In Re Cornyn

27 S.W.3d 327, 2000 Tex. App. LEXIS 6305, 2000 WL 1294297
CourtCourt of Appeals of Texas
DecidedSeptember 7, 2000
Docket01-00-00758-CV
StatusPublished
Cited by43 cases

This text of 27 S.W.3d 327 (In Re Cornyn) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Cornyn, 27 S.W.3d 327, 2000 Tex. App. LEXIS 6305, 2000 WL 1294297 (Tex. Ct. App. 2000).

Opinions

OPINION

MURRY B. COHEN, Justice.

Relators seek a writ of mandamus, complaining that District Judge Patricia Hancock abused her discretion by granting a temporary restraining order (TRO) against [330]*330them; ordering a show-cause hearing against relators Cornyn and Maddox for contempt for violating the TRO; holding relators Lockhoof and Acker in contempt for violating the TRO; and setting a temporary injunction hearing. We conditionally grant the writ.

Background

The real parties in interest are Monetiz-eMedia.com (Monetize), Danny Michael Beavers, Donald Mark Beavers, Roy W. Weisner, and Robert W. Thomas, Jr. (collectively, the Monetize parties). Weisner and Danny and Donald Beavers created Monetize, which their pleadings describe as an “internet-based media network.” Monetize’s “gaming” directory includes various betting and gambling websites that the Monetize parties allege are owned, operated, and hosted by companies other than the Monetize parties. Relators dispute this and claim the Monetize parties, in running the website, are committing the offenses of communicating gambling information,1 promoting gambling,2 engaging in organized criminal activity,3 possessing gambling paraphernalia,4 and money laundering.5 The Monetize parties deny these claims.

Relator Acker, who had been investigating the Monetize parties, swore out an affidavit on June 23, 2000 that resulted in two search warrants from the Honorable Mary Bacon, visiting judge of the 184th District Court in Harris County; one from the Honorable Dan Beck, judge of the 155th District Court in Waller County; one from the Honorable Oliver Kitzman, visiting judge of the District Court in Brazos County; and one on June 27, 2000 from the Honorable Jan Krocker, judge of the 184th District Court in Harris County. Each of those district judges ordered the seizure of “instruments, instrumentalities, and evidence used in the commission of’ the claimed offenses and ordered as follows:

FURTHER, YOU6 ARE ORDERED, pursuant to the provisions of Article 18.10, Texas Code of Criminal Procedure (T.C.C.P.) to retain custody of any property seized pursuant to this warrant, until further order of this court or any other court of appropriate jurisdiction which shall otherwise direct the manner of safekeeping of said property. This court grants you leave and authority for the removal of said property from this county to Travis County, Texas, if said removal is necessary for safekeeping, examination or if such removal is authorized by provisions of Article 18.10, T.C.C.P.

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IT IS FURTHER ORDERED, that the computer processing unit and related evidence seized be held as evidence for a period no less than thirty (SO) days after the final disposition of all related criminal matters filed in the [applicable] County Courts System, at which time said computer processing unit and related evidence shall be subject to forfeiture under Article 18.18 of the Texas Code of Criminal Procedure to the State of Texas by and through, the Office of the Attorney General for proper disposal.

(Emphasis added.)

Pursuant to the search warrants, on June 26, 2000, officers seized computers, file servers, documents, and $35,000 from the Monetize parties. The Monetize parties allege confidential business trade secrets, private documents, and money and material unrelated to the investigation [331]*331were seized. The Monetize parties have never been accused of any crime in these matters, and no grand jury has been convened.

On July 10, 2000, the Monetize parties sued relators in the 33Srd District Court in Harris County for

1. Section 19837 violations of
a. the Fourth Amendment, based on allegedly intentional omissions and misleading statements in the search warrant affidavits, the executing officers’ conduct during the seizure, and the alleged encouragement and assistance of these actions by the Attorney General’s office, and
b. their commercial free speech rights;
2. violations of the Federal Electronic Communications Privacy Act;8 and
3. violations of the Federal Privacy Protection Act.9

They sought a TRO and temporary injunction, preventing further examination and retention of the seized property and further searches or seizures. They claim they will quickly be put out of business, and their trade secrets will be divulged, if relators keep their property for the investigation’s duration, which, relators admit, is limited only by the applicable statute of limitations. Accordingly, they sought a TRO for the return of their property on these grounds; they have not sought a ruling on the merits of their underlying claims.

After a TRO hearing attended by all parties, on July 13, 2000, Judge Hancock found that the Monetize parties needed their property returned to operate their business and to prevent examination and dissemination of their proprietary technology, which would destroy its value. She granted a TRO preventing relators from further “search of or examination of” any of the seized property; requiring them to return all seized property within two days; allowing relators first to download or copy anything they deemed material to their investigation; allowing relators to seek an extension for extraordinary hardship in copying; and setting a temporary injunction hearing for July 18, 2000.

On the morning of July 14, 2000, rela-tors filed a request for a temporary stay of the TRO and a petition for writ of mandamus in this Court,10 arguing the TRO and all orders based on it were void. We denied the stay without ruling on the petition. Meanwhile, relators neither complied with the TRO by returning the seized property nor requested an extension of time for copying it. A show-cause hearing for all relators was set for July 18, 2000. Relators filed a plea to the jurisdiction “to the extent [appellees] seek the return of all property seized pursuant to a number of search warrants executed on or about June 26, 2000.“; Judge Hancock denied it the same day. Judge Hancock found rela-tors Lockhoof and Acker in contempt of court for violating the TRO, assessed each 30 days in jail, and released them on personal recognizance. The contempt hearing for relators Cornyn and Maddox was reset until July 28, 2000. The temporary injunction hearing was reset for the afternoon of July 26, 2000.

On the morning of July 26, 2000, this Court stayed all outstanding orders in the trial court and submitted the mandamus cause.11 On August ,4, 2000, relators [332]*332appealed the denial of their plea to the jurisdiction.12

Mandamus Remedy

Relators claim the TRO and all orders based on it are void because the trial court lacked jurisdiction to enter them. Mandamus lies over an interlocutory or temporary order that the court had no jurisdiction to make. See Dunn v. Street, 938 S.W.2d 33, 35 (Tex.1997) (orig.proceeding) (void show-cause order); Lord v. Clayton,

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Cite This Page — Counsel Stack

Bluebook (online)
27 S.W.3d 327, 2000 Tex. App. LEXIS 6305, 2000 WL 1294297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cornyn-texapp-2000.