Preview
FILED
9/7/2023 12:25 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Terri Kilgore DEPUTY
NO. DC-23-04417
ROBERT WAYNE MITCHELL, § IN THE DISTRICT COURT
§
Plaintiff, §
§
vs. §
§ 298th JUDICIAL DISTRICT
BRYAN COLLIER, EXECUTIVE §
DIRECTOR, TEXAS DEPARTMENT §
OF CRIMINAL JUSTICE, §
§
Defendant. § DALLAS COUNTY, TEXAS
PLAINTIFF’S RESPONSE TO DEFENDANTS’ OPPOSITION
TO PLAINTIFF’S APPLICATION FOR TEMPORARY INJUNCTION
COMES NOW, ROBERT WAYNE MITCHELL, Plaintiff, and files this
Plaintiffs Response to Defendants' Opposition to Plaintiffs Application for Temporary
Injunction.
I.
Plaintiff herein was given a 30-year sentence which he began to serve on July 12,
1991. Plaintiff has been in the legal custody of the defendant, the Texas Department of
Criminal Justice ("TDCJ"), physically confined to prison in, or within the borders of, the
State of Texas, subject to numerous restrictions on his liberty, continuously since that
date, for a total of 32 years, 1 month, 27 days.
On April 6, 2023, Plaintiff filed the present action pro se seeking relief in the
unlawful extension of his sentence. On July 21, 2023, through his parole officer, Plaintiff
was informed that defendant intended to require him to move to Houston, Texas to
participate in an inpatient treatment program, to which Plaintiff objected, in consequence
of which Plaintiff was threatened with revocation of his parole. Subsequently, on August
7, 2023, an incident occurred in which Plaintiff left an appointment with his parole
officer to be present at a hearing in the present matter, for which, again, he was
PLAINTIFF’s RESPONSE To DEFENDANTS' OPPOSITION TO PLAINTIFF'S APPLICAHON FOR TEMPORARY INJUNCTION
PAGE 1 0F 4
threatened with revocation of his parole. On that date, Plaintiff was granted a Temporary
Restraining Order ("TRO") against Defendant, with a hearing for a Temporary Injunction
scheduled for August 21, 2023.
II.
Plaintiff then retained the undersigned counsel and on August l8, 2023, filed his
First Amended Petition and Supplemental Application for Temporary Restraining Order
and Request for Temporary Injunction. On the same day, counsel for the Plaintiff spoke
with counsel for the Texas Board of Pardons and Paroles ("the Board"), who stated that
both the Board and TDCJ were aware of the litigation. However, on August 21, 2023, no
one appeared for the temporary injunction hearing on behalf of Defendant.
Rather than proceed ex parte, counsel for the Plaintiff requested a fourteen-day
extension of the TRO granted on August 7th and a rescheduling of the Temporary
Injunction hearing for September 5, 2023. Subsequent thereto, Bryan Collier, on behalf
of TDCJ, was served with citation and a copy of the First Amended Petition and
Supplemental Application for Temporary Restraining Order and Request for Temporary
Injunction on August 30, 2023. On that same day, the undersigned counsel for the
plaintiff spoke with counsel for the defendant, who made a general appearance at the
Temporary Injunction hearing on September 5, 2023, in which Plaintiff asserted that a
temporary injunction was necessary because he would suffer imminent and irreparable
harm in that he would be subject to a warrant for his arrest, detention by law
enforcement, revocation of his parole, and reincarceration all before the Court has the
opportunity to adjudicate his allegations and claims. In the course of the hearing, the
Court inquired as to a voluntary agreement of forbearance by Defendant as to such
PLAINTIFF’s RESPONSE To DEFENDANTs' OPPOSITION To PLAINTIFF'S APPLICAHON FOR TEMPORARY INJUNCTION
PAGE 2 0E 4
action, which did not yield a resolution. The Court subsequently granted the Temporary
Injunction.
III.
Plaintiff‘s principal contention in this action is that he has served over 32 years of
a 30-year sentence and has never knowingly or voluntarily waived his constitutional
rights to liberty or due process, or those against double jeopardy and cruel and usual
punishment, nor knowingly or voluntarily agreed to terms, conditions, or provisions
effecting the violation of these rights. Further, in View of Defendant’s contention Plaintiff
must re-serve 8 years, 4 months, and l7 days, and be imminently subject to re-serving 8
years once again, over 47 years total, that the Defendant’s exercise of discretion to violate
these rights under the facts of this case are unconstitutional. As such, Plaintiff seeks a
determination from the Court that Defendant's failure to release Plaintiff from custody
after serving 30 years, in contravention of state and federal constitutional protections and
compulsory authority to the contrary, is ultra vires.
For these reasons, the Court properly decided the Application for Temporary
Injunction.
Respectfully submitted,
By: TaiA. Warren /s/
TAJ A. WARREN
Texas Bar No. 24060802
WARREN LAW, PLLC
325 N. St. Paul Street, Suite 3100
Dallas, Texas 75201
(214) 206-1225
(214) 206-1226 fax
twarren@warrenlawpllc.com
ATTORNEY FOR PLAINTIFF
ROBERT WAYNE MITCHELL
PLAINTIFF’s RESPONSE To DEFENDANTs' OPPOSITION To PLAINTIFF'S APPLICAHON FOR TEMPORARY INJUNCTION
PAGE 3 0E 4
CERTIFICATE OF SERVICE
This is to certify that on the 7th day of September 2023 a true and correct copy
of the foregoing document is being served upon all counsel of record in accordance
with the Texas Rules of Civil Procedure as follows:
Via eFiling: Notice Service
Via Emai: Luis.Suarez@oag.texas.gov
Luis A. Suarez
Office of the Attorney General
Law Enforcement Defense Division
P.O. Box 12548, Capitol Station
Austin, Texas 7871 1-2548
PLAINTIFF’s RESPONSE To DEFENDANTs' OPPOSITION TO PLAINTIFF'S APPLICAHON FOR TEMPORARY INJUNCTION
PAGE 4 0F 4
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.
Taj Warren on behalf of Taj Warren
Bar No. 24060802
twarren@warrenlawpllc.com
Envelope ID: 79305453
Filing Code Description: Response
Filing Description: TO PLAINTIFFS APPLICATION FOR TEMPORARY
INJUNCTION
Status as of 9/8/2023 6:14 PM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Deborah Woltersdorf Deborah.Woltersdorf@oag.texas.gov 9/7/2023 12:25:46 PM SENT
Associated Case Party: TDC, ID, BRYAN COLLIER
Name BarNumber Email TimestampSubmitted Status
Luis Suarez 24117110 luis.suarez@oag.texas.gov 9/7/2023 12:25:46 PM SENT
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FILED 9/7/2023 12:25 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Terri Kilgore DEPUTY NO. DC-23-04417 ROBERT WAYNE MITCHELL, § IN THE DISTRICT COURT § Plaintiff, § § vs. § § 298th JUDICIAL DISTRICT BRYAN COLLIER, EXECUTIVE § DIRECTOR, TEXAS DEPARTMENT § OF CRIMINAL JUSTICE, § § Defendant. § DALLAS COUNTY, TEXAS PLAINTIFF’S RESPONSE TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S APPLICATION FOR TEMPORARY INJUNCTION COMES NOW, ROBERT WAYNE MITCHELL, Plaintiff, and files this Plaintiffs Response to Defendants' Opposition to Plaintiffs Application for Temporary Injunction. I. Plaintiff herein was given a 30-year sentence which he began to serve on July 12, 1991. Plaintiff has been in the legal custody of the defendant, the Texas Department of Criminal Justice ("TDCJ"), physically confined to prison in, or within the borders of, the State of Texas, subject to numerous restrictions on his liberty, continuously since that date, for a total of 32 years, 1 month, 27 days. On April 6, 2023, Plaintiff filed the present action pro se seeking relief in the unlawful extension of his sentence. On July 21, 2023, through his parole officer, Plaintiff was informed that defendant intended to require him to move to Houston, Texas to participate in an inpatient treatment program, to which Plaintiff objected, in consequence of which Plaintiff was threatened with revocation of his parole. Subsequently, on August 7, 2023, an incident occurred in which Plaintiff left an appointment with his parole officer to be present at a hearing in the present matter, for which, again, he was PLAINTIFF’s RESPONSE To DEFENDANTS' OPPOSITION TO PLAINTIFF'S APPLICAHON FOR TEMPORARY INJUNCTION PAGE 1 0F 4 threatened with revocation of his parole. On that date, Plaintiff was granted a Temporary Restraining Order ("TRO") against Defendant, with a hearing for a Temporary Injunction scheduled for August 21, 2023. II. Plaintiff then retained the undersigned counsel and on August l8, 2023, filed his First Amended Petition and Supplemental Application for Temporary Restraining Order and Request for Temporary Injunction. On the same day, counsel for the Plaintiff spoke with counsel for the Texas Board of Pardons and Paroles ("the Board"), who stated that both the Board and TDCJ were aware of the litigation. However, on August 21, 2023, no one appeared for the temporary injunction hearing on behalf of Defendant. Rather than proceed ex parte, counsel for the Plaintiff requested a fourteen-day extension of the TRO granted on August 7th and a rescheduling of the Temporary Injunction hearing for September 5, 2023. Subsequent thereto, Bryan Collier, on behalf of TDCJ, was served with citation and a copy of the First Amended Petition and Supplemental Application for Temporary Restraining Order and Request for Temporary Injunction on August 30, 2023. On that same day, the undersigned counsel for the plaintiff spoke with counsel for the defendant, who made a general appearance at the Temporary Injunction hearing on September 5, 2023, in which Plaintiff asserted that a temporary injunction was necessary because he would suffer imminent and irreparable harm in that he would be subject to a warrant for his arrest, detention by law enforcement, revocation of his parole, and reincarceration all before the Court has the opportunity to adjudicate his allegations and claims. In the course of the hearing, the Court inquired as to a voluntary agreement of forbearance by Defendant as to such PLAINTIFF’s RESPONSE To DEFENDANTs' OPPOSITION To PLAINTIFF'S APPLICAHON FOR TEMPORARY INJUNCTION PAGE 2 0E 4 action, which did not yield a resolution. The Court subsequently granted the Temporary Injunction. III. Plaintiff‘s principal contention in this action is that he has served over 32 years of a 30-year sentence and has never knowingly or voluntarily waived his constitutional rights to liberty or due process, or those against double jeopardy and cruel and usual punishment, nor knowingly or voluntarily agreed to terms, conditions, or provisions effecting the violation of these rights. Further, in View of Defendant’s contention Plaintiff must re-serve 8 years, 4 months, and l7 days, and be imminently subject to re-serving 8 years once again, over 47 years total, that the Defendant’s exercise of discretion to violate these rights under the facts of this case are unconstitutional. As such, Plaintiff seeks a determination from the Court that Defendant's failure to release Plaintiff from custody after serving 30 years, in contravention of state and federal constitutional protections and compulsory authority to the contrary, is ultra vires. For these reasons, the Court properly decided the Application for Temporary Injunction. Respectfully submitted, By: TaiA. Warren /s/ TAJ A. WARREN Texas Bar No. 24060802 WARREN LAW, PLLC 325 N. St. Paul Street, Suite 3100 Dallas, Texas 75201 (214) 206-1225 (214) 206-1226 fax twarren@warrenlawpllc.com ATTORNEY FOR PLAINTIFF ROBERT WAYNE MITCHELL PLAINTIFF’s RESPONSE To DEFENDANTs' OPPOSITION To PLAINTIFF'S APPLICAHON FOR TEMPORARY INJUNCTION PAGE 3 0E 4 CERTIFICATE OF SERVICE This is to certify that on the 7th day of September 2023 a true and correct copy of the foregoing document is being served upon all counsel of record in accordance with the Texas Rules of Civil Procedure as follows: Via eFiling: Notice Service Via Emai: Luis.Suarez@oag.texas.gov Luis A. Suarez Office of the Attorney General Law Enforcement Defense Division P.O. Box 12548, Capitol Station Austin, Texas 7871 1-2548 PLAINTIFF’s RESPONSE To DEFENDANTs' OPPOSITION TO PLAINTIFF'S APPLICAHON FOR TEMPORARY INJUNCTION PAGE 4 0F 4 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. Taj Warren on behalf of Taj Warren Bar No. 24060802 twarren@warrenlawpllc.com Envelope ID: 79305453 Filing Code Description: Response Filing Description: TO PLAINTIFFS APPLICATION FOR TEMPORARY INJUNCTION Status as of 9/8/2023 6:14 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Deborah Woltersdorf Deborah.Woltersdorf@oag.texas.gov 9/7/2023 12:25:46 PM SENT Associated Case Party: TDC, ID, BRYAN COLLIER Name BarNumber Email TimestampSubmitted Status Luis Suarez 24117110 luis.suarez@oag.texas.gov 9/7/2023 12:25:46 PM SENT