ACCEPTED 15-24-00033-cv FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 2/10/2025 4:23 PM Cause No. 15–24–00033–CV CHRISTOPHER A. PRINE CLERK
In the Court of Appeals 15th COURT FILED IN OF APPEALS
for the Fifteenth Judicial District AUSTIN, TEXAS 2/10/2025 4:23:45 PM
Austin, Texas CHRISTOPHER A. PRINE Clerk
Robert Wayne Mitchell, Plaintiff-Appellant,
v.
Bryan Collier in his Official Capacity as Executive Director of the Texas Department of Criminal Justice, Defendant-Appellee. On Appeal from the 298th District Court of Dallas County, Texas Trial Court Cause No. DC–23–04417
Appellee’s Suggestion of Death
Ken Paxton Vishal V. Iyer* Attorney General of Texas Texas Bar No. 24106134 Assistant Attorney General Brent Webster Law Enforcement Defense First Assistant Attorney General Division Office of the Attorney General Ralph Molina P.O. Box 12548 Deputy First Assistant Attorney General Austin, Texas 78711–2548 p: (512) 463–4451 James Lloyd f: (512) 370–9814 Deputy Attorney General of Civil Litigation e: vishal.iyer@oag.texas.gov
Shanna E. Molinare *Attorney-in-Charge Division Chief Law Enforcement Defense Division
Counsel for Bryan Collier Identity of Parties and Counsel
Plaintiff-Appellant
1. Robert Wayne Mitchell Plaintiff-Appellant
2. Taj A. Warren Texas Bar No. 24060802 325 N. St. Paul St., Ste. 3100 Dallas, Texas 75201 p: (214) 206–1225 f: (214) 206–1226 e: twarren@warrenlawpllc.com
Counsel for Plaintiff-Appellant
Defendant-Appellee
3. Bryan Collier Defendant-Appellee
4. Vishal V. Iyer Texas Bar No. 24106134 Assistant Attorney General Law Enforcement Defense Division Office of the Attorney General P.O. Box 12548 Austin, Texas 78711–2548 p: (512) 463–4451 f: (512) 370–9814 e: vishal.iyer@oag.texas.gov
Counsel for Defendant-Appellee
Page i Table of Contents
Identity of Parties and Counsel i
Table of Contents ii
Exhibit List iii
Table of Authorities iv
Appellee’s Suggestion of Death 1
I. Statement of the Case 1
II. Standard of Review 2
A. Suggestion of Death 2
III. Argument 3
A. The appeal should be dismissed as moot because Mitchell died during the appeal period, and this action does not affect Mitchell’s property rights. 3
IV. Prayer 4
Certificate of Conference 6
Certificate of Service 6
Certificate of Compliance 7
Exhibit A: Death of Appellant 8
Page ii Exhibit List
Exhibit Title of Document Pages
A Death of Appellant: 8–13
• Cause of Death Report of Appellant
• Obituary of Appellant
Page iii Table of Authorities
Case Law Pages
Collier v. Mitchell, 2 No. DC–23–04417, 2024 WL 2827610 (Tex. App.—Dallas June 4, 2024, no pet.)
In re J.R.B., 2–3 698 S.W.3d 603 (Tex. App.—Waco 2024, no pet.)
Murphy v. Murphy, 2 21 S.W.3d 797 (Tex. App.—Houston [1st Dist.] 2000, no pet.)
Olson v. Comm’n for Lawyer Discipline, 3–4 901 S.W.2d 520 (Tex. App.—El Paso 1995, no writ)
Pirate’s Lake, Ltd. v. Vestin Realty Mortg. I, Inc., 3 No. 14–08–00085–CV, 2008 WL 3833618 (Tex. App.—Houston [14th Dist.] Aug. 12, 2008, no pet.)
Rules
Tex. R. App. P. 7.1(a)(1) 2
Page iv Cause No. 15–24–00033–CV
In the Court of Appeals for the Fifteenth Judicial District Austin, Texas Robert Wayne Mitchell, Plaintiff-Appellant,
v.
Bryan Collier in his Official Capacity as Executive Director of the Texas Department of Criminal Justice, Defendant-Appellee. On Appeal from the 298th District Court of Dallas County, Texas Trial Court Cause No. DC–23–04417
Appellee’s Suggestion of Death
Defendant-Appellee Bryan Collier (“Collier”) moves to dismiss the appeal as
moot because Plaintiff-Appellant Robert Wayne Mitchell (“Mitchell”) has died
during the appeal period, and this action does not affect Mitchell’s property rights.
I. Statement of the Case
On April 6, 2023, Mitchell filed his original petition. (C.R.6, 12–18). On July
31, 2023, Mitchell moved for a temporary restraining order (“TRO”); the trial court
granted the motion on August 21, 2023. (C.R.7, 105–06). On August 18, 2023,
Mitchell filed his first amended petition. (C.R.7–8, 87–94). On September 5, 2023,
Mitchell moved for a temporary injunction; the trial court granted the motion on
Page 1 September 26, 2023. (C.R.8–9, 147–49). On September 25, 2023, Collier filed his
original answer and jury demand. (C.R.9, 141–46). On October 10, 2023, Collier
filed a notice of appeal regarding the TRO; the Fifth Court of Appeals vacated the
TRO and dismissed the appeal as moot on June 4, 2024. Collier v. Mitchell, No.
DC–23–04417, 2024 WL 2827610, *1 (Tex. App.—Dallas June 4, 2024, no pet.);
(C.R.9). On February 12, 2024, Collier filed a plea to the jurisdiction; the trial court
granted the plea on April 25, 2024, and dismissed the case. (C.R.9, 150–452). On
May 24, 2024, Mitchell filed his notice of appeal. (C.R.10, 466–68).
II. Standard of Review
A. Suggestion of Death
“Generally, ‘if a party to a civil case dies after the trial court renders judgment
but before the case has been finally disposed of on appeal, the appeal may be
perfected, and the appellate court will proceed to adjudicate the appeal as if all
parties were alive.’” In re J.R.B., 698 S.W.3d 603, 604 (Tex. App.—Waco 2024, no
pet.) (quoting Tex. R. App. P. 7.1(a)(1)); see also Murphy v. Murphy, 21 S.W.3d
797, 798 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (holding that “case law
under [former] rules 9 and 369a is also applicable to current rule 7”). “However,
Rule 7.1 does not dispense with the requirement of an existing actual controversy
and generally an appeal will be allowed to proceed on the death of a party only if the
judgment affects the parties’ property rights as opposed to purely personal rights.”
Page 2 J.R.B., 698 S.W.3d at 604 (quotation omitted). “A party’s death moots an appeal to
the extent the appellate court’s action on the merits could affect personal rights, but
not to the extent the court’s action on the merits could affect property rights.” Id.
“When there has ceased to be a controversy between the litigating parties due
to events occurring after judgment has been rendered by the trial court, the decision
of an appellate court would be a mere academic exercise and the court may not
decide the appeal.” Olson v. Comm’n for Lawyer Discipline, 901 S.W.2d 520, 522
(Tex. App.—El Paso 1995, no writ ) (collecting cases). “In that situation, the
appellate court is required to vacate the judgment of the trial court and dismiss the
underlying cause of action.” Pirate’s Lake, Ltd. v. Vestin Realty Mortg. I, Inc., No.
14–08–00085–CV, 2008 WL 3833618, *2 (Tex. App.—Houston [14th Dist.] Aug.
12, 2008, no pet.) (collecting cases).
III. Argument
A. The appeal should be dismissed as moot because Mitchell died during the appeal period, and this action does not affect Mitchell’s property rights.
Collier has reason to believe that Mitchell died during the appeal period on
September 18, 2024. (Exh.
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ACCEPTED 15-24-00033-cv FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 2/10/2025 4:23 PM Cause No. 15–24–00033–CV CHRISTOPHER A. PRINE CLERK
In the Court of Appeals 15th COURT FILED IN OF APPEALS
for the Fifteenth Judicial District AUSTIN, TEXAS 2/10/2025 4:23:45 PM
Austin, Texas CHRISTOPHER A. PRINE Clerk
Robert Wayne Mitchell, Plaintiff-Appellant,
v.
Bryan Collier in his Official Capacity as Executive Director of the Texas Department of Criminal Justice, Defendant-Appellee. On Appeal from the 298th District Court of Dallas County, Texas Trial Court Cause No. DC–23–04417
Appellee’s Suggestion of Death
Ken Paxton Vishal V. Iyer* Attorney General of Texas Texas Bar No. 24106134 Assistant Attorney General Brent Webster Law Enforcement Defense First Assistant Attorney General Division Office of the Attorney General Ralph Molina P.O. Box 12548 Deputy First Assistant Attorney General Austin, Texas 78711–2548 p: (512) 463–4451 James Lloyd f: (512) 370–9814 Deputy Attorney General of Civil Litigation e: vishal.iyer@oag.texas.gov
Shanna E. Molinare *Attorney-in-Charge Division Chief Law Enforcement Defense Division
Counsel for Bryan Collier Identity of Parties and Counsel
Plaintiff-Appellant
1. Robert Wayne Mitchell Plaintiff-Appellant
2. Taj A. Warren Texas Bar No. 24060802 325 N. St. Paul St., Ste. 3100 Dallas, Texas 75201 p: (214) 206–1225 f: (214) 206–1226 e: twarren@warrenlawpllc.com
Counsel for Plaintiff-Appellant
Defendant-Appellee
3. Bryan Collier Defendant-Appellee
4. Vishal V. Iyer Texas Bar No. 24106134 Assistant Attorney General Law Enforcement Defense Division Office of the Attorney General P.O. Box 12548 Austin, Texas 78711–2548 p: (512) 463–4451 f: (512) 370–9814 e: vishal.iyer@oag.texas.gov
Counsel for Defendant-Appellee
Page i Table of Contents
Identity of Parties and Counsel i
Table of Contents ii
Exhibit List iii
Table of Authorities iv
Appellee’s Suggestion of Death 1
I. Statement of the Case 1
II. Standard of Review 2
A. Suggestion of Death 2
III. Argument 3
A. The appeal should be dismissed as moot because Mitchell died during the appeal period, and this action does not affect Mitchell’s property rights. 3
IV. Prayer 4
Certificate of Conference 6
Certificate of Service 6
Certificate of Compliance 7
Exhibit A: Death of Appellant 8
Page ii Exhibit List
Exhibit Title of Document Pages
A Death of Appellant: 8–13
• Cause of Death Report of Appellant
• Obituary of Appellant
Page iii Table of Authorities
Case Law Pages
Collier v. Mitchell, 2 No. DC–23–04417, 2024 WL 2827610 (Tex. App.—Dallas June 4, 2024, no pet.)
In re J.R.B., 2–3 698 S.W.3d 603 (Tex. App.—Waco 2024, no pet.)
Murphy v. Murphy, 2 21 S.W.3d 797 (Tex. App.—Houston [1st Dist.] 2000, no pet.)
Olson v. Comm’n for Lawyer Discipline, 3–4 901 S.W.2d 520 (Tex. App.—El Paso 1995, no writ)
Pirate’s Lake, Ltd. v. Vestin Realty Mortg. I, Inc., 3 No. 14–08–00085–CV, 2008 WL 3833618 (Tex. App.—Houston [14th Dist.] Aug. 12, 2008, no pet.)
Rules
Tex. R. App. P. 7.1(a)(1) 2
Page iv Cause No. 15–24–00033–CV
In the Court of Appeals for the Fifteenth Judicial District Austin, Texas Robert Wayne Mitchell, Plaintiff-Appellant,
v.
Bryan Collier in his Official Capacity as Executive Director of the Texas Department of Criminal Justice, Defendant-Appellee. On Appeal from the 298th District Court of Dallas County, Texas Trial Court Cause No. DC–23–04417
Appellee’s Suggestion of Death
Defendant-Appellee Bryan Collier (“Collier”) moves to dismiss the appeal as
moot because Plaintiff-Appellant Robert Wayne Mitchell (“Mitchell”) has died
during the appeal period, and this action does not affect Mitchell’s property rights.
I. Statement of the Case
On April 6, 2023, Mitchell filed his original petition. (C.R.6, 12–18). On July
31, 2023, Mitchell moved for a temporary restraining order (“TRO”); the trial court
granted the motion on August 21, 2023. (C.R.7, 105–06). On August 18, 2023,
Mitchell filed his first amended petition. (C.R.7–8, 87–94). On September 5, 2023,
Mitchell moved for a temporary injunction; the trial court granted the motion on
Page 1 September 26, 2023. (C.R.8–9, 147–49). On September 25, 2023, Collier filed his
original answer and jury demand. (C.R.9, 141–46). On October 10, 2023, Collier
filed a notice of appeal regarding the TRO; the Fifth Court of Appeals vacated the
TRO and dismissed the appeal as moot on June 4, 2024. Collier v. Mitchell, No.
DC–23–04417, 2024 WL 2827610, *1 (Tex. App.—Dallas June 4, 2024, no pet.);
(C.R.9). On February 12, 2024, Collier filed a plea to the jurisdiction; the trial court
granted the plea on April 25, 2024, and dismissed the case. (C.R.9, 150–452). On
May 24, 2024, Mitchell filed his notice of appeal. (C.R.10, 466–68).
II. Standard of Review
A. Suggestion of Death
“Generally, ‘if a party to a civil case dies after the trial court renders judgment
but before the case has been finally disposed of on appeal, the appeal may be
perfected, and the appellate court will proceed to adjudicate the appeal as if all
parties were alive.’” In re J.R.B., 698 S.W.3d 603, 604 (Tex. App.—Waco 2024, no
pet.) (quoting Tex. R. App. P. 7.1(a)(1)); see also Murphy v. Murphy, 21 S.W.3d
797, 798 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (holding that “case law
under [former] rules 9 and 369a is also applicable to current rule 7”). “However,
Rule 7.1 does not dispense with the requirement of an existing actual controversy
and generally an appeal will be allowed to proceed on the death of a party only if the
judgment affects the parties’ property rights as opposed to purely personal rights.”
Page 2 J.R.B., 698 S.W.3d at 604 (quotation omitted). “A party’s death moots an appeal to
the extent the appellate court’s action on the merits could affect personal rights, but
not to the extent the court’s action on the merits could affect property rights.” Id.
“When there has ceased to be a controversy between the litigating parties due
to events occurring after judgment has been rendered by the trial court, the decision
of an appellate court would be a mere academic exercise and the court may not
decide the appeal.” Olson v. Comm’n for Lawyer Discipline, 901 S.W.2d 520, 522
(Tex. App.—El Paso 1995, no writ ) (collecting cases). “In that situation, the
appellate court is required to vacate the judgment of the trial court and dismiss the
underlying cause of action.” Pirate’s Lake, Ltd. v. Vestin Realty Mortg. I, Inc., No.
14–08–00085–CV, 2008 WL 3833618, *2 (Tex. App.—Houston [14th Dist.] Aug.
12, 2008, no pet.) (collecting cases).
III. Argument
A. The appeal should be dismissed as moot because Mitchell died during the appeal period, and this action does not affect Mitchell’s property rights.
Collier has reason to believe that Mitchell died during the appeal period on
September 18, 2024. (Exh. A, Death of Appellant, at 9–13); (C.R.9–10, 466–68).
In this action, Mitchell seeks only declaratory and injunctive relief invalidating his
current parole period and commanding his immediate release. (C.R.93). In other
words, this action affects only Mitchell’s purely personal rights, and his death moots
Page 3 the appeal. See Olson, 901 S.W.2d at 523–25 (holding that appellant’s death mooted
appeal of trial court’s judgment suspending his law license); Black v. Black, 673
S.W.2d 269, 270 (Tex. App.—Texarkana 1984, no writ) (holding that appellant’s
death mooted appeal of trial court’s judgment awarding appellee child custody).
Mitchell “cites no authority for his claim that this award may be enforced [by] his
estate,” and undersigned counsel is likewise unaware of any supporting authority.
See Olson, 901 S.W.2d at 525. Thus, the appeal should be dismissed as moot
because Mitchell died during the appeal period, and this action does not affect
Mitchell’s property rights.
IV. Prayer
Therefore, the appeal should be dismissed as moot.
Page 4 Respectfully submitted,
Ken Paxton Attorney General of Texas
Brent Webster First Assistant Attorney General
Ralph Molina Deputy First Assistant Attorney General
James Lloyd Deputy Attorney General for Civil Litigation
Shanna E. Molinare Division Chief Law Enforcement Defense Division
February 10, 2025 /s/ Vishal V. Iyer Vishal V. Iyer Texas Bar No. 24106134 Assistant Attorney General Law Enforcement Defense Division Office of the Attorney General P.O. Box 12548 Austin, Texas 78711–2548 p: (512) 463–4451 f: (512) 370–9814 e: vishal.iyer@oag.texas.gov
Counsel for Defendant- Appellee
Page 5 Certificate of Conference
I certify that on February 10, 2025, I emailed Taj Warren, counsel for
Plaintiff-Appellant, regarding his position on this suggestion of death. As of the date
this suggestion was signed, Mr. Warren had failed to respond. Thus, Mr. Warren’s
position on this suggestion is unclear.
February 10, 2025 /s/ Vishal V. Iyer Vishal V. Iyer Assistant Attorney General
Certificate of Service
I certify that I served this document, and any attached pages, to counsel for
Plaintiff-Appellant, electronically through the electronic filing manager, on the date
below. Tex. R. App. P. 9.5(a)–(b)(1).
February 10, 2025 /s/ Vishal V. Iyer Vishal V. Iyer Assistant Attorney General
Page 6 Certificate of Compliance
I certify that this document, excluding the parts of the document excepted by
rule, contains 788 words, as counted by the word count of the computer program
used to prepare the document. Tex. R. App. P. 9.4(i)(3).
February 10, 2025 /s/ Vishal V. Iyer Vishal V. Iyer Assistant Attorney General
Page 7 Cause No. 15–24–00033–CV
In the Court of Appeals for the Fifteenth Judicial District Austin, Texas Robert Wayne Mitchell, Plaintiff-Appellant,
v.
Bryan Collier in his Official Capacity as Executive Director of the Texas Department of Criminal Justice, Defendant-Appellee. On Appeal from the 298th District Court of Dallas County, Texas Trial Court Cause No. DC–23–04417
Exhibit A: Death of Appellant
Page 8 010 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
James Rheams on behalf of Vishal Iyer Bar No. 24106134 James.Rheams@oag.texas.gov Envelope ID: 97200247 Filing Code Description: Other Document Filing Description: Appellee's Suggestion of Death Status as of 2/10/2025 4:31 PM CST
Associated Case Party: Bryan Collier
Name BarNumber Email TimestampSubmitted Status
James Rheams James.Rheams@oag.texas.gov 2/10/2025 4:23:45 PM SENT
Vishal Iyer vishal.iyer@oag.texas.gov 2/10/2025 4:23:45 PM SENT