Opinion
No. 01-08-00993-CV
Opinion issued March 26, 2009.
Original Proceeding on Petition for Writ of Habeas Corpus.
Panel consists of Justices TAFT, BLAND, and SHARP.
MEMORANDUM OPINION
On December 18, 2008, relator, Victor Del Rio, filed an emergency petition for a writ of habeas corpus in this Court. See TEX. GOV'T CODE ANN. § 22.221(d) (Vernon 2004). We dismiss the proceeding for lack of jurisdiction.
Relator asks us to issue a writ of habeas corpus requiring respondent, Tracey Del Rio, to appear and to produce their minor child, N.D.R., before this Court or to show cause why custody should not be restored to relator. However, our original jurisdiction over habeas corpus petitions is limited to contempt judgments in which a person's liberty is restrained because of his violation of an order issued by a court in a civil case. In re Shaw, 175 S.W.3d 901, 903 (Tex.App.-Texarkana 2005, orig. proceeding) (citing Ex parte Hawkins, 885 S.W.2d 586, 588 (Tex. App 1994, orig. proceeding)); see TEX. GOV'T CODE ANN. § 22.221(d). Section 22.221(d) of the Texas Government Code provides:
[T]he court of appeals of a court of appeals district in which a person is restrained 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). Because this case does not meet those requirements, we do not have jurisdiction to consider relator's habeas corpus petition.
Section 157.372(a) of the Texas Family Code provides, "[I]f the right topossession of a child is governed by a court order, the court in a habeas corpusproceeding involving the right to possession of the child shall compel returnof the child to the relator only if the court finds that the relator is entitled topossession under the order." TEX. FAM. CODE ANN. § 157.372(a) (Vernon2008). But such a proceeding must be brought in the first instance in the trialcourt. See In re Bradshaw, No. 14-08-00957-CV, 2008 WL 5215649, at *2-3(Tex.App. Dec. 16, 2008, orig. proceeding) ("Section157.372(a) requires the trial court to grant a writ of habeas corpus if it findsthat a court order entitles the relator to possession.") (emphasis added).
Therefore, we dismiss this proceeding for lack of jurisdiction. All pending motions are dismissed as moot.