Preview
FILED
8/30/2023 5:20 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS 00., TEXAS
Lafonda Sims DEPUTY
Cause No. DC—23-04417
ROBERT WAYNE MITCHELL § IN THE DISTRICT COURT OF
Plaintififs, §
§
v. § 298th JUDICIAL DISTRICT
§
BRYAN COLLIER, EXECUTIVE §
DIRECTOR, TEXAS DEPARTMENT §
OF CRIMINAL JUSTICE § DALLAS COUNTY, TEXAS
Defendants.
DEFENDANTS ’ MOTION TO DISSOLVE THE TEMPORARY RESTRAlNING ORDER
To THE HONORABLEJUDGE 0F SAID COURT:
Defendant Bryan Collier asks the Court to dissolve the Temporary Restraining Order
(“TRO”) issued on August 21, 2023. In further support, Defendants respectfully show the Court
as follows:
BACKGROUND
On August 18, 2023, Plaintiff, Robert Wayne Mitchell, filed his first amended petition and
supplemental application for temporary restraining order and request for temporary injunction
without properly serving Defendant Bryan Collier. In this petition, Mitchell asserts that a TRO is
necessary because he would allegedly suffer imminent and irreparable harm; namely, that he
should have been discharged from parole on July 12, 2021. See Plaintz'fi’s FirstAm. Pet. According
to Mitchell, a TRO is proper because he “alleges a viable cause of action and shows a probable
” Id. Mitchell’s entire lawsuit
right to the relief sought. .. hinges on the certificate of parole issued
on May 17, 1999 that states “IfParole is satisfactorily completed, Discharge Date will be 7-12-
2021.” See Plaintz'fi‘} Pet. fiir Writ ofMandamus, Ex. B (emphasis added). In the present suit and
application for TRO, Mitchell wholly fails to assert whether he satisfactorily completed parole.
On August 21, 2023, this Court granted, exparte, Plaintiff’s Application for a TRO. For
the reasons stated below, this Court’s order granting Mitchell’s TRO on August 21, 2023 should
be dissolved as void and this Court should refuse to enter an extension of the TRO.
STANDARD 0F REVIEW
It is well-established that “[t]he purpose of a TRO is to preserve the status quo.” In re
Newton, 146 S.W.3d 648, 651 (Tex. 2004) (orig. proceeding).“A determination of whether to
dissolve a temporary injunction lies within the sound discretion of the trial court.” Um'v. Health
Sewn, Inc. v. Thompson, 24 S.W.3d 570, 580 (Tex. App—Austin 2000, no pet.). “A trial court
may modify a temporary injunction because of fundamental error or changed circumstances.” Id.
“The purpose of the motion to dissolve is ‘to provide a means to show that changed circumstances
or changes in the law require the modification or dissolution of the injunction. . . .’ ” Id. (quoting
Tober v. Tamer of Texas, Ina, 668 S.W.2d 831, 834 (Tex. App—Austin 1984, no writ).
ARGUMENTS & AUTHORITIES
Texas Rules of Civil Procedure 680 and 684 require a trial court issuing a temporary
restraining order to: (1) state why the order was granted without notice if it is granted exparte, TEX.
R. CIV. P. 680; (2) state the reasons for the issuance of the order by defining the injury and
describing why it is irreparable, id.; (3) state the date the order expires and set a hearing on a
temporary injunction, z'd.; and (4) set a bond, TEX. R. CIV. P. 684. The requirements set forth in
Texas Rules of Civil Procedure 680 and 684 are mandatory and “[o]rders that fail to fulfill these
requirements are void.” In re Ofi‘ice of Att'y Gen, 257 S.W.3d 695, 698 (Tex. 2008) (orig.
proceeding) (per curiam) (citing InterFz'rst Ban/e San Felipe, NA. v. Paz Constr. Co., 715 S.W.2d
640, 641 (Tex.1986); Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 (1956). The
orders before the Texas Supreme Court in the matter In Re Ofiice ofAtt’y Gen. were granted ex
parte and failed to explain why they were granted without notice—as required by Texas Rules of
Civil Procedure 680. 257 S.W.3d at 697—98. As a result, the Texas Supreme Court granted
conditional relief and directed the district court to withdraw its temporary orders. Id. at 698.
Similarly, here, this Court’s order granting Mitchell’s application for a TRO was granted
ex parte, and failed to explain why the TRO was granted Without notice. Accordingly, this Court
should dissolve its August 21, 2023 order granting Plaintiff’s application for TRO and should
refuse to extend the TRO at the September 5, 2023 hearing because the original order is void.
To the extent Mitchell may argue that the Court impliedly explained why lack of notice was
not required, such an argument must fail as the language of Rule 680 makes clear that the Court
must explicitly explain why notice was not required. Moreover, even if Mitchell was correct that
he was in danger of suffering imminent, irreparable harm, any assertion that notice could not be
completed prior to the TRO hearing is untenable considering that Mitchell has known of his Parole
discharge date since July 12, 2021.1 In other words, Mitchell cannot explain how he is suddenly
experiencing imminent and irreparable harm two years after he purportedly was discharged from
parole.
PRAYER
For these reasons, Defendant respectfully asks the Court to grant Defendant’s Motion to
Dissolve the Temporary Restraining Order.
Respectfully submitted,
ANGELA COLMENERO
Provisional Attorney General of Texas
1
Defendant has not had sufficient opportunity to conduct discovery and cannot ascertain whether Mitchell
satisfactorily completed his parole requirement. As such, Defendant contests that Mitchell’s discharge date was in
factJuly 12, 2021.
BRENT WEBSTER
First Assistant Attorney General
GRANT DORFMAN
Deputy First Assistant Attorney General
JAMES LLOYD
Acting Deputy Attorney General for Civil Litigation
SHANNA MOLINARE
Chief for Law Enforcement Defense Division
/s/Luz's A. Suarez
LUIS A. SUAREZ
Assistant Attorney General
Texas Bar No. 24117110
Luis.Suarez@oag.texas.gov
Office of the Attorney General
Law Enforcement Defense Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 463-2120 / Fax (512) 320-0667
COUNSEL FOR DEFENDANT
CERTIFICATE 0F CONFERENCE
Undersigned counsel contacted Plaintifi" s counsel on August 30, 2023 and he is opposed
to this motion.
CERTIFICATE 0F SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been served
electronically through the electronic-filing manager in compliance with Texas Rule of Civil
Procedure 21a on this the August 30, 2023, to all counsel of record:
/s/Lm's A. Suarez
LUIS A. SUAREZ
Assistant Attorney General
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.
Deborah Woltersdorf on behalf of Luis Suarez
Bar No. 24117110
Deborah.Woltersdorf@oag.texas.gov
Envelope ID: 79091653
Filing Code Description: Motion - Miscellanous
Filing Description: MOTION TO DISSOLVE TRO
Status as of 8/31/2023 8:50 AM CST
Associated Case Party: TDC, ID, BRYAN COLLIER
Name BarNumber Email TimestampSubmitted Status
Luis Suarez 24117110 luis.suarez@oag.texas.gov 8/30/2023 5:20:08 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Deborah Woltersdorf Deborah.Woltersdorf@oag.texas.gov 8/30/2023 5:20:08 PM SENT
Associated Case Party: ROBERTWAYNEMITCH ELL
Name BarNumber Email TimestampSubmitted Status
Taj Warren jwarren@warrenlawpllc.com 8/30/2023 5:20:08 PM ERROR
Preview
FILED 8/30/2023 5:20 PM FELICIA PITRE DISTRICT CLERK DALLAS 00., TEXAS Lafonda Sims DEPUTY Cause No. DC—23-04417 ROBERT WAYNE MITCHELL § IN THE DISTRICT COURT OF Plaintififs, § § v. § 298th JUDICIAL DISTRICT § BRYAN COLLIER, EXECUTIVE § DIRECTOR, TEXAS DEPARTMENT § OF CRIMINAL JUSTICE § DALLAS COUNTY, TEXAS Defendants. DEFENDANTS ’ MOTION TO DISSOLVE THE TEMPORARY RESTRAlNING ORDER To THE HONORABLEJUDGE 0F SAID COURT: Defendant Bryan Collier asks the Court to dissolve the Temporary Restraining Order (“TRO”) issued on August 21, 2023. In further support, Defendants respectfully show the Court as follows: BACKGROUND On August 18, 2023, Plaintiff, Robert Wayne Mitchell, filed his first amended petition and supplemental application for temporary restraining order and request for temporary injunction without properly serving Defendant Bryan Collier. In this petition, Mitchell asserts that a TRO is necessary because he would allegedly suffer imminent and irreparable harm; namely, that he should have been discharged from parole on July 12, 2021. See Plaintz'fi’s FirstAm. Pet. According to Mitchell, a TRO is proper because he “alleges a viable cause of action and shows a probable ” Id. Mitchell’s entire lawsuit right to the relief sought. .. hinges on the certificate of parole issued on May 17, 1999 that states “IfParole is satisfactorily completed, Discharge Date will be 7-12- 2021.” See Plaintz'fi‘} Pet. fiir Writ ofMandamus, Ex. B (emphasis added). In the present suit and application for TRO, Mitchell wholly fails to assert whether he satisfactorily completed parole. On August 21, 2023, this Court granted, exparte, Plaintiff’s Application for a TRO. For the reasons stated below, this Court’s order granting Mitchell’s TRO on August 21, 2023 should be dissolved as void and this Court should refuse to enter an extension of the TRO. STANDARD 0F REVIEW It is well-established that “[t]he purpose of a TRO is to preserve the status quo.” In re Newton, 146 S.W.3d 648, 651 (Tex. 2004) (orig. proceeding).“A determination of whether to dissolve a temporary injunction lies within the sound discretion of the trial court.” Um'v. Health Sewn, Inc. v. Thompson, 24 S.W.3d 570, 580 (Tex. App—Austin 2000, no pet.). “A trial court may modify a temporary injunction because of fundamental error or changed circumstances.” Id. “The purpose of the motion to dissolve is ‘to provide a means to show that changed circumstances or changes in the law require the modification or dissolution of the injunction. . . .’ ” Id. (quoting Tober v. Tamer of Texas, Ina, 668 S.W.2d 831, 834 (Tex. App—Austin 1984, no writ). ARGUMENTS & AUTHORITIES Texas Rules of Civil Procedure 680 and 684 require a trial court issuing a temporary restraining order to: (1) state why the order was granted without notice if it is granted exparte, TEX. R. CIV. P. 680; (2) state the reasons for the issuance of the order by defining the injury and describing why it is irreparable, id.; (3) state the date the order expires and set a hearing on a temporary injunction, z'd.; and (4) set a bond, TEX. R. CIV. P. 684. The requirements set forth in Texas Rules of Civil Procedure 680 and 684 are mandatory and “[o]rders that fail to fulfill these requirements are void.” In re Ofi‘ice of Att'y Gen, 257 S.W.3d 695, 698 (Tex. 2008) (orig. proceeding) (per curiam) (citing InterFz'rst Ban/e San Felipe, NA. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex.1986); Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 (1956). The orders before the Texas Supreme Court in the matter In Re Ofiice ofAtt’y Gen. were granted ex parte and failed to explain why they were granted without notice—as required by Texas Rules of Civil Procedure 680. 257 S.W.3d at 697—98. As a result, the Texas Supreme Court granted conditional relief and directed the district court to withdraw its temporary orders. Id. at 698. Similarly, here, this Court’s order granting Mitchell’s application for a TRO was granted ex parte, and failed to explain why the TRO was granted Without notice. Accordingly, this Court should dissolve its August 21, 2023 order granting Plaintiff’s application for TRO and should refuse to extend the TRO at the September 5, 2023 hearing because the original order is void. To the extent Mitchell may argue that the Court impliedly explained why lack of notice was not required, such an argument must fail as the language of Rule 680 makes clear that the Court must explicitly explain why notice was not required. Moreover, even if Mitchell was correct that he was in danger of suffering imminent, irreparable harm, any assertion that notice could not be completed prior to the TRO hearing is untenable considering that Mitchell has known of his Parole discharge date since July 12, 2021.1 In other words, Mitchell cannot explain how he is suddenly experiencing imminent and irreparable harm two years after he purportedly was discharged from parole. PRAYER For these reasons, Defendant respectfully asks the Court to grant Defendant’s Motion to Dissolve the Temporary Restraining Order. Respectfully submitted, ANGELA COLMENERO Provisional Attorney General of Texas 1 Defendant has not had sufficient opportunity to conduct discovery and cannot ascertain whether Mitchell satisfactorily completed his parole requirement. As such, Defendant contests that Mitchell’s discharge date was in factJuly 12, 2021. BRENT WEBSTER First Assistant Attorney General GRANT DORFMAN Deputy First Assistant Attorney General JAMES LLOYD Acting Deputy Attorney General for Civil Litigation SHANNA MOLINARE Chief for Law Enforcement Defense Division /s/Luz's A. Suarez LUIS A. SUAREZ Assistant Attorney General Texas Bar No. 24117110 Luis.Suarez@oag.texas.gov Office of the Attorney General Law Enforcement Defense Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 / Fax (512) 320-0667 COUNSEL FOR DEFENDANT CERTIFICATE 0F CONFERENCE Undersigned counsel contacted Plaintifi" s counsel on August 30, 2023 and he is opposed to this motion. CERTIFICATE 0F SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been served electronically through the electronic-filing manager in compliance with Texas Rule of Civil Procedure 21a on this the August 30, 2023, to all counsel of record: /s/Lm's A. Suarez LUIS A. SUAREZ Assistant Attorney General 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. Deborah Woltersdorf on behalf of Luis Suarez Bar No. 24117110 Deborah.Woltersdorf@oag.texas.gov Envelope ID: 79091653 Filing Code Description: Motion - Miscellanous Filing Description: MOTION TO DISSOLVE TRO Status as of 8/31/2023 8:50 AM CST Associated Case Party: TDC, ID, BRYAN COLLIER Name BarNumber Email TimestampSubmitted Status Luis Suarez 24117110 luis.suarez@oag.texas.gov 8/30/2023 5:20:08 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Deborah Woltersdorf Deborah.Woltersdorf@oag.texas.gov 8/30/2023 5:20:08 PM SENT Associated Case Party: ROBERTWAYNEMITCH ELL Name BarNumber Email TimestampSubmitted Status Taj Warren jwarren@warrenlawpllc.com 8/30/2023 5:20:08 PM ERROR