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65606_1
No. 01-18-01113-CV
In the
Court of Appeals for the
First District of Texas
IN RE FORT BEND INDEPENDENT SCHOOL DISTRICT,
Relator.
Original Proceeding from the 434th District Court
Fort Bend County, Texas
Cause No. 18-DCV-251366
REAL-PARTY-IN-INTEREST, MR. S. SCOTT WEST’S,
RESPONSE TO PETITION FOR WRIT OF MANDAMUS
James C. Marrow
Richard P. Hogan, Jr.
Jennifer Bruch Hogan
HOGAN & HOGAN
711 Louisiana Street, Suite 500
Houston, Texas 77002
713.222.8800–telephone
713.222.8810–facsimile
ATTORNEYS FOR REAL-PARTY-IN-INTEREST, MR. S. SCOTT WEST
Oral Argument Requested August 12, 2019
65606_1 i
IDENTITY OF PARTIES AND COUNSEL
Relator is Fort Bend Independent School District (FBISD).
Relator’s counsel on mandamus are:
Jonathan G. Brush
State Bar No. 24045576
Michelle R. Morris
State Bar No. 24004702
Elizabeth R. Mylin
State Bar No. 24107874
ROGERS, MORRIS & GROVER, L.L.P.
5718 Westheimer, Suite 1200
Houston, Texas 77057
713.960.6000–telephone
713.960.6025–facsimile
Real-Party-in-Interest is Mr. S. Scott West, court-appointed guardian ad litem.
Mr. S. Scott West’s counsel on mandamus are:
James C. Marrow
State Bar No. 24013103
Richard P. Hogan, Jr.
State Bar No. 09802010
Jennifer Bruch Hogan
State Bar No. 03239100
HOGAN & HOGAN
711 Louisiana, Suite 500
Houston, Texas 77002-2721
713.222.8800–telephone
713.222.8810–facsimile
65606_1 ii
Real-Party-in-Interest is Mr. Michael W. Elliott, court-appointed master-in-
chancery.
Mr. Michael W. Elliott’s counsel on mandamus are:
Kristen Jernigan
State Bar No. 90001898
LAW OFFICE OF
KRISTEN JERNIGAN, PLLC
203 S. Austin Avenue
Georgetown, Texas 78626
512.904.0123–telephone
512.931.3650–facsimile
Respondent/Trial Court:
Honorable James H. Shoemake
434th Judicial District Court
Fort Bend County District Courts
1422 Eugene Heimann Circle, Courtroom 3I
Richmond, Texas 77469
65606_1 iii
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ............................................................ i
INDEX OF AUTHORITIES .................................................................................... vi
STATEMENT OF THE CASE .............................................................................. xiii
ISSUES PRESENTED .............................................................................................xv
STATEMENT OF FACTS IN REPLY ..................................................................... 1
The Sugar Land 95 were exhumed by court order on FBISD’s
promises that no grave would be disturbed and the remains
would not be reinterred without the court’s permission ....................... 2
The bodies were discovered to be of historical significance and of
interest to the community ...................................................................... 4
FBISD asked the district court to remove the cemetery designation
and requested permission to reinter the bodies elsewhere .................... 6
The District Court solicited assistance from a master-in-chancery ................. 7
FBISD refused to cooperate with the master-in-chancery, then filed a
nonsuit in an attempt to deprive the district court of jurisdiction ......... 8
Critical questions remain despite Relator’s nonsuit ......................................10
SUMMARY OF ARGUMENT ...............................................................................13
ARGUMENT ...........................................................................................................15
I. FBISD’s Nonsuit Did Not Divest the District Court of Jurisdiction to
Ensure the Proper Resettlement of the Exhumed Bodies. .............................15
A. The district court has jurisdiction and a continuing duty to
oversee the reinterment of bodies exhumed by the court’s order. ......15
1. The court’s jurisdiction exists independently of, and
survives, FBISD’s nonsuit. .......................................................15
2. FBISD has no authority to act without court approval. ............22
65606_1 iv
B. A district court may delay the granting of a nonsuit to address
collateral matters, including the proper handling and reburial of
bodies currently stashed in a storage crate. .........................................25
1. Relator has not asked the district court to enter an order
of dismissal. ..............................................................................25
2. Collateral matters remain after the nonsuit. ..............................27
a. FBISD’s nonsuit does not moot still-justiciable
questions. ........................................................................28
b. The Court should follow its sister court’s
reasoning in Thomas v. Cook. .........................................31
c. The court retains jurisdiction to resolve these
collateral, justiciable questions that remain after
the nonsuit. ......................................................................33
II. The Court Properly Appointed Mr. West to Assist in Determining the
Public Interest in the Reinterment of 95 Exhumed Bodies that Are
Historically Significant to the Community. ...................................................38
A. FBISD’s complaint is not preserved and properly presented for
mandamus review. ...............................................................................38
1. FBISD did not object to Mr. West’s appointment. ...................38
2. Relator has not challenged all possible bases for the
appointment order. ....................................................................41
B. The Legislature has authorized district courts to appoint persons
considered necessary to assist in determining the public interest. ......43
C. Alternatively, the Court should consider applying the unclean-
hands doctrine here. .............................................................................44
1. One who seeks equitable relief must do equity. .......................44
2. Relator appears to have withheld evidence that may be
relevant to identify the Sugar Land 95 and assist in
locating their descendants. ........................................................45
65606_1 v
3. The record suggests that FBISD took its nonsuit in bad
faith, solely to deprive the court of jurisdiction. .......................48
4. Relator’s inequitable conduct directly relates to its
request for mandamus relief. .....................................................50
PRAYER ..................................................................................................................51
CERTIFICATE OF COMPLIANCE .......................................................................53
CERTIFICATE OF SERVICE ................................................................................54
APPENDIX
Fort Bend ISD, Press Release, “Fort Bend ISD, Fort
Bend County Leaders Move Forward with Historic
Cemetery Agreement” (Jul. 11, 2019) .....................................................Tab A
Fort Bend ISD, Press Release, “Fort Bend ISD Provides
Update Regarding Sugar Land 95; Responds After
Appeals Court Halts Latest Court Action” (Aug. 6, 2019) ..................... Tab B
Fort Bend ISD, Press Release, “Sugar Land 95 Update:
Small Protest at Fort Bend ISD’s Administrative
Building” (Aug. 9, 2019) ......................................................................... Tab C
Act of May 22, 2019, 86th Leg., R.S., ch. 817,
2019 Tex. Sess. Law Serv. ch. 817 (Vernon) ..........................................Tab D
House Comm. on Judiciary & Civil Jurisprudence,
Bill Analysis, Tex. H.B. 2430, 86th Leg., R.S. (2019) ........................... Tab E
Senate Comm. on State Affairs, Bill Analysis,
Tex. H.B. 2430, 86th Leg., R.S. (2019) .................................................. Tab F
65606_1 vi
INDEX OF AUTHORITIES
Page(s)
Cases
Axelson, Inc. v. McIlhany,
798 S.W.2d 550 (Tex. 1990) (orig. proceeding) ........................................... 45, 51
Bonham State Bank v. Beadle,
907 S.W.2d 465 (Tex. 1995) ................................................................................28
D&M Marine, Inc. v. Turner,
409 S.W.3d 693 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) ................41
Dolcefino v. Randolph,
19 S.W.3d 906 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) ................39
Donalson v. Barr,
86 S.W.3d 718 (Tex. App.—Houston [1st Dist.] 2002, no pet.) .........................41
Dueitt v. Dueitt,
802 S.W.2d 859 (Tex. App.—Houston [1st Dist.] 1991, no writ).......................36
Fawcett v. Rogers,
492 S.W.3d 18 (Tex. App.—Houston [1st Dist.] 2016, no pet.) .........................15
Gibson v. Blanton,
483 S.W.2d 372 (Tex. Civ. App.—Houston [1st Dist.]
1972, orig. proceeding) .......................................................................................37
Guillory v. Boykins,
442 S.W.3d 682 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ................ 39, 41
Harris Cty. Appraisal Dist. v. Wittig,
881 S.W.2d 193 (Tex. App.—Houston [1st Dist.]
1994, orig. proceeding) .......................................................................... 26, 27, 33
Hayes v. Pin Oak Petrol., Inc.,
798 S.W.2d 668 (Tex. App.—Austin 1990, writ denied) ....................................42
In re Allcat Claims Serv., L.P.,
356 S.W.3d 455 (Tex. 2011) ................................................................................15
65606_1 vii
In re B.L.D.,
113 S.W.3d 340 (Tex. 2003) ................................................................................40
In re Bank of Am., N.A.,
No. 01-02-00867-CV, 2003 WL 22310800 (Tex. App.—Houston
[1st Dist.] Oct. 9, 2003, orig. proceeding) ................................................... 38, 39
In re Bennett,
960 S.W.2d 35 (Tex. 1997) (orig. proceeding) ............................................. 26, 33
In re E. Tex. Med. Ctr. Athens,
154 S.W.3d 933 (Tex. App.—Tyler 2005, orig. proceeding) ....................... 25, 27
In re EGL Eagle Glob. Logistics, L.P.,
89 S.W.3d 761 (Tex. App.—Houston [1st Dist.]
2002, orig. proceeding [mand. denied]) ..............................................................44
In re Estate of Gibbons,
451 S.W.3d 115 (Tex. App.—Houston [14th Dist.]
2014, pet. denied) ......................................................................................... 28, 30
In re Huag,
175 S.W.3d 449 (Tex. App.—Houston [1st Dist.]
2005, orig. proceeding) ................................................................................ 20, 23
In re Jim Walter Homes, Inc.,
207 S.W.3d 888 (Tex. App.—Houston [14th Dist.]
2006, orig. proceeding) .......................................................................................45
In re L.M.I.,
119 S.W.3d 707 (Tex. 2003) ................................................................................40
In re Liu,
290 S.W.3d 515 (Tex. App.—Texarkana 2009, orig. proceeding) .....................49
In re Martinez,
77 S.W.3d 462 (Tex. App.—Corpus Christi 2002, orig. proceeding) .......... 28, 30
In re McDaniel,
408 S.W.3d 389 (Tex. App.—Houston [1st Dist.]
2011, orig. proceeding) ................................................................................ 49, 51
65606_1 viii
In re Roberts,
No. 05-06-00638-CV, 2006 WL 2106799 (Tex. App.—Dallas
July 31, 2006, orig. proceeding) .................................................................. 45, 51
In re Russo,
550 S.W.3d 782 (Tex. App.—Houston [14th Dist.]
2018, orig. proceeding) .......................................................................................41
Intermedics, Inc. v. Lane,
No. 01-93-00479-CV, 1994 WL 109481 (Tex. App.—Houston
[1st Dist.] Mar. 31, 1994, no writ) .......................................................................48
J.A. Walsh & Co. v. R.B. Butler, Inc.,
260 S.W.2d 889 (Tex. Civ. App.—Waco 1953),
writ dism’d w.o.j., 152 Tex. 601, 262 S.W.2d 952 (1953) .................................48
Kroger Co. v. Am. Alternative Ins. Corp.,
468 S.W.3d 766 (Tex. App.—Houston [14th Dist.] 2015, no pet.) .....................41
Magna Donnelly Corp. v. DeLeon,
267 S.W.3d 108 (Tex. App.—San Antonio 2008, no pet.) ........................... 39, 41
O’Connor v. First Court of Appeals,
837 S.W.2d 94 (Tex. 1992) (orig. proceeding) ....................................................27
Olley v. Raamco Tex. Props.,
No. 01-11-00321-CV, 2013 WL 1087729 (Tex. App.—Houston
[1st Dist.] Mar. 14, 2013, no pet.) .......................................................................25
Reliant Energy, Inc. v. Gonzalez,
102 S.W.3d 868 (Tex. App.—Houston [1st Dist.] 2003),
aff’d, 159 S.W.3d 615 (Tex. 2005) .....................................................................16
Rhodes v. Cahill,
802 S.W.2d 643 (Tex. 1990) ................................................................................42
Rivercenter Assocs. v. Rivera,
858 S.W.2d 366 (Tex. 1993) (orig. proceeding) ..................................................44
Robbins Chevrolet Co. v. Motor Vehicle Bd.,
989 S.W.2d 865 (Tex. App.—Austin 1999, pet. denied) ....................................48
65606_1 ix
Rohrmoos Venture v. UTSW DVA Healthcare, LLP,
No. 16-0006, 2019 WL 1873428 (Tex. Apr. 26, 2019) .......................................40
Sambrano v. Tex. Dep’t of Protective & Regulatory Servs.,
No. 01-06-00854-CV, 2007 WL 1559857 (Tex. App.—Houston
[1st Dist.] May 31, 2007, no pet.) .......................................................................42
Scott & White Mem’l Hosp. v. Schexnider,
940 S.W.2d 594 (Tex. 1996) ................................................................... 26, 33, 34
State v. Garza,
358 S.W.2d 749 (Tex. Civ. App.—San Antonio 1962, no pet.) ..........................48
Thomas v. Cook,
350 S.W.3d 382 (Tex. App.—Houston [14th Dist.]
2011, pet. denied) ........................................................................................ passim
Travelers Ins. Co. v. Joachim,
315 S.W.3d 860 (Tex. 2010) ........................................................................ passim
Truly v. Austin,
744 S.W.2d 934 (Tex. 1988) ................................................................................44
Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon,
195 S.W.3d 98 (Tex. 2006) ........................................................................... 25, 33
Universal Plant Servs., Inc. v. Dresser-Rand Grp., Inc.,
571 S.W.3d 346 (Tex. App.—Houston [1st Dist.] 2018, no pet.) ................ 22, 23
Waterman Steamship Corp. v. Ruiz,
355 S.W.3d 387 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) ......... 28, 29
Zimmerman v. Ottis,
941 S.W.2d 259 (Tex. App.—Corpus Christi 1996, orig. proceeding) ...............28
Statutes
TEX. HEALTH & SAFETY CODE § 711.002 ................................................................36
TEX. HEALTH & SAFETY CODE § 711.002(a) .................................................... 45, 47
TEX. HEALTH & SAFETY CODE § 711.003 ................................................................36
TEX. HEALTH & SAFETY CODE § 711.004 ................................................................36
65606_1 x
TEX. HEALTH & SAFETY CODE § 711.004(a) ................................................ 1, 45, 47
TEX. HEALTH & SAFETY CODE § 711.004(a)-(c) ......................................................17
TEX. HEALTH & SAFETY CODE § 711.004(c) ................................................ 1, 45, 47
TEX. HEALTH & SAFETY CODE § 711.008 ................................................................36
TEX. HEALTH & SAFETY CODE § 711.009 ................................................................36
TEX. HEALTH & SAFETY CODE § 711.010 ........................................................ passim
TEX. HEALTH & SAFETY CODE § 711.010(a) .......................................................2, 17
TEX. HEALTH & SAFETY CODE § 711.010(b) ................................................... passim
TEX. HEALTH & SAFETY CODE § 711.010(c) .............................................. 18, 36, 43
TEX. HEALTH & SAFETY CODE § 711.0105 ....................................................... 22, 36
TEX. HEALTH & SAFETY CODE § 711.0105(c) ...................................... 21, 45, 47, 49
TEX. HEALTH & SAFETY CODE § 711.011 ................................................................36
TEX. HEALTH & SAFETY CODE § 711.0111 ..............................................................36
TEX. HEALTH & SAFETY CODE §§ 711.001–.012 .............................................. 16, 35
TEX. HEALTH & SAFETY CODE §§ 711.021–.049 .....................................................36
Rules
TEX. R. APP. P. 33.1(a) .............................................................................................38
TEX. R. CIV. P. 162 ...................................................................................................33
TEX. R. CIV. P. 173.1 ................................................................................................42
TEX. R. CIV. P. 173.3(c)............................................................................................39
Other Authorities
“Statement from Historians on the Sugar Land 95,” in Br. of Amicus Curiae
Samuel Collins III, at 18-29 (filed Jan. 8, 2019) ................................................... 5
65606_1 xi
Act of May 22, 2019, 86th Leg., R.S., ch. 817,
2019 Tex. Sess. Law Serv. ch. 817 (Vernon) ............................................. passim
Alice Liu, “Sugar Land School District Likely to Build Tech Center
over Burial Ground for Black Convict Laborers,” RICE THRESHER,
http://ricethresher.atavist.com/sugar-land-convict-leasing .................................... 7
Andrea Roberts, “Sugar Land: Treat the Mass Grave of Black Prisoners
Discovered in Texas with Respect,” NEWSWEEK (Aug. 15, 2018),
http://newsweek.com/sugar-land-treat-mass-grave-black-prisoners-
discovered-texas-respect-opinion-1074265 ........................................................... 5
Brent Staples, “A Fate Worse than Slavery, Unearthed in Sugar Land,”
N.Y. TIMES (Oct. 27, 2018), http://nytimes.com/2018/10/27/opinion/
sugar-land-texas-graves-slavery.html .................................................................... 5
Brooke A. Lewis, “Judge Allows Fort Bend ISD to Exhume
Human Remains at Construction Site,” HOUSTON CHRONICLE (June 5, 2018),
https://www.chron.com/neighborhood/fortbend/news/article/Judge
-grants-Fort-Bend-ISD-permission-to-exhume-12965918.php ............................. 4
HOLY SEE PRESS OFFICE, Ad Resurgendum Cum Christo (Oct. 25, 2016),
https://press.vatican.va/content/salastampa/en/bollettino/
pubblico/2016/10/25/161025c.html .....................................................................35
House Comm. on Judiciary & Civil Jurisprudence,
Bill Analysis, Tex. H.B. 2430, 86th Leg., R.S. (2019) ................................ 18, 20
Julie Beck, “Why Humans Care for the Bodies of the Dead,”
THE ATLANTIC (Nov. 12, 2015),
https://www.theatlantic.com/health/archive/2015/11/
why-humans-care-for-the-bodies-of-the-dead/415425 ........................................35
Katharine Shilcutt, “Convict Leasing Symposium at Rice
Will Place the ‘Sugar Land 95’ in National Context,”
http://news.rice.edu/2019/03/15/convict-leasing-symposium-at-rice
-will-place-the-sugar-land-95-in-national-context ................................................. 5
Kristi Nix, “Protesters Rally Against Fort Bend ISD’s Plans
to Move Skeletal Remains of Sugar Land 95,” HOUSTON CHRONICLE
(Jan. 29, 2019), https://www.chron.com/neighborhood/sugarland/news/
article/Protesters-rally-against-Fort-Bend-ISD-s-plans-13572011.php ............1, 7
65606_1 xii
Megan Flynn et al., “A Mass Grave – and Chilling Secrets from
the Jim Crow Era – May Halt Construction of Texas School,”
WASHINGTON POST (Nov. 19, 2018),
http://www.washingtonpost.com/nation/2018/11/19/mass-grave
-chilling-secrets-jim-crow-era-may-halt-texas-schools-construction/ ................... 4
Monica Rhor, “Discovery of African-American Graves in
Texas Highlights ‘Moment of Reckoning,’” USA TODAY
(Dec. 17, 2018), http://usatoday.com/story/news/2018/12/27/
graves-95-african-americans-forced-into-labor-after-slavery-confict
-leasing-system-texas/2364201002/ ....................................................................... 5
Opinion, “Documenting ‘Slavery by Another Name’ in Texas,
” N.Y. TIMES (Aug. 13, 2018), http://nytimes.com/2018/08/13/
opinion/texas-slavery-african-american-graveyard.html ....................................... 5
Opinion, “Mass Graves in Sugar Land Unearth
Horrifying Chapter the History Books Forgot,”
HOUSTON CHRONICLE (Aug. 2, 2018),
http://houstonchronicle.com/opinion/editorials/article/
Mass-graves-in-Sugar-Land-unearth-horrifying-13124798.php ........................... 5
Senate Comm. on State Affairs, Bill Analysis,
Tex. H.B. 2430, 86th Leg., R.S. (2019) ....................................................... 18, 20
Tom Dart, “‘Building Over History’: The Prison Graveyard
Buried under a Texas Suburb,” THE GUARDIAN (June 22, 2019),
http://theguardian.com/us-news/2019/jun/22/
sugar-land-texas-95-burial-ground ........................................................................ 7
65606_1 xiii
STATEMENT OF THE CASE
Nature of the case: Proceeding brought under Chapter 711 of the
Texas Health and Safety Code by Relator,
Fort Bend Independent School District, to
exhume 95 bodies buried in a historic
cemetery discovered on Relator’s property.
SMR000001-13.
After the bodies were exhumed by court
order, Relator amended its pleadings to
request removal of the dedication of the
property for cemetery purposes and the
district court’s permission to reinter the
bodies elsewhere. SMR000017-69, 82-160.
Trial Court/Respondent: Honorable James H. Shoemake
434th Judicial District Court
Fort Bend County District Courts
1422 Eugene Heimann Circle, Courtroom 3I
Richmond, Texas 77469
Relator: Fort Bend Independent School District
(FBISD)
Real-Party-In-Interest: Mr. S. Scott West, court-appointed Guardian
Ad Litem
Real-Party-In-Interest: Mr. Michael W. Elliott, court-appointed
Master-in-Chancery
65606_1 xiv
Trial Court’s Action: On July 25, 2019, Relator filed a nonsuit of
its request to remove the cemetery
designation. SMR000248. The district court
has determined that Relator’s nonsuit does
not resolve several still-justiciable questions,
including the proper handling and
reinterment of the 95 bodies that, at present,
have been placed into a Conex storage trailer
sitting in a school parking lot. SMR000256.
On July 26, 2019, the court appointed Real-
Party-in-Interest, Mr. S. Scott West, as
Guardian Ad Litem and charged Mr. West
with the responsibility to preserve and
protect “the rights, interests, and dignity” of
the 95 bodies. SMR000249.
Relator’s supplemental mandamus petition
challenges the district court’s appointment of
Mr. West as Guardian Ad Litem.
65606_1 xv
ISSUES PRESENTED
1. Whether a district court has continuing jurisdiction, under Chapter 711 of
the Texas Health and Safety Code, to oversee and ensure the proper reburial of 95
bodies exhumed by that court’s order?
2. Whether mandamus will lie from a district court’s reasonable delay in
signing an order of nonsuit, where no such relief was requested by the relator?
3. Whether a district court may reasonably delay the entry of an order of
nonsuit to address collateral matters that remain despite the nonsuit, including the
proper disposition of exhumed bodies that were placed in a storage crate in a
parking lot?
4. Whether a district court has subject-matter jurisdiction to resolve open,
justiciable questions including the proper resettlement of 95 exhumed bodies,
currently located in a storage crate?
5. Whether mandamus will lie from the district court’s appointment of a
guardian ad litem, where the relator never objected to such appointment?
6. Whether the district court may properly appoint a guardian ad litem to assist
the court in determining the public’s interest in the appropriate reinterment of 95
bodies that are indisputably of historical significance to the community?
7. Whether the unclean-hands doctrine should be applied to deny the issuance
of a writ of mandamus?
65606_1 1
STATEMENT OF FACTS IN REPLY
The underlying proceeding involves questions about the proper resettlement
of 95 bodies that were exhumed from an apparently abandoned cemetery on
property owned by Relator, Fort Bend ISD (“FBISD”). FBISD discovered the
bodies in February 2018 while excavating in connection with a construction project
for the building of a new high school. SMR000001-02.1 A total of 95 bodies have
been identified in the cemetery. SMR000019, 35. These bodies have become
known as the “Sugar Land 95.” See, e.g., SMR000075, 250-51.2
FBISD sought to exhume the bodies “for the purposes of further historical
investigation.” SMR000003. However, under Texas law, bodies cannot be
removed from a cemetery, including an abandoned cemetery, without the consent
of the decedent’s family members or an order from a district court in the county
where the cemetery is located. TEX. HEALTH & SAFETY CODE §§ 711.004(a), (c),
711.010. Therefore, on May 14, 2018, FBISD filed a “petition to exhume human
bodies/remains.” SMR000001.
1 To assist the Court in locating sections of the mandamus record, Real-Party-in-Interest has
prepared a Supplemental Mandamus Record, to be filed contemporaneously with this Response
that gathers all of the materials previously filed separately by other parties into one document.
The document has been Bates-numbered for the convenience of the parties and the Court. The
record citations in this Response correlate to the Bates-numbered pages in the supplemental
record.
2 See also, e.g., Kristi Nix, “Protesters Rally Against Fort Bend ISD’s Plans to Move Skeletal
Remains of Sugar Land 95,” HOUSTON CHRONICLE (Jan. 29, 2019),
https://www.chron.com/neighborhood/sugarland/news/article/Protesters-rally-against-Fort-Bend-
ISD-s-plans-13572011.php.
65606_1 2
The Sugar Land 95 were exhumed by court order on FBISD’s promises
that no grave would be disturbed and the remains would not be reinterred
without the court’s permission. FBISD’s petition was assigned to the 434th
Judicial District Court of Fort Bend County, Judge James H. Shoemake presiding.
SMR000001. In its petition, FBISD expressly invoked the district court’s subject-
matter jurisdiction under Section 711.010(a), which then stated:
The owner of property on which an unknown cemetery is discovered
or on which an abandoned cemetery is located may not construct
improvements on the property in a manner that would disturb the
cemetery until the human remains interred in the cemetery are
removed under . . . an order of a district court as provided by this
section . . . .
TEX. HEALTH & SAFETY CODE § 711.010(a) (amended 2019); see SMR000002.
FBISD acknowledged that the district court’s approval was required to exhume the
bodies for historical investigation. SMR000003. Such exhumation was requested
so that FBISD could “gather additional historical data regarding the FBISD Burial
Site, including the sex, age, race, medical condition, and possible causes of death
of the humans laid to rest at the FBISD Burial Site.” SMR000003, 12.
FBISD represented to the court that “[n]o remains or graves will be removed
from the Property at this time.” SMR000003. FBISD further promised that
“[b]urials will not be removed from the Property for any reason other than
temporary removal for the purpose of x-ray analysis, until permission is granted by
the Court for interment.” SMR000012 (emphasis added).
65606_1 3
On June 5, 2018, the court granted FBISD’s request to exhume the Sugar
Land 95. SMR000014-16. The order granting FBISD’s petition stated, in part,
that “Until further order of the court, no remains or graves will be removed from
the tract of real property . . . except for temporary removal for the purpose of x-ray
analysis.” SMR000014 (emphasis added).
Exhumation began on June 7, 2018 and was completed on September 1,
2018. SMR000034-35. All four
boundaries of the cemetery were
determined and a 50-foot buffer was
established on all four sides.
SMR000036; see SMR000260.
After laboratory testing, the bodies were placed in Conex storage trailers on
the property while construction resumed. SMR000120, 196, 215-16, 256. That is
still the situation: the bodies of 95
humans are still “sitting in trailers”
in the school parking lot.
SMR000196; see SMR000260. As
FBISD acknowledges, a Conex
storage trailer sitting in a parking lot is not “a dignified location for eternal rest.”
SMR000196.
65606_1 4
The bodies were discovered to be of historical significance and of interest
to the community. Before FBISD began construction on the property, it was aware
of reports that a possible abandoned historical cemetery was located on or near the
property. SMR000001; see also Brooke A. Lewis, “Judge Allows Fort Bend ISD
to Exhume Human Remains at Construction Site,” HOUSTON CHRONICLE (June 5,
2018), https://www.chron.com/neighborhood/fortbend/news/article/Judge-grants-
Fort-Bend-ISD-permission-to-exhume-12965918.php (noting that school officials
had been warned not to build school on property).
FBISD’s examination of the bodies confirmed that the Sugar Land 95 likely
were victims of an infamous convict-leasing program, known as the “Hellhole on
the Brazos,” that ran from the 1870s through 1911, under which prisoners—most
of whom were African-American—were leased to provide labor to plantations
owners. SMR000032, 75, 109. As part of the program, African-Americans often
were targeted and arrested for minor offenses, then assigned to work in the
plantations. See Megan Flynn et al., “A Mass Grave – and Chilling Secrets from
the Jim Crow Era – May Halt Construction of Texas School,” WASHINGTON POST
(Nov. 19, 2018), http://www.washingtonpost.com/nation/2018/11/19/mass-grave-
chilling-secrets-jim-crow-era-may-halt-texas-schools-construction/. Sure enough,
FBISD’s archaeologist confirmed the remains are of black prisoners, including
former slaves, between the ages of 14 and 70. Id.; see SMR000147.
65606_1 5
It is undisputed that the discovery of the Sugar Land 95 cemetery is of “great
historical significance.” SMR000148; see SMR000021-22, 34, 62, 85, 156, 207,
213-14. It highlights a “dark,” “ugly” and “horrifying” chapter in the history of the
American South.3 SMR000154. Further, “no other burial ground of this scope and
significance has ever been found on land where convict leasing occurred.”4 As
such, the Sugar Land 95 have received extensive nationwide press coverage,5 as
well as the attention of scholars6 and, most significantly, the local community.
See, e.g., SMR000062, 93, 115-19, 143, 216, 234. As FBISD acknowledged,
“there is a lot of community interest here . . . .” SMR000200. At a December
2018 status hearing, the district court noted there were “many people sitting here in
the audience who are interested in this . . . .” SMR000234.
3 Opinion, “Documenting ‘Slavery by Another Name’ in Texas,” N.Y. TIMES (Aug. 13, 2018),
http://nytimes.com/2018/08/13/opinion/texas-slavery-african-american-graveyard.html; Opinion,
“Mass Graves in Sugar Land Unearth Horrifying Chapter the History Books Forgot,” HOUSTON
CHRONICLE (Aug. 2, 2018), http://houstonchronicle.com/opinion/editorials/article/Mass-graves-
in-Sugar-Land-unearth-horrifying-13124798.php. 4 See “Statement from Historians on the Sugar Land 95,” in Br. of Amicus Curiae Samuel
Collins III, at 18-29 (filed Jan. 8, 2019). 5 See, e.g., supra note 3; Flynn et al., supra; Monica Rhor, “Discovery of African-American
Graves in Texas Highlights ‘Moment of Reckoning,’” USA TODAY (Dec. 17, 2018),
http://usatoday.com/story/news/2018/12/27/graves-95-african-americans-forced-into-labor-after-
slavery-confict-leasing-system-texas/2364201002/; Andrea Roberts, “Sugar Land: Treat the
Mass Grave of Black Prisoners Discovered in Texas with Respect,” NEWSWEEK (Aug. 15, 2018),
http://newsweek.com/sugar-land-treat-mass-grave-black-prisoners-discovered-texas-respect-
opinion-1074265; Brent Staples, “A Fate Worse than Slavery, Unearthed in Sugar Land,” N.Y.
TIMES (Oct. 27, 2018), http://nytimes.com/2018/10/27/opinion/sugar-land-texas-graves-
slavery.html. Several of the amici briefs in this case contain additional press clippings. 6 See supra note 4; Katharine Shilcutt, “Convict Leasing Symposium at Rice Will Place the
‘Sugar Land 95’ in National Context,” http://news.rice.edu/2019/03/15/convict-leasing-
symposium-at-rice-will-place-the-sugar-land-95-in-national-context.
65606_1 6
FBISD asked the district court to remove the cemetery designation and
requested permission to reinter the bodies elsewhere. Fort Bend ISD is an award-
winning school district that excels in the education of its students. But FBISD
admits it has no business operating a cemetery: “FBISD has neither the resources
nor the expertise necessary to establish and maintain a perpetual care cemetery on
any school-owned property.” SMR000021.
Therefore, on November 7, 2018, FBISD petitioned the district court to
remove the dedication for cemetery purposes and for permission to reinter the
remains of the Sugar Land 95 in a city cemetery. SMR000017-69. In its filing,
FBISD acknowledged that its requested relief, including reinterment, “may only be
granted by a district court,” and FBISD cited Chapter 711 as the source of the
district court’s subject-matter jurisdiction. SMR000017. FBISD again assured the
court, as it had prior to exhumation, that it would obtain the court’s permission
before seeking to reinter the bodies:
“Burials will not be removed from the construction site . . . for any
reason other than temporary removal for radiography or proposed
special analysis until permission is granted by court order for
reinterment.”
“Once analysis is complete and a court order is obtained for
reinterment, the remains will be reinterred in a timely manner at a
location to be determined.”
SMR000036; see SMR000012.
65606_1 7
The District Court solicited assistance from a master-in-chancery.
FBISD’s plan to move the remains of the Sugar Land 95 from their historic grave
site was met by considerable opposition from historians and the community. See
SMR000117-18; Nix, supra note 2; Alice Liu, “Sugar Land School District Likely
to Build Tech Center over Burial Ground for Black Convict Laborers,” RICE
THRESHER, http://ricethresher.atavist.com/sugar-land-convict-leasing; Tom Dart,
“‘Building Over History’: The Prison Graveyard Buried under a Texas Suburb,”
THE GUARDIAN (June 22, 2019), http://theguardian.com/us-
news/2019/jun/22/sugar-land-texas-95-burial-ground.
As FBISD acknowledges, only a district court may remove a dedication for
cemetery purposes and the reinterment of bodies removed from that cemetery.
SMR000017. See TEX. HEALTH & SAFETY CODE § 711.010(b). For a district court
to grant such relief, it must “find[] that the removal of the dedication is in the
public interest.” Id. The district court sought help in deciding that question.
On November 21, 2018, the district court requested the assistance of
Michael W. Elliott, an attorney in Fort Bend County with legal and specialized
expertise in Texas real-estate law, civil litigation, and mediation and case-
settlement procedures. SMR000070-71. Because of Mr. Elliott’s expertise, the
court appointed him as a master-in-chancery to assist the court in resolving the
matter. SMR000069-73.
65606_1 8
The court deemed this case “exceptional” because
[T]he subject matter of this litigation involves the substantial and
personal rights of what will most likely be in excess of one hundred
(100) individuals, families and other interested persons and/or entities
that may well be of a significant historical value and must therefore be
handled with a great deal of care, compassion and thoughtfulness to
the deceased and all parties and interested people involved.
SMR000071. The master-in-chancery was specifically tasked with assisting in the
investigation, legal discovery, and “the promulgation of options and potential
resolution options for the Court to consider in the case . . . .” SMR000072. The
court ordered FBISD to cooperate with Mr. Elliott and to grant him access to
property, individuals with relevant knowledge, and non-privileged documents.
SMR000072.
FBISD refused to cooperate with the master-in-chancery, then filed a
nonsuit in an attempt to deprive the district court of jurisdiction. FBISD did not
comply with the court’s order or the master-in-chancery’s request for documents.
Mr. Elliott had requested that FBISD produce several categories of information
that might help to identify the Sugar Land 95 or their descendants. SMR000179-
80. FBISD declined to release any information, claiming that the bodies had not
been “scientifically” matched with lists of suspected prisoners, SMR000179-80,
and it ignored the master-in-chancery’s follow-up requests for information for
information, “confirmed or not.” SMR000180, 221.
65606_1 9
The district court held a status hearing on December 18, 2018.
SMR000189-241. By then, the record reflects, FBISD knew the possible
identification of at least one, and perhaps as many as twenty-one, of the bodies.
SMR000218-20. One of the decedents had undergone a medical amputation that
“matches up with” records in FBISD’s possession. SMR000218. The master-in-
chancery stated, “[I]t may not be DNA perfect, but I think they have a very good
idea of who at least 21 of these individuals are.” MR000219-20.
The court has sought any possible information that might be used to identify
the Sugar Land 95, because their descendants may have a statutory right to
participate in this proceeding. SMR000209, 220, 223, 236. The master-in-
chancery asked the court to compel FBISD to disclose several categories of
documents “so that I can help do my job and get the information that this Court
needs before it.” SMR000221; see SMR000181-83.
However, discovery in this case came to an end on December 20, 2018 when
this Court stayed the order appointing the master-in-chancery. As a result, any
information that FBISD has obtained about the Sugar Land 95 pursuant to the
court’s exhumation order, has never been provided to the court. This evidence
may include DNA results inasmuch as FBISD has collected and transferred
materials necessary for DNA testing. See Appx. tab A, at 1-2; Appx. tab B, at 1;
see also SMR000236.
65606_1 10
On July 11, 2019, FBISD entered into an “Interlocal Agreement” with Fort
Bend County regarding the reinterment of the bodies. See Appx. tab A.
Notwithstanding its repeated promises that it would not seek to reinter the bodies
without the court’s approval, FBISD did not submit the agreement for the court’s
approval. SMR000036; see SMR000012. Instead, on July 25, 2019, FBISD filed
a nonsuit of its affirmative request to remove the dedication for cemetery purposes.
SMR000248. Left unaddressed was FBISD’s pending request, under Section
711.010, to reinter the bodies. Compare SMR000017-24, 87-97 (FBISD’s
pleadings seeking removal of cemetery designation and approval to reinter bodies)
with SMR000248 (nonsuit of request to remove dedication).
Critical questions remain despite Relator’s nonsuit. Whether FBISD’s
nonsuit affected its request for court approval to reinter the bodies is not the only
unanswered question still left to be decided, as the district court has observed:
[T]hat attempted/partial nonsuit does not in the Court’s opinion,
resolve of all parties and/or open issues and many conflicts still open
and present in the case, including but not limited to handling and
enforcing and the Open, Active and Un-Resolved Court’s Temporary
Orders controlling the current status and keeping of the ninety-five
so[ul]s that have been dug-up and temporar[il]y stored in a storage
container on the property by [Relator] pending further Orders of the
Court, the location and identification of legal Descendants . . . and/or
authority to re-inter[] the 95 so[ul]s. . . in a peaceful and dignified
manner in the best interest of the public as the Health & Safety Code
and public decency requires.
SMR000256.
65606_1 11
The district court has found that FBISD is not acting in the best interests of
the 95 bodies, their as-yet-unidentified descendants, or the community. See
SMR000233-39. Those determinations are implicit in the court’s appointment of
Mr. West, on July 26, 2019, as guardian ad litem to “preserve and protect” the
rights, interests, and dignity of the 95 bodies. SMR000249. That appointment
follows express findings by the court to that effect. See SMR000233-39.
The Court should be aware that currently there is no agreement between
FBISD and the County, or with any other governmental unit, regarding the reburial
of the Sugar Land 95, and likewise no agreement for the establishment and
maintenance of a cemetery. Nevertheless, FBISD has publicly announced its plans
to reinter the bodies as it deems fit, without seeking the court’s approval:
The District’s plans for interment remain ongoing. District officials
are in the process of procuring burial vessels and internment [sic]
services. The District hopes to announce a timeline for reinterment,
including plans for a memorial service, in the near future.
The District has also been negotiating with Fort Bend County officials
to transfer the cemetery to the county once the reinterment process is
complete.
Appx. tab C (emphasis added). Those “negotiations” are incomplete. FBISD’s
planned reinterment could moot this proceeding and thereby deprive this Court of
jurisdiction. For this reason, the Court should lift its stay order and permit Mr.
West to file his planned application for temporary restraining order, see
SMR000259-65, to preserve the status quo and this Court’s jurisdiction.
65606_1 12
The Court should be aware of one other critical fact. Although FBISD has
publicly announced its intention to reinter the Sugar Land 95 on school property, it
likely is not physically possible for the bodies to be reinterred where they were
found. Upon review of photographic evidence, and upon information and belief,
many of those graves have been covered by cement for walkways, driveways, or
the building. See SMR000263; see also SMR000260 (photographs showing
original burial sites and current view of FBISD’s construction site).
65606_1 13
SUMMARY OF ARGUMENT
At all times, Judge James H. Shoemake has approached this case cautiously
and prudently, with appropriate respect for the bodies, for their as-yet-unidentified
descendants, and for the strong community interest in the proper and dignified
resolution of this sad chapter in Texas history. The court has determined, and the
record supports his conclusion, that the public’s interest goes beyond the mere
financial concerns expressed by Relator. The court noted its “worry” that FBISD,
which has a financial interest in a speedy resolution, does not fully represent the
interests of the community. The court thus appointed a master-in-chancery to
assist in gathering information necessary for the court to perform its statutory duty.
FBISD has acknowledged that “we still have 95 human remains sitting in
trailers,” which is not “a dignified location for eternal rest.” SMR000196. The
court thus appointed Mr. West to preserve and protect the rights, interest, and
dignity of the 95 bodies that have been left in a Conex storage trailer.
The Legislature has intervened in this case to confirm that Judge Shoemake
has both jurisdiction and authority to make necessary decisions about where, when,
and how the Sugar Land 95 should be reburied. The Legislature further equipped
the court to make these critical decisions by authorizing the appointment of
persons, such as the master-in-chancery and Mr. West, to assist the court in
determining the public interests with respect to these historically significant bodies.
65606_1 14
Notwithstanding the Legislature’s plain intent that this delicate situation be
presided-over by the district court, Relator seeks a petition for writ of mandamus
so that it may dispose of the bodies—although it has no such legal authority—
without having to obtain the court’s approval. Having already obtained limited
relief from this Court, FBISD apparently now intends to litigate this case, not in
the district court that maintains jurisdiction, but in the First Court of Appeals.
However, FBISD cannot short-circuit the rules that require litigants to first
present their complaints to the trial court before seeking mandamus review.
Relator has repeatedly failed to do; therefore, it has not properly preserved and
presented its complaints for mandamus review.
Judge Shoemake’s careful handling of this case and his showing of prudence
and restraint should be commended, not labeled as an “abuse of discretion.” The
record in no way demonstrates any abuse of discretion by the Respondent. For all
of these reasons, Real-Party-in-Interest respectfully prays that this Honorable
Court deny Relator’s petition (and its supplemental petitions) for a writ of
mandamus.
65606_1 15
ARGUMENT
“Show me the manner in which a nation cares for its dead
and I will measure with mathematical exactness the
tender mercies of its people, their respect for the laws of
the land, and their loyalty to high ideals.”
-Sir William Ewart Gladstone
I. FBISD’s Nonsuit Did Not Divest the District Court of Jurisdiction
to Ensure the Proper Resettlement of the Exhumed Bodies.
A. The district court has jurisdiction and a continuing duty to
oversee the reinterment of bodies exhumed by the court’s
order.
Relator has repeatedly acknowledged the district court’s jurisdiction and
authority to preside over the exhumation and reinterment of the Sugar Land 95.
FBISD could not exhume the bodies without court order. FBISD could not remove
the bodies from the historic cemetery without court order. And FBISD cannot
reinter those exhumed bodies without the district court’s approval.
1. The court’s jurisdiction exists independently of, and
survives, FBISD’s nonsuit.
“The jurisdiction of all Texas courts, including this Court, derives from the
Texas Constitution and state statutes.” In re Allcat Claims Serv., L.P., 356 S.W.3d
455, 459–60 (Tex. 2011). Where jurisdiction is conferred by statute, as it is here,
the statute prescribes the scope and duration of the court’s jurisdiction. See id. at
460 (describing jurisdiction conferred by Tax Code); see also Fawcett v. Rogers,
492 S.W.3d 18, 29 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (noting that
65606_1 16
scope of appellate court’s jurisdiction over interlocutory appeals is prescribed by
statute); Reliant Energy, Inc. v. Gonzalez, 102 S.W.3d 868, 880 (Tex. App.—
Houston [1st Dist.] 2003), aff’d, 159 S.W.3d 615 (Tex. 2005) (construing Probate
Code section as conferring jurisdiction on district courts to consider actions
brought by personal representative of estate).
Here the district court’s jurisdiction is prescribed by Chapter 711 of the
Texas Health and Safety Code, which confers considerable discretion on a district
court to decide (1) whether to exhume bodies; (2) whether to remove remains from
a cemetery plot; (3) whether removal of a cemetery designation is in the public
interest; (4) whether the removal of bodies from a cemetery is in the public
interest; and (5), once exhumed, where and how bodies should be reinterred. See
generally TEX. HEALTH & SAFETY CODE §§ 711.001–.012.7 None of those
decisions may be made by the property owner (FBISD) without the court’s
approval (and, in some cases, consent by the family). To be clear, FBISD has not
sought, and does not have, consent from any family member of the decedents.
Accordingly, these decisions must be made by the district court, and it has the
jurisdiction under Chapter 711 to do so.
7 For the remainder of this Response, all statutory references are to the Health and Safety Code
unless otherwise indicated.
65606_1 17
This proceeding began with FBISD’s petition to exhume human bodies.
SMR000001-13. Under Chapter 711, human remains may be exhumed only with
the consent of the decedent’s family or by court order. See § 711.004(a)-(c). But a
more specific provision applies to abandoned, unknown, or unverified cemeteries.
See § 711.010. That section prohibits a property owner from constructing any
improvements “in a manner that would disturb the cemetery until the human
remains interred in the cemetery are removed under . . . an order of a district court
as provided by this section . . . .” § 711.010(a). The removal of a body from its
grave in an abandoned cemetery thus requires a court order. Id.
FBISD knows this. In its exhumation petition, FBISD specifically cited
Section 711.010(a) as the basis for the trial court’s subject-matter jurisdiction to
order removal of the bodies from their graves. SMR000002. FBISD represented
to the court that (1) permission was sought solely to exhume the bodies for
historical investigation; (2) no remains or graves would be removed; (3) FBISD
was not seeking the removal of the cemetery designation; and, perhaps most
importantly, (4) FBISD would not seek to reinter the bodies without obtaining the
court’s approval. SMR000003, 12. Based on those promises, FBISD’s request
was granted. SMR000014-16. The court’s temporary order provides, in part, that
“Until further order of the court, no remains or graves will be removed . . . except
for temporary removal for . . . x-ray analysis.” SMR000014 (emphasis added).
65606_1 18
After the bodies were exhumed under the court’s order, FBISD petitioned
the court to remove the dedication of the property for cemetery purposes and for
permission to reinter the exhumed remains in a cemetery owned by the City of
Sugar Land. SMR000017. Again, such relief may be granted only by a district
court. See § 711.010(b). Thus, FBISD again invoked Chapter 711 as the basis for
the court’s jurisdiction and it acknowledged that “the relief sought by FBISD may
only be granted by a district court . . . .” SMR000017.
Because of the historical significance and extensive media coverage, the
Legislature got involved. It amended several of Chapter 711’s provisions to
confirm and clarify a district court’s authority and the specific manner in which it
should discharge its statutory duties. See Act of May 22, 2019, 86th Leg., R.S., ch.
817, 2019 Tex. Sess. Law Serv. ch. 817 (Vernon) (to be codified at TEX. HEALTH
& SAFETY CODE § 711.010(b), (c)) (Appx. tab D). The Legislature made these
revisions specifically in response to this case.8 Its interest in this historically
significant cemetery was sufficiently serious that the Legislature made these
amendments effective immediately and applicable to this case. Act of May 22,
2019, 86th Leg., R.S., ch. 817, §§ 4-5.
8 See House Comm. on Judiciary & Civil Jurisprudence, Bill Analysis, Tex. H.B. 2430, 86th
Leg., R.S. (2019) (Appx. tab E) (“The recent discovery of an unmarked burial ground with
connections to the 19th and 20th century system of convict leasing has raised concerns regarding
state law relating to the removal of human remains from abandoned or rediscovered
cemeteries.”); Senate Comm. on State Affairs, Bill Analysis, Tex. H.B. 2430, 86th Leg., R.S.
(2019) (Appx. tab F) (stating same purpose).
65606_1 19
As FBISD has acknowledged, Section 711.010 permits the removal of a
cemetery dedication, and the exhumation and reinterment of bodies, only upon a
court finding that those actions are in the public interest. SMR000020-21; see
§ 711.010(b). For the most part, however, FBISD has argued that the only “public
interest” that really matters is its desire to minimize its construction costs, and it
claimed the court was obligated to grant FBISD’s petition absent a plea in
intervention filed by the state or county historical commissions. SMR000084; see
SMR000096 (“[O]nly FBISD has the right to be heard by the Court or introduce
evidence of the public interest.”); see also SMR000021-22, 82-96, 199-200.
Evidently the Legislature disagreed with FBISD’s interpretation of the
statutory scheme, because it amended Section 711.010 to permit a district court to
consult with historical commissions without their having to intervene. Act of May
22, 2019, 86th Leg., R.S., ch. 817, § 2. The Legislature authorized district courts
to designate or appoint any other person, party, court-appointed representative, or
official deemed necessary in deciding the public interest. See id.
The Legislature also enlarged the list of permissible locations in which
remains that are removed from a cemetery may be reinterred. See id. In addition
to a perpetual care cemetery or municipal or county cemetery, a district court may
order that exhumed remains be interred “any other place on the owner’s property
that the district court finds is in the public interest.” Id. (emphasis added).
65606_1 20
Thus, the reburial of bodies that have been removed from the cemetery, even
on the owner’s property, still requires a court order and the court’s finding that
such reinterment is in the public’s interest. See id. As the House Committee’s Bill
Analysis confirms:
There have been calls, additionally, to allow a court more flexibility in
ordering where such disinterred remains are to be reinterred in order
to preserve proximity to the original site when appropriate. H.B. 2430
seeks to address these concerns by . . . allowing the court the option of
ordering reburial on the same property.
House Comm. on Judiciary & Civil Jurisprudence, Bill Analysis, Tex. H.B. 2430,
86th Leg., R.S. (2019) (Appx. tab E) (emphasis added); see also Senate Comm. on
State Affairs, Bill Analysis, Tex. H.B. 2430, 86th Leg., R.S. (2019) (Appx. tab F)
(“H.B. 2430 seeks to address these concerns by . . . allowing the court to order the
reburial on the same property.”) (emphasis added).9 Section 711.010 thus reflects
legislative intent that removal of bodies from their graves, and the reinterment of
those remains, must be done in accordance with the district court’s determinations
as to the public interest. See § 711.010; Act of May 22, 2019, 86th Leg., R.S., ch.
817, § 2 (Appx. tab D).
9 The Court should consider this legislative history in its construction of Chapter 711. “We also
may consider, among other things and whether the statute is ambiguous, the statute’s objectives,
the circumstances under which the statute was enacted, legislative history, common law, former
law, similar provisions, and the consequences of the statutory construction.” In re Huag, 175
S.W.3d 449, 452 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding).
65606_1 21
If that were not sufficient proof of legislative intent, Section 711.0105
further confirms the court’s jurisdiction and authority to direct the disposition of
remains that have been removed from the grave under Chapter 711. “Remains that
have been moved must be reburied unless a court, medical examiner, coroner,
other authorized official, or next of kind approves a different disposition of the
remains.” § 711.0105(c). Thus, whether exhumed bodies are to be reburied
elsewhere or in the same place where they were found, in either case the district
court has the authority to direct and oversee such reinterment.
Chapter 711 thus establishes a comprehensive jurisdictional scheme in
which, once bodies have been exhumed, the district court retains jurisdiction until
such bodies are properly reinterred under the court’s direction. This jurisdiction
exists continuously despite, and independently from, the property owner’s
subsequent decision to nonsuit its request to relocate the exhumed bodies
elsewhere. See Thomas v. Cook, 350 S.W.3d 382, 389 (Tex. App.—Houston [14th
Dist.] 2011, pet. denied) (holding that trial court has subject-matter jurisdiction to
confirm arbitration award “independently of the presence or absence of previously
asserted causes of action” and despite a nonsuit.).
65606_1 22
2. FBISD has no authority to act without court
approval.
Conspicuously absent from this statutory scheme is any authority conferred
on property owners to act without approval from a district court or family member.
Specifically, FBISD could not:
remove the bodies from their graves without court order, see
§ 711.010; or
rebury the bodies—even on its own property—once they have been
removed from their graves, without court approval. See §§ 711.010,
711.0105.
The Legislature intentionally chose not to confer such powers on a property owner,
whose interests may run adverse to the community’s—as the district court found to
be true here. SMR000233-38, 239.
In its pleadings in the trial court, FBISD frequently cited Chapter 711 as the
basis for the district court’s jurisdiction. It is notable, then, that in its supplemental
mandamus petition, not once does Relator mention this comprehensive legislative
scheme that governs the exhumation, removal, and reinterment of human remains.
This Court has no such luxury; it must give effect to the Legislature’s wishes
with respect to the proper and delicate handling of the Sugar Land 95. A court’s
“‘objective in construing a statute is to give effect to the Legislature’s intent, which
requires us to first look to the statute’s plain language.” Universal Plant Servs.,
Inc. v. Dresser-Rand Grp., Inc., 571 S.W.3d 346, 355 (Tex. App.—Houston [1st
65606_1 23
Dist.] 2018, no pet.) (citation omitted). “[L]egislative intent derives from an act as
a whole rather than from isolated portions of it.” Id. (citation omitted). The Court
must also presume that the Legislature intended a just and reasonable result by
enacting the statute. See id. at 356. The Court “will not interpret a statute in such
a way as to make any part of it meaningless.” In re Huag, 175 S.W.3d 449, 456
(Tex. App.—Houston [1st Dist.] 2005, orig. proceeding). Neither will the Court
construe a statute “in a manner that will lead to a foolish or absurd result when
another alternative is available.” Id. at 452.
Therefore, the Court cannot adopt an interpretation in which a Rule 162
nonsuit can be used to destroy a trial court’s jurisdiction to ensure the proper
resettlement of bodies exhumed by that court’s order. Such an interpretation
would effectively rewrite Chapter 711 by permitting a property owner the authority
to rebury 95 historically-significant bodies in whatever fashion it wants, “public
interest” be damned. If a property owner could divest the district court of
jurisdiction over exhumed bodies simply by nonsuiting its claim, the owner could
effectively thwart legislative intent by acting without court approval and without
regard to the public’s interests. The consequences of such a holding would be
disastrous. See Huag, 175 S.W.3d at 452 (court may consider consequences of
particular construction).
65606_1 24
Let us assume, arguendo, that FBISD’s nonsuit could and did divest the
district court of jurisdiction over the reinterment of these 95 souls. The question
would become: who has the say-so over where and how, and even when, these
people are to be reburied? Their descendants have not been located, in large part
because of FBISD’s refusal to provide relevant information to the court. See infra
Section II.C. The statute confers no authority on a property owner to make these
critical decisions, which are reserved for family members and/or the district court.
The only possible conclusions are that either (1) the bodies will be left in a storage
trailer, sitting in a parking lot, indefinitely (i.e., the current situation); or (2) the
property owner gets to make these decisions, without having legal authority to do
so and despite express and implied findings by the court that FBISD is not acting
in the public interest or with appropriate concern for the rights, interests, and
dignity of the Sugar Land 95.
Either scenario is intolerable and runs afoul of legislative intent. The
Legislature has made clear its feelings about the burial of remains generally, and
specifically these remains. The Legislature did not grant any authority to the
property owner. Instead, the Legislature confirmed that these decisions must be
made by the district court; the court is to consider the public interest; and the court
may consult with whomever it deems necessary to make that decision. Depriving
the district court of jurisdiction under Rule 162 would thwart this legislative intent.
65606_1 25
B. A district court may delay the granting of a nonsuit to
address collateral matters, including the proper handling
and reburial of bodies currently stashed in a storage crate.
As described above, the district court’s jurisdiction arises from Chapter 711
and continues until the exhumed bodies are reinterred. A Rule 162 nonsuit does
not affect that jurisdiction. Even if it could, a nonsuit still would not deprive the
district court of jurisdiction to resolve still-justiciable questions, such as the proper
disposition of the exhumed bodies. But first, there is a procedural impediment to
the issuance of mandamus relief. FBISD has not “made a demand for performance
that the trial court refused.” In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933, 936
(Tex. App.—Tyler 2005, orig. proceeding). Therefore, mandamus should be
denied without reaching the merits.
1. Relator has not asked the district court to enter an
order of dismissal.
“[A] nonsuit is effective when it is filed.” Univ. of Tex. Med. Branch at
Galveston v. Estate of Blackmon, 195 S.W.3d 98, 100 (Tex. 2006). “A nonsuit
‘renders the merits of the nonsuited case moot.’” Olley v. Raamco Tex. Props.,
No. 01-11-00321-CV, 2013 WL 1087729, at *1 (Tex. App.—Houston [1st Dist.]
Mar. 14, 2013, no pet.) (mem. op.) (quoting Travelers Ins. Co. v. Joachim, 315
S.W.3d 860, 862 (Tex. 2010)). However, the mere filing of a nonsuit does not
completely terminate the trial court’s ability to act; it is only upon the expiration of
the court’s plenary power that it loses jurisdiction.
65606_1 26
It is “the signing of an order dismissing a case, not the filing of a notice of
nonsuit, [that] is the starting point for determining when a trial court’s plenary
power expires.” In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (orig. proceeding);10
see Harris Cty. Appraisal Dist. v. Wittig, 881 S.W.2d 193, 194 (Tex. App.—
Houston [1st Dist.] 1994, orig. proceeding). “It is only after plenary jurisdiction
has expired that a trial court” completely loses the ability to act. See Bennett, 960
S.W.2d at 38; Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d 594, 596
(Tex. 1996) (“[A] trial court’s plenary power to act in a case does not expire until
thirty days after the court has signed the judgment.”).
Here, the district court has not yet signed an order of dismissal, and Relator
has not asked him for such an order. See Wittig, 881 S.W.2d at 194 (“In this case,
the respondent did not sign an order granting the non-suit. Thus, the trial court still
had jurisdiction over the suit when HSU filed its motion to reinstate.”). The
signing of a dismissal order may be merely a “ministerial act,” but an order is still
10
FBISD’s supplemental mandamus petition does not correctly describe the supreme court’s
holding in Bennett. Relator cites Bennett as “finding that litigant’s nonsuit stripped the court of
jurisdiction thus the court had no discretion but to enter a nonsuit order and its order doing so is
ministerial.” Supp. Pet. at 4. Not so; instead the supreme court held in Bennett that “neither the
filing of a nonsuit nor the subsequent removal of a case to federal court deprived the state court
of jurisdiction to consider, sua sponte, whether sanctions should be imposed on attorneys for pre-
removal conduct when the sanctions are unrelated to the merits of the removed case.” Bennett,
960 S.W.2d at 36.
FBISD has mistakenly cited to the supreme court’s description of the court of appeals’s
holding. Compare Supp. Pet. at 4 with Bennett, 960 S.W.2d at 38. But, in the very next
sentence, the supreme court rejected that conclusion: “That holding [by the court of appeals]
gives an inordinate amount of weight to a notice of nonsuit and strips a trial court of authority to
sanction the conduct of counsel when appropriate.” Id. at 38.
65606_1 27
necessary. See Wittig, 881 S.W.2d at 194–95; see also Joachim, 315 S.W.3d at
362 (“[A] trial court is without discretion to refuse an order dismissing a case
because of a nonsuit unless collateral matters remain.”) (emphasis added).
“[W]here a trial court has a legal duty to perform a nondiscretionary act,
mandamus relief is not available unless the record shows the relator made a
demand for performance that the trial court refused.” E. Tex., 154 S.W.3d at 936
(citing O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (orig.
proceeding)). FBISD has not asked the district court to sign an order granting a
nonsuit. Therefore, the Court should deny mandamus relief. See E. Tex., 154
S.W.3d at 936.
2. Collateral matters remain after the nonsuit.
Further, the jurisprudential underpinnings of Relator’s jurisdictional
argument are fundamentally unsound. The mechanism by which a nonsuit
deprives a court of jurisdiction in some cases is by rendering the case moot for lack
of any justiciable interest to be resolved by the court. Here, there are critical
justiciable issues still to be resolved by the district court despite Relator’s nonsuit.
Therefore, this case is not moot, and the district court retains subject-matter
jurisdiction to resolve those remaining justiciable questions.
65606_1 28
a. FBISD’s nonsuit does not moot still-justiciable
questions.
The theory behind Relator’s jurisdictional argument is that, in many cases,
the effect of a Rule 162 nonsuit is to restore the status quo before the lawsuit. See
Waterman Steamship Corp. v. Ruiz, 355 S.W.3d 387, 399 (Tex. App.—Houston
[1st Dist.] 2011, pet. denied). “[A nonsuit] merely places [the parties] in the
position that they were in before the court’s jurisdiction was invoked just as if the
suit had never been brought.” Id. (citation omitted); but see Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 864 (Tex. 2010) (“This conclusion is in tension with the
trial court’s authority to address proper matters after a nonsuit is entered . . . .”).
Described differently, a case becomes moot when a nonsuit results in a
situation in which “[t]he lawsuit remains on the docket merely as an empty shell
awaiting the final ministerial act of dismissal.” In re Martinez, 77 S.W.3d 462,
464 (Tex. App.—Corpus Christi 2002, orig. proceeding) (citation omitted). The
question is whether, as a result of the nonsuit, there is “any substantive matter to be
determined,” see Zimmerman v. Ottis, 941 S.W.2d 259, 263 (Tex. App.—Corpus
Christi 1996, orig. proceeding), or, conversely, whether this is “merely a
theoretical dispute.” In re Estate of Gibbons, 451 S.W.3d 115, 120 (Tex. App.—
Houston [14th Dist.] 2014, pet. denied); accord Bonham State Bank v. Beadle, 907
S.W.2d 465, 467 (Tex. 1995).
65606_1 29
The court of appeals in Joachim had (erroneously) reached the same
conclusion argued by Relator here. The court of appeals had believed that,, “a
nonsuit renders the merits of the case moot,” so necessarily any action taken after
the nonsuit was without subject-matter jurisdiction “for lack of justiciability.” See
Joachim, 315 S.W.3d at 864 (emphasis added). However, as the supreme court
explained, the filing of a nonsuit may moot the merits of the plaintiff’s claims, but
there still may be justiciable questions to be resolved by the court:
When a court initially has jurisdiction to grant relief to resolve a live
controversy between parties with proper standing, a party’s filing a
nonsuit—while rendering the merits of the case moot—cannot deprive
the court of its entire jurisdiction. Rather, the court must retain certain
limited authority to dispose of the case following a nonsuit, and today
we hold that this includes the necessary authority to enter a dismissal
with prejudice.
Joachim, 315 S.W.3d at 865 (emphasis added).
In this case, FBISD’s nonsuit cannot possibly restore the status quo that
existed before this lawsuit. Cf. Waterman Steamship Corp., 355 S.W.3d at 399.
The “status quo that existed before this lawsuit” was that the Sugar Land 95 were
still in situ in their graves in the cemetery on Relator’s property. That is no longer
the case; at FBISD’s request, 95 bodies were removed from the ground; and those
remains currently reside in a Conex storage trailer sitting in a parking lot on school
property. Nonsuiting a case does not put those bodies back into the grave.
65606_1 30
FBISD’s nonsuit may have mooted the merits of its request to remove the
cemetery designation. SMR000017-69; see also SMR000248 (“[FBISD] no longer
seeks to remove the cemetery designation from the abandoned and unverified
historical cemetery located on its property[.]”).11
See Joachim, 315 S.W.3d at 865.
But justiciable questions remain that are collateral to the merits of that request, and
those justiciable questions still must be resolved.
The trial court has identified the justiciable issues that remain to be decided:
[FBISD’s] attempted/partial nonsuit does not in the Court’s opinion,
resolve of all parties and/or open issues and many conflicts still open
and present in the case, including but not limited to handling and
enforcing and the Open, Active and Un-Resolved Court’s Temporary
Orders controlling the current status and keeping of the ninety-five
so[ul]s that have been dug-up and temporar[il]y stored in a storage
container on the property by Fort Bend Independent School District
pending further Orders of the Court, the location and identification of
legal Descendants of the ninety-five so[ul]s, as well as cost, fees, and
other important open conflicts and live issues before the Court of re-
internment direction(s) and/or authority to re-interment of the 95
so[ul]s in the case in a peaceful and dignified manner in the best
interest of the public as the Health & Safety Code and public decency
requires.
SMR000256. Thus, this lawsuit is not “merely a theoretical dispute.” Estate of
Gibbons, 451 S.W.3d at 120. It is not “an empty shell awaiting the final
ministerial act of dismissal.” Martinez, 77 S.W.3d at 464.
11
Notably, FBISD’s notice of nonsuit says nothing about its pending request to remove the
remains from its property. Compare SMR000017-23 (praying for “permission to remove the
remains exhumed from the Property and to reinter the remains at the Imperial Prison Farm
Cemetery”) and SMR000082-96 (requesting permission to permanently reinter remains in city
cemetery) with SMR000248 (nonsuiting request to remove cemetery designation).
65606_1 31
To the contrary, there are substantive, justiciable questions that still must be
determined. The most pressing of these questions is, of course, what should be
done with 95 bodies in a storage crate sitting on a school parking lot? Only the
district court may make this decision, after deciding the best interests of the
community. The court’s resolution of that question has a very definite and
practical legal effect on the property owner; on the decedents and their as-yet-
unidentified relatives; and on the community itself.
b. The Court should follow its sister court’s
reasoning in Thomas v. Cook.
A few years ago, the Fourteenth Court of Appeals grappled with some of
these same jurisdictional questions in the context of an arbitration award that was
confirmed by a district court after the plaintiff nonsuited her claims. See Thomas
v. Cook, 350 S.W.3d 382, 388 (Tex. App.—Houston [14th Dist.] 2011, pet.
denied). Thomas argued there, as Relator does here, that her nonsuit divested the
trial court of jurisdiction to sign an order because she was the only party seeking
affirmative relief at the time of her nonsuit. See id.
Justice Bill Boyce, writing for the panel majority, rejected Thomas’s
jurisdictional arguments for four reasons. See id. Three of those reasons directly
bear on this dispute. First, the district court had subject-matter jurisdiction that
was conferred by statute and existed independently of Thomas’s requests for relief.
See id. at 388–89; see also supra Section I.A.
65606_1 32
Second, the lawsuit did not become moot by plaintiff’s nonsuit because a
justiciable controversy remained:
“A case becomes moot when (1) it appears that one seeks to obtain a
judgment on some controversy, when in reality none exists, or (2)
when one seeks a judgment on some matter which, when rendered for
any reason, cannot have any practical legal effect on a then-existing
controversy.” []Justiciability requires “‘a real controversy between
the parties, which . . . will be actually determined by the judicial
declaration sought.’”[]
There is nothing contingent or hypothetical about a request to enforce
the arbitration provision and confirm the arbitration award in favor of
Cook and Ardyss. The parties’ business dispute did not cease; nor did
their dispute regarding their respective rights against one another
under the Distribution Contract or with respect to arbitration.
Confirmation of an arbitration award . . . has a very definite and
practical legal effect on the parties’ continuing dispute. Therefore, a
justiciable controversy existed and continues to exist.
Id. at 390 (citations omitted). And third, the trial court retained jurisdiction to
address “collateral matters” as necessary to advance public-policy goals. See id. at
390–91; see generally Section I.B.2.
Justice Boyce’s opinion in Thomas is, as usual, scholarly and well-written,
and the Texas Supreme Court subsequently declined Thomas’s petition for review
asserting the same jurisdictional arguments rejected by the Fourteenth. Thomas
provides an excellent roadmap for this Court’s analysis here. This Court should
likewise hold that (1) Judge Shoemake’s jurisdiction exists independently of
FBISD’s nonsuit; (2) justiciable issues remain despite the nonsuit; and (3) the
district court also has jurisdiction to decide collateral issues following the nonsuit.
65606_1 33
c. The court retains jurisdiction to resolve these
collateral, justiciable questions that remain
after the nonsuit.
A “trial court need not immediately dismiss the suit when notice of nonsuit
is filed,” Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon, 195
S.W.3d 98, 100 (Tex. 2006), because “[t]he plaintiff does not have an unqualified
right to a dismissal of the entire suit.” Wittig, 881 S.W.2d at 194. Even after a
nonsuit, the trial court has jurisdiction to address matters that are collateral to the
merits of the plaintiff’s claim—even if they arise after the nonsuit. See Joachim,
315 S.W.3d at 863; UTMB, 195 S.W.3d at 101; Bennett, 960 S.W.2d at 38;
Schexnider, 940 S.W.2d at 596.
Rule 162 itself identifies several such collateral matters, including issues
about costs, attorney’s fees, and sanctions. TEX. R. CIV. P. 162; UTMB, 195
S.W.3d at 101. But those are not the only “collateral matters” that a trial court has
jurisdiction to address following a nonsuit. See Joachim, 315 S.W.3d at 864
(recognizing there were “circumstances beyond those contemplated by Rule 162”).
Instead, whether a trial court has jurisdiction to address a particular issue after
nonsuit depends upon the policy goal to be advanced:
The scope of a trial court’s “necessary authority” to address
“collateral” and “proper” matters following nonsuit depends in part on
whether such authority advances “well-recognized policy goals” or
“an express policy, as given by the Legislature.”
Thomas, 350 S.W.3d at 390 (citing Joachim, 315 S.W.3d at 863–65).
65606_1 34
For example, in Schexnider the supreme court recognized that public policy
discourages the filing of frivolous claims and that a trial court therefore retains
jurisdiction to impose sanctions following a nonsuit, because “Rule 162 would
frustrate these purposes if it allowed a party to escape sanctions by simply
nonsuiting the aggrieved party.” Schexnider, 940 S.W.2d at 596–97. In Joachim,
the supreme court held that a trial court retained jurisdiction to enter orders of
dismissal with prejudice, even after nonsuits, because such authority advanced
important goals to ensure the finality of cases dismissed with prejudice following a
nonsuit because of settlement. Joachim, 315 S.W.3d at 865. And in Thomas, the
Fourteenth recognized a trial court’s authority to confirm an arbitration award,
even after nonsuit, because “enforcement of arbitration provisions and awards is a
‘well-recognized policy goal.’” Thomas, 350 S.W.3d at 390 (citation omitted).
In this case, there are at least two important policy goals that would be
advanced by holding that Judge Shoemake retained jurisdiction, even after
FBISD’s nonsuit, to appoint Mr. West as guardian ad litem to protect and preserve
the rights, interests, and dignity of the Sugar Land 95. First, there is a strong
public policy, as repeatedly shown by the Legislature’s interest in the subject, in
ensuring the proper, respectful, and dignified interment of the dead according to
their preferences and those of their relatives. The Legislature’s actions recognize
that there is a strong faith-based component to our handling of the dead:
65606_1 35
By burying the bodies of the faithful, the Church confirms her faith in
the resurrection of the body, and intends to show the great dignity of
the human body as an integral part of the human person whose body
forms part of their identity. . . .
Furthermore, burial in a cemetery or another sacred place adequately
corresponds to the piety and respect owed to the bodies of the faithful
departed who through Baptism have become temples of the Holy
Spirit and in which “as instruments and vessels the Spirit as carried
out so many good works.” . . .
Finally, the burial of the faithful departed in cemeteries or other
sacred places encourages family members and the whole Christian
community to pray for and remember the dead, while at the same time
fostering the veneration of martyrs and saints.
HOLY SEE PRESS OFFICE, Ad Resurgendum Cum Christo (Oct. 25, 2016),
https://press.vatican.va/content/salastampa/en/bollettino/pubblico/2016/10/25/1610
25c.html. There also is a strong societal interest in protecting the dignity of those
who have passed on:
[I]t’s unthinkable that we would just throw the corpses of our loved
ones over a wall and leave them to the elements. Dead bodies matter
because humans have decided that they matter, and they’ve continued
to matter over time even as the ways people care for bodies have
changed.
Julie Beck, “Why Humans Care for the Bodies of the Dead,” THE ATLANTIC (Nov.
12, 2015), https://www.theatlantic.com/health/archive/2015/11/why-humans-care-
for-the-bodies-of-the-dead/415425. Finally, there is a very strong legislative
interest in the proper and respectful disposition of the dead according to their
wishes and those of their relatives. See TEX. HEALTH & SAFETY CODE §§ 711.001–
012.
65606_1 36
By law, decisions about the disposition of the dead have been reserved to
their family members. § 711.002. The dead may be interred only in certain places,
see § 711.008, and only by certain authorized persons whom the Legislature
closely regulates. See §§ 711.021–.049. Records must be maintained about each
interment. § 711.003. There also must be public disclosure of the discovery of an
unknown, abandoned, or unverified cemetery. See §§ 711.011, 711.0111.
The Legislature’s interest does not stop there. Once interred, bodies are
supposed to remain at rest and in peace, see § 711.009, except by the consent of
family members or by order of a district court. § 711.004; see Dueitt v. Dueitt, 802
S.W.2d 859, 862–65 (Tex. App.—Houston [1st Dist.] 1991, no writ) (discussing
long history of case law recognizing “there is a public policy against
disinterment”). If the bodies must be disturbed, the law prescribes the method for
doing so. See §§ 711.004, 711.010, 711.0105.
And, if that were not reason enough, the Legislature specifically amended
Chapter 711 to make plain its preferences with respect to the handling of this
specific case. See Act of May 22, 2019, 86th Leg., R.S., ch. 817, § 2, 2019 Tex.
Sess. Law Serv. ch. 817 (Vernon) (to be codified at TEX. HEALTH & SAFETY CODE
§ 711.010(b), (c)); see also supra note 8. District courts should have the
continuing jurisdiction, even after a nonsuit, to resolve these important public-
policy goals regarding the handling of the dead.
65606_1 37
Second, there is a strong public policy in favor of appointing guardians ad
litem where necessary to represent those who cannot speak for themselves where,
as here, their interests are not adequately represented by the litigants. In fact, this
Court has recognized a trial court’s authority to delay in granting a nonsuit in order
to appoint a guardian ad litem to represent the interests of somebody whose
interests might not be served by the party requesting the nonsuit. See Gibson v.
Blanton, 483 S.W.2d 372, 374 (Tex. Civ. App.—Houston [1st Dist.] 1972, orig.
proceeding). In fact, “[i]t is [the court’s] duty to make the [ad litem] appointment
before he acts on a motion for non-suit filed on behalf of the minor by the next
friend.” Id. (emphasis added). Here, as in Gibson, the district court recognized
that FBISD was not acting in the best interests of the Sugar Land 95 and their as-
yet-unidentified descendants, and that in these circumstances, the “non-suit of the
personal cause of action of [FBISD] will not resolve the conflict.” See id. at 374.
In this case, there are several justiciable questions that are collateral to
FBISD’s requests to remove the cemetery designation; and the trial court has
continuing jurisdiction to resolve those questions. Thus, even if Chapter 711 of the
Health and Safety Code were not an independent source of jurisdiction, the Court
should deny Relator’s petition for writ of mandamus because the district court still
has jurisdiction to decide the many questions that were left unresolved by FBISD’s
nonsuit. See SMR000256.
65606_1 38
II. The Court Properly Appointed Mr. West to Assist in Determining
the Public Interest in the Reinterment of 95 Exhumed Bodies that
Are Historically Significant to the Community.
Besides its jurisdictional argument, FBISD briefly contends that the
appointment of Mr. West does not comply with Texas Rule of Civil Procedure 173.
Supp. Pet. at 3. However, FBISD did not preserve any such objection below and
has not properly presented its complaint for mandamus review. On the merits, the
appointment was proper under the recent legislative amendments to Chapter 711.
Finally, this Court should strongly consider whether the unclean-hands doctrine
bars Relator’s request for mandamus relief on this ground.
A. FBISD’s complaint is not preserved and properly presented
for mandamus review.
Relator’s complaint under Rule 173 is not properly before the Court. FBISD
did not present that objection to the district court or obtain a ruling. Further,
Relator has not challenged all possible bases for the appointment order. Therefore,
the Court should overrule this complaint without even reaching the merits.
1. FBISD did not object to Mr. West’s appointment.
To preserve a complaint for appellate or mandamus review, a party must
make a timely request, objection, or motion stating the grounds for the objection
and that the trial court ruled on the objection. TEX. R. APP. P. 33.1(a); see In re
Bank of Am., N.A., No. 01-02-00867-CV, 2003 WL 22310800, at *2 & n.4 (Tex.
App.—Houston [1st Dist.] Oct. 9, 2003, orig. proceeding) (mem. op.).
65606_1 39
“The underlying rationale for [Rule] 33.1(a) is to ensure that the trial court
has the opportunity to rule on matters for which the parties later seek review in the
appellate court.” Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex. App.—
Houston [14th Dist.] 2000, pet. denied). Thus, “a party seeking the extraordinary
writ generally must have apprised the trial court of the arguments on which the
party later bases its mandamus petition.” Bank of Am., 2003 WL 22310800, at *2
n.4. “It would be hard to conclude, without circumstances that were highly
unusual or that made a trial court’s ruling void, that a trial court could abuse its
discretion in making a ruling for a reason that was never presented to the court.”
Id. at *2.
Rule 173.3 permits a party to object to the appointment of a guardian ad
litem. TEX. R. CIV. P. 173.3(c). Relator did not do so. Specifically, FBISD did not
object that the order appointing Mr. West to represent “the rights, interests, and
dignity of the 95 bodies” somehow failed to comply with Rule 173—the
contention it now asserts in this Court. Supp. Pet. at 3. Therefore, Relator has not
preserved this complaint for mandamus review. See Guillory v. Boykins, 442
S.W.3d 682, 689–90 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Magna
Donnelly Corp. v. DeLeon, 267 S.W.3d 108, 114 (Tex. App.—San Antonio 2008,
no pet.).
65606_1 40
“[A]dhering to our preservation rules isn’t a mere technical nicety; the
interests at stake are too important to relax rules that serve a critical purpose.” In
re L.M.I., 119 S.W.3d 707, 708 (Tex. 2003). “Important prudential considerations
underscore our rules on preservation.” In re B.L.D., 113 S.W.3d 340, 350 (Tex.
2003). Requiring parties to raise complaints in the district court conserves judicial
resources by giving trial courts an opportunity to correct an error before seeking
review from the court of appeals. See id. “Indeed, our law on preservation is built
almost entirely around putting the trial court on notice so that it can cure any
error.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, No. 16-0006, 2019
WL 1873428, at *5 (Tex. Apr. 26, 2019). Affording trial courts an opportunity to
correct errors conserves judicial resources. Id. Also, “we further the goal of
accuracy in judicial decision-making when lower courts have the opportunity to
first consider and rule on error.” B.L.D., 113 S.W.3d at 350.
This case is a poster child for why litigants must raise their complaints in the
trial court before seeking appellate review. Relator’s objection under Rule 173 is
directed at the language of the order, that is, the appointment of Mr. West to
represent “95 bodies” instead of “parties to the suit [or] potential defendants.”
Supp. Pet. at 3. Had that complaint been raised below, the court could have
rectified its supposedly erroneous order by clarifying that Mr. West was also to
represent the interests of the as-yet-unidentified descendants of the Sugar Land 95.
65606_1 41
But the district court did not have the opportunity to reconsider the language
in its order because FBISD did not raise any objection below. Therefore, Relator
has not preserved this complaint for mandamus review. See Guillory, 442 S.W.3d
at 689–90; Magna Donnelly, 267 S.W.3d at 114.
2. Relator has not challenged all possible bases for the
appointment order.
There is another reason the Court should decline to decide the merits of
FBISD’s complaint under Rule 173. There is another legal basis under which the
district court could appoint Mr. West—the newly amended Section 711.010—but
Relator does not brief any argument about the scope of a district court’s
appointment power under that provision.
A reviewing court “must uphold the order on any grounds supported by the
record before the trial court.” In re Russo, 550 S.W.3d 782, 790 n.3 (Tex. App.—
Houston [14th Dist.] 2018, orig. proceeding) (citation omitted). This is because “a
trial court cannot abuse its discretion when it reaches the right result, but for the
wrong reasons.” Donalson v. Barr, 86 S.W.3d 718, 720 (Tex. App.—Houston [1st
Dist.] 2002, no pet.). Thus an appealing party must attack all independent bases
that fully support a complained-of ruling. D&M Marine, Inc. v. Turner, 409
S.W.3d 693, 697 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). The failure
to do so results in waiver of the point. See Kroger Co. v. Am. Alternative Ins.
Corp., 468 S.W.3d 766, 771–72 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
65606_1 42
This Court should not presume that Rule 173 was the sole basis for the trial
court’s decision to appoint Mr. West. The court’s appointment order makes no
reference to Rule 173. SMR000249. Rule 173 is not the only basis under which
the district court could appoint a guardian ad litem.12
See TEX. R. CIV. P. 173.1
(stating that Rule 173 “does not apply to an appointment of a guardian ad litem
governed by statute or other rules”). Instead, as shown below, a district court has
broad discretion under Section 711.010 to appoint any person whom the court
deems necessary to assist in determining the public interest regarding the
disposition of bodies removed from an abandoned, unknown, or unverified
cemetery. Because FBISD has not briefed any challenge to the court’s authority to
appoint Mr. West under Section 711.010, the Court should overrule Relator’s point
without reaching the merits.
12
To be clear, it is appropriate and commonplace for courts to appoint an ad litem to represent
the interests of unknown or unidentified persons. See, e.g., Rhodes v. Cahill, 802 S.W.2d 643,
646–47 (Tex. 1990) (holding ad litem appointed to represent interests of unknown defendants
was entitled to compensation); Sambrano v. Tex. Dep’t of Protective & Regulatory Servs., No.
01-06-00854-CV, 2007 WL 1559857, at *1 n.2 (Tex. App.—Houston [1st Dist.] May 31, 2007,
no pet.) (mem. op.) (noting ad litem was appointed to represent interests of unknown father of
child in termination proceedings); Hayes v. Pin Oak Petrol., Inc., 798 S.W.2d 668, 672 (Tex.
App.—Austin 1990, writ denied).
FBISD generally contends that “a trial court abuses its discretion if it appoints a guardian ad
litem in the absence of a conflict or if the trial court does not discharge the guardian ad litem
when the conflict has ended.” Supp. Pet. at 2. Apart from its jurisdiction-based arguments,
FBISD does not actually contend that no conflict existed. See Supp. Pet. at 3-5. In fact, the
district court did find a conflict between the interests of FBISD—to resolve this issue quickly
and to save itself money—and those of the bodies, their as-yet-unidentified relatives, and the
community. SMR000233-39. The master-in-chancery also opined that FBISD is not necessarily
representing the interests of the Sugar Land 95 or their descendants. SMR000184. FBISD has
not challenged the district court’s express and implied findings of a conflict.
65606_1 43
B. The Legislature has authorized district courts to appoint
persons considered necessary to assist in determining the
public interest.
Whether the appointment of Mr. West comports with Rule 173 is not
controlling here. But see supra note 12. The court’s authority to appoint Mr. West
actually derives from Section 711.010, as amended earlier this summer. In
response to this case, see supra note 8, the Legislature amended Section 711.010 to
clarify the district court’s broad discretion to oversee the exhumation, removal, and
reinterment of bodies discovered in an abandoned cemetery. As amended, the
statute expressly authorizes a district court to “designate or appoint any person,
party, court appointed representative, or official” that the court deems necessary to
assist in determining whether removal of remains—which includes the reinterment
on the owner’s property—is in the public interest. See Act of May 22, 2019, 86th
Leg., R.S., ch. 817, § 2, 2019 Tex. Sess. Law Serv. ch. 817 (Vernon) (to be
codified at TEX. HEALTH & SAFETY CODE § 711.010(b), (c)).
The district court acted within its discretion by appointing Mr. West to speak
for the “rights, interests, and dignity” of the Sugar Land 95 as the court seeks to
perform its statutory duty to determine the public interest regarding the proper
location and manner of reinterment for these bodies that currently are stored, rather
ignominiously, in a storage crate. Accordingly, the Court should overrule
Relator’s contention and deny the mandamus petition.
65606_1 44
C. Alternatively, the Court should consider applying the
unclean-hands doctrine here.
To the extent that FBISD’s Rule 173 complaint arises from the precise
phrasing of the district court’s order appointing Mr. West as “Guardian Ad Litem
for the rights, interests and dignity of the 95 bodies,” see SMR000249 (emphasis
added), as opposed to still-living “persons,” that language may have been
necessitated by FBISD’s refusal to provide the court with information about the
identity of the bodies and possible location of descendants. If there is some
procedural infirmity with the appointment order, the record suggests that it resulted
from FBISD’s own apparently obstructive conduct.
1. One who seeks equitable relief must do equity.
“Mandamus is an extraordinary remedy, not issued as a matter of right, but
at the discretion of the court.” Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367
(Tex. 1993) (orig. proceeding). “Although mandamus is not an equitable remedy,
its issuance is largely controlled by equitable principles.” Id. Thus, it is “well-
settled that a party seeking an equitable remedy must do equity and come to the
court with clean hands.” Truly v. Austin, 744 S.W.2d 934, 938 (Tex. 1988); In re
EGL Eagle Glob. Logistics, L.P., 89 S.W.3d 761, 766 (Tex. App.—Houston [1st
Dist.] 2002, orig. proceeding [mand. denied]).
65606_1 45
The “unclean hands” doctrine “has been used to deny issuance of the writ”
of mandamus. Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 552 n.2 (Tex. 1990)
(orig. proceeding); In re Roberts, No. 05-06-00638-CV, 2006 WL 2106799, at *1
(Tex. App.—Dallas July 31, 2006, orig. proceeding) (mem. op.) (applying doctrine
to deny mandamus relief to relator that refused to testify about matters contained
within her affidavits and mandamus verification). The doctrine is usually applied
to “one whose own conduct in connection with the same matter or transaction has
been unconscientious, unjust, or marked by a want of good faith, or one who has
violated the principles of equity and righteous dealing.” In re Jim Walter Homes,
Inc., 207 S.W.3d 888, 899 (Tex. App.—Houston [14th Dist.] 2006, orig.
proceeding) (citation omitted). Courts also consider whether the relator’s conduct
resulted in injury or unfairness. See id.
2. Relator appears to have withheld evidence that may
be relevant to identify the Sugar Land 95 and assist in
locating their descendants.
Texas law confers on family members the right to participate in matters
relating to the disposition of their relatives. See §§ 711.002(a), 711.004(a), (c),
711.0105(c). For that reason, both the district court and the master-in-chancery
have asked FBISD to produce the results from its examination of the bodies, in
hopes of identifying the bodies and locating their descendants. Thus far, FBISD
has refused to comply with those requests.
65606_1 46
The district court had ordered FBISD to permit the master-in-chancery
access to the property, to fact witnesses, and to non-privileged documents and
evidence. SMR000072. Acting on the court’s direction, Mr. West had requested
that FBISD produce several categories of information that might help in
identifying “any of the deceased individuals and/or their relatives and/or
descendants.” SMR000179-80. FBISD refused to comply because, it claimed, it
was not possible to “scientifically match lists of suspected prisoners to any of the
discovered remains.” SMR000179-80 (emphasis added). It then ignored Mr.
West’s follow-up requests for “any names or information you have, confirmed or
not.” SMR000180 (emphasis added); see also SMR000221 (“I previously made
requests, and they didn’t respond to that.”).
The record reflects that, by December 18, 2018, FBISD knew the possible
identification of at least one, and perhaps as many as twenty-one, of the bodies.
SMR000218-20. Specifically, one of the bodies had undergone a medical
amputation that “matches up with” records in FBISD’s possession. SMR000218.
Further, the master informed the court that “roughly 20 other people[,] [FBISD]
had a very good idea of who they were.” SMR000218. “[I]t may not be DNA
perfect, but I think they have a very good idea of who at least 21 of these
individuals are.” MR000219-20. Mr. West explained that he could not do the job
for which he was appointed without FBISD’s cooperation. MR000219-20.
65606_1 47
The master-in-chancery asked the district court to issue an order compelling
FBISD to disclose several categories of documents “so that I can help do my job
and get the information that this Court needs before it.” SMR000221; see
SMR000181-83 (identifying specific categories of documents requested). This
information was requested so that the court might locate and notify family
members who may have a statutory right to be heard in this case. See
§§ 711.002(a), 711.004(a), (c), 711.0105(c).
Judge Shoemake was particularly interested in the results of any DNA
testing. SMR000236. The record confirms that FBISD has collected and
transferred the materials necessary for DNA testing. See Appx. tab A, at 1-2;
Appx. tab B; see also SMR000236 (“You say you have done some DNA work. . . .
[Y]ou probably paid for DNA work. I don’t see it. We’ve asked to see it. . . .
[T]here has been no disclosure of that. That worries me.”).
Although FBISD later obtained an order from this Court staying the
appointment of Mr. West, FBISD still has never produced information, including
DNA results, that were requested by the trial court. SMR000236. Now, if
FBISD’s nonsuit is allowed to extinguish the court’s jurisdiction to act, the court
will be unable to demand production of the DNA results; to identify the
descendants; to locate still-living family members; and to notify those relatives of
their statutory rights to participate in this case.
65606_1 48
3. The record suggests that FBISD took its nonsuit in
bad faith, solely to deprive the court of jurisdiction.
A nonsuit must be taken in good faith, not simply to deprive the trial court of
jurisdiction. See Robbins Chevrolet Co. v. Motor Vehicle Bd., 989 S.W.2d 865,
870 (Tex. App.—Austin 1999, pet. denied); J.A. Walsh & Co. v. R.B. Butler, Inc.,
260 S.W.2d 889, 890 (Tex. Civ. App.—Waco 1953), writ dism’d w.o.j., 152 Tex.
601, 262 S.W.2d 952 (1953). A court may properly decline to recognize a nonsuit
taken in bad faith. See State v. Garza, 358 S.W.2d 749, 750–51 (Tex. Civ. App.—
San Antonio 1962, no pet.) (holding that State could not nonsuit claim against
juvenile for purpose of defeating jurisdiction of juvenile court); accord
Intermedics, Inc. v. Lane, No. 01-93-00479-CV, 1994 WL 109481, at *1 (Tex.
App.—Houston [1st Dist.] Mar. 31, 1994, no writ) (not designated for publication).
The record reasonably supports the conclusion that Relator took its nonsuit
on July 25th for the sole purpose of depriving the district court of jurisdiction to
weigh in on a proposed—but still not consummated—agreement between FBISD
and Fort Bend County. See Appx. tab A, at 1-2; Appx. tab B. FBISD obtained the
relief it had requested, exhumation of the bodies, by promising that it would not
seek to reinter those bodies without the court’s blessing. See SMR000012, 36.
Apparently it does not now intend to honor its promises to the court.
65606_1 49
Instead, on July 11, 2019, Relator purported to enter into an “Interlocal
Agreement” with Fort Bend County regarding the reinterment of the bodies. See
Appx. tab A. Under this agreement the bodies supposedly would be buried in “an
area of the cemetery” that would be conveyed to the County. See id. There is no
agreement, however, as to who will maintain this cemetery; supposedly the parties
are still “negotiating” over that critical issue. See id.; Appx. tab C.
By its nonsuit and this mandamus proceeding, FBISD seeks to exclude the
district court from performing its statutory duty to consider whether this proposed
agreement regarding interment is in the best interests of the community. See §
711.010(b); see also § 711.0105(c) (authorizing district court to direct a “different
disposition of the remains” besides reburial in the same location). As discussed
above, the record also reflects that the nonsuit was taken to preclude the
appearance of family members with the right to consent—or not—to the District’s
reinterment plan. See In re Liu, 290 S.W.3d 515, 519 & n.2 (Tex. App.—
Texarkana 2009, orig. proceeding) (“[T]he reviewing court is called upon to
examine the mandamus record in the ‘light most favorable’ to the trial court’s
resolution of the issues and indulge in all reasonable inferences that would support
denying relief.”); accord In re McDaniel, 408 S.W.3d 389, 397–98 (Tex. App.—
Houston [1st Dist.] 2011, orig. proceeding) (reviewing record evidence and
indulging inferences in light most favorable to trial court’s ruling).
65606_1 50
4. Relator’s inequitable conduct directly relates to its
request for mandamus relief.
On December 18, 2018, the district court repeatedly vocalized its concern
and frustration about FBISD’s conduct and refusal to provide requested
information:
One of the things that’s bothered me the most about this case is that
the party that has a deep financial interest in getting something done
seems to be the party that’s been in charge of amassing all of the
contrary evidence. There’s an inherent conflict in there. . . . I think
there is some community interest in getting some conclusive answers
here.
I’m not convinced that having, with all respect, Fort Bend ISD in
charge of everything is the way to do it. I think the legislature
squarely put the Court in a position where there could be some
transparency, there could be someone who is a neutral to help through
this process.
Now, that may be in conflict with what you want to do with your
money, the District’s money, but I can’t help that. I’m not the
legislature. They put this statute in here. And I’m going to do my
very best to see to it that I honor what they have given me as a
responsibility to do.
***
I think the reason we have so many people sitting here in the audience
who are interested in this is that . . . they are unsettled about the fact
that the party with the most financial interest in doing it a certain way
seems to be in charge of that whole effort.
To get to a point where a decision can be made, we have to have
evidence. I have had no evidence put before me whatsoever. All the
evidence, apparently, is in your possession, whatever there is.
. . . I’m saying that it worries me.
***
65606_1 51
You say that you have done some DNA work. . . . [Y]ou probably
paid for DNA work. I don’t see it. We’ve asked to see it. It hasn’t
been — the Master in Chancery who is an arm of the Court has asked
to see it. But there has been no disclosure of that. That worries me.
These are things that worry me.
***
It worries me that you’re concerned about having other people
engaged in this process. I think the reason that the legislature laid it
out the way they did was to make certain that the appropriate folks
were engaged in the process.
SMR000233-38. The Court must credit these statements and inferences in the light
most favorable to the court’s ruling. See McDaniel, 408 S.W.3d at 397–98.
At every turn, Relator has thwarted the district court’s efforts to obtain
information necessary to discharge its statutory duties, including the identification
and notification of family members with a statutory right to be heard. By its
actions, the District appears to have contributed to any inability to identify specific
living persons whose interests might be represented by an ad litem under Rule 173.
This sort of conduct is not deserving of a writ of mandamus. See Axelson, Inc.,
798 S.W.2d at 552 n.2; Roberts, 2006 WL 2106799, at *1.
PRAYER
The relator’s petition for writ of mandamus, and any supplements thereto,
should be denied. Real-Party-in-Interest, Mr. S. Scott West, respectfully prays for
all relief to which he is entitled. In the event the petition is not denied outright,
Real-Party-in-Interest respectfully requests oral argument.
65606_1 52
Respectfully submitted,
HOGAN & HOGAN
By: /s/ James C. Marrow
James C. Marrow
State Bar No. 24013103
Richard P. Hogan, Jr.
State Bar No. 09802010
Jennifer Bruch Hogan
State Bar No. 03239100
711 Louisiana, Suite 500
Houston, Texas 77002
713.222.8800–telephone
713.222.8810–facsimile
65606_1 53
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of TEX. R. APP. P.
9.4(i)(2)(B) because this brief contains 12,554 words, excluding the parts of the
brief exempted by TEX. R. APP. P. 9.4(i)(1).
2. This brief complies with the typeface requirements of TEX. R. APP. P. 9.4(e)
because this brief has been prepared in a proportionally spaced typeface using
Microsoft Word 2010 software in Times New Roman 14 point font in text and
Times New Roman 12 point font in footnotes.
/s/ James C. Marrow
James C. Marrow
Dated: August 12, 2019
65606_1 54
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above and foregoing was
forwarded to all counsel of record by the Electronic Filing Service Provider, if
registered; a true and correct copy of this document was forwarded to all counsel
of record not registered with an Electronic Filing Service Provider and to all other
parties as follows:
Counsel for Relator, Fort Bend Independent
School District:
Jonathan G. Brush
Michelle R. Morris
Elizabeth R. Mylin
ROGERS, MORRIS & GROVER, L.L.P.
5718 Westheimer, Suite 1200
Houston, Texas 77057
Via TexFile
Counsel for Real-Party-In-Interest,
Mr. Michael W. Elliott:
Kristen Jernigan
LAW OFFICE OF
KRISTEN JERNIGAN, PLLC
203 S. Austin Avenue
Georgetown, Texas 78626
Via TexFile
Respondent:
Honorable James H. Shoemake
434th Judicial District Court
Fort Bend County District Courts
1422 Eugene Heimann Circle, Courtroom 3I
Richmond, Texas 77469
Via US Mail
/s/ James C. Marrow
James C. Marrow
Dated: August 12, 2019
Tab A Fort Bend ISD, Press Release,
“Fort Bend ISD, Fort Bend County Leaders
Move Forward with Historic
Cemetery Agreement”
(Jul. 11, 2019)
8/8/2019 Fort Bend ISO, Fort Bend County leaders move forward with historic cemetery agreement (7111/2019)
FBlSD INSPIRE- ECUIP·IIMAGINIi
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FORT BEND ISO, FORT BEND COUNTY LEADERS MOVE FORWARD WITH HISTORIC CEMETERY AGREEMENT (7/11/2019)
While negotiations continue, FB/SD celebrates latest steps by county leaders and Texas Historical
Commission
Fort Bend ISD (July 11, 2019) - On Tuesday, County Commissioners approved the principle terms of an
Interlocal Agreement that will allow the remains of the 95 individuals discovered during FBISD's construction
of the James Reese Career and Technical Center to find a final resting place in a county-owned cemetery. The
Commissioner's action mirrored action by the Fort Bend ISD Board of Trustees approving the same principal
terms in June. Archaeologists believe that the remains are those of convicts who were leased by the State to
provide convict labor to a local plantation.
The principle terms of the agreement provide that FBISD will convey an area of the cemetery for reinterment of
the individuals and an additional 10 acres for a memorial park. FBISD will also pay the county $1 million that
will go toward future costs associated with reinterment and memorialization.
The parties agreement required passage of legislation that amended existing law to allow the county to take
ownership of the cemetery. The bill was passed and became effective in June after it was signed by the
Governor. With the revised statute, the parties were able to move forward with the District's intention to
convey property to the County and the County's willingness to accept the responsibility for the care, operation
and maintenance of the cemetery.
With agreement on the principal terms, the parties will now work out final details, including resolution of the
existing court action. As Fort Bend ISD prepares to open the James Reese Career and Technical Center next
month, District leaders remain optimistic that a final agreement will be reached that will provide the 95
individuals a final resting place.
"We are thankful and appreciative of the action taken by county leaders this week," said FBISD Board
President Jason Burdine. "With this action, the Board takes another step in fulfilling its commitment to honor
and preserve these individuals, not just as 95 unmarked graves, but as 95 human beings whose stories
deserve to be told. We have recognized the importance of this historical discovery, while also delivering an
educational facility that will benefit the students of Fort Bend and our community."
In another related development, the Texas Historical Commission, after receiving guidance from the Texas
Attorney General, recognized its authority to permit extraction of genetic material from the remains of the 95
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8/8/2019 Fort Bend ISO, Fort Bend County leaders move forward with historic cemetery agreement (7111/2019)
individuals for the purposes of future DNA testing. Materials necessary for DNA analysis have been collected
and will be curated at the Texas Archaeological Research Laboratory at the University of Texas.
"We are looking forward to the next steps in this discovery, with hope that we will one day know more about
who these individuals were," said Burdine.
Fort Bend lSD's James Reese Career and Technical Center will open in August of 2019. For more background
on the discovery, visit www.fortbendisd.com/historiccemetery..
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Tab B Fort Bend ISD, Press Release,
“Fort Bend ISD Provides Update Regarding
Sugar Land 95; Responds After
Appeals Court Halts Latest Court Action”
(Aug. 6, 2019)
8/8/2019 Headlines & Features
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FORT BEND ISD PROVIDES UPDATE REGARDING SUGAR LAND 95; RESPONDS AFTER APPEALS COURT HALTS LATEST COURT ACTION (8/6/2019)
Fort Bend ISD (August 6,2019) -- For the second time, a Houston court of appeals has issued an expedited
order staying an order issued by the judge in the Sugar Land 95 lawsuit. On July 26,2019, the day after the
District dismissed the lawsuit and announced that it would reinter the Sugar Land 95 in the spots from where
they were each exhumed, Judge James Shoemake issued an order appointing a lawyer to serve as a guardian
ad litem for the remains. On Monday evening, the court of appeals issued an order staying the appointment.
This is the second time the court of appeals has intervened to stay an order issued by Judge Shoemake. In a
motion seeking expedited review of the judge's most recent order, the District's lawyers cited authority that the
court's order was void and of no legal effect because it was issued after the District dismissed its lawsuit. The
court of appeals granted the order of stay within two hours of the District filing its motion.
Last December, the same court of appeals stayed another order issued by Judge Shoemake that appointed a
different lawyer to serve as a court master in the case. The District challenged the order and the
potential assessment of costs to the District. Again, the District argued to the court of appeals that the district
court had no legal authority to appoint a special master in the case. The District expects an opinion from the
court of appeals on that issue soon.
The District's plans for reinterment are ongoing. District officials are in the process of procuring burial vessels
and internment services. It is also in the process of transferring DNA samples to the Texas Archaeological
Research Laboratory at the University of Texas at Austin. Curating the DNA samples with the UT
archaeological research laboratory will allow future DNA testing that may help determine the identities of the
Sugar Land 95 and their possible descendants.
The District and county are also continuing to work on an agreement that would allow the District to transfer
the cemetery to the county after the reinterment process is complete. As part of the agreement, the District is
committed to conveying 10 acres of District property to the county for a memorial park commemorating the
lives of the Sugar Land 95. Finally, the District is developing a student curriculum that teaches students about
the District's discovery of the Sugar Land 95 and the State of Texas's convict leasing program.
"We are very excited about the opening of the James Reese Career and Technical Center and think the
community will be thrilled with the state-of-the art learning opportunities it offers our students," said Jason
Burdine, FBISD Board President. "We are also proud of the work our administrators have been doing in
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8/8/2019 Headlines & Features
creating a curriculum about the discovery of the Sugar Land 95 and the State's convict leasing program. It's
important for students to know this history."
"As for the judge's recent action, we don't understand why the court issued an order appointing a guardian ad
litem after the lawsuit was dismissed. This is the second time the judge has tried to appoint lawyers in this
case with the expectation that the District would pay their legal fees, and twice the court of appeals has
stepped in to protect the District by suspending the legal effect of the orders. The court of appeals' rulings give
us confidence that the District has correctly determined that the judge was acting without legal authority.
Hopefully now that the lawsuit is dismissed, the District can focus its energies on honoring these individuals
and ensuring that they are reinterred in their resting places as soon as possible as the remains have been
sitting on trays for a year. The District also looks forward to finalizing an agreement with the county that will
provide a permanent memoriaL"
The remains of the Sugar Land 95 were discovered during the District's construction of the James Reese
Career and Technical Center. The center will offer specialized courses available to all FBISD high school
students, offering them a competitive advantage in preparing for their future, whether their plans include
college, immediate entry into the workforce, or a combination of both.
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Tab C Fort Bend ISD, Press Release,
“Sugar Land 95 Update: Small Protest at Fort
Bend ISD’s Administrative Building”
(Aug. 9, 2019)
8/9/2019 Sugar Land 95 update: Small protest at Fort Bend ISO's administration building
FBiSD INSPIRE- EQlJlPolMAGllNE
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SUGAR LAND 95 UPDATE: SMALL PROTEST AT FORT BEND lSD'S ADMINISTRATION BUILDING
(Fort Bend ISD - August 9,2019) -- Earlier today, less than a handful of individuals protested the district's
plans for reinterment of the Sugar Land 95 outside Fort Bend lSD's administration building. The protest was
apparently in response to the District's announcement made on July 25,2019 that it would reinter the remains
of the 95 individuals in the spots from where each were exhumed.
"We don't understand why these few individuals are protesting," said Jason Burdine, FBISD Board President.
"For more than over a year, we have engaged in discussions with members of our community, community
leaders, and activist groups from outside our community. We listened to them and honored the wishes of those
who did not want the remains removed from the site. To make this happen, we had to redesign and eliminate
an important wing of the career and technical center. We have also paid more than a million dollars to
archaeologists to ensure the proper and dignified treatment of the remains, and to preserve DNA samples so
that future testing might help us learn more about the Sugar Land 95 and their possible descendants. We think
the greater community recognizes our commitment to respectfully handling this historical find and preserving
this important part of our local history."
The remains of the Sugar Land 95 were Discovered during the district's construction of the James Reese
Career and Technical Center, a state-of-the art career and technical education center that is scheduled to open
this school year. The District had previously filed a petition in a Fort Bend District court requesting that it be
allowed to reinter the bodies at a nearby historic cemetery operated by the City of Sugar Land so that it could
complete construction of the center as it was originally designed.
After some objection to the District and city's plans to reinter the remains in the city cemetery, the District
abandoned its plans and redesigned the center to eliminate a wing of the building that was to be constructed
in the cemetery area. Because the District was no longer requesting to remove the remains from the site, the
court no longer had jurisdiction and the district dismissed the lawsuit.
District officials·have taken great care to ensure the remains have been handled in a dignified manner while
also recognizing the need for historical preservation. Upon discovery of the first bones, the district reported the
find to the Texas Historical Commission and engaged an archaeological firm to conduct further investigation
and eventual exhumation. Before exhumation occurred, the District court issued an order granting permission
for the archaeologists to exhume the remains. A team of archaeologist then worked throughout 2018 to
exhume the remains and catalog all historical artifacts found on the site.
Working under authority granted by the Texas Historical Commission, the archaeologists have also gathered
materials needed for DNA testing. These materials will be transferred to the Texas Archaeological Research
Laboratory at the University of Texas at Austin. Curating the DNA materials with the UT archaeological
research laboratory will allow future DNA testing that may help determine the identities of the Sugar Land 95
and their possible descendants.
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8/9/2019 Sugar Land 95 update: Small protest at Fort Bend lSD's administration building
The District is also working with college research facilities for the performance of isotope analysis that will also
provide additional information about living conditions of the Sugar Land 95.
Upon completion of their work, the archaeologists will prepare a report that will be provided to the district and
the Texas Historical Commission. The District looks forward to sharing this report with the public. To further
ensure that the historical significance of the find is not forgotten, District staff have been working on a student
curriculum about the Sugar Land 95 and the State of Texas' convict-leasing program.
The District's plans for reinterment remain ongoing. District officials are in the process of procuring burial
vessels and internment services. The District hopes to announce a timeline for reinterment, including plans for
a memorial service, in the near future.
The District has also been negotiating with Fort Bend County officials to transfer the cemetery to the cdunty
once the reinterment process is complete. The District has agreed to convey another 10 acres of district
property to the county for the construction of a memorial park to commemorate the 95 individuals who
historians believe were convicts in the state's convict- leasing program.
##
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Tab D Act of May 22, 2019, 86th Leg., R.S.,
ch. 817, 2019 Tex. Sess. Law Serv. ch. 817
(Vernon)
H.B. No. 2430
1 AN ACT
2 relating to requirements in a suit for the removal of human remains
3 from a cemetery.
4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
5 SECTION 1. Section 711.004, Health and Safety Code, is
6 amended by amending Subsections (c) and (d) and adding Subsection
7 (d-1) to read as follows:
8 (c) If the consent required by Subsection (a) cannot be
9 obtained, the remains may be removed by permission of a district
10 court of the county in which the cemetery is located. Before the
11 date of application to the court for permission to remove remains
12 under this subsection, notice must be given to:
13 (1) the cemetery organization operating the cemetery
14 in which the remains are interred or if the cemetery organization
15 cannot be located or does not exist, the Texas Historical
16 Commission;
17 (2) each person whose consent is required for removal
18 of the remains under Subsection (a); and
19 (3) any other person or entity that the court
20 subsequently requires to be served.
21 (d) For the purposes of Subsection (c) and except as
22 provided by this subsection or Subsection (d-1) or (k), personal
23 notice must be given not later than the 11th day before the date of
24 application to the court for permission to remove the remains, or
1
H.B. No. 2430
1 notice by certified or registered mail must be given not later than
2 the 16th day before the date of application. In an emergency
3 circumstance described by Subsection (1) that necessitates
4 immediate removal of remains from a plot, the court shall hear an
5 application for permission to remove remains under Subsection (c)
6 not later than the first business day after the application is made.
7 In an emergency circumstance described by this subsection, personal
8 notice may be given on the date the application is made.
9 (d-l) If the court subsequently requires an additional
10 person or entity to be served under Subsection (c) (3), that
11 additional service must be performed not later than the 11th day
12 after the date of the judge's order. Service may not be required
13 for any court appointed representative or other court appointed
14 off ic ial.
15 SECTION 2. Sections 7ll.010(b) and (c), Health and Safety
16 Code, are amended to read as follows:
17 (b) On petition of the owner of the property, a district
18 court of the county in which an unknown cemetery is discovered or an
19 abandoned cemetery is located may order the removal of any
20 dedication for cemetery purposes that affects the property if the
21 court finds that the removal of the dedication is in the public
22 interest. If a court orders the removal of a dedication of a
23 cemetery and all human remains in that cemetery have not previously
24 been removed, the court shall order the removal of the human remains
25 from the cemetery t02-
26
27
ill a perpetual care cemetery]. [.w:-)
ill a municipal or county cemetery; or
2
H.B. No. 2430
1 (3) any other place on the owner's property that the
2 district court finds is in the public interest.
3 (c) In addition to any notice required by Section 711.004,
4 notice of a petition filed under Subsection (b) must be given to the
5 Texas Histor ical Commission and to the county histor ical commission
6 of the county in which the cemetery is located. The court may
7 consult the Texas Historical Commission and the county historical
8 commission in making a decision under this section [may intervene
9 and beeome parties to the suit). The court may also designate or
10 appoint any person, party, court appointed representative, or
11 official the court considers necessary to assist in determining
12 whether the removal is in the public interest.
13 SECTION 3. Section 711.036(b), Health and Safety Code, is
14 amended to read as follows:
15 (b) An owner of land adjacent to a cemetery for which a
16 cemetery organization or other governing body does not exist may
17 petition a district court of the county in which the cemetery is
18 located to remove any human remains and the dedication for all or
19 any portion of the cemetery. In addition to the notice required by
20 Section 711.004, notice of a petition filed under this subsection
21 must be given to the Texas Historical Commission and to the county
22 historical commission of the county in which the cemetery is
23 located. The court may consult the Texas Histor ical Commission and
24 the county historical commission in making a decision under this
25 section [may intervene and beeeme parties te the suit). The court
26 may also designate or appoint any person, party, court appointed
27 representative, or official the court considers necessary to assist
3
H.B. No. 2430
1 in determining whether the removal is in the public interest.
2 Unknown next of kin of deceased persons buried in the cemetery shall
3 be served by publication of a notice in a newspaper of general
4 circulation in the county in which the cemetery is located, or if
5 there is not a newspaper of general circulation in the county, in a
6 newspaper of general circulation in an adjacent county. A
7 reasonable good faith effort shall be made to remove all remains and
8 monuments from the cemetery or that portion of the cemetery for
9 which the dedication is to be removed.
10 SECTION 4. The changes in law made by this Act apply only to
11 a suit involving the removal of remains from an abandoned, unknown,
12 or unverified cemetery pending in a trial court on the effective
13 date of this Act or filed on or after that date. A suit involving
14 the removal of remains from an abandoned, unknown, or unverified
15 cemetery in which a final order is rendered before the effective
16 date of this Act is governed by the law in effect on the date the
17 order was rendered, and the former law is continued in effect for
18 that purpose.
19 SECTION 5. This Act takes effect immediately if it receives
20 a vote of two-thirds of all the members elected to each house, as
21 provided by Section 39, Article III, Texas Constitution. If this
22 Act does not receive the vote necessary for immediate effect, this
23 Act takes effect September 1, 2019.
4
H.B. No. 2430
President of the Senate Speaker of the House
I certify that H.B. No. 2430 was passed by the House on May 3,
2019, by the following vote: Yeas 143, Nays 0, 1 present, not
voting.
Chief Clerk of the House
I certify that H.B. No. 2430 was passed by the Senate on May
22, 2019, by the following vote: Yeas 31, Nays O.
Secretary of the Senate
APPROVED:
Date
Governor
5
8/9/2019 Texas Legislature Online - 86(R) History for HB 2430
Texas Legislature Online History
Bill: HB 2430 Legislative Session: 86(R)
Last Action: 06/10/2019 E Effective Immediately
Caption Version: Enrolled
Council Document: 86R 10460 EAS-F
Caption Text: Relating to requirements in a suit for the removal of human remains from a cemetery.
Author:
Sponsor:
Subjects:
House Committee: Status:
Reynolds I Zerwas I Stephenson I Miller
Miles
Cemeteries (10054) Courts--Civil Procedure (10135) Health--General (10385)
Judiciary & Civil Jurisprudence
Out of committee
Vote: Ayes=9 Nays=O Present Not Voting=O Absent=O
Senate Committee: State Affairs
Status: Out of committee
Vote: Ayes=9 Nays=O Present Not Voting=O Absent=O
Actions: (descending date order)
Viewing Votes: Most Recent House Vote I Most Recent Senate Vote
Description Comment Date""-
E Effective Immediately 06/10/2019
E sig~ed by the Governor 06/1O/20~9
E Sent to the Governor OS/26/2019
S Signed in the Senate OS/25/2019
H Signed in the H<?,use OS/24/2019
H Reported enrolled OS/23/2019
H Senate passage reported OS/23/2019
S Record vote OS/22/2019
S Passed OS/22/2019
S Read 3rd time OS/22/2019
S Record vote OS/22/2019
S Three day rule suspended OS/22/2019
S Vote recorded In Journal OS/22/2019
S Read 2nd time& passed to 3rd reading OS/22/2019
S Laid before the Senate OS/22/2019
S Placed on Intent calendar OS/22/2019
S Placed on local & uncontested calendar OS/22/2019
S Committee report printed and distributed 05/19/2019
S Recommended for local & uncontested calendar 05/19/2019
S Reported favorably w/o amendments 05/19/2019
S Testimony taken In committee 05/17/2019 S Considered In public hearing 05/17/2019
S Scheduled for public hearing on ... 05/17/2019
S Referred to State Affairs 05/10/2019
S Read first time 05/10/2019
S Received from the House 05/06/2019
H Reported engrossed 05/04/2019
H Record vote RV#1005 05/03/2019
H Passed 05/03/2019
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8/9/2019 Texas Legislature Online - 86(R) History for HB 2430
H Read 3rd time 05/03/2019 2897 H Passed to engrossment 05/02/2019 2779 H Read 2nd time 05/02/2019 2779 H Placed on General State Calendar 05/01/2019 H Considered In Calendars 04/29/2019 H Committee report sent to Calendars 04/24/2019 H Com t11 lttee report distributed 04/23/2019 07:14 PM H Comte report filed with Committee Coordinator 04/23/2019 2181
. . H Reported favorably w/o amendment(s) 04/15/2019 H Considered In public hearing 04/15/2019
H Left pending In committee 03/18/2019 H Testimony taken/registration(s) recorded In committee 03/18/2019
H Considered In public hearing 03/18/2019
H Scheduled for public hearing on ... 03/18/2019 H Referred to Judiciary & Civil Jurisprudence 03/11/2019 06:06 PM 621
H Read first time 03/11/2019 621
H Filed 02/25/2019
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Tab E House Comm. on Judiciary & Civil
Jurisprudence, Bill Analysis, Tex. H.B. 2430,
86th Leg., R.S. (2019)
BILL ANALYSIS
BACKGROUND AND PURPOSE
H.B,2430 By: Reynolds
Judiciary & Civil Jurisprudence Committee Report (Unamended)
The recent discovery of an unmarked burial ground with connections to the 19th and 20th century system of convict leasing has raised concerns regarding state law relating to the removal of human remains from abandoned or rediscovered cemeteries, It has been suggested that current practice may not adequately provide for an expeditious and respectful process under circumstances of particular historical sensitivity and for which no documentation identifies the deceased or their present-day relatives, There have been calls, additionally, to allow a court more flexibility in ordering where such disinterred remains are to be reinterred in order to preserve proximity to the original site when appropriate, H.B, 2430 seeks to address these concerns by limiting certain notice periods associated with the court process in such cases, changing the authorized standing of certain historical advisors, and allowing the court the option of ordering reburial on the same property,
CRIMINAL JUSTICE IMP ACT
It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision,
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution,
ANALYSIS
H,B, 2430 amends the Health and Safety Code to require that, if a district court to which a party applies for permission to remove interred remains from a cemetery requires an additional person or entity to be served notice of the application, subsequent to such service to the other parties for whom the notice is required, the additional service be performed not later than the 11 th day after the date of the judge's order. The bill prohibits such service of notice from being required for any court appointed representative or other court appointed official.
H.B, 2430 authorizes a court to order the removal of human remains from an abandoned, unknown, or unverified cemetery regarding which the owner of the applicable property has petitioned for the removal of a cemetery designation to any other place on the owner's property that the district court finds is in the public interest, as an alternative to ordering such a removal to a perpetual care, municipal, or county cemetery, The bill removes the authorization of the Texas Historical Commission and the appropriate county historical commission to intervene and become parties to a suit involving the removal of remains from an abandoned, unknown, or unverified cemetery or the removal of a cemetery dedication and authorizes the court instead to consult with those historical commissions in making a decision in those cases, The bill authorizes the court also to designate or appoint any person, party, court appointed representative, or official the court considers necessary to assist in determining whether the removal of remains or the removal of the cemetery dedication is in the public interest.
86R 19778 19.73,708
EFFECTIVE DATE
On passage, or, if the bill does not receive the necessary vote, September 1,2019.
86R 19778 19.73.708
2
Tab F Senate Comm. on State Affairs, Bill Analysis,
Tex. H.B. 2430, 86th Leg., R.S. (2019)
Senate Research Center 86RI0460 EAS-F
BILL ANALYSIS
AUTHOR'S 1 SPONSOR'S STATEMENT OF INTENT
H.B.2430 By: Reynolds et al. (Miles)
State Affairs 5116/2019 Engrossed
The recent discovery of an unmarked burial ground connected to convict leasing in the late 19th and early 20th centuries has raised concerns about current state law for removing human remains from abandoned or rediscovered cemeteries. H.B. 2430 seeks to address these concerns by mandating notice periods for court-ordered notices, permitting the court to consult with the Texas Historical Commission and other historical advisors about the public interest, and allowing the court to order the reburial on the same property.
H.B. 2430 amends current law relating to requirements in a suit for the removal of human remains from a cemetery.
RULEMAKING AUTHORITY
This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Section 711.004, Health and Safety Code, by amending Subsections (c) and (d) and adding Subsection (d-I), as follows: .
(c) Authorizes the remains, if the consent required by Subsection (a) cannot be obtained, to be removed by permission of a district court of the county in which the cemetery is located. Requires notice, before the date of application to the court for permission to remove remains under this subsection, to be given to:
(1)-(2) makes no changes to these subdivisions; and
(3) any other person or entity that the court subsequently requires to be served, rather than any other person that the court requires to be served.
(d) Requires personal notice, for the purposes of Subsection (c) and except as provided by this subsection or Subsection (d-I) or (k), rather than (k), to be given not later than the 11 th day before the date of application to the court for permission to remove the remains, or notice by certified or registered mail is required to be given not later than the 16th day before the date of application.
(d-I) Requires that additional service, if the court subsequently requires an additional person or entity to be served under Subsection (c)(3), to be performed not later than the 11 th day after the date of the judge's order. Provides that service may not be required for any court appointed representative or other court appointed official.
SECTION 2. Amends Sections 7I1.0IO(b) and (c), Health and Safety Code, as follows:
(b) Creates Subdivisions (1)-(2) from existing text. Authorizes a district court of the county in which an unknown cemetery is discovered or an abandoned cemetery is located, on petition of the owner of the property, to order the removal of any dedication for cemetery purposes that affects the property if the court finds that the removal of the
SRC-ARR H.B. 2430 86(R) Page 1 of 2
dedication is in the public interest. Requires the court, if a court orders the removal of a dedication of a cemetery and all human remains in that cemetery have not previously been removed, to order the removal of the human remains from the cemetery to:
(1)-(2) makes nonsubstantive changes to these subdivisions; or
(3) any other place on the owner's property that the district court finds is in the public interest.
(c) Authorizes the court to consult the Texas Historical Commission and the county historical commission in making a decision under this section, rather than to intervene and become parties to the suit. Authorizes the court to also designate or appoint any person, party, court appointed representative, or official the court considers necessary to assist in determining whether the removal is in the public interest.
SECTION 3. Amends Section 711.036(b), Health and Safety Code, as follows:
(b) Authorizes the court to consult the Texas Historical Commission (THC) and the county historical commission in making a decision under this section, rather than authorizing THC and the county historical commission to intervene and become parties to the suit. Authorizes the court to also designate or appoint any person, party, court appointed representative, or official the court considers necessary to assist in determining whether the removal is in the public interest.
SECTION 4. Provides that the changes in law made by this Act apply only to a suit involving the removal of remains from an abandoned, unknown, or unverified cemetery pending in a trial court on the effective date of this Act or filed on or after that date. Provides that a suit involving the removal of remains from an abandoned, unknown, or unverified cemetery in which a final order is rendered before the effective date of this Act is governed by the law in effect on the date the order was rendered, and the former law is continued in effect for that purpose.
SECTION 5. Effective date: upon passage or September 1, 2019.
SRC-ARR H.B. 2430 86(R) Page 2 of 2
