delivered the opinion of the Court.
This is an original habeas corpus proceeding in which Relator, Hubbard L. Hardin, seeks release from the custody of the Sheriff of Jefferson County, Texas.
The record before us consists of duly certified copies of “all the court orders entered in the Divorce Minutes оf the Criminal District Court of Jefferson County, Texas, pertaining to Cause No. 48,768-C, styled Ann C. Hardin v. Hubbard L. Hardin,” to *568 gether with photostatic copies of thе “Civil Docket, District Court case No. 48,768-C,” attached thereto and bearing the certification of the District Clerk.
The orders are as follows: order entering judgment nunc pro tunc, dated September 26, 1960; nunc pro tunc judgment of divorce, child custody, and child support payments entered September 30, 1960, reciting that the cause “came on to be heard on March 13, 1959;” and оrder “Entered this 5 day of December, 1960,” holding Relator in contempt of court and assessing a fine of $100.00 and three days in the county jail, ordеring Relator to pay $1,199.50, “back child support by December 5, 1960,” reducing the child support payments to $28.00 weekly (the nunc pro tunc judgment setting these payments at $56.00 weekly), and further ordering that “If said $1199.50 payment is not made by December 5, 1960, then Defendant shall be held in contempt of Court and cоnfined in the County Jail until he purges himself by payment of said sum.”
The statement оf facts discloses that at the beginning of the hearing on December 1, 1960, pursuant to which the order of December 5, 1960, was entered, the сourt stated that the hearing was not on “a contempt matter” аnd that “On 9-17-60, he (referring to Relator) was held in contempt.” Apparеntly, then, Relator is in custody pursuant to docket entries as follows:
“Divоrce granted plaintiff” “3-13-59;” “9-17-59” “defendant is found guilty of contempt of court for failure to pay $1067.00 back child support and ordered to jаil until he purges himself * * *;” “3-7-6Ó. Deft, still in contempt but is ordered released — to pay each week as ordered;” “7-28-60. Deft, still in contempt under order of 9-17-59 and capias ordered issued for his arrest;” “9-30-60. Deft, released from custody and ordered to pay $35.00 each 2 wks. 1st payment due Oсt. 15-60 * * * ;” “10-27-60. Hearing Reset for December 1, 1960. Defendant ordered to continue to pay $35.00 every two weeks * * * ;” “12-1-60. Amount of support fixed at $28.00 pеr wk. and deft, held in contempt for failure to pay $900.00 back child support and ordered to jail until paid.”
Each of the foregoing docket entries is over the signature of Honorable Owen M. Lord, Judge Presiding.
The record does not disclose that there was any summons, noticе or hearing in open court in connection with the docket entry of September 17, 1959, first finding Relator guilty of contempt, or the dockеt entries of March 7, 1960, and July 28, 1960,
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reciting that the Relator was “still in contemрt.” Relator was thus not accorded due process of law.
Ex parte Hill,
Moreover, the record before us does not disclose any written order of commitment pursuant eithеr to the docket entries or to the judgment of contempt entеred December 5, 1960. It is well settled that a written order of commitment, which is the warrant, order or process by which a court directs a ministerial officer to take a person to jail and to detain him thеre, is an essential prerequisite to the imprisonment of a person for contempt.
Ex parte Martinez,
Relator is ordered discharged.
Opinion delivered February 22,1961.