EX PARTE DAWUD BURKE COLLEEN BURKE v. << (2026)

DISSENTING OPINION

Applicants, Dawud and Colleen Burke, are Texas residents ordered by a California court to appear as witnesses before a California grand jury. A majority of this Court concludes that these cases are now moot and denies their applications. I agree with Judge Yeary and would instead conclude that the issue presented is capable of repetition, yet evading review, and thus falls squarely within the mootness exception.

I write separately to recognize the need, occasionally acute by virtue of timing, to address and refine our precedent on the “evading review” prong of the exception to the mootness doctrine. See Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170 (2016). Few modern appellate cases have addressed this aspect of the exception in detail. See In re Bishop, No. 05-18-01333-CV, 2020 WL 1074583, at *11 (Tex. App.—Dallas Mar. 6, 2020, orig. proceeding) (en banc) (Schenck, J., dissenting) (mem. op., not designated for publication) (noting mootness challenges resulting in lack of appellate authority governing election law issues following compression of the period between candidacy filing and distribution of ballots).

Where an issue is likely to occur repeatedly, but within a time frame that will habitually prevent any prospect of appellate scrutiny, the notion that no appellate review will ever be available—unless it is also likely to recur among the same parties—is highly problematic.

Leaving the lower courts alone to resolve the procedural and substantive issues involved in these matters without the prospect of any governing jurisprudence presents a serious constitutional problem far beyond the prudential concerns surrounding the mootness doctrine. Whether and how a party is entitled to be heard in cases like these is important. This Court should have a voice in answering that question.

I therefore dissent from the Court's decision to deny these applications and would file and set to reach the merits of these cases.

SCHENCK, P.J., filed a dissenting opinion.