NO. 07-03-0527-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A FEBRUARY 11, 2004

______________________________ IN RE WAL TER WAYN E BOSWEL L, RELAT OR

_________________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORAND UM OPINION
This is an original habeas corpus proceedin g. Relator Walter Wayne Boswell seeks relief from confi nement fo r civil contempt a nd from co mm unity s upervision imposed for criminal contempt. Relator and real pa rty in interest Traci Denise Boswell were di vorced on September

30, 2002. Traci Denise Boswell filed a Motion for E nforcement and Order to Appear w ith the tr ial cour ton October 27, 2003. In the motion she alleged that relator had violated the termsof the di vorce dec ree by dri nking al cohol wi thin eig ht hours p rior to his possession of the children of the mar riage, by failing to pay the full amount of child support when due, and by threatening her with i mminent bodily injury.1 A copy of the order was filed wi th this cou rt on December 18, 2003 by relator’s attorney. It was also attached as an exhibit to the supplemental brief filed by relator on January 12, 2004. Neither

a clerk’s or

reporter’s record is part of the record before this court. -2- A hearing was held on the motion on December 12, 2003. After hearing evidence, the trial court orally pronounced an order committing relator to the custody of the Randall County Sheriff for violations of the court’s order of September 30, 2002. On that sa me day the court signed a n o rder placing relator on community supervision for two years for criminal contempt. The order does not state the grounds for the contempt, but contains a listof the co nditions

of commun ity super

vision i mposed on relator. No written judgment of contempt or commitment was entered. Relator was taken into custody and jailed on December

12.
On Decembe r 17, 200 3, relator filed with this court a petition for writ of habe as corpus seeking release from confine ment. Relator alleged he was being i llegally confined becaus e the court had not signed a written order of contempt o r commitme nt. On December

18, 2003 , the tria l court si gned a w ritte n order hol ding relator in both civil and
c riminal contempt, committing him to county jail for civil contempt and placin g him o n community

supervision for criminal contempt. 1 The written order also grants a judgment for child support arrearage in the amount of $14,208.46 plus accrued interest; relator does not complain of this p ortion of the orde r. The December 18 order states that it supersedes the order signed December 12. During oral argument in thi s court on December 23, 2003, Traci Denise Boswell conceded that the porti on of the order finding relator in civil contempt and o rdering his-3-

commitment to county jail was not timelysigned and was thereforevoid. Ex parte Amaya , 748 S.W.2d 22 4 (Tex. 1 988); Ex parte Barnett, 600 S.W. 2d 252 (T ex. 1980 ); see In re Brown , 114 S.W. 3d 7 (Tex .App.–Ama rillo 20 03, orig. proceedi ng). Following oral argument, this court granted the writ of habeas corpus, determined the court’s order for civil contempt to be vo id and ordered the release of relator from Randall County jail. By letter, the same day, this court requested relator to submit a letter brief by January 12, 2004 addressing which portions of the trial court’s order sho uld remain effect ive. Real par

ty in interest was directed to file any reply on or before January 19, 2004. Relator submitted a supplemental brief on January 12. Real party in interest has not filed a r eply.
The function of

a writ of habeas corpus is to secure release from unlawful custody. For a writ to issue, the contemnor must show he has und ergone a restraint of liberty. In re Ragland , 973 S.W.2 d 769, 77 1 (Tex.A pp.–Tyle r 1998, o rig. proc eeding). Relator asserts thathis communi ty supervision is a sufficient restraint on his lib erty to permit our consider ation of his peti tion for w rit of hab eas corpu s. We agre e.
While imprisonment is typically the restraint of liberty addressed by a writof habeas corpus, courts have extended the meaning of restraint to include some restrictions imposed bycommunit

y supervi sion. Id. Community supervision which requires only making paymentsordered by the court is not a restraintentitli ng a pers on to hab eas corpu s relief. Ex parte Hughey , 932 S.W.2d 308 (Tex.App.–Tyler 1996, orig. proceeding). Requiring a pe rson to pe rform a set amount o f communi ty service each week, In re Ragland , 973-4-

S.W.2d at 771, or requi ring a pe rson to re port month ly to a probation officer and limit travel, Ex parte Duncan , 796 S.W. 2d 562 (T ex.App.– Houston [1 stDist.] 1990, orig. proceedi ng),
are sufficient restraints of a person’s liberty to allow consideration of a writ of ha bea s corpus. Id; see a lso In re P ierre , 50 S.W.3d 554, 558 (Tex.App.–El Paso 2001 , orig. proceedi ng). The terms of community supervision imposed on relator include the following:
1. Relator is ord ered to p ay all c hild sup port as or dered by the court.
2. Relator is ordered to report to an officer of the Potter-Randall-Armstrong Community

Supervision and Corrections Department as often as ordered by the officer or the court. 3. Relator is ordered to submit to a drug and a lcohol evaluation.
4. Relator is ordered to furnish proof he attended no fewer than 90 Alcoholics Anonymou s meeting s within 90 days of his re lease fro m civil commitment.
5. Re l ator is ordered to pay a community supervision fee in an amount and frequencyto be determin ed by theCommunit ySupervision Department or the court.
We find the requirements that he report to an officer of the Potter-Randall-Armstrong Community

Supervision and Corrections Department as often as ordered by the officer or the court, and furnish proof he attended no fewer than 90 Alcoholics Anonymous meetings with in 90 days of his release from civil commitment to be a restraint on relator’s lib ert y sufficientfor

us to cons ider habeas corpus relief with respect to the criminal contempt portion of the cour

t’s order

.-5-

Relator’s petition for wri t of habea s corpus is granted. The provisions ordering relator’s confinement for civil contempt and the provisions ordering hi s c onfineme nt, suspended, and performan ce of con ditions of communi tysupervis ion for c riminal contempt, contained in the order entered by the trial court on December 18 , 2003, are void. Relator is discharged from confinementand, except for the payment of child support as ordered by the court, from performance of the conditions of community supervision.

James T. Campbell Justice