 225. However,
the Texas Supreme Court has held that a delay of three days in signing the necessary orders is not
a short and reasonable time and violates due process. Id.
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04-09-00532-CR
In this case, the trial court waited six days from the time Gallien was taken into custody by
the sheriff to the time the trial court signed the contempt and commitment order. The delay of six
days violated Gallien’s due process rights. See id.; Ex parte Seligman, 9 S.W.3d at 454. Based on
the foregoing, we find it unnecessary to address Gallien’s remaining issues in his brief. Accordingly,
we grant the petition for writ of habeas corpus and order Gallien released from custody and from the
bond set by this court.
PER CURIAM
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