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In re Fort Bend Independent School District

Court of Appeals of Texas, First District

October 3, 2019

IN RE FORT BEND INDEPENDENT SCHOOL DISTRICT, Relator

          Original Proceeding on Petition for Writ of Mandamus

          Panel consists of Chief Justice Radack and Justices Keyes and Landau.

          OPINION

          EVELYN V. KEYES JUSTICE

         This mandamus proceeding arises out of a suit brought in 2018 by Relator, Fort Bend Independent School District (FBISD), under Texas Health & Safety Code chapter 711. The underlying proceeding sought judicial approval under section 711.010 of the Code to remove the dedication of an abandoned prison farm cemetery found during construction of a vocational school on property FBISD owns and to move human remains found there to a nearby municipal cemetery pursuant to an agreement reached by FBISD and the City of Sugar Land (the City), which owns and maintains the municipal cemetery, after months of input from a community task force of interested persons, the Texas Historical Commission (THC) and the Fort Bend County Historical Commission (FBCHC).

         At a hearing held in November 2018, the respondent district court[1] refused to approve the agreement as being in the public interest, as required by section 711.010. Instead, it appointed sua sponte a Master in Chancery, local attorney Michael W. Elliott, pursuant to Texas Rule of Civil Procedure 171, to oversee all proceedings.

         The district court's order appointing the Master

specifically authorize[d the Master] to work with the parties and other interested persons to assist in the investigation, to assist in the legal discovery in the case and to assist in the promulgation of options and potential resolution options for the Court to consider in the case in the form of an ultimate Written Report to the Court concerning the potential resolution options for the Court to Consider.

         The trial court also ordered "[t]he parties and their agents and/or employees and/or designees . . . to allow [the Master] access to the property and/or individuals with knowledge and/or information relevant to the case, but also to non-privileged documents and/or evidence in the case as appropriate." And it ordered the parties "to cooperate with [the Master] to assist him in his Court Assigned Duties in the Case."

         In December 2018, FBISD filed a petition for writ of mandamus in this Court, seeking to compel the trial court to vacate its order appointing the Master in Chancery. The petition for mandamus presented a single issue: whether the trial court abused its discretion in appointing the Master and granting him sweeping powers. FBISD argued that the order failed to meet the "exceptional case" and "good cause" criteria for appointment of a master under Rule 171 and that the powers granted the Master by the district court's order far exceeded the statutory authority of a master and of the trial court itself and were improper.

         On June 10, 2019, while FBISD's mandamus petition was still pending in the underlying action, the Governor signed a bill amending several sections of Health & Safety Code chapter 711. The Act amending the statute provides that "[t]he changes in law made by this Act apply only to a suit involving the removal of remains from an abandoned, unknown, or unverified cemetery pending in a trial court on the effective date of this Act or filed on or after that date." Act of May 22, 2019, 86th Leg., R.S., ch. 817, § 4, 2019 Tex. Sess. Law Serv. 2275, 2276. Suits "involving the removal of remains from an abandoned, unknown, or unverified cemetery" in which a final order was rendered before the effective date of the Act continue to be governed by the law in effect on the date the order was rendered, and the prior law was continued in effect for that purpose. Id. No final order was entered in these proceedings before the effective date of the amendments to chapter 711. Accordingly, the Act as amended applies to these mandamus proceedings and any subsequently filed proceedings.

         On June 13, 2019, three days after the amendments to chapter 711 took effect, the Master in Chancery filed a letter brief in this mandamus proceeding informing this Court that FBISD's petition for mandamus seeking to vacate the order appointing the Master was moot due to the expansion of powers granted to the trial court by the amendments to chapter 711. These included an amendment to subsection 711.010(c) that permits the trial court to "designate or appoint any person, party, court appointed representative, or official the court considers necessary to assist in determining whether the removal is in the public interest." See Act of May 22, 2019, 86th Leg., R.S., ch. 817, § 2, sec. 711.010(c), 2019 Tex. Sess. Law Serv. 2275, 2275 (to be codified at Tex. Health & Safety Code Ann. § 711.010(c)).

         On July 25, 2019, FBISD filed a notice of nonsuit of the underlying proceeding, stating that it no longer sought to remove the cemetery dedication. The next day, the trial court, instead of entering an order dismissing the underlying proceeding, entered an order appointing Scott West as Guardian ad Litem "for the rights, interests and dignity of the 95 bodies" found in the cemetery on FBISD's property. The trial court then issued an order "re-appointing" Elliott as a Master in Chancery.

         On August 5 and 7, FBISD filed two supplemental mandamus petitions in this Court seeking to compel the trial court to vacate these orders and to dismiss the underlying proceeding pursuant to FBISD's nonsuit.

         We agree with FBISD that its filing of its nonsuit of the underlying suit to remove the cemetery dedication mooted all proceedings pending in the underlying suit in the trial court except as to the assessment of court costs. Accordingly, the trial court lost jurisdiction to act on the merits of the proceeding. We hold that the nonsuit moots FBISD's original mandamus petition challenging the November 2018 appointment of the Master, and we therefore dismiss the original mandamus petition. We further hold that the trial court's appointment of the Guardian ad Litem and reappointment of the Master are both ineffective because these appointments occurred after FBISD nonsuited the underlying proceeding. We therefore conditionally grant FBISD's two supplemental mandamus petitions and order that the trial court vacate these two orders.

         Background

         A. Discovery of Abandoned Cemetery on FBISD's Property and Petition to Disinter Human Remains

         On February 19, 2018, FBISD's contractors discovered bones during construction of a vocational high school on property FBISD owns at 12300 University Boulevard, Sugar Land, Fort Bend County. FBISD stopped construction and, after contacting consultants, the medical examiner, and the THC, it confirmed that samples were human, and it filed the statutorily-required notice of discovery of cemetery. See Tex. Health & Safety Code Ann. § 711.011 (requiring person who discovers unknown or abandoned cemetery to file notice of discovery of cemetery with county clerk).

         On June 5, 2018, the trial court granted FBISD's request under subsection 711.004(c) to exhume the remains for further investigation. The investigation concluded that there were ninety-five graves on the property and that the remains were likely from male African-American prisoners who were part of the state's convict-leasing program from the 1870s through 1911. The State had previously operated the Imperial Prison Farm Camp Number 1 on the property.

         In the several months after the discovery of the abandoned cemetery, FBISD made reasonable efforts to identify the human remains found in the abandoned cemetery on its property and attempted unsuccessfully to identify next of kin. It also met several times with a citizens' community task force that included the City and both the THC and the FBCHC to discuss how to handle the exhumed human remains, now referred to as the "Sugar Land 95." Ultimately, they agreed to move the remains to the nearby Imperial Prison Farm ...


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