in Re Brian Ray Lawson ( 2020 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed April
14, 2020.
In The
Fourteenth Court of Appeals
NO. 14-20-00261-CV
IN RE BRIAN RAY LAWSON, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
280th District Court
Harris County, Texas
Trial Court Cause No. 2020-04357
MEMORANDUM OPINION
On April 6, 2020, relator Brian Ray Lawson (“Brian”) filed a petition for writ
of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R.
App. P. 52. In the petition, Brian asks this court to compel the Honorable Barbara
Stalder, presiding judge of the 280th District Court of Harris County, to vacate her
temporary ex-parte protective order and/or to proceed to an in-person trial of the
protective order within 30 days.
FACTUAL AND PROCEDURAL BACKGROUND
On January 22, 2020, the real party-in-interest, Stephanie Lawson (“Stephanie”),
filed a second application for protective order, alleging, among other things:
Respondent committed acts that were intended by Respondent to result in
physical harm, bodily injury, assault, or sexual assault or were threats
that reasonably placed Applicant, STEPHANIE ANN LAWSON, and her
child, . . . in fear of imminent physical harm, bodily injury, assault, or
sexual assault. Respondent’s acts therefore constitute family violence.
This allegation is supported by two affidavits of Stephanie.
On January 28, 2020, at the conclusion of an ex parte hearing, Judge Stalder
signed a protective order finding: “there is an immediate need for the following
protective orders to prevent family violence and to protect applicant and other
members of the household . . .”. Brian complains that the protective order excludes
him from the marital residence, denies him all access to his daughter, and orders him
to pay allegedly excessive child support and expenses related to the marital
residence.
The protective order was set hearing on February 10, 2020, and the parties
appeared at the hearing. Judge Stalder stated that she would have to reset the hearing
for April 3, 2020 because she did not have time on her docket to hear the case. On
February 12, 2020, Judge Stalder reset the hearing for April 20, 2020.
On April 2, 2020, Judge Stalder’s court coordinator sent an e-mail to the
parties stating, we still have you set for April 20, 2020, but please let me know if
you wish to reset this matter to a future date or we can go forward via Zoom. Brian’s
counsel replied to this e-mail, stating, “No, we want to keep that date.” Brian’s
counsel then sent another e-mail to the court coordinator, asking if his two options
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are either to (1) go forward with the hearing on April 20, or (2) pick a new date for
trial? The e-mail explained:
The reasons why I ask are as follows:
1. We have subpoenaed multiple witnesses to appear in court on April
20, 2020, and I do not see how I am logically and/or legally going to
be able to compel their appearance via Zoom. Additionally, the filing
of affidavits will not suffice because we will not then be given the
opportunity to confront the declarant of the statements offered.
2. We have volumes of exhibits which we will need to present to the
court, the opposing counsel and, more importantly, witnesses for the
purpose of foundations, direct and cross examination. Filing the
exhibits will not be sufficient because they will not become part of
the record until the proper foundations have been laid, objections
ruled on and they are admitted. . . .
We still want to keep the trial for April 20, 2020, but we are requesting
that the trial be live in the 280th Judicial District Court.
After reading the above, please let me know what our options are as
directed by the court.
In his petition, Brian states that he has not yet received any response from the
court to this e-mail request that the April 20 hearing be live.
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ANALYSIS
In his petition, Brian argues, among other things, that a trial via Zoom is
inadequate because there is allegedly no provision to subpoena witnesses and
compel their appearance via Zoom and Brian would not be able to confront his
accuser at a live hearing. Brian also argues that it would be an abuse of discretion
for Judge Stalder to indefinitely delay a live hearing because section 83.002 of the
Texas Family Code provides: “A temporary ex parte order is valid for the period
specified in the order, not to exceed 20 days” and “On the request of an applicant or
on the court's own motion, may be extended for additional 20-day periods.” Tex.
Fam. Code Ann. § 83.002.
Our court may not consider the arguments stated in Brian’s petition because
the record does not show that the arguments have properly been presented to the trial
court. Due to the extraordinary nature of the remedy, the right to mandamus relief
generally requires a predicate request for action by the respondent trial judge, and
the respondent’s erroneous refusal to act. In re Coppola, 535 S.W.3d 506, 510 (Tex.
2017)(orig. proceeding). Arguments not presented to the trial court will not be
considered in the review of a petition for writ of mandamus. See In re Am. Optical
Corp., 988 S.W.2d 711, 714 (Tex. 1998) (orig. proceeding). “[A]rguments not
presented to the trial court will not be considered in a petition for writ of mandamus.”
In re Second St. Properties LLC, No. 14-16-00390-CV, 2016 WL 7436649, at *5
(Tex. App.—Houston [14th Dist.] Dec. 22, 2016, orig. proceeding) (per curiam)
(mem. op.) (quoting In re RH White Oak, LLC, No. 14-15-00789-CV, 2016 WL
3213411, at *9 (Tex. App.—Houston [14th Dist.] June 9, 2016, orig. proceeding)
(mem. op.); see also In re Jindal Saw Ltd., 264 S.W.3d 755, 767 (Tex. App.—
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Houston [1st Dist.] 2008, orig. proceeding) (concluding that arguments asserted in
mandamus petition could not be considered because they were not first presented to
trial court).1
Additionally, merely filing a motion with a court clerk does not show that the
motion was brought to the trial court’s attention for a ruling because the clerk’s
knowledge is not imputed to the trial court. In re Amaro, No. 14-14-00340-CV, 2014
WL 2157088, at *1–2 (Tex. App.—Houston [14th Dist.] May 20, 2014, orig.
proceeding) (per curiam) (mem. op.). See also In re Villarreal, 96 S.W.3d 708, 710
n.2 (Tex. App.—Amarillo 2003, orig. proceeding) (stating that the relator must
provide a record which shows that the respondent-judge knew of the motion and was
asked to rule on it because a judge cannot be faulted for doing nothing when the
judge was not aware of the need to act; the clerk’s knowledge is not imputed to the
judge). “Filing a request for a ruling is insufficient to call the matter to the judge’s
attention because a judge may be unaware of the request. Instead, the party
demanding a ruling must set its request either for submission or a hearing.” In re
Dong Sheng Huang, 491 S.W.3d 383, 385–86 (Tex. App.—Houston [1st Dist.]
2016, orig. proceeding).
Accordingly, Brian’s e-mails to the court coordinator are insufficient to show
that Judge Stalder is aware of his request for a live hearing. The record does not
show that Brian has filed a motion presenting the arguments stated in his petition to
1
This rule—that arguments must first be presented to the trial court—applies even to arguments
that an order or judgment is void because the trial court lacked subject matter jurisdiction. See In re
Coppola, 535 S.W.3d at 510.
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the trial court and set any such motion for submission or for hearing, which could be
accomplished via Zoom. See Dong Sheng Huang, 491 S.W.3d at, 385–86.
CONCLUSION
For the above reasons, we deny the petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Bourliot, Hassan, and Poissant.
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