NO. 12-14-00079-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE:

LELDON COOK 

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ORIGINAL PROCEEDING

MEMORANDUM OPINION

In this original habeas proceeding, Relator Leldon Cook seeks relief from an order signed 

on March 21, 2014, finding him in contempt of court for violation of an order signed on November 

22, 2013, and ordering that he be confined in the Smith County jail for six months. The 

respondent is the Honorable Thomas Dunn, Judge of the County Court at Law, Smith County, 

Texas. The real party in interest is Tanya Colane Cook. We grant habeas corpus relief.

BACKGROUND

This case involves a suit for divorce filed by Tanya on May 30, 2013. Leldon answered 

and filed a cross claim on June 14, 2013. On September 4, 2013, Tanya filed a Motion for 

Additional Temporary Orders. The trial court signed these additional temporary orders on 

November 22, 2013. 

On February 5, 2014, Tanya filed a Motion for Enforcement of Additional Temporary 

Orders alleging that Leldon had violated the additional temporary orders by failing to make 

spousal maintenance payments. Leldon responded. On March 18, 2014, the trial court conducted 

a hearing on Tanya‟s motion. At the conclusion of the hearing, the trial court ordered that Leldon 

be taken into custody. Later that evening, Leldon was confined in the Smith County jail. On 

March 21, 2014, the trial court signed an Order on Motion for Enforcement of Additional 

Temporary Orders, in which it found Leldon to be in contempt of court and ordered that he be 
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confined in the Smith County jail for six months. Leldon filed this original habeas proceeding as 

well as a motion for temporary relief, which was granted.1

AVAILABILITY OF HABEAS CORPUS

Habeas corpus is available to review a contempt order entered by a lower court confining a 

contemnor. Ex parte Gordon, 584 S.W.2d 686, 687–88 (Tex.1979) (orig. proceeding); In re 

Byrom, 316 S.W.3d 787, 790 (Tex. App.–Tyler 2010, orig. proceeding). An original habeas 

proceeding is a collateral attack on a contempt judgment. Ex parte Rohleder, 424 S.W.2d 891, 

892 (Tex. 1967) (orig. proceeding); In re Ragland, 973 S.W.2d 769, 771 (Tex. App.–Tyler 1998, 

orig. proceeding). Its purpose is not to determine the ultimate guilt or innocence of the relator, but 

only to ascertain whether the relator has been unlawfully confined. Ex parte Gordon, 584 S.W.2d 

at 688.

A court will issue a writ of habeas corpus if the order underlying the contempt is void or if 

the contempt order itself is void. In re Byrom, 316 S.W.3d at 791; see Ex parte Shaffer, 649 

S.W.2d 300, 301–02 (Tex. 1983) (orig. proceeding); Ex parte Gordon, 584 S.W.2d at 688. A 

contempt order is void if it deprives the relator of liberty without due process of law or if it was 

beyond the power of the court to issue. See In re Coppock, 277 S.W.3d 417, 418 (Tex. 2009) 

(orig. proceeding). The relator bears the burden of showing that the contempt order is void and not 

merely voidable. In re Munks, 263 S.W.3d 270, 272–73 (Tex. App.–Houston [1st Dist.] 2007, 

orig. proceeding). Until the relator has discharged his burden, the contempt order is presumed 

valid. In re Parr, 199 S.W.3d 457, 460 (Tex. App.–Houston [1st Dist.] 2006, orig. proceeding).

Failure to Sign Civil Contempt Order Within a Short and Reasonable Time

In his first issue, Leldon argues that the trial court‟s contempt order is void because it was 

not signed until three days after he was taken into custody. A person may not be imprisoned for 

contempt without a written order of commitment. Ex parte Cavillo Amaya, 748 S.W.2d 224, 224 

(Tex. 1988) (orig. proceeding). A trial court has no authority to verbally order a person confined 

for contemptuous acts committed outside the presence of the court and, thereafter, unduly delay 

signing a contempt judgment and commitment order. Id. (citing Ex parte Spencer, 508 S.W.2d 

698, 699 (Tex. Civ. App.–Texarkana 1974, orig. proceeding)). In order to satisfy due process

 

1 On March 28, 2014, we ordered that Leldon be released from confinement in the Smith County jail upon 

posting of a $500 cash bond pending final resolution of his petition for writ of habeas corpus.
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requirements, both a written judgment of contempt and a written commitment order are necessary 

to imprison a person for civil constructive contempt of court. See Ex parte Cavillo Amaya, 748 

S.W.2d at 224–25 (citing Ex parte Puckitt, 322 S.W.2d 597 (Tex. 1959) (orig. proceeding); Ex 

parte Barnett, 600 S.W.2d 252, 256 (Tex.1980) (orig. proceeding)). An arrest without a written 

commitment order made for the purpose of enforcing a contempt judgment is an illegal restraint 

from which the prisoner is entitled to be relieved. Ex parte Cavillo Amaya, 748 S.W.2d at 225; 

Ex parte Puckitt, 322 S.W.2d at 597. However, the trial court may cause a contemnor to be 

detained by the sheriff or other officer for a short and reasonable time while the judgment of 

contempt and the order of commitment are being prepared for the judge's signature. Ex parte 

Cavillo Amaya, 748 S.W.2d at 225. 

In Ex parte Cavillo Amaya, the court considered the issue of what constituted a 

“reasonable time” for a contemnor to be detained while the judgment of contempt and the order of 

commitment are being prepared for the judge‟s signature. See id. at 224–25. Ultimately, the 

supreme court held that “a three day delay is not a „short and reasonable time‟ while documents 

are being prepared for signature” and is a violation of due process. Id. at 225. 

In the instant case, based on our review of the record, we likewise hold that the three day 

delay from the time Leldon was taken into custody until the trial court signed its Order on Motion 

for Enforcement of Additional Temporary Orders was not a “short and reasonable time” while 

documents are being prepared for signature and is a violation of Leldon‟s due process rights. See 

id. Accordingly, we hold that the contempt order is void. See In re Coppock, 277 S.W.3d at 418.2

DISPOSITION

Because we have held that the contempt order is void, we grant Leldon‟s petition for writ 

of habeas corpus, order him released from the bond set by this court on March 28, 2014, and order

him discharged from custody.

BRIAN HOYLE

Justice

Opinion delivered June 25, 2014.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

 

2 Because our resolution of this issue is dispositive of Leldon‟s petition, we do not consider his remaining 

five issues. See TEX. R. APP. P. 47.1. 
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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 25, 2014

NO. 12-14-00079-CV

LELDON COOK,

Relator

V.

HON. THOMAS A. DUNN,

Respondent

ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of habeas corpus 

filed by LELDON COOK, who is the defendant in Cause No. 13-1387-E, styled “In the Matter 

of the Marriage of Tanya Colane Cook and Leldon Cook,” pending on the docket of the County 

Court at Law of Smith County, Texas. Said petition for writ of habeas corpus having been filed 

herein on March 27, 2014, and the same having been duly considered, because it is the opinion 

of this Court that the writ of habeas corpus is meritorious and we have held that the trial court‟s 

contempt order in its Order on Motion for Enforcement of Additional Temporary Orders dated 

March 21, 2014, is void, it is therefore CONSIDERED, ADJUDGED and ORDERED that the 

said petition for writ of habeas corpus be, and the same is, hereby granted, and defendant is 

ordered released from the bond set by this court on March 28, 2014, and shall be discharged from 

custody.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.