in Re: Ernest K. Bankas ( 2014 )

Deny and Opinion Filed this 13th day of June, 2014.
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-14-00696-CV
IN RE ERNEST K. BANKAS, Relator
Original Proceeding from the 301st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-09-1347
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Myers
Opinion by Justice Myers
This petition was filed in the form of a letter to the Court in relator’s appeal 1 of an order
of criminal contempt for failure to pay child support as ordered by the trial court in conjunction
with his divorce. Although relator appealed the order of criminal contempt 2, relator never
appealed the judgment rendered in the divorce and it is now beyond the period for a restricted
appeal or bill of review with regard to the judgment in the divorce. 3
We treat relator’s letter as a pro se petition for writ of habeas corpus. The letter does not
include a supporting record or appropriate certifications, but the clerk’s record was filed in the
appeal in Cause No. 14-00594-CV and we take judicial notice of the record. In re Estate of York,
1
Cause No. 14-00594-CV, Ernest Bankas v. Maureen Bankas
2
Counsel for relator voluntarily dismissed that appeal.
3
Relator contends that the trial court’s order of contempt is improper because he was never served in the divorce. The divorce decree in the
clerk’s record recites relator was served by substitute service and was represented by an ad litem at the hearing on entry of the decree. A divorce
judgment, unappealed, and regular on its face, is not subject to a collateral attack in a subsequent suit. Hardin v. Hardin, 597 S.W.2d 347, 350
(Tex. 1980). The recitations of the judgment control the rest of the record, and extrinsic evidence cannot be used to establish a lack of
jurisdiction. Narvaez v.. Maldonado, 127 S.W.3d 313, 317 (Tex. App.—Austin 2004, no pet.).
934 S.W.2d 848, 851 (Tex. App.—Corpus Christi 1996, writ denied) (“[A] court may take
judicial notice of its own records in a case involving the same subject matter between the same,
or practically the same, parties.”). The petition is, however, nonetheless defective as a petition
for writ of habeas corpus because it is not in a format that complies with the rules of appellate
procedure. It is not certified as required by the Texas Rules of Appellate Procedure. TEX. R.
APP. P. 52.3(j). The rule 52.3(j) certification must include the statement that the person filing the
petition “has reviewed the petition and concluded that every factual statement is supported by
competent evidence included in the appendix or record.” TEX. R. APP. P. 52.3(j). In addition, it
lacks proof that relator is being restrained as required by rule 52.3(k)(1)(D). TEX. R. APP. P.
52.3(j). Without a proper record to show that he is restrained, a petitioner is not entitled to
habeas corpus relief. In re Kuster, 363 S.W.3d 287, 293 (Tex. App.—Amarillo 2012, no pet.).
On the record before the Court, relator has not established that he is entitled to relief and,
accordingly, we DENY the petition for writ of habeas corpus. TEX. R. APP. P. 52.8.
/Lana Myers/
LANA MYERS
140696F.P05 JUSTICE
–2–