in Re Hong Kong Dajiang Innovation Technology Co., Ltd. ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00053-CV
In re Hong Kong Dajiang Innovation Technology Co., Ltd.
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION
Relator Hong Kong Dajiang Innovation Technology Co. Ltd. filed a petition for writ
of mandamus asserting that a temporary restraining order that enjoined it from selling its products
to certain customers was void and requesting that this Court “confirm that the [order] is void.”
Because mandamus is not an appropriate vehicle to make such a declaration, we construe this as a
request for a writ of mandamus ordering the trial court to dissolve the temporary restraining order.
While mandamus relief may have been available while the temporary restraining order was still in
effect, however, Relator concedes that the order expired by its own terms when the district court
signed a temporary injunction on January 22, 2014. Because the temporary restraining order is no
longer in effect, the issue of whether it should be dissolved is moot.
Relator asserts that even though the temporary restraining order has expired, the Real
Parties in Interest have threatened a contempt action based on Relator’s alleged failure to comply
with the order while it was in place. However, the proper vehicle for seeking relief from a judgment
of contempt based on a void order is a habeas corpus proceeding. See Ex parte Shaffer,
649 S.W.2d 300, 302 (Tex. 1983) (court will issue writ of habeas corpus if order underlying
contempt is void).1 Even if we were to treat Relator’s petition for writ of mandamus as an original
habeas corpus proceeding, we would lack authority to grant relief because Relator has not established
that its liberty has been constrained. See Tex. R. App. P. 52.3(d)(4), (k) (relator must describe how
it has been deprived of liberty and provide proof that it is being constrained); Ex parte Williams,
690 S.W.2d 243, 244 (Tex. 1985) (while applicant for writ of habeas corpus need not actually be
confined, some character of restraint is required); In re Easton, 203 S.W.3d 438, 441 (Tex.
App.—Houston [14th Dist.] 2006, no pet.) (mere threat of arrest does not constitute “constraint” for
purposes of habeas corpus); In re Commitment of Richards, 202 S.W.3d 779, 789 (Tex.
App.—Beaumont 2006, pet. denied) (courts have, through habeas proceedings, reviewed various
restrictions that do not amount to confinement); Ex parte Alt, 958 S.W.2d 948, 951 (Tex.
App.—Austin 1998, no pet.) (writ of habeas corpus is not to be used as declaratory tool).
The petition for writ of mandamus is dismissed for lack of jurisdiction.
_____________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Pemberton and Rose
Filed: February 13, 2014
1
While mandamus may be an avenue for relief from a fine assessed under a contempt order
that does not include an order of confinement, see Deramus v. Thornton, 333 S.W.2d 824 (Tex.
1960), Relator does not contend that any such order has been rendered. See also Kidd v. Lance,
794 S.W.2d 586, 587 n.1 (Tex. App.—Austin 1990, orig. proceeding) (citing Deramus) (when there
is no order of confinement, mandamus is only remedy available to party challenging validity of
contempt order).
2