SE Texas Record

Tuesday, November 19, 2019

Appeals court backs Fort Bend school district in dedication of abandoned cemetery

State Court

By Charmaine Little | Oct 21, 2019

Chief Justice Sherry Radack

HOUSTON -- The Court of Appeals for the First District of Texas sided Oct. 3 with the Fort Bend Independent School District in its dispute regarding an abandoned cemetery. 

Justice Evelyn Keyes wrote the opinion. Chief Justice Sherry Radack and Justice Sara Beth Landau concurred.

The school district filed the suit under Texas Health & Safety Code Chapter 711, requesting the greenlight (under 711.010 of the code) to revoke the dedication of an abandoned prison farm cemetery discovered during the construction of a district-owned vocational school. The district sought to transfer human remains from the cemetery to a nearby municipal cemetery under an agreement that FBISD came to with the City of Sugar Land, which owns and manages the municipal cemetery. A community task force, the Texas Historical Commission and the Fort Bend County Historical Commission (FBCHC) also weighed in on the project.

But the deal fell through after the district court denied the agreement was in the public interest and instead selected local attorney Michael W. Elliott to be the master in chancery to help with the investigation, discovery and other portions of the matter.

FBISD subsequently filed a petition of writ mandamus in the current appeals court, asking it to order the lower court to vacate its order appointing the master in chancery. It argued that the trial court erred when it granted Elliott “sweeping powers,” according to the opinion.

After much back and forth, FBISD filed two supplemental madamus peitions asking the court to vacate the orders and toss out the proceeding related to FBISD’s nonsuit.

The appeals court said, “We agree with FBISD that its filing of its nonsuit of the underlying suit to remove the cemetery dedication mooted all proceedings pending in the underlying suit in the trial court except as to the assessment of court costs. Accordingly, the trial court lost jurisdiction to act on the merits of the proceeding. We hold that the nonsuit moots FBISD’s original mandamus petition challenging the November 2018 appointment of the master, and we therefore dismiss the original mandamus petition.”

It went on to say that Elliott’s appointment was invalid because it happened after FBISD non-suited the underlying proceeding.

The appeals court dismissed FBISD’s original madamus petition as moot, and conditionally granted its two supplemental petitions for mandamus relief. It lifted the stay orders imposed by the appeals court and ordered the lower court to vacate its order that appointed a guardian at litem and reappointed the master in chancery.

Matters became murky as FBISD’s initial appeal was pending. Texas Gov. Greg Abbott signed a bill that changed several sections of the Health & Safety Code Chapter 711 that said, “[t]he changes in law made by this act apply only to a suit involving the removal of remains from ab abandoned, unknown, or unverified cemetery pending in a trial court on the effective date of this act or filed on or after that,” based on the opinion.

The mastery of chancery subsequently filed a letter brief in the mandamus proceeding, telling the court that FBISD’s request for mandamus to vacate the order was moot. FBISD then said it did not have the desire to remove the cemetery dedication. The lower court opted against dismissing the entire order to appointing Scott West as guardian ad litem “for the rights, interests and dignity of the 95 bodies” that were discovered in the cemetery located on FBISD’s land. Elliott was also reappointed as master in chancery.

FBISD then filed two supplemental petitions asking the court to compel the lower court to vacate the orders and dismiss the underlying proceeding via FBISD’s nonsuit.

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