## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-16-00375-CV

IN RE COURTNEY LEE RELATOR

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

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### MEMORANDUM OPINION 1

---------- In a petition for writ of mandamus and writ of prohibition that relator Courtney Lee filed on October 13, 2016, s he asked this court to require the trial court to reinstate a bond and to stay further procee dings with regard to her criminal charges until that court resolved an issue co ncerning her competency. Relator contended that the tr ial court violated article 46 B.004(d) of the code of criminal procedure by not staying the proceedings be fore declaring her bond insufficient and increasing the amount of the bond. See Tex. Code Crim. Proc.

1 See Tex. R. App. P. 47.4.2 Ann. art. 46B.004(d) (West Supp. 2016 ) (“If the court determines there is evidence to support a finding of incompet ency, 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 Ca use Resolution.” The State informed this court that the competency issue has been resolved 2 and that relator has entered into a plea bargain that disposes of her charges. The State’ s response showed that in accordance with th e plea bargain, the trial court deferred its adjudication of relator’s guilt to the charges and plac ed 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 th is point, but only an impr oper advisory opinion.” Relator filed a response. In the resp onse, relator agreed that the “case in question ha[d] been temporar ily resolved,” but she urge d 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.

2 The State represented that “upon ag reement 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.”3 “The rule is an elementary one that a writ of mandamus will not issue if for any reason it would be us eless 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 (T ex. App.—Houston [1st Dist.] 1983, orig. proceeding) (“A writ of mandamus will not is sue if it would be useless or unavailing . . . . Under such circumstances, the courts have considered that the subject matter is moot and have refu sed to order the issuance of a writ of mand amus.”). 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 th is 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 20 14, orig. proceeding) . To invoke the exception, “a party must establish both t hat the challenged act is of such short duration that the issue beco mes moot before review ma y be obtained and that a reasonable expectation exis ts that the same complain ing party will be subjected to the same action again .” Id. (emphasis added). We cannot conclude that any such “re asonable expectatio n” exists here. Relator’s argument as sumes too many uncertain future events: that sometime in the next ten years, the State will allege th at 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, an other issue concerning her4 competency will arise; and that the trial court w ill not stay proceedings in accordance with article 46B.004(d) a fter 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 appl y the exception when a habeas corpus applicant’s claim hinged on the future possibility t hat 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 possi bility that the same party may be subjected to the same action again is not suffici ent to satisfy the test”). Because the trial cour t has determined the co mpetency issue and has resolved relator’s criminal charges, any re lief 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: Nove mber 14, 2016