in Re Thomas Avalos Jr.

• Court: Court of Appeals of Texas
• Decided: January 12, 2023
• Docket: 09-22-00428-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00428-CV __________________

IN RE THOMAS AVALOS JR.

__________________________________________________________________

Original Proceeding 253rd District Court of Liberty County, Texas Trial Cause No. No. 22DC-CV-01607 __________________________________________________________________

ORDER

On December 19, 2022, Thomas Avalos Jr. filed a petition for a writ of

mandamus through which he seeks to compel the Judge of the 253rd District Court

of Liberty County, Texas to dissolve his December 9, 2022 temporary restraining

order. The trial court issued the temporary restraining order in Trial Court Cause

Number 22DC-CV-01607. We stayed the temporary restraining order to the extent

that it ordered Avalos to return certain property within three days, and requested a

response from the real party in interest, Fortis Construction, LLC. In a response,

Fortis Construction, LLC suggested the mandamus proceeding was moot.

1 On January 9, 2023, after the trial court signed a temporary injunction order

in Trial Court Cause Number 22DC-CV-01607, Avalos removed the cause to federal

court. Under 28 U.S.C.S. section 1446 (d), after the defendant notifies the adverse

parties and files a copy of the notice of removal with the clerk of the State court, the

notice of removal “shall effect removal and the State court shall proceed no further

unless and until the case is remanded.” 28 U.S.C.S. § 1446 (LexisNexis, Lexis

Advance through Public Law 117-262, approved December 21, 2022).

Accordingly, this original proceeding is abated for administrative purposes

only and is hereby closed until and unless the proceeding is promptly reinstated by

this Court should the United States District Court for the Eastern District of Texas

remand the trial court cause to the 253rd District Court of Liberty County, Texas.1

ORDER ENTERED January 12, 2023.

PER CURIAM

Before Golemon, C.J., Horton and Wright, JJ.

1 Should the case be remanded to the state district court, any party who wishes to reinstate the original proceeding in the Ninth District Court of Appeals must promptly file a written motion to reinstate this original proceeding with the Clerk of the Court of Appeals. 2