Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-22-00226-CV

IN RE THE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

Original Proceeding1

Opinion by: Lori I. Valenzuela, Justice

Sitting: Luz Elena D. Chapa, Justice

Irene Rios, Justice

Lori I. Valenzuela, Justice

Delivered and Filed: June 1, 2022

PETITION FOR WRIT OF HABEAS CORPUS CONDITIONALLY GRANTED 

Relator Sophia Gallegos, a caseworker supervisor for the Texas Department of Family and 

Protective Services (the “Department”), filed a petition for writ of habeas corpus requesting this 

court void three orders which she argues unlawfully restrain her liberty. Relator asserts her liberty 

was unlawfully restrained when the trial court ordered her to appear and remain in the jury room 

of the 45th Judicial District Court, Bexar County, Texas, until placement was found for a child in 

the Department’s custody. We conditionally grant the petition. 

BACKGROUND 

The focus of the underlying case is a fifteen-year-old child, M.T.M.S. The Department has 

been appointed the temporary managing conservator of M.T.M.S. since March 21, 2021. Several 

1 This proceeding arises out of Cause No. 2021-PA-00518, styled In The Interest of M.T.M.S., a Child, pending in the 

131st Judicial District Court, Bexar County, Texas, the Honorable Mary Lou Alvarez presiding.
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recent status hearings resulted in the rendition of orders dated April 1, April 5, and April 14, 2022, 

which form the basis of a parallel mandamus proceeding currently pending before this court.2 This 

habeas corpus proceeding arises from the trial court’s actions on April 13, 2022, and separate 

orders that followed.

During an April 13, 2022 status hearing, counsel for the Department called Clara Valles, 

M.T.M.S.’s residential treatment specialist, to testify regarding the Department’s efforts to find 

placement for M.T.M.S. Valles testified fifteen of the sixteen possible placements for M.T.M.S. 

denied placement. During cross-examination, at the request of the child’s guardian ad litem, the 

trial court directed Valles to text relator, Valles’ unit supervisor, to request relator’s immediate 

appearance at the hearing. The habeas record does not reflect whether relator received this request. 

The record also does not reflect that relator appeared. 

During Valles’s alleged contact with relator to have her appear, the trial court, counsel for 

the Department, counsels for the real parties in interest, the CASA worker, and the regional director 

for the Department conferred off the record in the trial court’s chambers. Upon emerging from this 

in-chambers conference, the trial court announced it understood “the parties reached an agreement 

in order to expedite successful placement of this child given her discharge date from Clarity of 

Tuesday, April 19th.” 

The trial court stated the agreement on the record as follows:

[Relator] shall report to the courthouse, the jury room of the 45th District Court

tomorrow morning at 9 a.m., shall report to the deputy, come to the courthouse with 

all of the equipment she needs to work, laptop, cell phone, chargers, hot spot, et 

cetera. She may bring a member of her team, Ms. Valles, or other assistance if she 

would like. But she herself shall report to the courthouse tomorrow morning, April 

14th at 9 a.m. and shall not leave until placement for this child is secured or until 6 

p.m., whichever comes first. If placement is not secure tomorrow, then she shall 

return to the courthouse at 9 a.m. on Monday, April 18th with equipment and staff,

2 See In re the Department of Family and Protective Services, Cause No. 04-22-00204-CV.
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if she would like, to again secure placement for this child given that her discharge 

from Clarity is Tuesday, April 19th.3

The record does not indicate that relator was present during the trial court’s oral rendition. 

The parties to the underlying suit, including counsel for the Department, verbally agreed on the 

record that the trial court’s oral recitation of the agreement was accurate. 

Relator did not report to the jury room of the 45th Judicial District Court on April 14. In 

response to relator’s failure to appear, the trial court issued an Order for Writ of Capias and Setting 

of Bond (the “Capias order”). The Capias order states that relator “acknowledged” the order that 

had been issued from the bench on the previous day. The Capias order further states that no cash 

bond would be reasonable for relator and that relator was not entitled to further service of citation. 

Finally, the order commands “the sheriff or any peace officer of any county within the state of 

Texas . . . [to] take the body of [relator] and bring her before this Court for a hearing on the Court’s 

intent to hold [relator] in direct contempt.” 

On April 18, 2022, the trial court signed another order (the “April 18 order”) wherein the 

court found “the Department is willfully and willingly defying the court order and [relator] is 

intentionally disregarding the courts [sic] order and that contemptuous relief can be sought.” The 

order states, “the [Capias order] is still in place.”

In response to the Capias order, relator filed this petition for writ of habeas corpus. In her 

petition, relator argues: (1) the April 14 order, April 18 order, and the Capias order4 are contempt 

orders that restrain her liberty, (2) this restraint is unlawful because she was not afforded due 

process, and (3) consequently, the orders are void.

3 This agreement is encapsulated in the court’s Emergency Order signed on April 14, 2022 (the “April 14 order”). 4 The April 14 order, April 18 order, and Capias order will hereafter be referred to collectively as the “Contempt 

Orders.”
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The attorney and guardian ad litem for M.T.M.S. (“Ad Litem”), the sole party to file a 

response, countered relator’s assertions by arguing: (1) the attorney representing the Department 

and relator agreed the on-the-record oral rendition accurately captured the off-the-record 

agreement; (2) relator was not entitled to due process notice because she was in direct contempt of 

the April 14 order; and (3) the Capias order was lawful under the Texas Family Code.

STANDARD OF REVIEW

A habeas corpus proceeding “is in the nature of a collateral attack and its purpose is not to 

determine the ultimate guilt or innocence of the relator, but only to ascertain whether the relator 

has been unlawfully imprisoned.” Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. 

proceeding); see also Ex parte Hughey, 932 S.W.2d 308, 310 (Tex. App.—Tyler 1996, orig. 

proceeding) (“An original habeas corpus proceeding is a collateral attack on a contempt 

judgment.”). Our jurisdiction over a habeas corpus proceeding is limited to “when the contemnor’s 

confinement is on account of a violation of an order, judgment, or decree previously made in a 

civil case.” In re Kuster, 363 S.W.3d 287, 291 (Tex. App.—Amarillo 2012, orig. proceeding)

(citing TEX. GOV’T CODE § 22.221(d)).

“Relator is entitled to discharge in a habeas corpus proceeding if the order requiring [her]

confinement is void, either because the court that issued the order lacked jurisdiction to enter it or 

because it deprived relator of [her] liberty without due process of law.” Ex parte Keith, No. 04-17-

00641-CV, 2017 WL 5615494, at *2 (Tex. App.—San Antonio Nov. 22, 2017, orig. proceeding);

See also Ex parte Williams, 690 S.W.2d 243, 244 (Tex. 1985) (orig. proceeding) (granting relief 

and discharging the relator from custody); Ex parte Cox, 479 S.W.2d 110, 113 (Tex. Civ. App.—

Houston [1st Dist.] 1972, orig. proceeding) (“The object of the writ is to secure the release of a 

party from illegal custody, and not to allow [her] another tribunal to correct errors.”). To obtain 

habeas relief, “it must be shown that the contemnor has undergone a restraint of liberty.” Ex parte 
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Hughey, 932 S.W.2d at 310. Generally, “[a] mere judgment of contempt will not justify the 

granting of a writ of habeas corpus.” Ex parte Sealy, 870 S.W.2d 663, 666 (Tex. App.—Houston 

[1st Dist.] 1994, orig. proceeding). “[T]here must be some legal restraint other than mere moral 

suasion.” Ex parte Beamer, 285 S.W. 255, 256 (Tex. 1926).

ANALYSIS

Because the asserted restraint of relator’s liberty directly flows from the violation of the 

trial court’s Contempt Orders in a civil case, this matter fits within our narrow habeas corpus 

jurisdiction. See In re Kuster, 363 S.W.3d at 291-92 (citing TEX. GOV’T CODE § 22.221(d)).

Relator asserts that when the trial court issued the Capias order, her liberty was sufficiently 

restrained to be entitled to habeas relief. We agree. “A capias is a sufficient restraint of liberty to 

permit filing a petition for writ of habeas corpus.” In re Gonzalez, 993 S.W.2d 147, 158 (Tex. 

App.—San Antonio 1999, no pet.); see also Interest of J.V.O., No. 04-20-00346-CV, 2021 WL 

3742678, at *2 (Tex. App.—San Antonio Aug. 25, 2021, no pet.). When scrutinizing an 

individual’s constitutional right to be free from restraint without due process, we must bear in mind 

“there is no substantive difference between an arrest warrant and a capias.” Sharp v. State, 677 

S.W.2d 513, 517 (Tex. Crim. App. 1984) (en banc). The trial court’s Capias order called for 

relator’s arrest without further notice to relator. Relator is unable to exercise her liberty while this 

Capias order remains in effect. See Ex parte Williams, 690 S.W.2d at 244 (finding restraint on the 

petitioner’s liberty where petitioner’s “bond could be revoked at any time, resulting in his 

incarceration.”). As the Capias order would be in effect absent the current emergency stay from 

this court, relator could be subject to arrest, restraint, and confinement to the jury room of the 45th 

Judicial District Court at any time. Thus, we find relator has satisfied her burden of showing a 

restraint on her liberty.
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Relator and the Ad Litem dispute whether the Contempt Orders are void based on a 

deprivation of liberty without due process of law. The Ad Litem argues the assent of the

Department’s counsel of the on-the-record agreement bound relator to a voluntary confinement 

that did not restrain her liberty without due process. While relator was an employee of the 

Department, the record does not support a determination that the Department’s counsel represented 

relator personally or that relator had delegated her authority to waive her due process rights to her 

employer or its counsel. The hearing transcript does not reflect that relator was at the hearing nor 

does the record reflect her awareness of an agreement for her confinement until placement was 

achieved. The right to be free from illegal restraint is a constitutional right held by relator. See Ex 

parte Ramzy, 424 S.W.2d 220, 223 (Tex. 1968) (orig. proceeding) (noting the purpose of a habeas 

corpus proceeding is to “obtain a speedy adjudication of a person’s right to be free from illegal 

restraint.”); Louisiana Ry. & Nav. Co. v. State, 7 S.W.2d 71, 72 (Tex. Comm’n App. 1928) (“The 

due process clause, . . . [is] not to be ignored or lightly treated, but being for the benefit of the 

citizen exclusively, the right under such clauses is one that may be waived . . . .”). Although the

Department agreed to a restraint on relator’s liberty, relator has not agreed to such restraint. 

Reading the Contempt Orders together, it is apparent relator is being held in contempt of 

court. See Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995) (orig. proceeding) (“Contempt 

of court is broadly defined as disobedience to or disrespect of a court by acting in opposition to its 

authority cf. Clark v. Hastings Equity Partners, LLC, No. 01-20-00749-CV, 2022 WL 175337, at 

*11 (Tex. App.—Houston [1st Dist.] Jan. 20, 2022, no pet.) (Goodman, J. concurring) (opining 

court could read two related temporary injunction orders as a “unified whole.”). The trial court’s 

Capias order commands relator to be brought before the trial court for a hearing with the intent to 

find relator in contempt of court. The April 18 order states relator has “intentionally disregard[ed] 

the court’s order and that contemptuous relief can be sought.”
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To satisfy due process, the “alleged contemnor [must] be personally served with a show 

cause order or that it be established that [she] had knowledge of the content of such order.” Ex 

parte Blanchard, 736 S.W.2d 642, 643 (Tex. 1987) (per curiam). As indicated supra, the record 

does not show relator was present at the April 13 hearing. Neither the trial court nor the Ad Litem 

provided evidence purporting to show relator’s alleged disobedient conduct occurred in the 

presence of the court. See In re Wal-Mart Stores, Inc., 545 S.W.3d 626, 633 (Tex. App.—El Paso 

2016, orig. proceeding) (“It is well established that constructive notice of the contempt hearing or 

contempt allegations is constitutionally inadequate.”). There is no indication that the trial court 

apprised the relator of the accusations against her through a show cause order or a legal equivalent. 

To the contrary, the Capias order specifically stated no further notice was to be given to the relator. 

Because the relator was not afforded due process notice of the accusations against her, the 

Contempt Orders are null and void.5 See Ex parte Blanchard, 736 S.W.2d at 643. 

CONCLUSION

We conclude portions of the trial court’s April 14, 2022 and April 18, 2022 orders

unlawfully restrained relator’s liberty. We further hold the Capias order is void. Accordingly, we 

conditionally grant the petition for writ of habeas corpus and direct the trial court, no later than 

fifteen days from the date of this opinion, to vacate the following: (1) decretal paragraph 3.2. of 

the April 14, 2022 Emergency Order; (2) decretal paragraphs 2.2. and 2.3. of the April 18, 2022 

Emergency Order; and (3) the Order for Writ of Capias and Setting of Bond signed on April 14, 

2022.

Lori I. Valenzuela, Justice

5 Because we have found the Contempt Orders violated relator’s due process rights and are therefore void, we do not 

reach the merits of the Ad Litem’s argument that the Capias order is lawful under the Texas Family Code.