Opinion
No. 08-20-00188-CV
02-23-2021
IN RE ALAMO DEFENDERS DESCENDANTS ASSOCIATION and Lee White, Individually, Relators.
OPINION
This is an original proceeding for a writ of injunction ancillary to a pending appeal, coupled with a motion for emergency relief. We will deny both the motion for emergency relief and the writ of injunction without prejudice to refiling.
I. BACKGROUND
A. The Ancillary Appeal
The Alamo Defenders Descendants Association and Lee White, Relators, are the Appellants in an appeal styled Alamo Defenders Association and Lee White, Individually v. Texas Historical Commission et al. , that is pending in this Court under Cause No. 08-20-00172-CV.
We take judicial notice both of the case file for the ancillary appeal and of the public proceedings before the Texas Historical Commission. See In re Estate of Hemsley , 460 S.W.3d 629, 638 (Tex.App.--El Paso 2014, pet. denied).
The lawsuit at the heart of the ancillary appeal concerns the Alamo historical site in San Antonio and an ongoing renovation and construction project taking place both within the Alamo site's outer walls and in the plaza adjacent to the Alamo. This project is known as The Alamo Plan. As is relevant to the ancillary appeal and this original proceeding, the Plan involves (1) bringing land down to a certain grade for construction purposes, and (2) moving a monument on Alamo grounds known as the Cenotaph to a separate nearby location. Real parties in interest--the Texas Historical Commission (and its executive director in his official capacity), the Texas General Land Office (and its commissioner in his official capacity), and the Alamo Trust, Inc. (and its CEO in his official capacity)--each either directly administer or otherwise regulate part of the Alamo Plan.
The Association is a nonprofit entity consisting of direct or lateral descendants of "Alamo defenders," a class of persons which includes the soldiers, couriers, scouts, and non-combatants who were present inside the Alamo during its 1836 siege. White is the president of the Association and is a direct lineal descendant of Gordon C. Jennings, who was present at the Battle of the Alamo. The Association and White sued for injunctive and declaratory relief seeking to stop construction on the Project, contending generally that (1) the Defendants were violating provisions of the Texas Health & Safety Code because the grounds contain a historically documented mission cemetery predating the Alamo as well as the physical remains of the Association members' ancestors, and (2) the Cenotaph could not be moved from its current site because it was protected by the Antiquities Code of Texas.
We will refer to the plaintiffs/relators collectively as "the Association" unless context requires us to distinguish between them.
The trial court granted a plea to the jurisdiction disposing of all parties and claims on April 22, 2020. After filing a motion for a new trial, the Association filed a notice of appeal on July 20, 2020. The appeal was originally docketed before the Third Court of Appeals in Austin before being transferred to this Court under the Texas Supreme Court's docket equalization order. As of this date, the appeal remains pending.
B. Emergency Proceedings Before This Court
On September 22, 2020 at 8 a.m. Mountain Daylight Time/9 a.m. Central Daylight Time, the Texas Historical Commission began a lengthy meeting which included an agenda item to consider whether to issue a permit allowing the Cenotaph to be moved from its current location. That same day at 3:47 p.m. MDT/4:47 p.m. CDT, and prior to the Texas Historical Commission's vote on the agenda item, the Association filed a motion for emergency relief and a petition for a writ of injunction in this Court, which generated this original proceeding. In the joint motion/petition, the Association noted that in August 2019, human remains were found during activity on the Alamo site and argued that "allowing the human remains to be reburied, moved or destroyed and to allow the Cenotaph to be moved before resolution of the appeal would render the appeal moot."
The Texas Historical Commission, however, voted on September 22nd to reject the permit request to move the Cenotaph by a vote of 12-2. In response to this development, we asked all parties to address whether the THC's vote on the Cenotaph rendered this controversy moot. Relators conceded that the THC vote mooted their request for emergency and injunctive writ relief as to the Cenotaph. However, they contended that the controversy remained live as to the human remains issue and re-urged this Court to grant emergency relief pending a decision on the writ application to suspend construction activities for the duration of the ancillary appeal.
II. DISCUSSION
A. Applicable Law
There are several ways to either suspend the execution of a trial court judgment or order, or else enjoin other actions by litigants, while a matter remains pending before the court of appeals. For example, if an order is subject to interlocutory appeal, this Court has the ability to "make any temporary orders necessary to preserve the parties' rights until disposition of the appeal" unless "the appellant's rights would be adequately protected by supersedeas...." See TEX.R.APP.P. 29.3. If the trial court has rendered a final judgment and a party wishes to suspend the execution of that judgment pending appeal, that party must follow the supersedeas rules set out in TEX.R.APP.P. 24.
The courts of appeals also possess limited injunctive powers. A writ of injunction is its own separate original proceeding that may only be brought ancillary to a matter already pending in the court of appeals. See In re Olson , 252 S.W.3d 747, 747 (Tex.App.--Houston [14th Dist.] 2008, orig. proceeding). As with any other original writ proceeding in the court of appeals, a party may request a stay or other temporary relief pending resolution of the writ petition on the merits under TEX.R.APP.P. 52.10(b). In the writ of injunction context, this setup is analogous, but not identical, to the similar procedure used in trial courts, where a trial judge may grant a temporary restraining order pending a merits ruling on a request for a temporary injunction seeking to enjoin actions pending trial. Likewise, a court of appeals may grant temporary relief pending a ruling on the writ of injunction application, which, if granted, would in turn serve to enjoin the actions of litigants in the ancillary appeal.
Unlike a writ of mandamus, which seeks to compel a certain action, a writ of injunction's purpose is to restrain action or threatened action. Campbell v. Wilder , 487 S.W.3d 146, 153-54 (Tex. 2016). A court of appeals may issue a writ of injunction only if it is necessary to protect the Court's jurisdiction over the subject matter of a pending appeal, or to prevent an unlawful interference with the enforcement of its judgments and decrees. In re Fox , No. 08-07-00251-CV, 2007 WL 2549566 (Tex.App.--El Paso Sept. 6, 2007, orig. proceeding) (mem. op.). "We do not have jurisdiction to issue a writ of injunction to preserve the status quo or to prevent damage to one of the parties during the appeal." In re Brown , No. 08-03-00092-CV, 2003 WL 1563987 (Tex.App.--El Paso Mar. 27, 2003, orig. proceeding) (mem. op.). "It is well settled that an appellate court is authorized to protect its jurisdiction by preserving the subject matter of the appeal in order to make its decrees effective." In re Teague , No. 2-06-033-CV, 2006 WL 302123, at *2 (Tex.App.--Fort Worth Feb. 6, 2006, orig. proceeding) (mem. op.).
B. Analysis
The Fort Worth Court of Appeals in In re Teague held that injunctive relief preventing the demolition of a building was proper because demolition of the building, which was the subject of appeal, would render a pending appeal over the building's status moot. Id. The Association argues that under In re Teague , the activities on the Alamo site will moot the subject matter of the appeal in Cause No. 08-20-00172-CV unless those activities are enjoined.
In our judgment, there are two main evidentiary problems apparent in connection with this application. First, the Association's failure to bring the issue of the human remains to any court's attention in the past undermines the claim that immediate action is required pending the appeal. Equity "aids the diligent and not those who slumber on their rights." Rivercenter Associates v. Rivera , 858 S.W.2d 366 (Tex. 1993) (orig. proceeding). This lawsuit has been pending in the trial court since November 12, 2019, this appeal was filed in the Third Court of Appeals on July 21, 2020, and by virtue of the Texas Supreme Court's transfer order, the appeal has been pending in this Court since August 13, 2020. The affidavit signed by Lee White attached to the writ of injunction action and attesting to the facts regarding the issue of human remains was signed on March 30, 2020. However, the Association never sought injunctive relief from the Third Court of Appeals prior to transfer, nor did the Association seek injunctive relief from this Court until September 22, 2020, the day of the Texas Historical Commission's vote on the fate of the Cenotaph. It is apparent that the Association filed this writ of injunction application within hours of the Texas Historical Commission vote as a way to hedge against the possibility of an adverse decision from the THC on the Cenotaph, but that aspect of this controversy is now moot. That leaves only the issue of human remains found during on-site activities. Respondents state that archaeological activity at the site has been ongoing for months (and are within weeks of completion) and that the Association has not pressed for injunctive relief in the interim. The delay has not been adequately explained.
Further, the fact that archaeological activities are already occurring on-site leads us to the second evidentiary problem with this writ application: the Association has not shown how the current actions being undertaken will cause harm or otherwise moot their appeal under In re Teague. The affidavit of Lee White that is attached to the writ of injunction complains of construction activities germane to the moving of the Cenotaph, and in light of the THC's vote, it is unclear if those activities would even continue. According to a response from the Attorney General, current archaeological activities are taking place at the project site in accordance with a plan that was already approved by the THC, and any human remains found are either being left in situ or are being kept on-site in a sealed vault at the Alamo. White's affidavit only states that the Alamo Trust, Inc. "has also taken steps to reintern human remains" and that the Association has made requests to conduct DNA testing of the remains. But there is no indication that there is an active threat to any human remains, and the Association has not explained how the current archaeological arrangement is improper or inadequate such that immediate injunctive relief or relief pending the duration of appeal is necessary.
We do not necessarily foreclose the possibility that an injunction to protect human remains could be necessary under a given set of facts. However, the burden to demonstrate the specific reasons why the extraordinary writ of injunction is required under these circumstances lies with Relators. Based on the record before us, the Association has not met the standard necessary to obtain a writ of injunction.
Rodriguez, C.J., dissenting
DISSENTING OPINION
YVONNE T. RODRIGUEZ, Chief Justice
I, respectfully, dissent. I would grant the motion for emergency relief pending a full briefing on the merits for a writ of injunction and/or the resolution of their pending appeal. The crux of the issue is the preservation of the human remains and to ensure the appropriate protocols pursuant to the American Archaeology Association are being followed. The grant of emergency relief is necessary to maintain the status quo, avoid irreparable injury to the ADDA and enjoin Appellees from reburying, moving the remains and to allow for future testing of the DNA.
On or about August 14, 2019, human remains were found at the site. Almost two months later, Appellees ultimately released their discovery of those remains through a news release. According to Appellants, the public release followed a public information request to the Texas Historical Commission.
On November 12, 2019, Appellants filed their petition, application for a temporary restraining order and temporary injunction. At that time, the parties agreed to hear the plea to the jurisdiction with the temporary injunction and other pending requests for relief. Appellants' former counsel attended a hearing on January 7, 2020 on the plea to the jurisdiction, however the court did not hear argument on the temporary orders. Appellants' present counsel was rehired on March 2, 2020. The pending matters, including the temporary injunction, was set for a hearing on April 13, 2020. On April 2, 2020, Appellants filed an emergency motion for a hearing on a Temporary Restraining Order. However, on April 22, 2020, the trial court granted the plea to the jurisdiction, which is the order Appellants are presently appealing. On July 21, 2020, the accompanying appeal was filed. The motion for emergency relief was filed on September 22, 2020.
Appellants' counsel, the Martinez De Vara Law Firm, represented Appellants from the lawsuit's inception to December 4, 2019, when another law firm was retained. On February 10th, Martinez De Vara was rehired, which was reflected in the court's order of March 2, 2020.
On March 13, 2020, the Texas Supreme Court entered its First Emergency Order, which ordered:
2. Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal—and must to avoid risk to court staff, parties, attorneys, jurors, and the public—without a participant's consent:
a. Modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than 30 days after the Governor's state of disaster has been lifted;
First Emergency Order Regarding COVID-19 State of Disaster , 596 S.W.3d 265, 265 (Tex. 2020). On March 19, 2020, the Texas Supreme Court ordered:
3. Courts must not conduct non-essential proceedings in person contrary to local, state, or national directives, whichever is most restrictive, regarding maximum group size.
Third Emergency Order Regarding COVID-19 State of Disaster , 596 S.W.3d 266, 267 (Tex. 2020). Further, the order "expire[d] May 8, 2020, unless extended by the Chief Justice of the Supreme Court." Id. In the Fifth Emergency Order, on March 20, 2020, the Texas Supreme Court declared:
1. Governor Abbott has declared a state of disaster in all 254 counties in the State of Texas in response to the imminent threat of the COVID-19 pandemic.
2. This Order supplements and does not replace or amend prior Emergency Orders Regarding the COVID-19 State of Disaster.
3. All deadlines, whether prescribed by statute, rule, or order, related to attorney professional disciplinary and disability proceedings are tolled while this Order remains in effect.
4. The order is retroactive to March 13, 2020, and expires May 8, 2020, unless extended by the Chief Justice of the Supreme Court.
Fifth Emergency Order Regarding COVID-19 State of Disaster , 596 S.W.3d 789, 789 (Tex. 2020). On April 1, 2020, in its Eighth Emergency Order, the Texas Supreme Court ordered:
3. Any deadline for the filing or service of any civil case is tolled from March 13, 2020, until June 1, 2020, unless extended by the Chief Justice of the Supreme Court. This does not include deadlines for perfecting appeal or for other appellate proceedings, requests for relief from which should be directed to the court involved and should be generously granted.
Eighth Emergency Order Regarding COVID-19 State of Disaster , 597 S.W.3d 844, 844 (Tex. 2020). On April 27th, the Twelfth Emergency Order instructed:
The following Emergency Orders are renewed as clarified and amended: the First Emergency Order (Misc. Dkt. No. 20-9042 and Court of Criminal Appeals of Texas Misc. Dkt. No. 20-007), as amended by the Third Emergency Order (Misc. Dkt. No. 20-9044 and Court of Criminal Appeals of Texas Misc. Dkt. No. 20-008) and the Eighth Emergency Order (Misc. Dkt. No. 20-9051); the
Second Emergency Order (Misc. Dkt. No. 20-9043); the Fifth Emergency Order (Misc. Dkt. No. 20-9046); the Seventh Emergency Order (Misc. Dkt. No. 20-9050); the Ninth Emergency Order (Misc. Dkt. No. 20-9052); and the Eleventh Emergency Order (Misc. Dkt. No. 20-9055).
3. Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal—and must to avoid risk to court staff, parties, attorneys, jurors, and the public—without a participant's consent:
a. Modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, specifically including those in Section 263.401 of the Family Code and in all proceedings under Subtitle E, Title 5, of the Family Code, for a stated period ending no later than 30 days after the Governor's state of disaster has been lifted;
Twelfth Emergency Order Regarding COVID-19 State of Disaster , No. 20-9059, ––– S.W.3d ––––, 2020 WL 6390519 (Tex. Apr. 27, 2020). On May 26, 2020, the Seventeenth Emergency Order stated:
3. Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal—and must to avoid risk to court staff, parties, attorneys, jurors, and the public—without a participant's consent:
a. except as provided in paragraph (b), modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than September 30, 2020;
and further provided:
4. Courts must not conduct in-person proceedings contrary to guidance issued by the Office of Court Administration regarding social distancing, maximum group size, and other restrictions and precautions. Prior to holding any in-person proceedings on or after June 1, 2020, a court must submit an operating plan that is consistent with the requirements set forth by the Office of Court Administration's Guidance for All Court Proceedings During COVID-19 Pandemic issued on May 4, 2020. Courts must continue to use all reasonable efforts to conduct proceedings remotely.
Seventeenth Emergency Order Regarding COVID-19 State of Disaster , 609 S.W.3d 119 (Tex. 2020). The Eighteenth Emergency Order of June 29, 2020 ordered:
2. The Seventeenth Emergency Order Regarding the COVID-19 State of Disaster (Misc. Dkt. No. 20-9071) issued May 26, 2020, paragraphs 3-12, are renewed as amended.
3. Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal—and must to avoid risk to court staff, parties, attorneys, jurors, and the public—without a participant's consent:
a. except as provided in paragraph (b), modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than September 30, 2020;
Eighteenth Emergency Order Regarding COVID-19 State of Disaster , 609 S.W.3d 122, 123 (Tex. 2020).
Beginning March 3, 2020 through September 30, 2020, the Texas Supreme Court ordered Texas courts may "[m]odify or suspend any and all deadlines and procedures ..." First Emergency Order Regarding COVID-19 State of Disaster , 596 S.W.3d 265 (Tex. 2020) ; Eighteenth Emergency Order Regarding COVID-19 State of Disaster , 609 S.W.3d 122, 123 (Tex. 2020). The parties agreed to hear the requested temporary orders on January 7th—two months after the lawsuit was filed. The two-month lag between January 7th and March 3rd hardly classifies as insufficiently diligent, especially when on February 10th, Appellants switched counsel just prior to the First Emergency Order. Further, Appellants were led to believe at the April 13th hearing the trial court would hear the requested temporary restraining order and filed an emergency hearing request on April 2nd as construction was in "full progress." However, once the trial court ruled it had no jurisdiction on April 22nd, the TRO and temporary orders request became moot. Given the unprecedented situation we find ourselves vis-à-vis the COVID-19 pandemic, coupled with the Texas Supreme Court's Emergency Orders, I am loath to find the Appellants slept on their rights.
The majority relies on Rivercenter to find Appellants have waived their rights to emergency relief. However, Rivercenter denied mandamus because "Rivercenter waited over four months after the filing of the Defendants' jury demand before asserting any rights it may have had under the jury waiver provisions. The record reveals no justification for this delay. Under these circumstances, Rivercenter has not shown diligent pursuit of any right to a non-jury trial." Rivercenter Assocs. v. Rivera , 858 S.W.2d 366, 367 (Tex. 1993). To the contrary, the parties here have offered detailed procedural explanations. These explanations, accompanied by the Governor's Declaration of Disaster across Texas and the Texas Supreme Court's Emergency Orders, provide ample justification for the delay.
The appeal was filed July 21st and on September 22nd the request for emergency relief was made, which constituted about a two-month delay. That two-month delay is, I believe, governed by the Texas Supreme Court's admonition that Texas courts should "modify or suspend any and all deadlines and procedures ...." In the midst of a global pandemic, the majority will brook no delay if one is seeking emergency relief. Further, this two-month delay, in the majority's view, is fatal. Perhaps in a pre-pandemic world I may have been persuaded, but not today.
Next, the majority asserts Appellants have failed to meet their "burden" to "demonstrate specific reasons" to obtain a writ of injunction. The law is clear Texas Appellate courts are authorized to grant emergency relief or a writ of injunction to protect their jurisdiction. City of El Paso v. Caples Land Co., LLC , 408 S.W.3d 26, 36 (Tex.App.—El Paso 2013, pet. denied) ("A court of appeals is authorized to issue writs necessary to protect its jurisdiction.")(citing TEX.CONST. art. V, § 6 ; TEX.GOV'T CODE ANN. § 22.221 ). Additionally, pursuant to our authority under Rule 29.3 of the Texas Rules of Appellate Procedure, this Court may "make any temporary orders necessary to preserve the parties' rights until disposition of the appeal...." TEX.R.APP.P. 29.3. Appellate courts enjoy wide discretion to issue temporary orders pending appeal. In re Geomet Recycling L.L.C. , 578 S.W.3d 82, 90 (Tex. 2019). Under our authority pursuant to Rule 29.3, a court abuses its discretion if the court acts without reference. Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied , 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986) ; In re Geomet , 578 S.W.3d at 90 ; Heinrich v. Calderazzo , 569 S.W.3d 247, 254 (Tex.App.—El Paso 2018, no pet.).
The majority asserts Appellants have failed to show how "current actions ... will cause harm or ... moot their appeal...." Further, they maintain the March 2020 affidavit does not account for a subsequent permit addressing the human remains protocol. Third, the Texas Attorney General, Appellees' counsel, has assured us the "archaeological activities" are being conducted in accordance with a THC approved plan with any human remains "left in situ" or on-site in a sealed vault. However, the majority finds "White's affidavit only states that the Alamo Trust, Inc. ‘has also taken steps to reintern human remains’ and that the Association has made requests to conduct DNA testing of the remains." The main complaint from the majority's perspective is the lack of any active threat to the human remains and the failure to show how the current procedures are improper or inadequate. Further, the majority correctly notes Appellants' objection to Appellees' abrupt cessation without explanation of Appellees' weekly archeological reports.
However, a more complete recitation of the allegations is necessary. Appellant White, in April 2019, submitted an application for unverified cemetery in accordance with Texas Health and Safety Code § 711.0111. On May 10, 2019, the Texas Historical Commission recognized the existence of the cemetery at the Alamo. The designation, according to Appellants, contained an important stipulation:
(a) A person who discovers an unverified cemetery shall file notice and evidence of the discovery with the Texas Historical Commission on a form provided by the Texas Historical Commission, and shall concurrently provide a copy of the notice to the landowner on record in the county appraisal district on whose land the unverified cemetery is located.
(b) The landowner described by Subsection (a) may send a response or comments to the Texas Historical Commission concerning the notice not later than the 30th day after the date the notice is filed.
(c) The Texas Historical Commission shall evaluate the notice of the unverified cemetery, the evidence submitted with the notice, and the response of the landowner, if any, and shall determine whether there is sufficient evidence of the existence of a cemetery.
(d) If the Texas Historical Commission determines sufficient evidence supports the existence of a cemetery, the Texas Historical Commission shall inform the landowner and may file notice of the existence of the cemetery under Section 711.011.
(e) If the Texas Historical Commission determines sufficient evidence supports a determination that a cemetery does not exist, the Texas Historical Commission shall notify the landowner on record in the appraisal district of its determination, amend the notice to include the commission's determination, and ensure any notice filed with a county clerk under Section 711.011 is corrected. Tex.Health & Safety Code Ann. § 711.0111.
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This designation is not intended to affect the allowed uses of this property and does not constitute the designation of an Unknown or Abandoned Cemetery under the Health and Safety Code. It is an acknowledgement that, based on archival information only and in the absence of any visible evidence on the surface or any evidence of intact human remains outside of the perimeter of the Alamo Chapel, the area described is deemed worthy of recognition as a Historic Texas Cemetery under Commission Rule 22.6.
Appellee, Alamo Trust, in June 2019, wrote the THC opposing the designation of the unverified cemetery, stating:
First, the ADDA has not included sufficient evidence to establish the precise location or current existence of any burial sites or remains as required for cemetery designation under the Texas Health and Safety Code. Second, the Commission's designation of the Alamo Complex, Alamo Plaza, or surrounding properties ("Subject Properties") as cemeteries could constitute an unconstitutional taking....
Appellee, the Texas General Land Office, opposing the designation, also wrote in its June 2019 letter:
... the GLO supports denial of this application because (a) the Texas Historical Commission (THC) lacks authority to review and approve the application relating to Alamo complex properties, (b) sufficient evidence has not been presented by applicants to support the existence of a "cemetery" under Texas law, and (c) the determination of the existence of a cemetery on the properties at issue would likely delay or obstruct Alamo preservation efforts.
Further, the Texas General Land Office, pointed out:
If the THC opts to exercise authority over the Alamo Complex contrary to statute and decide the former fortress is an unverified cemetery, preservation efforts being undertaken by the GLO for the benefit of the State's most important landmark would be significantly impeded, and possibly halted altogether.
In late August 2019, human remains were found at the site, according to Appellants. Activity summarizations on the Alamo Project have not been readily available to the public; rather, the public must request activity reports under the Texas Public Information Act ("PIA"), which according to Appellants, is in violation of standard archeological practice reports. The process requires a PIA request, then the THC and the Alamo Trust release an archaeology report produced by the contractors working onsite—the report summarizes activities and discoveries on a weekly basis. It was by this means the public was informed of the human remains via a news release. However, prior to the news release and after reports on social media of the discovery of human remains, Appellants submitted their routine public information request to the THC, but for the first time, Appellees objected to the release of the archaeology weekly report. According to Appellants, the report would have revealed discovery of the human remains, but instead, Appellants "sat on the findings of the human remains just shy of two months...." The lack of transparency regarding discoveries on the Alamo Project is concerning to Appellants and is relevant to the issue of whether an active threat to the human remains exists.
Appellees claim a Human Remains Protocol is being utilized and characterize it as "the most comprehensive human remains protocols ever utilized at the Alamo and one of the most comprehensive protocols ever utilized in the State of Texas." We do not have the actual Human Remains Protocol in our record to review. All we have to rely on is Appellees' description. The Human Remains Protocol, according to Appellees, is:
... fourteen pages long, and provides detailed guidance on a myriad of potential issues, such as the types of tools that can be used when excavating any human remains, the storage and security protocols that must be followed for any discoveries, the types of analysis that can be conducted on any discoveries, and the reburial protocol that must be followed.
The majority recognizes current archeological activities are taking place in accordance with THC approved protocols and concludes Appellants have not shown how the current actions will cause harm or moot their appeal. However, the lack of evidence offered by Appellees to support the alleged "strict protocol" in place for the physical handling of the remains leaves me unsatisfied. The ambiguity and the lack of transparency from Appellees casts doubt and concern regarding the handling of the remains, which relates to the issues of harm and mootness. Severe damage and/or destruction to the remains would render this Court's jurisdiction moot. While Appellees assure the remains are being handled with the "utmost respect[,]" we cannot confirm this and we are essentially required to take their word that no harm is resulting from the handling of the remains.
Abuse of discretion may arise when a court acts without reference to any guiding principles—such as the lack of evidence offered by Appellees ensuring no harm is resulting from the handling of the remains. See In re Geomet , 578 S.W.3d at 90. It is necessary to emphasize, any handling of the remains causing severe damage or destruction would render this Court's jurisdiction moot. See Caples Land Co., LLC , 408 S.W.3d at 37 ("a writ of injunction may be granted if a party performs or is about to perform or is procuring or allowing the performance of an act relating to the subject of pending litigation, in violation of the rights of the applicant, and the act would tend to render the judgment in that litigation ineffectual."); see TEX.CIV.PRAC. & REM.CODE ANN. § 65.011(2). Further, Rule 29.3's scope plainly extends well beyond the power to protect this Court's jurisdiction. See In re Geomet , 578 S.W.3d at 90. Thus, pursuant to our broad authority under Rule 29.3, a temporary order would preserve Appellants' rights until disposition of the appeal. See id.
In light of the foregoing and to protect this Court's jurisdiction, I would grant a temporary emergency order enjoining Appellees regarding the removal, moving, or reburying of human remains until a full briefing and a decision regarding the writ of injunction can be considered by the Court.