in Re Maggy Horgan ( 2019 )

Order filed October 22, 2019.
In The
Fourteenth Court of Appeals
NO. 14-19-00786-CV
IN RE MAGGY HORGAN
ORIGINAL PROCEEDING
WRIT OF HABEAS CORPUS
328th District Court
Fort Bend County, Texas
Trial Court Cause No. 19-DCV-258949
ABATEMENT ORDER
On October 9, 2019, Maggy Horgan filed a petition for writ of habeas corpus
asking our court to compel Judge Armatys of the 328th District Court of Fort Bend
County to vacate the September 16, 2019 order of enforcement by contempt and
order for commitment of Maggy to jail.
After this court issued a bond for the release of Maggy Horgan and
requested a response to the petition, real party-in-interest John Horgan, III filed an
Unopposed Request for Writ of Habeas Corpus, in which real party requested that
this court vacate the contempt and confinement orders and discharge Maggy
Horgan from confinement.
The parties, however, have not provided a record showing that the
arguments stated in relator’s petition have been presented to the trial court or that
doing so would have been futile and would not have added anything for the trial
court’s consideration.
“As a rule, mandamus is not available to compel an action which has not
first been demanded and refused.” Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex.
1991). But such requirement is excused when the request would have been futile
and the trial court’s refusal little more than a formality. Id. “To determine whether
a request would have been futile, appellate courts examine whether the request
would have added anything for the court’s consideration.” In re RH White Oak,
LLC, 442 S.W.3d 492, 503 (Tex. App.—Houston [14th Dist.] 2014, orig.
proceeding) (per curiam). Arguments not presented to the trial court will not be
considered in the review of a petition for writ of mandamus. See In re Am. Optical
Corp., 988 S.W.2d 711, 714 (Tex. 1998) (orig. proceeding). “It is well established
that arguments not presented to the trial court will not be considered in a petition
for writ of mandamus.” In re RH White Oak, LLC, No. 14-15-00789-CV, 2016 WL
3213411, at *9 (Tex. App.—Houston [14th Dist.] June 9, 2016, orig. proceeding)
(mem. op.) (quoting In re Advance Payroll Funding, Ltd., 254 S.W.3d 710, 714
(Tex. App.—Dallas 2008, orig. proceeding)); see also In re Jindal Saw Ltd., 264
S.W.3d 755, 767 (Tex. App.–Houston [1st Dist.] 2008, orig. proceeding)
(concluding that arguments asserted in mandamus petition could not be considered
because they were not first presented to trial court). This requirement—of a
predicate request and presentment of arguments to the trial court—has been
applied or cited by decisions of our court seeking mandamus review of a contempt
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order. See In Re American Workers Insurance Services Inc. and Association Health
Care Management, Inc., Relators, No. 14-19-00795-CV, 2019 WL 5107038, at *1
(Tex. App.—Houston [14th Dist.] Oct. 11, 2019, orig. proceeding) (per curiam)
(mem. op.); In re Choice! Energy, L.P., 325 S.W.3d 805, 810 (Tex. App.—
Houston [14th Dist.] 2010, orig. proceeding).
Immediate review of relator’s petition is not necessary because relator has
been released from confinement.
Because the parties are in agreement that the contempt and confinement
orders should be vacated but have not provided a record showing that the
arguments stated in relator’s petition have been presented to the trial court or that
doing so would have been futile, we ABATE this case and remove it from the
court’s active docket to provide the parties the opportunity to ask Judge Armatys to
reconsider the contempt and confinement orders. Relator is ORDERED to notify
the court on or before 5:00 p.m. January 6, 2020, of the status of any
reconsideration proceedings in the trial court and whether relator desires to
prosecute this original proceeding. Failure to comply with this order will result in
the denial of relator’s petition.
PER CURIAM
Panel consists of Justices Jewell, Bourliot, and Zimmerer.
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