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  

--------------------------------------------------------------------------------

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.