in Re Kim Henderson and Randy Henderson, Individually and as Next Friends of MFPD 263, a Minor ( 2011 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-11-00822-CV
In re Kim Henderson and Randy Henderson, Individually
and as Next Friends of MFPD 263, a Minor
ORIGINAL PROCEEDING FROM BURNET COUNTY
M E M O R AN D U M O P I N I O N
Relators Kim Henderson and Randy Henderson, individually and as next friends
of MFPD 263, a minor, filed a petition for writ of mandamus alleging that the district court’s
November 29, 2011 “Judge’s Fiat Regarding Pretrial Publicity By Parties” violates their
constitutional free speech rights and should be vacated. The petition raises important issues as to
the proper balancing of the constitutional rights to free speech and fair trial. However, the
Hendersons do not show that they have asked the district court for relief from the order and that
such relief was denied, or that such a request would have been futile; thus mandamus relief
is not appropriate at this time. See Terrazas v. Ramirez, 829 S.W.2d 712, 723-25 (Tex. 1991);
In re Hearst Newspapers, 241 S.W.3d 190, 192 (Tex. App.—Houston [14th Dist.] 2007,
orig. proceeding); cf. In re Houston Chronicle, 64 S.W.3d 103, 106 (Tex. App.—Houston
[14th Dist.] 2001, orig. proceeding).
Accordingly, the Hendersons’ petition for mandamus is denied without prejudice.
See Tex. R. App. P. 52.8(a). Real party-in-interest Todd Freking’s unopposed first amended motion
to seal is granted, and the Hendersons’ motion for temporary relief is dismissed.
__________________________________________
Jeff Rose, Justice
Before Justices Puryear, Rose and Goodwin
Filed: December 22, 2011
2