Opinion
14-21-00197-CV
04-21-2022
TEXAS FUNDING CORPORATION, Appellant v. HARRIS COUNTY, TEXAS AND LINA HIDALGO IN HER OFFICIAL CAPACITY AS COUNTY JUDGE OF HARRIS COUNTY, TEXAS, Appellees
On Appeal from the 165th District Court Harris County, Texas Trial Court Cause No. 2021-11494
Panel consists of Justices Wise, Zimmerer, and Poissant (Wise, J. concurs without opinion).
MEMORANDUM OPINION
JERRY ZIMMERER JUSTICE.
Appellant Texas Funding Corporation brings this appeal challenging the trial court's order granting the plea to the jurisdiction filed by appellees Harris County and County Judge Lina Hidalgo (collectively the Harris County Parties). In two issues Texas Funding asserts the trial court erred in (1) granting the Harris County Parties' plea to the jurisdiction; and (2) failing to grant Texas Funding's request for a temporary injunction. We affirm.
Background
Texas Funding is a commercial real estate lender in Harris County. In April 2021, Texas Funding posted several pieces of commercial property for foreclosure. A foreclosure sale was scheduled at Bayou Event Center and Bayou Event Center Pavilion (the Center) on April 6, 2021. On April 2, 2021, Judge Hidalgo ordered that sales at the Center should not proceed as it would not be safe to conduct the sales due to COVID-19 infection rates at that time.
On April 3, 2021, Texas Funding filed its first amended petition and second application for temporary restraining order. Texas Funding alleged that Judge Hidalgo's order was issued in violation of GA-34, an order issued March 2, 2021 by the governor of Texas. Executive Order GA-34, inter alia, ordered that in all counties "not in an area with high hospitalizations . . . there are no COVID-19-related operating limits for any business or other establishment[.]" "Area with high hospitalizations" was defined as:
any Trauma Service Area that has had seven consecutive days in which the number of COVID-19 hospitalized patients as a percentage of total hospital capacity exceeds 15 percent, until such time as the Trauma Service Area has seven consecutive days in which the number of COVID-19 hospitalized patients as a percentage of total hospital capacity is 15 percent or less[.]
GA-34 further provided that in "any county located in an area with high hospitalizations . . . the county judge may use COVID-19-related mitigation strategies; provided, however, that: business and other establishments may not be required to operate at less than 50 percent of total occupancy[.]" GA-34 superseded "any conflicting order issued by local officials in response to the COVID-19 disaster, but only to the extent that such a local order restricts services allowed by this executive order or allows gatherings restricted by this executive order."
In the trial court Texas Funding sought relief from Judge Hidalgo's order in the form of (1) a declaratory judgment declaring that the April 2, 2021 order was void; (2) a writ of mandamus issued against Judge Hidalgo ordering her to rescind the April 2, 2021 order; (3) a temporary restraining order enjoining Judge Hidalgo from enforcing the April 2, 2021 order; (4) temporary and permanent injunctions enjoining Judge Hidalgo from enforcing the order; and (5) attorney's fees pursuant to section 37.009 of the Civil Practice and Remedies Code.
On April 5, 2021, the ancillary judge denied Texas Funding's request for a temporary restraining order. On April 9, 2021, the Harris County Parties answered Texas Funding's suit and filed a plea to the jurisdiction in which they alleged, inter alia, that Texas Funding's claims against them were moot. The Harris County Parties asserted that after the April 2, 2021 order expired on April 6, 2021, Texas Funding's claims for relief "became nothing more than requests for an advisory opinion." The Harris County Parties also asserted that Texas Funding had not satisfied the requirements for a temporary injunction. On April 9, 2021, the trial court held a hearing and granted the plea to the jurisdiction on mootness grounds.
On appeal, Texas Funding argues that the trial court erred in granting the Harris County Parties' plea to the jurisdiction because Texas Funding satisfied an exception to the mootness doctrine, i.e., Texas Funding's injury was capable of repetition yet evaded review. Texas Funding also argues that it is entitled to a temporary injunction enjoining Judge Hidalgo from issuing future "unlawful and invalid orders."
I. Standard of Review and Applicable Law
A plea to the jurisdiction seeks dismissal of a cause based on lack of subject-matter jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Whether a court has subject-matter jurisdiction and whether a plaintiff has affirmatively demonstrated subject-matter jurisdiction are questions of law that we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In deciding a plea to the jurisdiction, we may not weigh the merits of the plaintiff's claim, but must consider only the plaintiff's pleadings, construed in favor of the plaintiff, and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); San Jacinto River Auth. v. Lewis, 629 S.W.3d 768, 772 (Tex. App.-Houston [14th Dist.] 2021, no pet.).
The application of the mootness doctrine is reviewed de novo on appeal. Heckman v. Williamson Cnty., 369 S.W.3d 137, 149-50 (Tex. 2012). The mootness 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. Id. at 162. A case becomes moot when: (1) it appears that a party seeks to obtain a judgment upon some controversy, when in reality none exists; or (2) a party seeks a judgment upon some matter, which cannot have any practical legal effect upon a then existing controversy. Robinson v. Alief Indep. Sch. Dist., 298 S.W.3d 321, 324-25 (Tex. App.-Houston [14th Dist.] 2009, pet. denied). The mootness doctrine prevents courts from rendering advisory opinions, which are outside the jurisdiction conferred by Texas Constitution article II, section 1. Elec. Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 634 (Tex. 2021). If a case becomes moot while it is pending the trial court lacks subject-matter jurisdiction over the action. Heckman, 369 S.W.3d at 162 ("a court cannot decide a case that has become moot during the pendency of the litigation.").
The single issue in this case is whether the trial court had subject-matter jurisdiction after the April 2, 2021 order expired. To be clear, the issue before this court is not the wisdom or efficacy of the actions taken by either Governor Abbott or Judge Hidalgo.
II. Texas Funding's action is moot and does not meet an exception to the mootness doctrine.
In Texas Funding's first issue it argues the trial court erred in granting the Harris County Parties' plea to the jurisdiction declaring the matter moot. If a case is or becomes moot, the court must dismiss the case for want of jurisdiction. Heckman, 369 S.W.3d at 162. Texas Funding does not challenge the trial court's finding that its request for relief became moot after Judge Hidalgo's April order expired. We therefore must affirm the trial court's grant of the plea to the jurisdiction unless Texas Funding satisfied an exception to the mootness doctrine. Texas Funding argues that its action satisfied an exception to the mootness doctrine, specifically, that the issue is capable of repetition yet evading review. See NextEra Energy, Inc. v. Pub. Util. Comm'n of Tex., No. 14-18-00667-CV, 2020 WL 1150799, at *2 (Tex. App.-Houston [14th Dist.] Mar. 10, 2020, pet. denied) (mem. op.).
The "capable of repetition, yet evading review" exception "applies only in rare circumstances." Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001); accord Kingdomware Techs., Inc. v. U.S., 136 S.Ct. 1969, 1976 (2016). To invoke the exception, a plaintiff must show (1) the challenged action was too short in duration to be litigated fully before the action ceased or expired; and (2) a reasonable expectation exists that the same complaining party will be subjected to the same action again. Williams, 52 S.W.3d at 184.
In this case, the parties agree that the challenged action-Judge Hidalgo's April order-was too short in duration to be litigated fully before the order expired. Therefore, Texas Funding's claims meet the evading-review element of the mootness-exception test. The question in this case is whether a reasonable expectation exists that the same complaining party-Texas Funding-will be subjected to the same action-an order closing the Center-again.
In this instance, however, Texas Funding cannot meet the capable-of-repetition element. Whether and when Judge Hidalgo may issue another order suspending the use of the Center for foreclosure sales is speculative. Texas Funding did not meet its burden to show a reasonable expectation or demonstrated probability that Judge Hidalgo will take the same actions and again engage in the same conduct. See Murphy v. Hunt, 455 U.S. 478, 482 (1982) (The "mere physical or theoretical possibility" that the same party may be subjected to the same action again is not sufficient to satisfy this element).
Texas Funding argues that Judge Hidalgo will continue to issue orders similar or identical to the April order "without guidance from this Court or the Texas Supreme Court." The face of the April order does not support this assertion. The April order stated that its issuance was dependent on the following facts:
• GA-34 limited a local government's ability to enact certain restrictions related to the COVID-19 response; however, GA-34 still provides that local officials may enact restrictions to the extent that any such restriction is not in conflict with GA-34.
• Transmission of COVID-19 has not dissipated but remains a significant threat to the health and safety of the Harris County Community and rates of infection are increasing at an alarming rate and the number of people ending up in the hospital, ICU, or on ventilators is also dramatically rising despite efforts by local authorities to control the spread.
• For the two-week period ending March 31, 2021, an average of 16.6% of Harris County ICU bed capacity was in use by COVID-19 patients.
• For the two-week period ending March 31, 2021, Harris County averaged 558 new COVID-19 cases, representing an average increase of 5.5 new cases each day. The daily average positivity rate from March 18, 2021 through March 31, 2021 was 8.6%.
It would be speculative, at best, to contend that there is a reasonable expectation or demonstrated probability that Judge Hidalgo would continue to issue orders identical, or even similar to, the April order. The order, on its face, relied on up-to-date hospitalization data, positivity testing rates, and new-case data. To presume that the COVID-19 data would remain static is a mere theoretical possibility. Texas Funding has failed to establish that its claims meet the capable-of-repetition exception to the mootness doctrine. See State v. City of Austin, No. 03-20-00619-CV, 2021 WL 1313349, at *7 (Tex. App.-Austin Apr. 8, 2021, no pet.) (mem. op.) (State's claim for injunctive relief to prevent the local officials from enforcing the local orders did not satisfy the capable-of-repetition exception to the mootness doctrine after expiration of local orders).
III. Texas Funding's claims concerning future orders was not ripe.
To the extent Texas Funding argues that the trial court had jurisdiction to prevent the issuance of future orders, we hold that issue did not present a justiciable controversy at the time of the April 2, 2021 order and was not ripe for review.
A claim is not ripe when it involves uncertain or contingent future events that may not occur as anticipated, or may not occur at all. Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 443 (Tex. 1998). Ripeness requires "a live, non-abstract question of law that, if decided, would have a binding effect on the parties." Heckman, 369 S.W.3d at 147; see also Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) ("The distinctive feature of an advisory opinion is that it decides an abstract question of law without binding the parties."). The ripeness doctrine "emphasizes the need for a concrete injury for a justiciable claim to be presented." Patterson, 971 S.W.2d at 442; see also Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851-52 (Tex. 2000) (explaining that courts consider whether facts are sufficiently developed "so that an injury has occurred or is likely to occur, rather than being contingent or remote."). "By focusing on whether the plaintiff has a concrete injury, the ripeness doctrine allows courts to avoid premature adjudication, and serves the constitutional interests in prohibiting advisory opinions." Waco Indep. Sch. Dist., 22 S.W.3d at 851-52. "The ripeness doctrine conserves judicial time and resources for real and current controversies, rather than abstract, hypothetical, or remote disputes." Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). The doctrine's focus on "waiting for cases' timely factual development" allows "the proper development of the state's jurisprudence" and prevents excessive intrusion from courts on the policymaking domains of the other branches of government. Patterson, 971 S.W.2d at 443.
We examine Texas Funding's claim for injunctive relief from future orders with these principles in mind. Texas Funding's claim in the trial court was an unripe claim-its resolution depended on the occurrence of contingent future events that may not occur as anticipated or may not occur at all. See id. at 444. When the lawsuit was filed, Judge Hidalgo had issued only the April order at issue in this suit, which was limited in effect to the April 6, 2021 foreclosure sales. The alleged harm to Texas Funding from any future similar orders that Judge Hidalgo might consider to be more restrictive than, or in alleged conflict with, GA-34 was contingent on uncertain future events. Assuming without deciding that Texas Funding could show harm from those hypothetical orders if they were ever issued, Texas Funding could not show a concrete injury at the time it filed this suit from orders that might not ever be issued. See Waco Indep. Sch. Dist., 22 S.W.3d at 852.
Although Texas Funding did not show that a concrete injury had occurred, the ripeness analysis would allow it to demonstrate a concrete injury by showing that it was likely to occur. Id. In this case, however, as noted above, any threat of future orders was dependent on real-time COVID-19-related statistics, which would require the trial court to engage in prohibited speculation. As in Patterson and Waco Independent School District, Texas Funding's mere speculation that the alleged injury could occur is not sufficient to show a likely concrete injury. Compare Waco Indep. Sch. Dist., 22 S.W.3d at 852 (concluding that harm from challenged student-promotion plan was too speculative because it was contingent upon student performance on standardized tests, and if necessary, subsequent performance in district's remediation efforts), and Patterson, 971 S.W.2d at 443 (concluding that harm from rider to state's family-planning appropriation bill that might conflict with federal rules and cause state to lose federal family-planning funds was too speculative when state's precise course of action and federal government's response were both unclear), with Kessling v. Friendswood Indep. Sch. Dist., 302 S.W.3d 373, 380 (Tex. App.-Houston [14th Dist.] 2009, pet. denied) (concluding that plaintiff sufficiently alleged "pattern and practice" of certain violations of Texas Open Meetings Act, which provides statutory remedy of mandamus or injunction to prevent violation or threatened violation of Act). While the threat of harm may constitute a concrete injury, "the threat must be 'direct and immediate' rather than conjectural, hypothetical, or remote." Waco Indep. Sch. Dist., 22 S.W.3d at 852. Here, Texas Funding has not demonstrated that harm from a hypothetical future order was imminent at the time suit was filed. Without a concrete injury or a likely concrete injury, the trial court lacked jurisdiction to consider this claim for injunctive relief. See id. at 853; Patterson, 971 S.W.2d at 444. We overrule Texas Funding's first issue.
IV. The trial court did not err in not granting Texas Funding's request for temporary injunction.
In Texas Funding's second issue it asserts the trial court erred in not granting its request for temporary injunction. The trial court did not rule on Texas Funding's request for temporary injunction because it lacked subject-matter jurisdiction. Texas Funding, however, asserts it is entitled to a temporary injunction enjoining Judge Hidalgo from issuing unlawful and valid orders. As such, Texas Funding requests that this court "enter the injunction requested."
While we have jurisdiction over a trial court's denial of a temporary injunction, we lack jurisdiction to issue the injunction requested by Texas Funding. Compare Tex. Civ. Prac. & Rem. Code § 51.014(a)(4) (permitting interlocutory appeal of the denial of a temporary injunction) with Tex. Gov't Code § 22.221(a) (permitting court of appeals to issue writ of injunction to protect its jurisdiction). This appeal does not fit into either category. It is not an appeal from the denial of a temporary injunction nor is it an original proceeding seeking a writ of injunction. We therefore lack jurisdiction in this proceeding to grant the relief requested by Texas Funding.
Even if we treated this appeal as an original proceeding for writ of injunction we could not grant the relief requested. The purpose of a writ of injunction is to enforce or protect the appellate court's jurisdiction. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683 (Tex.1989) (orig. proceeding); In re Sheshtawy, 161 S.W.3d 1 (Tex. App.-Houston [14th Dist.] 2003, orig. proceeding). The injunction requested by Texas Funding-to prevent Judge Hidalgo from entering future orders restricting locations where foreclosures take place-is not necessary to protect this court's jurisdiction and Texas Funding has not asserted otherwise.
The trial court lacked jurisdiction to grant Texas Funding's request for temporary injunction and this court likewise lacks jurisdiction to issue a writ of injunction under these circumstances. We overrule the portion of Texas Funding's second issue that seeks a temporary injunction from this court.
V. The trial court did not err in not ruling on Texas Funding's requests for declaratory judgment and mandamus
Texas Funding also asserts in the alternative that it "is entitled to a declaratory judgment and writ of mandamus rendering the April County Order in conflict with GA-34."
In Texas Funding's petition it requested a declaratory judgment "declaring the April County Order to be void, illegal, ultra vires, without lawful authority, and unenforceable." The trial court did not rule on Texas Funding's request for declaratory judgment because the trial court lacked subject-matter jurisdiction over the request.
As with appeals from the denial of a temporary injunction, this court has jurisdiction over an appeal from the grant or denial of a declaratory judgment. See Tex. Civ. Prac. & Rem. Code § 37.010. This court, however, lacks jurisdiction to render declaratory judgments. In re Stephens, No. 14-19-00492-CV, 2019 WL 3121793, at *2 (Tex. App.-Houston [14th Dist.] July 16, 2019, orig. proceeding) (mem. op.).
In the trial court Texas Funding also sought issuance of a writ of mandamus ordering Judge Hidalgo to rescind the April order "so the ministerial act of holding the April 6, 2021 public sale may proceed." District courts are vested with original mandamus jurisdiction over county officials. Sheppard v. Thomas, 101 S.W.3d 577, 580 (Tex. App.-Houston [1st Dist.] 2003, pet. denied). A party is entitled to mandamus relief when there is a legal duty to perform a nondiscretionary act, a demand for performance of that act, and a refusal. Doctors Hosp. Facilities v. Fifth Court of Appeals, 750 S.W.2d 177, 178 (Tex. 1988). A district court's grant or denial of writ of mandamus is reviewable on appeal. See Mattox v. Grimes County Com'rs Court, 305 S.W.3d 375, 380 (Tex. App.-Houston [14th Dist.] 2010, pet. denied) (reviewing trial court's denial of writ of mandamus and stating standard of review).
With regard to its request for writ of mandamus, Texas Funding sought a writ of mandamus ordering Judge Hidalgo to proceed with the April 6, 2021 foreclosure proceedings and withdraw the order closing the facility where those proceedings were scheduled. Texas Funding argued Judge Hidalgo failed to perform the ministerial duty as required by section 51.002 of the Property Code. See Tex. Prop. Code § 51.002 (requiring county commissioners court to designate area for foreclosure sales). As stated above, Texas Funding's request for mandamus relief was moot by the time the trial court considered it, and Texas Funding's request for mandamus relief does not fall within the capable-of-repetition exception to the mootness doctrine. We overrule Texas Funding's second issue.
Conclusion
Having overruled Texas Funding's issues on appeal we affirm the trial court's order granting the Harris County Parties' plea to the jurisdiction.