Summary
holding mootness doctrine barred review of appeal presenting that question
Summary of this case from Elec. Reliability Council of Tex. v. CPS EnergyOpinion
No. 18-0781 No. 18-0792
03-19-2021
ELECTRIC RELIABILITY COUNCIL OF TEXAS, INC., Petitioner, v. PANDA POWER GENERATION INFRASTRUCTURE FUND, LLC, d/b/a Panda Power Funds, et al., Respondents In re Panda Power Infrastructure Fund, LLC, d/b/a Panda Power Funds, et al., Relators
Sherine Elizabeth Thomas, Sharon Kay Talley, Austin, Andrew M. Williams, Houston, Delia Garza, for Amicus Curiae Travis County. Andrew W. Guthrie, Dallas, Leslie Conant Thorne, Ben L. Mesches, Dallas, Roger D. Sanders, Sherman, David Merryman, Christopher Knight, Werner A. Powers, Dallas, for Respondents. Nathan Myrick Bigbee, Nicholas B. Bacarisse, Rachel Anne Ekery, Houston, J. Hampton Skelton, Austin, Erika M. Kane, Chad Vann Seely, Brandon Duane Gleason, Wallace B. Jefferson, Austin, for Petitioner. Jeffrey C. Mateer, Austin, Ryan Lee Bangert, Atty. Gen. W. Kenneth Paxton Jr., Bill Davis, Austin, Kyle D. Hawkins, John R. Hulme, Austin, for Amicus Curiae Public Utility Commission of Texas. Justin Pfeiffer, Houston, for Amicus Curiae Fort Bend County. Robert Ackermann, Jeffrey S. Levinger, Joseph Cecere, for Amici Curiae Beal Bank, a Texas State Savings Bank, Beal Bank USA, a Nevada Thrift. Ricardo Rodriguez Jr., Victor Manuel Garza, Edinburg, Josephine Louise Ramirez, McAllen, for Amicus Curiae Hidalgo County. Christian D. Menefee, Jonathan G. C. Fombonne, Tiffany S. Bingham, Courtney T. Carlson, for Amicus Curiae Harris County
Sherine Elizabeth Thomas, Sharon Kay Talley, Austin, Andrew M. Williams, Houston, Delia Garza, for Amicus Curiae Travis County.
Andrew W. Guthrie, Dallas, Leslie Conant Thorne, Ben L. Mesches, Dallas, Roger D. Sanders, Sherman, David Merryman, Christopher Knight, Werner A. Powers, Dallas, for Respondents.
Nathan Myrick Bigbee, Nicholas B. Bacarisse, Rachel Anne Ekery, Houston, J. Hampton Skelton, Austin, Erika M. Kane, Chad Vann Seely, Brandon Duane Gleason, Wallace B. Jefferson, Austin, for Petitioner.
Jeffrey C. Mateer, Austin, Ryan Lee Bangert, Atty. Gen. W. Kenneth Paxton Jr., Bill Davis, Austin, Kyle D. Hawkins, John R. Hulme, Austin, for Amicus Curiae Public Utility Commission of Texas.
Justin Pfeiffer, Houston, for Amicus Curiae Fort Bend County.
Robert Ackermann, Jeffrey S. Levinger, Joseph Cecere, for Amici Curiae Beal Bank, a Texas State Savings Bank, Beal Bank USA, a Nevada Thrift.
Ricardo Rodriguez Jr., Victor Manuel Garza, Edinburg, Josephine Louise Ramirez, McAllen, for Amicus Curiae Hidalgo County.
Christian D. Menefee, Jonathan G. C. Fombonne, Tiffany S. Bingham, Courtney T. Carlson, for Amicus Curiae Harris County
Justice Boyd delivered the opinion of the Court, in which Justice Blacklock, Justice Busby, Justice Bland, and Justice Huddle joined. These two petitions—one for writ of mandamus and the other for review—arise from a lawsuit several Panda Power companies filed against the Electric Reliability Council of Texas, Inc. (ERCOT). The underlying suit involves allegations of fraud and fiduciary breach, but these petitions challenging the court of appeals' review of a trial court's interlocutory order present a medley of jurisdictional issues. We granted review and consolidated the two causes because these issues—which include whether the Texas Public Utility Commission has exclusive jurisdiction over Panda's claims and whether sovereign immunity applies to ERCOT and protects it from Panda's suit—are important to the parties and to our state's jurisprudence. But after the court of appeals rendered its decision, and before the parties asked us to review that decision, the trial court entered a final judgment in the underlying suit, and that judgment is now the subject of a separate appeal pending in the court of appeals. Because the trial court's interlocutory order merged into the final judgment and no longer exists, we cannot grant the relief the parties seek. As a result, any decision we might render would constitute an impermissible advisory opinion, and these consolidated causes are moot. However much we may desire to provide answers in these now-moot interlocutory proceedings, the constitution prohibits us from doing so, and we must respect that prohibition. We must therefore dismiss both the petition for writ of mandamus and the petition for review for want of jurisdiction.
The suit identifies thirteen Panda companies as plaintiffs: Panda Power Generation Infrastructure Fund, LLC (d/b/a Panda Power Funds); Panda Sherman Power Holdings, LLC; Panda Sherman Power Intermediate Holdings I, LLC; Panda Sherman Power Intermediate Holdings II, LLC; Panda Sherman Power, LLC; Panda Temple Power Holdings, LLC; Panda Temple Power Intermediate Holdings I, LLC; Panda Temple Power Intermediate Holdings II, LLC; Panda Temple Power, LLC (n/k/a Temple Generation I, LLC); Panda Temple Power II Holdings, LLC; Panda Temple Power II Intermediate Holdings I, LLC; Panda Temple Power II Intermediate Holdings II, LLC; and Panda Temple Power II, LLC. We will refer to them collectively as Panda.
I.
Background
ERCOT serves as the independent system operator for the Texas power region. Because ERCOT manages only intrastate transmission, it is generally not subject to federal law or to oversight by the Federal Energy Regulatory Commission. Instead, Texas law governs ERCOT and makes it "directly responsible and accountable to the" Public Utility Commission of Texas.
See FPL Energy, LLC v. TXU Portfolio Mgmt. Co. , 426 S.W.3d 59, 61 (Tex. 2014).
See Oncor Elec. Delivery Co. LLC v. Pub. Util. Comm'n of Tex. , 507 S.W.3d 706, 708 n.1 (Tex. 2017) ; Pub. Util. Comm'n of Tex. v. City Pub. Serv. Bd. of San Antonio , 53 S.W.3d 310, 312 (Tex. 2001) ; Sean Farrell, Federal Energy Regulatory Commission Order 1000: Summary of Issues, Requirements, and How It Affects Texas , 14 Tex. Tech Admin . L.J. 119, 120–21 (2012).
Tex. Util. Code § 39.151(d).
Among its many other responsibilities, ERCOT is required to publish "resource adequacy reports," at least annually, providing a five-year forecast of the Texas power region's ability to generate and transmit sufficient electricity to meet projected demands. Fulfilling this duty, ERCOT publishes a "Report on Capacity, Demand, and Reserves" twice a year, in May and December. These "CDR Reports" provide predictions on future electricity demands within the Texas power region and the region's ability to supply sufficient electricity to meet those demands. Participants in the electric industry rely on ERCOT's CDR Reports when deciding, for example, whether to invest in new generation plants or transmission facilities.
Previous CDR Reports are available at http://www.ercot.com/gridinfo/resource.
In 2011 and 2012, ERCOT's CDR Reports projected a likelihood of severe energy shortfalls. Panda alleges it relied on these reports when it decided to invest $2.2 billion to build two new power plants in Temple and one in Sherman. After Panda began construction, however, ERCOT revised its forecasts and—instead of projecting a shortfall—now predicted an excess of generation capacity in the ERCOT region. Claiming that ERCOT's original CDR Reports misled it to invest in losing endeavors, Panda sued ERCOT and three of its officers for fraud, negligent misrepresentation, and breach of fiduciary duty.
ERCOT responded by filing a plea to the jurisdiction arguing that the Public Utility Commission has exclusive jurisdiction over Panda's claims. Although the Commission filed an amicus brief supporting ERCOT's plea, the trial court denied it. Soon thereafter, we explained in University of the Incarnate Word v. Redus that the issues of (1) whether a private entity qualifies as a "governmental unit" under the Texas Tort Claims Act and (2) whether sovereign immunity applies to and protects the private entity are "separate questions with separate analytical frameworks." 518 S.W.3d 905, 911 (Tex. 2017). Relying on Redus , ERCOT filed a motion for reconsideration and alternative amended jurisdictional plea, arguing that sovereign immunity applies and bars Panda's claims. The trial court denied ERCOT's motion and amended plea.
ERCOT appealed the trial court's denial order. As a general rule, subject only to "a few mostly statutory exceptions," parties may only appeal a final judgment. Bonsmara Nat. Beef Co. v. Hart of Tex. Cattle Feeders , 603 S.W.3d 385, 387 (Tex. 2020). ERCOT asserted, however, that the court of appeals had interlocutory jurisdiction because ERCOT qualifies as a "governmental unit" under the Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (allowing interlocutory appeal from an order that "grants or denies a plea to the jurisdiction by a governmental unit as that term is defined" in the Tort Claims Act). At the same time, as an alternative, ERCOT filed a petition for writ of mandamus in the court of appeals, arguing that sovereign immunity bars Panda's claims even if ERCOT is not a governmental unit. After consolidating the two cases, the court of appeals held that ERCOT is not a governmental unit and dismissed ERCOT's interlocutory appeal for want of jurisdiction, but it granted ERCOT's mandamus petition, holding that sovereign immunity applies and bars Panda's claims. Elec. Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC (Panda I ), 552 S.W.3d 297, 309, 320 (Tex. App.—Dallas 2018).
Based on its holding that sovereign immunity applies, the court of appeals entered judgment ordering the trial court to dismiss Panda's claims within thirty days. Panda filed a petition for writ of mandamus in this Court challenging the court of appeals' holding that sovereign immunity bars Panda's claims (No. 18-0792). ERCOT filed a conditional petition for review challenging the court of appeals' holding that ERCOT is not a governmental unit under the Tort Claims Act (No. 18-0781). We requested briefing in both cases, granted ERCOT's petition for review, and consolidated the causes for oral argument.
II.
Mootness
On April 24, 2018—eight days after the court of appeals decided Panda I , four months before Panda filed its mandamus petition in this Court, and five months before ERCOT filed its conditional petition for review—the trial court entered a final judgment dismissing Panda's claims as the court of appeals had ordered. Three days later, on April 27, 2018, Panda filed an emergency motion in Panda I , asking the court of appeals to stay its mandamus order and require the trial court to set aside its final judgment. The court of appeals denied that motion on May 2, 2018. On May 23, 2018, twenty-nine days after the trial court entered its final judgment, Panda filed a notice of appeal from the final judgment, initiating a new proceeding in the court of appeals. See Panda Power Generation Infrastructure Fund, LLC, v. Elec. Reliability Council of Tex., Inc. (Panda II ), No. 05-18-00611-CV (Tex. App.—Dallas filed May 28, 2018).
Panda asserts that the trial court unexpectedly entered its final judgment while the parties were discussing an agreement to stay the court of appeals' order while Panda requested relief in this Court. ERCOT asserts that it agreed to a stay but Panda failed to act expeditiously to obtain the stay before the trial court acted on the court of appeals' order.
A week later, on May 31, 2018, Panda filed a motion asking the court of appeals to rehear Panda I en banc. The court denied that motion on July 10, 2018. On August 15, 2018, Panda filed a motion to abate Panda II "in the interest of judicial economy" until this Court resolved Panda I. The court of appeals denied the abatement, requested briefs, and scheduled oral argument. On August 24, 2018, Panda filed its mandamus petition in this Court (No. 18-0792), challenging the court of appeals' order in Panda I , which addressed the trial court's interlocutory order. In a footnote, Panda's mandamus petition mentioned in passing that the trial court had dismissed Panda's suit as the court of appeals had ordered, and that Panda had filed a "protective appeal" from the dismissal.
On September 24, 2018, ERCOT filed its conditional petition for review (No. 18-0781). In its petition, ERCOT explained that the trial court had entered a final judgment, that Panda had appealed from that final judgment in a separate appellate proceeding, and that the trial court had lost plenary jurisdiction over the case. ERCOT suggested that this Court "may therefore lack jurisdiction over Panda's mandamus petition [in No. 18-0792] because it challenges an interlocutory trial-court order that has since been superseded by a final judgment." On January 4, 2019, ERCOT filed a response to Panda's mandamus petition, again suggesting that "this mandamus proceeding may be moot" because "the trial court's original order denying ERCOT's plea has already been vacated, a contrary judgment has been rendered, and the trial court's plenary power has long ago expired," so "it is difficult to see how vacating the court of appeals' order could have any effect." On January 28, 2019, Panda filed a reply in support of its mandamus petition, acknowledging that "this case comes to the Court in an unusual procedural posture" but insisting "that does not make this case moot or unworthy of review."
Eight days later, on February 5, 2019, we requested briefs addressing Panda's mandamus petition. On April 5, 2019, we requested briefs addressing ERCOT's conditional petition for review. In its brief in response to Panda's mandamus petition, filed on August 7, 2019, ERCOT asserted that, "because the trial court no longer has plenary power over the underlying proceeding, an order from this court would not redress Panda's alleged injury," but "[n]evertheless ERCOT, like Panda, would prefer a final resolution to this dispute." On June 5, 2020, we granted ERCOT's conditional petition for review and set both it and Panda's mandamus petition for oral argument, which occurred on September 15, 2020. On October 16, 2020, we requested that the parties file supplemental briefs specifically addressing the mootness issue, and the parties filed those briefs as requested on November 2, 2020.
Any suggestion that the Court has unnecessarily delayed the resolution of these consolidated causes is groundless, as is any suggestion that any unusual delays have been objectionable or detrimental to the parties. Although these petitions have been pending in this Court for two-and-a-half years, the parties themselves requested and received sixteen separate thirty-day extensions of their filing deadlines. In No. 18-0781 (involving ERCOT's conditional petition for review), ERCOT requested one extension of the deadline to file its petition, two extensions of the deadline to file its reply in support of its petition, two extensions of the deadline to file its brief on the merits, and two extensions of the deadline to file its reply brief, while Panda requested one extension of the deadline to file its response and one extension of the deadline to file its brief on the merits. Those extensions comprise nine of the thirty-one months that have passed since since ERCOT first filed in this Court. And in No. 18-0792 (involving Panda's mandamus petition), ERCOT requested two extensions of the deadline to file a response to Panda's petition, and two extensions of the deadline to file its brief on the merits, while Panda requested two extensions of the deadline to file its brief on the merits and one extension of the deadline to file its reply brief. All sixteen of these requests were unopposed by the other party. While the parties have expressed the hope that we can decide the issues in these consolidated causes, they have never demonstrated the urgency the dissenting Justices now argue should permit us to disregard or impermissibly expand our jurisdictional limits.
Meanwhile, on October 22, 2019, the court of appeals heard oral arguments in Panda II. But nine days after hearing arguments, the court granted Panda's August 15, 2018 motion to abate Panda II pending our final disposition of the two petitions now before us, which challenge the court of appeals' judgment in Panda I.
Because Panda's mandamus petition and ERCOT's petition for review both challenge the court of appeals' decision in Panda I , which addressed the trial court's interlocutory order denying ERCOT's jurisdictional plea, we asked the parties to provide supplemental briefs specifically addressing the issue of whether the trial court's subsequent entry of a final judgment rendered these proceedings moot. See Heckman v. Williamson County , 369 S.W.3d 137, 166–67 (Tex. 2012) (noting that a suit can become moot at any time, including on appeal). If it did, then we lack jurisdiction to decide these causes. See State ex rel. Best v. Harper , 562 S.W.3d 1, 6 (Tex. 2018).
The mootness doctrine—a constitutional limitation founded in the separation of powers between the governmental branches—prohibits courts from issuing advisory opinions. Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc. , 971 S.W.2d 439, 442 (Tex. 1998). A case becomes moot when (1) a justiciable controversy no longer exists between the parties, (2) the parties no longer have a legally cognizable interest in the case's outcome, (3) the court can no longer grant the requested relief or otherwise affect the parties' rights or interests, or (4) any decision would constitute an impermissible advisory opinion. Harper , 562 S.W.3d at 6 (first quoting Williams v. Lara , 52 S.W.3d 171, 184 (Tex. 2001) ; and then quoting Heckman , 369 S.W.3d at 162 ). Under these principles, a trial court's entry of a final judgment will often moot an interlocutory appeal or mandamus petition that challenges a prior trial-court order. See Roccaforte v. Jefferson County , 341 S.W.3d 919, 922 (Tex. 2011) (quoting Hernandez v. Ebrom , 289 S.W.3d 316, 319 (Tex. 2009) ).
Although Justice Guzman correctly observes that a case becomes moot when "the parties lack (1) a justiciable controversy between them or (2) a legally cognizable interest in the outcome," post at 648 ( Guzman , J., dissenting), she fails to acknowledge that a case also becomes moot when, "for any reason," the Court's judgment can have no "practical legal effect" on an "existing controversy." McNeill v. Hubert , 119 Tex. 18, 23 S.W.2d 331, 333 (1930) (emphasis added); see also Harper , 562 S.W.3d at 6 ("Mootness occurs when events make it impossible for the court to grant the relief requested or otherwise ‘affect the parties’ rights or interests."); Heckman , 369 S.W.3d at 162 ("Put simply, a case is moot when the court's action on the merits cannot affect the parties' rights or interests."); VE Corp. v. Ernst & Young , 860 S.W.2d 83, 84 (Tex. 1993) (per curiam) ("Generally, an appeal is moot when the court's action on the merits cannot affect the rights of the parties.").
For example, a final judgment granting a permanent injunction typically moots a pending interlocutory appeal from a prior order granting a temporary injunction. Richards v. Mena , 820 S.W.2d 372, 372 (Tex. 1991). Similarly, a final judgment terminating parental rights moots the parent's pending appeal from a prior temporary order authorizing the emergency removal of the child from the parent's custody. In re E.R.W. , 528 S.W.3d 251, 257 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding). And a final judgment enforcing a settlement agreement in a parental-termination case moots the child's foster parents' pending mandamus petition challenging a prior order striking their petition to intervene, because "there is no longer a justiciable controversy between the parties that would be resolved by the petition for mandamus relief." In re Salverson , No. 01-12-00384-CV, 2013 WL 557264, at *1 (Tex. App.—Houston [1st Dist.] Feb. 14, 2013, orig. proceeding) (per curiam) (mem. op.). In each of these examples, the trial court's final judgment mooted the substantive issue the interlocutory appeal or mandamus petition presented. Once the trial court entered a permanent injunction or terminated the parent's rights, the issue of whether the trial court erred by granting a temporary injunction, authorizing the child's emergency removal, or denying the foster parents' intervention no longer presented a live controversy that was relevant to the resolution of the parties' then-current dispute.
See also Isuani v. Manske-Sheffield Radiology Grp., P.A. , 802 S.W.2d 235, 236-37 (Tex. 1991).
See also Roccaforte , 341 S.W.3d at 924 n.9 (citing additional cases in which "further proceedings mooted the [substantive] issues raised" in an interlocutory appeal).
As Texas courts of appeals have repeatedly recognized, however, a trial court's entry of a final judgment can moot a pending interlocutory appeal or mandamus petition even when the final judgment does not moot the substantive issue the interlocutory appeal or mandamus petition presents. For example, the trial court's entry of a final summary judgment in the plaintiff's favor moots the defendant's pending interlocutory appeal from a prior order denying the defendant's special appearance, because the prior order merges into the final judgment. See Chen v. Razberi Techs., Inc. , No. 05-19-01551-CV, 2020 WL 6390507, at *2 (Tex. App.—Dallas Nov. 2, 2020, no pet. h.) (mem. op.). Similarly, a final judgment granting the defendant's motion to dismiss moots the defendant's pending interlocutory appeal from a prior order denying the dismissal motion and refusing to award attorney's fees, again because the prior order merges into the final judgment. Scott L. Ortho Corp. P.C. v. Marshall , No. 03-19-00575-CV, 2019 WL 6693770, at *1 (Tex. App.—Austin Dec. 6, 2019, no pet.) (mem. op.). And a final judgment entered in the plaintiff's favor moots the defendant's pending interlocutory appeal from a prior order denying the defendant's jurisdictional plea for the same reason: the interlocutory order merges into the final judgment, and the appellate court's decision in the interlocutory appeal "could not have a practical effect on the final judgment." Tex. Dep't of Transp. v. Flores , 513 S.W.3d 826, 827 (Tex. App.—El Paso 2017, no pet.).
See also Henry v. Flintrock Feeders, Ltd. , No. 07-04-0224-CV, 2005 WL 1320121, at *1 (Tex. App.—Amarillo June 1, 2005, no pet.) (mem. op.).
See also City of Lancaster v. White Rock Com., LLC , No. 05-16-00842-CV, 2017 WL 2875520, at *1 (Tex. App.—Dallas July 6, 2017, no pet.) (mem. op.) ; Tex. Dep't of Pub. Safety v. Alexander , No. 03-04-00439-CV, 2005 WL 8147253, at *1 (Tex. App.—Austin Apr. 14, 2005, no pet.) (mem. op.). Other examples abound. See, e.g., In re Gee , No. 01-05-00851, 2006 WL 2640989, at *1 (Tex. App.—Houston [1st Dist.] Sept. 11, 2006, orig. proceeding) (mem. op.) (holding final judgment awarding interpleaded funds to plaintiff mooted defendant's mandamus petition challenging prior order allowing interpleader and disbursing some but not all interpleaded funds to plaintiff); Lincoln Prop. Co. v. Kondos , 110 S.W.3d 712, 715–16 (Tex. App.—Dallas 2003, no pet.) (holding final summary judgment against plaintiffs mooted defendant's interlocutory appeal from prior order certifying proposed class); Siebenmorgen v. Hertz Corp. , No. 14-97-01012-CV, 1999 WL 21299, at *2 (Tex. App.—Houston [14th Dist.] Jan. 21, 1999, no pet.) (not designated for publication) (holding final judgment against plaintiff mooted plaintiff's interlocutory appeal from prior order denying plaintiff's motion for class certification); In re Alexis , No. 05-97-01916-CV, 1998 WL 564933, at *1 (Tex. App.—Dallas Sept. 8, 1998, orig. proceeding) (not designated for publication) (holding final judgment against plaintiff mooted plaintiff's mandamus petition challenging prior pretrial-discovery order because discovery order merged into the final judgment and trial court lost power to modify it when it lost plenary jurisdiction).
In these examples, the parties' controversy over the substantive issue remained live after the trial court entered a final judgment, even though the final judgment rendered the appeal from the interlocutory order "procedurally moot." Alexander , 2005 WL 8147253, at *1 (noting that "the issue of the denial of the plea to the jurisdiction is not moot," but "the purpose of an interlocutory appeal has been mooted by the final judgment"). When that occurs, the complaining party's remedy is to raise the live substantive issue in an appeal from the final judgment. Id. (explaining that the live substantive issue "may be raised by appellant in its appeal from the final judgment"). As in these examples, the parties' controversy over the substantive jurisdictional issues in this case—whether sovereign immunity bars Panda's claims and, if not, whether the Public Utility Commission has exclusive jurisdiction—remains live, and the parties have a legally cognizable interest in the resolution of those issues. See Harper , 562 S.W.3d at 6–7. But the mere existence of a live controversy does not create jurisdiction when other obstacles prevent the court from interceding. See id. (noting the many grounds upon which a finding of mootness can rest). Panda's petition for writ of mandamus asks this Court to "reverse the court of appeals' judgment [in Panda I ], direct the court of appeals to set aside its order mandating dismissal of Panda's claims, reinstate the denial of the plea to the jurisdiction, and remand for further proceedings." But we cannot direct the court of appeals to set aside its "order mandating dismissal of Panda's claims" or direct it to order the trial court to reinstate its interlocutory order denying ERCOT's jurisdictional plea because the trial court has already entered a final judgment to comply with the court of appeals' order, and that judgment is pending on appeal in a separate appellate proceeding. Neither the trial court's interlocutory order nor the court of appeals' order directing the trial court to set aside that order have any remaining effect separate from the trial court's final judgment. See Coal. of Cities for Affordable Util. Rates v. Third Ct. of Appeals , 787 S.W.2d 946, 947 (Tex. 1990). We must conclude that the trial court's entry of a final judgment rendered these causes procedurally moot, and the parties must seek final resolution of their pending controversies by appeal from the trial court's final judgment.
See also Scott L. Ortho Corp. , 2019 WL 6693770, at *1 ("While the issue of attorney's fees and costs related to the denial of appellants' motion to dismiss is not moot, the purpose of the interlocutory appeal has been mooted by the final judgment."); City of Lancaster , 2017 WL 2875520, at *1 ("Although we dismiss this interlocutory appeal as moot, the issue of the denial of the plea to the jurisdiction is not moot.").
See also Flores , 513 S.W.3d at 827 ("TXDOT must appeal the final judgment in order to challenge the denial of its plea to the jurisdiction."); City of Lancaster , 2017 WL 2875520, at *1 ("The City may raise that issue in its appeal from the final judgment."); Lincoln Prop. , 110 S.W.3d at 716 (explaining that the parties' rights are instead "subject to the disposition of the appeal concerning the final judgment"); Siebenmorgen , 1999 WL 21299, at *2 (noting that plaintiff failed to appeal the final judgment); Alexis , 1998 WL 564933, at *1 (same).
To be clear, the court of appeals cannot now set aside its order in Panda I and order the trial court to reinstate its earlier order denying ERCOT's plea to the jurisdiction because that order no longer exists as a separate order. The order has been superseded by and has merged into the trial court's final judgment dismissing Panda's claims. See Bonsmara , 603 S.W.3d at 390 ("When a trial court renders a final judgment, the court's interlocutory orders merge into the judgment and may be challenged by appealing that judgment."). Similarly, an order by this Court directing the court of appeals to set aside its order in Panda I could have no practical effect because the trial court has already complied with that order by entering its own final judgment. And this Court does not have the power to vacate the trial court's final judgment in this proceeding because Panda is appealing that judgment in Panda II , which is currently pending in the court of appeals. Because the court of appeals abated Panda II , it has not yet entered a judgment addressing the trial court's final judgment, so of course neither party has petitioned this Court for relief from any such judgment. Because the trial court's interlocutory order (which gave rise to these consolidated causes) merged into the final judgment, the final judgment is on appeal in a separate proceeding in the court of appeals, and the trial court no longer has plenary jurisdiction over Panda's claims against ERCOT, this Court cannot instruct the trial court to render a new judgment. Nor can we instruct the court of appeals how to resolve Panda II without issuing an advisory opinion, because that appeal is not yet before us. We are therefore unable to provide the relief the parties' petitions seek, and any order by this Court would be without practical effect. Therefore, we are compelled to conclude that this proceeding is moot. See Dow Chem. Co. v. Garcia , 909 S.W.2d 503, 504–05 (Tex. 1995) (quoting Holcombe v. Fowler , 118 Tex. 42, 9 S.W.2d 1028, 1028 (1928) ) (agreeing with plaintiffs that Dow's mandamus petitions "are moot because this Court can never give Dow Chemical the relief it seeks" and stating that "we will not issue mandamus ‘if for any reason it would be useless or unavailing’ ").
We risk repeating ourselves to provide additional clarity in light of the dissenting Justices' inexplicable assertion that the "Court offers no reason why it cannot" direct the court of appeals to set aside its order mandating dismissal of Panda's claims. Post at 645 ( Hecht , C.J., dissenting). One may disagree in good faith with the Court's reasoning, but one cannot in good faith simply ignore the reasons and pretend they don't exist.
The dissenting Justices suggest that we can decide the issues now—even though our decision cannot now affect the trial court's interlocutory order or the court of appeals' judgment in Panda I —because our decision will instruct the court of appeals how to decide the issue when it decides Panda II. Post at 646 ( Hecht , C.J., dissenting) ("If we answered here the question of ERCOT's immunity, the court of appeals would decide the pending appeal in accordance with our decision."). But the "judicial power" over Panda II currently rests exclusively in the court of appeals, see United Servs. Life Ins. Co. v. Delaney , 396 S.W.2d 855, 861 (Tex. 1965) (explaining that "judicial power" is the authority to hear and decide the issues and enter judgment "in accordance with the law as determined by the court"), and we must permit that court to exercise its power "without conflict with the authority confided to another tribunal," including this Court, Morrow v. Corbin , 122 Tex. 553, 62 S.W.2d 641, 645 (1933). Although the constitution grants limited exceptions that allow us to issue such advisory opinions for cases pending in other courts, such as the power to answer certified questions from the federal appellate courts, see Richards v. State Farm Lloyds , 597 S.W.3d 492, 497 n.6 (Tex. 2020) (discussing Tex. Const . art. V, § 3-c ), no such exception applies here.
The dissenting Justices also argue that rule 27.3 of the Rules of Appellate Procedure "should apply" in this case. Post at 646 ( Hecht , C.J., dissenting). Rule 27.3 provides that, if a party appeals from a trial court's order or judgment and the trial court later modifies or vacates and replaces that order or judgment with another appealable order or judgment, "the appellate court must treat the appeal as from the subsequent order or judgment." Tex. R. App. P. 27.3. The rule appears in Section Two of the rules of appellate procedure, which governs "Appeals from Trial Court Judgments and Orders," not in Section Four, which governs "Proceedings in the Supreme Court." Nevertheless, we said in Roccaforte that rule 27.3 permitted this Court to "treat [an] interlocutory appeal as an appeal from [a subsequent] final judgment." 341 S.W.3d at 924. But that was because, in that case, the court of appeals treated the interlocutory appeal as an appeal from the final judgment. In Roccaforte , the trial court entered a final judgment before the court of appeals decided the appeal from the trial court's earlier interlocutory order, so rule 27.3 required the court of appeals to treat the interlocutory appeal "as though it were from the final judgment." Id. Here, the trial court entered the final judgment after the court of appeals had dismissed the interlocutory appeal and granted mandamus relief, and in fact did so to comply with the court of appeals' mandamus order. If the trial court in this case had entered a final judgment before the court of appeals decided Panda I , rule 27.3 would have required the court of appeals to treat Panda I as an appeal from the final judgment, and not from the prior interlocutory order denying ERCOT's jurisdictional plea, which merged into the final judgment. Under those circumstances, the court of appeals would have reviewed the final judgment, rather than the interlocutory order, and we too could review the court of appeals' judgment as the decision in an appeal from the final judgment. But here, the court of appeals could not have treated the interlocutory appeal as an appeal from the final judgment because the appeal was no longer pending when the trial court entered the final judgment, so rule 27.3 could not have applied.
The dissenting Justices suggest that the court of appeals could have granted Panda's motion for rehearing before it lost plenary power and then reconsidered the appeal as an appeal from the final judgment. But rule 27.3 certainly did not require the court of appeals to grant rehearing. As it is, the court of appeals did not grant rehearing, presumably because Panda appealed the final judgment as a separate appellate proceeding. With the rare exception of permissible direct appeals, this Court reviews court of appeals' judgments, not trial court judgments, and unlike Roccaforte , the court of appeals in this case has not yet reviewed the trial court's final judgment. Rule 27.3, which governs appeals from trial court judgments and orders, may permit us to treat an appeal from an interlocutory order as an appeal from the final judgment when the court of appeals did, but it does not permit us to do so when the court of appeals could not. By doing so, we would infringe upon the court of appeals' judicial power by reviewing a judgment the court of appeals has not yet had the opportunity to review.
The dissenting Justices fear "potentially dangerous" results from the Court's decision. Post at 646 ( Hecht , C.J., dissenting). We do not, because the legislature and our rules have already addressed the Dissent's concern by mandating or providing for a stay of the trial-court proceedings. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8), (b) ("An interlocutory appeal [of an order that grants or denies a plea to the jurisdiction by a governmental unit] also stays all other proceedings in the trial court pending resolution of that appeal."); Tex. R. App. P. 52.10(a) (permitting mandamus relator to obtain a stay of "any underlying proceedings"). Once ERCOT filed its interlocutory appeal and alternative mandamus petition challenging the trial court's denial of its jurisdictional plea, the parties were entitled to a stay of all proceedings until that appeal was resolved. They sought and obtained a stay while Panda I was pending, but the stay was lifted when the court of appeals issued its opinion in Panda I. ERCOT claims that it promptly agreed to another stay after the court of appeals issued its decision, but Panda failed to seek that stay before the trial court complied with that decision by entering the final judgment. According to Panda, the trial court entered its final judgment while the parties were "in the process of conferring on a request to stay." In either case, Panda then asked the court of appeals to stay the effect of its order and to require the trial court to vacate its final judgment, but the court of appeals denied that relief. Although the statutory stay is mandatory, parties must seek the stay and object to court actions in violation of the stay. See In re Geomet Recycling LLC , 578 S.W.3d 82, 87 n.1 (Tex. 2019) ("While trial court action taken in violation of the stay is voidable, it is not necessarily void."); Roccaforte , 341 S.W.3d at 923–24 (stating that the entry of a final judgment while an interlocutory appeal is pending in violation of the mandatory stay is "voidable, not void"). Here, neither party has ever complained to this Court that the trial court or the court of appeals erred or abused its discretion by failing to stay the proceedings below. Instead, Panda appealed the final judgment to the court or appeals. In any event, the danger the dissenting Justices fear—that crafty courts of appeals can preclude our review of their decisions—does not present itself in this case because we will review the court of appeals' decision on appeal from the trial court's final judgment.
The parties note that this case presents circumstances similar to those we addressed in In re Wood , 140 S.W.3d 367 (Tex. 2004) (per curiam), overruled on other grounds by Robinson v. Home Owners Mgmt. Enters., Inc. , 590 S.W.3d 518 (Tex. 2019). But as they also acknowledge, Wood is distinguishable in one key respect. Wood arose from a putative class action a group of former clients filed against their former attorneys. See id. at 368. Without deciding whether to certify the proposed class, the trial court entered an order sending the clients' claims to binding arbitration and abating the case pending the arbitration. In response to the clients' motion, the trial court issued a second order clarifying that the arbitrator must decide whether to certify the proposed class. Id. The attorneys filed a mandamus petition in the court of appeals challenging the trial court's second order, and the court of appeals granted that petition and ordered the trial court to vacate its second order and decide the class-action issues. Id. ; see In re John M. O'Quinn, P.C. , 155 S.W.3d 195, 198, 202 (Tex. App.—Tyler 2003, orig. proceeding). The trial court's third order vacated its second order as the court of appeals had instructed. Wood , 140 S.W.3d at 368. The court of appeals then issued an order dismissing the attorneys' mandamus proceeding as moot. See In re O'Quinn , No. 12-02-00352-CV, 2003 WL 21571427, at *1 (Tex. App.—Tyler July 10, 2003, orig. proceeding) (mem. op.).
The clients filed a mandamus petition in this Court, challenging the court of appeals' order granting mandamus relief and requiring the trial court to vacate its second order. Wood , 140 S.W.3d at 368. In response, the attorneys argued that the trial court's entry of its third order (which vacated its second order) mooted the clients' mandamus petition in this Court, because the mandamus petition challenged the court of appeals' judgment addressing the trial court's second order. Id. at 370. We disagreed and held that the proceeding was not moot, despite the trial court's entry of its third order, because a live controversy remained over whether the court of appeals abused its discretion by ordering the trial court to vacate its second order, and our resolution of that controversy required us to decide whether the trial court abused its discretion by entering the second order. Id.
In the same way, here, despite the trial court's entry of its final judgment, a live controversy exists over whether the court of appeals erred by ordering the trial court to vacate its interlocutory order denying ERCOT's jurisdictional plea, even though our resolution of that issue requires us to decide whether the trial court erred by entering that interlocutory order. But we could grant effective relief in Wood because the trial court retained plenary jurisdiction over the case after entering its third interlocutory order. Here, we cannot grant effective relief because the trial court lost plenary jurisdiction thirty days after it entered its final judgment granting ERCOT's jurisdictional plea and dismissing Panda's claims. The trial court here no longer has the power to act. See TEX. R. CIV. P. 329b(f) ("On expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by bill of review...."). If it did act, its action would be void. See Travelers Ins. v. Joachim , 315 S.W.3d 860, 863 (Tex. 2010) (quoting Browning v. Prostok , 165 S.W.3d 336, 346 (Tex. 2005) ) ("A judgment is void only when it is apparent that the court rendering judgment had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act."). We have no authority to order a court to perform a void act.
Finally, we note that the fact that these consolidated causes include a petition seeking mandamus relief does not alter our analysis. Our mandamus power does not authorize us to decide moot cases or issues any more than our power of appellate review. See, e.g., In re State , 489 S.W.3d 454 (Tex. 2016) (dismissing mandamus proceeding as moot); In re Uresti , 377 S.W.3d 696, 697 (Tex. 2012) (per curiam) (same); Republican Party of Tex. v. Dietz , 940 S.W.2d 86, 94 (Tex. 1997) (same); Garcia , 909 S.W.2d at 505 (same). And as we have said time and again, including quite recently, we will not exercise our mandamus jurisdiction if the parties have an adequate remedy by appeal. See, e.g., In re Murrin Bros. 1885, Ltd. , 603 S.W.3d 53, 56 (Tex. 2019) (orig. proceeding) ; In re Turner , 591 S.W.3d 121, 124 (Tex. 2019) (orig. proceeding). Mandamus is meant for circumstances "involving manifest and urgent necessity and not for grievances that may be addressed by other remedies." Murrin Bros. , 603 S.W.3d at 57 (quoting Walker , 827 S.W.2d at 840 ). An appeal is inadequate "when parties are in danger of permanently losing substantial rights," which occurs when "the appellate court would not be able to cure the error, when the party's ability to present a viable claim or defense is vitiated, or when the error cannot be made part of the appellate record." In re Van Waters & Rogers, Inc. , 145 S.W.3d 203, 211 (Tex. 2004) (orig. proceeding). Because Panda II is fully briefed and argued in the court of appeals—and has been abated pending only an order from this Court on these petitions—we cannot say that the parties lack an adequate appellate remedy here. Although this "Court may consider whether mandamus can spare the litigants and public ‘the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings,’ " In re Keenan , 501 S.W.3d 74, 76 (Tex. 2016) (quoting In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 136 (Tex. 2004) ), the time and money has already been expended here. This Court can do little now to ameliorate that concern.
We do not suggest that this fundamental limitation on our mandamus power is jurisdictional. But our mandamus power does not permit us to review a court of appeals judgment addressing a trial court order when a subsequent judgment has rendered those orders moot, or when a pending appeal from that judgment indisputably provides an adequate remedy. Although we are of course fully aware of the distinction between a mandamus writ and a judgment on appeal, that distinction is illusory here because either one would have to instruct the court of appeals to instruct the trial court to vacate an interlocutory order that no longer exists, and to do so after the trial court has lost its plenary power to act.
We are not insensitive to the importance of the issues these consolidated causes present. Indeed, as we said long ago when faced with similar limitations on our own jurisdiction, "[i]n view of the importance of the questions involved ..., we regret that [our] jurisdiction ... has not been invoked in a constitutional way, so that we might have assisted in their solution at this time." Morrow , 62 S.W.2d at 651. Nor are we insensitive to the parties' desire to have those issues resolved in this proceeding. Jurisdictional limitations, as we once observed, can impose a cumbersome procedural process that seems "rather like burning a house to roast a pig." Delaney , 396 S.W.2d at 864. But our lack of jurisdiction over moot cases is a mandate of the constitution, not a matter of convenience. See Patterson , 971 S.W.2d at 442–43. Just as in Morrow and Delaney , we must respect our own constitutional limitations, however much we may prefer to resolve the issues here, because "neither we nor the legislature can create jurisdiction the Constitution does not permit." In re Occidental Chem. Corp. , 561 S.W.3d 146, 174 (Tex. 2018) ( BOYD , J., dissenting).
We hold that the trial court's entry of a final judgment mooted Panda's mandamus petition. It has likewise mooted the need for ERCOT's conditional petition for review, which seeks relief on the condition that this Court accept Panda's mandamus petition. As ERCOT itself notes in its petition, if this Court lacks jurisdiction over Panda's mandamus petition, "the need for [ERCOT's] conditional petition would be obviated."
III.
Conclusion
The trial court's entry of a final judgment rendered these causes arising from an interlocutory order moot. We therefore dismiss both the mandamus petition and the conditional petition for review for want of jurisdiction.
Justice Blacklock filed a concurring opinion.
Chief Justice Hecht filed a dissenting opinion, in which Justice Guzman, Justice Lehrmann, and Justice Devine joined.
Justice Guzman filed a dissenting opinion, in which Justice Lehrmann and Justice Devine joined.
Justice Blacklock, concurring.
According to the dissent, one of the reasons this Court should exercise jurisdiction over this case is because "the public wants to know" whether ERCOT is immune from suit. Post at 643. The dissent cites no legal authority for the idea that judges seeking to determine whether they have jurisdiction to answer a legal question should consider whether "the public wants to know" the answer. None exists, at least none worth following.
Courts at times recognize a rarely employed exception to mootness for issues "capable of repetition, yet evading review." City of Los Angeles v. Lyons , 461 U.S. 95, 109, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) ; Williams v. Lara , 52 S.W.3d 171, 184 (Tex. 2001). Of course, the question of ERCOT's immunity will not "evad[e] review." Lyons , 461 U.S. at 109, 103 S.Ct. 1660. Quite the opposite. The pending appeal from the final judgment in this very case presents the issue squarely. Furthermore, as the dissent acknowledges, recent events make it increasingly likely that questions about ERCOT's immunity will be properly presented for judicial decision in many future cases.
See Tex. Util. Code § 39.151(d).
In re Allcat Claims Serv., L.P. , 356 S.W.3d 455, 462 (Tex. 2011) (orig. proceeding) (citing Love v. Wilcox , 119 Tex. 256, 28 S.W.2d 515, 522 (1930) ).
What "the public wants" in response to Texas's recent winter-weather difficulties is a question the executive and legislative branches of government will consider. The judiciary's job, by contrast, is to apply the law to the facts of the cases properly brought before it without regard to public opinion. It should go without saying that public opinion has nothing to do with whether this Court has jurisdiction over this case or any other. Whether this case is moot—and therefore outside this Court's jurisdiction, beyond its constitutional power to decide—is a purely legal question. It is not a political question.
I like to think the public wants a judge to decide cases based on the judge's understanding of the law, not based on what the judge thinks the public wants.
No. 18-0792. ERCOT's conditional petition for review in No. 18-0781 raises a different issue.
19 U.S. (6 Wheat.) 264, 400, 5 L.Ed. 257 (1821).
This Court identified the potential defect in its jurisdiction over this case several months before the winter storm. It received the parties' briefing on the jurisdictional question and deliberated over the matter prior to the winter storm. Whether this Court has jurisdiction to decide this appeal turns on how the parties decided to litigate their case years prior to the winter storm. It also depends on the meaning of the Texas Constitution, from which the law of mootness arises. The meaning of the Constitution does not change with the weather. All the facts and all the law relevant to determining our jurisdiction over this appeal were established long before the winter storm. The dissent offers no explanation for what has changed about the law or the facts of this case since the winter storm.
See State ex rel. Best v. Harper , 562 S.W.3d 1, 6 (Tex. 2018) (observing mootness is a constitutional, not a prudential, limitation on judicial power).
"Panda" refers collectively to the thirteen companies that sued ERCOT in the underlying case. See ante at 631 n.1.
State ex rel. Best v. Harper , 562 S.W.3d 1, 6 (Tex. 2018) (quoting Williams v. Lara , 52 S.W.3d 171, 184 (Tex. 2001) ).
See Cox v. Robison , 105 Tex. 426, 150 S.W. 1149, 1151 (1912) ("The meaning of [the state] Constitution ... [wa]s fixed when ... adopted" and "is not different at any subsequent time when a court has occasion to pass upon it.")
The Court blames the delay on the parties, pointing out that in the 31 months this mandamus and the related petition for review have been pending, the parties asked for sixteen 30-day extensions, which are responsible for 9 of those 31 months. Ante at 634 n.8. So about one-third of the delay can be charged to the parties and only about two-thirds to the Court.
Id. (quoting Heckman v. Williamson County , 369 S.W.3d 137, 162 (Tex. 2012) ). An advisory opinion is one that addresses only a hypothetical injury as opposed to remedying a real, concrete harm. Tex. Ass'n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 444 (Tex. 1993) (citing Allen v. Wright , 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) ).
The Court is genuinely divided over how to answer the jurisdictional question. Although I think the Court correctly answers the question, the dissents disagree in good faith about how mootness works. This genuine disagreement arises from judges doing their best to apply the often-confounding law of mootness to the circumstances of this case. It ought to have nothing to do with public opinion.
"Independent judgment require[s] judges to decide cases in accordance with the law of the land, not in accordance with pressures placed upon them ... from the political branches, the public, or other interested parties." Perez v. Mortg. Bankers Ass'n , 575 U.S. 92, 121–22, 135 S.Ct. 1199, 191 L.Ed.2d 186 (2015) (Thomas, J., concurring).
Ante at 638 n.17.
Ante at 636–37.
* * *
The last year has been eventful, to say the least. This is not the first time this Court has been asked by parties who have not properly invoked the Court's jurisdiction to answer a pressing legal question of great public interest. See In re Hotze , No. 20-0739, ––– S.W.3d ––––, ––––, 2020 WL 5919726, at *6 (Tex. Oct. 7, 2020) (Blacklock, J., concurring) ("The Court is refusing to use the current [coronavirus] crisis as an excuse to bypass the constitutional restrictions on its power."). We declined to exceed our jurisdiction then, and we rightly decline again today. When these questions are properly presented for this Court's decision in the future, we can decide them. We should stick to deciding cases within our jurisdiction and leave considerations of public opinion to others.
Chief Justice Hecht, joined by Justice Guzman, Justice Lehrmann, and Justice Devine, dissenting.
The Electric Reliability Council of Texas, Inc.—ERCOT—is the independent system operator certified by the Texas Public Utilities Commission to oversee the Texas electric power grid.1 The Court is asked in this mandamus proceeding2 to decide whether ERCOT has sovereign immunity from suit. The parties strenuously disagree. ERCOT argues, of course, that it is immune. Panda3 argues, also of course, that ERCOT is not immune. The stakes between them are high—Panda alleges more than $1 billion in damages; the case has been fully presented; and both parties want their disagreement resolved. The immunity issue has been important to them since the case was first filed in the trial court more than five years ago. Now it happens that the public stakes are high too. After Winter Storm Uri last month, the public also wants to know whether ERCOT can be sued. Will ERCOT be immune to claims against it for failing to prevent the power outages across Texas that not only crippled millions of users but resulted in water outages that were at least as bad, if not worse? The answer to the immunity issue in this case has become perhaps more important to the public than even to the parties.
The parties want to know. The public wants to know. The Court refuses to answer.
The trial court in this case answered. It said ERCOT is not immune. The court of appeals also answered. It disagreed and directed the trial court to dismiss the case against ERCOT. The trial court complied. That was in April 2018, nearly three years ago. Panda immediately asked the court of appeals to set aside its order requiring the trial court to dismiss the case and to direct the trial court to vacate the dismissal. The court of appeals denied Panda's motion, and Panda appealed the dismissal.
Four months after the trial court dismissed the case, in August 2018, Panda petitioned this Court to review the court of appeals' decision. In February 2019, the Court requested briefing on the merits, signaling that whether ERCOT is immune from suit is an important issue. The parties completed the briefing that September. In June 2020, the Court set the matter for oral argument, another indication that ERCOT's immunity from suit is an important issue. The Court heard argument last September.
And now here we are, five years after this litigation began in the trial court, two-and-one-half years after the case was filed in this Court, two years after we requested merits briefing, and six months after oral argument.4 All agree—the Court and the parties—that the trial court's dismissal of the case did not moot the parties' controversy. The parties have the same real disagreement they have always had. Both insist they still want an answer. And as circumstances would have it, the issue has become more important to the public because of the damage caused by loss of power in the winter storm, which many blame on ERCOT. Whether ERCOT is immune from suit is not a moot issue, not to the parties, not to the public. But today the Court concludes that the case before us is something that it calls "procedurally moot" because there is no mandamus relief that can cause the case to be reopened in the trial court if the court of appeals erred.
The Court is simply wrong. If the Court were to conclude that ERCOT is not immune from Panda's suit, contrary to the court of appeals' prior ruling, the Court would direct the court of appeals to withdraw that ruling, and the Court would also require the court of appeals to reverse the dismissal it erroneously ordered. Were that not so, courts of appeals could thwart review of their decisions simply by ordering trial courts to comply with them quickly. And in any event, this Court could direct the court of appeals to reverse the trial court's final judgment of dismissal in the pending appeal of that judgment. The Court does not claim that either form of relief is beyond its power. It demurs only that "[b]y doing so, we would infringe upon the court of appeals' judicial power by reviewing a judgment the court of appeals has not yet had the opportunity to review."5 But the court of appeals has already had the opportunity to review the dismissal. Indeed, it was the court of appeals that ordered the dismissal! And by ruling on immunity, this Court would not be infringing on the court of appeals' judicial power. The court of appeals has already ruled on that issue. There is no reason for the court to reiterate its ruling in a second appeal. It is waiting on this Court to rule. The Court can resolve the parties' dispute and grant relief, however it decides the immunity issue, but instead it chooses delay and wasting more of the parties' and judicial system's time and resources. I would answer the question the Court undertook to decide but now does not. I respectfully dissent.
I
Panda sued ERCOT, contending that it built three power plants in reliance on ERCOT's mistaken forecasts of a long-term scarcity of power supply. Panda sued for fraud and negligent misrepresentations. ERCOT filed a plea to the jurisdiction asserting sovereign immunity. The trial court denied the plea to the jurisdiction, and ERCOT sought review by interlocutory appeal or, alternatively, mandamus. The court of appeals held that ERCOT is not a "governmental unit" entitled to interlocutory appeal but that it does have sovereign immunity. The court dismissed ERCOT's appeal for lack of jurisdiction, conditionally granted its petition for mandamus, and directed the trial court to dismiss the case. Eight days later, the trial court complied.
ERCOT also contends that the Public Utilities Commission has exclusive jurisdiction over Panda's claims.
Bonham State Bank v. Beadle , 907 S.W.2d 465, 467 (Tex. 1995).
552 S.W.3d 297, 309 (Tex. App.—Dallas 2018) (citing Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) ).
Ante at 636–37; ante at 631–32 ( Hecht , C.J., dissenting).
Id. at 319.
Heckman , 369 S.W.3d at 162 (citing VE Corp. v. Ernst & Young , 860 S.W.2d 83, 84 (Tex. 1993) ).
Id. at 320.
Ante at 637.
A few days after that, Panda asked the court of appeals to direct the trial court to set aside the dismissal order so it would not foreclose further review. The motion was denied. Panda appealed the trial court's final judgment of dismissal and filed a mandamus petition in this Court challenging the court of appeals' decision on immunity. The Court ordered full briefing, heard oral argument, and requested further briefing on mootness.
ERCOT filed a conditional petition for review of the court of appeals' denial of its right to interlocutory appeal.
Id. at 637–39. The Court's assertion that I have not considered whether mandamus relief would be effective is verifiably inaccurate. Id. at 635 n.9. Indeed, because the entire Court agrees the issues are live and cognizable, the analytical focus of both dissenting opinions is the effectiveness of mandamus relief.
II
Panda and ERCOT both contend, and the Court acknowledges, that the substance of their dispute over sovereign immunity is not moot. But the Court holds that "the trial court's entry of a final judgment rendered these causes procedurally moot". The Court's reasons lack merit.
Ante at 637.
See ante at 645–47 ( Hecht , C.J., dissenting).
The Court says that "the court of appeals cannot ... order the trial court to reinstate its earlier order denying ERCOT's plea to the jurisdiction because that order no longer exists as a separate order" but rather "has been superseded by and has merged into the trial court's final judgment dismissing Panda's claims." But the argument is premised on an incomplete reading of Panda's prayer for relief. Panda first asks this Court to "direct the court of appeals to set aside its [own] order mandating dismissal of Panda's claims". The Court offers no reason why it cannot grant that relief, and I see none.
Ante at 637.
See id.
Panda Merits Br. at 64 (18-0792).
See ante at 635–41, 637–38 n.17. The Court offers no reason why a mandamus writ against the court of appeals would not be effective except for its fundamental misunderstanding that mandamus relief acts on the trial court's order or judgment or requires action by the trial court in this case. Unlike remedies granted by appeal, a mandamus writ is not an action on an order or judgment but is instead an order against the respondent to correct a clear abuse of discretion. See Tex. R. App. P. 52.3 ("[T]he person against whom relief is sought—whether a judge, court, tribunal, officer, or other person—is the respondent."). Here, the respondent is the court of appeals, and that court's error, if any, is not only presently within that court's jurisdiction to correct but also only within that court's jurisdiction to correct. The Court's statement that a mandamus writ could only "instruct the court of appeals to instruct the trial court to vacate an interlocutory order that no longer exists" is wrong. See ante at 641 n.19. A mandamus writ, if any, could properly require the court of appeals to vacate its own order and correct its error in the proceedings over which it currently has jurisdiction, and the court's compliance with our directive would indisputably affect the parties' rights and interests.
The Court's adequate-appellate-remedy discussion further reflects its confusion about the mandamus relief Panda seeks and the relief we could issue. See id. at 640–41, 641 n.19. Requiring an adequate appellate remedy is a prudential constraint on issuance of a mandamus writ in the first instance, but adequacy of an appellate remedy is not implicated when the mandamus petition questions whether an appeals court has erroneously granted mandamus relief. See In re Panchakarla , 602 S.W.3d 536, 539, 541 (Tex. 2020) (orig. proceeding) (concluding the court of appeals abused its discretion in issuing a writ of mandamus). There is no appeal from an erroneously issued mandamus writ; the only question is whether the court of appeals abused its discretion in granting mandamus relief. See In re Am. Homestar of Lancaster, Inc. , 50 S.W.3d 480, 483 (Tex. 2001) (orig. proceeding) ("If the trial court did not abuse its discretion, then the court of appeals erred in granting mandamus relief.").
The Court further reasons that "this Court does not have the power to vacate the trial court's final judgment in this proceeding because [Panda's appeal from that judgment] is currently pending in the court of appeals." For that proposition, the Court cites no authority. The pendency of Panda's appeal from the trial court's dismissal should have nothing to do with the Court's review of the court of appeal's decision on immunity. The Court does not explain why Panda cannot seek relief both by mandamus and appeal when that is exactly what ERCOT has done. Rule 27.3 of the Texas Rules of Appellate Procedure provides:
Ante at 637.
See Tex. Gov't Code § 22.002 ; In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding) (citing Walker v. Packer , 827 S.W.2d 833, 834 (Tex. 1992) (orig. proceeding) ).
After an order or judgment in a civil case has been appealed, if the trial court modifies the order or judgment, or if the trial court vacates the order or judgment and replaces it with another appealable
order or judgment, the appellate court must treat the appeal as from the subsequent order or judgment and may treat actions relating to the appeal of the first order or judgment as relating to the appeal of the subsequent order or judgment.... Any party may nonetheless appeal from the subsequent order or judgment.
Tex. R. App. P. 27.3. The Court states that the court of appeals could not have applied Rule 27.3 when the trial court obeyed its order to dismiss the case "because the appeal was no longer pending". Ante at 638 n.17. But the court of appeals retained plenary jurisdiction over the appeal until August 9, 2018—30 days after it denied Panda's motion for rehearing. See Tex. R. App. P. 19.1(b) (providing that the court of appeals' jurisdiction expires "30 days after the court overrules all timely filed motions for rehearing or en banc reconsideration, and all timely filed motions to extend time to file such a motion").
See In re Am. Homestar , 50 S.W.3d at 483.
The same principles and procedures should apply to mandamus review. The Court should treat Panda's petition here as seeking review of the trial court's dismissal. If the Court determines that the court of appeals erred in its immunity decision, it could direct the trial court to vacate its dismissal order. Even if this Court could not itself vacate the trial court's dismissal, it could certainly direct the court of appeals to vacate its conditional grant of mandamus relief directing the trial court to dismiss the case. The practical effect would be the same. Panda's appeal from the trial court's final judgment of dismissal is pending in the court of appeals, abated until this mandamus proceeding has concluded. If we answered here the question of ERCOT's immunity, the court of appeals would decide the pending appeal in accordance with our decision. The Court's statement that "any order by this Court would be without practical effect" is just wrong.
Ante at 639.
The mandamus cases the Court cites in support of its "procedural mootness" theory are all procedurally distinguishable. None of those cases involve allegations that the court of appeals injected error into the case by erroneously granting mandamus relief. Indeed, none challenged a court of appeals' action at all. See In re State , 489 S.W.3d 454, 457 (Tex. 2016) (orig. proceeding) (Brown, J., concurring) (noting an intervening United States Supreme Court decision mooted a mandamus petition challenging the trial court's order); In re Uresti , 377 S.W.3d 696, 696 (Tex. 2012) (orig. proceeding) (per curiam) (holding an election's conclusion mooted a mandamus petition challenging a trial court's temporary injunction regarding the candidates on the ballot); Republican Party of Tex. v. Dietz , 940 S.W.2d 86, 94 (Tex. 1997) (orig. proceeding) (holding this Court's stay order provided relator "all the relief to which it was entitled" and thus mooted a mandamus petition challenging a trial court's temporary injunction); Dow Chem. Co. v. Garcia , 909 S.W.2d 503, 505 (Tex. 1995) (orig. proceeding) (holding removal to federal court of a severed cause mooted a mandamus petition challenging the trial court's severance order because even if the Court ordered the trial court to rescind its severance order, neither this Court nor the trial court could force the federal court to remand the case); In re Salverson , 01-12-00384-CV, 2013 WL 557264, at *1 (Tex. App.—Houston [1st Dist.] Feb. 14, 2013, orig. proceeding) (per curiam) (mem. op.) (holding a trial court's final judgment mooted a mandamus petition challenging a trial court's interlocutory order); In re Gee , 01-05-00851-CV, 2006 WL 2640989, at *1 (Tex. App.—Houston [1st Dist.] Sept. 11, 2006, orig. proceeding) (per curiam) (mem. op.) (same); In re Alexis , 05-97-01916-CV, 1998 WL 564933, at *1 (Tex. App.—Dallas Sept. 8, 1998, orig. proceeding) (not designated for publication) (same). The Court's failure to appreciate the distinction has led its analysis astray.
In re Wood should control this case. There, the court of appeals granted mandamus relief directing the trial court to vacate an order, and the trial court complied. The real party in interest then sought review of the court of appeals' ruling by petition for mandamus in this Court. We granted relief directing the court of appeals to "act in accordance with this opinion." The Court acknowledges that here, too, "despite the trial court's entry of its final judgment, a live controversy exists over whether the court of appeals erred by ordering the trial court to vacate its interlocutory order denying ERCOT's jurisdictional plea". But then the Court concludes that it cannot determine whether the court of appeals erred because "[t]he trial court here no longer has the power to act." With respect, the court of appeals still has the power to act, and if we hold that Panda's position on sovereign immunity is correct, then that court can withdraw its own mandamus relief, effectively reinstating the case and allowing it to continue.
140 S.W.3d 367 (Tex. 2004) (per curiam), overruled on other grounds by Robinson v. Home Owners Mgmt. Enters., Inc. , 590 S.W.3d 518 (Tex. 2019).
Cf. Tex. Gov't Code 22.001(a) ("The supreme court has appellate jurisdiction, except in criminal law matters, of an appealable order or judgment of the trial courts if the court determines that the appeal presents a question of law that is important to the jurisprudence of the state."); In re Newton , 146 S.W.3d 648, 650 (Tex. 2004) (orig. proceeding) (stating that the legality of a temporary restraining order preventing a political action committee from contributing to candidates for state election races raised an issue of statewide importance warranting mandamus review); In re State Bar of Tex. , 113 S.W.3d 730, 733 (Tex. 2003) (orig. proceeding) (exercising mandamus jurisdiction because a state district court's interference with the Board of Disciplinary Appeals' jurisdiction to regulate legal practice raised an issue of statewide importance).
Id. at 370.
Ante at 642–43 ( Blacklock , J., concurring).
Ante at 640.
Ante at 640.
In sum, the Court can review the immunity issue and other issues in the case and, if Panda's position prevails, have the dismissal set aside and the case continue. The proceeding is in no sense "procedurally moot".
III
The Court's rule is potentially dangerous. A less sophisticated party in Panda's shoes might well reason that a trial court's compliance with a court of appeals' directive forecloses further review and forgo appealing the final judgment. A party with lesser means than Panda has might not be able to afford two appeals to get one decision. In either situation, the court of appeals will have precluded this Court's review of its decision.
The Court fears no dangerous results from its ruling because an interlocutory appeal from an order denying a governmental unit's plea to the jurisdiction automatically stays proceedings in the trial court. Ante at 639 n.18; see Tex. Civ. Prac. & Rem. Code § 51.014(a)(8), (b). Of course, the court of appeals held that ERCOT was not a governmental unit entitled to the appeal and stay, so it is not clear the stay applied. The Court assumes that the automatic stay applied until the court of appeals issued its opinion and faults Panda for not acting earlier to prevent the trial court from dismissing the case. But only 11 days after the court of appeals ruled, Panda asked that court to withdraw its order requiring dismissal, and had the court granted the motion, the trial court would have been required to vacate the dismissal. The court of appeals' refusal to grant Panda's stay motion can hardly be blamed on Panda.
Here, the Court's decision makes no difference because Panda has been careful to appeal the final judgment, and the same parties can afford to argue the same issues to the same court of appeals, which can issue the same ruling, from which Panda can seek review, with it and ERCOT reasserting the same arguments they have made to this Court already in briefs and oral argument, for the Court to finally decide, maybe only a year or so from now. The Court wastes the parties', the court of appeals', and this Court's resources, and everyone's time—to no one's benefit.
The Court says it is concerned that the parties have been put to wasted time and expense, but it can do little to ameliorate that concern. Ante at 641. The Court ignores the fact that many duplicative proceedings lie ahead because of today's decision.
The Court can grant the relief Panda specifically requests against the court of appeals and therefore should decide the merits of the parties' dispute. Because it refuses to do so, I respectfully dissent.
The concurring opinion accuses this dissent of arguing that whether this proceeding is moot should be based on public opinion, politics, and the weather. Ante (Blacklock, J., concurring). Of course, we do not. We argue that this proceeding is not moot for sound, compelling legal reasons. The concurring opinion accuses the dissent of failing to explain how the law and facts have changed since the winter storm. Ante at 642–43 (Blacklock, J., concurring). We think they have not changed at all, and that is the point. The law and facts have not changed one iota since August 2018, when the case was filed in this Court. By not addressing the mootness issue until now, which was in the case from the very beginning, the Court has increased the expense to the parties and delayed a decision on the immunity issue, which it should not have done, even if the issue had not become the concern it has. The concurring opinion points to our decision in In re Hotze , No. 20-0739, ––– S.W.3d ––––, 2020 WL 5919726 (Tex. Oct. 7, 2020). Ante at 642–43 (Blacklock, J., concurring). That is a good example. The petition for mandamus there was filed on September 23, 2020, and decided on October 7—fourteen days later—because it raised issues concerning the impending general election. The present case has been pending two-and-one-half years. The concurring opinion offers that the Court should "stick to deciding cases within our jurisdiction". Ante at 643 (Blacklock, J., concurring). We completely agree but would add one word: timely.
Justice Guzman, joined by Justice Lehrmann and Justice Devine, dissenting.
Courts are obliged to respect constraints on jurisdiction at all times, and we are duty bound to refuse to exercise jurisdiction beyond Constitutional limits. But we have an equally compelling duty to "exercise as much jurisdiction over the case as the Constitution allows."1 The relationship between these opposing forces was powerfully articulated 200 years ago in Cohens v. Virginia :
It is most true that this court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.2
The Court abdicates its Constitutional duty in this case by declining to resolve the merits of a dispute the entire Court and both parties agree is live, legally cognizable, and of escalating importance to the parties and the public. While the Court has discretion to decline jurisdiction, we have no discretion to deny its existence. I respectfully dissent.
In concluding the mandamus proceeding is "procedurally moot," the Court applies the mootness doctrine contrary to its constitutional underpinnings. A case becomes moot when the parties lack (1) a justiciable controversy between them or (2) a "legally cognizable interest in the outcome[.]"3 When either circumstance exists, any judicial decision would constitute an improper advisory opinion because the court either cannot grant the requested relief or cannot "otherwise affect the parties' rights or interests."4 Panda Power's mandamus petition is not moot because neither mootness element is satisfied, as the Court is compelled to acknowledge.5
A controversy is "justiciable" if the parties have a real and concrete dispute between them, not merely a hypothetical one.6 Every member of the Court agrees the parties to this original proceeding have a justiciable controversy.7 Parties have a "legally cognizable interest in the outcome" if the Court's action on the merits can affect their rights or interests.8 The Court agrees, as it must, that "the parties have a legally cognizable interest in the resolution of th[e] issues" presented.9 The Court nonetheless concludes that resolving those issues would result in an advisory opinion because the relief Panda has requested would be ineffective.10 That is incorrect. The injury alleged here is not only real and concrete but also amenable to mandamus relief.
As discussed in CHIEF JUSTICE HECHT 's dissenting opinion, the Court's mootness analysis fundamentally misunderstands the nature of the relief requested and our mandamus jurisdiction.11 Panda prayed for mandamus relief this Court has the power to grant, and the court of appeals has the power to execute.12 In holding otherwise, the Court's mootness analysis consistently conflates an appeal, in which a court acts on an order or judgment, with mandamus relief, which is a command against a respondent rather than action on an order or judgment.13 The Court's faulty premise permeates its entire analysis. Our mandamus jurisdiction is original, not derivative of the trial court's order or judgment, and it imbues this Court with the power to command the court of appeals to rectify its own error that has merged into and remains live in a proceeding that is currently pending before that court.14 If the trial court did not abuse its discretion, then the court of appeals abused its discretion in granting mandamus relief.15 And knowing that any error can be corrected, the court of appeals has held the appeal in abeyance awaiting our command.
There exists no limitation on our mandamus power that would prevent us from ordering the court of appeals to correct its clear abuse of discretion, should we find one, with respect to the live issue currently before that court. The appeals court has both the ability and the duty to take corrective action that would resolve the parties' "legally cognizable interest" in the issues.16 A decision on the merits of the issues presented would not be "advisory." Not even close.
This conclusion is not driven by the public's interest in the issues raised here, but those interests are consequential and amplify the increasing necessity of answering the legal questions properly before the Court. One of our principal missions is to decide cases of statewide importance,17 and the public always benefits when we do our job. The public's interest in an expeditious resolution of this dispute has long been championed by both sides of the case. It is not a novel concern for the Court or even for this case. As for the concurrence's suggestion that the Court should "stick to deciding cases,"18 I wholeheartedly agree. Let's start by deciding this one.