* District Judge of the Eastern District of Louisiana,

sitting by designation.

1 United States Court of Appeals

Fifth Circuit



## FILED

August 18, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 02-11132

ZEN MUSIC FESTIVALS, A TEXAS LIMITED LIABILITY COMPANY,

Plaintiff-Appellee,

VERSUS

RAY STEWART,

IN HIS OFFICIAL CAPACITY AS SHERIFF OF ELLIS COUNTY, TEXAS; and

AL CORNELIUS, IN HIS OFFICIAL CAPACITY AS ELLIS COUNTY

ADMINISTRATOR,

Defendants,

VERSUS

JOHN CORNYN, ATTORNEY GENERAL OF THE STATE OF TEXAS,

Intervenor-Appellant.

Appeal from the United States District Court

For the Northern District of Texas, Dallas Division

(02-CV-1998)

Before EMILIO M. GARZA, and DENNIS, Circuit Judges, and VANCE *

,

District Judge.** Pursuant to 5 TH C IR . 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this opinion should not be published and is not precedent except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 5 TH C IR . R. 47.5.4.

2 PER CURIAM: **

Inte rvenor John Cornyn, Attorney General of Texas (“Texas

Attorney General”), appeals from the district court’s September 19,

2002 preliminary injunction enjoining defendants Ray Stewart and Al

Cornelius, the sheriff and administrator of Ellis County

respectively, fro m enforcing the permit requirement of the Texas

Mass Gathering Act, Tex. Health & Safety Code Ann §§ 751.001-

751.013 (“TMGA”), against plaintiff, Zen Music Festivals, L.L.C.

(“Zen”) with respect to a music concert that was promoted and held

by Zen on September 21, 2002 on the Beaumont Ranch in Ellis County,

Texas. For the reasons stated below, we dismiss this appeal as

moot.

I

Zen promotes and holds annual music festivals in Texas. It

intended to hold a music concert on September 21, 2002 on private

property in Ellis County, Texas that it expected would attract over

5,000 people who would remain a t the location for more than five

continuous h ours. The TMGA requires, i nter alia, a permit for a

“person” such as Zen to hold a “mass gathering,” which is defined

as “a gathering that is held outside the limits of a municipality

and that

. . .is expected to attract more than 5,000 persons who

will be at the meeting location for more than five continuous3

hours.” S ee TMGA §§ 751.002(2) (defining “person”); 751.003

(describing permit requirement generally); 751.002(1) (defining

“mass gathering”).

Accordingly, on August 28, 2002, Zen applied for a permit to

hold the music concert from defendant Judge Al Cornelius of Ellis

County. S ee id. § 751.004 (providing that the permit applicant

must apply to the county judge of the county in which the “mass

gathering” is to be held). Judge Cornelius held a hearing and on

September 9, 2002 denied the permit.

On September 13, 2002, Zen filed suit against the defendants

in the dis trict court under 42 U.S.C. § 1983, claiming that the

TMGA is facially invalid under the First Amendment and requesting

a permanent injunction precluding defendants from enforcing the

TMGA. On September 16, 2002, Zen filed an emergency application

for a preliminary injunction, asking the district court to enjoin

the defendants from enforcing the TMGA against Zen in relation to

the September 21, 2002 music concert. On September 18, 2002, the

Texas Attorney General was granted leave to intervene in this case

pursuant to 28 U.S.C. § 2403(b). On September 19, 2002, after a

hearing, the district court issued a prel iminary injunction that

prevented defendants from enforcing the permitting requirements of

the TMGA against Zen with respect to the September 21, 2002 music

concert. Zen promoted and held the music concert as scheduled on

September 21, 2002. On October 4, 2002, the Texas Attorney General4

appealed from the preliminary injunction judgment, and on October

8, 2002, the district court stayed all further proceedings in the

case pending appeal.

II

“[A] case is moot when the issues presented are no longer

‘live’ or the parties lack a legally cognizable interest in the

outcome.” C ounty of Los Angeles v. Davis

, 440 U.S. 625, 631 (1979)

(internal quotation omitted). “[T]he question is not whether the

precise relief sought at the time an application for injunction was

filed is still available. The question is whether there can be a ny

effective relief.” V ieux Carre Property Owners v. Brown

, 948 F.2d

1436, 1446 (5th Cir. 1991). If there can be no effective relief,

then any dec ision by the appellate court would be advisory. S ee

City of Erie v. Pap’s A.M. , 529 U.S. 277, 288 (2000).

Courts have established an exception to the mootness doctrine

for “issues capable of repetition, yet evading review.”

Specifically, “[a]lthough a case may be technically moot, a federal

court may nevertheless retain jurisdiction if a continuing

controversy exists or if the challenged problem is likely to recur

or is otherwise capable of repetition.” Vieux Carre , 948 F.2d at

1447. This exception, however, “is inapplicable in those

situations in which the issues underlying the appeal are not moot

in the case remaining before the district court.” M arilyn T. v.

Evans

, 803 F.2d 1383, 1385 (5th Cir. 1986) (concluding that the5

exception did not apply where the district court’s denial of a

preliminary injunction was not a final deci sion on the

constitutionality of the challenged action).

In the specific context of a preliminary injunction, where

“the terms of the injunction

. . . have been fully and irrevocably

carried out,” and where any underlying issues remain for a trial on

the merits of the case, the appeal of the preliminary injunction

should be dismissed as moot. U niversity of Texas v. Camenisch

, 451

U .S. 390, 398 (1981). It is improper to hear an appeal of a

remaining issue at the preliminary injunction stage because of the

significant differences between a preliminary injunction and a

permanent injunctio n or other final disposition on the merits of

the case. S ee id. at 394-95. Specifically, “[t]he purpose of a

preliminary injunction is merely to preserve the relative positions

of the parties until a trial on the merits can be held. Given this

limited purpose, and given the haste that is often necessary if

those positions are to be preserved, a prel iminary injunction is

customarily granted on the basis of procedures that are less formal

and evidence that is less complete than in a trial on the merits.”

Id. at 395.

In this case, the Texas Att orney General is appealing a

preliminary injunction that prohibited defendants from enforcing

Texas’ TMGA permit requirements against Zen in relation to a music

concert that has already happened. Because “the terms of the6

injunction have been fully and irrevoca bly carried out,” any

remaining issues should b e considered after the trial on the

merits. I d. at 398. No exceptions exist here because “the issues

underlying the appeal are not moot in the case remaining before the

district court.” M arilyn T.

, 803 F.2d at 1385. Accordingly, we

dismiss this appeal as moot and remand the case to the district

court for proceedings consistent with this opinion.

DISMISSED and REMANDED.