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Opinion issued November 3, 2006







In The

Court of Appeals

For the

First District of Texas

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NO. 01-06-00733-CV

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IN RE AURELIO SOTELO FLORES, Relator




Original Proceeding on Petition for Writ of Habeas Corpus




MEMORANDUM OPINIONRelator, Aurelio Sotelo Flores, has filed a petition for a writ of habeas corpus, challenging an order of capias for his arrest issued in the trial court. Footnote In his petition, relator asserts that the trial court’s underlying child support order, which the real party in interest, Letisia Cuevas, seeks to enforce, is ambiguous and void. Footnote Relator is not physically restrained, and the trial court has not adjudicated him to be in contempt. The trial court issued its order of capias for relator’s arrest because he did not appear at a May 25, 2006 hearing on Cuevas’s motion to enforce the child support order. As of the date of the petition, the capias had not been executed, and, as of the date of the opinion, it remains unexecuted.

Restraint

          To obtain habeas corpus relief, the relator’s liberty must be restrained. Texas Government Code, section 22.221(d) provides that we 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.

Tex. Gov’t Code Ann. § 22.221(d) (Vernon 2004). Here, the trial court did not hold the hearing on the motion to enforce, and its order to appear is the only order the trial court could have determined relator violated. Because relator has not been adjudicated in contempt of the trial court’s child support order, the issue of whether it is ambiguous or void is premature. Footnote

Conclusion

          We dismiss relator’s petition for want of jurisdiction because the issue about which relator complains is not ripe for consideration in this habeas proceeding. Footnote See In re Easton, No. 14-06-00674-CV, slip op. at 3, 2006 Tex. App. LEXIS 7095 (Tex. App.—Houston [14th Dist.] Aug. 10, 2006, orig. proceeding) (held court of appeals has no jurisdiction to entertain application for writ of habeas corpus when trial court had issued writ of attachment for relator’s arrest because he had failed to appear for contempt hearing, but was not confined and, to the court’s knowledge, was still evading writ of attachment).

PER CURIAM

Panel consists of Justices Nuchia, Jennings, and Higley.