NUMBER 13-22-00564-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE THE STATE OF TEXAS EX REL. LUIS V. SAENZ
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Tijerina
Memorandum Opinion by Justice Tijerina1
Relator the State of Texas ex rel. Luis V. Saenz has filed a petition for writ of
mandamus contending that the district court lacked jurisdiction to vacate a magistrate’s
emergency protective order that was issued in municipal court.2 As explained below, we
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R.
47.4 (distinguishing opinions and memorandum opinions).
2
The State of Texas filed a separate notice of appeal assailing the same order that is subject to
mandamus review in this original proceeding—that is—the November 15, 2022 order granting habeas
corpus relief and vacating the emergency protective order. We dispose of that appeal by separate
memorandum opinion issued this same date. See The State of Texas v. Gerald Castro, No. 13-22-00564-
CR, 2023 WL _____, at *_ (Tex. App.—Corpus Christi–Edinburg Feb. 9, 2023, no pet. h.) (mem. op., not
designated for publication).
conclude that this original proceeding has been rendered moot by the expiration of the
magistrate’s order, and we thus dismiss this original proceeding as moot.
In a criminal case, to be entitled to mandamus relief, the relator must establish
both that the act sought to be compelled is a ministerial act not involving a discretionary
or judicial decision and that there is no adequate remedy at law to redress the alleged
harm. See In re Meza, 611 S.W.3d 383, 388 (Tex. Crim. App. 2020) (orig. proceeding);
In re Harris, 491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding) (per curiam);
In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). As to the
first requirement, mandamus will issue if the trial court issues an order for which it lacks
authority. See In re State ex rel. Best, 616 S.W.3d 594, 599 (Tex. Crim. App. 2021) (orig.
proceeding). With regard to the second requirement, “[e]ven when a legal remedy is
available, it can be ‘so uncertain, tedious, burdensome, slow, inconvenient, inappropriate,
or ineffective as to be deemed inadequate.’” In re Smith, No. WR-93,354-02, 2022 WL
17480102, at *2 (Tex. Crim. App. Dec. 7, 2022) (orig. proceeding) (quoting In re State ex
rel. Wice v. Fifth Jud. Dist. Ct. of Apps., 581 S.W.3d 189, 194 (Tex. Crim. App. 2018)
(orig. proceeding)). If the relator fails to meet both requirements, then the petition for writ
of mandamus should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of Apps. at
Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). It is the
relator’s burden to properly request and show entitlement to mandamus relief. See State
ex rel. Young, 236 S.W.3d at 210; In re Pena, 619 S.W.3d 837, 839 (Tex. App.—Houston
[14th Dist.] 2021, orig. proceeding).
“We are prohibited from issuing advisory opinions, the distinctive feature of which
2
is that it decides an abstract question of law without binding the parties.” Tucker v. State,
136 S.W.3d 699, 701 (Tex. App.—Texarkana 2004, no pet.); see TEX. CONST. art. II, § 1;
Perez v. State, 938 S.W.2d 761, 764 (Tex. App.–Austin 1997, pet. ref'd). A case is moot
when there is no justiciable controversy between the parties or when the parties lack a
legally recognizable interest in the outcome. State ex rel. Best v. Harper, 562 S.W.3d 1,
6 (Tex. 2018). When there is “nothing to mandamus,” as when a case becomes moot,
then “mandamus does not lie.” In re Bonilla, 424 S.W.3d 528, 534 (Tex. Crim. App. 2014)
(orig. proceeding) (quoting State ex rel. Holmes v. Denson, 671 S.W.2d 896, 899 (Tex.
Crim. App. 1984) (orig. proceeding)); see In re Evans, 581 S.W.3d 431, 434 (Tex. App.—
Texarkana 2019, orig. proceeding).
Here, the magistrate’s emergency protective order was issued on October 6, 2022,
showed an effective duration of sixty-one days, and expired by its own terms on
December 6, 2022. “Ordinarily, the expiration of an order granting injunctive or protective
relief renders the issue moot.” In re Sierra Club, 420 S.W.3d 153, 156 (Tex. App.—El
Paso 2012, orig. proceeding); see In re L.A.-K., 596 S.W.3d 387, 396 (Tex. App.—El
Paso 2020, no pet.). Nevertheless, “Texas courts have routinely applied the collateral
consequences exception to an expired protective order issued for family violence
because of the stigma and attendant legal consequences to being the subject of such a
protective order.” Burt v. Francis, 528 S.W.3d 549, 552 (Tex. App.—Eastland 2016, no
pet.) (collecting cases). However, here, the magistrate’s emergency protective order was
vacated on November 15, 2022, prior to its expiration on December 6, 2022, and the party
contesting the November 15, 2022 order is not the subject of the emergency protective
3
order. Because the State is not the subject of the emergency protective order, it cannot
complain about the stigma or legal consequences resulting from the emergency
protective order. See id. In this case, the emergency protective order has expired, and
we see no exceptions to the mootness doctrine which might apply. See Truong v. State,
580 S.W.3d 203, 208–09 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (discussing the
exceptions to the mootness doctrine).
The Court, having examined and fully considered the petition for writ of mandamus,
the response filed by real party in interest, Gerald Castro, and the applicable law, is of the
opinion that this original proceeding has been rendered moot. Accordingly, we dismiss
the petition for writ of mandamus as moot.
JAIME TIJERINA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
9th day of February, 2023.
4