Fourth Court of Appeals San Antonio, Texas DISSENTING OPINION No. 04-14-00282-CV
IN RE STATE OF TEXAS
Original Mandamus Proceeding 1
DISSENTING OPINION TO ORDER DENYING REQUEST TO DISMISS AS MOOT
Dissenting Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice
Delivered and Filed: June 11, 2014
I disagree with the majority’s order issued this date stating that it will issue the writ of
mandamus if the trial court does not vacate its April 22, 2014 order within five days. The State
sought emergency relief, in part, because the trial court failed to comply with the notice
requirements under Texas Government Code section 402.010. TEX. GOV’T CODE ANN. § 402.010
(West Supp. 2013). Mandamus conditionally issued on May 15, 2014, with the majority’s
Memorandum Opinion delivered May 28, 2014. The majority conditionally granted mandamus
relief, limiting its determination that the trial court abused its discretion to failure to provide the
statutorily required notice to the Attorney General. Relator, the State, now concedes that such
notice is “unnecessary” and “no longer relevant” because it is a party. Since mandamus was
1 This proceeding arises out of Cause No. 2014-CI-02421, styled A.L.F.L. v. K.L.L., pending in the 438th Judicial District Court, Bexar County, Texas, the Honorable Barbara Hanson Nellermoe presiding. Dissenting Opinion 04-14-00282-CV
conditionally issued solely to enforce a procedural requirement to provide notice, relief for which
Relator no longer complains, I would dismiss the Petition for Writ of Mandamus as moot.
As the majority’s opinion states, mandamus is “appropriate to enforce a procedural
requirement to provide notice.” The majority held “the trial court clearly abused its discretion in
entering the challenged order without providing prior notice to the State.” The majority
acknowledged the State’s additional arguments “that the trial court’s order is substantively
erroneous” but, “[b]ecause we conclude the trial court clearly abused its discretion in entering the
challenged order without providing prior notice to the State, we do not reach the remainder of the
State’s arguments regarding the substance of the trial court’s ruling.” The opinion’s conclusion
underscores its emphasis on the purpose of the statute, to provide the Attorney General with an
opportunity to be heard, holding “the trial court abused its discretion in failing to provide notice to
the attorney general of a constitutional challenge to Texas state laws raised by a party’s pleadings
in the underlying litigation.” The majority declined to consider whether the order erroneously held
Texas law invalid, or whether mandamus relief was appropriate because the trial court entered an
order beyond its jurisdiction. In my opinion, the reasoning provided in the majority’s present order
necessarily takes into consideration the substance of the challenged order. With reference to a
partial sentence contained in its opinion, the majority now construes “the trial court’s
determination of the constitutional challenges pled by the parties without prior notice” as the clear
abuse of discretion that warranted mandamus relief, for the first time emphasizing substance and
not procedure. 2 I respectfully decline to do so as a means to grant extraordinary relief against
2 Complete reference to the majority’s opinion demonstrates that only the failure to comply with a procedural notice requirement determined the need for extraordinary relief. “Although the statute provides that the failure to provide notice as required does not deprive the trial court of jurisdiction, we conclude that the trial court’s determination of the constitutional challenges without prior notice to the attorney general deprives the State of an important right and constitutes an abuse of discretion for which mandamus relief is available.” (citation omitted)
-2- Dissenting Opinion 04-14-00282-CV
Judge Nellermoe who, at a minimum, was not previously apprised of conduct constituting a clear
abuse of discretion beyond failure to provide the State notice and an “opportunity to be heard.”
The present order seeks enforcement of the majority’s May 15, 2014 order that achieves
compliance with neither a relevant statutory requirement nor rule of procedure, but instead reaches
to the substantive determinations contained in the challenged order for which mandamus did not
originally issue.
The majority opinion, as my dissent previously pointed out, neglected to address the issue
of an adequate remedy by appeal. Doing so now, the majority considers the State’s substantive
jurisdictional complaint that the majority’s order to vacate is not moot since “the improper
invalidation of Texas law — the central point of the State’s mandamus petition — remains in
place.” 3 Since the order denying the State’s plea to the jurisdiction “does not contain any findings
similar to those contained in the April 22 order,” the majority reasons that dismissing the
mandamus would deprive the State of an adequate remedy to challenge those findings and will
consequently lift our temporary stay entered on April 24, 2014. First, the State has since taken the
position that its pending interlocutory appeal 4 stays the proceedings in the trial court pending
resolution of that appeal, pursuant to TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(b) (West Supp.
2013). Relator expresses no continued concern regarding the effect of dismissing the mandamus
and/or the current temporary stay as it pertains to the suspension of the proceedings currently in
3 The majority’s present order appears to construe the challenged April 22 order as “void,” having been entered without the required notice, thereby requiring further enforcement to vacate the order. By implication, the majority essentially concludes that the trial court’s act of “determining” constitutional challenges without prior notice to the Attorney General is done without jurisdiction to so decide and, thus, is a clear abuse of discretion. See In re Dickason, 987 S.W.2d 570, 571 (Tex.1998) (orig. proceeding) (order is void if entered without jurisdiction, thus a clear abuse of discretion providing mandamus relief). Failing to comply with the notice requirement does not deprive the trial court of jurisdiction. TEX. GOV’T CODE ANN. § 402.010(c) (West Supp. 2013). 4 The pending appeal is accelerated under TEX. R. APP. P. 28.1.
-3- Dissenting Opinion 04-14-00282-CV
the trial court. Second, the mandamus record includes the State’s Plea to the Jurisdiction and Order
on Intervenor’s Plea to the Jurisdiction. The plea contests the trial court’s jurisdiction over the
parties in the underlying proceeding and its authority to declare a state law unconstitutional. 5 The
plea disputes the trial court’s authority to divorce a party to a same-sex marriage, citing our sister
court’s decision in In re Marriage of J.B. & H.B., 326 S.W.3d 654, 670 (Tex. App.—Dallas 2010,
pet. granted) (on interlocutory appeal, reversing denial of State’s plea to the jurisdiction for lack
of subject matter jurisdiction under section 6.204 of the Texas Family Code). The order denying
the State’s plea contains no findings of fact or conclusions of law. The question of whether we
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Fourth Court of Appeals San Antonio, Texas DISSENTING OPINION No. 04-14-00282-CV
IN RE STATE OF TEXAS
Original Mandamus Proceeding 1
DISSENTING OPINION TO ORDER DENYING REQUEST TO DISMISS AS MOOT
Dissenting Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice
Delivered and Filed: June 11, 2014
I disagree with the majority’s order issued this date stating that it will issue the writ of
mandamus if the trial court does not vacate its April 22, 2014 order within five days. The State
sought emergency relief, in part, because the trial court failed to comply with the notice
requirements under Texas Government Code section 402.010. TEX. GOV’T CODE ANN. § 402.010
(West Supp. 2013). Mandamus conditionally issued on May 15, 2014, with the majority’s
Memorandum Opinion delivered May 28, 2014. The majority conditionally granted mandamus
relief, limiting its determination that the trial court abused its discretion to failure to provide the
statutorily required notice to the Attorney General. Relator, the State, now concedes that such
notice is “unnecessary” and “no longer relevant” because it is a party. Since mandamus was
1 This proceeding arises out of Cause No. 2014-CI-02421, styled A.L.F.L. v. K.L.L., pending in the 438th Judicial District Court, Bexar County, Texas, the Honorable Barbara Hanson Nellermoe presiding. Dissenting Opinion 04-14-00282-CV
conditionally issued solely to enforce a procedural requirement to provide notice, relief for which
Relator no longer complains, I would dismiss the Petition for Writ of Mandamus as moot.
As the majority’s opinion states, mandamus is “appropriate to enforce a procedural
requirement to provide notice.” The majority held “the trial court clearly abused its discretion in
entering the challenged order without providing prior notice to the State.” The majority
acknowledged the State’s additional arguments “that the trial court’s order is substantively
erroneous” but, “[b]ecause we conclude the trial court clearly abused its discretion in entering the
challenged order without providing prior notice to the State, we do not reach the remainder of the
State’s arguments regarding the substance of the trial court’s ruling.” The opinion’s conclusion
underscores its emphasis on the purpose of the statute, to provide the Attorney General with an
opportunity to be heard, holding “the trial court abused its discretion in failing to provide notice to
the attorney general of a constitutional challenge to Texas state laws raised by a party’s pleadings
in the underlying litigation.” The majority declined to consider whether the order erroneously held
Texas law invalid, or whether mandamus relief was appropriate because the trial court entered an
order beyond its jurisdiction. In my opinion, the reasoning provided in the majority’s present order
necessarily takes into consideration the substance of the challenged order. With reference to a
partial sentence contained in its opinion, the majority now construes “the trial court’s
determination of the constitutional challenges pled by the parties without prior notice” as the clear
abuse of discretion that warranted mandamus relief, for the first time emphasizing substance and
not procedure. 2 I respectfully decline to do so as a means to grant extraordinary relief against
2 Complete reference to the majority’s opinion demonstrates that only the failure to comply with a procedural notice requirement determined the need for extraordinary relief. “Although the statute provides that the failure to provide notice as required does not deprive the trial court of jurisdiction, we conclude that the trial court’s determination of the constitutional challenges without prior notice to the attorney general deprives the State of an important right and constitutes an abuse of discretion for which mandamus relief is available.” (citation omitted)
-2- Dissenting Opinion 04-14-00282-CV
Judge Nellermoe who, at a minimum, was not previously apprised of conduct constituting a clear
abuse of discretion beyond failure to provide the State notice and an “opportunity to be heard.”
The present order seeks enforcement of the majority’s May 15, 2014 order that achieves
compliance with neither a relevant statutory requirement nor rule of procedure, but instead reaches
to the substantive determinations contained in the challenged order for which mandamus did not
originally issue.
The majority opinion, as my dissent previously pointed out, neglected to address the issue
of an adequate remedy by appeal. Doing so now, the majority considers the State’s substantive
jurisdictional complaint that the majority’s order to vacate is not moot since “the improper
invalidation of Texas law — the central point of the State’s mandamus petition — remains in
place.” 3 Since the order denying the State’s plea to the jurisdiction “does not contain any findings
similar to those contained in the April 22 order,” the majority reasons that dismissing the
mandamus would deprive the State of an adequate remedy to challenge those findings and will
consequently lift our temporary stay entered on April 24, 2014. First, the State has since taken the
position that its pending interlocutory appeal 4 stays the proceedings in the trial court pending
resolution of that appeal, pursuant to TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(b) (West Supp.
2013). Relator expresses no continued concern regarding the effect of dismissing the mandamus
and/or the current temporary stay as it pertains to the suspension of the proceedings currently in
3 The majority’s present order appears to construe the challenged April 22 order as “void,” having been entered without the required notice, thereby requiring further enforcement to vacate the order. By implication, the majority essentially concludes that the trial court’s act of “determining” constitutional challenges without prior notice to the Attorney General is done without jurisdiction to so decide and, thus, is a clear abuse of discretion. See In re Dickason, 987 S.W.2d 570, 571 (Tex.1998) (orig. proceeding) (order is void if entered without jurisdiction, thus a clear abuse of discretion providing mandamus relief). Failing to comply with the notice requirement does not deprive the trial court of jurisdiction. TEX. GOV’T CODE ANN. § 402.010(c) (West Supp. 2013). 4 The pending appeal is accelerated under TEX. R. APP. P. 28.1.
-3- Dissenting Opinion 04-14-00282-CV
the trial court. Second, the mandamus record includes the State’s Plea to the Jurisdiction and Order
on Intervenor’s Plea to the Jurisdiction. The plea contests the trial court’s jurisdiction over the
parties in the underlying proceeding and its authority to declare a state law unconstitutional. 5 The
plea disputes the trial court’s authority to divorce a party to a same-sex marriage, citing our sister
court’s decision in In re Marriage of J.B. & H.B., 326 S.W.3d 654, 670 (Tex. App.—Dallas 2010,
pet. granted) (on interlocutory appeal, reversing denial of State’s plea to the jurisdiction for lack
of subject matter jurisdiction under section 6.204 of the Texas Family Code). The order denying
the State’s plea contains no findings of fact or conclusions of law. The question of whether we
can imply from the trial court’s denial of the State’s plea that the trial court found it had subject
matter jurisdiction over a party seeking a divorce from a same-sex marriage, thus necessarily
invalidating Texas law, remains to be decided in the appeal. Worford v. State, 801 S.W.2d 108,
109 (Tex. 1990) (where no separate findings of fact or conclusions of law are filed, it is implied
that trial court made all findings necessary to support its judgment.) In seeking mandamus, the
State sought both compliance with the notice statute and additional substantive relief to vacate “the
trial court’s improper invalidation of Texas law.” The State further acknowledged that it likewise
“intervened in this case for the limited purpose of challenging the divorce petition, which is
premised and dependent on the invalidity of Texas marriage law.” By failing to dismiss the
mandamus as moot, the majority clearly seeks to vacate the findings contained within the trial
court’s order as substantively erroneous. These substantive issues of jurisdiction and “the trial
court’s determination of the constitutional challenges pled by the parties” are appropriately
decided by appeal.
5 The State’s plea challenges both A.L.F.L.’s pleadings on the basis of standing under Article I, section 32(a) of the Texas Constitution, and section 6.204(b) of the Texas Family Code, and the trial court’s “attempt to confer the status of a marriage upon any relationship other than the union of one man and one woman.”
-4- Dissenting Opinion 04-14-00282-CV
The extraordinary relief of a mandamus writ was issued on narrowly specified grounds that
are now moot. Because the majority’s previous order and opinion properly declined to reach the
State’s substantive contests to the challenged April 22, 2014 order, mandamus relief issued
specifically to enforce compliance with a statutory notice requirement, and Relator does not further
seek and cannot show the necessity for continued enforcement of the procedural notice
requirement, we must dismiss the mandamus proceedings as moot. Most importantly, this order
to enforce the majority’s May 15 order will unduly interfere with our court’s jurisdiction to review
the State’s pending interlocutory appeal.
Rebeca C. Martinez, Justice
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