OPINION
Relator, Kent Marshall Duncan, complains that he is being illegally restrained for his failure to pay child support pursuant to an order suspending his commitment and placing him on probation signed by the judgе of the 308th District Court of Harris County. Duncan is presently in arrears for more than $23,000 in child support.
Duncan and the real party in interest, Miriam L. Diebold, divorced in 1982. On October 31, 1986, Duncan was ordered to pay Diеbold $600 per month in child support, with $300 due on the first and fifteenth of each month.
In February 1990, Diebold filed a motion to enforce the October 31, 1986 child support order by contempt, and to confirm arrеarage and render judgment. The motion specifically alleged, as to each date of contempt, the amounts due and paid. The motion further alleged that, as of February 15,1990, Duncan wаs in arrears in his child support obligation in the amount of $22,-440.
On March 28, 1990, the trial court signed an order finding Duncan in contempt for violating its October 31, 1986 order to pay child support. The trial court’s March 28, 1990 оrder specifically set out the time, date, and place of each occasion that Duncan failed to comply with the October 31, 1986 order to pay child support. The trial cоurt further found that as of March 15, 1990, Duncan was in arrears in his child *564 support obligation in the amount of $23,-040. The trial court also found that Duncan had the ability to make each child support payment as it became due, and that Duncan currently had the ability to pay the entire arrearages that were due. The trial court ordered Duncan confined until he paid the entire arrearages, attorney fees, and costs. Duncan was confined for approximately 50 days pursuant to this order.
On May 2, 1990, Duncan filed in the trial court an application for a writ of habeas corpus claiming that his confinement was illegal because he did not have the current ability to pay the entire arrearages of $23,-040. On May 22, 1990, the trial court signed an order granting Duncan’s application for а writ of habeas corpus, found that Duncan did not have the current ability to pay the entire arrearages of $23,040, and ordered him released. The trial court, however, reaffirmed its earlier findings contained in its March 28, 1990 order that Duncan had the ability, but failed to pay each child support payment as it became due, and that he was in contempt for his failure to make these pаyments. The trial court assessed punishment at confinement in the Harris County jail for six months, and “there to remain from day to day until Relator has complied.” Duncan was not confined pursuant to this order. Dunсan does not challenge the trial court’s finding that he had the ability to pay each child support payment as it became due.
On June 6, 1990, the trial court signed another order suspending its May 22, 1990 order of commitment, and placed Duncan on probation for five years. The relevant terms and conditions of Duncan’s probation are: (1) that he pay his current child support obligation in аccordance with the trial court’s October 31, 1986 order, that is $600 per month by paying $300 on the first and fifteenth of each month, and (2) that he pay off the arrearages ($23,040) by paying $100 on the fifteenth of each month until the arrearages are paid in full.
1. Probation as a restraint justifying ha-beas corpus relief
In points of error one and two, Duncan asserts that probation is a sufficient restraint on liberty to permit the filing of a writ of habeas corpus. We agree.
Ex parte Conner,
As part of the terms and conditions of Duncan’s probation, Duncan is required to report to a probation officer at least once a month, and he cannot travel outside of Hаrris County without permission from the court. We hold these terms and conditions of Duncan’s probation constitute a sufficient restraint precluding absolute and perfect freedom of action. Id.
2. Voidness of the conditions of probation in the June 6, 1990 order
In point of error three, Duncan asserts the order of June 6, 1990 is void. We disagree. Where the trial court finds that an obligor is in contempt for failure or refusal to make a payment, the trial court may suspend commitment and place the obligor on probation. Tex.Fam.Code Ann. sec. 14.40(e)(1) (Vernon 1986). This Court may order the release of a relator in a habeas corpus proceeding where the commitment, or the order on which it is based, is void.
Ex parte Barnett,
Duncan’s argument appears to be that the conditions of his probаtion are void because the trial court found, in its May 22, 1990 order, that Duncan was unable to pay the arrearages of $23,040. Thus, we understand Duncan’s argument to be that the conditions of his probation, rеquiring him to pay $100 per month toward the $23,040 child support arrearages and to pay his current child support of $600 per month, are void because he does not have the ability to perform thеm. These conditions are entirely remedial as an attempt to coerce Duncan into satisfying his child support obligations, and he has the burden to
*565
demonstrate that he does not have the ability to perform them.
Ex parte Rohleder,
The trial court did not order Duncan to pay the entire arrearages of $23,040 as a condition of his probation. The trial cоurt ordered him to pay $100 per month toward the arrearages and to pay his current child support of $600 per month. Duncan does not claim he does not have the ability to pay these amounts.
Citing
Ex parte Brown,
Moreover, Duncan’s reliance on
Brown
is misplaced. The issue in
Brown
was whether the trial court could impose a definite sentence for criminal contempt where the relator had previously been convicted of an act for which he was held in contempt.
Here, Duncan did not establish that the trial court could not hold him in contempt for any of the acts set out in the March 28, 1990 order. All Duncan contends is that, based on its finding that he did not have the current ability to pay the entire child support arrearages of $23,040, the trial court could not indеfinitely confine him until he paid those arrearages.
Even though the trial court, in its May 22, 1990 order, found that the coercive portion of the March 28, 1990 order was void, based on its finding that Duncan did not have the current ability to pay the entire $23,040 in child support arrearages, this does not mean the entire March 28, 1990 order was void. The trial court could have imposed a definite sentence for criminal contempt, based on findings Duncan has not challenged, that Duncan had the ability but failed to pay each child support payment as it became due.
Ex parte De Wees,
Duncan also argues that doublе jeopardy prohibited the trial court from placing him on probation because he had begun to serve his sentence under the March 28, 1990 order, and the conditions of his probation constitute an increase in his punishment for contempt under the March 28, 1990 order. Duncan cites
United States v. Benz,
The case of
Brown
does not apply because it involved a situation where a relator was held in contempt for аn act for which he had previously been convicted of in a criminal offense.
The case of
Benz
stands for the proposition that a person cannot be subject to double punishment for the same offеnse, and that a judgment cannot be modified to increase punishment once a defendant has begun to serve his sentence.
Duncan mischaracterizes the nature of his confinement under the March 28, 1990 order as “punishment” for contempt. There was no “punishment” for contempt under this order. His confinement under this order was purely remedial as an attempt to coerce Duncаn into satisfying his child support obligations.
Ex parte De Wees,
The terms and conditions of Duncan’s probation are not void.
3. Discharge of Duncan
In point of error four, Duncan argues that the trial court was rеquired to discharge him from jail, and was precluded from assessing a probated sentence. Based on the foregoing, Duncan is not entitled to a discharge or release from the terms and сonditions of his probation.
Duncan has failed to establish his right to relief. Tex.R.App.P. 74(f), 120(b). Accordingly, his petition for a writ of habeas corpus is denied.
4. Diebold’s attorney’s motion to withdraw as counsel
Finally, Diebold’s attorney has filed a motion to withdraw as counsel. The motion to withdraw is granted.