in Re Brayden Crook and Jonathan Crook

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00194-CV

IN RE BRAYDEN CROOK AND JONATHAN CROOK

Original Proceeding

DISSENTING OPINION

In this proceeding, the Relators want us to set aside a gag order rendered by the

trial court judge. The verified petition for a writ of mandamus states that the order was

rendered against the Relators after an ex parte hearing on a motion for the gag order

without notice or an opportunity to be heard. After the petition for writ of mandamus

was filed, the Real Party in Interest moved the trial court for a clarification of the gag

order. Again without notice and an opportunity to be heard, the trial court purported to

clarify the gag order. It should be beyond dispute that such an order and clarification,

even if alleged to be an emergency, should not have been rendered and then modified as a result of ex parte proceedings in which one side is deprived of the opportunity to present

evidence, respond to evidence, or cross examine the party seeking the order. The Real

Party in Interest attempts to justify the merits of the gag order based on the allegations

that secured, and the findings made to justify, the gag order and its clarification. But

what the Real Party in Interest does not defend, explain, or even respond to is why this

order and clarification was sought or allowed to be obtained without notice and the

opportunity to be heard at the hearing by the Relators. In fact, the Real Party in Interest

asserts that in the 24 hours between the filing of the motion for clarification and the trial

court signing the clarification order that “Relators failed to respond in any manner. No

request for a special setting or request to file an opposition was made.” It was not the

Relators’ motion. It was not their duty to request or obtain a setting on the Real Party in

Interest’s motion or request leave to file a response. And until there was a setting, and

notice thereof, the Relators had no realistic opportunity to even file a response, much less

request a hearing on the Real Party in Interest’s motion.

To deny the Relators the most fundamental of procedural due process rights,

notice and an opportunity to be heard on a hotly contested motion for a gag order, is

clearly an abuse of discretion for which there is no effective remedy by appeal. There is

no need to even get to the merits of the gag order, because the procedure engaged in to

obtain it cannot justify allowing the order to remain in effect. I would grant the petition

for writ of mandamus and issue the writ of mandamus to compel the trial court to

In re Crook Page 2 immediately and without delay withdraw and set aside the gag order and purported

clarification of the gag order. Because the Court denies the petition for writ of

mandamus, thus leaving the trial court’s gag order and clarification in place, I

respectfully dissent.

TOM GRAY Chief Justice

Dissenting Opinion delivered and filed June 19, 2019 [OT06]

In re Crook Page 3