IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-70012

ANTHONY BARTEE,

Plaintiff-Appellee

v.

SUSAN D REED, BEXAR COUNTY DISTRICT ATTORNEY,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:12-CV-420

Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:*

Hours before his scheduled execution, Anthony Bartee brought suit under

42 U.S.C. § 1983 in federal district court, alleging that the district attorney of

Bexar County violated his Eighth andFourteenth Amendment rights by denying

him access to DNA evidence for forensic testing pursuant to Chapter 64 of the

Texas Code of Criminal Procedure. The district court stayed the execution

pending disposition of the § 1983 claim. The County appealed immediately,

moving this Court to vacate the stay. This Court instead requested that the

United States Court of Appeals

Fifth Circuit

F I L E D

May 29, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 12-70012 Document: 00511869877 Page: 1 Date Filed: 05/29/2012
No. 12-70012

parties submit supplemental briefing the following week. The executionwarrant

expired in the meantime.

In its supplemental brief, the County acknowledged that there remained

untested physical evidence despite a 2010 order from the state trial court that

“any other available evidence that has not already been tested be tested.” The

County’s brief asserts, however, that the remaining evidence has now been

delivered to the Bexar County Criminal Investigations Laboratory and is “in the

process of being tested.”

Neither party has addressed whether the County’s assertion,iftrue, moots

the underlying § 1983 case. Even so, we must raise that question sua sponte

because it implicates the justiciability of the § 1983 suit going forward. At this 1

juncture, however, when a record barely exists, the mootness determination

depends on record development that does not commonly take place in appellate

courts. The district court is the proper forum for developing the record requisite

to a determination of mootness.2

We therefore remand this case for the limited purpose of determining in

the first instance whether the case is now moot. We retain jurisdiction over the

County’s motion to vacate the stay. In other words, this is a LIMITED

REMAND.

See, e.g., United States v. Villanueva-Diaz, 634 F.3d 844, 848 (5th Cir. 2011).

1

See Hornbeck Offshore Servs., LLC v. Salazar, No. 10-30585, 2010 WL 3219469, at *1- 2

2 (5th Cir. Aug. 16, 2010) (unreported per curiam order); Spector v. Norwegian Cruise Line

Ltd., 427 F.3d 285, 285 (5th Cir. 2005) (per curiam order); see also, e.g., Fund for Animals, Inc.

v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 24 (D.C. Cir. 2006); cf. Larremore v. Lykes Bros.

Inc., 454 F. App’x 305, 307 (5th Cir. 2011) (unpublished) (per curiam) (collecting cases

remanding for “development of the record and determination of [whether] jurisdiction is

appropriate”).

2

Case: 12-70012 Document: 00511869877 Page: 2 Date Filed: 05/29/2012