### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 18
- 00566
- CV

Chisholm Trail SUD Stakeholders Group, Appellant

v. The Chisholm Trail Special Utility District; Delton Robinson ; C.E. ( “ Ed ” ) Pastor; Mike Sweeney; James Pletcher; Pat Gower; Rober t Kostka, David Maserang, Gary Goodman, and Robert Johnson, Jr., in their Official Capacities as Directors of the Chisholm Trail Special Utility District ; and the City of Georgetown , Texas , Appellee s

FROM THE 419TH DISTR ICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 15
- 003337, THE HONORABL E JAN SOIFER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Chisholm Trail SUD Stakeholders Group appeals from the trial court’s order of final summary judgment dismissing the Stakeholders Group’s claims a gainst appell ees Chi sholm Trail Special Utility District , its directors , and the City of Georgetown with prejudice. Appell e es have filed a n opposed motion to dismiss this appeal as moot

. Because th is appeal has bec o me
moot , we gr ant appellees ’ motion, set aside the t rial co urt’s order of final summary judgment , and di smiss this case for lack of subject matter jurisdiction

. Background The Stakeholders Group ’s suit pri marily complain s about the a sset t ransfer and

u tility s ystem c onsolidation a greement and amendmen ts betw een the City and the Dist rict2

(Agreement)

. See Chisholm Trail SUD Stakeholders Grp. v. Chis h olm Trail Special Util

. Dist ., No. 03

- 16

- 00214

- CV , 2017 Tex. App. LEXIS 4285 , at *1

– 7 (Tex. App.

— Austin May 11, 2017, pet. denied) (mem. op.) (describing ba ck groun d of parties ’ dispute)

. 1

In the Stakeholders Group ’ s last

- filed petition , the Third Amended Petition, t he Stakeholders Group alleged that the Dis trict and its directors had viola t ed the Texas Open Meetings Act (TOMA) concerning the Agreement and tra nsf er of assets and liabilities between the D istrict and the City

. 2 See ge nerally Tex. Gov’t Code §§ 551.001

– .146

. T he Sta keho lders
G roup sought declaration s that t he Distric t and its directors had violat ed TOMA and thus that the Agreement and transf

er b etw een the District and the City w ere void and an injunc tion to enjoin

a nd prev ent the District and its directors from continuing to violate TOMA. See id. § § 551.14 1 (stating that “ a ction taken by a governmental body in violation of this chapte r is vo idab le ” ) , .142 (authori zing “ interested person ” to “ bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of this ch apter by me mbers of a governmental body ” ).

1 The Public Utility Commission and it s commissioners were parties in the under lying case , but the clai ms asserted a gain st the m have been d ismissed. See C hisholm Trail SUD Stakeholders Grp. v. Chisolm Trail Special Util

. Dist ., No. 03

- 16

- 00214

- CV, 2017 Tex. App. LEXIS 4285, at *22

– 23 , 26 (Tex . App.

— Austin May 11, 2017, pet. denied) (me m. op.) ( concluding t hat Sta keho ld ers Gro up faile d to est ablish trial court ’ s jur isdiction over its plea ded claims against Public Utility C o mmission and its commissioners and affirming trial court ’ s order grantin g plea to jurisdiction as to t hose claims )

.

2 In its first issue , t he Stake holde r s Group argues tha t the trial court abused its discretion by striking t he Th ird Amended Petition. Although w e con sider the Third Amended Petit ion for pu rposes of resolving appell ees ’ motion to dismiss, o ur analysis wou ld not change if we con sidered the S e con d Amended Pet it ion because t he allegations and relief sought in the petitions are substantively the same for p urpos es of this analysis

.3 Appellees ’ Motion to Dismiss Appelle es ’ mot ion to dismiss is based on the moot ness doctrine. The mootness doct rine prevents court s from render i ng adv isory opinions. Valley Baptist M ed. Ctr. v. Gonzalez , 3 3 S.W.3d 821 , 822 (Tex. 2000)

. A case becomes moot if the controversy between the par ties

ce ase s to e xist at any sta ge of the litigation, including the appeal. City of Krum v. Rice , 543 S.W.3d 74 7, 749

– 50 (Tex. 201 7); In re Kellogg Brown & Root, Inc. , 16 6 S.W.3d 732 , 737 (Tex. 2005) (or ig. proceeding) ; Williams v. Lara , 52 S.W.3d 171, 184 (Tex. 200 1)

. “ Put simply, a case is moot when the court ’ s action on the merits cannot affect the parties ’ rights or interests. ” Heckman v. Williamson County , 369 S.W.3d 137, 162 (Tex. 20 12) ; see Mee ker v. Tarrant County Coll

. Dist. , 317 S.W.3 d 754, 759 (Tex. App.

— Fort Worth 2010, pet. denied ) ( “ An issue may become moot when a party seeks a ruling on some matter that, when rendered, would not have any practical legal effect on a then

- exi sting co ntro v ersy . ” ); Texas Health Care Info. Council v. Seton Health Plan Inc. , 9 4 S.W.3d 841, 846

– 47 (Tex. App.

— Austin 2002, pet. denied) (explaining that case becomes moot “ when one seeks a judgment on some matt er which, when rende red for any reason, ca nnot hav e an y practical legal effect on a then

- existing controversy ” )

. If a co ntroversy ce ases to ex ist , the case becomes moot, and the parties lose standing to maintain their claims. Lara , 52 S.W.3d at 184

. When a case become s moot, “ the

co urt must vac ate any orde r or judgment previously issued and dismiss the case for want of ju risdiction. ” Heckman , 369 S.W.3d at 162 ; see Rice , 543 S.W.3d at 750

.

In their m oti on to dismiss, a ppellees argue that “ there is no requ ested relief in this matter that can b e grante d. ” App ellees re prese nt that t he Dis tri ct has been dissolved p urs ua nt to
sect ion 7219 of the Texas S pecial District Loca l Laws , which authorize d the District after August 31, 2019, regardless of the status of pending litigation , to vote to dissolv e a nd t ransfer its4

oper ations, management , asset s , and liabilities to the City

. See Tex. Spec. Dist. Code § § 7219.051 (b) (a uthorizing District to vote on issue of dissolutio n after August 31, 2019 , regardless of pending litig ation ) , .053 (pro vi ding for Ci t y ’ s assumption of District ’ s ope rations,
manageme nt, assets, and lia bilit ies u pon District ’ s dissolu tion p ursuant to statu te)

. Appellees attached a certified copy of the Order of Dissolution to their motion. The o rder r eflects that t he District ’ s Boa rd o f D irectors h eld a public hearing o n September 30, 2019, wherein the y

un a nimou sly voted to adopt t he order , dissol v ing the District and transfer r ing its operations, management, assets , and liabilit ies to the City on October 8, 2019 , thereby effectuating the
trans fer of assets and liabi lities that also were transferred in t he Ag reeme nt

. Id. § § 7219. 0 52 ( describing required hearing and order to dissolve District),

. 053 ( stat in g that on date that D is trict dissolved, City as sume s control of operations and “ all righ ts , duties, and o blig a tions of the [D] istrict ” ).

Also atta ch ed to appel lees ’ motion to dis m iss is a copy of the Public U tilit y C o mmission ’ s final order that approved the application to transfer the District ’ s cert ified
water

- service area to t he City . T hi s final order is no longer subject to appeal. See Fisher

v . Publi c Util

. Comm’n of Texas , 549 S.W.3 d 178, 180 (Tex. App.

— Austin 2018, no pet.) (affirming judgment granting pleas to jurisdiction in suit challenging “ j udicial review of a Commissio n o rder approving t he transfer of Chish olm’s certificated water

- servi ce area to Ge org etown ” )

. B ecause t he Dis trict ’ s B oard adopted the Order of Disso lution after the process for transferring the D istrict ’ s certificate of conveni ence and necessity to the C ity was c ompl ete , t he Order of Dissolut ion also is “ final and may not b e appealed in any manner . ” See Tex. Sp ec. Dist. Code § 7219.054 (stating that “ board ’ s order dissolving the [D] istrict is final and may not be appealed in any ma nner . . . if the bo ard ’ s order is entered a fter the compl etion of the process5

to transfer t he [D] istrict ’ s cert ificate of convenie nce and necess ity , including any necessary approval of a state agency ” )

.

The Sta keholders Group has filed a response to appellees ’ motion to dismiss arguing tha t the mo tion is not pr oper ly before thi s C ourt beca use the m otion i s “ unve rified ” and relies on evid ence that is not containe d in the trial court record. T his C o urt , however, may consider evidence that is not contained in the trial cou rt record for juri sdictional purposes

. See Tex. Gov ’ t Code § 22.220 (c) ( “ Each c ourt of appeal s may, on affidavit or otherwise, as the court may determine, ascertain the matters of fact that are necessary to the prope r exercise of its jurisdiction

. ” ); Richards v. Richards , 371 S. W.3d 412, 414 (Tex. App.

— Hou ston [1st Dist.] 2012, no pe t.) (no ting th at appellate court may consider affidavits and other evidence when considering motion to dismiss for lack of jurisdiction) ; see also Meeker , 317 S.W.3d at 759 (explaining that cour t could only de term ine whether appeal was moot by con sid ering e vid enc e of

ma tters occur ring subsequent to trial court ’ s order because “ [m]oot ness is a m atter that ordinarily arises after the rendition of the judgme nt or order appe aled from ” and “ for that purpose alone, ”

con s idering evid e n ce attached to motion t o di sm i ss)

. We a lso observe that t he motion complied with rule 10.2 of the Texas Rules of Appel late Procedure to the ext ent that th is rule required the motion to be verified

. See Tex. R. Ap p. P. 10.2 ( stat ing that motion must be ver ifi ed when it depends on f

ac ts t hat are no t in re cord , not w ithin tr ial court ’ s knowl edge in its official capacity, and not within the person al knowl edge of attorney s igning mo tion , “ in which case the moti on must be sup ported by affidavit or other satisfactory eviden ce ” )

. A ppe llees ’ eviden ce incl uded a

sworn certificate with the Order of Dissolution in which the Secretary of the District ’ s Board certified the Order of Dissol ution , an d the Commission ’ s fina l order is within this Court ’ s knowl edge

. See Fisher , 549 S.W.3 d at 180

.6 The Sta keh olders Group also attacks the Order of Dissolution itself , questioning its validity based o n the location of the board meeting and the n otice that was provided , and the consti tutionality of section 7219.053 of the T exas S pecial District L oca l Laws , arguing that i t violates Art icle III, section 56 of the Texas Constit ution and the Distric t ’ s resident s ’ rights to
access Texas courts

. Among its arguments, the Stakeh olders Group a rgues that : (i) “ this Court would need t o cond uct a hearing , re ceive evide nce a n d consid er the validity of the O rder, including proper notice a nd the constitutionality of the statute under which it was adopted ” ; (ii) the Sta keholders Group “ would be entitl ed to obtain significant discove ry on the is sue, including whet her t he not ice wa s proper ly published and posted, whether notice was provided to the TCEQ and what ju stifi cation t he board made for holding the meeting outside the district ” ; (iii) the O rder “ c reates a new controversy con cerning fa cts no t establ ished in th e rec ord wh ich wi ll likel y involve complex litigation ” ; and (iv) “ ruling that th e controversy is now moot would violate the fundamental foundation of [TOMA ]. ”

The Stakeholders Group , howe ver, has not cited, and we have not found, a utho rity that would all o w the Sta keholde rs G roup in this appeal to collateral ly attac k the Order of Dissolution , which is final and may not be appealed

. See Tex. Spec. Dist. Code § 7219.054 (stating that o rder dis solving district is “ final and may not be appeal ed in any man ner . . . i f the boar d ’ s order is entered after the c ompletion of the proc ess to transfer the district ’ s certificate of convenience and necessity, including any necessary approval of a st ate agency ” ) ; see a lso
Br owning v. Prostok , 165 S.W.3d 336, 346 (Tex. 2005 ) ( “ A collateral att ack is an attempt to avoid t he binding force of a judgment in a proceeding not initiated for the purpose of correcting, modifying, or vacating the judgment, but i n order to obtain some sp ecific relief which the judgment currently s tands as a bar agains t. ” ) ; Chocolate Bayou Water Co. & Sand Supply7

v. Texa s Na t
. Res. Conservation Comm ’ n , 124 S.W.3d 844, 853 (Tex. App.

— Austin 2003, pet. denied) ( explaining that col lateral attacks upon agency order may be maintained on sole ground th at order is void either b ecause it shows on its face that agency exceeded its authority or it was procured by extrinsic fraud)

.

After the Distr ict ’ s B oard adopted the Order of Dissolu t ion , a ny ruling by this
Court granting t he Stakeholders Group ’ s requ ested de c la rat ions

— that t h e Distr ict and its directors violated TOMA and thus th at the “ agreement and transfer ” between the District and the
C i ty “ is void ”

— would have no effect because the challenged transfer between the District and the C i ty has taken pla ce pursu ant to t he O rder o f Dissolution

. See Bexar Metro. Water Dist.

v. City o f Bulverde , 234 S.W.3d 126, 130

- 31 (Tex. App.

— Austin 2007, no pet.) ( explaining that

“ declaratory j udgment a ction does not vest a court with jurisdiction ‘ to pass upon hypothet ical or

con tingent situat i ons, or to determine questions not then essential to t he decision of an actual controversy ’ ” ( quoting Firemen ’ s Ins. v. Burch , 442 S.W.2d 3 31, 333 (Tex. 1 968) ) )

. Further, any rulin g gran ting the Stakeholders Group ’ s requ ested relief to e njo in the Dis tric t and its directors from future TO MA violations wou ld h ave no effect

. A f uture TOMA violation is not possible because , pursu ant to the O rder of Dis solution, the D istrict ha s been dis solved and has no directors

. Thu s, we hold t hat the Sta ke hold ers Group ’s claims in i ts T hird A m ended P etition ar e moot in light of the Order of Dissolution.8 Con c l usion
Be ca u se the Sta keholders Group ’ s c laims h ave be come moot, we lack jurisdiction over th is appeal

. 3 Accordingl y, we grant ap p el lees ’ mo ti on t o di smiss, vacate t he trial court ’ s order of final summary judgmen t , and di smiss this case for lack of jurisdiction.

__________________________________________ Melis sa Goodwin, Justice Before Justices Go odwin, Baker, and Smith Vacated and Dismissed Filed: March 18, 2020

3 Because we conclude that the Stakeholder s Group ’ s claims are moot, w e also concl ude that it s requ est f

or att orney ’ s fees in the Th ir d Am ended Petition is moo t. T he Stakeholders Group request ed attorney ’s fe es pur suant to section 37 .0 09 of the Uni form Declaratory Judgments Ac t , see Te x. Civ. Prac. & Rem. Code § 37.0 09 (au thorizing award of attorney ’ s fee s
“ a s ar e equ i table and j ust ” ) , bu t its underlying substantive claim was based on alleged TOMA violation s and only a prevail ing party may re cover attorney ’s fees in an action based on a TOMA violat ion , s ee Tex. Go v ’t C ode § 551.142 (a), (b) (aut horizing cour t to as sess c o sts and reasonabl e attorn ey ’s fee s “ i ncurred by a plain tiff or defendant who s ubstantially prevails in an action ” for mandamus o r in

junctive relief “to stop , prevent, or reverse a violation or threatened vi olation of this cha pter by membe rs o f a gov ernment al bod y ”)

. Becaus e the Sta kehol d ers Group ’ s underlying substantive TOMA claim s are moot , it c annot prev ail on th ose claim s and, t herefore, its requ est for attorney ’ s fees is moot. See State ex rel. Best v. Harper , 56 2 S.W.3d 1, 7

– 8 (Tex. 201 8 ) (exp lainin g when claim for a ttorney ’s fees become s moot because u nd erlying substantive claim is moot ) ; Jackson v. S tate Off ice of Admin

. H

earings , 351 S.W.3d 290 , 301 (Tex. 2011) (holding that recovery of atto rney ’ s fees under UDJA wa s una va il ab le bec a use par ty ’ s c laim for at torney ’ s fees was “ incident al to his centr al theory of relief which arises squarely under the TPIA ” ); Riley v. Commissioners Court of Blanco County , 413 S.W.3d 774, 77 7

– 78 (Tex. App.

— Austin 2013, pet. denied) (exp lain ing redu ndant r emedies doctr ine in cont ext of c laim for declarator y relief tha t was base d on TOMA violation ) ; Texas State Bd. of Veterinary Med. Exam ’ rs v. Giggleman , 408 S.W.3d 696, 7 0 8

– 0 9 (Tex. App.

— Austin 2013, no pet.) (hold ing that trial court l acked juri sdic tion to award party attorney ’ s fee s und er UDJA because UDJA may no t be used a s “ vehicle for obtaining otherwise impermissible attorney ’ s fees ” ); Strayhorn v. Raytheon E

- Sys., Inc. , 101 S.W.3d 558, 572 (Tex. App.

— Austin 2 003, pet. denied) (explaining th at “ UDJA cl aim bro ught m erely to re cei ve at torney ’ s fees will not lie ” )

.