State v. City of Austin, Texas County of Travis, Texas Steve Adler, in His Official Capacity as Mayor, City of Austin, Texas And Andy Brown, in His Official Capacity as County Judge, County of Travis, Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-20-00619-CV

The State of Texas, Appellant

v.

City of Austin, Texas; County of Travis, Texas; Steve Adler, in his Official Capacity as
Mayor, City of Austin, Texas; and Andy Brown, in his Official Capacity as County Judge,
County of Travis, Texas, Appellees

FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-20-007712, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

MEMORANDUM OPINION

The State of Texas sought to stop appellees, City of Austin, the City’s Mayor

Steve Adler, Travis County, and County Judge Andy Brown (collectively, “local officials”),

from enforcing emergency pandemic-related orders that the local officials issued requiring

businesses to temporarily suspend dine-in food and beverage service from 10:30 p.m. to 6:30

a.m., beginning December 31, 2020, and ending January 3, 2021—the duration of New Year’s

weekend. The State appeals from the trial court’s order denying its application for temporary

injunctive relief. For the reasons explained below, we conclude that we lack jurisdiction over the

appeal because the State’s claims are moot and not ripe, and we dismiss the appeal for want of

jurisdiction.
 BACKGROUND

On December 30, 2020, the State sued the local officials, seeking declaratory and

injunctive relief as to the validity and enforcement of the County Judge’s Order 2020-24 and the

Mayor’s Order No. 20201229-24 (collectively, “local orders”). The local orders were issued late

on December 29, 2020, and they required businesses in the City of Austin and Travis County to

suspend “indoor and outdoor dine-in food and beverage service at 10:30 p.m.” each night until

6:00 a.m. the following morning, beginning on December 31, 2020, and ending on January 3,

2021. The local orders established that a business’s violation of this requirement would

constitute a misdemeanor criminal offense punishable by a fine of up to $1,000.

The State asserts in its trial-court petition that issuance and enforcement of the

local orders are invalid, unlawful, and constitute ultra vires acts because: (1) Governor Abbott

suspended the only statutes that would have allowed the local officials to issue the local orders;

(2) the local officials were acting as the Governor’s designated agents when they issued the local

orders, and as agents, they could not ignore the will of their principal; and (3) the local orders

conflict with the Governor’s Executive Order GA-32. The Governor issued GA-32 on October

7, 2020, as one of a series of orders issued “[r]elating to the continued response to the COVID-

19 disaster as Texas reopens.” The State alleges that by prohibiting indoor and outdoor dine-in

food and beverage service during the period from 10:30 p.m. to 6:00 a.m. on the designated days,

the local orders conflict with GA-32 because they “force[] restaurants and business[es] to close

when they would otherwise be allowed to operate under GA-32.” GA-32 addresses what

businesses and services can remain open under what circumstances. Among other things, it

specifically provides that “[r]estaurants that have less than 51 percent of their gross receipts from

the sale of alcoholic beverages, and whose customers eat or drink only while seated, may offer

2
dine-in services” and provides that bars or similar establishments “may offer on-premises

services” under certain listed circumstances. GA-32 does not explicitly address hours of

operation for any businesses. GA-32 states that it shall supersede a conflicting local order but

only to the extent that the local order “restricts services allowed by [GA-32].” The State seeks a

declaration that the local orders are invalid and unconstitutional, as well as temporary and

permanent injunctions ordering the local officials to: (1) stop, or order stopped, all enforcement

efforts of the local orders; (2) rescind the local orders; and (3) refrain from issuing any new

emergency orders more restrictive than, or conflicting with, GA-32.1

On December 31, the trial court held a hearing on the State’s application for a

temporary injunction. The trial court took judicial notice of its entire file, including copies of the

local orders and GA-32 that were attached to the State’s petition. The State did not call any

witnesses, and the local officials’ only witness was Mark Escott, M.D., who serves as the Interim

Health Authority for the City and County and is one of the individuals in charge of the local

response to the COVID-19 pandemic. Dr. Escott testified about the specific level of COVID-19

risk in the Austin and Travis County area at that time and about the local officials’ public-health

concerns that led to issuing the local orders to temporarily suspend dine-in hours at 10:30 p.m.

during the New Year’s weekend. He testified that the goal was to mitigate “th[e] risk—of large

numbers of people crowded together to celebrate and—and, hopefully, [to] help us to flatten the

curve” of a projected post-holiday surge in COVID-19 cases.

In particular, Dr. Escott testified that the community was at Stage 5—“the highest

stage of risk”—“which indicates widespread, uncontrolled community transmission of COVID-

1
In addition, the State initially sought a temporary restraining order against the
enforcement of the local orders, but the parties agreed at the hearing to proceed only on the
State’s application for a temporary injunction.
3
19” and that the local orders were “targeting that area of risk in a very surgical way.” He

explained that “[t]he two most important things are masking and distancing” to reduce the

transmission of COVID-19 and that restaurants were a “challenge” because eating or drinking

requires removing masks. Dr. Escott also testified about the disconcerting trends in Austin and

Travis County at that point with increasing hospitalizations, limited staffing resources, and

limited availability of intensive-care units in the area to handle the projected post-holiday surge

in COVID-19 cases. Dr. Escott described a “surge” as a time when “demand outpaces the

resources that are available,” and he explained that the community already had “more than 100

[medical] staff requests that have gone unfilled because there aren’t more staff. They’re very

difficult to find.” He further noted the concern specific to the Austin and Travis County

community that other major metropolitan areas in Texas were still surging, including Dallas, Fort

Worth, San Antonio, and Houston, meaning that Austin and Travis County would “be fifth or

sixth in line of that surge.”

That same day, the trial court denied the State’s request for temporary injunctive

relief. The State immediately appealed to this Court and sought temporary relief under Texas

Rule of Appellate Procedure 29.3. See Tex. R. App. P. 29.3 (authorizing appellate court to make

“any temporary orders necessary to preserve the parties’ rights until disposition of the appeal”).

After this Court denied the State’s request, the State filed a petition for writ of mandamus with

the Texas Supreme Court, which conditionally granted the State’s requested relief on January 1,

2021. See In re State, No. 21-0001, 2021 Tex. LEXIS 1, at *1 (Tex. Jan. 1, 2021, order). The

Texas Supreme Court directed this Court “to issue relief under Texas Rule of Appellate

Procedure 29.3, instanter, enjoining enforcement of [the local orders] pending final resolution of

the appeal.” Id. Accordingly, this Court immediately enjoined enforcement of the local orders

4
pending final resolution of this interlocutory appeal. See State v. City of Austin, No. 03-20-

00619-CV, 2021 WL 22007, at *1 (Tex. App.—Austin Jan. 1, 2021, order) (per curiam). The

underlying proceeding remains pending before the trial court.

We also granted the State’s motion to consider the appeal on an expedited basis.

In our letter to the parties granting that motion, we requested that the parties address this Court’s

jurisdiction over the appeal and raised the question of whether the appeal is moot. See Williams

v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (noting that generally a “controversy must exist

between the parties at every stage of the legal proceedings, including the appeal” or the “case

becomes moot”). The parties addressed the jurisdictional issue in their briefing on the merits of

the appeal.

While this appeal was pending but after briefing was complete, Governor Abbott

issued Executive Order GA-34 on March 2, 2021.2 The Court takes judicial notice of GA-34.

See Tex. R. Evid. 201(a), (b)(2), (c)(1), (d); Office of Pub. Util. Counsel v. Public Util. Comm’n

of Tex., 878 S.W.2d 598, 600 (Tex. 1994) (“A court of appeals has the power to take judicial

notice for the first time on appeal.”); see also Tex. Gov’t Code § 22.220(c) (“Each court of

appeals may, on affidavit or otherwise, as the court may determine, ascertain the matters of fact

that are necessary to the proper exercise of its jurisdiction.”). Among its other provisions, GA-

34 superseded GA-32, as well as certain other prior executive orders.

ANALYSIS

The sole issue presented by the State on appeal is whether the trial court abused

its discretion by refusing to enjoin enforcement of the local orders. The purpose of the

2
See https://open.texas.gov/uploads/files/organization/opentexas/EO-GA-34-opening-
Texas-response-to-COVID-disaster-IMAGE-03-02-2021.pdf, last visited March 2, 2021.
5
extraordinary remedy of a temporary injunction is to preserve the status quo of the litigation’s

subject matter pending trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.

2002). To obtain a temporary injunction, an applicant must plead and prove three elements: (1) a

claim against the opposing party; (2) a probable right to the relief sought; and (3) probable,

imminent, and irreparable injury in the interim. Id.

We address mootness as a threshold issue because it concerns our subject-matter

jurisdiction. See, e.g., Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005); Hughs v.

Dikeman, 609 S.W.3d 602, 611 (Tex. App.—Houston [14th Dist.] 2020, pet. filed). “[A] suit

can become moot at any time, including on appeal,” and “courts have an obligation to take into

account intervening events that may render a lawsuit moot.” Heckman v. Williamson County,

369 S.W.3d 137, 166-67 (Tex. 2012).

In response to our request for briefing on mootness, the State asserts that the

appeal is not moot, focusing on its request for injunctive relief to prevent the local officials from

issuing future emergency orders more restrictive than or conflicting with GA-32, and relying on

two exceptions to the mootness doctrine: the “capable of repetition, yet evading review”

exception and the “public interest” exception. See id. (describing capable-of-repetition

exception); F.D.I.C. v. Nueces Cnty., 886 S.W.2d 766, 767 (Tex. 1994) (recognizing but not

adopting public-interest exception). In response, the local officials argue that the appeal is moot

because the local orders—in effect for a single 10:30 p.m. to 6:00 a.m. period—expired after

being temporarily enjoined by this Court (as directed by the supreme court). In addition, the

local officials argue that the State’s request for injunctive relief as to similar future orders would

result in an advisory opinion. In other words, the local officials argue that two of the State’s

three claims for injunctive relief are potentially moot—its requests that the trial court order the

6
local officials (1) to “stop, or order stopped, all enforcement efforts” of the local orders and

(2) to rescind the local orders. The local officials assert that the third request, that the trial court

order the local officials to “refrain from issuing any new emergency orders more restrictive than,

or conflicting with, GA-32,” is not ripe.3

Legal framework

The parties’ jurisdictional arguments in this case implicate the doctrines of

mootness and ripeness. The constitutional roots of these justiciability doctrines “lie in the

prohibition on advisory opinions, which in turn stems from the separation of powers doctrine.”

Patterson v. Planned Parenthood of Hous. & Se. Tex., 971 S.W.2d 439, 442-43 (Tex. 1998)

(citing, e.g., Tex. Const. art. II, § 1 (establishing separation of powers among three branches of

government); Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)

(“We have construed our separation of powers article to prohibit courts from issuing advisory

opinions because such is the function of the executive rather than the judicial department.”)).

“To constitute a justiciable controversy, there must exist a real and substantial controversy

involving a genuine conflict of tangible interests and not merely a theoretical dispute.”

Southwestern Elec. Power Co. v. Lynch, 595 S.W.3d 678, 685 (Tex. 2020) (quoting Bonham

State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995)).

3
Although the State frames its issue presented on appeal as seeking to establish only that
the trial court abused its discretion by refusing to enjoin enforcement of the local orders, in its
prayer, it requests that we reverse the district court’s denial of its motion for temporary
injunction and enter the temporary injunction that it requested, which sought the three listed
forms of relief. And, as noted, it focuses its argument against mootness on its claim for
injunctive relief from future “illegal orders.” Accordingly, we consider our jurisdiction over each
of the State’s three claims for injunctive relief.
7
 Under the doctrine of ripeness, courts must consider whether “at the time a

lawsuit is filed, the facts are sufficiently developed so that an injury has occurred or is likely to

occur, rather than being contingent or remote.” Patel v. Texas Dep’t of Licensing & Reg., 469

S.W.3d 69, 78 (Tex. 2015) (quoting Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851-52

(Tex. 2000)). Thus, when analyzing ripeness, we focus on whether a case involves “uncertain or

contingent future events that may not occur as anticipated or may not occur at all.” Waco Indep.

Sch. Dist., 22 S.W.3d at 852 (quoting Patterson, 971 S.W.2d at 442). Conversely, the mootness

doctrine applies “when there ceases to be a justiciable controversy between the parties or when

the parties cease to have ‘a legally cognizable interest in the outcome.’” State ex. rel. Best v.

Harper, 562 S.W.3d 1, 6 (Tex. 2018) (quoting Williams, 52 S.W.3d at 184). “Put simply, a case

is moot when the court’s action on the merits cannot affect the parties’ rights or interests.”

Heckman, 369 S.W.3d at 162.

In analyzing our jurisdiction over this interlocutory appeal from the trial court’s

order denying the State’s request for a temporary injunction, we must determine whether a

justiciable controversy exists as to each of the State’s three claims for temporary injunctive

relief. See, e.g., id. at 150 (explaining when analyzing justiciability doctrine of standing that if

“a plaintiff lacks standing to assert one of his claims, the court lacks jurisdiction over that claim

and must dismiss it”). We may only exercise jurisdiction over this appeal if a justiciable

controversy exists as to at least one of these claims. See Harper, 562 S.W.3d at 6 (recognizing

that case “is not rendered moot simply because some of the issues become moot during the

appellate process” (quoting In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005)

(orig. proceeding))); Heckman, 369 S.W.3d at 150-51 (explaining that “if the plaintiff lacks

standing to bring any of his claims, the court must dismiss the whole action for want of

8
jurisdiction”). If only some claims become moot, “the case remains ‘live,’ at least as to other

claims or issues that are not moot.” Harper, 562 S.W.3d at 6.

Mootness

As noted above, the two claims that the local officials argue are moot are the

State’s requests that the trial court order the local officials (1) to “stop, or order stopped, all

enforcement efforts” of the local orders and (2) to rescind the local orders. The local orders

expired on their own terms at 6:00 a.m. on January 3, 2021, but they were in place for 7.5 hours

from 10:30 p.m. on December 31, 2020, to 6:00 a.m. on January 1, 2021, before this Court

enjoined their enforcement. See State, 2021 WL 22007, at *1. In our order enjoining

enforcement, “[p]er the Texas Supreme Court’s directive and pursuant to Texas Rule of

Appellate Procedure 29.3,” we enjoined “enforcement of [the local orders] pending final

resolution of this appeal.” Id.

The local officials contend that the only issue that is ripe for interlocutory appeal

is the State’s enforcement claim. They further argue that because the local orders are not

currently in effect, the expired orders moot the appeal, and “there is nothing to disturb the State’s

asserted status quo.” The local officials characterize as “hypothetical” the question of whether

the local orders conflict with GA-32 and thus should not be enforced, and they assert that “[t]he

answer to the that [sic] question no longer affects the parties” and would be an advisory opinion.

The State, on the other hand, asserts that it had standing to challenge the trial court’s denial of

the temporary injunction because the threatened irreparable injury to the State from the local

orders was “realized when [the local officials] began to enforce the order[s].”

9
 Other than the State’s conclusory statement that the local officials “began to

enforce the order[s]” before they were enjoined, nothing in the parties’ briefing or the record

indicates that the local officials actually enforced the local orders during the single 7.5-hour

period that they were in effect. The specific provisions in the local orders concerning

enforcement authorized enforcement of the dine-in hours by various local inspectors and

established that a violation of the orders “is a misdemeanor punishable by a fine not to exceed

$1,000, but not by confinement.” The orders further provided that a violation may be enforced

by the filing of a probable-cause affidavit alleging the violation with the appropriate court or by

issuing a citation to the person violating the orders. In addition, the City’s order states:

“Enforcement of this Order is substantially reliant on self-regulation and a community

commitment to public health and safety under the threat of COVID-19. If there is not

widespread compliance with this Order, the City will increase enforcement efforts, as allowed by

law.” There is no evidence that any probable-cause affidavits were filed or citations were issued

to enforce the local orders on New Year’s Eve, and this Court’s January 1 order precluded any

subsequent action to enforce the local orders. Accordingly, we construe the local officials’

argument as to mootness of the State’s requested injunctive relief to mean that the local orders

have expired and the local officials neither pursued in the past, nor intend to pursue in the future,

enforcement of any violations that may have occurred during that 7.5-hour period before we

enjoined the orders.4 Absent any enforcement efforts, the State’s requested relief—an order to

4
Appellate courts generally cannot consider evidence not before the trial court when the
trial court made the challenged ruling. MSC Gleannloch LLC v. Harris Cnty. Water Control &
Improvement Dist. No. 119, No. 14-19-00157-CV, 2020 WL 6278477, at *3 (Tex. App.—
Houston [14th Dist.] Oct. 27, 2020, no pet.) (mem. op.) (citing University of Tex. v. Morris, 344
S.W.2d 426, 429 (Tex. 1961)). However, when a court must determine whether an appeal has
become moot (or other matters related to this Court’s proper exercise of jurisdiction), we may
10
“stop, or order stopped, all enforcement efforts of [the local orders]”—would have no legal

effect. And because the orders have expired by their terms, an order requiring the local officials

to rescind the orders likewise would have no legal effect. Thus, subsequent events have mooted

both of those requests for injunctive relief because this Court’s “action on the merits cannot

affect the parties’ rights or interests.” See Heckman, 369 S.W.3d at 162.

Capable-of-repetition exception to the mootness doctrine

The State contends that the expiration of the local orders does not render its

claims for injunctive relief moot because the claims satisfy the “capable of repetition, yet

evading review” exception to the mootness doctrine. We disagree. This exception applies only

in rare circumstances. Williams, 52 S.W.3d at 184 (citing City of Los Angeles v. Lyons, 461 U.S.

95, 109 (1983)). To invoke the exception, the State must prove that: “(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.

The local officials do not dispute that the challenged local orders were too short in

duration to be litigated fully before they expired. However, the local officials contend, and we

agree, that the State cannot meet its burden to show a reasonable expectation or demonstrated

probability that the local officials will take the same actions and again engage in the same

conduct. See Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam). The “mere physical or

consider evidence not before the trial court. Id. (citing Morris, 344 S.W.2d at 429; FinServ Cas.
Corp. v. Transamerica Life Ins. Co., 523 S.W.3d 129, 147 (Tex. App.—Houston [14th Dist.]
2016, pet. denied)). In this case, we consider the absence of evidence of any enforcement of the
local orders to be significant. See id. (“Nothing in our record indicates that the District has
continuing plans or otherwise intends to stop providing water and wastewater services to MSC
Gleannloch.”).
11
theoretical possibility” that the same party may be subjected to the same action again is not

sufficient to satisfy this element. See id.; see also Williams, 52 S.W.3d at 185 (concluding too

speculative to base “reasonable expectation” on assumption that appellees would violate law

again because courts instead assume that parties will follow law). In particular here, given that

the Texas Supreme Court directed this Court to enjoin the local officials from enforcing the local

orders pending final resolution of this appeal, we decline to assume that the local officials would

engage in the same conduct—enforcing the expired local orders—again.

The State argues that the capable-of-repetition element is satisfied because the

local officials “‘would be free to’” violate GA-32 again and “issue an identical order ‘after

receiving a ruling that the case was moot,’” quoting Davis v. Burnam, 137 S.W.3d 325, 333

(Tex. App.—Austin 2004, no pet.) (holding claim regarding allegedly improper document

destruction was not moot because state agency would be able to destroy documents before

complying with open-records request if court declared case moot).5 However, this contention

only addresses the State’s claim for injunctive relief precluding future orders conflicting with

GA-32; it does not support a conclusion that the State’s claim for injunctive relief to stop

enforcement of the existing local orders satisfies the capable-of-repetition element. As we will

discuss below, the State’s future-orders claim is not ripe, and thus, this claim cannot support our

Court’s exercise of jurisdiction over the appeal. Moreover, even if this claim had ever been ripe,

it would now be moot because the Governor has issued GA-34, which supersedes GA-32.

5
Although the State argues that the local officials could issue an “identical” order,
because the local orders were limited to the 2021 New Year’s weekend, we liberally construe
this argument to mean that the local officials could issue another similar order requiring
businesses to temporarily suspend dine-in food and beverage service overnight for some given
short period of time for similar pandemic-related reasons.
12
 In support of its argument that we have jurisdiction under the capable-of-

repetition exception, the State relies on the supreme court’s decision in Matthews v. Kountze

Independent School District, 484 S.W.3d 416, 418 (Tex. 2016), to suggest that the local officials

have not satisfied their burden to demonstrate mootness because they have not shown “that the

challenged conduct cannot reasonably be expected to recur.” However, the court in Matthews

was not considering the capable-of-repetition exception to the mootness doctrine. Instead, the

court addressed a split of authority among the courts of appeals concerning whether defendants

in declaratory-judgment cases must “admit that their prior policies were unconstitutional in order

to moot a case.” Id.

Under the circumstances present in Matthews, the court held that the defendant

school district’s voluntary ceasing of the challenged conduct (prohibiting cheerleaders from

displaying banners containing religious signs or messages at school-sponsored events) did not

moot the plaintiffs’ claims for prospective relief. Id. at 420 (concluding that school district’s

voluntary discontinuance of its prohibition of religious banners provided no assurance that future

prohibition would not occur, given that district’s new policy stated only that district was not

required to prohibit such banners and also reserved to district unfettered discretion to regulate

those banners). In contrast, in this case, the local officials have not voluntarily ceased the

challenged conduct of enforcing the local orders—instead, this Court (as directed by the supreme

court) enjoined them from enforcing the local orders. Again, we conclude that by taking the

position that the appeal is moot because the local orders have expired, the local officials are

acknowledging that they have not enforced and do not intend to enforce the orders for the 7.5-

hour period that they were in effect. Therefore, we hold that the State’s claim for injunctive

13
relief to prevent the local officials from enforcing the local orders does not satisfy the capable-

of-repetition exception to the mootness doctrine.6

Public-interest exception to the mootness doctrine

The State also contends that the public-interest exception to the mootness doctrine

applies here because of “[t]he possibility that other city and county officials will follow suit” and

issue orders like the local orders that the State alleges conflict with GA-32. This Court has

recognized the public-interest exception, which expands the capable-of-repetition exception to

include parties other than those involved in the current case. The public-interest exception

“allows appellate review of a question of considerable public importance if that question is

capable of repetition between either the same parties or other members of the public but for some

reason evades appellate review.” University Interscholastic League v. Buchanan, 848 S.W.2d

298, 304 (Tex. App.—Austin 1993, no writ); see also Federal Deposit Ins. Corp. v. Nueces

County, 886 S.W.2d 766, 767 (Tex. 1994) (recognizing that some courts of appeals have adopted

exception but not reaching issue of viability of public-interest exception). The State asserts that

the question of “considerable public importance” at issue here is the public interest in the local

officials’ compliance with GA-32. See Securtec, Inc. v. County of Gregg, 106 S.W.3d 803, 811

(Tex. App.—Texarkana 2003, pet. denied) (concluding appeal in declaratory-judgment action

was not moot because county’s compliance with bidding procedures in Local Government Code

was “a matter of public interest” satisfying exception). The State also asserts that its “power to

6
Although the State does not address the application of the exception to its claim
seeking to require the local officials to rescind the orders, that claim likewise is not capable of
repetition because the local orders have expired.
14
protect its citizens’ health and livelihood during a pandemic” is a question of considerable public

importance that prevents its claims for injunctive relief from becoming moot.

Despite the State’s efforts to reframe the issues on appeal, the claims at issue are

the State’s requests for injunctive relief, not its request for a declaration that the local orders are

invalid and unconstitutional. The only claims before this Court are the State’s requests that the

trial court order the local officials to stop enforcement of the local orders, to rescind the local

orders, and to refrain from issuing future orders more restrictive than, or conflicting with, GA-

32. The State’s first two requests are specific to the local orders at issue here, and those local

orders are not capable of precise repetition by other city and county officials. As for the State’s

request that the trial court order the local officials not to issue future orders that conflict with

GA-32, as noted above, GA-34 has superseded GA-32. Because it is no longer possible for the

local officials or any other city and county officials to issue an order that conflicts with GA-32,

this claim would be moot had it ever been ripe—which, for the reasons discussed below, it never

was. Thus, while the State’s power to compel the local officials’ compliance with GA-32 (at

least before GA-32 was superseded) and the State’s “power to protect its citizens’ health and

livelihood during a pandemic” are questions of considerable public importance, the State’s

claims for the particular injunctive relief at issue here are not capable of repetition and thus do

not fall into the public-interest exception to mootness. “We do not have power to decide moot

cases, whether they ‘involve a matter of public concern’ or not.” Morath v. Lewis, 601 S.W.3d

785, 789 (Tex. 2020) (per curiam) (“Indeed, the need for courts to mind their jurisdictional

bounds is perhaps at its greatest in cases involving questions of public importance, where the

potential for undue interference with the other two branches of government is most acute.”).

15
 Therefore, because a justiciable controversy between the parties no longer exists

as to the State’s requests for temporary injunctive relief to require the local officials to “stop, or

order stopped, all enforcement efforts of [the local orders]” and “rescind the [local orders],” and

because neither of the asserted mootness exceptions applies here, we conclude that the appeal is

moot as to these claims for temporary relief.

Ripeness

We turn now to the issue of whether the State’s remaining claim seeking

injunctive relief to prevent the issuance of future orders presented a justiciable controversy at the

time the suit was filed. Through that claim, the State sought to preserve the status quo by an

injunction requiring the local officials “to refrain from issuing any new emergency orders more

restrictive than, or conflicting with, GA-32.” Put another way, the State sought to enjoin the

local officials from issuing future ultra vires orders.

A claim is not ripe when it involves “uncertain or contingent future events that

may not occur as anticipated, or indeed may not occur at all.” Patterson, 971 S.W.2d at 442

(quoting 13A Charles A. Wright et al., Federal Practice and Procedure § 3532, at 112 (2d ed.

1984)). 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., 852

S.W.2d at 444 (“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., 22 S.W.3d at 851-52 (explaining that courts consider whether facts are

sufficiently developed “so that an injury has occurred or is likely to occur, rather than being

16
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 the State’s claim for injunctive relief from future orders by the local

officials with these principles in mind. The State’s claim here is the epitome of an unripe

claim—its resolution depends 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, the local

officials had issued only the local orders at issue in this suit, which were limited in effect to New

Year’s weekend. The alleged harm to the State from any future similar orders that the State

might consider to be more restrictive than or in conflict with GA-32 is contingent on uncertain

future events—the local officials would have to issue additional orders and those orders would

have to be more restrictive than or in conflict with GA-32. Assuming without deciding that the

State could show harm from those hypothetical orders if they were ever issued, the State 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 the State “cannot show that a concrete injury has occurred, the ripeness

analysis would allow [it] to demonstrate a concrete injury by showing that it is likely to occur.”

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Id. (citing Patterson, 971 S.W.2d at 443). In this case, however, the only indication suggested

by the State of any threat of future orders is a statement Mayor Adler made to the press after the

trial court ruled in the local officials’ favor on New Year’s Eve and the Texas Supreme Court

subsequently directed us to enjoin the local orders: “We believe cities have the authority to react

to local conditions and to protect their residents when the [S]tate won’t.”7 But as in Patterson

and Waco Independent School District, the State’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 Meeting 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, the State

has not demonstrated that harm from a hypothetical future order was imminent at the time the

suit was filed; at most, it was contingent on another order actually being issued by the local

7
Chuck Lindell, Texas Supreme Court Blocks Austin, Travis County Dine-In Curfew,
Austin Am.-Statesman (Jan. 2, 2021), https://www.statesman.com/story/news/2020/12/31/judge-
hear-texas-ag-bid-overturn-austin-business-curfew/4099425001/, last visited March 4, 2021.
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officials and that order conflicting with GA-32. See id. Without a concrete injury or a likely

concrete injury, neither this Court nor the trial court has jurisdiction to consider this claim for

injunctive relief. See id. at 853; Patterson, 971 S.W.2d at 444. “The essence of the ripeness

doctrine is to avoid premature adjudication of just such a situation; to hold otherwise would be

the essence of an advisory opinion, advising what the law would be on a hypothetical set of

facts.” Patterson, 971 S.W.2d at 444.

Moreover, the Governor has issued GA-34, which supersedes GA-32. This

factual development demonstrates why the ripeness doctrine exists. See id. at 443 (explaining

that “waiting for cases’ timely factual development” allows “the proper development of the

state’s jurisprudence” and avoids intrusion by judicial branch on other branches’ policymaking).

Furthermore, even if the State’s claim seeking the prevention of future orders conflicting with

GA-32 had ever been ripe, the issuance of GA-34 has mooted it.

CONCLUSION

For these reasons, we conclude that no justiciable controversy exists as to the

State’s three claims for injunctive relief, and therefore, we lack jurisdiction over this

interlocutory appeal. Accordingly, we vacate the trial court’s order denying the temporary

injunction and dismiss the appeal for want of jurisdiction. See Texas Quarter Horse Ass’n v.

American Legion Dep’t of Tex., 496 S.W.3d 175, 182 (Tex. App.—Austin 2016, no pet.)

(quoting Texas Foundries v. International Moulders & Foundry Workers’ Union, 248 S.W.2d

460, 461 (Tex. 1952) (“The rule has long been established in this court that when a case becomes

moot on appeal, all previous orders are set aside by the appellate court and the case is

dismissed.”), and explaining reasoning for procedural rule that prior trial-court orders are vacated

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when case becomes moot on appeal); see also Tex. R. App. P. 43.2(f) (establishing that appellate

court may “dismiss the appeal”).

__________________________________________
Gisela D. Triana, Justice

Before Justices Goodwin, Triana, and Kelly
Dissenting opinion by Justice Goodwin

Dismissed for Want of Jurisdiction

Filed: April 8, 2021

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