TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-10-00296-CV
Texas Commission on Environmental Quality, Appellant
v.
Public Citizen, Inc., Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-09-003426, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING
MEMORANDUM OPINION
PER CURIAM
Appellee Public Citizen, Inc., as part of its motion to dismiss this interlocutory appeal
as moot, has asked in the alternative that this Court remand for the limited purpose of allowing
Public Citizen to voluntarily dismiss its claims against appellant Texas Commission on
Environmental Quality (TCEQ) in the trial court. TCEQ opposes the motion. However, it is not
apparent that Public Citizen needs permission from this Court to dismiss its own case. Under the
Texas Rules of Civil Procedure, “[a]t any time before the plaintiff has introduced all of his evidence
other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit, which shall be
entered in the minutes.” Tex. R. Civ. P. 162. Rule 162 is applicable here because this is an
interlocutory appeal from the trial court’s denial of TCEQ’s plea to the jurisdiction. See University
of Tex. Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98, 100 (Tex. 2006) (per
curiam). Because the trial court generally does not have discretion to refuse to dismiss a suit, Public
Citizen has the absolute right to dismiss its claims. See CTL/Thompson, LLC v. Starwood
Homeowner’s Ass’n, 390 S.W.3d 299, 299 (Tex. 2013) (per curiam).1
Nevertheless, because Public Citizen has sought permission from this Court to
dismiss its suit below, we abate this appeal for thirty days for the sole purpose of allowing Public
Citizen to dismiss its claims against TCEQ in the trial court. Public Citizen shall file in this Court
proof of its dismissal or nonsuit on or before August 15, 2013. If such proof is not filed in this Court
by that date, this appeal will be reinstated. Having decided to abate this appeal, we do not reach
Public Citizen’s motion to dismiss at this time. Tex. R. Civ. P. 47.1.
Before Justices Rose, Goodwin, and Field
Abated
Filed: July 16, 2013
1
Although a nonsuit may not prejudice the rights of an adverse party to be heard on its
pending claims, TCEQ’s plea to the jurisdiction based on sovereign immunity is not a claim for
affirmative relief that survives nonsuit. See CTL/Thompson, LLC v. Starwood Homeowner’s Ass’n,
390 S.W.3d 299, 300–01 (Tex. 2013) (per curiam); University of Tex. Med. Branch at Galveston
v. Estate of Blackmon, 195 S.W.3d 98, 100 (Tex. 2006) (per curiam).
2