Rose McCullough v. Oliver S. Kitzman ( 1998 )

Rose McCullough v. Oliver S. Kitzman, et al.

  IN THE

TENTH COURT OF APPEALS

No. 10-97-334-CV

     ROSE McCULLOUGH,

                                                                              Appellant

     v.

     OLIVER S. KITZMAN, ET AL.,

                                                                              Appellees

From the 249th District Court

Johnson County, Texas

Trial Court # 252-97

MEMORANDUM OPINION

      On November 24, 1997, Judge Oliver Kitzman held Rose McCullough in contempt for “willfully disobeying court orders by interrupting the Court repeatedly and failing to follow the order of the Court” despite having been warned. McCullough filed an “Emergency Application for Writ of Habeas Corpus” on December 1.

      On December 10, Judge F.B. McGregor, Jr., conducted a hearing on the writ and denied relief. On Friday, December 12, McCullough filed a “Motion for Early Release.” Judge Kitzman granted the motion and signed an order waiving the $500 fine and ordering that McCullough be released from custody. Judge Kitzman directed the jailer to release McCullough after 8 a.m. on Monday, December 15.

      Apparently before her release on December 15, McCullough filed an “Emergency Notice of Appeal of Denial of Application of Writ of Habeas Corpus” referring to Judge McGregor's December 10 ruling. The court reporter has filed a record of the December 10 hearing, but states that McCullough was released from custody the same day she filed her notice of appeal.

      A person held in contempt has no right of appeal. Rather, relief must be through a collateral attack on the judgment by petitioning for a writ of habeas corpus. Ex parte Williams, 690 S.W.2d 243, 243 n.1 (Tex. 1985). The writ is directed to the official holding the person in custody and show why the person is in custody. The person must be suffering a restraint of liberty. Id. at 244.

      McCullough, having been released from custody, is not under restraint. Thus, we dismiss this cause as moot. See Ex parte McKenzie, 909 S.W.2d 502, 503 (Tex. 1995) (petition for writ of habeas corpus moot because underlying order had been vacated by trial court); Ex parte Kimsey, 915 S.W.2d 523, 527 (Tex. App.—El Paso 1995) (op. on rehig) (validity of contempt order moot after trial court orders underlying temporary orders discharged).

                                                                               PER CURIAM

Before Chief Justice Davis,

      Justice Cummings, and

      Justice Vance

Dismissed

Opinion delivered and filed July 8, 1998

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