In re Aurelio Sotelo Flores (Tex.App.-Houston [1st Dist.] Nov. 3, 2006)(per curiam)
[
habeas corpus relief denied, relator not restrained, dismissed for want of jurisdiction, DWOJ]
DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Justices Nuchia, Jennings and Higley
01-06-00733-CV In re Aurelio Sotelo Flores
Appeal from 245th District Court of Harris County (
Judge Annette Galik)

("We dismiss relator’s petition for want of jurisdiction because the issue about which
relator complains is
not ripe for consideration in this habeas proceeding. Footnote  See
In re Easton, No. 14-06-00674-CV, slip op. at 3, 2006 Tex. App. LEXIS 7095 (Tex. App.
—Houston [14th Dist.] Aug. 10, 2006, orig. proceeding) (held court of appeals has no
jurisdiction to entertain
application for writ of habeas corpus when trial court had issued
writ of attachment for relator’s arrest because he had failed to appear for contempt
hearing, but was not confined and, to the court’s knowledge, was still evading writ of
attachment)")

Opinion issued November 3, 2006

In The

Court of Appeals

For the

First District of Texas
____________

NO. 01-06-00733-CV
____________

IN RE AURELIO SOTELO FLORES, Relator

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Original Proceeding on Petition for Writ of Habeas Corpus

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MEMORANDUM OPINION

Relator, Aurelio Sotelo Flores, has filed a petition for a writ of habeas corpus, challenging an order of
capias for his arrest issued in the trial court.  

1 The underlying lawsuit is In the Interest of Zuriel Flores-Cuevas and RaquelFlores-Cuevas, Minor
Children, No. 2005-43269, In the 245th District Courtof Harris County, Texas.

In his petition, relator asserts that the trial court’s underlying child support order, which the real party in
interest, Letisia Cuevas, seeks to enforce, is ambiguous and void.                                

Relator’s two children are six-years old and four-years old. Relator contends that the language of the child
support order is ambiguous because it makes noprovision for a reduction in child support when the oldest
child becomes 18 years of age or is otherwise emancipated.

Relator is not physically restrained, and the trial court has not adjudicated him to be in contempt. The trial
court issued its order of capias for relator’s arrest because he did not appear at a May 25, 2006 hearing
on Cuevas’s motion to enforce the child support order. As of the date of the petition, the capias had not
been executed, and, as of the date of the opinion, it remains unexecuted.

Restraint

To obtain habeas corpus relief, the relator’s liberty must be restrained. Texas Government Code, section
22.221(d) provides that we may

issue a writ of habeas corpus when it appears that the restraint of liberty is by virtue of an order, process,
or commitment issued by a court or judge because of the violation of an order, judgment, or decree
previously made, rendered, or entered by the court or judge.

Tex. Gov’t Code Ann. § 22.221(d) (Vernon 2004). Here, the trial court did not hold the hearing on the
motion to enforce, and its order to appear is the only order the trial court could have determined relator
violated. Because relator has not been adjudicated in contempt of the trial court’s child support order, the
issue of whether it is ambiguous or void is premature.  

Relator has made this a point of error in his appeal currently pending before this Court.

Conclusion

We dismiss relator’s petition for want of jurisdiction because the issue about which relator complains is not
ripe for consideration in this habeas proceeding.  

Citing Ex parte Williams, 690 S.W.2d 243 (Tex. 1993), relator argues that an appellate court may issue a
writ of habeas corpus to an applicant who is not actually confined. However, in Williams, Williams had
already been adjudicated in contempt and sentenced, his sentence suspended, and his bond conditions
imposed. Id.

See In re Easton, No. 14-06-00674-CV, slip op. at 3, 2006 Tex. App. LEXIS 7095 (Tex. App.—Houston
[14th Dist.] Aug. 10, 2006, orig. proceeding) (held court of appeals has no jurisdiction to entertain
application for writ of habeas corpus when trial court had issued writ of attachment for relator’s arrest
because he had failed to appear for contempt hearing, but was not confined and, to the court’s
knowledge, was still evading writ of attachment).

PER CURIAM

Panel consists of Justices Nuchia, Jennings, and Higley.