Reversed and Rendered and Memorandum Opinion filed October 18, 2011.
In The
Fourteenth Court of Appeals
NO. 14-11-00192-CV
CITY OF GALVESTON, Appellant
V.
GALVESTON MUNICIPAL POLICE ASSOCIATION, JIMMY DE LOS SANTOS
AND ROBERT SANDERSON, Appellees
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 10-CV-4089
MEMORANDUM OPINION
Appellees Jimmy De Los Santos, Robert Sanderson, and the Galveston Municipal
Police Association sued the City of Galveston and the City‘s former police chief, Charles
Wiley. The City appeals from the trial court‘s denial of the City‘s plea to the jurisdiction.
The City contends that the trial court lacks subject matter jurisdiction because there is no
live controversy between the parties. We reverse and render judgment dismissing
appellees‘ claims against the City.
BACKGROUND
The City announced in August 2010 that it would be laying off police officers and
firefighters because of budget constraints. In response, the Association‘s board of
directors1 discussed a public information campaign to address the issue; the Association
contemplated advertising and addressing the City Council directly. Appellees alleged in
their petition that on or about September 22, 2010:
Defendant WILEY interrogated each Plaintiff, and other members of the
Board of GMPA, concerning the activities of the GMPA, specifically
asking if the association was going to erect a billboard regarding the lay
offs. Defendant WILEY used threats and intimidation towards each of the
Plaintiffs in an attempt to dissuade the GMPA from representing the
members. . . . WILEY‘s conduct was done to intimidate the GMPA Board
Members and the organization as a whole.
Appellees also alleged that Wiley sent an e-mail to all Galveston Police Department
employees on September 23:
WILEY referred to ―labor goon tactics‖ and broadly threatened that ―any
such conduct will result in swift and certain action for those offenders.‖
Wiley went on to state that the administration was trying to determine who
was involved and encouraged others to report rumors.
The City Council allowed discussion of the budget and layoffs on September 23, and
both Wiley and Sanderson were present. Sanderson alleged that he had planned to
address the City Council on behalf of the Association but refrained from doing so
because of Wiley‘s ―threats and intimidation.‖ According to the allegations, Wiley told
Sanderson that if the Association was ―going to speak to City Council it needed to come
through him first so that he did not have to hear this GMPA crap anymore.‖ The City
Council approved the layoffs that same day.
1
De Los Santos is president of the Association, and Sanderson is vice president.
2
Appellees sued the City on November 3, 2010 for declaratory and injunctive relief
for violations of Section 101.301 of the Labor Code, Section 617.005 of the Government
Code, and Chapter 174 of the Local Government Code.2 Appellees sought an order
―enjoining the Defendants from violating their rights under the aforesaid statutes by
denying the Plaintiffs the right to represent the police officers of the Galveston Police
Department and to be free from threats, force, intimidation and coercion in that
representation.‖ They also asked the court to declare that ―the Defendants [sic] conduct
of compelling the GMPA Board members to appear and answer questions regarding the
activities of the GMPA violates the rights of the Plaintiffs,‖ and that the ―e-mail order . . .
is a violation of the Texas Labor Code and Texas Government Code as cited herein.‖
The City filed a plea to the jurisdiction, contending that the trial court lacked
jurisdiction because appellees‘ claims were moot and each appellee lacked standing. The
court denied the plea, and the City appealed. While this appeal was pending, Wiley
retired from the police department.
ANALYSIS
In its first issue, the City argues that the trial court lacks subject matter jurisdiction
because there is no justiciable controversy between appellees and the City. We agree.
I. Standard of Review
Issues of justiciability, such as mootness, ripeness, and standing, implicate a
court‘s subject matter jurisdiction. See Patterson v. Planned Parenthood of Hous. & Se.
Tex., Inc., 971 S.W.2d 439, 442–43 (Tex. 1998); David Powers Homes, Inc. v. M.L.
Rendleman Co., No. 01-10-00967-CV, __ S.W.3d __, 2011 WL 3612308, at *4–5 (Tex.
App.—Houston [1st Dist.] Aug., 18, 2011, no pet. h.). The absence of a court‘s
jurisdiction may be raised by a plea to the jurisdiction. Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547, 554 (Tex. 2000). When a plea to the jurisdiction challenges the
2
Appellees also sued Wiley individually seeking a declaration, injunction, and monetary
damages. Those claims are not before us in this appeal.
3
pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the
court‘s jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004). We construe the pleadings liberally in the pleader‘s favor, and we review
the trial court‘s ruling de novo. Id.
II. Principles of Justiciability: Standing, Mootness, and Ripeness
Texas courts lack jurisdiction to render advisory opinions. Tex. Ass’n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). When there is no live
controversy between the parties, an opinion is advisory ―because rather than remedying
an actual or imminent harm, the judgment addresses only a hypothetical injury.‖ See id.
A controversy must exist between the parties at every stage of a legal proceeding for
Texas courts to have jurisdiction. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2000).
The overlapping doctrines of standing, mootness, and ripeness relate to whether an
appropriate party has brought suit at an appropriate time so that there is an actual, live
controversy between the parties. These justiciability doctrines stem from the prohibition
on court-issued advisory opinions. Patterson, 971 S.W.2d at 442.
Standing concerns who may bring an action. Id. ―The general test for standing in
Texas requires that there ‗(a) shall be a real controversy between the parties, which (b)
will be actually determined by the judicial declaration sought.‘‖ Tex. Ass’n of Bus., 852
S.W.2d at 446 (quoting Bd. of Water Eng’rs v. City of San Antonio, 155 Tex. 111, 114,
283 S.W.2d 722, 724 (1955)). A plaintiff lacks standing if his or her ―claim of injury is
too slight for a court to afford redress.‖ DaimlerChrysler Corp. v. Inman, 252 S.W.3d
299, 305 (Tex. 2008).
Ripeness concerns when an action may be brought. Patterson, 971 S.W.2d at 442.
This doctrine requires that ―the facts have developed sufficiently so that an injury has
occurred or is likely to occur, rather than being contingent or remote.‖ Id. A controversy
is not ripe when resolution depends on contingent or hypothetical facts. Id. at 443.
4
Mootness concerns the cessation of what was once a live controversy between the
parties. See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 865 (Tex. 2010); Williams,
52 S.W.3d at 184. A controversy ceases to exist and a case becomes moot if the parties
lack a ―‗legally cognizable interest in the outcome.‘‖ Williams, 52 S.W.3d at 184
(quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)). ―‗Past exposure to illegal conduct
does not itself show a present case or controversy regarding injunctive relief . . . if
unaccompanied by any continuing, present adverse effects.‘‖ Id. (alteration in original)
(quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974)). Even if a case becomes
moot, however, a plaintiff may continue to maintain suit if the plaintiff proves: ―(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.‖ Id. This is the ―capable of repetition yet evading
review‖ exception to the mootness doctrine. Id.
III. No Justiciable Controversy
Appellant argues this case is moot because all of the complained-of conduct by
Wiley (1) occurred in September 2010; and (2) dealt with staff layoffs — an issue the
City Council resolved on September 23, 2010. Further, the parties agreed at oral
argument that Wiley retired from the police department while this appeal was pending.
Appellees contend the case is not moot and point to Wiley‘s September 2010 e-mail, in
which he said that the Association‘s proposed advertising campaign was intolerable and
would result in ―swift and certain disciplinary action‖ for anyone ―who might consider
such a thing.‖ Appellees contend the e-mail represents an ongoing City policy.
Regardless of whether the issue in this case is framed as one of standing, ripeness,
or mootness, we hold there is no justiciable controversy between the City and appellees.
Even if it is assumed that a live controversy existed at the inception of this lawsuit,
Wiley‘s retirement as police chief bolsters the conclusion that no live controversy now
exists.
5
The parties direct us to the decision in City of Round Rock v. Rodriguez, 317
S.W.3d 871 (Tex. App.—Austin 2010, pet. granted). In that case, the Austin Court of
Appeals concluded that the ―capable of repetition yet evading review‖ exception to the
mootness doctrine applied when: (1) the City of Round Rock had denied the firefighter
association members‘ requests for representation at investigatory interviews on multiple
occasions in 2006 and 2008; (2) the fire chief conveyed the city‘s opinion to the
association that members‘ requests for representation would be denied; and (3) the city
continued to assert that the association members had no right to representation during
investigatory interviews. See id. at 879–80. The court concluded that it was reasonable
to expect that the association members would be subjected to the same actions again, and
so an exception to the mootness doctrine applied. Id. at 879. We find the Rodriguez case
distinguishable.
Here, appellees‘ petition focuses on specific incidents concerning a specific issue
that was resolved by the City Council in September 2010. Appellees have not alleged
that Wiley‘s promise of ―swift and certain disciplinary action‖ has ever been enforced, or
that any alleged threats have caused police officers to refrain from engaging in any
protected conduct other than Sanderson‘s one-time decision to not speak at the City
Council meeting on September 23, 2010. Appellees have not alleged they intend to go
forward with an advertising campaign critical of the staff layoffs. They do not request
any relief in that regard. And unlike Rodriguez, the City asserts that ―the City disclaims
the existence of a Standing Order‖ created by Wiley‘s conduct in this matter. The
retirement of the e-mail‘s author defeats reliance upon that e-mail to establish a
continuing controversy.
Although appellees have requested declaratory and injunctive relief — generally
considered prospective relief — the petition reveals that any such relief in this case would
be solely retrospective in application. Appellees request an injunction to prevent the City
from denying appellees the rights ―to represent the police officers . . . and to be free from
threats, force, intimidation and coercion in that representation.‖ Yet the petition does not
6
allege circumstances involving the threatened or likely denial of such rights in the future,
particularly in Wiley‘s absence. No cognizable ―continuing, present adverse effects‖ are
alleged. See Williams, 52 S.W.3d at 184.
Appellees further request declarations that the e-mail is a violation of the Labor
Code and Government Code, and that the City‘s ―conduct of compelling the
[Association‘s] Board members to appear and answer questions regarding the activities of
the [Association] violates the rights of [appellees].‖ The petition references a single
instance of Wiley interrogating appellees about the Association‘s activities; Wiley
―specifically ask[ed] if the Association was going to erect a billboard regarding the lay
offs.‖ There is no allegation that this conduct persisted after the City Council approved
the layoffs one day later, nor is there any allegation that the City has a practice or policy
of interrogating the Association‘s members. Simply put, there is no live controversy to
be resolved by the requested declarations. See Bonham State Bank v. Beadle, 907 S.W.2d
465, 467 (Tex. 1995) (―A declaratory judgment is appropriate only if a justiciable
controversy exists as to the rights and status of the parties and the controversy will be
resolved by the declaration sought.‖); State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994)
(―A litigant‘s request for declaratory relief cannot confer jurisdiction on the court, nor can
it change the basic character of a suit.‖); Tex. Ass’n of Bus., 852 S.W.2d at 444 (―[T]he
Uniform Declaratory Judgments Act [is] merely a procedural device for deciding cases
already within a court‘s jurisdiction rather than a legislative enlargement of a court‘s
power, permitting the rendition of advisory opinions.‖).
Appellees‘ requests for declaratory relief cannot change the basic character of this
suit: a complaint about past conduct. Appellees‘ requested relief would be purely
advisory. Thus, there is no live controversy between the parties, and appellees have not
alleged facts that affirmatively demonstrate the court‘s jurisdiction.
The City‘s first issue is sustained.
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CONCLUSION
Having sustained the City‘s first issue, we reverse the trial court‘s denial of the
City‘s plea to the jurisdiction and render judgment dismissing appellees‘ claims against
the City. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839–40 (Tex. 2007);
Galveston Indep. Sch. Dist. v. Clear Lake Rehab. Hosp., L.L.C., 324 S.W.3d 802, 814 n.5
(Tex. App.—Houston [14th Dist.] 2010, no pet.).3
/s/ William J. Boyce
Justice
Panel consists of Justices Brown, Boyce, and McCally.
3
A dismissal for lack of jurisdiction is not a final judgment on the merits; thus, appellees will not
be prevented from refiling if a live controversy eventually develops. See Galveston Indep. Sch. Dist., 324
S.W.3d at 814 n.5.
8