The plaintiff in Galovelho LLC v. Abbott argued that a combination of emergency orders during the COVID-19 pandemic amounted to a taking in violation of the Texas constitution, citing their effect on its restaurant business. The Fifth Court affirmed dismisal, finding neither a “categorical” nor a traditional taking under established case law. No. 05-21-00965-CV (Aug. 29, 2023) (mem. op.).

The court noted an interesting textual difference between the state and federal takings provisions:

There is no dispute that the Texas constitution’s takings provision is different from the United States Constitution’s provision. The Fifth Amendment provides: “nor shall private property be taken for public use, without just compensation,” while the Texas counterpart provides: “[n]o person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation.”

That said, the court went to observe: “[W]e await [the supreme] court’s directive that the provisoins are to be analyzed differently when a takings claim is made for property temporarily ‘damaged.'”

The Fifth Court recently granted mandamus relief as to an excessive e-discovery order in In re Meadowbrook Baptist Church, No. 05-22-00271-CV (June 15, 2022) (mem. op.), even though the real party in interest had written a letter saying it did not intend to enforce the relevant order. The Court found that the proceeding was not mooted by that letter, since the order itself remained in effect.

Shylock sought to exact a pound of flesh from a debtor in The Merchant of Venice (right, played by Al Pacino). In Selinger v. City of McKinney, a form of taking called an “exaction” was at issue, when “[Plaintiffs] alleged that the City denied Selinger’s plat because he refused to agree to a contingent $482,000 payment as a condition of plat approval. Those facts amount to an exaction … .” The conditional nature of an exaction leads to unusual questions about ripeness and mootness, as well as governmental-immunity issues, all of which were resolved by the Fifth Court substantially in favor of the Plaintiffs. No. 05-19-00545-CV (July 1, 2020) (mem. op.)

“First Ovilla sought to build a house on property that is encumbered by restrictive covenants, and the property owners’ association had previously sought to prevent another builder from constructing a house with a similar building plan. The amended permanent injunction signed in that case (and on which appellees largely relied in their plea to the jurisdiction) has been dissolved by this Court. Therefore, given the record before us, the declarations sought by First Ovilla present a justiciable controversy and are not moot.” First Ovila v. Primm, No. 05-19-00042-CV (April 27, 2020) (mem. op.) (emphasis added).

In the 2018 election for a Dallas County Justice of the Peace position, Democratic candidate Margaret O’Brien obtained a default judgment that her Republican opponent, Ashley Hutcheson, was ineligible for the position because of her residence. IAfter the election, in December 2018, a Fifth Court panel reversed, finding that the order was void because an Election Code provision bars default judgments in election cases, and further finding that the matter was not moot and required a further trial-court order because the judgment included an award of attorneys’ fees.

Litigation continued before the en banc court (the makeup of which significantly changed in the same 2018 election), which ultimately settled. In a short opinion by Chief Justice Burns on March 6, 2020, a majority of the Court dismissed the case as moot and withdrew the panel opinion.

Controversy ensued, as reflected by the four other opinions issued that day:

• A dissent by Justice Schenck found that the matter was not moot (as it was capable
  of repetition, etc.), agreed with the reasoning of the panel, and criticized the decision to withdraw the panel’s opinion (joined by Justices Bridges and Evans);
• Another dissent, by Justice Whitehill, criticized the decision to withdraw the panel’s opinon for other reasons (also joined by Justice Bridges);
• A concurrence and dissent by Justice Bridges (the author of the panel opinion) agreed with the conclusion that the case is moot, disagreed with the withdrawal of the panel opinion, and reiterated the reasoning of that opinion (joined by Justices Myers, Whitehill, Schenck, and Evans — the full complement of Republican Justices on the present court);
• A concurrence by Justice Molberg clashed with the substantive reasoning of the dissents, but concluded that the order was void for another reason – ripeness – as the election had not yet occurred at the time of judgment. This opinion was joined by all other Democratic Justices on the court except Justice Pedersen, who did not participate in the case.

600Commerce’s sister blog once described a federal appeal that became moot when, literally, the ship had sailed; a similar principle applies in a dispute about the right of possession (in Texas practice, a forcible detainer action), which becomes moot when “a writ of possession had been served on appellant” and thus “appellant is no longer in possession of [the] premises.” Jones v. Willems, No. 05-18-01191-CV (June 7, 2019). (The ship in question, since reflagged as the M/V CALHOUN, is in Singapore as of the date of this post, still well away from Fifth Circuit jurisdiction).

It’s an election year, which leads to ballot litigation, which leads to mootness problems as election deadlines approach, in cases such as Lee v. Dallas County Democratic Party, No. 05-18-00715-CV (Sept. 20, 2018) (mem. op.)

Election cases thus offer a well-defined guideline for when a case becomes moot; in the context of those cases, “[o]nce the time to practically permit continuing judicial scrutiny (including any attendant appellate review) of the absentee ballot has expired, the case has become moot.”

That well-developed standard can be a guide in other civil cases, especially those involving a decisionmaking process such as a director election. (The deadline in an election case can be earlier depending on the facts depending on the mechanics of ballot preparation, as “an election contest is moot once it becomes ‘too late to invalidate a candidate and print new absentee ballots in time for the beginning of the casting of ballots.'”)

Historical Note: Lee reminds that the development of these principles in Texas began with Sterling v. Ferguson, 53 S.W.2d 753 (Tex. 1932), a dispute about Mariam “Ma” Ferguson’s second election as governor.

A clean example of mootness appears in Tru Exploration LLC v. Energy Exploration I LLC: “The dispute on appeal centers on whether arbitration is required. Arbitration having been conducted and an award having been issued, the controversy no longer exists and the appeal is moot.” No. 05-15-00217-CV (April 27, 2018) (mem. op.) (applying Trulock v. City of Duncanville, 277 S.W.3d 920, 923 (Tex. App.–Dallas 2009, no pet.).

Litigation about this year’s primary election led to a mandamus petition about the ballot in a judicial race, in which the Fifth Court “conditionally granted relator’s petition for writ of mandamus by written opinion and ordered the trial court to vacate the temporary restraining order. We determined that the proceeding in the district court was moot as to the primary election ballot at the time it was heard, and the resulting order was void.” The opposing party then filed a “cross-petition” about the same ballot, as to which the Court similarly held: ” That relief is unavailable because overseas and military ballots have already been printed and mailed for the March primary.” In re Williams, No. 05-18-00068-CV (Jan. 26, 2018) (mem. op.) While turning on an issue unique to election law, the opinion also illustrates how equitable defenses such as laches can affect the resolution of mandamus petitions.

KPitch intervened in a lawsuit and obtained a temporary injunction against FSD. FSD appealed the injunction and sought mandamus relief against the intervention. KPitch then nonsuited the claims that were the basis for the injunction, and the Fifth Court agreed with KPitch that this action made the appellate proceedings moot. FSD argued that the appeal should proceed because KPitch had refiled the claims in an improper effort to obtain a severance, but the Court did not see this argument as creating an exception to the general rule about the effect of a nonsuit. Frisco Square Developers LLC v. KPitch Enterprises, LLC, No. 05-16-00992-CV (June 22, 2017) (mem. op.)

An attorney paid a sanction and then challenged the sanctions order as part of the appeal from the final judgment in the action. In reviewing an objection based on mootness, the Fifth Court observed that while an appeal becomes moot “when a judgment debtor voluntarily pays and satisfied a judgment rendered against him,” the purpose of that rule is “to prevent appellants from misleading their opponents into believing a controversy is over when it is not.” Thus, “payment on a judgment will not moot an appeal of that judgment if the judgment debtor clearly expresses an intent that he intends to exercise his right of appeal and appellate relief is not futile.” Here, before the attorney paid the sanction, the other side had notice of his intent to appeal when payment was made, so the appeal was justiciable. Kamel v. AdvoCare Int’l, L.P., No. 05-16-00433-CV (March 28, 2017) (mem. op.)

The Dallas Court of Appeals was pulled into one of the wide-ranging disputes concerning the prosecution of Texas Attorney General Ken Paxton, this one concerning the payment of private attorneys appointed to prosecute Paxton. The Dallas Court determined that it lacked jurisdiction because the claims were moot and were not yet ripe.

Attorneys were appointed to prosecute Paxton after the Collin County Criminal District Attorney recused his office. The appointed attorneys were to be paid $300 per hour, which was more than fixed $1000 for most court appointed attorneys for indigent defendants under the Collin County local rules, which also apply to appointed prosecutors. However, the local rules also provided “Payment can vary from the fee schedule in unusual circumstances or where the fee would be manifestly inappropriate because of circumstances beyond the control of the appointed counsel.”

On December 11, 2015, the appointed prosecutors sought an interim payment of $254,908.85 from Collin County. Three weeks later, Collin County taxpayer Jeffory Blackard sued seeking a temporary restraining order and injunction preventing payment, asserting that as a taxpayer he had standing to seek to enforce the local rules fixing most fees at a flat $1000. The Collin County judge recused himself, and the taxpayer suit was assigned to County Court at Law No. 5 in Dallas County.

A week after Blackard filed his taxpayer suit, the presiding judge over the criminal prosecution, a Tarrant County judge, approved the payment of the request for interim fees and ordered that the fees be presented to the Collin County Commissioner’s Court for payment. The next day, Blackard filed a supplemental application for temporary restraining order in the Dallas County taxpayer suit, which was denied one day later. Three days after that, only one month after the initial request for interim fees was made, the Collin County Commissioners Court voted to pay. Blackard then filed an amended petition seeking injunctive relief preventing any future requests for attorney’s fees by the appointed prosecutors. The County Court at Law determined that it lacked jurisdiction and granted the defendants’ pleas to the jurisdiction. Blackard appealed.

The Dallas Court began its analysis by noting that mootness and ripeness are threshold issues that implicate subject matter jurisdiction. Rendering opinions under either circumstance violates the prohibition against rendering advisory opinions because such cases present no justiciable controversy.

The Dallas Court held that Blackard’s claims relating to the interim fees were moot because the fees had already been paid and, under Texas law, taxpayers have standing only to seek to enjoin future payments, not to recover funds that have already been paid. Blackard asserted on appeal that his claims fell within the exception to mootness for claims “capable of repetition, yet evading review” because the appointed attorneys stipulated that they anticipated submitting future invoices. But the Dallas Court rejected that exception, which “applies only in rare circumstances.” It noted that the exception had previously only been used to challenge unconstitutional acts performed by the government, and held that the process by which fees would be requested in the future provided sufficient time for Blackard to seek judicial review prior to payment, pointing to the month between the initial request for interim fees and payment.

In addition, the Dallas Court held that claims relating to future invoices were not yet ripe. While it was stipulated that additional fees would be requested, it was not stipulated that the additional requests would be for $300 an hour or otherwise would be inconsistent with the Collin County fee schedule. So the Dallas Court concluded there was no live controversy concerning future requests for fees.

Blackard v. Attorney Pro Tem Kent A. Schafer, et al.