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In re Return Lee to Lee Park

Court of Appeals of Texas, Fifth District, Dallas

October 10, 2019

IN RE RETURN LEE TO LEE PARK, WARREN JOHNSON, AND KATHERINE GANN, Relators

          Original Proceeding from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC18-05460

          Before Justices Whitehill, Partida-Kipness, and Pedersen, III

          MEMORANDUM OPINION

          BILL WHITEHILL JUSTICE.

         The question before us in this original proceeding is whether a writ of injunction is necessary to preserve our jurisdiction pending resolution of Relators' underlying appeal concerning the removal or demolition of a Confederate monument and the sale of a historic statue.

         We conclude that the question is moot as to the statue because the sale has been consummated but an injunction is necessary to protect our jurisdiction over the remainder of the appeal. We therefore grant Relators' writ of injunction concerning the removal, alteration, or demolition of the monument.

         I. Background

         Relators Return to Lee Park, Warren Johnson, and Katherine Gann (Relators) filed suit against the Mayor of the City of Dallas and Dallas City Council members (the City) and sought a temporary restraining order preventing the sale of the Robert E. Lee Confederate Soldier Sculpture (the Statue) and the removal of the Confederate Monument in Pioneer Cemetery (the Monument). The trial court dismissed Relators' claims in a final judgment that Relators timely appealed in cause number 05-19-00456-CV (the Appeal). The Appeal is still pending.

         Relators then filed this petition for writ of injunction and motion for emergency relief to enjoin the City from (i) demolishing, altering, or removing the Monument and (ii) completing the sale of the statue. By the time the petition was filed, however, the statue had been sold at a private auction.

         II. Analysis

         A. Is an injunction necessary to preserve our jurisdiction?

         The Texas Constitution provides that the courts of appeals have such appellate and original jurisdiction as prescribed by law. Tex. Const. art. V, § 6. Under the Government Code, a court of appeals "may issue a writ of mandamus and all other writs necessary to enforce jurisdiction of the court." Tex. Gov't Code § 22.221(a). Thus, a court of appeals may issue such a writ to prevent an appeal from becoming moot. Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 657 (Tex. 1992) (orig. proceeding); In re Shields, 190 S.W.3d 717, 719 (Tex. App.- Dallas 2005, orig. proceeding). Indeed, "[t]he power of the courts of appeals to protect their jurisdiction is essential for the orderly administration of justice." Dallas Morning News, 842 S.W.2d at 658.

         Here, the underlying appeal is from the final judgment granting the City's plea to the jurisdiction and alternative motion for summary judgment and dismissing Relators' claims. In that case, Relators maintained that Pioneer Park, where the Monument is located, is a historic site and the City planned to demolish the Monument without first obtaining approval from the Texas Historical Commission (THC). Relators further averred that the City pla nne d to remove the Statue, its plinth, and seating area from Lee Park and sell the Statue without THC approval. Accordingly, Relators requested: (i) a declaration that the Statue and Pioneer Cemetery are state archeological landmarks; (ii) an order voiding the contract and resolution for removal and movement of the Statue, and (iii) an injunction enjoining the City from demolishing, damaging, or removing the Monument, from selling the statue, from demolishing, damaging, or removing the plinth and seating area for the Statue, and ordering restoration of the Statue and its return to the plinth in Lee Park.

         The City argues that the requested relief regarding the Statue is moot because the sale is complete and the Statue has already been transferred. We agree.

         The City also argues that emergency relief is not necessary because the Monument has been disassembled, moved, and reassembled before and the City will simply remove it and store it while the ...


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