                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                    UNITED STATES COURT OF APPEALS
                                                              August 18, 2003
                        For the Fifth Circuit
                                                          Charles R. Fulbruge III
                                                                  Clerk

                             No. 02-11132


     ZEN MUSIC FESTIVALS, A TEXAS LIMITED LIABILITY COMPANY,

                                                 Plaintiff-Appellee,


                                VERSUS


                           RAY STEWART,
 IN HIS OFFICIAL CAPACITY AS SHERIFF OF ELLIS COUNTY, TEXAS; and

      AL CORNELIUS, IN HIS OFFICIAL CAPACITY AS ELLIS COUNTY
                          ADMINISTRATOR,

                                                          Defendants,

                                VERSUS

         JOHN CORNYN, ATTORNEY GENERAL OF THE STATE OF TEXAS,

                                                Intervenor-Appellant.




             Appeal from the United States District Court
         For the Northern District of Texas, Dallas Division
                             (02-CV-1998)


Before EMILIO M. GARZA, and DENNIS, Circuit Judges, and VANCE*,

District Judge.


     *
     District Judge of the Eastern District of Louisiana,
sitting by designation.

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PER CURIAM:**

     Intervenor John Cornyn, Attorney General of Texas (“Texas

Attorney General”), appeals from the district court’s September 19,

2002 preliminary injunction enjoining defendants Ray Stewart and Al

Cornelius,      the   sheriff   and   administrator   of   Ellis   County

respectively, from enforcing the permit requirement of the Texas

Mass Gathering Act, Tex. Health & Safety Code Ann §§ 751.001-

751.013 (“TMGA”), against plaintiff, Zen Music Festivals, L.L.C.

(“Zen”) with respect to a music concert that was promoted and held

by Zen on September 21, 2002 on the Beaumont Ranch in Ellis County,

Texas.    For the reasons stated below, we dismiss this appeal as

moot.

                                      I

     Zen promotes and holds annual music festivals in Texas.           It

intended to hold a music concert on September 21, 2002 on private

property in Ellis County, Texas that it expected would attract over

5,000 people who would remain at the location for more than five

continuous hours.      The TMGA requires, inter alia, a permit for a

“person” such as Zen to hold a “mass gathering,” which is defined

as “a gathering that is held outside the limits of a municipality

and that . . .is expected to attract more than 5,000 persons who

will be at the meeting location for more than five continuous


     **
      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.

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hours.”     See TMGA §§ 751.002(2) (defining “person”); 751.003

(describing permit requirement generally); 751.002(1) (defining

“mass gathering”).

     Accordingly, on August 28, 2002, Zen applied for a permit to

hold the music concert from defendant Judge Al Cornelius of Ellis

County.     See id. § 751.004 (providing that the permit applicant

must apply to the county judge of the county in which the “mass

gathering” is to be held).    Judge Cornelius held a hearing and on

September 9, 2002 denied the permit.

     On September 13, 2002, Zen filed suit against the defendants

in the district court under 42 U.S.C. § 1983, claiming that the

TMGA is facially invalid under the First Amendment and requesting

a permanent injunction precluding defendants from enforcing the

TMGA.     On September 16, 2002, Zen filed an emergency application

for a preliminary injunction, asking the district court to enjoin

the defendants from enforcing the TMGA against Zen in relation to

the September 21, 2002 music concert.     On September 18, 2002, the

Texas Attorney General was granted leave to intervene in this case

pursuant to 28 U.S.C. § 2403(b).       On September 19, 2002, after a

hearing, the district court issued a preliminary injunction that

prevented defendants from enforcing the permitting requirements of

the TMGA against Zen with respect to the September 21, 2002 music

concert.    Zen promoted and held the music concert as scheduled on

September 21, 2002. On October 4, 2002, the Texas Attorney General


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appealed from the preliminary injunction judgment, and on October

8, 2002, the district court stayed all further proceedings in the

case pending appeal.

                                        II

      “[A] case is moot when the issues presented are no longer

‘live’ or the parties lack a legally cognizable interest in the

outcome.”      County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)

(internal quotation omitted).          “[T]he question is not whether the

precise relief sought at the time an application for injunction was

filed is still available.       The question is whether there can be any

effective relief.”      Vieux Carre Property Owners v. Brown, 948 F.2d

1436, 1446 (5th Cir. 1991).          If there can be no effective relief,

then any decision by the appellate court would be advisory.                  See

City of Erie v. Pap’s A.M., 529 U.S. 277, 288 (2000).

      Courts have established an exception to the mootness doctrine

for     “issues    capable     of    repetition,      yet   evading    review.”

Specifically, “[a]lthough a case may be technically moot, a federal

court    may    nevertheless    retain       jurisdiction   if   a    continuing

controversy exists or if the challenged problem is likely to recur

or is otherwise capable of repetition.”              Vieux Carre, 948 F.2d at

1447.      This    exception,       however,   “is   inapplicable     in   those

situations in which the issues underlying the appeal are not moot

in the case remaining before the district court.”                Marilyn T. v.

Evans, 803 F.2d 1383, 1385 (5th Cir. 1986) (concluding that the


                                         4
exception did not apply where the district court’s denial of a

preliminary    injunction   was     not   a    final   decision   on   the

constitutionality of the challenged action).

     In the specific context of a preliminary injunction, where

“the terms of the injunction . . . have been fully and irrevocably

carried out,” and where any underlying issues remain for a trial on

the merits of the case, the appeal of the preliminary injunction

should be dismissed as moot.      University of Texas v. Camenisch, 451

U.S. 390, 398 (1981).       It is improper to hear an appeal of a

remaining issue at the preliminary injunction stage because of the

significant differences between a preliminary injunction and a

permanent injunction or other final disposition on the merits of

the case.     See id. at 394-95.    Specifically, “[t]he purpose of a

preliminary injunction is merely to preserve the relative positions

of the parties until a trial on the merits can be held.       Given this

limited purpose, and given the haste that is often necessary if

those positions are to be preserved, a preliminary injunction is

customarily granted on the basis of procedures that are less formal

and evidence that is less complete than in a trial on the merits.”

Id. at 395.

     In this case, the Texas Attorney General is appealing a

preliminary injunction that prohibited defendants from enforcing

Texas’ TMGA permit requirements against Zen in relation to a music

concert that has already happened.            Because “the terms of the


                                     5
injunction have been fully and irrevocably carried out,” any

remaining issues should be considered after the trial on the

merits.   Id. at 398.   No exceptions exist here because “the issues

underlying the appeal are not moot in the case remaining before the

district court.”   Marilyn T., 803 F.2d at 1385.    Accordingly, we

dismiss this appeal as moot and remand the case to the district

court for proceedings consistent with this opinion.

DISMISSED and REMANDED.




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