Opinion
03-21-00681-CV
08-10-2023
Austin Parents for Medical Choice, Loni Faye Neuffer, Steve Wagner, Sarah Wagner, Collette Antoine, and Tom Lonsdale for themselves and minor children, Appellants v. Austin Independent School District, Matias Segura, Candace Hunter, Kathryn WhitleyChu, Arati Singh, Dr. David Kauffman, Ofelia Zapata, Kevin Foster, Andrew Gonzales,Lynn Boswell, and Noelita Lugo, in their Official Capacities, Appellees[1]
FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-21-005603, THE HONORABLE KARIN CRUMP, JUDGE PRESIDING.
Before Baker, Triana, and Theofanis, Justices.
MEMORANDUM OPINION
Thomas J. Baker, Justice.
Appellants Austin Parents for Medical Choice and several parents of children enrolled in the Austin Independent School District (AISD) filed a lawsuit against AISD, its superintendent, and its trustees challenging a face-covering mandate and quarantine policy the school district implemented in response to the COVID-19 pandemic. The trial court granted appellees' plea to the jurisdiction, dismissing appellants' claims. For the following reasons, we affirm the trial court's order.
The individual parent-plaintiffs are Loni Faye Neuffer, Steve Wagner, Sarah Wagner, Collette Antoine, and Tom Lonsdale, for themselves and their minor children.
BACKGROUND
In July 2020, Governor Greg Abbott issued Executive Order GA-29, which mandated the wearing of face coverings by all persons in the state, with certain exceptions, "due to recent substantial increases in COVID-19 positive cases." As the pandemic continued, Governor Abbott issued several other executive orders, including the one prompting this lawsuit: GA-38, issued in July 2021, prohibiting all local governmental entities from requiring people to wear masks. Shortly thereafter, at a public meeting on August 9, 2021, the then-AISD Superintendent announced that she was implementing a mask mandate beginning August 11. On August 12, the AISD Board convened another public meeting, at which it adopted a resolution requiring mask-wearing by all students and prescribing quarantine protocols for those exposed to individuals with COVID-19.
Appellants filed a lawsuit against AISD, its Board, and its Superintendent on September 22, 2021, challenging the mask mandate and quarantine policy, alleging that (1) the mandate and policy violate the Texas Constitution by, respectively, denying children a constitutional right to public education and illegally discriminating against unvaccinated children and (2) appellees violated the Texas Open Meetings Act (TOMA) in promulgating the mandate and policy. They sought a declaration under the Uniform Declaratory Judgments Act (UDJA) that the mandate and policy are invalid and prayed for injunctive relief-through a temporary restraining order, temporary injunction, and permanent injunction-to enjoin enforcement of the mandate and policy.
Appellants reproduce a portion of the alleged quarantine policy in their petition. The policy states, in relevant part, "Fully COVID-19-vaccinated people . . . per CDC guidelines will not need to quarantine if they come in close contact with someone who tests positive," implying that non-vaccinated people (including students) who come in close contact with someone who tests positive do need to quarantine. The policy further provides that "students" do not need to quarantine "if they were at least three feet away from another student with COVID-19 while everyone was correctly and consistently wearing masks."
Appellees filed a plea to the jurisdiction challenging each of the claims raised by appellants, arguing that appellants lacked standing to challenge the mandate and policy, that governmental immunity bars appellants' claims, and that appellants failed to exhaust administrative remedies before filing suit. The trial court granted the plea to the jurisdiction, dismissing appellants' lawsuit. This appeal followed.
DISCUSSION
We first address whether this dispute has become moot due to AISD's rescinding the mandate and policy. See Matthews v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016) ("A defendant's cessation of challenged conduct does not, in itself, deprive a court of the power to hear or determine claims for prospective relief"). Appellants concede that the mandate and policy are no longer in force and that the controversy would ordinarily be moot but assert that justiciability is preserved by the voluntary-cessation exception to mootness because reinstatement of the mandate and policy is within appellees' control. See id. (noting that if cessation of challenged conduct alone could deprive court of jurisdiction, defendants could "control the jurisdiction of courts with protestations of repentance and reform, while remaining free to return to their old ways"). When a defendant has ceased the challenged conduct, it has a "heavy" burden to persuade the court that the challenged conduct cannot reasonably be expected to recur. Id. Appellees have never expressed the position that AISD could not and would not reinstate the mandate and policy and, to the contrary, represent that they "continue to defend the legality of the challenged conduct and its discretion to engage in that conduct." In the absence of an admission by appellees that the challenged conduct is unconstitutional or otherwise prohibited, their rescinding of the mandate and policy does not, without more, carry much weight. See id. at 419.
This Court raised the issue of mootness sua sponte, as we must, see State ex rel. Best v. Harper, 562 S.W.3d 1, 7 (Tex. 2018), and requested responses from the parties, which they each filed.
Appellants also assert that the public-interest exception to mootness preserves justiciability, but we need not address that exception because of our determination regarding the voluntary-cessation exception.
Moreover, appellees assert that mask mandates are currently "perfectly legal" by virtue of the expiration of GA-38 on June 14, 2023. See Abbott v. Harris County, S.W.3d _, 2023 WL 4278763, at *6 n.23 (Tex. June 30, 2023) ("The Governor allowed GA-38 to expire in June 2023 in anticipation of Senate Bill 29's effectiveness."). However, appellants' challenges to the mask mandate and quarantine policy are not entirely based on the policies' alleged violation of GA-38 but are also based on their alleged unconstitutionality. Thus, the expiration of GA-38 does not moot this controversy because appellants continue to challenge the constitutionality of not just AISD's mask mandate but also its quarantine policy.
Governor Abbott's website, which lists all proclamations, shows that there was no renewal of GA-38 in June 2023. See News-Proclamation, Office of the Texas Governor, available at https://gov.texas.gov/news/category/proclamation (last visited July 25, 2023).
We recognize that, beginning September 1, 2023, a new law will take effect prohibiting a "governmental entity" (which includes a school district) from imposing "a mandate requiring a person to wear a face mask or other face covering to prevent the spread of COVID-19." See Act of May 28, 2023, 88th Leg., R.S. Ch. 336, § 2, 2023 Tex. Sess. Law Serv. ch. 336 (to be codified at Tex. Health & Safety Code §§ 81B.001, et seq.) (defining "governmental entity" to include "local government entity as defined by Section 418.004"); see also Tex. Gov't Code § 418.004(10) (defining "local government entity" to include independent school district). However, there is a short interim between now and when that law takes effect-during which a new school year will begin-and although appellees assert that they do "not foresee" reinstating the challenged policies, such a statement is not enough to make it "absolutely clear" that appellees will not reinstate them. Furthermore, the new statute speaks to mask requirements, not quarantine policies. We therefore conclude that this controversy is not moot, and accordingly, we will address the merits of the issues appellants have raised.
Appellants contend on appeal that the trial court improperly granted appellees' plea to the jurisdiction as to their UDJA and constitutional claims because (1) they have standing under the UDJA and under the Texas Constitution to challenge the mask mandate and quarantine policy, (2) appellees do not enjoy governmental immunity with respect to either claim, and (3) appellants were not required to exhaust administrative remedies with respect to their constitutional claim. Appellants did not raise any issues or make any arguments in their original brief as to the propriety of the trial court's dismissal of their TOMA claim, raising the issue for the first time only in their reply brief. They have thus waived any error as to their TOMA claim. See Tex. R. App. P. 38.1(f), (i); Howell v. Texas Workers' Comp. Comm 'n, 143 S.W.3d 416, 439 (Tex. App-Austin 2004, pet. denied).
UDJA claim
It is well-settled that appellees enjoy governmental immunity from suit unless the legislature has expressly waived it. See Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018); Texas Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). The UDJA contains a limited waiver of governmental immunity for claims that (1) challenge the validity of a "statute, municipal ordinance, contract, or franchise," (2) seek equitable relief; and (3) are brought against a governmental entity responsible for the challenged law. Tex. Civ. Prac. & Rem. Code § 37.004(a); see Patel v. Texas Dep't of Licensing & Regulation, 469 S.W.3d 69, 75-76 (Tex. 2015).
The UDJA's limited waiver does not authorize suits regarding the validity of governmental actions, rules, or policies implemented under a statute. See Hatchett v. West Travis Cnty. Pub. Util. Agency, 598 S.W.3d 744, 753-54 (Tex. App-Austin 2020, pet. denied) (holding that UDJA does not waive immunity from suit for challenges to legality of municipal regulations or policies); Texas State Bd. of Veterinary Med. Exam'rs v. Giggleman, 408 S.W.3d 696, 708 (Tex. App-Austin 2013, no pet.) (holding that challenge to government agency's rules "f[ell] outside the UDJA altogether" because it was not challenge to statute or ordinance). School districts are, therefore, immune to UDJA suits challenging the validity of their day-to-day operational decisions, including ones that impact students and employees. See Compton v. Port Arthur Indep. Sch. Dist, No. 09-15-00321-CV 2017 WL 3081092, at *5 (Tex. App - Beaumont July 20, 2017, no pet.) (mem. op.) (holding that UDJA did not waive immunity for suit about illegal employment action because suit did not challenge "validity of an ordinance, statute, or franchise"); Rubalcaba v. Raymondville Indep. Sch. Dist, No. 13-14-00224-CV, 2016 WL 1274486, at *4 (Tex. App-Corpus Christi-Edinburg Mar. 31, 2016, no pet.) (mem. op.) (holding that complaints about governmental unit's actions in form of school district's GPA and class-rank calculations "do not waive immunity under the UDJA").
AISD's mask mandate and quarantine policy do not constitute a statute, municipal ordinance, contract, or franchise. By definition, therefore, they do not fall under the UDJA's limited waiver of governmental immunity. See Tex. Civ. Prac. & Rem. Code § 37.004(a); Scribner v. Treger, No. 02-21-00277-CV, 2022 WL 714654, at *13-15 (Tex. App -Fort Worth Mar. 10, 2022, no pet.) (mem. op.) (holding that parents' challenge to school district's mask policy as allegedly violating GA-38 did not waive school district's governmental immunity under UDJA and that trial court erred in denying plea to jurisdiction as to UDJA claim). Accordingly, the trial court properly granted appellees' plea to the jurisdiction as to appellants' UDJA claim.
Constitutional claim
In pleading their constitutional claim, appellants contended that appellees violated article VII, section 1 of the Texas Constitution:
A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.Tex. Const. art. VII, § 1. Appellants alleged that this provision creates a right for "all children to attend public school in Texas" but that appellees' quarantine policy constitutes "irrational discrimination" in that it "prevents] certain children [i.e., those who are unvaccinated against COVID-19] from receiving the public education that is a fundamental right of children in Texas" when there is "no medical reason" to support the policy. As for the mask mandate, they alleged that it harms children physically, mentally, and emotionally and subjects those who choose not to wear a mask to inferior virtual learning. However, as appellees argue, article VII, section 1 expressly imposes on the legislature a duty to "establish and make suitable provision for the support and maintenance of a public-education system; it does not create a fundamental right to education or impose any duties on appellees. See id; Neeley v. West Orange-Cove Consol. Indep. Sch. Dist, 176 S.W.3d 746, 787 (Tex. 2005) ("To achieve such a system [prescribed by article VII, § 1], the Legislature has chosen to use local school districts."); Kirby v. Edgewood Indep. Sch. Dist, 761 S.W.2d 859, 863-64 (Tex. App-Austin 1988) (holding that article VII, § 1 does not establish "fundamental right" to education and that legislation establishing school-finance system was thus accorded presumption of constitutionality), rev 'd on other grounds, 777 S.W.2d 391 (Tex. 1989).
Furthermore, the cited constitutional provision does not create an individual right to receive one's ideal education or education on any specific terms; instead, decisions regarding the "methods, restrictions, and regulations" needed to create an efficient school system are left to the legislature's discretion. See Spring Branch I.S.D. v. Stamos, 695 S.W.2d 556, 559 (Tex. 1985) ("The Constitution leaves to the legislature alone the determination of which methods, restrictions, and regulations are necessary and appropriate to carry out this [article VII, § 1] duty."); Mitchell v. Beaumont Indep. Sch. Dist, Civil Action No. 1:05-CV-195, 2006 WL 2092585, at *12 (E.D. Tex. July 25, 2006) (holding that there is no right under Texas or federal constitution to "receive public education on special terms or conditions designated by" students or their parents and that "parents do not have the right to control every component or aspect of a child's educational process").
To fulfill its constitutional duty, the legislature has by statute created school districts and, "it is the Legislature-not the Constitution-that imposes legal obligations on [school] districts." See Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 548 (Tex. 2016). Furthermore, school districts "have the primary responsibility for implementing the state's system of public education and ensuring student performance in accordance with [the Education Code]." Tex. Educ. Code § 11.002. The Education Code's stated mission of the Texas public- education system is to "to ensure that all Texas children have access to a quality education that enables them to achieve their potential and fully participate now and in the future in the social, economic, and educational opportunities of our state and nation." Id. § 4.001. To that end, the Education Code requires all educational institutions to "provide equal opportunities to all individuals within its jurisdiction or geographical boundaries." Id. § 1.002(a). It is these and similar statutes that are potentially implicated by appellants' "constitutional challenge" and, in light of the above discussion, it is these statutes, not the Texas Constitution, that is the source of the purported rights that appellants contend appellees infringed.
When the true nature of the claims in a plaintiffs petition, despite the claims' nomenclature, indicates that what are dubbed "constitutional claims" are "ancillary to and supportive of a complaint about" a school district's "application of school law," the Commissioner of Education has exclusive jurisdiction to hear the cause in the first instance. See Marquez, 487 S.W.3d at 552-53; id. at 545-46 ("[P]ersons complaining about the 'management of the school system' or the 'administration of school laws' must exhaust their administrative remedies before courts can exercise jurisdiction." (citation omitted)); see also Tex. Educ. Code § 7.057(a) (providing for "appeal in writing to the commissioner" if person has been aggrieved by "school laws of this state" or "actions or decisions of any school district board of trustees that violate . . . school laws of this state"); McIntyre v. El Paso Indep. Sch. Dist, 499 S.W.3d 820, 825 (Tex. 2016) (noting that Education Code requires any person who is aggrieved by school laws or school board's violation of them to exhaust administrative remedies before filing suit in court).
Construing appellants' pleadings liberally and in their favor, as we must, see Texas Dep 't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004), we conclude that the true nature of what they have framed as a "constitutional claim" is their contention that appellees have violated Texas school laws or the application thereof by denying some children equal access or opportunities to quality education. Accordingly, appellants were required to exhaust their administrative remedies before filing their lawsuit, and their failure to do so deprived the trial court of subject-matter jurisdiction. See Marquez, 487 S.W.3d at 545-46.
CONCLUSION
Having overruled appellants' issues, we affirm the trial court's order granting appellees' plea to the jurisdiction and dismissing appellants' claims.
Affirmed.
DISSENTING OPINION
Rosa Lopez Theofanis, Justice
I respectfully dissent. The Court addresses the trial court's jurisdiction to consider the substance of appellants' claims concerning Austin Independent School District's rescinded COVID-19 face-covering mandate and quarantine policy (collectively, the "AISD policy"), but this Court does not have jurisdiction to do so. Because there is no longer a justiciable controversy between the parties, appellants' suit is moot. See State v. Elgin Indep. Sch. Dist., No. 03-21-00514-CV, 2023 Tex.App. LEXIS 1191, at *3 (Tex. App.-Austin Feb. 24, 2023, no pet.) (mem. op.) (concluding that State's suit concerning school district's mask mandate was moot and that there no longer was a justiciable controversy between parties because school district had rescinded mask mandate); State v. City of Austin, No. 03-20-00619-CV, 2021 Tex.App. LEXIS 2651, at *26-27 (Tex. App.-Austin, Apr. 8, 2021, no pet.) (mem. op.) (concluding that State's claims for injunctive relief concerning city's expired pandemic-related local orders were moot).
The mootness doctrine is a threshold matter because it concerns this Court's subject-matter jurisdiction. City of Austin, 2021 Tex.App. LEXIS 2651, at *8. The doctrine "applies to cases in which a justiciable controversy exists between the parties at the time the case arose, but the live controversy ceases because of subsequent events." Matthews v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016) (citing Heckman v. Williamson County, 369 S.W.3d 137, 161 (Tex. 2012)); see State ex rel. Best v. Harper, 562 S.W.3d 1, 6 (Tex. 2018) ("A case can become moot at any time, including on appeal."). "It prevents courts from rendering advisory opinions, which are outside the jurisdiction conferred by Texas Constitution article II, section 1." Matthews, 484 S.W.3d at 418 (citing Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam)). "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." Texas Health Care Info. Council v. Seton Health Plan Inc., 94 S.W.3d 841, 846-47 (Tex. App.-Austin 2002, pet. denied).
As a preliminary matter, the parties agree that the AISD policy and the Governor's executive order that prohibited local restrictions related to COVID-19 are no longer in force. See Governor of the State of Texas, Exec. Order GA-38 (issued July 29, 2021), 46 Tex. Reg. 4913, 4915 (2021). Although the Court acknowledges that the AISD policy and GA-38 are no longer in force, this Court concludes that this case is not moot because appellants continue to challenge the constitutionality of the AISD policy. But even if the Court were correct that the case is not moot, this Court should not render advisory opinions over claims within the case that are. See Davis v. Fayette Cnty. Appraisal Dist., No. 03-12-00786-CV, 2014 Tex.App. LEXIS 12023, at *5-6 (Tex. App.-Austin Nov. 4, 2014, pet. denied) (mem. op.) (concluding that issue was moot, vacating portion of trial court's judgment addressing issue without reference to merits, and affirming other portions of judgment). For example, among the relief requested by appellants was a declaration about the validity of the AISD policy in light of GA-38. I would conclude at a minimum that there is no longer a justiciable controversy between the parties as to that claim concerning AISD's former policies under a former executive order.
GA-38 was enacted after vaccines became available in Texas and effective until June 2023, which was after Senate Bill 29 was enacted. GA-38 expressly stated that it superseded any conflicting orders issues by local officials in response to COVID-19. As to mask mandates, GA-38 expressly stated, subject to certain exceptions: "No governmental entity, including a county, city, school district, and public health authority, and no governmental official may require any person to wear a face covering or to mandate that another person wear a face covering." As to AISD's rescinded quarantine policy related to COVID-19, GA-38 also stated specifically that public schools "may operate as provided by, and under the minimum standard health protocols found in, guidance issued by the Texas Education Agency" but more generally ordering that there "are no COVID-19-related operating limits for any business or other establishment" and encouraging all persons to use good-faith efforts to follow the health recommendations of the Texas Department of State Health Services.
Turning to the question of whether the entire case is moot, appellants argue that the voluntary-cessation and public-interest exceptions to the mootness doctrine preserve justiciability in this case, and the Court agrees with appellants that the voluntary-cessation exception applies without reaching the public-interest exception. But neither exception applies here. First, although a defendant's voluntary cessation of challenged conduct does not, in itself, deprive a court of the power to hear claims for prospective relief, "dismissal may be appropriate when subsequent events make it 'absolutely clear that the [challenged conduct] could not be reasonably expected to recur.'" See Matthews, 484 S.W.3d at 418 (quoting Bexar Metro. Water Dist. v. City of Bulverde, 234 S.W.3d 126, 131 (Tex. App.-Austin 2007, no pet.)). "Persuading a court that the challenged conduct cannot reasonably be expected to recur is a 'heavy' burden." See id. (citing County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). Nonetheless, subsequent events relative to the parties' dispute in this case meet that burden. On June 2, 2023, the Governor signed into law Senate Bill 29, under which "a governmental entity may not implement, order, or otherwise impose a mandate requiring a person to wear a face mask or other face covering to prevent the spread of COVID-19." Act of May 28, 2023, 88th Leg., R.S., ch. 336, § 1, sec. 81B.002(a), 2023 Tex. Sess. Law Serv. ch. 336 (to be codified at Tex. Health & Safety Code § 81B.002(a)). Although the law does not take effect until September 1, 2023, id. § 2, which is after the start of AISD's school year, it is reasonable to presume that AISD will follow the law going forward and not impose a mask mandate related to COVID-19. See City of Austin, 2021 Tex.App. LEXIS 2651, at *15-16 (declining to assume that local officials would engage in similar conduct again, given Texas Supreme Court's directive to enjoin local officials from enforcing local orders concerning COVID-19, and observing that courts assume parties will follow law).
It is also reasonable to presume that AISD will not reinstate the challenged quarantine policy-related specifically to COVID-19 and drafted to rely on then-prevailing CDC guidelines and vaccine availability-again, given: (i) the current state of the pandemic, see Stand for Something Grp. Live, LLC v. Abbott, No. 13-21-00017-CV, 2022 Tex.App. LEXIS 7719, at *11-13 & fn. 6 (Tex. App.-Corpus Christi-Edinburg Oct. 20, 2022, pet. denied) (mem. op.) (contrasting cases "decided earlier in the pandemic" with later cases across country taking "overwhelming prevailing position" to decline to apply mootness exceptions to challenges to rescinded COVID-19 restrictions, "reasoning that despite the deadly surges in COVID-19 cases caused by the Delta and Omicron variants, there were no indications that similar restrictions would be reimposed"); (ii) GA-38; and (iii) the Texas Supreme Court's recent opinion affirming the Governor's authority under the Texas Disaster Act to issue such an executive order, see Abbott v. Harris County, No. 22-1024, 2023 Tex. LEXIS 630, *4, *9, *37- 38 (Tex. June 30, 2023). Thus, in my view, the voluntary-cessation exception does not apply to preserve justiciability in this case. See Matthews, 484 S.W.3d at 418.
Second, based on the same subsequent events stated above, the public-interest exception does not apply to preserve justiciability in this case. The public-interest exception "expands the capable-of-repetition exception to include parties other than those involved in the current case" and "allows appellate review of a question of considerable public importance if that question is capable of repetition between either the same parties or other members of the public but for some reason evades appellate review." City of Austin, 2021 Tex.App. LEXIS 2651, at *19 (citing University Interscholastic League v. Buchanan, 848 S.W.2d 298, 304 (Tex. App.- Austin 1993, no writ)); see also Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (stating that capable-of-repetition-but-evading-review exception "applies only in rare circumstances" and that it requires plaintiff to prove that "the challenged action was too short in duration to be litigated fully before the action ceased or expired" and "a reasonable expectation exists that the same complaining party will be subjected to the same action again").
Given the Governor's executive order, the Texas Supreme Court's recent opinion affirming the Governor's authority to issue the order, the recent legislation, and the state of the pandemic, there is not a reasonable expectation that AISD or another school district will again implement a similar policy to the challenged provisions of the AISD policy: mandated face-coverings and quarantine procedures specifically related to COVID-19. See Harris County, 2023 Tex. LEXIS 630, at *37-38; City of Austin, 2021 Tex.App. LEXIS 2651, at *15-16, *18- 21. Further, appellants' issues challenging the trial court's dismissal of their claims concerning the AISD policy are not the types of questions that would warrant application of the public-interest exception to preserve justiciability. See City of Austin, 2021 Tex.App. LEXIS 2651, at *18-21 (concluding that State's claims did not fall within public-interest exception to mootness); see, e.g., Morath v. Lewis, 601 S.W.3d 785, 789 (Tex. 2020) (per curiam) ("Indeed, the need for courts to mind their jurisdictional bounds is perhaps at its greatest in cases involving questions of public importance, where the potential for undue interference with the other two branches of government is most acute.").
Because appellants' suit is moot, I would vacate the trial court's order granting appellees' plea to the jurisdiction and dismiss the appeal and the underlying case for want of jurisdiction. See Heckman, 369 S.W.3d at 162 ("If a case is or becomes moot, the court must vacate any order or judgment previously issued and dismiss the case for want of jurisdiction.").
For these reasons, I respectfully dissent.