Ex Parte Martinez

331 S.W.2d 209 (1960)

Ex parte Antonio MARTINEZ.

No. A-7546.

Supreme Court of Texas.

January 27, 1960.

L. R. Cowen, Brownsville, for relator.

Sharpe, Cunningham & Garza, Hector Yznaga, Brownsville, for respondent.

GREENHILL, Justice.

This is a habeas corpus case. The relator, Antonio Martinez, was jailed for failure to pay child support money to his former wife, Guadalupe P. Martinez. He was committed to jail upon an oral order of the district judge. Because there was no written order of commitment, we here hold that he should be discharged from custody.

In 1953, Guadalupe P. Martinez secured a divorce from Antonio Martinez in Illinois. By that decree, Antonio Martinez was required to pay certain monies to Guadalupe P. Martinez for the support of three minor children born to the marriage.

Both parties thereafter moved to Brownsville, Cameron County, Texas. Guadalupe P. Martinez there applied to the District Court for assistance in enforcing the Illinois court's support decree. The Texas District Court, in an original and a modifying decree, held Martinez in contempt for failure to comply with the support provisions of the judgment above mentioned but suspended the judgment upon condition that Antonio Martinez pay up the arrears in his support payments. Later in 1959, Guadalupe P. Martinez filed an affidavit in which she stated that Martinez was some $300 in arrears with his payments. She prayed that he be cited to show cause why he should not be held in contempt of court.

These facts are disclosed by duly certified copies of pleadings and records in the office of the District Clerk of Cameron County.

Martinez has filed in this Court his sworn application for writ of habeas corpus, stating that he is restrained of his liberty and has been committed to the common jail of Cameron County upon an oral order of the judge. The record before us fails to show a written order of commitment.

It is well settled by the decisions of this Court, as well as those of the Court of Criminal Appeals, that a person may not be imprisoned for contempt without a written order of commitment. Ex parte Puckitt, Tex., 322 S.W.2d 597; Ex parte Arapis, 157 Tex. 627, 306 S.W.2d 884; Ex parte Smart, 152 Tex. 229, 256 S.W.2d 398; Ex parte Palmateer, 150 Tex. 510, 243 S.W.2d 160; Ex parte Eager, 128 Tex. Crim. 97, 79 S.W.2d 136; Ex parte Ray, 101 Tex. Crim. 432, 276 S.W. 709; Ex parte Alderete, 83 Tex. Crim. 358, 203 S.W. 763.

The relator is discharged.