     Case: 12-70012     Document: 00511869877         Page: 1     Date Filed: 05/29/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 29, 2012
                                       No. 12-70012
                                                                           Lyle W. Cayce
                                                                                Clerk
ANTHONY BARTEE,

                                                  Plaintiff-Appellee

v.

SUSAN D REED, BEXAR COUNTY DISTRICT ATTORNEY,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:12-CV-420


Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
        Hours before his scheduled execution, Anthony Bartee brought suit under
42 U.S.C. § 1983 in federal district court, alleging that the district attorney of
Bexar County violated his Eighth and Fourteenth Amendment rights by denying
him access to DNA evidence for forensic testing pursuant to Chapter 64 of the
Texas Code of Criminal Procedure. The district court stayed the execution
pending disposition of the § 1983 claim. The County appealed immediately,
moving this Court to vacate the stay. This Court instead requested that the


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 12-70012         Document: 00511869877         Page: 2     Date Filed: 05/29/2012

                                         No. 12-70012

parties submit supplemental briefing the following week. The execution warrant
expired in the meantime.
       In its supplemental brief, the County acknowledged that there remained
untested physical evidence despite a 2010 order from the state trial court that
“any other available evidence that has not already been tested be tested.” The
County’s brief asserts, however, that the remaining evidence has now been
delivered to the Bexar County Criminal Investigations Laboratory and is “in the
process of being tested.”
       Neither party has addressed whether the County’s assertion, if true, moots
the underlying § 1983 case. Even so, we must raise that question sua sponte
because it implicates the justiciability of the § 1983 suit going forward.1 At this
juncture, however, when a record barely exists, the mootness determination
depends on record development that does not commonly take place in appellate
courts. The district court is the proper forum for developing the record requisite
to a determination of mootness.2
       We therefore remand this case for the limited purpose of determining in
the first instance whether the case is now moot. We retain jurisdiction over the
County’s motion to vacate the stay.                 In other words, this is a LIMITED
REMAND.




       1
           See, e.g., United States v. Villanueva-Diaz, 634 F.3d 844, 848 (5th Cir. 2011).
       2
         See Hornbeck Offshore Servs., LLC v. Salazar, No. 10-30585, 2010 WL 3219469, at *1-
2 (5th Cir. Aug. 16, 2010) (unreported per curiam order); Spector v. Norwegian Cruise Line
Ltd., 427 F.3d 285, 285 (5th Cir. 2005) (per curiam order); see also, e.g., Fund for Animals, Inc.
v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 24 (D.C. Cir. 2006); cf. Larremore v. Lykes Bros.
Inc., 454 F. App’x 305, 307 (5th Cir. 2011) (unpublished) (per curiam) (collecting cases
remanding for “development of the record and determination of [whether] jurisdiction is
appropriate”).

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