WADE BIRDWELL, JUSTICE

Original Proceeding 360th District Court of Tarrant County, Texas Trial Court No. 360-691675-20

Before Kerr, Birdwell, and Womack, JJ.

MEMORANDUM OPINION

WADE BIRDWELL, JUSTICE

This matter presents two questions: (1) What kind of proceeding has contemner J.E.H. filed? and (2) Has J.E.H. presented a moot controversy?

Regarding the first question, we have narrowed down our choices to an appeal, a petition for writ of habeas corpus, or a petition for writ of mandamus. Because J.E.H. cannot appeal a contempt order, and because J.E.H. has not shown any proof of restraint-a prerequisite to obtaining a writ of habeas corpus-we conclude, by default, that we are reviewing a petition for writ of mandamus.

As for the second question, because J.E.H. is not under any restraint or any other penalty for having been found in contempt, we conclude that the dispute is moot and, thus, that any opinion we might issue on the merits would be advisory.

Because J.E.H. presents a moot controversy, and because we have no jurisdiction to issue advisory opinions, we dismiss J.E.H.'s petition for mandamus relief.

I. BACKGROUND

After the trial court held J.E.H. in contempt for not paying child support and ordered him committed to jail for 180 days, J.E.H. filed a notice of appeal. Orders of contempt, however, are not appealable. In re L.M., No. 02-17-00218-CV, 2017 WL 3381139, at *2 (Tex. App.-Fort Worth Aug. 7, 2017, orig. proceeding) (mem. op.); In re Braden, 483 S.W.3d 659, 662 (Tex. App.-Houston [14th Dist.] 2015, orig. proceeding) (per curiam).

Apparently aware that he could not appeal, after filing a clerk's record and reporter's record-documents that we normally associate with an appeal-J.E.H. filed a "Writ of Habeas Corpus" with an appendix. But a petition for writ of habeas corpus must be accompanied by proof of restraint, and J.E.H. provided no proof of restraint. See Tex.R.App.P. 52.3(k)(1)(D); Ex parte Sealy, 870 S.W.2d 663, 666 (Tex. App.-Houston [1st Dist.] 1994, orig. proceeding).

In the response of the Office of the Attorney General (OAG), it asserted that J.E.H. has been released from confinement. J.E.H. did not file a reply disputing the OAG's assertion.

Our own review shows that appellate courts have, on occasion, treated a petition seeking habeas relief as a mandamus proceeding. See, e.g., In re Daniel, 396 S.W.3d 545, 546 (Tex. Crim. App. 2013) (orig. proceeding); L.M., 2017 WL 3381139, at *1 n.2; see also Braden, 483 S.W.3d at 662 ("Contempt orders that do not involve confinement cannot be reviewed by writ of habeas corpus[] but may be reviewed by writ of mandamus."). But even a mandamus proceeding must have a justiciable controversy. See, e.g., In re Enriquez, 676 S.W.3d 675, 676 (Tex. App.-El Paso 2023, orig. proceeding) (mandamus became moot when trial court cancelled the trial date); In re Johnson, 599 S.W.3d 311, 311-12 (Tex. App.-Dallas 2020, orig. proceeding) (mandamus proceeding seeking ruling on motion rendered moot when trial court ruled on motion). We are not persuaded that J.E.H. has presented a justiciable controversy.

II. MOOTNESS DOCTRINE

A case becomes moot when

• the parties no longer have a justiciable controversy;

• the parties no longer have a legally cognizable interest in the case's outcome;

• the court can no longer grant the requested relief or otherwise affect the parties' rights or interests; or

• any decision the court makes would constitute an impermissible advisory opinion.

In J.E.H.'s petition, he complains that the trial court should not have held him in contempt. But the only consequence identified in the order for being held in contempt was incarceration for 180 days. J.E.H. has provided no proof that he is still incarcerated or that he remains under the threat of imminent incarceration. The OAG has asserted that J.E.H. is no longer incarcerated. And J.E.H. has not disputed the OAG's assertion. Thus, without any restraint and without any other identifiable penalty, vacating the contempt findings will change nothing. The dispute is effectively moot. See id.

III. AN EXCEPTION TO THE MOOTNESS DOCTRINE

Within J.E.H.'s petition, anticipating the OAG's argument, he argued that this proceeding is not moot. Specifically, he contended that the issue is one that is prone to repetition but eludes review because the dispute expires before courts can act. We are not persuaded.

A capable-of-repetition-yet-evading-review exception to the mootness doctrine exists, but it applies only in rare circumstances. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). To invoke the exception, a party must prove two components:

(1) the challenged action was too short in duration to be litigated fully before the action ceased or expired; and

(2) a reasonable expectation exists that the same complaining party will be subjected to the same action again.

In his petition, J.E.H. concedes that "there is a reasonable expectation that [he] will be subjected to a contempt action in the future." For purposes of this opinion only, we will take him at his word.

But repetition is only one of the two components. J.E.H. has not shown that the challenged action was too short in duration to be litigated fully before the action ceased or expired. For example, the trial court ordered J.E.H. confined for 180 days. We can resolve a petition for writ of habeas corpus or a petition for writ of mandamus in less than 180 days. We can also grant temporary relief. See Tex.R.App.P. 52.8(b)(3), 52.10.

Not only may we act quickly, but the trial court may act quickly too and render the matter moot. See, e.g., Enriquez, 676 S.W.3d at 676; Johnson, 599 S.W.3d at 311-12. In J.E.H.'s case, something happened to moot the trial court's commitment order. We are not privy to what that something was, but for our purposes, knowing the matter has been mooted is sufficient.

Accordingly, we hold that the capable-of-repetition-yet-evading-review exception to the mootness doctrine does not apply.

IV. CONCLUSION

Because we lack subject-matter jurisdiction to decide a moot controversy, we dismiss J.E.H.'s petition for want of jurisdiction. See Tex. Dep't of Fam. &Protective Servs. v. N.J., 644 S.W.3d 189, 192 (Tex. 2022) ("Because courts lack subject-matter jurisdiction to decide a moot controversy, . . . we must dismiss a case that is moot for want of jurisdiction."); Meeker v. Tarrant Cnty. Coll. Dist., 317 S.W.3d 754, 759 (Tex. App.-Fort Worth 2010, pet. denied) ("The mootness doctrine prevents courts from rendering advisory opinions, which are outside the jurisdiction conferred by . . . the Texas constitution.").