                                 Fourth Court of Appeals
                                         San Antonio, Texas

                                    MEMORANDUM OPINION
                                             No. 04-19-00776-CV

           IN RE STATE OF TEXAS, ex. rel. Todd A. “Tadeo” Durden, County Attorney

                                      Original Mandamus Proceeding 1

PER CURIAM

Sitting:          Patricia O. Alvarez, Justice
                  Irene Rios, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: December 4, 2019

PETITION FOR WRIT OF MANDAMUS DISMISSED AS MOOT

           On November 4, 2019, relator filed a petition for writ of mandamus complaining of the

trial court’s July 10, 2019 “Citation to Todd A. Durden to Appear and Show Authority, . . . and

for Consideration of Sanctions, . . . and Order of Protection” (the “Citation”). On November 7,

2019, this court ordered relator to show cause why this original proceeding should not be dismissed

as moot based on an order signed by the trial court on October 8, 2019. Relator filed a response

to our order. For the reasons stated below, we conclude this proceeding is moot and dismiss the

petition for writ of mandamus.




1
 This proceeding arises out of Cause No. 4845, 4863, 4866, styled The State of Texas, ex. rel. Todd A. Durden, in His
Official Capacity as County Attorney v. James T. “Tully” Shahan, in His Official Capacity as County Judge; et al.,
pending in the 63rd Judicial District Court, Kinney County, Texas, the Honorable Sid L. Harle presiding.
                                                                                                       04-19-00776-CV


                                                    DISCUSSION

           At some point in the on-going litigation between Mr. Todd Durden, in his capacity as

County Attorney for Kinney County, Texas, against various defendants, the defendants filed a

motion to cause Mr. Durden to appear and show his authority to act. 2 In response to the

defendants’ motion, the trial court issued the Citation. The Citation stated a hearing would be held

on July 31, 2019, at which time Mr. Durden was to appear and show the basis of his authority to

bring the underlying civil suits. The Citation also stayed the production of any transcripts at

Kinney County’s expense pending the trial court’s ruling on Mr. Durden’s capacity to bring the

litigation. No hearing was held on July 31; instead, the case was assigned to the Honorable Sid

Harle.

           On October 4, 2019, Judge Harle conducted a hearing on the motion to dismiss and for

final summary judgment filed by the defendants. On October 8, 2019, the trial court signed an

“Order Granting [Defendants’] Motion to Dismiss and for Final Summary Judgment and Denying

Relator’s Motion for Partial Summary Judgment.” 3 In the order, the trial court found Mr. Durden,

“in his official capacity as County Attorney of Kinney County, Texas, has no legal standing or

capacity to initiate civil litigation in the absence of clear and unambiguous statutory authority . . . .”

The order also stated as follows:

                   As for the determination of allocation of costs, both parties have requested
           Court Costs. The case being resolved substantially in favor of the Defendant[s],
           the Court orders Plaintiff [relator], personally and individually, to pay all costs of
           court, including the cost of any transcripts, filing fees or service fees associated
           with this litigation.




2
  “A party in a suit or proceeding pending in a court of this state may, by sworn written motion stating that he believes
the suit or proceeding is being prosecuted or defended without authority, cause the attorney to be cited to appear before
the court and show his authority to act. . . . .” TEX. R. CIV. P. 12.
3
    The October 8 order is the subject of appeals pending before this court.


                                                           -2-
                                                                                       04-19-00776-CV


       In its petition for writ of mandamus, relator characterizes the Citation as a temporary

restraining order that restrains the County Attorney from doing some act that he is otherwise

lawfully able to do. Relator asserts the Citation is void for the following reasons:

               The issuing of the Citation, and the Citation itself, fail to satisfy the
       provisions of Texas law set forth in Rules 680-693 of the Texas Rules of Civil
       Procedure and Chapter 65 of the Texas Civil Practice and Remedies Code. It was
       not granted upon a clear showing of specific facts shown by affidavit or by verified
       complaint that immediate and irreparable injury, loss, or damage will result to the
       applicant before notice can be served and a hearing had thereon. The Citation does
       not define the injury and state why it is irreparable and why the order was granted
       without notice. The Citation does not include an order setting a certain date for
       hearing on the temporary or permanent injunctive relief sought. The Citation does
       not recite that it shall expire by its terms within such time after signing, not to
       exceed fourteen days.

       Because it appeared the trial court’s October 8 order mooted the complaints raised in

relator’s petition, this court ordered relator to show cause in writing why this original proceeding

should not be dismissed as moot. In its response to our show cause order, relator asserted the

continued existence of the Citation adversely affects Mr. Durden’s ability to fulfill his duties and

denies him access to budgeted funds.

       “A case becomes moot if a controversy ceases to exist between the parties at any stage of

the legal proceedings, including the appeal.” In re Kellogg Brown & Root, Inc., 166 S.W.3d 732,

737 (Tex. 2005) (orig. proceeding). Here, the controversy, as phrased by relator, is whether the

Citation is void because it does not meet the requirements necessary for the issuance of a temporary

restraining order. As stated above, the Citation does no more than order Mr. Durden to appear and

show authority and stay the expenditure of County funds pending a determination of Mr. Durden’s

authority. The Citation does not impliedly or expressly restrain Mr. Durden from taking any action

as the County Attorney. As to the controversy over Mr. Durden’s authority and access to County

funds, those issues were determined on October 8 by the trial court’s “Order Granting

[Defendants’] Motion to Dismiss and for Final Summary Judgment and Denying Relator’s Motion


                                                -3-
                                                                                 04-19-00776-CV


for Partial Summary Judgment.” Therefore, the October 8 order rendered this original proceeding

moot. Accordingly, we dismiss relator’s petition for writ of mandamus as moot.

                                               PER CURIAM




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