Ex Parte Gregory Gonzalez ( 2011 )

MEMORANDUM OPINION
No. 04-11-00805-CV
EX PARTE Gregory GONZALEZ
Original Habeas Corpus Proceeding 1
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: December 21, 2011
PETITION FOR WRIT OF HABEAS CORPUS DENIED
This is an original habeas corpus proceeding. Relator Gregory Gonzalez alleges that he
has been sentenced to 180 days in county jail after being held in criminal contempt for failure to
pay child support. Relator contends he is entitled to habeas corpus relief and seeks to be released
from custody because Sheriff Amadeo Ortiz has failed to give him “good time” credit.
Specifically, relator complains he is being denied equal protection under the law because the
sheriff gives “good time” credit to prisoners serving sentences for criminal charges, but not to
prisoners serving time for criminal contempt of court for failure to pay child support. For the
foregoing reasons, we deny the petition for writ of habeas corpus.
1
This proceeding arises out of Cause No. 1998EM503114, in the 37th Judicial District Court, Bexar County, Texas,
the Honorable David A. Berchelmann presiding.
04-11-00805-CV
It is relator’s burden to provide this court with a record sufficient to establish his right to
habeas corpus relief. See TEX. R. APP. P. 52.7(a); Walker v. Packer, 827 S.W.2d 833, 837 (Tex.
1992) (orig. proceeding). While relator contends he was sentenced to 180 days of confinement
for criminal contempt for failure to pay child support, he fails to provide us with a record to
support his claim. Id. Therefore, we cannot determine if relator was sentenced to only criminal
contempt or if he is also being held under a coercive civil contempt order. While article 42.032
of the Code of Criminal Procedure gives the sheriff the discretion to give “good time” credit to
those being punished by criminal contempt orders, the statute does not apply to those being
punished by coercive civil contempt orders. See TEX. CODE CRIM. PROC. ANN. 42.032, § 2 (West
Supp. 2010); Ex parte Acly, 711 S.W.2d 627, 628 (Tex. Crim. App. 1986). Therefore, if relator
is also being held under a coercive contempt order, he would not be entitled to be considered for
“good time” credit under the statute for the criminal contempt portion of the order until he has
satisfied the coercive contempt portion of the order. See Acly, 711 S.W.2d at 628. Without an
order that clearly shows the contempt at issue in this case, we cannot review relator’s complaint.
See TEX. R. APP. P. 52.7(a); Walker, 827 S.W.2d at 837.
Furthermore, even if relator establishes he was only sentenced to 180 days for criminal
contempt and not sentenced for coercive civil contempt, he has failed to provide this court with a
record supporting his claim that the sheriff has abused his discretion. Id. There is nothing in the
record to support relator’s complaint that the sheriff does not give “good time” credit as a matter
of policy to the class of prisoners serving time for criminal contempt of court for failure to pay
child support. Since the granting of such “good time” credit rests solely in the discretion of the
sheriff, and since the record before us fails to reveal any facts establishing an abuse of this
discretion, relator has not established he is entitled to habeas corpus relief. See TEX. CODE CRIM.
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04-11-00805-CV
PROC. ANN. 42.032, § 2; Acly, 711 S.W.2d at 628. Accordingly, relator’s petition for writ of
habeas corpus is DENIED.
PER CURIAM
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