in Re Luciano Sarabia, Jr.

Opinion issued May 20, 2004

In The

Court of Appeals

For the

First District of Texas

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NO. 01-04-00263-CV

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IN RE LUCIANO SARABIA, JR., Relator

Original Proceeding on Petition for Writ of Habeas Corpus

MEMORANDUM OPINION Relator Luciano Sarabia requests this Court to grant him habeas corpus relief.

We dismiss the petition.

On March 25, 2004, Sarabia filed his petition for writ of habeas corpus with

this Court. He asserted that, because he had been ordered incarcerated only on

weekends, it was:

impossible for him to show actual incarceration to this Court during the

Court’s regular business hours. However his denial of weekend freedom

clearly qualifies as a restriction on Relator’s ‘absolute and perfect

freedom of action’ justifying the issuance of the writ. See Ex parte

Calhoun, supra.

In support of his argument that his circumstances qualify to meet the restraint

requirement for habeas corpus relief, Sarabia relies on Ex parte Duncan , 796 S.W.2d

562, 564 (Tex. App.—Houston [1st Dist.] 1990, orig. proceeding), asserting that an

order requiring a contemnor to surrender to a probation officer satisfies the restraint

requirement, and Ex parte Conner , 746 S.W.2d 527, 527 (Tex. App.—Beaumont

1988, orig. proceeding), asserting that placing a contemnor on probation has been

held sufficient to satisfy the restraint requirement.

On March 30, 2004, we stayed the commitment portion of the March 19, 2004

order and ordered that relator be released on bond, pending a final determination of

his petition. We also ordered that, by April 14, 2004, Sarabia supplement our record

with certified documents from the Harris County Sheriff’s Department evidencing his

confinement for the weekends of March 20, 2004-March 21, 2004 and March 27,

2004-March 28, 2004. Sarabia has not responded to our March 30, 2004 order.

Texas Rule of Appellate Procedure 52.3(j)(1)(D) requires that a relator seeking

habeas corpus relief furnish proof that the relator is being restrained. A mere

judgment of contempt will not justify the granting of a writ of habeas corpus. Ex

parte Calhoun , 91 S.W.2d 1047, 1048 (Tex. 1936). In Calhoun , the Texas Supreme

Court concluded that the record before it showed that relator had never been deprived

of her liberty or restrained at all because she was never jailed pursuant to the

contempt order. Id . Examining the record, the Texas Supreme Court stated that

Calhoun’s affidavit showed that she went to the sheriff’s office without her being

requested to do so; that she remained there for some time of her own free will; that

she was not subject to an arrest while there; that she was not compelled or even

requested to remain there; and that she was free to go where she pleased and do as she

pleased after she left. Id . at 1048. In addition, the sheriff swore that she was never

arrested or confined. Id . at 1047.

In this case, despite our order requesting that he do so, relator has not provided

us with any evidence that he has been to the jail on the weekends, as directed by the

court’s commitment order, nor any evidence that the trial court’s commitment order

has been enforced against him.

In Duncan , the trial court suspended its order committing relator to jail, placed

him on probation and ordered that, as a condition of his probation, he report to a

probation officer once a month and not travel outside Harris County without the trial

court’s permission. Duncan , 796 S.W.2d at 564 . This court held that the terms and

conditions of Duncan’s probation constituted a sufficient restraint to warrant

examination of his petition for habeas corpus relief. See id. Duncan is inapplicable

to this case, however, in that, in Duncan, there was no issue whether the trial court’s

probation order had been enforced. Here, after a request by this court to do so,

Sarabia has produced no evidence he has been subject to any enforcement of the trial

court’s commitment order. Relator’s failure to respond leaves us with no evidence

he is, in fact, actually undergoing restraint.

Accordingly, we dismiss Sarabia’s petition. See Calhoun , 91 S.W.2d at 1049

(dismissing relator’s petition for habeas corpus relief because relator had not

produced a record demonstrating that she was under any kind of arrest or restraint).

We withdraw our March 30, 2004 order granting temporary relief to Sarabia upon his

posting a $500 bond and we lift the stay we ordered on the commitment portion of the

trial court’s March 19, 2004 commitment order.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Alcala and Bland.