in Re State of Texas, Ex. Rel. Todd A. \"Tadeo\" Durden, County Attorney ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00776-CV
IN RE STATE OF TEXAS, ex. rel. Todd A. “Tadeo” Durden, County Attorney
Original Mandamus Proceeding 1
PER CURIAM
Sitting: Patricia O. Alvarez, Justice
Irene Rios, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: December 4, 2019
PETITION FOR WRIT OF MANDAMUS DISMISSED AS MOOT
On November 4, 2019, relator filed a petition for writ of mandamus complaining of the
trial court’s July 10, 2019 “Citation to Todd A. Durden to Appear and Show Authority, . . . and
for Consideration of Sanctions, . . . and Order of Protection” (the “Citation”). On November 7,
2019, this court ordered relator to show cause why this original proceeding should not be dismissed
as moot based on an order signed by the trial court on October 8, 2019. Relator filed a response
to our order. For the reasons stated below, we conclude this proceeding is moot and dismiss the
petition for writ of mandamus.
1
This proceeding arises out of Cause No. 4845, 4863, 4866, styled The State of Texas, ex. rel. Todd A. Durden, in His
Official Capacity as County Attorney v. James T. “Tully” Shahan, in His Official Capacity as County Judge; et al.,
pending in the 63rd Judicial District Court, Kinney County, Texas, the Honorable Sid L. Harle presiding.
04-19-00776-CV
DISCUSSION
At some point in the on-going litigation between Mr. Todd Durden, in his capacity as
County Attorney for Kinney County, Texas, against various defendants, the defendants filed a
motion to cause Mr. Durden to appear and show his authority to act. 2 In response to the
defendants’ motion, the trial court issued the Citation. The Citation stated a hearing would be held
on July 31, 2019, at which time Mr. Durden was to appear and show the basis of his authority to
bring the underlying civil suits. The Citation also stayed the production of any transcripts at
Kinney County’s expense pending the trial court’s ruling on Mr. Durden’s capacity to bring the
litigation. No hearing was held on July 31; instead, the case was assigned to the Honorable Sid
Harle.
On October 4, 2019, Judge Harle conducted a hearing on the motion to dismiss and for
final summary judgment filed by the defendants. On October 8, 2019, the trial court signed an
“Order Granting [Defendants’] Motion to Dismiss and for Final Summary Judgment and Denying
Relator’s Motion for Partial Summary Judgment.” 3 In the order, the trial court found Mr. Durden,
“in his official capacity as County Attorney of Kinney County, Texas, has no legal standing or
capacity to initiate civil litigation in the absence of clear and unambiguous statutory authority . . . .”
The order also stated as follows:
As for the determination of allocation of costs, both parties have requested
Court Costs. The case being resolved substantially in favor of the Defendant[s],
the Court orders Plaintiff [relator], personally and individually, to pay all costs of
court, including the cost of any transcripts, filing fees or service fees associated
with this litigation.
2
“A party in a suit or proceeding pending in a court of this state may, by sworn written motion stating that he believes
the suit or proceeding is being prosecuted or defended without authority, cause the attorney to be cited to appear before
the court and show his authority to act. . . . .” TEX. R. CIV. P. 12.
3
The October 8 order is the subject of appeals pending before this court.
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04-19-00776-CV
In its petition for writ of mandamus, relator characterizes the Citation as a temporary
restraining order that restrains the County Attorney from doing some act that he is otherwise
lawfully able to do. Relator asserts the Citation is void for the following reasons:
The issuing of the Citation, and the Citation itself, fail to satisfy the
provisions of Texas law set forth in Rules 680-693 of the Texas Rules of Civil
Procedure and Chapter 65 of the Texas Civil Practice and Remedies Code. It was
not granted upon a clear showing of specific facts shown by affidavit or by verified
complaint that immediate and irreparable injury, loss, or damage will result to the
applicant before notice can be served and a hearing had thereon. The Citation does
not define the injury and state why it is irreparable and why the order was granted
without notice. The Citation does not include an order setting a certain date for
hearing on the temporary or permanent injunctive relief sought. The Citation does
not recite that it shall expire by its terms within such time after signing, not to
exceed fourteen days.
Because it appeared the trial court’s October 8 order mooted the complaints raised in
relator’s petition, this court ordered relator to show cause in writing why this original proceeding
should not be dismissed as moot. In its response to our show cause order, relator asserted the
continued existence of the Citation adversely affects Mr. Durden’s ability to fulfill his duties and
denies him access to budgeted funds.
“A case becomes moot if a controversy ceases to exist between the parties at any stage of
the legal proceedings, including the appeal.” In re Kellogg Brown & Root, Inc., 166 S.W.3d 732,
737 (Tex. 2005) (orig. proceeding). Here, the controversy, as phrased by relator, is whether the
Citation is void because it does not meet the requirements necessary for the issuance of a temporary
restraining order. As stated above, the Citation does no more than order Mr. Durden to appear and
show authority and stay the expenditure of County funds pending a determination of Mr. Durden’s
authority. The Citation does not impliedly or expressly restrain Mr. Durden from taking any action
as the County Attorney. As to the controversy over Mr. Durden’s authority and access to County
funds, those issues were determined on October 8 by the trial court’s “Order Granting
[Defendants’] Motion to Dismiss and for Final Summary Judgment and Denying Relator’s Motion
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04-19-00776-CV
for Partial Summary Judgment.” Therefore, the October 8 order rendered this original proceeding
moot. Accordingly, we dismiss relator’s petition for writ of mandamus as moot.
PER CURIAM
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