In re Monique Parker (Tex.App. - Houston [14th Dist.] Dec. 2, 2008)(per curiam)
(family law, divorce, habeas corpus denied, relator not in jail)
Here, relator's probated sentence, as set forth in the unsigned order filed with relator's
petition, includes no conditions other than to comply with the terms of the divorce decree
without any tangible restraint of liberty. Therefore, relator is not restrained for purposes
of habeas corpus relief.
MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Guzman and Brown
14-08-01070-CV In Re Monique Parker
Appeal from 310th District Court of Harris County
Attorneys: Robert Teir | Cynthia Thomson Diggs
M E M O R A N D U M O P I N I O N
On November 24, 2008, relator, Monique Parker, filed a petition for writ of habeas corpus seeking to
have her probated thirty-day jail sentence lifted. See Tex. Gov't Code Ann. § 22.221(d) (Vernon
2004); Tex. R. App. P. 52. Relator's petition is denied.
Relator's petition does not comply with the Texas Rules of Appellate Procedure because the
documents in the appendix are not sworn or certified, the appendix contains no signed order, there is
no certification that the facts in the petition are supported by citation to competent evidence included in
the appendix or record, and there is no reporter's record of the hearing. See Tex. R. App. P. 52.3(j) &
(k); 52.7(a)(1) & (2).
Moreover, relator is not restrained under her probated sentence for purposes of habeas corpus relief.
Because the function of a writ of habeas corpus is to secure release from an unlawful custody, the
relator must show that the contemnor has undergone a restraint of liberty. In re Ragland, 973 S.W.2d
769, 771 (Tex. App.- Tyler 1998, orig. proceeding).
Although actual confinement is the typical restraint of liberty, courts have extended the meaning of term
“restraint of liberty” beyond actual imprisonment. Id. The meaning of restraint includes probation
where the terms of the probation include some type of tangible restraint of liberty. Id. (citing Ex parte
Brister, 801 S.W.2d 833, 834-35 (Tex. 1990) (contemnor required to submit to sixty days' house arrest
and electronic monitoring); Ex parte Duncan, 796 S.W.2d 562, 564 (Tex. App.- Houston [1st Dist.]
1990, orig. proceeding) (contemnor was required to report to probation officer once a month and could
not leave Harris County without trial court's permission)).
However, when a jail sentence is probated without any type of tangible restraint of liberty, a contemnor
is not restrained for purposes of habeas corpus relief when she is merely ordered to make payments
that the trial court adjudges that she owes or otherwise comply with the trial court's orders. In re
Hughley, 932 S.W.2d 308, 310 (Tex .App.- Tyler 1996, orig. proceeding); Ex parte Shaw, No. 07-01-
0196-CV, 2002 WL 483494, at *1 (Tex. App.- Amarillo May 8, 2001, orig. proceeding) (not
designated for publication); In re Gill, No. 04-99-00828-CV, 1999 WL 1073938, at *1 (Tex. App.- San
Antonio Nov. 24, 1999, orig. proceeding) (not designation for publication).
Here, relator's probated sentence, as set forth in the unsigned order filed with relator's petition,
includes no conditions other than to comply with the terms of the divorce decree without any tangible
restraint of liberty. Therefore, relator is not restrained for purposes of habeas corpus relief.
Accordingly, we deny relator's petition for writ of habeas corpus.
PER CURIAM
Petition Denied and Memorandum Opinion filed December 4, 2008.
Panel consists of Chief Justice Hedges and Justices Guzman and Brown