TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-99-00419-CV
Donald J. Barnes, Individually and In His Representative Capacity of Voice for Animals, and the Animal Protection Institute, Appellants
v.
Texas Tech University, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. 99-04564, HONORABLE JOSEPH H. HART, JUDGE PRESIDING
Appellant Donald J. Barnes appeals the district court's order granting appellee Texas Tech University's Plea to the Jurisdiction and Motion to Dismiss. After a hearing in which the district court considered only argument and received no evidence, the court held that (1) Texas Tech had not waived its sovereign immunity, and (2) Barnes had no standing. Barnes complains on appeal that the district court erred in its holdings. Texas Tech has filed in this Court a Motion to Dismiss Appeal for Mootness. Because we hold this cause is moot, we will affirm the trial court's order of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
In 1997, the Texas Legislature passed the Texas Fire Ant Research and Management Plan. The legislature allocated $2.5 million per year to support research, education, and regulatory programs conducted at Texas A&M University (the Texas Agricultural Experiment Station and the Texas Agricultural Extension Service), Texas Tech University, the University of Texas at Austin, and the Texas Department of Agriculture. The purpose of the research was to develop a cost-effective, longer-lasting, and environment-friendly method of managing the fire ant population in Texas. Additionally, no research had yet been conducted on the impact of fire ants on white-tailed deer fawns. (1) In September 1997, Texas Tech University began its study to investigate the impact of fire ants on the activity patterns of white-tail deer fawns.
In April 1999, Barnes brought suit against Texas Tech to enjoin the continuation of the white-tailed deer project on the grounds that it constituted cruel treatment of animals, lacked a valid scientific basis, and deprived appellants of their right to enjoy the natural wildlife within the state of Texas. Moreover, Barnes claimed he had been personally injured by the distress he endured as a result of the pain and suffering of the deer. Barnes brought suit on his own behalf and as a representative of two organizations, Voice for Animals and the Animal Protection Institute. Barnes alleged that the treatment of the deer during both their capture and their captivity violated the statutory prohibition against cruelty to animals because the research was not bona fide experimentation for scientific research. (2) Additionally, Barnes claimed his cause of action fell within the Texas Tort Claims Act (3) because some of the deer were injured by the helicopters and trucks used to transport them and by the holding pens used to confine them, all of which were under the control of Texas Tech.
Texas Tech invoked sovereign immunity and challenged Barnes's standing to sue. Barnes argued that because Texas Tech had violated the Tort Claims Act, it had waived its sovereign immunity. Moreover, Barnes claimed that Voice for Animals and the Animal Protection Institute had associational standing to sue because they are members of an organization whose sole purpose is to ensure the humane treatment of animals. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446-47 (Tex. 1993). After a hearing, the district court dismissed Barnes's claims, concluding that Texas Tech had not waived sovereign immunity and that Barnes did not have standing to sue.
All fieldwork for the challenged study was concluded in July 1999, and as of September 1, 1999 custody of the deer had been transferred to Texas A&M University.
DISCUSSION
Texas Tech argues that because the research project that is the subject of Barnes's suit has been completed and the deer safely transferred to the custody of Texas A&M, the cause is now moot. Texas Tech argues that the study, which was completed in 1999, was to be conducted over a two-year period with no intention of further studies. Because we hold this case should be dismissed for mootness, we do not reach appellant's two points of error.
Appellate courts may only determine cases in which an actual controversy exists. See Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988); University Interscholastic League v. Buchanan, 848 S.W.2d 298, 304 (Tex. App.--Austin 1992, no writ). In general, a case becomes moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396 (1980). The appellate court's judicial power does not include giving advisory opinions. See General Land Office v. Oxy U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990). Because the study has ended, this cause is moot unless one of the two exceptions to the mootness doctrine applies: (1) "capable of repetition, yet evading review," and (2) collateral consequences. See id. at 571. We find that neither exception applies to this cause. (4)
The United States Supreme Court has applied the "capable of repetition, yet evading review" exception where: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149 (1975). In order to satisfy the Weinstein test, Barnes must show that there is a reasonable expectation or a demonstrated probability that the same controversy will recur involving the same parties. See Murphy v. Hunt, 455 U.S. 478, 482 (1982). Therefore, a mere theoretical possibility is not sufficient to satisfy the Weinstein test. (5)
Barnes argues that we should not dismiss his case as moot because Texas Tech has demonstrated an intent to undertake further studies and therefore the actions challenged are capable of repetition, yet would still evade review. He urges that Texas Tech's now-completed study was a "preliminary" study, and therefore further studies are anticipated. There is no evidence in the record, however, to support Barnes's contention that Texas Tech will resume or repeat the study. Moreover, there is no evidence to show that a subsequent study would be of such a short duration that Barnes would not be able to fully litigate his claims before completion of the study. The study challenged here began in September 1997, yet Barnes did not file his original petition requesting a temporary restraining order until April 19, 1999, less than five months before completion of the two-year study. Barnes had ample time to seek relief in the district court, and it was his delay, not the duration of the study, that has caused this action to become moot.
CONCLUSION
Because the challenged study is now complete and we do not believe the cause comes within the "capable of repetition, yet evading review" exception to the mootness doctrine, we hold this cause is moot and we lack jurisdiction to hear this appeal. Ordinarily, when a case becomes moot the appellate court must dismiss the cause, not just the appeal. See City of Garland v. Louton, 691 S.W.2d 603, 605 (Tex. 1985). In this action, however, the trial court order dismissed the cause, albeit on different grounds from mootness. Accordingly, we believe the proper disposition is to affirm the trial court's order dismissing the cause.
J. Woodfin Jones, Justice
Before Justices Jones, Kidd and Patterson
Affirmed
Filed: February 25, 2000
Do Not Publish
1. According to the study, a survey conducted during the 1981-1982 hunting season found
that 75% of hunters hunted white-tailed deer and spent a total of $84 million on deer hunting leases.
Moreover, the study estimated that the total contribution of white-tailed deer to rural land values
in Texas was approximately $4.2 billion.
2. 3. 4. The collateral consequences exception does not apply because it pertains only to severely
prejudicial events the effects of which continue to stigmatize helpless or hated individuals long
after the unconstitutional judgment has ceased to operate. Examples of actions coming within the
"collateral consequences" exception include being wrongfully convicted of a crime, wrongfully
declared a juvenile delinquent, or wrongfully committed to a mental institution. See State v.
Lodge, 608 S.W.2d 910, 912 (Tex. 1980); Spring Branch I.S.D. v. Reynolds, 764 S.W.2d 16,
19 (Tex. App.--Houston [1st Dist.] 1988, no writ).
5.
982). Therefore, a mere theoretical possibility is not sufficient to satisfy the Weinstein test. (5)
Barnes argues that we should not dismiss his case as moot because Texas Tech has demonstrated an intent to undertake further studies and therefore the actions challenged are capable of repetition, yet would still evade review. He urges that Texas Tech's now-completed study was a "preliminary" study, and therefore further studies are anticipated. There is no evidence in the record, however, to support Barnes's contention that Texas Tech will resume or repeat the study. Moreover, there is no evidence to show that a subsequent study would be of such a short duration that Barnes would not be able to fully litigate his claims before completion of the study. The study challenged here began in September 1997, yet Barnes did not file his original petition requesting a temporary restraining order until April 19, 1999, less than five months before completion of the two-year study. Barnes had ample time to seek relief in the district court, and it was his delay, not the duration of the study, that has caused this action to become moot.
CONCLUSION
Because the challenged study is now complete and we do not believe the cause comes within the "capable of repetition, yet evading review" exception to the mootness doctrine, we hold this cause is moot and we lack jurisdiction to hear this appeal. Ordinarily, when a case becomes moot the appellate court must dismiss the cause, not just the appeal. See City of Garland v. Louton, 691 S.W