Beth M. Johnson
Petitions for Writ of Mandamus
In a petition for writ of mandamus, the party seeking relief is referred to as the “Relator.” Tex. R. App. P. 52.2. The trial judge is generally the “Respondent.” Tex. R. App. P. 52.2. When seeking mandamus relief, remember that the relator is asking the appellate court to correct an error made by the trial court, not to punish the opposing party, who is referred to as “Real Party in Interest.” Tex. R. App. P. 52.2.
Mandamus is an extraordinary remedy that is only available in limited circumstances. See Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992). Mandamus relief is appropriate only where the relator establishes that:
(1) the trial court has abused its discretion; and
(2) the relator has no adequate remedy by appeal.
See In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003). A trial court abuses its discretion where “it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Id.
The technical requirements of a petition for writ of mandamus are similar to that of an appellate brief; however, instead of the trial court clerk and trial court reporter preparing the records, the relator must include all the necessary pleadings and transcripts in an “Appendix” to the petition. Tex. R. App. P. 52.3(k). Sensitive information, including account numbers, children’s names, and children’s addresses, must be redacted from the appendix before filing. Tex. R. App. P. 9.9. Some court clerks will reject the filing if information is unredacted. Others will allow the filing with the errors, and the failure to redact will be noted in the court’s opinion. Most courts prefer to have the petition and appendix filed as a single PDF when feasible; however, at least one court prefers the appendix (or “record”) to be a separate PDF.
When reviewing the trial court’s decision for an abuse of discretion, an appellate court may not substitute its judgment for that of the trial court with respect to resolution of factual issues or matters committed to the trial court’s discretion. Walker, 827 S.W.2d at 839. However, the appellate court is “much less deferential” when it reviews the trial court’s determination of the legal principles controlling its ruling. Id. at 840. While an appellate court defers to the trial court’s factual determinations, mandamus may issue when the trial court “fails to correctly analyze or apply the law.” In re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (orig. proceeding). When assessing whether to seek mandamus relief, it is important to remember this “clear abuse of discretion” requirement. The appellate court will not rehash fact issues. If the issue is a he-said-she-said situation, it is unlikely that you can establish a clear abuse of discretion.
Even if the record establishes a clear abuse of discretion, the relator must additionally show that there is no adequate remedy by appeal. In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). The word “adequate” is not clearly defined, but the courts have provided some considerations to determine whether appellate relief is adequate. Id. at 136. Mandamus is not appropriate to review incidental, interlocutory rulings of the trial court. Id. Rather, the review should be limited to significant rulings in exceptional cases to preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings. Id. “An appellate remedy is ‘adequate’ when any benefits to mandamus review are outweighed by the detriments.” Id.
Mandamus can be used to correct an unwarranted appointment of a discovery master. In re Orsak, __ S.W.3d __, No. 01-21-00481-CV, 2022 WL 3649365, at *9 (Tex. App.—Houston [1st Dist.] 2022, orig. proceeding) (08-25-2022). In Orsak, the husband argued that he lacked an adequate remedy by appeal because requiring a party to reserve their complaint regarding the appointment of a discovery master for appeal “would be to deny them any effective relief from the trial court’s order.” Id. at *8. The appellate court agreed. Id. (citing Suttles v. Vestin Realty Mortg. I, Inc., 317 S.W.3d 412, 419 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding).
Because a trial court’s temporary orders are not appealable, mandamus is an appropriate vehicle for review. See In re Derzapf, 219 S.W.3d 327, 334–35 (Tex. 2007) (orig. proceeding) (per curiam). When a trial court renders orders that violate Texas Family Code Section 156.006, the order is challengeable by a petition for writ of mandamus. See e.g., In re Mach, No. 13-22-00126-CV, 2022 WL 1395327, at *7 (Tex. App.—Corpus Christi 2022, orig. proceeding) (mem. op.). For example, in Mach, the father was entitled to mandamus relief when the trial court changed through a temporary order the person with the exclusive right to designate the child’s residence without affording the father adequate notice of a hearing. Id. at *6.
Additionally, “in jurisdictional disputes arising from child custody proceedings, the relator need not demonstrate the inadequacy of an appellate remedy.” In re Burk, 252 S.W.3d 736, 739 n.1 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding [mand. denied]); see also In re Gandy, 649 S.W.3d 921, 928 (Tex. App.—Eastland 2022, orig. proceeding); In re Tirey, No. 07-22-00002-CV 2022 WL 801947, at *1 (Tex. App.—Amarillo 2022, orig. proceeding) (mem. op.).
In Gandy, a grandmother sought to intervene in a termination proceeding pursuant to Texas Family Code Section 102.004(b). Gandy, 649 S.W.3d at 924. The trial court misconstrued the requirements of the statute and dismissed the grandmother’s petition in intervention because the trial court determined that, in addition to showing significant impairment if the mother was appointed managing conservator, the grandmother was required to show that she had substantial past contact with the child. Id. at 925. However, the Eastland court followed Dallas’s precedent and held that the “substantial past contact” phrase modified “other person” and not “grandparent.” Id. at 926–27 (citing In re Nelke, 573 S.W.3d at 922–933 (Tex. App.—Dallas 2019, orig. proceeding)). Therefore, the trial court clearly abused its discretion in dismissing the grandmother’s petition in intervention, and she lacked any adequate remedy by appeal. Id. at 928.
In Tirey, the appellate court addressed whether the trial court properly determined that it had subject matter jurisdiction pursuant to the UCCJEA. 2022 WL 801947, at *1. While this issue is reviewable by mandamus, in this case, mandamus was denied because the trial court had sufficient evidence to determine that it could exercise jurisdiction under the UCCJEA. Id. at *3. Although the child had no home state and had no significant connection with Texas, Texas could nevertheless exercise jurisdiction under the fourth subsection of Texas Family Code Section 152.201(a)—the default jurisdiction provision. Id. Contrary to the mother’s arguments, the father was not required to establish that no other state could exercise jurisdiction—the third subsection of the statute—when there was no evidence otherwise. Id. In other words, the father was not required to prove a negative. See id.
Contempt orders are not reviewable by appeal. See In re Roisman, 651 S.W.3d 419, 433 (Tex. App.—Houston [1st Dist.] 2022, no pet.). This is true even when the contempt order is appealed along with a judgment that is appealable. See id. Instead, contempt orders are reviewed only by petition for writ of mandamus or petition for writ of habeas corpus. See In re Janson, 614 S.W.3d 724, 727 (Tex. 2020). When the contemnor is not jailed, the proper vehicle to challenge a contempt order is a petition for writ of mandamus. Id.
Before a court can punish an alleged contemnor for constructive contempt, due process requires that the accused have full and complete notification of the contemptuous act. Ex parte Carney, 903 S.W.2d 345, 346 (Tex. 1995). More precisely, a constructive contemnor “must have full and complete notification of the subject matter, and the show cause order or other means of notification must state when, how, and by what means the defendant has been guilty of the alleged contempt.” In re Parks, 264 S.W.3d 59, 62 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding). A contempt order rendered without adequate notice is void. In re Vasos, No. 01-17-00841-CV, 2018 WL 1954164, at *3 (Tex. App.—Houston [1st Dist.] 2018, orig. proceeding) (mem. op.). The relator has the burden to show that the order is void. In re Thompson, No. 01-14-00235-CV, 2014 WL 6792031, at *1 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding).
In Roisman, the father challenged (through a consolidated appeal and petition for writ of mandamus) a judgment holding him in contempt for failing to pay his share of unreimbursed medical expenses for the parties’ children. 651 S.W.3d at 424. The mother listed as the father’s violations the dates certain medical expenses were incurred and the amounts of those expenses, but she did not provide a date by which the father was required to reimburse her for his share of the expenses. Id. at 436. The mother did not provided dates by which the father was required to reimburse he or dates that the father allegedly committed contempt by failing to reimburse her. Id. Without details regarding a specific order violated and how such a violation occurred, the father was not afforded the minimum due process requirements before holding him in contempt, and the contempt order was void. Id. at 437.
The appellate court can deny a petition for writ of mandamus without hearing from the respondent or real party in interest. Tex. R. App. P. 52.4, 52.8. Thus, the real party in interest should only respond if specifically asked by the appellate court to do so. Once a response is filed, the relator may file a reply; however, time is of the essence because the court can rule at any point after the response is filed. Tex. R. App. P. 52.5. If the court denies relief, it can choose not to issue any opinion explaining its rationale. Tex. R. App. P. 52.8(d).
The relator may ask the appellate court for emergency relief pending the outcome of the petition for writ of mandamus. Tex. R. App. P. 52.10(b). Emergency relief may be appropriate when an order changes a child’s living conditions or if an order requires disclosure of discovery that cannot be “undone.”
As stated above, mandamus is appropriate when a relator lacks an adequate remedy by appeal. So, if mandamus is not timely sought, any potential relief could be lost by continuing with the underlying proceeding because there will be no future means of relief. Obtaining mandamus relief could help ensure the law is properly followed throughout the remainder of the case. However, seeking mandamus and losing could embolden the court and opposing counsel and place your client at a disadvantage. Thus, when receiving an unfavorable ruling, question: (1) whether the ruling was a clear abuse of discretion; and (2) whether there is adequate remedy through appeal. If mandamus is available, a decision of whether to pursue that relief must be made quickly because, as a remedy based in equity, the appellate courts will deny relief if not sought timely. See e.g., In re Hinterlong, 109 S.W.3d 611, 620 (Tex. App.—Fort Worth 2003, orig. proceeding [mand. denied]) (“[e]quity aids the diligent and not those who slumber on their rights.”) (citations omitted).