In Re: Abigail H. Villarreal v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 18, 2023
• Docket: 05-23-00803-CV
• Status: Published

Opinion

DISMISS IN PART AND DENY IN PART and Opinion Filed August 18, 2023

S In the Court of Appeals Fifth District of Texas at Dallas No. 05-23-00803-CV

IN RE ABIGAIL H. VILLARREAL, Relator

Original Proceeding from the 382nd Judicial District Court Rockwall County, Texas Trial Court Cause No. 1-19-0358

MEMORANDUM OPINION Before Justices Partida-Kipness, Carlyle, and Garcia Opinion by Justice Carlyle Before the Court is relator’s August 16, 2023 Petition for Writ of Habeas

Corpus or, Alternatively, for Writ of Mandamus. In five issues, relator challenges

the trial court’s August 4, 2023 Order to Enforce Possession, Access, and

Residence Restriction. Also before the Court is relator’s August 16, 2023

Emergency Motion to Suspend Order of Confinement Pending This Court’s

Review of Petition for Habeas Corpus / Mandamus.

Contempt orders are reviewable only by writ of mandamus or habeas corpus

because they are not appealable. In re Janson, 614 S.W.3d 724, 727 (Tex. 2020) (orig. proceeding) (per curiam). In this instance, relator filed a combined petition

for writ of habeas corpus and petition for writ of mandamus.

With respect to relator’s petition for writ of habeas corpus, relator must

provide proof that she is being restrained. See TEX. R. APP. P. 52.3(k)(1)(D); TEX.

GOV’T CODE ANN. § 22.221(d). Relator argues that she is being restrained because

she could not embark on a one-week cruise today as she would supposedly be

subject to arrest when she presented herself to immigration officials upon the ship’s

return to the United States. We do not find her argument persuasive. We conclude

the record contains no proof that relator is being restrained. See TEX. R. APP. P.

52.3(k)(1)(D); TEX. GOV’T CODE ANN. § 22.221(d). Accordingly, we dismiss

relator’s petition for writ of habeas corpus for want of jurisdiction.

When, as in this case, the contemnor is not being restrained, the proper

vehicle to challenge the contempt order is a petition for writ of mandamus. In re

Rigg, No. 05-21-00342-CV, 2022 WL 908951, at *4 (Tex. App.—Dallas Mar. 29,

2022, orig. proceeding) (mem. op.). To obtain mandamus relief, the contemnor

must show the trial court abused its discretion. Id. After reviewing relator’s petition

and the record before us, we conclude that relator has failed to demonstrate

entitlement to mandamus relief. Accordingly, we deny the petition for writ of

mandamus. See TEX. R. APP. P. 52.8(a).

–2– We also deny relator’s emergency motion as moot.

/Cory L. Carlyle/ CORY L. CARLYLE JUSTICE 230803F.P05

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