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Opinion issued August 12, 2008

In
The

Court of
Appeals

For
The

First
District of Texas

NO. 01-08-00618-CV

____________

IN RE
STEPHANIE ANN BOURG, Relator

Original
Proceeding on Petition for Writ of Habeas Corpus

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.