Opinion
No. 10-05-00397-CV
Opinion delivered and filed November 18, 2005.
Original Proceeding.
Writ dismissed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Justice VANCE concurs without a separate opinion)
MEMORANDUM OPINION
Linda Farr Arnold, through Joseph Dale Robertson, filed an application for writ of habeas corpus complaining that she is constructively confined and restrained in her liberty because of the threat of the execution of a writ of possession entered in conjunction with a forcible entry and detainer action. We dismiss the petition.
It is important to decide first whether we have jurisdiction to review his habeas petition. Ex parte Ustick, 9 S.W.3d 922, 924 (Tex.App.-Waco 2000, orig. proceeding). Our original jurisdiction in habeas corpus petitions is limited. In civil cases, the courts of appeals, concurrent with the Texas Supreme Court, have limited jurisdiction of habeas proceedings by virtue of the Texas Government Code. Id. See Ex parte Layton, 928 S.W.2d 781, 782 (Tex.App.-Amarillo 1996, orig. proceeding); TEX. GOV'T CODE ANN. § 22.221(d) (Vernon 2004). The Code provides, in part:
(d) Concurrently with the supreme court, the court of appeals of a court of appeals district in which a person is restrained in his liberty . . . 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) (Vernon 2004) (emphasis added). Thus, the petitioner must be seeking freedom from restraint imposed by an order arising from the violation of a previous order in a civil case. See Ex parte Hawkins, 885 S.W.2d 586, 588 (Tex.App.-El Paso 1994, orig. proceeding). But in criminal cases, we do not have original habeas corpus jurisdiction. TEX. CODE CRIM. PROC. Ann. art. 11.05 (Vernon 2005); Ex parte Hawkins, 885 S.W.2d 586, 588 (Tex.App.-El Paso 1994, orig. proceeding).
Arnold complains about a writ of possession issued to remove her from where she lives. This is a civil matter. However, she is not being restrained in her liberty because of the violation of an order previously made. There is only one order about which she complains, the writ of possession. And she has not violated that order. Therefore, we have no jurisdiction to issue a writ of habeas corpus.
Arnold further contends that she is being held in constructive custody as defined by article 11.21 of the Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 11.21 (Vernon 2005). However, the threat of an eviction is not the type of threat contemplated by that provision. Additionally, this provision pertains to writs of habeas corpus in criminal law matters, and we have no original jurisdiction in those matters.
Accordingly, the petition for writ of habeas corpus is dismissed for want of jurisdiction.