Opinion issued June 29, 2021

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-20-00311-CV

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TEXAS DEPARTMENT OF CRIMINAL JUSTICE; TEXAS

DEPARTMENT OF PUBLIC SAFETY DIRECTOR STEVEN MCCRAW; 

AND TEXAS ATTORNEY GENERAL KEN PAXTON, Appellants

V.

MATTHEW BOVEE, Appellee

On Appeal from the 345th District Court

Travis County, Texas

Trial Court Case 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 TEX. GOV’T CODE

§ 73.001; Order Regarding Transfer of Cases from Courts of Appeals, Misc. Docket 

No. 20-9048 (Tex. Mar. 31, 2020). We aware unaware of any relevant conflict between 

the Third Court’s precedent and ours. See TEX. R. APP. P. 41.3.
2

This is an interlocutory appeal from the trial court’s orders denying a plea to 

the jurisdiction and granting an application for a temporary injunction in a suit 

challenging as unconstitutional the procedure by which the Texas Board of Pardons 

and Paroles (the Parole Board) determines whether to impose sex offender

conditions on a parolee not convicted 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 on parole, agreeing to 

undergo periodic evaluations by the Parole Board to determine whether to amend 

the conditions of his parole to include certain sex offender conditions. Upon his 

release, Bovee sued the Texas Department of Criminal Justice–Parole Division, 

Steven McCraw, in his official capacity as Director of the Texas Department of 

Public Safety, and Ken Paxton, in his official capacity as Attorney General 

(collectively, TDCJ) in Travis County district court, seeking (1) a declaratory 

judgment that the Parole Board’s procedure for determining whether to impose sex 

offender conditions on a parolee not convicted of a sex offense violates due process; 

(2) prospective injunctive relief from sex offender conditions imposed pursuant to 

the challenged procedure; and (3) damages for having been previously evaluated 

pursuant to the procedure.

TDCJ filed a plea to the jurisdiction, arguing that Bovee’s suit is a challenge 

to the conditions of his parole (and thus a challenge to his final felony conviction) 
3

and must therefore be brought as a habeas petition before the Court of Criminal 

Appeals, which has exclusive and original jurisdiction to grant postconviction 

habeas corpus relief from a final felony conviction under Article 11.07 of the Code 

of Criminal Procedure. Bovee responded that his suit was properly filed in Travis 

County district court under Section 2001.038 of the Government Code, which grants 

the court original jurisdiction over an action for declaratory judgment to determine 

the validity or applicability of an agency rule (in this case, the rule establishing the 

Parole Board’s challenged procedure) that interferes with or impairs, or threatens to 

interfere with or impair, a legal right or privilege.

In two orders, the trial court denied TDCJ’s plea to the jurisdiction and granted 

Bovee’s application for a temporary injunction. TDCJ then filed the instant appeal, 

requesting that we reverse these two orders and render judgment dismissing Bovee’s 

suit.

Before the appeal’s submission, however, Bovee was discharged from parole; 

he is thus no longer threatened by the prospective imposition of sex offender 

conditions, as the Parole Board has no power to impose such conditions on a 

discharged parolee. We therefore vacate the trial court’s orders denying the part of 

TDCJ’s plea to the jurisdiction seeking dismissal of Bovee’s declaratory judgment 

action and granting Bovee’s application for temporary injunction and dismiss 

TDCJ’s appeals from these orders as moot.
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As for Bovee’s remaining live claims for money damages, we hold these 

claims do not seek relief from his final felony conviction and therefore affirm the 

trial court’s order denying the part of TDCJ’s plea to the jurisdiction seeking

dismissal of these claims.

Background

In May 2010, Bovee pleaded guilty to injury of a child and was sentenced to 

10 years’ confinement. In December 2019, Bovee was released on parole. As a 

condition to his release, Bovee agreed to undergo periodic evaluations by the Parole 

Board to determine the “need for sex offender counseling.” The evaluations were to 

be conducted pursuant to Board Directive 148.300, which establishes the procedure 

by which the Parole Board determines whether to impose sex offender conditions on 

a parolee not convicted of a sex offense.

Shortly after his 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 injunctive 

relief from sex offender conditions imposed pursuant to Directive 148.300. Bovee 

also asserted various tort claims, seeking damages for having been previously 

evaluated pursuant to Directive 148.300.

TDCJ filed a plea to the jurisdiction, arguing that Bovee’s suit is a challenge 

to his final felony conviction and must therefore be brought as a habeas petition 
5

before the Court of Criminal Appeals, which has exclusive and original jurisdiction 

to grant postconviction habeas corpus relief from a final felony conviction under 

Article 11.07 of the Code of Criminal Procedure.

Bovee responded that his suit was properly filed in Travis County district 

court under Section 2001.038 of the Government Code, which grants the court 

original jurisdiction over an action for declaratory judgment to determine the validity 

or applicability of an agency rule (in this case, Directive 148.300, the rule 

establishing the Parole Board’s challenged procedure) that interferes with or impairs, 

or threatens to interfere with or impair, a legal right or privilege.

In March 2020, the trial court signed two orders. The first denied TDCJ’s plea 

to the jurisdiction. The second granted Bovee’s application for a temporary 

injunction and ordered that TDCJ be temporarily enjoined from requiring Bovee to 

register as a sex offender or to participate in sex offender therapy. 

TDCJ appeals.

Discussion

On appeal, TDCJ raises two issues. In its first issue, TDCJ argues that the trial 

court erred in denying its plea to the jurisdiction because Bovee’s suit constitutes a 

challenge to his final felony conviction and must therefore be brought as a habeas 

petition before the Court of Criminal Appeals, which has exclusive and original 

jurisdiction to grant postconviction habeas corpus relief from a final felony 
6

conviction. In its second issue, TDCJ argues that the trial court erred in granting 

Bovee’s application for a temporary injunction because an injunction against TDCJ 

is barred by sovereign immunity 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 dispositive jurisdictional issue. During the pendency of the appeal, in 

August 2020, Bovee was discharged from parole. Because Bovee 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 result, Bovee can 

no longer allege that Directive 148.300 interferes with or impairs, or threatens to 

interfere with or impair, his legal rights and privileges. TEX. GOV’T CODE

§ 2001.038(a) (permitting plaintiff to bring declaratory judgment action to determine 

validity of rule “if it is alleged that the rule or its threatened application interferes 

with or impairs, or threatens to interfere with or impair, a legal right or privilege of 

the plaintiff”). In light of this development, we must consider whether the issues 

presented for our review in this interlocutory appeal are moot. 

“A case is moot when either no ‘live’ controversy exists between the parties, 

or the parties have no legally cognizable interest in the outcome.” City of Krum v.

Rice, 543 S.W.3d 747, 749 (Tex. 2017) (per curiam). “Put simply, a case is moot 

when the court’s action on the merits cannot affect the parties’ rights or interests.” 
7

Id. (quoting Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012)). “A 

case may become moot at any time, including while on appeal.” Rice, 543 S.W.3d 

at 749–50. “When a case becomes moot, the parties no longer have standing, which 

requires the court to dismiss for lack of jurisdiction.” Id. at 750.

Here, the first issue presented is whether the trial court erred in denying 

TDCJ’s plea to the jurisdiction. To resolve this issue, we must determine whether 

jurisdiction over Bovee’s declaratory judgment action and tort claims rests in the 

Travis County district court or in the Court of Criminal Appeals. Whether we hold 

jurisdiction rests in the former court or in the latter, our holding will not affect 

Bovee’s rights and interests in his declaratory judgment action, since Bovee no 

longer has standing to bring the action in either court. Our holding will, however, 

affect Bovee’s rights and interests in his tort claims, since Bovee’s discharge from 

parole does not affect his standing to bring these claims. We hold that TDCJ’s first 

issue is partially moot. Specifically, the part of the issue challenging the trial court’s 

failure to dismiss Bovee’s declaratory judgment action is moot, but the part of the 

issue challenging the trial court’s failure to dismiss Bovee’s tort claims is not.

The second issue presented is whether the trial court erred in temporarily

enjoining TDCJ from imposing sex offender conditions on Bovee. Regardless of 

how we resolve the merits of this issue, our holding will not affect the parties’ rights 

and interests. Because Bovee has been discharged from parole, TDCJ cannot require 
8

Bovee to register as a sex offender, participate in sex offender therapy, or comply 

with any other sex offender condition. So assuming the trial court erred in issuing 

the injunction, a holding reversing the trial court and lifting the injunction will not 

award TDCJ any meaningful relief, and a holding affirming the trial court and 

leaving the injunction in place will not cause TDCJ any meaningful harm. We hold 

that TDCJ’s second issue is moot.

Neitherside disputes our mootness holdings. TDCJ nevertheless contends that 

even if these issues are moot, they fall under the “capable of repetition, yet evading 

review” exception to the mootness doctrine. We disagree.

“This exception applies only in rare circumstances.” Williams v. Lara, 52 

S.W.3d 171, 184 (Tex. 2001). For it to apply, two elements must be satisfied: (1) the 

challenged conduct must be of such short duration that it cannot be reviewed before 

the issue becomes moot and (2) there must be a reasonable expectation that the 

challenged conduct will occur again if the appeal is not considered. Id. Neither 

element is satisfied here.

To satisfy the evading-review element, TDCJ had to show that the average 

parolee who is subjected to the application of Directive 148.300 is discharged from 

parole before he can fully litigate the validity of the rule. If the average parolee 

remains on parole for many years, then the challenged conduct (the application of 

Directive 148.300) is not likely to evade review. But if the average parolee remains 
9

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 Judiciary for Fiscal Year 2019 at 116 (7.2 months average time 

between filing and disposition of civil appeal). Thus, to satisfy the evading-review 

requirement, TDCJ had to present evidence of the average time a parolee not 

convicted of a sex offense spends on parole. TDCJ has presented no such evidence. 

We hold TDCJ has failed to show that the moot issues raised in its appeal satisfy the 

evading-review element.

To satisfy the capable-of-repetition element, TDCJ had to show that there is a 

reasonable expectation that Directive 148.300 will be applied again, or threatened to 

be applied again, against Bovee. See Heckman v. Williamson Cty., 369 S.W.3d 137, 

164 (Tex. 2012) (“[T]he ‘capable of repetition’ exception generally applies only if 

the plaintiff can show that the claim is capable of repetition as to him.”). But to 

conclude there is a reasonable expectation that Directive 148.300 will be applied

against Bovee in the future would require us to assume Bovee will commit another 

crime (and thus once again be convicted, sentenced, and ultimately released on 

parole). The law doesn’t allow us to make such an assumption; instead, it requires 

us to “assume that [Bovee] will conduct [his] activities within the law and so avoid 

prosecution and conviction as well as exposure to the challenged course of conduct 

said to be followed by [TDCJ].” O’Shea v. Littleton, 414 U.S. 488, 497 (1974). Thus, 
10

TDCJ has not shown—indeed, cannot show—a reasonable expectation that the 

challenged conduct will occur again if the appeal is not considered. We hold TDCJ 

has failed to show that the moot issues satisfy the capable-of-repetition element.

We hold that we lack jurisdiction to review whether the trial court 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 temporarily enjoining TDCJ from imposing sex offender conditions on 

Bovee.

B. Plea to the jurisdiction

We now consider whether the trial court erred in denying the part of TDCJ’s 

plea seeking dismissal of Bovee’s remaining live claims for money damages.

1. Standard of review

The existence of 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); Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 8 (Tex. 

2015); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 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 when another court has continuing and exclusive jurisdiction. 

Jansen v. Fitzpatrick, 14 S.W.3d 426, 430–31 (Tex. App.—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, the plea challenges the plaintiff’s pleadings, rather than the 

existence of jurisdictional facts, we determine whether the plaintiff has alleged facts 

that affirmatively demonstrate the trial court’s jurisdiction to hear the suit. Houston

Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016). In 

doing so, we construe the pleadings liberally in the plaintiff’s favor and look to his 

intent. Id. If the pleadings affirmatively negate jurisdiction, we must reverse the trial 

court’s ruling and render judgment dismissing the suit (rather than remanding to 

afford the plaintiff an opportunity to amend). Id.

2. Analysis 

TDCJ argues that the trial court erred in denying its plea because jurisdiction 

over Bovee’s suit rests with the Court of Criminal Appeals, which has exclusive and 

original jurisdiction to grant postconviction habeas corpus relief from a final felony 

conviction under Article 11.07 of the Code of Criminal Procedure. Bovee responds 

that jurisdiction rests in Travis County district court, which has original jurisdiction 

over an action for declaratory judgment to determine the validity of a state agency 

rule under Section 2001.038 of the Government Code.

Because Bovee’s declaratory judgment action is moot, Section 2001.038 

cannot be the basis for the trial court’s jurisdiction over Bovee’s remaining live 
12

claims for money damages. But that does not necessarily mean the trial court erred 

in denying TDCJ’s plea, since trial courts are courts of general jurisdiction. See

GOV’T § 24.008. Thus, Bovee’s claims would presumably fall within the trial court’s 

general jurisdiction unless jurisdiction is conferred by law on another court. We 

therefore consider whether jurisdiction is conferred by Article 11.07 on the Court of 

Criminal Appeals.

Under Article 11.07, the Court of Criminal Appeals has exclusive and original 

jurisdiction to grant postconviction habeas corpus relief from a final felony 

conviction. See TEX. CODE CRIM. PROC. art. 11.07; Bd. of Pardons & Paroles 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 felony 

conviction” and “[j]urisdiction to grant post conviction habeas corpus relief on a 

final felony conviction rests exclusively with [the Court of Criminal Appeals].”); In

re McAfee, 53 S.W.3d 715, 717 (Tex. App.—Houston [1st Dist.] 2001, no pet.) 

(“[O]nly the Texas Court of Criminal Appeals has jurisdiction in final postconviction felony proceedings.”).

If a suit seeks relief from a final felony conviction, it must be brought as a 

habeas petition before the Court of Criminal Appeals. Keene, 910 S.W.2d at 483.

Thus, to determine whether jurisdiction over Bovee’s suit rests with the Court of 
13

Criminal Appeals, we must determine whether Bovee seeks relief from his final 

felony conviction.

In his remaining live claims, Bovee seeks damages for having been evaluated 

pursuant to Directive 148.300, which, as discussed, establishes the procedure by

which the Parole Board determines whether to impose sex offender conditions on a 

parolee not convicted of a sex offense. In other words, Bovee seeks damages arising 

from a procedure used to determine certain conditions of his parole.

For habeas purposes, parole is a form of confinement. Keene, 910 S.W.2d at 

483 (“Parole is a form of restraint which allows an applicant to pursue the [habeas 

corpus] remedies afforded under Article 11.07.”); Hoang v. State, 872 S.W.2d 694, 

697 (Tex. Crim. App. 1993) (“Our precedents make it clear that [parolees] are, 

indeed, confined for purposes of article 11.07.”); Ex parte Elliott, 746 S.W.2d 762, 

763 n.1 (Tex. Crim. App. 1988) (holding that “during his term of parole” parolee “is 

‘in custody’ and ‘confined’”); State v. Collazo, 264 S.W.3d 121, 126 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref’d) (“The terms ‘confinement’ and ‘restraint’

encompass . . . release on community supervision or parole.”).

And relief from confinement is relief from a conviction. See Wilkinson v.

Dotson, 544 U.S. 74, 81 (2005) (state prisoners must “use only habeas corpus (or 

similar state) remedies when they seek to invalidate the duration of their 

confinement”); Heck v. Humphrey, 512 U.S. 477, 486 (1994) (suit must be brought 
14

under habeas statute if it “necessarily require[s] the plaintiff to prove the 

unlawfulness 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 have been finally convicted of felonies in this State.”); see also Ex parte

Henry, WR-73,015-17, 2018 WL 5273939, at *1 (Tex. Crim. App. Oct. 24, 2018)

(order) (parolee properly brought suit seeking relief from imposition of sex offender 

conditions as habeas petition).

Thus, our analysis narrows: to determine whether jurisdiction over Bovee’s 

suit rests with the Court of Criminal Appeals, we must determine whether Bovee’s 

live claims seek relief from confinement.

The general rule is that a suit seeks relief from confinement if it challenges 

the fact or duration of confinement, but not if it merely challenges the rules, customs, 

and procedures affecting the conditions of confinement. See Cook v. Tex. Dep’t of

Criminal Justice Transitional Planning Dep’t, 37 F.3d 166, 168 (5th Cir. 1994)

(“The core issue in determining whether a prisoner must pursue habeas corpus relief 

rather than a civil rights action is to determine whether the prisoner challenges the 

‘fact or duration’ of his confinement or merely the rules, customs, and procedures

affecting ‘conditions’ of confinement.”).

There is, however, an important exception for the latter type of suits. If a suit 

challenges a rule, custom, or procedure affecting the conditions of confinement, and 
15

establishing the basis for the requested relief will necessarily demonstrate the 

invalidity of a condition imposed, the suit must be brought as a habeas petition, 

regardless of whether it actually seeks relief from the condition. See Wilkinson, 544 

U.S. at 81 (state prisoners must “use only habeas corpus (or similar state) remedies 

when they seek . . . a judicial determination that necessarily implies the unlawfulness 

of the State’s custody”); Heck, 512 U.S. at 487 (“[W]hen a state prisoner seeks 

damages in a § 1983 suit, the district court must consider whether a judgment in 

favor of the plaintiff would necessarily imply the invalidity of his conviction or 

sentence; if it would, the complaint must be dismissed unless the plaintiff can 

demonstrate that the conviction or sentence has already been invalidated.”).

But if establishing the basis for the requested relief will not necessarily 

demonstrate the invalidity of a condition imposed, the suit may be brought as a civil 

action in trial court (in the absence of some other bar to the suit). See Edwards v.

Balisok, 520 U.S. 641, 648 (1997) (inmate challenging procedures employed by state 

to deprive him of good-time credits had to bring claims for declaratory judgment and 

damages as habeas petition but could bring claim for prospective injunctive relief as 

civil action when establishing basis for declaration and damages would necessarily 

imply invalidity 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 any 
16

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

proceed.”); Cook, 37 F.3d at 168–69 (holding inmate’s challenge to parole board 

procedure cognizable under Section 1983 when decision in inmate’s favor would not 

entitle him to release); Wade v. Davis, CV H-19-0391, 2019 WL 2120520, at *3 

(S.D. Tex. May 15, 2019) (rejecting state’s argument that parolee’s suit seeking 

release from condition of parole “must be raised under § 1983 and that habeas review 

is improper”).

Applying the law here, we arrive at the dispositive issue: whether Bovee will 

necessarily demonstrate the invalidity of a condition of his parole by establishing the 

basis for the damages he seeks. If so, jurisdiction rests with the Court of Criminal

Appeals, and Bovee’s live claims must be dismissed. If not, Bovee’s live claims 

should be allowed to proceed in Travis County district court (in the absence of some 

other bar to suit).

We hold that, by establishing the basis for his requested relief, Bovee will not 

necessarily demonstrate the invalidity of a condition of his parole. This is because 

the Parole Board never actually imposed sex offender conditions on Bovee. 

If Bovee proves that Directive 148.300 is unconstitutional and that the Parole 

Board therefore violated his rights when it evaluated him to determine the need for 

sex offender conditions, he will necessarily prove the invalidity of any condition 

imposed on him pursuant to Directive 148.300. But the Parole Board never imposed 
17

a condition on Bovee pursuant to Directive 148.300. Thus, if Bovee establishes the 

basis for the damages he seeks, he will not necessarily demonstrate the invalidity of 

a condition of his parole. Indeed, under these facts, establishing the basis for Bovee’s

requested relief necessarily will not demonstrate the invalidity of a condition of 

Bovee’s parole. 

We hold the trial court did not err in denying the part of TDCJ’s plea to the 

jurisdiction seeking dismissal of Bovee’s claims for money damages.

Conclusion

We vacate the trial court’s orders denying the part of TDCJ’s plea to the 

jurisdiction seeking dismissal of Bovee’s declaratory judgment action and granting 

Bovee’s application for a temporary injunction and dismiss TDCJ’s appeals from 

these orders as moot. We affirm the trial court’s order denying the part of TDCJ’s 

plea to the jurisdiction seeking dismissal of Bovee’s claims for money damages. We 

remand the case for further proceedings consistent with our opinion.

Gordon Goodman

Justice

Panel consists of Justices Goodman, Landau, and Guerra.