COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-16-00360-CV

IN RE B.L. RELATOR

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ORIGINAL PROCEEDING

TRIAL COURT NO. 233-515485-12

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MEMORANDUM OPINION1

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I. INTRODUCTION

In his petition for writ of habeas corpus, Relator B.L. (Husband) complains 

about, among other things, a January 5, 2016 order of commitment commanding 

that he be confined in jail for 150 days or “until further order of the Court,” a 

February 17, 2016 order for a capias warrant to be issued against him, and a

capias warrant issued February 17, 2016. For the reasons explained below, we 

 

1See Tex. R. App. P. 47.4.
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will grant the petition for writ of habeas corpus in part and declare the abovementioned order of commitment, order for a capias, and the issuance of a capias

void. All other relief sought in Husband’s petition for writ of habeas corpus is 

denied.

II. PERTINENT FACTUAL AND PROCEDURAL BACKGROUND

On July 30, 2014, Husband and Real Party in Interest, C.Y. (Wife), entered 

into an agreed decree of divorce. That decree included several provisions that 

placed limitations on Husband’s ability to contact Wife. On March 4, 2015, the 

trial court entered an order finding that Husband had violated the decree by 

contacting Wife in a manner that violated the terms and conditions of the decree.2 

On January 5, 2016, the trial court entered an order of commitment authorizing a 

sheriff or constable to seize Husband and keep him in jail “until he serves one 

hundred and fifty (150) days, or until further order of the Court.” On February 17, 

2016, the trial court entered an order for capias directing the clerk to issue a 

capias warrant against Husband. The clerk issued a capias warrant on February 

17, 2016, although Husband has not been incarcerated pursuant to the capias 

warrant. 

 

2As reflected in that order, Husband pleaded “true” and “guilty” to eightyseven separate violations of the decree. 
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III. OUR JURISDICTION

Wife contends that we lack jurisdiction because Husband is not restrained

in his liberty. Husband counters that while he has yet to be taken into custody, 

the capias issued for his arrest constitutes a sufficient restraint in his liberty to 

confer us with habeas jurisdiction. 

Our original jurisdiction to grant habeas relief derives from section 

22.221(d) of the Texas Government Code, which provides in relevant part:

Concurrently with the supreme court, the court of appeals of a court 

of appeals district in which a person is retrained in his liberty, or a 

justice of the court of appeals, may issue a writ of habeas corpus 

when it appears that the restraint of liberty is by virtue of an order, 

process, or commitment issued by a court or judge because of the 

violation of an order, judgment, or decree previously made, 

rendered, or entered by the court or judge in a civil case.

Tex. Gov’t Code Ann. § 22.221(d) (West 2004).

Restraint of liberty is not limited to situations of actual incarceration. See, 

e.g., Ex parte Brister, 801 S.W.2d 833, 835 (Tex. 1990) (orig. proceeding) 

(holding that probated sentence conditioned on payment of fees, participation in 

outpatient counseling, submission to house arrest, and electronic monitoring 

constituted sufficient restraint in liberty to confer habeas jurisdiction); Ex parte 

Williams, 690 S.W.2d 243, 244 (Tex. 1985) (orig. proceeding) (holding that 

relator who was released from jail on condition that he post bond and prosecute 

appeal was sufficient restraint in liberty to confer habeas jurisdiction); Ex parte 

Duncan, 796 S.W.2d 562, 564 (Tex. App.—Houston [1st Dist.] 1990, orig. 
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proceeding) (holding that probated sentence conditioned upon seeing probation 

officer and not traveling outside county was sufficient restraint in liberty to confer 

habeas jurisdiction).

Several of our sister courts have held that the issuance of a capias is a 

sufficient restraint of liberty to confer habeas jurisdiction even when the applicant 

is not incarcerated. See, e.g., In re Bourg, No. 01-08-00618-CV, 2008 WL 

3522241, at *2 (Tex. App.—Houston [1st Dist.] Aug. 12, 2008, orig. proceeding) 

(mem. op.) (“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, orig. proceeding) (same); see also In re Edwards, No. 01-13-00202-CV, 

2014 WL 3738056, at *2 (Tex. App.—Houston [1st Dist.] July 29, 2014, orig. 

proceeding) (mem. op.) (“Here, we conclude that Edward’s liberty is restrained 

because a writ of commitment for his arrest has been issued and is 

outstanding.”). We agree with our sister courts that the issuance of a capias is a 

sufficient restraint of liberty to confer us with habeas jurisdiction. Because a 

capias has been issued here against Husband, we have jurisdiction over his 

petition for writ of habeas corpus.3

 

3Wife has filed a motion to dismiss for want of jurisdiction, arguing that we 

lack jurisdiction because Husband is not restrained in his liberty. For the reasons 

stated above, we have habeas jurisdiction in this case, and accordingly, we deny 

Wife’s motion.
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IV. THE ORDER OF COMMITMENT, ORDER FOR CAPIAS, AND ISSUANCE OF CAPIAS

Husband argues that the January 5, 2016 order of commitment is void 

because it is ambiguous as to the terms of his confinement. He argues that 

because the order authorizes him to be jailed for 150 days “or until further order 

of the Court,” it “creates an ambiguity that prevents [him] from determining when 

he may achieve release from incarceration.” Likewise, Husband argues that the 

February 17, 2016 order for capias and the February 17, 2016 issuance of the 

capias—both of which stem from the order of commitment—are also void. 

A commitment order “must carry with it no uncertainty, and must not be 

susceptible [to] different meanings or constructions, but must be in the form of a 

command, and when tested by itself, must speak definitely the meaning and 

purpose of the court in ordering.” In re Broussard, 112 S.W.3d 827, 835 (Tex. 

App.—Houston [14th Dist.] 2003, orig. proceeding) (quoting Ex parte Slavin, 412 

S.W.2d 43, 45 (Tex. 1967)). In Broussard, a commitment order stated that the 

relator was to remain in jail for 180 days, served in 48-hour increments, until 

“further order of this Court.” Id. at 837–38. The court of appeals held the order 

was “susceptible [to] different meanings” due to, on the one hand, the language 

that called for incarceration of 180 days, and on the other hand, the language 

calling for incarceration until “further order of this Court.” Id. at 838. Because the 

language in the order “create[d] an ambiguity that prevent[ed] relator from 

determining when he may achieve release from incarceration,” the court of 
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appeals held that the provision was void and granted his petition for writ of 

habeas corpus. Id. at 838–39.

Here, the order of commitment, like the commitment order in Broussard, is 

susceptible to different meanings because it calls for incarceration of 150 days, 

on the one hand, but also calls for incarceration “until further order of the Court,” 

on the other hand. We agree with Husband that the order of commitment

contains an ambiguity that prevents him from determining when he may achieve 

release from incarceration. Accordingly, we hold that the order of commitment, 

as well as the order for capias and issuance of capias that stemmed from the 

order of commitment, are void. See id. 

V. CONCLUSION

Accordingly, we grant the relief sought by Husband in his petition for writ of 

habeas corpus to the extent we declare the January 5, 2016 order of

commitment, the February 17, 2016 order for capias, and the capias issued on 

February 17, 2016 void. All other relief sought in Husband’s petition for writ of 

habeas corpus is denied.4

/s/ Sue Walker

SUE WALKER

JUSTICE 

 

 

4Husband recently filed two motions for emergency relief asking that we 

stay a hearing scheduled for November 18, 2016, and also stay an order 

requiring him to pay certain amicus fees while we make a determination relating 

to his habeas petition. Because we have made a determination as to his habeas 

petition through this opinion, we deny Husband’s motions as moot.
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PANEL: LIVINGSTON, C.J.; WALKER, J.; and CHARLES BLEIL (Senior 

Justice, Retired, Sitting by Assignment).

DELIVERED: November 17, 2016