CAPIAS ORDER FOUND VOID | WRIT OF HABEAS CORPUS GRANTED

In re Stephanie Ann Bourg (Tex.App.- Houston [1st Dist.] Aug. 12, 2008)(Jennings)
(
criminal contempt of court, family court judge's capias order declared void in its entirety, habeas
corpus relief granted) GRANT PETITION FOR WRIT OF HABEAS CORPUS: Opinion by
Justice
Jennings  
Before Chief Justice Radack, Justices Jennings and Bland
01-08-00618-CV In re Stephanie Ann Bourg
Appeal from 245th District Court of Harris County
Trial Court
Judge: Hon. Annette Kuntz  

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Original Proceeding on Petition for Writ of Habeas Corpus

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MEMORANDUM OPINION

By a petition for writ of habeas corpus, relator, Stephanie Ann Bourg, is seeking relief from the trial
court's March 27, 2008 "Order of Capias for Arrest of Respondent, Stephanie Bourg" (hereinafter the
"capias order"). (1) In her sole issue, Bourg argues that she is entitled to relief "because she has
already served [her] contempt sentences."

We grant the relief requested by Bourg and hold that the trial court's capias order is void in its entirety.

Factual and Procedural Background

In September of 2003, the trial court, in a divorce decree, granted Chad J. Clay and Bourg's divorce,
including an Agreed Order in Suit Affecting the Parent-Child Relationship pertaining to their son.

On June 4, 2004, the trial court signed an agreed order, which held Bourg in contempt for violating
the divorce decree and sentenced her to 180 days of confinement. On June 29, 2004, the trial court
signed an "Agreed Order Holding Respondent in Contempt," in which it noted that Bourg had been
confined from June 4, 2004 to June 29, 2004, and it ordered that "[t]he balance of the period of
confinement" be probated in accordance with certain enumerated terms and conditions. The trial
court further stated that "[s]uch probation shall continue in full force and effect for seven years." It
also signed a final protective order, containing many injunctive provisions similar to those in the
decree.

On July 18, 2006, the trial court signed an agreed temporary protective order, prohibiting Bourg from
(1) committing family violence, (2) communicating directly with Clay or their son in a threatening or
harassing manner, and (3) communicating in any manner with Clay or their son except through
Bourg's attorney. On November 10, 2006, the trial court signed a final protective order, containing
many injunctive provisions similar to the ones in the decree and the July 18, 2006 agreed temporary
protective order.

Clay then filed his "First Amended Petition for Enforcement by Contempt for Violation of Permanent
Injunctions, Agreed Temporary Protective Order and (2006) Final Protective Order and Motion to
Revoke Suspension of Commitment . . . ." In his motion, Clay asked the trial court to hold Bourg in
contempt for failing to comply with "all the orders of the court" and to sentence Bourg to confinement
for 180 days.

On July 26, 2007, the trial court signed an "Order Revoking Suspension of Commitment and [f]or
Commitment in the Harris County Jail" and an "Order for Enforcement [b]y Contempt for Violation of
the Final Decree of Divorce, Agreed Temporary Protective Order and (2006) Final Protective Order
and for Commitment in the Harris County Jail." In these orders, the trial court found that Bourg had
failed to comply with "all orders of the [c]ourt" and set forth thirty-seven violations of its orders. The
trial court revoked the suspension of commitment and further ordered that Bourg be incarcerated
"until completion of her sentence." It also ordered that Bourg's incarceration begin on July 26, 2007
and that Bourg be "confined day for day, for a period of confinement of 155 days." (2) The trial court
then sentenced Bourg to confinement for an additional 180 days for her thirty-seven new contempt
violations. It ordered that this contempt sentence commence immediately upon Bourg's completion of
the 155-day balance of her prior contempt sentence.

Bourg then filed a petition for writ of habeas corpus with this Court, challenging the July 26, 2007
revocation order and the confinement and commitment order, which this Court denied. (3) The parties
agree that Bourg then filed a petition for writ of habeas corpus with the Texas Supreme Court, the
supreme court ordered that Bourg be released while it considered her habeas petition, the supreme
court ultimately denied Bourg's petition, and Bourg returned to jail. The parties further agree that, on
March 11, 2008, Bourg was erroneously released. (4)

Following Bourg's erroneous release from jail, on March 27, 2008, the trial court entered the capias
order requiring Bourg to be returned to jail to serve another 180 days because Bourg "failed to be
punished" as previously ordered by the trial court. Specifically, the trial court stated in its capias order,

On this the 27th day of March 2008, upon the [c]ourt's call of the Motion for Issuance of Capias and
Enforcement of Prior Orders[,] alleging that [Bourg] has failed to be punished as ordered by this
[c]ourt, and it appearing that [Bourg] was released from the Harris County [j]ail on March 11, 2008 by
mistake of the Harris County Sheriff.

Therefore, it is ordered that the [c]lerk of this [c]ourt issue a [c]apias for the [a]rrest of [Bourg],
directed to any [p]eace [o]fficer of the State of Texas, commanding him to arrest and take into his
custody the body of [Bourg] and confine her in the jail of Harris County, Texas for a period of 180
days and that such sentence shall be served day for day without credit or offset. It is ordered that
such sentence and confinement shall begin on March 11, 2008 and end on September 2, 2008 for
[Bourg] of contemptuous conduct as set out in this [c]ourt's order of July 26, 2007 entitled "Order for
Enforcement by Contempt for Violation of the Final Decree of Divorce, Agreed Temporary Protective
Order and (2006) Final Protective Order and for Commitment in the Harris County Jail." (Emphasis
added).

The trial court, in this capias order, recognized that Bourg was released through the mistake of Harris
County. Nevertheless, the trial court imposed an additional 180-day sentence on Bourg. Moreover,
the trial court, in imposing the additional sentence, did not base the sentence on any new contempt
violations, did not account for any of Bourg's prior sentences or previous time served, prohibited
Bourg from earning any credits or offsets, and set Bourg's sentence for a term certain.

In her petition, Bourg represents that, as of yet, she has not been "taken into custody" pursuant to the
capias order.

Standard of Review

A habeas corpus petition is a collateral attack on a judgment, the purpose of which is not to determine
the final guilt or innocence of the relator, but to ascertain whether the relator has been confined
unlawfully. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). Issuance of a capias is a sufficient
restraint of liberty to justify habeas corpus relief. In re Aguilera, 37 S.W.3d 43, 47 (Tex. App.--El Paso
2000, no pet.); see also Ex parte Rosser, 899 S.W.2d 382, 385 n.6 (Tex. App.--Houston [14th Dist.]
1995, no writ) (noting that relator filed writ of habeas corpus when he had not yet been taken into
custody and real party in interest had not disputed that capias was "sufficient restraint of liberty to
permit filing a petition for writ of habeas corpus"). The presumption is that the order is valid. In re
Turner, 177 S.W.3d 284, 288 (Tex. App.--Houston [1st Dist.] 2005, orig. proceeding) (citing Ex parte
Occhipenti, 796 S.W.2d 805, 809 (Tex. App.--Houston [1st Dist.] 1990, orig. proceeding)). A writ of
habeas corpus will issue if a trial court's contempt order is beyond the court's power or the court
deprives the relator of liberty without due process of law. In re Castro, 998 S.W.2d 935, 937 (Tex.
App.--Houston [1st Dist.] 1999, no pet.). A relator bears the burden of showing that she is entitled to
relief. Turner, 177 S.W.3d at 288 (citing Occhipenti, 796 S.W.2d at 808-09).

Validity of Capias Order

In her sole issue, Bourg argues that she is entitled to habeas relief "because she ha[d] already
served the contempt sentences." Within this issue, Bourg asserts that the trial court does not have
the power to take away good-time credit previously provided, nor does it have the authority to
preclude her from earning good-time credit. Essentially, Bourg argues that the trial court's capias
order has the effect of depriving her of the right to earn good-time credit.

Article 42.032 of the Texas Code of Criminal Procedure provides,

The sheriff in charge of each county jail may grant commutation of time for good conduct, industry,
and obedience. A deduction not to exceed one day for each day of the original sentence actually
served may be made for the term or terms of sentences if a charge of misconduct has not been
sustained against the defendant.

Tex. Code Crim. Proc. Ann. art. 42.032, § 2 (Vernon 2006) (emphasis added). The sheriff has the
sole discretion to award good-time credit. Ex parte Acly, 711 S.W.2d 627, 627 (Tex. 1986) (holding
that those punished by criminal contempt are allowed to earn good-time credit); Jones v. State, 176
S.W.3d 47, 52 (Tex. App.--Houston [1st Dist.] 2004, no pet.) ("The trial court's attempt to influence the
sheriff, a member of the executive branch, in carrying out the terms of a sentence may violate the
separation of powers clause of the Texas Constitution."). A trial court has no authority to limit the
operation of the good-time credit. Ex parte Roosth, 881 S.W.2d 300, 301 (Tex. 1994); Kopeski v.
Martin, 629 S.W.2d 743, 745 (Tex. Crim. App. 1982); Jones, 176 S.W.3d at 52; see also In re Parks,
No. 01-07-00469-CV, 2007 WL 2351057, at *3 n.1 (Tex. App.--Houston [1st Dist.] Aug. 14, 2007, orig.
proceeding) (mem. op.) (noting that, although trial court "may exempt a contemnor from credit for
'good time' during coercive confinement," trial court has "no authority to limit the operation of the good
behavior credit when committing a relator to confinement as punishment for contempt").

Here, the trial court, in its capias order, seeks to impose an additional 180-day sentence against
Bourg for a term certain and "day for day without credit or offset." By its plain terms, the capias order
was issued solely because Bourg had been erroneously released by the Harris County sheriff and, in
the trial court's opinion, had not been punished as it had ordered. Accordingly, we hold that by issuing
the capias order, which precludes Bourg from earning good-time credit, the trial court has exceeded
its authority. See Kopeski, 629 S.W.2d at 745; see also Ex parte Suter, 920 S.W.2d 685, 687 n.1
(Tex. App.--Houston [1st Dist.] 1995, no writ). Additionally, by imposing a sentence that fails to
account for any of Bourg's prior days in confinement, the capias order also operates to deprive Bourg
of good time she has earned in the past. Accordingly, we further hold that the portion of the capias
order depriving Bourg from her right to earn good-time credit is void.

Bourg also argues that the capias order is void because it violates well-settled authority establishing
that her contempt sentence continued to run during the period in which she was erroneously
released. Bourg asserts that, pursuant to this authority, her contempt sentence has expired.

It is undisputed that Bourg was erroneously released through no fault of her own. Moreover, it is clear
that the trial court's capias order is not based on any new contempt violations, but rather is solely
based on the trial court's opinion that Bourg has not been punished in accordance with its prior
orders. There is nothing in the record to indicate that Bourg was being ordered to return to jail
because she violated any terms and conditions of the trial court's various orders or committed any
other acts of wrongdoing other than those specified in the prior orders. Moreover, we note that the
trial court did not simply order Bourg to be returned to jail to serve the remaining balance of her
sentence, but instead imposed a completely new sentence for an additional 180 days of confinement.
The trial court's capias order, by not accounting for the period during Bourg's erroneous release,
violates well-settled authority providing that Bourg's sentence continued to run during the period of
her erroneous release. See Ex parte Hale, 117 S.W.3d 866, 872-73 & n.26 (Tex. Crim. App. 2003);
see also Ex parte Cross, No. AP-75700, 2007 WL 1704062, at *1 (Tex. Crim. App. June 13, 2007)
(per curiam) (mem. op., not designated for publication). Thus, the trial court exceeded its authority.
Accordingly, we hold that the portion of the capias order that violates the authority establishing that
Bourg's contempt sentence continued to run during the period of her erroneous release is void.

Having held that the capias order is void because it violates Bourg's right to earn good-time credit and
having held that the capias order is void because it fails to account for the period of her erroneous
release, and, because the trial court, in its capias order, imposed an additional 180 days of
confinement based upon Bourg's erroneous release and not based upon any new contempt
violations, we further hold that the capias order is void in its entirety.

Moreover, as noted above, even Clay agrees that Bourg's sentence would have already expired had
she not been erroneously released. Accordingly, we conclude that her contempt sentence has
expired and that the trial court has no authority to impose any additional contempt sentences against
Bourg based upon her erroneous release. See Cross, 2007 WL 1704062, at *1 (noting that applicant
who had been erroneously released and who "had not violated the conditions of his release at the
time his mandatory supervision was rescinded" was "entitled to jail time credit for the time from the
date he was erroneously released to mandatory supervision until the date he was returned to the
custody of the Texas Department of Criminal Justice").

Finally, we distinguish Ex parte Lee, relied upon by Clay to argue that Bourg is not entitled to "street
credit" for the period of her erroneous release. 223 S.W.3d 360, 361 (Tex. Crim. App. 2006) (per
curiam). Clay asserts that, under Lee, Bourg should not receive credit for this period because the trial
court issued a capias order only sixteen days after she was erroneously released. First, we note that
we have previously held that the capias order was void in its entirety. A void capias order would not
operate to preclude Bourg's sentence from running during the period of Bourg's erroneous release.
Second, in Lee, the applicant was not ordered to return to jail after it was realized that he had been
erroneously released. Id. Rather, the applicant had been released on parole, but his parole was
subsequently revoked. Id. Thus, the court's holding in Lee that the applicant was not entitled to credit
for the time that he spent on supervised release has no application to whether Bourg's contempt
sentence continued to run during the period of her erroneous release. See Cross, 2007 WL 1704062,
at *1.

Conclusion

We grant relator's petition for habeas corpus and order that the trial court's capias order is void.

Terry Jennings

Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

1. Clay v. Bourg, No. 2002-03005 (245th Dist. Ct., Harris County, Tex. Mar. 27, 2008).

2. The parties dispute the number of days that were actually remaining on Bourg's original 180-day
contempt sentence at the time the trial court revoked the suspension of Bourg's commitment. Bourg
asserts in her petition that, at the time of the revocation, she only had 130 days remaining on her
original 180-day sentence because she had earned "good-time credit" in accordance with the Harris
County Sheriff's Office's policy. The policy, which she attached to her petition, provided that
"'[g]ood-[t]ime [c]redit' is applied to every case unless the individual is serving time as a condition of
probation or [d]isciplinary has taken action through disciplinary proceedings . . . ." In further support
of her claims, she presented affidavit testimony that no disciplinary proceedings had been brought
against her during her twenty-five days in jail. Bourg also attached a "[c]riminal [r]ecords [c]heck" from
the Harris County Sheriff's Office, establishing that she had, in fact, served twenty-five days in jail
from June 4, 2004 to June 29, 2004. In response, Clay asserts that the criminal records check
document "makes no mention of good[-]time credit, contrary to the stated policy." However, we need
not directly address whether Bourg established that she had earned "good-time credit" because, as
explained below, we conclude that the capias order is void in its entirety.

3. In re Bourg, No. 01-07-00623-CV, 2007 WL 2446844 (Tex. App.--Houston [1st Dist.] Aug. 27, 2007,
orig. proceeding) (mem. op.).

4. Although the parties agree that Bourg was erroneously released, because the parties dispute
whether Bourg earned good-time credit, the parties provide different dates on which they contend
Bourg should have been released. Bourg asserts that, had she not been erroneously released, she
would have completed her contempt sentence on May 22, 2008. In contrast, Clay asserts that, had
Bourg not been erroneously released, Bourg would have completed her contempt sentence on
August 2, 2008. As previously stated, because we conclude that the capias order is void in its
entirety, we need not directly address the parties' dispute over whether Bourg earned good-time
credit. Nevertheless, we note that, under either party's calculations, had Bourg not been erroneously
released, Bourg's contempt sentence would have already expired.