Court of Appeals of Texas, Fifth District, Dallas
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 ...