Rhett Webster Pease v. First National Bank of Giddings

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00197-CV

Brad Livingston, in his Official Capacity as the Executive Director of the Texas Department of Criminal Justice, Appellant

v.

Leslie Arrington, for herself and on behalf of all of those similarly situated; Janet Lock, for herself and on behalf of all those similarly situated; Kathy Williams, for herself and on behalf of all those similarly situated, et al., Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT NO. D-1-GN-10-000515, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

NO. 03-11-00266-CV

Brad Livingston, in his Official Capacity as the Executive Director of the Texas Department of Criminal Justice, Appellant

v.

Leslie Arrington, for herself and on behalf of all of those similarly situated; Janet Lock, for herself and on behalf of all those similarly situated; Kathy Williams, for herself and on behalf of all those similarly situated, et al., Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT NO. D-1-GN-10-000515, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING MEMORANDUM OPINION

Appellant Brad Livingston has filed a motion requesting the Court to consolidate the

two above-referenced cause numbers for all purposes. In cause number 03-11-00197-CV, Livingston

filed a notice of appeal from the trial court’s oral ruling granting temporary injunctive relief. The

trial court granted the relief during a hearing on March 25, 2011. In cause number 03-11-00266-CV,

Livingston filed a notice of appeal from the trial court’s corresponding written order. The Court

grants the motion and consolidates the two above-referenced causes for all purposes. The issues,

records, and documents filed in cause number 03-11-00197-CV are consolidated into cause number

03-11-00266-CV. The consolidated appeal shall proceed under cause number 03-11-00266-CV, and

cause number 03-11-00197-CV is hereby dismissed. Appellate deadlines will run from the date that

the record in cause number 03-11-00266-CV is complete. See Tex. R. App. P. 38.6.

Appellant Livingston also has filed a motion to stay trial court proceedings pending

appeal, including staying enforcement of the temporary injunction orders. Appellees filed a response

to the motion, attaching a copy of the written temporary injunction order. The order shows that the

permanent injunction hearing is set for July 18, 2011. Among the injunctive relief granted in the

order, Livingston was ordered immediately to make available to hearing impaired offenders the

services of the Texas Relay Services in certain specified circumstances.

Appellant has failed to provide any authority to support staying the trial court

proceedings pending appeal. Further, section 51.014(b) of the civil practice and remedies code

expressly provides that an appeal from a temporary injunction order does not stay trial court

proceedings pending resolution of the appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(b)

2 (West 2008). Moreover, postponing trials on the merits while awaiting rulings on appeals of

temporary injunction orders is discouraged. See Tex. R. Civ. P. 683 (“The appeal of a temporary

injunction shall constitute no cause for delay of the trial.”); Coalition of Cities for Affordable Utility

Rates v. Third Court of Appeals, 787 S.W.2d 946, 947 (Tex. 1990) (“For a court of appeals to stay

proceedings in the trial court while it considers an interlocutory appeal increases delay and expense

and should not be done absent compelling circumstances.”); Brar v. Sedey, 307 S.W.3d 916, 920

(Tex. App.—Dallas 2010, no pet.) (appeal from temporary injunction order dismissed; court

disproved of litigant’s tactic to seek continuance of trial on merits and final disposition of case by

way of interlocutory order). In this context, the Court denies Livingston’s motion to stay trial court

proceedings pending appeal.

__________________________________________

Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Henson and Goodwin

Dismissed

Filed: June 10, 2011