                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-16-00375-CV


IN RE COURTNEY LEE                                                    RELATOR


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                             ORIGINAL PROCEEDING
                          TRIAL COURT NO. 57,660-C*1-2

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                           MEMORANDUM OPINION1

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      In a petition for writ of mandamus and writ of prohibition that relator

Courtney Lee filed on October 13, 2016, she asked this court to require the trial

court to reinstate a bond and to stay further proceedings with regard to her

criminal charges until that court resolved an issue concerning her competency.

Relator contended that the trial court violated article 46B.004(d) of the code of

criminal procedure by not staying the proceedings before declaring her bond

insufficient and increasing the amount of the bond. See Tex. Code Crim. Proc.


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          See Tex. R. App. P. 47.4.
Ann. art. 46B.004(d) (West Supp. 2016) (“If the court determines there is

evidence to support a finding of incompetency, the court . . . shall stay all other

proceedings in the case.”). On October 17, 2016, we requested a response to

relator’s petition.

         On October 26, 2016, the State of Texas, which is the real party in interest

in this proceeding, filed a “Notice of Cause Resolution.” The State informed this

court that the competency issue has been resolved2 and that relator has entered

into a plea bargain that disposes of her charges. The State’s response showed

that in accordance with the plea bargain, the trial court deferred its adjudication

of relator’s guilt to the charges and placed her on community supervision for ten

years.       Finally, the State suggested that in light of the resolution of the

competency issue and the disposition of relator’s charges, she was “no longer

requesting any relief at this point, but only an improper advisory opinion.”

         Relator filed a response. In the response, relator agreed that the “case in

question ha[d] been temporarily resolved,” but she urged us to nonetheless rule

on her mandamus petition. She contended that this case is not moot because

the trial court’s action is capable of repetition but evades review.




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        The State represented that “upon agreement from both the State and
[relator], the trial court found [relator] to be competent.” The trial court’s
October 26, 2016 order on competency states, “The Defendant, along with her
counsel, . . . agreed with [the doctor’s] report that she was competent to stand
trial. The Court then found her competent to stand trial.”


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      “The rule is an elementary one that a writ of mandamus will not issue if for

any reason it would be useless or unavailing.” Holcombe v. Fowler, 118 Tex. 42,

44, 9 S.W.2d 1028, 1028 (1928) (orig. proceeding); see Dow Chem. Co. v.

Garcia, 909 S.W.2d 503, 505 (Tex. 1995) (orig. proceeding); A Am. Stamp &

Novelty Mfg. Co. v. Wettman, 658 S.W.2d 241, 243 (Tex. App.—Houston [1st

Dist.] 1983, orig. proceeding) (“A writ of mandamus will not issue if it would be

useless or unavailing . . . .      Under such circumstances, the courts have

considered that the subject matter is moot and have refused to order the

issuance of a writ of mandamus.”). If a controversy ceases to exist, the case

becomes moot. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001).

      One “rare” exception to this rule of mootness may occur when an issue is

capable of repetition but evades review. In re Fort Worth Star Telegram, 441

S.W.3d 847, 852 (Tex. App.—Fort Worth 2014, orig. proceeding). To invoke the

exception, “a party must establish both that the challenged act is of such short

duration that the issue becomes moot before review may be obtained and that a

reasonable expectation exists that the same complaining party will be subjected

to the same action again.” Id. (emphasis added).

      We cannot conclude that any such “reasonable expectation” exists here.

Relator’s argument assumes too many uncertain future events: that sometime in

the next ten years, the State will allege that she violated a term of her community

supervision; that the State will file a motion for the trial court to adjudicate her

guilt; that during such an adjudication proceeding, another issue concerning her


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competency will arise; and that the trial court will not stay proceedings in

accordance with article 46B.004(d) after determining that some evidence

supports a finding of incompetency. Cf. Ex parte Nelson, 815 S.W.2d 737, 739

(Tex. Crim. App. 1991) (declining to apply the exception when a habeas corpus

applicant’s claim hinged on the future possibility that he would “once again

violate a condition of his parole”); see Ex parte Bohannan, 350 S.W.3d 116, 119–

20 (Tex. Crim. App. 2011) (citing Nelson and reaching a similar conclusion); see

also Coburn v. Moreland, 433 S.W.3d 809, 826 (Tex. App.—Austin 2014, no pet.)

(explaining that the “mere physical or theoretical possibility that the same party

may be subjected to the same action again is not sufficient to satisfy the test”).

      Because the trial court has determined the competency issue and has

resolved relator’s criminal charges, any relief we could issue in this proceeding

would be useless and unavailing.      Thus, we dismiss relator’s petition as moot.

See In re Bonilla, 424 S.W.3d 528, 534 (Tex. Crim. App. 2014).


                                                    /s/ Terrie Livingston

                                                    TERRIE LIVINGSTON
                                                    CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER, J.; CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).

DELIVERED: November 14, 2016




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