                                 In The

                           Court of Appeals
                 Ninth District of Texas at Beaumont
                         __________________
                          NO. 09-13-00434-CV
                          NO. 09-13-00441-CV
                         __________________
       MARCELINO RODRIGUEZ, DONNA JEAN FORGAS, AND
           LINDA MARIE WILTZ GILMORE, Appellants

                                   V.

BEAUMONT INDEPENDENT SCHOOL DISTRICT, WOODROW REECE,
  TERRY D. WILLIAMS, JANICE BRASSARD, GWEN AMBRES AND
   ZENOBIA RANDALL BUSH IN THEIR RESPECTIVE OFFICIAL
    CAPACITIES AS TRUSTEES OF DEFENDANT BEAUMONT
          INDEPENDENT SCHOOL DISTRICT, Appellees

                                  and

   IN RE MARCELINO RODRIGUEZ, DONNA JEAN FARGAS, AND
              LINDA MARIE WILTZ GILMORE
________________________________________________________________________

                 On Appeal from the 172nd District Court
                        Jefferson County, Texas
                       Trial Cause No. E-194,295
                                  and
                          Original Proceeding
________________________________________________________________________




                                   1
                                     OPINION

      In this accelerated interlocutory appeal, we address how the United States

Supreme Court’s holding in Shelby County, Alabama v. Holder, 1 which declared

section four of the Voting Rights Act of 1965 2 unconstitutional, impacts the

Beaumont Independent School District’s3 trustee election, presently scheduled on

November 5, 2013. The November election, previously scheduled in May 2013,

did not occur in May because it was enjoined by a federal court exercising

jurisdiction over BISD’s suit seeking preclearance. See Voting Rights Act of 1965,

42 U.S.C.S. §§ 1973b(b) (section four, found to be unconstitutional on June 25,

2013, approximately one month after the United States District Court for the

District of Columbia enjoined the BISD trustee election scheduled for May 2013),

1973c (section five, the section that includes the Act’s preclearance requirement).

      BISD’s preclearance case in federal court concerned a change in the manner

trustees were to be elected to the Board. Prior to the 2010 census, all seven BISD

trustees were elected from single-member districts. In May 2011, BISD’s voters

passed a proposition specifying that the next BISD trustee election be held using
      1
         Shelby Cnty., Ala. v. Holder, 133 S.Ct. 2612, 2631 (2013).
      2
         Throughout this Opinion we refer to the Voting Rights Act by its common
name and designated sections.
       3
         In this Opinion, we refer to the district as BISD and to its Board of Trustees
as the Board. The actions referred to in this Opinion were taken by various BISD
agents and employees under the direction and authority of the Board.
                                          2
five single-member and two at-large districts (a 5-2 plan). Under the Texas

Education Code, the plan approved by voters is required to be implemented

beginning with the first regular election of trustees following the voter’s adoption

of the proposition. Tex. Educ. Code Ann. § 11.052(e) (West 2012).

      The trial court rendered the order now on appeal following a hearing

between BISD and three individuals who filed to run in the aborted May 2013

election. Reasoning that the plan adopted by voters was not capable of being

approved in federal court, the trial court denied the individuals who filed in the

May election the relief they sought, and allowed the Board to conduct its trustee

election under a seven single-member district plan with no at-large districts.

      We disapprove of the trial court’s application of federal law to the issues

before it, as federal law no longer requires BISD to obtain preclearance to conduct

its elections and it must now comply with State law. We conclude the trial court

abused its discretion by approving the Board’s order and by sanctioning an election

that is designed to be conducted in violation of State laws. The trial court’s order,

as well as the trial court’s findings and conclusions that are inconsistent with this

Court’s opinion are reversed, and the case is remanded to the trial court for further

proceedings consistent with the Court’s opinion.




                                          3
                                     Background

      After BISD failed to obtain the permission of the Department of Justice to

conduct a trustee election on May 11, 2013, under an election map referred to by

the parties as Map 7b, BISD rescheduled its trustee election for November 5, 2013.

Before scheduling the November 5 election, the Board adopted a resolution

requiring that the election take place using another seven single-member district

map, Map 7i.

      Subsequently, seeking to enforce their rights under the BISD-ordered May

election, Marcelino Rodriguez, Donna Jean Forgas, and Linda Marie Wiltz

Gilmore, three individuals who had filed for trustee positions in the May 2013

election that used Map 7b to define the seven trustee-district boundaries, amended

their petition in a suit they had previously filed in the 172nd District Court of

Jefferson County, Texas, to challenge the legality of the November election. In

their first amended petition, which is their live pleading for purposes of this appeal,

Forgas, Rodriguez, and Gilmore (the putative trustees) asked the trial court to

declare, among other things, that BISD was required to conduct the election

“according to the 5-2 election scheme approved . . . by Beaumont voters[.]”

Seeking to require that BISD conduct the November 2013 election “according to

the 5-2 election scheme[,]” or to recognize their right to serve as trustees under

                                          4
Map 7b, or to require that BISD use Map 7b in the November election, the putative

trustees asked the trial court to issue a writ of mandamus and grant them temporary

or permanent injunctive relief to prevent BISD from using Map 7i in the upcoming

November 5 election.

      BISD answered and filed a counterclaim, asking the trial court to declare

that BISD could “move forward with an election on November 5, 2013, under a

single-member district plan[.]” In the trial court, BISD claimed that using Map 7i

for an election in November was “both the lawful and equitable course of action

considering the unique circumstances.”

      In September 2013, the trial court conducted a hearing on the putative

trustees’ request for mandamus and injunctive relief; however, the other claims

raised by the pleadings of BISD and the putative trustees, consisting of all claims

for declaratory relief and BISD’s claim seeking to have the court approve the

November election, were claims that neither party raised for the purpose of the

September hearing. Additionally, the parties’ claims for declaratory relief and

BISD’s request asking the court to approve the November election were not

matters the court had scheduled for trial. During the September hearing, BISD’s

attorney specifically objected to the trial court proceeding on any claims other than

the putative trustees’ request for injunctive and declaratory relief, stating: “[W]e

                                         5
have not been provided 45 days for a final trial on the merits. So, we would object

to hearing the case on the merits.”

      Approximately one week after the trial court heard the putative trustees’

claims for injunctive and mandamus relief, the trial court signed an order denying

relief. Nevertheless, the trial court’s findings and conclusions went further,

addressing and resolving the majority, if not all, of the claims for declaratory relief,

as well as BISD’s request asking the court to approve the November election.

      The putative trustees timely perfected an accelerated appeal and filed a

petition for writ of mandamus seeking to compel the Board and its officers to use

Map 7b with respect to the scheduled November 5 election, or to require that the

Board declare the putative trustees elected to office. See Tex. Civ. Prac. & Rem.

Code Ann. § 51.014(a)(4) (West Supp. 2012) (providing accelerated interlocutory

appeal for decisions that address injunctions); Tex. Elec. Code Ann. § 273.061

(West 2010) (providing mandamus authority to compel the performance of any

duty imposed by law in connection with the holding of an election). We

consolidated the matters to review the putative trustees’ claims.




                                           6
                                        Discussion

      Although we have previously considered matters related to the May 2013

BISD trustee election, 4 this is our first occasion to consider BISD’s election order

requiring an election in November 2013, and to consider how the United States

Supreme Court’s decision in Shelby County, decided approximately three months

after we decided issues arising from BISD’s order concerning a May 2013 trustee

election, affects the November 2013 trustee election. BISD issued the election

order for the November election in August 2013, ordering a general election with

respect to the positions of three of the Board’s seven trustees. The November

election has been planned using Map 7i, an election map adopted by the Board of

Trustees in May 2013. 5 Map 7i calls for an election plan to elect BISD’s seven

      4
         In re Rodriguez, 397 S.W.3d 817 (Tex. App.—Beaumont 2013, orig.
proceeding) (Rodriguez I), subsequent proceeding at No. 09-13-00115-CV,
___S.W.3d ___, 2013 Tex. App. LEXIS 9586 (Tex. App.—Beaumont, Aug. 1,
2013, orig. proceeding) (Rodriguez II); see also In re Neil, No. 09-13-00144-CV,
2013 Tex. App. LEXIS 4047 (Tex. App.—Beaumont Mar. 28, 2013, orig.
proceeding) (mem. op.) (Neil I), subsequent opinion at 2013 Tex. App. LEXIS
9585 (Tex. App.—Aug. 1, 2013, orig. proceeding) (mem. op.) (Neil II); In re
Jones, No. 09-13-00107-CV, 2013 Tex. App. LEXIS 2857 (Tex. App.—Beaumont
Mar. 18, 2013, orig. proceeding) (mem. op.).
       5
         In August 2012, the Board adopted a redistricting map for the 2013 board
of trustee elections calling for the election of trustees from five single-member
election districts and two at-large election districts, a 5-2 plan. BISD submitted the
map to the Department of Justice for preclearance; but, in December 2012, the
Department of Justice objected to BISD’s request for preclearance of the proposed
5-2 election map. BISD has never issued an order calling for an election under a 5-
                                          7
trustees from seven single-member districts, and Map 7i depicts the election

boundaries for the seven trustee positions. The election order now at issue calls for

a November 2013 election in trustee districts four, six, and seven.

      Although BISD voters passed a proposition to elect BISD trustees under a 5-

2 plan in 2011, and BISD presented a 5-2 map to obtain preclearance for a 5-2

election map, litigation subsequently arose concerning the election map that BISD

had proposed to use for its next regular general election of trustees; under federal

law that still applied in May 2013, the May 2013 election was enjoined by the

federal court exercising jurisdiction over BISD’s preclearance litigation.

Ultimately, in August 2013, after a May election was no longer possible, the

United States District Court for the District of Columbia Division dismissed

BISD’s preclearance litigation, following the United States Supreme Court’s

decision in Shelby County.

      In dismissing BISD’s preclearance litigation, the federal court exercising

jurisdiction over BISD’s preclearance case issued an order that states the

rescheduling of BISD’s trustee election “is a matter of Texas election law, which



2 plan, but the Attorney General made no determination with regard to Map 5f, and
no federal court has decided whether the 5-2 map that BISD originally proposed,
or any 5-2 map, violates the provisions of any of the various sections of the Voting
Rights Act, including section two.
                                          8
appears to have sufficient resources to resolve the matter without this court’s

involvement.” Moreover, while the parties were before the federal court, that court

declined a request to use its authority under the Voting Rights Act to enter an order

relieving BISD of various requirements that are found in governing Texas statutes

regulating BISD’s next trustee election. Under section 11.052(e) of the Texas

Education Code, when the voters of a school district have passed a proposition

requiring that trustees of a district be elected in a specific manner, the “trustees of

the district shall be elected in the manner prescribed by the approved

proposition[,]” beginning with the next regular election of trustees. See Tex. Educ.

Code Ann. § 11.052(e) (emphasis added).

      Both parties asked the 172nd District Court to solve a problem that resulted

from the federal court’s imposing preclearance requirements on an election

authorized by a statute whose preclearance requirements have now been rendered

unenforceable as a collateral consequence of the Supreme Court’s decision in

Shelby County. Nevertheless, the parties asked the trial court to impose voting

plans that call for trustees to be elected under plans that do not include two at-large

districts. The plans proposed by both BISD and the putative trustees are each

inconsistent with the 5-2 manner of electing trustees adopted by BISD’s voters. See

Tex. Educ. Code Ann. § 11.052(e). To further compound the problem, the 172nd

                                          9
District Court abused its discretion by looking to federal law that no longer

provides the guiding rules for the election of school trustees and by failing to

properly apply State law in deciding whether to grant the putative trustees’

requests for relief, reasoning that federal law prevented it from enforcing the

Legislature’s mandate in the Education Code regarding the requirement that

BISD’s next regular election be conducted using a 5-2 plan.

      The putative trustees, in connection with their request for injunctive relief,

asked the trial court to require the Board to seat them as trustees under the election

order calling for the May 2013 election or to require the Board to conduct the

November election using the election map, Map 7b, which the Board had approved

using in the May 2013 election. We review a trial court’s ruling on a temporary

injunction case using a standard of abuse of discretion. Butnaru v. Ford Motor Co.,

84 S.W.3d 198, 204 (Tex. 2002). An abuse of discretion occurs when a trial court

acts in an unreasonable or arbitrary manner. See Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). “The test for abuse of

discretion is whether the trial court acted without reference to any guiding rules or

principles.” E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549,

558 (Tex. 1995).




                                         10
      Although BISD’s preclearance case was dismissed for lack of jurisdiction, it

appears the trial court looked to federal law and not State law for the controlling

rules and principles in resolving the issues that were before it. Here, in reaching its

conclusions, the trial court assessed which of the various maps, the one proposed

by the putative trustees, the one BISD selected for the November election, or a 5-2

map, were likely to be the subject of future claims arising under the Voting Rights

Act. However, under the Voting Rights Act, Congress gave federal courts

jurisdiction to address the enforcement of the Act; it did not give state courts

jurisdiction over Voting Rights Act claims. See 42 U.S.C.S. §§ 1973a(a);

1973b(a)(5); 1973c(a); 1973h(c); 1973j(d), (f); 1973aa. Nevertheless, the trial

court’s order relies heavily on its view that it was tasked to apply what remains of

the Voting Rights Act in the wake of the Court’s decision in Shelby County.

      The trial court’s initial error in deciding that federal law provided the

controlling principles caused it to erroneously conclude that BISD could be

excused from applying various State law requirements that control BISD’s trustee

election. In reviewing the putative trustees’ claims that BISD had abused its

discretion in ordering a November 2013 election, the trial court disregarded that

State law required the election to occur under a 5-2 plan, and it also overlooked the

Education Code’s provision that requires—in BISD’s case—that it conduct its

                                          11
trustee elections jointly with either the City or with the State and County elections

on uniform election dates (absent a court order ordering the election on another

date). No court order existed when BISD ordered the November election, and the

trial court’s findings fail to take note that BISD was not authorized to order an

election to occur on dates outside the dates provided by State law. Nonetheless,

despite the fact that no court order was in place when BISD issued its election

order for the November election, the trial court’s order then refers to the November

election as “appropriate and justified[,]” and characterizes BISD’s conduct in

scheduling the election as proper. See Tex. Educ. Code Ann. § 11.0581 (West

2012) (mandating that school trustee elections be conducted in a joint election with

either city elections or general elections for State and county officers).

      With respect to a November 2013 election, the Education Code provision

that governs trustee elections for independent school districts does not provide that

an election of school trustees can occur in November of odd-numbered years when

no City or State and County officials are being elected; consequently, BISD’s order

calling for a November 2013 trustee election orders the election to occur on a date

the Legislature has not authorized for trustee elections to occur. 6 See id. (requiring

      6
       While it is clear that a court, acting under section 41.001(b)(3) of the
Election Code, has some ability to provide a political entity with alternate dates for
an election, BISD did not file suit seeking to have a trial court order an election;
                                          12
joint elections); see also Tex. Elec. Code Ann. §§ 41.001(a) (West Supp. 2012)

(establishing uniform election dates), 41.004 (West 2010) (requiring special

election to be held on uniform election date), 41.008 (West 2010) (an election held

on a date not permitted by subchapter 41A is void).

      The putative trustees, like the trial court, have also not properly considered

the consequences of the federal court’s dismissal of BISD’s preclearance case or

that court’s instruction to resolve questions regarding BISD’s upcoming trustee

election as a matter of State law. Like the November election, the order calling for

the May election on which the putative trustees focus is also a creature of federal

preclearance requirements—that election was also to occur using a map that

included no at-large districts, a consequence of objections lodged by the



instead, BISD ordered the election and has asked the trial court for permission to
go forward on the date that it already selected. See Tex. Elec. Code Ann. §
41.001(b)(3) (West Supp. 2012). While the November date BISD has chosen is a
uniform election date, it is not a date that a joint election with City or State and
County officials is being conducted, a separate requirement that applies to school
trustee elections under the Education Code. See Tex. Educ. Code Ann. § 11.0581
(West 2012). It is not clear whether a trial court, acting under section 41.001(b)(3)
of the Election Code, has the discretion to order an election on a date when the
election cannot be conducted in conjunction with the election of City or State and
County officials. See Tex. Elec. Code Ann. § 41.001. Nevertheless, that issue has
not been briefed by the parties, and we need not resolve that potential issue
because BISD also violated the Education Code’s requirements by ordering an
election that includes no at-large districts contrary to a proposition approved by
voters since BISD’s last trustee election.
                                         13
Department of Justice under preclearance proceedings that have since been

dismissed.

      Nevertheless, the putative trustees maintain they have rights under BISD’s

order calling for the May election. According to the putative trustees, BISD did not

have the authority to cancel the order calling for the May 2013 election. See Tex.

Elec. Code Ann. § 2.082 (West 2010) (“An authority that orders an election may

cancel the election only if the power to cancel the election is specifically provided

by statute.”). Although the putative trustees acknowledge the May election was

enjoined by the federal court exercising jurisdiction over BISD’s preclearance

case, they contend the May election order should now be enforced. But, due to the

federal court’s injunction, the May election never occurred.

      After the May election was enjoined, BISD continued to negotiate for

preclearance, ultimately seeking preclearance on a map that would have allowed, if

approved by the federal court, an election in a manner contrary to the 5-2 plan that

had been approved by BISD’s voters. Nonetheless, under the Voting Rights Act,

the federal preclearance court could have approved BISD’s election of trustees in a

manner inconsistent with State law. It never did so. While the single-member

district maps at issue in the trial court are both creatures of federal statutory

preclearance requirements that existed prior to the proceedings now at issue, both

                                         14
BISD and the putative trustees have failed to recognize that after Shelby County

issued, they were operating in a new landscape.

      Given the relatively short time period the parties have had to react to the

decision in Shelby County, confusion concerning the impact of Shelby County on

the scheduled November election is understandable. For instance, in each of our

prior opinions, all of which pre-date Shelby County, we incorrectly assumed that

the federal court would ultimately act on BISD’s preclearance request, hear the

parties’ Voting Rights Act arguments on their merits, and exercise the authority

granted by Congress to approve an election map and an election on an alternate

date, even if State law provided otherwise. 7 But, our assumption that BISD would

achieve preclearance proved incorrect; and, the United States Supreme Court’s

decision in Shelby County, together with the dismissal of BISD’s preclearance

request for lack of jurisdiction, prevent the putative trustees, BISD, and the trial

court from using federal preclearance requirements to excuse BISD’s failure to

comply with State statutes, as they now provide the guiding rules that govern

BISD’s next trustee election. See Shelby Cnty., 133 S.Ct. at 2631.




      7
      See Rodriguez I, 397 S.W.3d at 822; Neil I, 2013 Tex. App. LEXIS 4047, at
*2, Rodriguez II, 2013 Tex. App. LEXIS 9586, at *7; Neil II, 2013 Tex. App.
LEXIS 9585, at *2; Jones, 2013 Tex. App. LEXIS 2857, at **2-3.
                                        15
      While the putative trustees argue that BISD could not legally cancel the May

election order, we conclude that order was rendered moot by the injunctive relief

granted by the federal court hearing BISD’s preclearance request. We further

conclude that the putative trustees, who were never seated as elected trustees,

gained no rights to have the election order calling for the May 2013 election

enforced, nor did the putative trustees gain any right to be seated as trustees by

virtue of the moot election order. BISD’s trustees do not have a duty to implement

a moot order; consequently, the relators have not shown they are entitled to

mandamus relief from this Court. See Tex. Elec. Code Ann. § 273.061.

      In an effort to avoid the statutory limits that exist on a court in approving its

November election order, BISD argues that it has sovereign authority to schedule

an election. The trial court agreed, citing cases that do not support its ruling. See

Yett v. Cook, 281 S.W. 837 (Tex. 1926); Castillo v. State ex. rel. Saenz, 404

S.W.2d 97, 97-98 (Tex. Civ. App.—San Antonio 1966, no writ). In Yett, the City

of Austin amended its city charter to change its form of government, but called for

an election too soon to enable election officials to comply with then-existing

election law concerning poll tax lists. 281 S.W. at 838-39. The Texas Supreme

Court held the provision of the charter that required the election to be held on an

impossible date was void. 281 S.W. at 838-39. The court reasoned the import of

                                         16
the legislation was that the election be held, not the date of the election; although it

was impossible to conduct an election on the date stated in the city’s charter for the

initial special election, that did not mean no election could ever be held. Id. at 839-

40. Relying on a provision in the charter that allowed the city council to take

corrective action to correct deficiencies, the court held the council had the

authority to conform its election date to the general election law, and that it could

be required to do so through mandamus. Id. at 843. Yett does not support BISD’s

assertion that it possesses extra-statutory authority to call for an election where that

election would violate other mandatory statutory provisions that apply to a trustee

election that is required to be conducted in a certain manner based on a proposition

passed by a school district’s voters.

      Castillo also does not support the proposition that political subdivisions

possess extra-statutory authority to order elections under circumstances that violate

State law. 404 S.W.2d at 97. In Castillo, a city was newly-incorporated on March

30th; at their first meeting on April 5, the initial commissioners set the first

election for June 5. Id. at 98. Without notice or order for election, a different

political faction conducted an election on the regular election date, April 6, and

several members of that faction were elected commissioners. Id. Subsequently, in a

quo warranto proceeding to determine who had the right to be seated as

                                          17
commissioners, the trial court ousted the commissioners who prevailed in the June

election and installed the commissioners elected in the April 6 election. Id. On

appeal, the court reasoned that the city’s recent incorporation made it impossible to

conduct the city’s initial election on the regular election day, and declared the

April 6 election void. Id. at 99. The court reasoned that the time and the place for

elections are generally held to be of the essence with respect to an election, but

where it was impossible to hold an election at the time and in the manner

prescribed by the Election Code, and where the only other alternative would be to

never hold the election, the election should be held within a reasonable time. 8 Id.

Thus, Castillo does not concern whether a court may authorize relief regarding

school board elections that violate mandatory provisions in the Education Code, an

issue the trial court resolved during the hearing now on appeal, nor did Castillo

address a court being asked to approve an election before the election occurred.

Instead, Castillo addresses the effect of elections that were conducted after the

elections had occurred.

      The preclearance court also never issued an order authorizing BISD to

conduct the election using Map 7i, a single-member district map, even though that

      8
       We note that the current version of the Election Code provides for a city to
change the date of its general election to another authorized uniform date. See Tex.
Elec. Code Ann. § 41.0052 (West Supp. 2012).
                                         18
court was asked to do so before it dismissed BISD’s preclearance case. Before the

Supreme Court decided Shelby County, BISD and the Department of Justice filed a

motion in federal court seeking approval for a November 5 election date utilizing

Map 7i, a seven single-member district plan. The federal court did not act before

the Supreme Court invalidated the formulas used under the Voting Rights Act to

determine which jurisdictions were subject to preclearance requirements. Shelby

Cnty., 133 S.Ct. at 2631. In overturning section 4(b) of the Voting Rights Act, the

Supreme Court noted that the coverage formula was reenacted by Congress “based

on 40-year-old facts having no logical relation to the present day.” Id. at 2629.

      Whether the Justice Department utilized these same formulas in formulating

its preclearance decisions is not apparent; but, because the Supreme Court

overturned the Voting Rights Act’s preclearance requirements, the Justice

Department is now required to prove, not just object, that the election map is

racially discriminatory should it choose to file a future claim regarding any

particular 5-2 plan BISD might decide to adopt. See 42 U.S.C.S. § 1973. Since the

Department of Justice will have the burden of proving any claim that all 5-2 plans

BISD might adopt would be discriminatory on the basis of race in a district where

the demographics reflect that the district’s largest single racial group is comprised

of persons of African-American descent, we cannot know or predict whether the

                                         19
federal government will even attempt to interrupt BISD’s future elections under a

hypothetical 5-2 plan. Nevertheless, we do not intend to suggest that BISD cannot

obtain state court approval to conduct a legal election. Nor are we suggesting to

BISD that it adopt a particular election map, except that the map BISD adopts for

its now-delayed regular trustee election must, by State law, allow for the election

of trustees from two at-large districts to carry out the proposition passed by BISD’s

voters regarding the manner of electing BISD’s trustees. See Tex. Const. Art. II, §

1; Tex. Educ. Code Ann. § 11.052(e).

      When BISD was unable to conduct its trustee election in May, it was on

notice that it needed court approval to conduct the election now at issue. Having

been denied that permission in federal court, BISD should have requested that the

172nd District Court order a legal election under the requirements of State law. It

did not; instead, it asked the trial court to approve an election under a map that fails

to include two at-large districts. Moreover, in ruling on the putative trustees’

request for injunctive relief, the trial court should not have made what appear to be

final decisions on disputed facts, as the purpose of a temporary injunction “is to

preserve the status quo of the litigation’s subject matter pending a trial on the

merits.” Butnaru, 84 S.W.3d at 204. Because the only question before the trial

court in a temporary injunction hearing is whether the applicant is entitled to

                                          20
preserve the status quo pending trial on the merits, a trial court errs if it grants

permanent relief in an injunctive order. See Elliott v. Lewis, 792 S.W.2d 853, 854

(Tex. App.—Dallas 1990, no writ). In our opinion, although the trial court’s order

states that the court is denying injunctive relief, the order goes far beyond

preserving the status quo. A trial court cannot, by the use of the power delegated

by the Legislature to order alternate election dates, approve an election that

violates the mandatory requirements for elections of trustees established by the

Legislature. By issuing an order approving BISD’s planned November election, the

trial court reached beyond the matters necessary for its decision to deny the

putative trustees’ requests for relief.

        While BISD has also argued that it remains subject to electing trustees in

single-member districts under the requirements of an order rendered by the United

States District Court for the Eastern District of Texas in 1985, and the trial court

relied on that 1985 order in concluding that federal requirements prevented it from

approving an election under a 5-2 plan, the 1985 order does not control BISD’s

elections. The order, introduced during the hearing, provides that “[a]ll

modifications of the adopted plan are hereby enjoined until receipt of the 1990

Federal census data[.]” There is no indication in the record showing that BISD ever

returned to the United States District Court for the Eastern District of Texas after

                                          21
the 1990 census. By its express terms, the 1985 order expired following BISD’s

receipt of the 1990 census.

      Although we disagree with the trial court’s decision to issue findings that

relate to a determination about claims of discrimination that have not yet been

made by the Department of Justice and may never be made in the aftermath of

Shelby County, we are nevertheless inclined to agree that the trial court did not

abuse its discretion in denying the putative trustees’ the relief they requested by

writ of mandamus or their request for injunctive relief. See generally Robinson v.

Parker, 353 S.W.3d 753, 756 (Tex. 2011) (instructing courts to avoid “‘advising

what the law would be on a hypothetical set of facts’”) (quoting Patterson v.

Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 444 (Tex.

1998)); see also McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 232 (Tex.

2001) (discussing advisory opinions).

      In our opinion, the putative trustees were not entitled to be installed as

trustees under BISD’s order for the May election because subsequent events

rendered that election moot: the federal injunction that prevented the election from

occurring as well as the United States Supreme Court’s decision in Shelby County.

See generally In re Uresti, 377 S.W.3d 696, 696 (Tex. 2012); Bd. of Tr. of

Georgetown Indep. Sch. Dist. v. Kreger, 369 S.W.2d 916, 917 (Tex. 1963)

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(concluding that the federal desegregation order mooted dispute over expenditure

of funds for segregated facilities). Regardless, Texas law does not allow a trial

court to enjoin an election ordered by a co-equal branch of government, even if

that election is subject to being later determined that it was conducted in violation

of Texas law. See Blum v. Lanier, 997 S.W.2d 259, 263 & n.6 (Tex. 1999); see

also City of Dallas v. Dallas Consol. Elec. St. Ry. Co., 148 S.W. 292, 294 (Tex.

1912). Nevertheless, the matters relating to the parties’ respective declaratory

judgment claims were not properly before the trial court during the hearing at

issue, and the trial court abused its discretion in reaching the merits of claims that

were not properly before it at the hearing.

                                     Conclusion

      The real parties in interest do not have a mandatory duty to declare the

relators to be unopposed in the November 2013 election or to require the Board to

implement Map 7b in the November 2013 election; accordingly, the petition for

writ of mandamus is denied. The trial court’s order and its findings on the motion

for temporary injunction are reversed, and the matter is remanded to the trial court

for further proceedings consistent with this Court’s Opinion.




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      REVERSED AND REMANDED; PETITION DENIED.




                                     ________________________________
                                                HOLLIS HORTON
                                                     Justice




Submitted on October 10, 2013
Opinion Delivered October 17, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.




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