Robert Wayne Mitchell v. Bryan Collier in His Official Capacity as Executive Director of the Texas Department of Criminal Justice

ACCEPTED 15-24-00033-cv FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 2/10/2025 4:23 PM Cause No. 15–24–00033–CV CHRISTOPHER A. PRINE CLERK In the Court of Appeals 15th COURT FILED IN OF APPEALS for the Fifteenth Judicial District AUSTIN, TEXAS 2/10/2025 4:23:45 PM Austin, Texas CHRISTOPHER A. PRINE Clerk

Robert Wayne Mitchell, Plaintiff-Appellant, v. Bryan Collier in his Official Capacity as Executive Director of the Texas Department of Criminal Justice, Defendant-Appellee.

On Appeal from the 298th District Court of Dallas County, Texas Trial Court Cause No. DC–23–04417 Appellee’s Suggestion of Death Ken Paxton Vishal V. Iyer* Attorney General of Texas Texas Bar No. 24106134 Assistant Attorney General Brent Webster Law Enforcement Defense First Assistant Attorney General Division Office of the Attorney General Ralph Molina P.O. Box 12548 Deputy First Assistant Attorney General Austin, Texas 78711–2548 p: (512) 463–4451 James Lloyd f: (512) 370–9814 Deputy Attorney General of Civil Litigation e: [email protected] Shanna E. Molinare *Attorney-in-Charge Division Chief Law Enforcement Defense Division Counsel for Bryan Collier Identity of Parties and Counsel

Plaintiff-Appellant 1. Robert Wayne Mitchell Plaintiff-Appellant 2. Taj A. Warren Texas Bar No. 24060802 N. St. Paul St., Ste. 3100 Dallas, Texas 75201 p: (214) 206–1225 f: (214) 206–1226 e: [email protected] Counsel for Plaintiff-Appellant Defendant-Appellee 3. Bryan Collier Defendant-Appellee 4. Vishal V. Iyer Texas Bar No. 24106134 Assistant Attorney General Law Enforcement Defense Division Office of the Attorney General P.O. Box 12548 Austin, Texas 78711–2548 p: (512) 463–4451 f: (512) 370–9814 e: [email protected] Counsel for Defendant-Appellee

Page i Table of Contents

Identity of Parties and Counsel i Table of Contents ii Exhibit List iii Table of Authorities iv Appellee’s Suggestion of Death 1 I. Statement of the Case 1 II. Standard of Review 2 A. Suggestion of Death 2 III. Argument 3 A. The appeal should be dismissed as moot because Mitchell died during the appeal period, and this action does not affect Mitchell’s property rights. 3 IV. Prayer 4 Certificate of Conference 6 Certificate of Service 6 Certificate of Compliance 7 Exhibit A: Death of Appellant 8

Page ii Exhibit List

Exhibit Title of Document Pages A Death of Appellant: 8–13 • Cause of Death Report of Appellant • Obituary of Appellant

Page iii Table of Authorities

Case Law Pages Collier v. Mitchell, 2 No. DC–23–04417, 2024 WL 2827610 (Tex. App.—Dallas June 4, 2024, no pet.)

In re J.R.B., 2–3 698 S.W.3d 603 (Tex. App.—Waco 2024, no pet.)

Murphy v. Murphy, 2 21 S.W.3d 797 (Tex. App.—Houston [1st Dist.] 2000, no pet.)

Olson v. Comm’n for Lawyer Discipline, 3–4 901 S.W.2d 520 (Tex. App.—El Paso 1995, no writ) Pirate’s Lake, Ltd. v. Vestin Realty Mortg. I, Inc., 3 No. 14–08–00085–CV, 2008 WL 3833618 (Tex. App.—Houston [14th Dist.] Aug. 12, 2008, no pet.)

Rules Tex. R. App. P. 7.1(a)(1) 2

Page iv Cause No. 15–24–00033–CV In the Court of Appeals for the Fifteenth Judicial District Austin, Texas Robert Wayne Mitchell, Plaintiff-Appellant, v. Bryan Collier in his Official Capacity as Executive Director of the Texas Department of Criminal Justice, Defendant-Appellee.

On Appeal from the 298th District Court of Dallas County, Texas Trial Court Cause No. DC–23–04417 Appellee’s Suggestion of Death Defendant-Appellee Bryan Collier (“Collier”) moves to dismiss the appeal as moot because Plaintiff-Appellant Robert Wayne Mitchell (“Mitchell”) has died during the appeal period, and this action does not affect Mitchell’s property rights.

I. Statement of the Case On April 6, 2023, Mitchell filed his original petition. (C.R.6, 12–18). On July 31, 2023, Mitchell moved for a temporary restraining order (“TRO”); the trial court granted the motion on August 21, 2023. (C.R.7, 105–06). On August 18, 2023, Mitchell filed his first amended petition. (C.R.7–8, 87–94). On September 5, 2023, Mitchell moved for a temporary injunction; the trial court granted the motion on

Page 1 September 26, 2023. (C.R.8–9, 147–49). On September 25, 2023, Collier filed his original answer and jury demand. (C.R.9, 141–46). On October 10, 2023, Collier filed a notice of appeal regarding the TRO; the Fifth Court of Appeals vacated the TRO and dismissed the appeal as moot on June 4, 2024. Collier v. Mitchell, No. DC–23–04417, 2024 WL 2827610, *1 (Tex. App.—Dallas June 4, 2024, no pet.); (C.R.9). On February 12, 2024, Collier filed a plea to the jurisdiction; the trial court granted the plea on April 25, 2024, and dismissed the case. (C.R.9, 150–452). On May 24, 2024, Mitchell filed his notice of appeal. (C.R.10, 466–68).

II. Standard of Review A. Suggestion of Death “Generally, ‘if a party to a civil case dies after the trial court renders judgment but before the case has been finally disposed of on appeal, the appeal may be perfected, and the appellate court will proceed to adjudicate the appeal as if all parties were alive.’” In re J.R.B., 698 S.W.3d 603, 604 (Tex. App.—Waco 2024, no pet.) (quoting Tex. R. App. P. 7.1(a)(1)); see also Murphy v. Murphy, 21 S.W.3d 797, 798 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (holding that “case law under [former] rules 9 and 369a is also applicable to current rule 7”). “However, Rule 7.1 does not dispense with the requirement of an existing actual controversy and generally an appeal will be allowed to proceed on the death of a party only if the judgment affects the parties’ property rights as opposed to purely personal rights.”

Page 2 J.R.B., 698 S.W.3d at 604 (quotation omitted). “A party’s death moots an appeal to the extent the appellate court’s action on the merits could affect personal rights, but not to the extent the court’s action on the merits could affect property rights.” Id. “When there has ceased to be a controversy between the litigating parties due to events occurring after judgment has been rendered by the trial court, the decision of an appellate court would be a mere academic exercise and the court may not decide the appeal.” Olson v. Comm’n for Lawyer Discipline, 901 S.W.2d 520, 522 (Tex. App.—El Paso 1995, no writ ) (collecting cases). “In that situation, the appellate court is required to vacate the judgment of the trial court and dismiss the underlying cause of action.” Pirate’s Lake, Ltd. v. Vestin Realty Mortg. I, Inc., No. 14–08–00085–CV, 2008 WL 3833618, *2 (Tex. App.—Houston [14th Dist.] Aug.

12, 2008, no pet.) (collecting cases).

III. Argument A. The appeal should be dismissed as moot because Mitchell died during the appeal period, and this action does not affect Mitchell’s property rights.

Collier has reason to believe that Mitchell died during the appeal period on September 18, 2024. (Exh. A, Death of Appellant, at 9–13); (C.R.9–10, 466–68).

In this action, Mitchell seeks only declaratory and injunctive relief invalidating his current parole period and commanding his immediate release. (C.R.93). In other words, this action affects only Mitchell’s purely personal rights, and his death moots

Page 3 the appeal. See Olson, 901 S.W.2d at 523–25 (holding that appellant’s death mooted appeal of trial court’s judgment suspending his law license); Black v. Black, 673 S.W.2d 269, 270 (Tex. App.—Texarkana 1984, no writ) (holding that appellant’s death mooted appeal of trial court’s judgment awarding appellee child custody).

Mitchell “cites no authority for his claim that this award may be enforced [by] his estate,” and undersigned counsel is likewise unaware of any supporting authority.

See Olson, 901 S.W.2d at 525. Thus, the appeal should be dismissed as moot because Mitchell died during the appeal period, and this action does not affect Mitchell’s property rights.

IV. Prayer Therefore, the appeal should be dismissed as moot.

Page 4 Respectfully submitted,

Ken Paxton Attorney General of Texas Brent Webster First Assistant Attorney General Ralph Molina Deputy First Assistant Attorney General James Lloyd Deputy Attorney General for Civil Litigation Shanna E. Molinare Division Chief Law Enforcement Defense Division

February 10, 2025 /s/ Vishal V. Iyer Vishal V. Iyer Texas Bar No. 24106134 Assistant Attorney General Law Enforcement Defense Division Office of the Attorney General P.O. Box 12548 Austin, Texas 78711–2548 p: (512) 463–4451 f: (512) 370–9814 e: [email protected] Counsel for Defendant- Appellee Page 5 Certificate of Conference

I certify that on February 10, 2025, I emailed Taj Warren, counsel for Plaintiff-Appellant, regarding his position on this suggestion of death. As of the date this suggestion was signed, Mr. Warren had failed to respond. Thus, Mr. Warren’s position on this suggestion is unclear.

February 10, 2025 /s/ Vishal V. Iyer Vishal V. Iyer Assistant Attorney General

Certificate of Service

I certify that I served this document, and any attached pages, to counsel for Plaintiff-Appellant, electronically through the electronic filing manager, on the date below. Tex. R. App. P. 9.5(a)–(b)(1).

February 10, 2025 /s/ Vishal V. Iyer Vishal V. Iyer Assistant Attorney General

Page 6 Certificate of Compliance

I certify that this document, excluding the parts of the document excepted by rule, contains 788 words, as counted by the word count of the computer program used to prepare the document. Tex. R. App. P. 9.4(i)(3).

February 10, 2025 /s/ Vishal V. Iyer Vishal V. Iyer Assistant Attorney General

Page 7 Cause No. 15–24–00033–CV In the Court of Appeals for the Fifteenth Judicial District Austin, Texas Robert Wayne Mitchell, Plaintiff-Appellant, v. Bryan Collier in his Official Capacity as Executive Director of the Texas Department of Criminal Justice, Defendant-Appellee.

On Appeal from the 298th District Court of Dallas County, Texas Trial Court Cause No. DC–23–04417 Exhibit A: Death of Appellant

Page 8 Automated Certificate of eService This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

James Rheams on behalf of Vishal Iyer Bar No. 24106134 [email protected] Envelope ID: 97200247 Filing Code Description: Other Document Filing Description: Appellee's Suggestion of Death Status as of 2/10/2025 4:31 PM CST Associated Case Party: Bryan Collier Name BarNumber Email TimestampSubmitted Status James Rheams [email protected] 2/10/2025 4:23:45 PM SENT Vishal Iyer [email protected] 2/10/2025 4:23:45 PM SENT