Opinion issued June 29 , 2021

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 20
- 00311
- CV

——————————— TEXAS DEPARTMENT OF CRIMINAL JUSTICE; TE XA S DEPARTMENT OF PUBLIC SAFETY DIRECTOR STEVEN MCCRAW; AND TEXAS ATTORNEY GENERAL KE N PAXTON , Appella nt s V. MATTHEW BOVEE , Appell e e
On Appeal from the 345th District Court Travis County, Texas  Trial Court Ca se No. D
- 1
- GN
- 19
- 008849

O P I N I O N

 Per the Texas Supreme Court’s docket

- equalization powers, this appeal was transferred from the Third Court of Appeals to this court on April 9, 2020. See T EX
. G OV ’ T C ODE § 73.001; Order Regarding Tra nsfer of Cases from Courts of Appeals, Misc . Docket N o . 20

- 9048 (Tex. Mar. 31 , 20 20 ). We aware unaware of any relevant conflict between the Third Court’s precedent and ours. See T EX
. R. A PP
. P. 41.3.2

This is an interlocutory appeal from the trial court’s orders denying a plea to
the jurisd iction and granting an application for a temporary injunction in a suit challenging as unconstitutional the procedure by which the Texas Boa rd of Pardons and Pa r o le s (the Parole Board) determines whether to impose sex offender condition s on a parolee not c onvicted of a sex offense. Matthew Bovee was convicted of the felony offense of injury to a child, sentenced to 10 years’ confinement, and eventually released o n parole , agr eeing to undergo periodic eval u ations by the Parole Bo ard to determine whethe r to a mend the conditions of his parole to include certain sex offender conditions. Upon his release , Bovee sued the Texas Department of Criminal Justice

– Parole Divi s i on, Steven McCraw, in his official capacity as Director of the Texas Department of Public Safe t y, and Ken Paxton, in his o fficial capacity as Attorney General (collectively , T DCJ ) in Travis County distr ict cour t, s e eking (1) a declaratory judgment that the Pa role Board ’ s procedure for determining whether to impose sex offender conditions on a parole e n ot convicted of a sex offense violates due process ; (2) prospective injunctive relief from sex offender conditions imposed p u rsuant to the challenged procedure; and (3) damages for having been previously eva luated pursuant to the p ro ced ure. TDCJ f iled a plea to th e jurisdiction, arguing that Bovee’s suit is a challenge to the conditions of his parole (and thus a challenge to his f i n al felony conviction)3

and must therefore be brought as a habeas petition before the Court of Criminal Appeals, which h as exc lusive and original juri sdiction to grant postconviction habeas corpus relief from a final felony conviction under Article 11.07 o f the Code of Criminal Procedure. Bovee re sponded that his suit was properly filed in Travis County district court under Secti on 2001.038 of the G overnment Code, which grants the court o riginal jurisdiction over an action for declaratory judgment to determ i n e the validity or applicability of a n ag enc y rule (in this case, the rule establishing the Parole Board ’s challeng ed p rocedu re) that in terferes w ith or impairs , or threatens to interfere with or impair , a legal right or privilege

. I n t w o o r d e r s , t he trial court denied TDCJ ’s ple a to the jurisdiction and granted
Bovee ’s application for a temporary injunction

. TD CJ then fil ed the instant appeal , requesting that we reverse the se two orders and render judgment dismissing Bovee ’s suit. Before t he appeal ’ s submission, however, Bovee w as discharged from parol e ; he is thus no longer threate ne d by the prospective imposi tion of sex offender conditions, as the Parole Board has no power to impose such conditions on a discharged parol ee. We therefore v a c ate the trial court ’ s o rders denying th e part of
TDCJ ’s plea to the jurisdiction seeking dismissal of Bovee ’s declaratory j udgment
act ion and granting Bovee ’s application for temporary injunction and dismiss
TDCJ ’s appeals from these orders as moot.4

As f o r Bovee ’ s remaining live claims for mone y damages, we hold these claims do not seek relief from his final felony conviction and therefo re affirm the trial court ’s order denying the part of TDCJ ’s plea t o the jurisdiction seeking dismi ssal of these claims

. Background In May 2010, Bovee pleaded gu ilty to injury of a child and was sentenced to 10 years’ confi nement. In December 20 19, Bovee w as released on parole. As a condition to his release, Bovee agreed to undergo periodic evaluations by the Parole Board t o determine the “need for sex offender co unseling.” The evaluations were to be conducted pursuant to Bo ard Directive 148.300, which esta blishes the procedure by which the Parole Board determines whether to impose sex offender conditions on a parolee not c o n victed of a sex offense. Shortly after h is release, in January 2020, Bovee sued TDCJ in Travis County district court. In his petition, Bovee sought a declaratory judgment that Directive 148.300 violates due process and temporary and permanent prospective i njunctive relief from sex offender condi tions imposed pursuant to Directive 148.300. Bovee als o asserted various tort claims , seeking d amages for having been previously evaluated pursuant to Directive 148.300. TDCJ filed a plea to t he jurisdiction, ar g u ing that Bovee’s suit is a challenge
to his final felony conviction and must therefore be brought as a habeas petition5

before t he Court of Criminal Appeals, which has exclusive and original jurisdiction to grant postconviction habeas c orpus relief from a f inal felony conviction under Article 11.07 of the Code of Criminal Proce dure. Bovee responded that his suit was properly filed i n Travis County district
court under Section 2001.038 of the G overnment Code, which grants the court

o riginal jurisd i c tion over an action for declaratory judgmen t to determine the validity

o r applicability of a n agenc y rule (in this case, Directive 148.3 00 , the rul e establishing the Parole Board ’s challeng ed procedure) that interferes w ith or impairs , or threatens to int e rfere with or imp air , a legal right or priv ilege

. In March 2020, the trial court sign ed two orders. The first denied T DCJ’ s plea to the jurisdicti on. The s econd granted Bovee’s application for a tempora r y injunction and ordered that TDCJ be tempo rarily enjoined from requiring Bovee to register as a sex offender or to participate in sex off ender therapy. TDCJ appeals. Dis cussion On appeal, TDCJ rais es two is sues. In its first issue, TDCJ argues that the t rial court erred in denying its plea to the jurisdiction because Bovee’s suit constitutes a challenge to his final felony conviction and m ust therefore be brought as a hab eas peti tion before the Cour t of Crim inal Appeals, which has exclusive and original j urisdiction to gr ant postconviction habeas corpus relief from a final felony6

conviction. In its second issue, TDCJ argues that the trial c ourt erred in granting Bovee’s ap plicatio n for a temporary in junction because an injunction against TDCJ is barred by sovereign immunit y and Bovee failed to show a probable right to relief

. A. Mootness Before addressing the merits of TDCJ’s appeal, we address a preliminary and potentially di spositive jurisdictional iss ue. D urin g the pendency of the appeal, in August 2020, B o vee was discharge d from parole. Because Bov ee has been discharged, he is no longer required to undergo periodic evaluations by the Parole Board to determine the “need for sex offender counseling.” As a re sult , Bovee can no longer allege that Directive 148

. 300 interfe res with or impairs , or threatens to interfere with or impair , his legal rights and privileges. T EX
. G OV ’ T C ODE § 2001.038(a) (p ermitting plaintiff to bring declarat ory judgment action to determine validity of ru l e “ if it is alleg ed that the rule or its th reatened application interferes with or impairs, or threatens to interfere with or impair, a le gal right or privilege of the pla intiff”). In light of this de velopmen t, we must consider whe ther the issues presente d for our review i n this interlocutory appea l are moot. “A case is moot when either no ‘live’ controversy exists between the parties,

or t he parties have no legally cogniz able interest in the outcome .” City o f Krum v. Rice , 543 S.W .3d 747, 749 (Tex. 2017 ) (per curiam). “P ut simply, a case is moot when the court’s action on the merits cannot affect the parties’ rights or interests.”7

Id. (quo ting Heckman v. Williamson Cty. , 369 S.W.3d 137, 162 (Tex. 20 12)). “A case may become moot at any time, including whi l e on appeal.” Ric e , 543 S.W.3d at 749

– 50. “ When a case becomes moot, the parties no longer have standing, which requires the court to dism iss for lack of jurisdiction.” Id

. at 750. Here, the first issue pres ented is whether the tri al court erred in denyi n g TDCJ’s plea to the jurisdiction. To resol ve this issue, we must determine whether jurisdiction over Bovee’s declaratory judgment action and tort claims rests in the
Trav is County district court or in the Co urt of Criminal Appeals. W hether we hold jurisd i ction rests in th e former court or in the l atter, our holding will not affect Bovee’s rights and interests in his declaratory judgment act ion, since Bovee no longer has st anding to bring the action in either court. Our holding will, however, affect Bovee’ s rights and inter ests in his tort claims, s ince Bovee’s discharge from parole does not affect his standing to bring these claims. We hold that TDCJ’s first issue is partia lly moot. Specifically, t he part of t he issu e challenging the trial court’s
failure t o dismiss Bovee’s declaratory judgment acti on is moot, but the part of the issue challenging the trial court’s failure to dismiss Bovee’s tort claims is not. The second is sue presented is whether the trial co urt erred in temporarily enjoining TDCJ from im p osing sex offende r conditions on Bovee. Reg ardless of how we resolve the merits of th is issue, our holding will not affect the parties’ ri ghts and interests. B ecause Bovee has been discharged from parole, TDCJ cannot require8

Bovee t o register as a sex off e nder, participate in sex offender therapy, or comply with any other sex offender condition. So assuming the trial court erred in issuing
t he injunction, a hold ing reversin g the trial court and lifting the inju nction will not award T DCJ any meanin gful reli e f, and a holding affirming the trial court and leaving the injunction in place will not cause TDCJ any mean ingful harm. We hold that TDCJ’ s second issue is moot. Neither s ide disputes our mootness holdings

. TD CJ nevertheless contend s that even if the se is s ues are moot, the y fall under the “capable of repetition, yet evading review” exception to the mootness doctrine. We disagree.

“ This excep tion applies only in rare circum s tances.” Williams v. Lara , 52 S.W.3d 1 71, 184 (Tex. 2001). Fo r it to apply, two elem e nts must be satis fied: (1) the challenged c onduct must be of such short duration that it cannot be reviewed before the issue becomes moot and (2) there must be a reasonab l e expectation that the challenged cond uct will occur again if the appeal is not cons i dered. Id. Neithe r element is satisfied her e. To satisfy the evading

- review element, TDCJ had to show that the average parolee who is subj ected to the application of Direc tive 148.300 is discharged from parole before he can fully li tigate the validity of t he rule. If the a verage parolee remains on parole for many years, then the challenged conduct (the application of Direc tive 148.300) is no t likely to evade review. But if the average parolee remains9

on parole for a much shorter time , say, less than a year (as was the case here), then the challenged conduct is likely to evade review. See, e.g. , Annual Statistical Report for the Texas Judiciar y for Fiscal Year 2019 at 116 (7. 2 months average time between filing a nd disposition of civil appeal). Thus, to sati s fy the evading

- re view requirement, TDCJ had to present evidence of the average time a parolee not convicted of a sex of

fense spends on par ole. TDCJ has presented no such e vidence. We hold TDCJ has failed to sh ow that the moot issues r aised in its appeal s a tisfy the evading

- review element. To satisf y the capable

- of

- repetition element, TDCJ had to show that there is a reasonable expectation th a t Directive 148.300 will be appl ied again , or threatened to be applied again , against Bovee

. See Heckman v. Williams o n C ty. , 369 S.W.3 d 137, 164 (Tex. 2012) (“[ T] he ‘capable of repetition’ exception generally applies only if the plaintiff can show that t h e claim is capable of repetition as to him. ”). But to conclude there is a reasonable expec tati on that Directive 148.3 0 0 will be applied against Bovee in the futu re would require us to assume Bovee will commit another crime (and thus once again be convicted , sentenced, and ultimately relea sed on parole). The law doesn’t allow us to make such an assu mption; instead, it req u ires us to “ assum e that [Bovee] will conduc t [his] activities within the law and so avoid prosecution and conviction as well as exp osure t o the challenged course of conduc t said to be followed by [ TDCJ ].” O’Shea v. Littleton , 41 4 U. S. 488, 497 (1974). Thu s ,10

TDCJ has not sh own

— indeed, cannot show

— a reasonable expectation that the challenged conduct will occur again if the app eal is not consid ered. We hold TDCJ has failed to show that the moot issues satisfy the capable

- of

- repetiti on e lement. We hold that we lack jurisdiction to r eview whether the trial co urt erred in denying the part of TDCJ’s plea seeking dismissal of Bovee’s declaratory judgment
action. We further hold that we lack jurisdiction to review whether the trial court erred in te mporarily enjoining TDCJ fr o m imposing sex of fender conditions on
Bovee

. B. Plea to the jurisdiction We now consider whether the trial court er red in denying the part o f TDCJ’s plea seeking d ismissal of Bovee’s remaining live claims for money damages. 1. Standard of review The existence o f subject

- matter jurisdiction is a question of law that can be challenged by a plea to the jurisdiction. Harris Cty. v. Annab , 547 S.W.3d 609, 612 (Tex. 2018); K

lumb v. Houston Mun. Emps. Pension Sys. , 458 S.W.3d 1, 8 (Tex

. 2015); Tex. Dep’t o

f Parks & Wi ldl ife v. Miranda , 1 33 S.W.3d 217, 232 (Tex. 2004). Thus, a plea to the jurisdiction is the proper procedural device for challenging a suit brought in one court w hen another court has continuing and exclusive jurisdiction.
Jansen v. Fit

zpatrick , 14 S.W.3d 426 , 430

– 31 (Tex. Ap p.

— Houston [14th Dist.]11

2000, no pet.)

. We review the trial court’s denial of such a plea de novo. Annab , 547 S.W.3d at 612. When, as here, th e plea challenges the plaintiff’s pleadings , rather than the existence of jurisdictional facts , we determine whet her the plaintiff has al leged facts that affi rmatively demonstrate the trial court ’s jurisdic tion to hear the suit

. Hou ston Belt & Terminal Ry

. Co. v. City of Houston , 487 S.W.3d 154, 160 (Tex. 2016)

. In doing so, w e construe the pleadi ngs liberally in the plaintiff ’s favor and l ook to his intent. Id. If the pleadings affirmatively negate jurisdiction, we must reverse the tria l court’s ruling an d render judgment dismissing the suit (rather than remanding t o afford th e plaintiff an opport uni ty to amend)

. Id. 2. Analysis TDCJ argues t hat the trial court erred in denying its plea be cause j urisdic t i on over Bovee ’s suit rests with the Court of Criminal Appeals , which has exclusive and original jurisdic tion to gran t postconviction habeas corpus r eli ef from a final f elony conviction under A rticle 11.07 of the Code of Criminal Procedure

. Bovee responds that juri sdiction rests in Travi s County district court , which has original juri sdiction

over a n action for declarato ry judgment to determine the val idi ty of a state age ncy rule under Section 2 001.038 of the Government Code

. Because Bovee ’s declaratory judgment action is moot, Section 20 01.038 cannot be the ba sis for the trial court ’s jurisdi ction over Bovee ’ s remaining live12

claims for money damages

. B ut tha t does not necessar ily mean the trial court erred in denying TDCJ ’s plea , since trial c ourts are courts of general ju risdiction. See G OV ’ T § 24.008. Thus, B ovee ’ s claim s would presumably fall within the trial cour t ’ s
g eneral jurisdi ction un les s jurisdiction is conferred by law on ano ther court. We therefo re consider whether jur i sdiction is conferred by Article 11.07 o n the Cou rt of Criminal Appeals. Under Art icle 11.07 , the Court of Criminal Appeals has exclusive and or iginal jurisdiction to gr ant postconviction habeas corpus relief f rom a final felony conviction

. See T EX
. C ODE C RIM
. P ROC
. art. 11.07; Bd. of Pardons & Paro les ex rel.
Keene v. Court of Appeals for Eighth Dist. , 910 S.W.2d 481, 483 (Tex. Crim. App. 1995) ( “Article 11.07 provides the exclusive means to challenge a final felo ny conviction ” and “ [

j ] urisdict ion to grant post conviction habeas corpus relief o n a final felony conviction rests exclusive ly with [ the Court of Criminal A ppeals ] .”); In

re McAfee , 53 S .W.3d 715, 717 (Tex. App.

— Houston [1s t Dist.] 2001, no pet.) (“ [O]nly the Texas Court of Criminal Appeals has jurisdiction in final post

conviction felony pr oceedings.”).
I f a suit seeks relief fro m a final felony conviction , it must be brough t as a h ab ea s petition before the Court of Cr imin al Appeals. Keene , 910 S.W.2d at 483. Thus, to determine whether juri sdic tion over Bovee ’s suit rests with the Court of13

Criminal Appeals, we must determine w heth er Bovee seeks relief from his final felony conviction

. In his remaining live claims , Bovee see k s damages for having been evaluated pursuant to Directive 1 48.300 , which, as discussed, establishes the procedure by wh ich the Parole Board determines wheth er t o impose sex offender conditions on a
paro lee not convicte d of a sex offense

. In oth er words, B ovee seeks dama ges arising from a procedure used to determine certain conditions of his parole. For habeas purposes, p ar ole is a form of confinement

. Keene , 910 S.W.2d at 483 (“ Parole is a form of restraint which allows an applican t to pursue the [habeas

c orpus] remedies afforded under Article 11.07.”) ; Hoang v. State , 872 S.W.2d 694, 697 (Tex. Crim. App. 1993) (“ Our pre ced ents make it clear that [parolees] ar e, i ndeed, confined for purposes of artic le 11.07.”); Ex parte Elliott , 746 S.W.2d 762,
763 n.1 (Tex. C rim. App. 1988) (holding that “d uring hi s term of parole” parolee “is ‘in custody’ and ‘confined’”) ; State v. Collazo , 2 64 S.W.3d 121, 126 (Tex. App.

— Hou ston [1s t Dist.] 2007, pet. ref’d) (“ The term s ‘ confinement ’ a nd ‘ restrain t ’
encompass . . . release on community supervision or parole

. ”).
A nd r elief from confinement is relief from a conviction

. See Wilkinson v. Dotson , 544 U.S. 74, 81 (2005) (state pri soners must “ use only hab eas corpus (or similar state) remedie s when they seek to invalid ate the duration of their confinement ”); H

eck v. Hump hre y , 512 U.S. 477, 486 (1994) (suit must be brought14

und er habeas statute if it “necessarily require[s] the plaintiff to prove the unlawful ness of his conviction or confinement ” ) ; Hoang , 872 S .W.2d at 697 ( “[T] his Court alone among the courts of Texas has authority to release from confinement persons who ha v e b een fina lly convicted of fel onies in this State. ”) ; see also Ex parte Henry , WR

- 73,015

- 17, 2018 WL 5273939, at *1 (Tex. Crim. App. Oct. 2 4, 2018) (order) (parol ee properl y brought s uit seeking relief from imposition of sex offender conditions as h abeas petiti on )

. Thus, our analysis narrows: to determine whether juri sdic tion over Bovee ’s suit res ts with the Court of Criminal Appeals, we must determine whether Bovee ’ s live cla i ms seek relief from confinement

. The ge neral rule is that a s uit seeks relief fr om confinement if i t challenges the fact or durati on of confi nem ent, but not if it merely chall enges the rules , customs,

an d procedures affecting the conditions of confinement. See Cook v. Tex. Dep ’ t of Criminal Jus tice Transitional Planning Dep ’ t , 37 F.3d 166, 168 (5th Cir. 1994) ( “ The cor e issue in determining whethe r a prisoner must pursue habeas corpus relief rather than a civil rights action is to determine whether the prisoner challenges the

‘ fact or duratio n ’ of his confinement or merely the rules, c ustoms, and procedures affecting ‘ c onditions ’ of confinement. ” )

. There is, however, an importa n t exception for the latter t ype of suits

. If a suit challenges a rule, custom, or proce dure affecting the conditions of confinement, and15

establishing the basis f

or the requested relief w ill necessarily demonstrate the invalid ity of a condition imposed , the suit must be bro ught as a h abeas petition , regardless of whether it actually seek s relief f rom th e condition

. See W ilkins on , 544 U.S. at 81 (state prisoners mu st “ use on ly habeas corpus (or similar state) remedies when they seek

. . . a judicial determin ation that necessarily implie s th e unlawf ulness of the State ’ s custody ”) ; Heck , 512 U.S. at 487 ( “[W] hen a state pris oner s eeks damages in a § 1983 suit, the dis trict court must consider whether a judgment in favor of the pla intiff would necessarily imply the invalidity of his convict ion or sentence; if it would, the complaint must be dismissed unl ess the plaintiff can d emonst rate that the co nviction or sentence h as already been invalidated. ”). But if establishing the basis fo r the requested relief will not necessarily demonstrate t he invalidity of a condition imposed, the suit may be brought as a civil action in trial co urt ( i n the absence of some other bar to the suit). See Edward s v. Balisok , 520 U.S. 641, 64 8 (1997) (inmate challenging procedures employe d by state
to deprive him of good

- t ime credits had to bring claims for declaratory judgment and damages as habeas pet ition but could bring c laim for prospective injunctiv e relief as civil action when e stablis hing basis for de claration and damages would nec essarily imply invali dity of deprivation of good

- time credits, but establishing basis for injunction would not) ; Heck , 512 U.S. at 487 ( “[I] f the district court determines that the plaintiff ’ s action, even if successful, will not demonstrate the invalidity of any16

outstanding criminal judgment against the plaintiff, the action should be allowed to proceed

. ” ) ; Cook , 37 F.3 d at 1 68

– 69 (holding inmate ’s challenge to p arole board procedure cognizable un der Section 1983 wh en decisio n in inmate ’s favor would not

e ntitle him to release) ; Wade v. Davis , CV H

- 19

- 0391, 2019 WL 2120520, at *3 (S.D. Tex. May 15, 201 9) ( rejecting state ’s arg umen t that parol ee ’s suit seeking

re le ase from condition of parole “ must be raised under § 1983 and th at habeas review is improper ”). Applying the law here, we ar rive at the dispositive issue: whether Bovee will necessarily demonstrate the invalidity of a condition of his parole by establishin g the basis for the damages he seek s . If so, jurisdiction rests with the Court of Criminal Appe als, and B ovee ’s live claims must be dismis sed . If not, Bovee ’s live claims should be allowed to proceed in Travis Co unty di strict court ( in the absence of some other bar to suit )

. We hold that , by establi shing the basis for his requested relief, Bovee wil l not necessarily demonstrate the invalidity of a condition of his parole

. This is because the Parole Board never act ually i mposed sex offender conditions on Bov ee. If Bovee proves that Directive 148.300 is unconstitutional and that the Parole Board there fore violat ed his rights when it evaluated him to determine the n eed for sex offender conditions , he wil l necessarily prove the invalidity of any condition impos ed on him pursuant to Directive 148.300. But the Parole Board ne ver imposed17

a condition on Bove e pursuant to Directive 148.3 00. Thus, i f Bovee establishes the basis for the damages he seeks, he will not necessari ly demo nstrate the invalidity of a condition of his parole. I n deed, under the se facts, e stablis hing the basi s for Bovee ’s requested rel ief necessarily will not demonstr ate the invalidity of a condition of
B ovee ’s parole

. We hold the trial court did not er r in de nying the part of TDCJ ’s plea to the jurisdiction seeking dismissal of Bovee ’s claims for money damag es. Conclusion We vacate the tr ial court ’ s orders denying th e part of TDCJ ’s plea to the jurisdiction seeking dismis sal of Bovee ’s declaratory judgm ent act ion and g ranting
Bovee ’s application for a temporary injunction and dismiss TDCJ ’s appeals from
these orders as m oot

. We affirm the trial court ’s order denying t he part of TDCJ ’s plea t o the jurisdiction seeking dismi ssal of Bovee ’s claims for money damage s. We

rem and the case for further pro ceedings consis tent with our opinion.

Gordon Goodman Justice Panel consists of Justices Goodman, Landau, a nd Guerra.