in Re Tracy Alan Roznosky

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00128-CV
IN RE TRACY ALAN ROZNOSKY RELATOR
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ORIGINAL PROCEEDING
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MEMORANDUM OPINION1
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Relator Tracy Alan Roznosky contends that he is being illegally restrained
and asks this court to grant his petition for writ of habeas corpus asking for his
release from the custody of the Tarrant County Sheriff. We grant his requested
relief.
In 2008, the trial court held relator in contempt for failure to make timely
child support payments in accordance with a 2001 order; however, the trial court
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See Tex. R. App. P. 47.4.
suspended commitment and placed relator on community supervision for ten
years. In March 2010, the Office of the Attorney General filed a motion to revoke
relator’s community supervision. The trial court issued an order for an arrest
warrant on March 19, 2010 in accordance with Texas Family Code section
157.214. Relator was taken into custody in Potter County on March 25, 2011,
and he filed his petition for writ of habeas corpus with this court on April 5, 2011.
He was transferred to Tarrant County on or about April 19, 2011.
We requested a response from the Attorney General; in the response,
dated April 18, 2011, the Attorney General conceded that the trial court had not
held a hearing on the motion to revoke.
If an obligor is found in contempt of court for failure to pay child support
and is sentenced to jail, the court may suspend commitment and place the
obligor on community supervision. Tex. Fam. Code Ann. § 157.165 (Vernon
2008); In re Alexander, 243 S.W.3d 822, 824 (Tex. App.––San Antonio 2007,
orig. proceeding). The Title IV-D agency or a party affected by the community
supervision order may file a verified motion alleging the obligor has violated a
term or condition of community supervision. Tex. Fam. Code Ann. § 157.214
(Vernon 2008); Alexander, 243 S.W.3d at 824. If the motion to revoke
community supervision alleges a prima facie case that the obligor has violated a
term or condition of community supervision, the court may order the obligor’s
arrest by warrant. Tex. Fam. Code Ann. § 157.215(a) (Vernon 2008); Alexander,
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243 S.W.3d at 824. Once arrested, the obligor must be brought promptly before
the court. Tex. Fam. Code Ann. § 157.215(b); Alexander, 243 S.W.3d at 824.
An obligor is entitled to a hearing on a motion to revoke community supervision.
Tex. Fam. Code Ann. § 157.216(a), (b) (Vernon 2008); Alexander, 243 S.W.3d at
824. After the revocation hearing, the court may continue, modify, or revoke the
community supervision. Tex. Fam. Code Ann. § 157.216(c); Alexander, 243
S.W.3d at 825.
Section 157.216 of the Texas Family Code sets out the time frame for
holding a revocation hearing in an enforcement case. Alexander, 243 S.W.3d at
825. That section provides as follows:
(a) The court shall hold a hearing without a jury not later than the
third working day after the date the respondent is arrested under
Section 157.215. If the court is unavailable for a hearing on that
date, the hearing shall be held not later than the third working day
after the date the court becomes available.
(b) The hearing under this section may not be held later than the
seventh working day after the date the respondent is arrested.
(c) After the hearing, the court may continue, modify, or revoke
the community supervision.
Tex. Fam. Code Ann. § 157.216.
Here, relator has been restrained since at least April 5, 2011; more than
seven working days have passed since his arrest. Accordingly, relator has not
been afforded due process and is entitled to relief. See id.; Alexander, 243
S.W.3d at 825, 827. Because the trial court did not timely hold a revocation
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hearing under Family Code section 157.216, we order relator discharged from
custody and released from the bond set by this court on April 29, 2011.
PER CURIAM
PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.
DELIVERED: May 4, 2011
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