                                Fourth Court of Appeals
                                       San Antonio, Texas
                                     DISSENTING OPINION
                                           No. 04-14-00282-CV

                                       IN RE STATE OF TEXAS

                                     Original Mandamus Proceeding 1

                               DISSENTING OPINION
                   TO ORDER DENYING REQUEST TO DISMISS AS MOOT

Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: June 11, 2014

           I disagree with the majority’s order issued this date stating that it will issue the writ of

mandamus if the trial court does not vacate its April 22, 2014 order within five days. The State

sought emergency relief, in part, because the trial court failed to comply with the notice

requirements under Texas Government Code section 402.010. TEX. GOV’T CODE ANN. § 402.010

(West Supp. 2013). Mandamus conditionally issued on May 15, 2014, with the majority’s

Memorandum Opinion delivered May 28, 2014. The majority conditionally granted mandamus

relief, limiting its determination that the trial court abused its discretion to failure to provide the

statutorily required notice to the Attorney General. Relator, the State, now concedes that such

notice is “unnecessary” and “no longer relevant” because it is a party. Since mandamus was


1
 This proceeding arises out of Cause No. 2014-CI-02421, styled A.L.F.L. v. K.L.L., pending in the 438th Judicial
District Court, Bexar County, Texas, the Honorable Barbara Hanson Nellermoe presiding.
Dissenting Opinion                                                                                    04-14-00282-CV


conditionally issued solely to enforce a procedural requirement to provide notice, relief for which

Relator no longer complains, I would dismiss the Petition for Writ of Mandamus as moot.

         As the majority’s opinion states, mandamus is “appropriate to enforce a procedural

requirement to provide notice.” The majority held “the trial court clearly abused its discretion in

entering the challenged order without providing prior notice to the State.”                            The majority

acknowledged the State’s additional arguments “that the trial court’s order is substantively

erroneous” but, “[b]ecause we conclude the trial court clearly abused its discretion in entering the

challenged order without providing prior notice to the State, we do not reach the remainder of the

State’s arguments regarding the substance of the trial court’s ruling.” The opinion’s conclusion

underscores its emphasis on the purpose of the statute, to provide the Attorney General with an

opportunity to be heard, holding “the trial court abused its discretion in failing to provide notice to

the attorney general of a constitutional challenge to Texas state laws raised by a party’s pleadings

in the underlying litigation.” The majority declined to consider whether the order erroneously held

Texas law invalid, or whether mandamus relief was appropriate because the trial court entered an

order beyond its jurisdiction. In my opinion, the reasoning provided in the majority’s present order

necessarily takes into consideration the substance of the challenged order. With reference to a

partial sentence contained in its opinion, the majority now construes “the trial court’s

determination of the constitutional challenges pled by the parties without prior notice” as the clear

abuse of discretion that warranted mandamus relief, for the first time emphasizing substance and

not procedure. 2 I respectfully decline to do so as a means to grant extraordinary relief against




2
  Complete reference to the majority’s opinion demonstrates that only the failure to comply with a procedural notice
requirement determined the need for extraordinary relief. “Although the statute provides that the failure to provide
notice as required does not deprive the trial court of jurisdiction, we conclude that the trial court’s determination of
the constitutional challenges without prior notice to the attorney general deprives the State of an important right and
constitutes an abuse of discretion for which mandamus relief is available.” (citation omitted)

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Dissenting Opinion                                                                                    04-14-00282-CV


Judge Nellermoe who, at a minimum, was not previously apprised of conduct constituting a clear

abuse of discretion beyond failure to provide the State notice and an “opportunity to be heard.”

The present order seeks enforcement of the majority’s May 15, 2014 order that achieves

compliance with neither a relevant statutory requirement nor rule of procedure, but instead reaches

to the substantive determinations contained in the challenged order for which mandamus did not

originally issue.

           The majority opinion, as my dissent previously pointed out, neglected to address the issue

of an adequate remedy by appeal. Doing so now, the majority considers the State’s substantive

jurisdictional complaint that the majority’s order to vacate is not moot since “the improper

invalidation of Texas law — the central point of the State’s mandamus petition — remains in

place.” 3 Since the order denying the State’s plea to the jurisdiction “does not contain any findings

similar to those contained in the April 22 order,” the majority reasons that dismissing the

mandamus would deprive the State of an adequate remedy to challenge those findings and will

consequently lift our temporary stay entered on April 24, 2014. First, the State has since taken the

position that its pending interlocutory appeal 4 stays the proceedings in the trial court pending

resolution of that appeal, pursuant to TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(b) (West Supp.

2013). Relator expresses no continued concern regarding the effect of dismissing the mandamus

and/or the current temporary stay as it pertains to the suspension of the proceedings currently in



3
 The majority’s present order appears to construe the challenged April 22 order as “void,” having been entered without
the required notice, thereby requiring further enforcement to vacate the order. By implication, the majority essentially
concludes that the trial court’s act of “determining” constitutional challenges without prior notice to the Attorney
General is done without jurisdiction to so decide and, thus, is a clear abuse of discretion. See In re Dickason, 987
S.W.2d 570, 571 (Tex.1998) (orig. proceeding) (order is void if entered without jurisdiction, thus a clear abuse of
discretion providing mandamus relief). Failing to comply with the notice requirement does not deprive the trial court
of jurisdiction. TEX. GOV’T CODE ANN. § 402.010(c) (West Supp. 2013).
4
    The pending appeal is accelerated under TEX. R. APP. P. 28.1.


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Dissenting Opinion                                                                                  04-14-00282-CV


the trial court. Second, the mandamus record includes the State’s Plea to the Jurisdiction and Order

on Intervenor’s Plea to the Jurisdiction. The plea contests the trial court’s jurisdiction over the

parties in the underlying proceeding and its authority to declare a state law unconstitutional. 5 The

plea disputes the trial court’s authority to divorce a party to a same-sex marriage, citing our sister

court’s decision in In re Marriage of J.B. & H.B., 326 S.W.3d 654, 670 (Tex. App.—Dallas 2010,

pet. granted) (on interlocutory appeal, reversing denial of State’s plea to the jurisdiction for lack

of subject matter jurisdiction under section 6.204 of the Texas Family Code). The order denying

the State’s plea contains no findings of fact or conclusions of law. The question of whether we

can imply from the trial court’s denial of the State’s plea that the trial court found it had subject

matter jurisdiction over a party seeking a divorce from a same-sex marriage, thus necessarily

invalidating Texas law, remains to be decided in the appeal. Worford v. State, 801 S.W.2d 108,

109 (Tex. 1990) (where no separate findings of fact or conclusions of law are filed, it is implied

that trial court made all findings necessary to support its judgment.) In seeking mandamus, the

State sought both compliance with the notice statute and additional substantive relief to vacate “the

trial court’s improper invalidation of Texas law.” The State further acknowledged that it likewise

“intervened in this case for the limited purpose of challenging the divorce petition, which is

premised and dependent on the invalidity of Texas marriage law.” By failing to dismiss the

mandamus as moot, the majority clearly seeks to vacate the findings contained within the trial

court’s order as substantively erroneous. These substantive issues of jurisdiction and “the trial

court’s determination of the constitutional challenges pled by the parties” are appropriately

decided by appeal.



5
 The State’s plea challenges both A.L.F.L.’s pleadings on the basis of standing under Article I, section 32(a) of the
Texas Constitution, and section 6.204(b) of the Texas Family Code, and the trial court’s “attempt to confer the status
of a marriage upon any relationship other than the union of one man and one woman.”

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Dissenting Opinion                                                                   04-14-00282-CV


        The extraordinary relief of a mandamus writ was issued on narrowly specified grounds that

are now moot. Because the majority’s previous order and opinion properly declined to reach the

State’s substantive contests to the challenged April 22, 2014 order, mandamus relief issued

specifically to enforce compliance with a statutory notice requirement, and Relator does not further

seek and cannot show the necessity for continued enforcement of the procedural notice

requirement, we must dismiss the mandamus proceedings as moot. Most importantly, this order

to enforce the majority’s May 15 order will unduly interfere with our court’s jurisdiction to review

the State’s pending interlocutory appeal.

                                                 Rebeca C. Martinez, Justice




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