In re Hendee

Full title: In re Edd Hendee, Individually and as Executive Director of C.L.O.U.T

Court: Court of Appeals of Texas, Third District, Austin

Date published: Aug 27, 2007

No. 03-07-00490-CV (Tex. App. Aug. 27, 2007)

Opinion

No. 03-07-00490-CV

Delivered: August 27, 2007.

Original Proceeding from Travis County.

Before Chief Justice Law, Justices Pemberton and Waldrop.

MEMORANDUM OPINION

BOB PEMBERTON, Justice.

Following our partial remand of the underlying proceedings to the district court,¹ Plaintiffs amended their petition. The State Defendants filed a second plea to the jurisdiction, which the district court partially sustained and partially denied on August 14, 2007. The State Defendants immediately filed an interlocutory appeal under section 51.014(a)(8), civil practice and remedies code,² and filed a "Notice of Automatic Stay" in the district court stating that they were entitled to the automatic stay of trial court proceedings under section 51.014(b). Plaintiffs filed an "Emergency Objection to State Defendants' Notice of Automatic Stay and Request for Reinstatement of Hearing Date on Plaintiffs' Request for Temporary Injunctive Relief." On August 21, the district court denied this relief, finding that "the automatic stay provisions of Tex. Civ. Prac. Rem. Code § 51.0[1]4 do apply under the facts of the instant case."

1 See Hendee v. Dewhurst, No. 03-06-00501-CV, 2007 Tex. App. LEXIS 4149, ___ S.W.3d ___ (Tex.App.-Austin May 25, 2007, pet. denied).

2 Dewhurst v. Hendee, No. 03-07-00462-CV (Tex.App.-Austin, notice of appeal filed Aug. 15, 2007).

On August 23, Plaintiffs filed a petition for writ of mandamus seeking relief from the district court's August 21 order. Specifically, Plaintiffs request that we (1) find that the automatic stay provisions do not apply under the facts of the instant case, (2) "restore the original date of hearing on the plaintiffs' request for temporary injunctive relief," and (3) award attorney's fees to Plaintiffs as sanctions. We requested a response from the State Defendants, which was filed today. On this record, we conditionally grant Plaintiffs' petition for writ of mandamus to the extent of holding that the automatic stay provisions of section 51.014(b) do not apply during the pendency of the State Defendants' pending interlocutory appeal. All other requested relief is denied.