In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-22-00158-CV

___________________________

On Appeal from the 431st District Court

Denton County, Texas

Trial Court No. 22-3236-431

Before Kerr, Birdwell, and Bassel, JJ.

Memorandum Opinion by Justice Kerr

MICHAEL MOATES, Appellant

V. 

GREG ABBOTT, IN HIS CAPACITY AS GOVERNOR OF THE STATE OF 

TEXAS; KEN PAXTON, IN HIS CAPACITY AS ATTORNEY GENERAL OF THE 

STATE OF TEXAS; TEXAS DEPARTMENT OF LICENSING AND 

REGULATION; MICHAEL ARISMENDEZ, IN HIS CAPACITY AS EXECUTIVE 

DIRECTOR OF THE TEXAS DEPARTMENT OF LICENSING AND 

REGULATION; BRAD BOWMAN, IN HIS CAPACITY AS GENERAL COUNSEL 

OF THE TEXAS DEPARTMENT OF LICENSING AND REGULATION; AND 

TEXAS COMMISSION ON LICENSING AND REGULATION, Appellees
2 

MEMORANDUM OPINION

Michael Moates sued two State agencies and several State officials in their 

official capacities (collectively, the State) and filed this appeal from an interlocutory 

ruling denying his temporary-injunction request. See Tex. Civ. Prac. & Rem. Code 

Ann. § 51.014(a)(4). We notified the parties by letter that we were concerned that we 

lacked jurisdiction over this appeal because the trial-court clerk had informed us that 

the trial-court judge had not signed an order in this case. Because it appeared that 

there was no final judgment or appealable interlocutory order and that Moates’s 

notice of appeal was thus premature, we warned that we could dismiss the appeal for 

want of jurisdiction unless, within 20 days, the parties sent us a signed copy of the 

order Moates wanted to appeal. See Tex. R. App. P. 26.1(a), 27.1(a), 42.3(a), 43.2(f), 

44.3, 44.4(a)(2). 

Shortly thereafter, the trial-court clerk provided us with a copy of the trial 

court’s order dismissing the case without prejudice upon Moates’s notice of nonsuit. 

We once again notified the parties by letter that we were concerned that we lacked 

jurisdiction over this appeal, this time because it appeared that Moates lacked standing 

to appeal as there was no longer a case or controversy between the parties. See In re

Est. of Garza, No. 13-14-00730-CV, 2015 WL 3799370, at *3 (Tex. App.—Corpus 

Christi–Edinburg June 18, 2015, no pet.) (mem. op.); Hirner v. Doe, No. 12-08-00046-

CV, 2009 WL 1871794, at *1 (Tex. App.—Tyler June 30, 2009, no pet.) (mem. op.). 

We warned that we could dismiss the appeal for want of jurisdiction unless Moates or 
3 

any party desiring to continue the appeal filed a response within ten days showing 

grounds for continuing it. See Tex. R. App. P. 42.3(a), 44.3. Ten days have passed, and 

we have not received a response.

A plaintiff may voluntarily dismiss a case or take a nonsuit at any time before 

all the plaintiff’s evidence other than rebuttal evidence has been introduced. Tex. R. 

Civ. P. 162. A plaintiff has an absolute right to take a nonsuit. E.g., Travelers Ins. Co. v.

Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A plaintiff’s nonsuit typically moots the

entire case or controversy. See, e.g., Morath v. Lewis, 601 S.W.3d 785, 788 (Tex. 2020); 

Klein v. Hernandez, 315 S.W.3d 1, 3 (Tex. 2010); Univ. of Tex. Med. Branch at Galveston v.

Est. of Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex. 2006). Exceptions exist, 

however, such as when a defendant has asserted an independent claim for affirmative 

relief. Klein, 315 S.W.3d at 3 (citing Gen. Land Off. of Tex. v. OXY U.S.A., Inc., 789 

S.W.2d 569, 570 (Tex. 1990)); see, e.g., Villafani v. Trejo, 251 S.W.3d 466, 468–71 (Tex. 

2008) (explaining that plaintiff’s nonsuit did not render moot trial court’s order 

denying defendant’s motion for dismissal with prejudice and attorney’s fees under 

statute); Felderhoff v. Knauf, 819 S.W.2d 110, 110–11 (Tex. 1991) (holding plaintiff’s 

nonsuit did not preclude plaintiff from challenging trial court’s order granting 
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defendants’ monetary-sanctions motion against him). But neither Moates nor the State

has responded that such a claim exists here.

1

We are prohibited from deciding moot controversies because the Texas 

Constitution’s separation-of-powers provision prohibits advisory opinions. See Tex. 

Const. art. II, § 1; Klein, 315 S.W.3d at 3; see also Brooks v. Northglen Ass’n, 141 S.W.3d 

158, 164 (Tex. 2004) (“A judicial decision reached without a case or controversy is an 

advisory opinion, which is barred by the separation of powers provision of the Texas 

Constitution.”). Here, there is no controversy for us to decide because Moates’s 

nonsuit ended the entire case. When a case becomes moot, the parties lose standing to 

maintain their claims. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). Accordingly, 

we dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f); see 

also Est. of Garza, 2015 WL 3799370, at *3 (explaining that when a plaintiff nonsuits 

his claims, “there is no longer a case or controversy, and the court of appeals has no 

jurisdiction over the suit”).

/s/ Elizabeth Kerr

Elizabeth Kerr

Justice

Delivered: October 13, 2022

1

We have obtained and examined copies of the State’s answer and protectiveorder motion, Moates’s nonsuit notice, and the docket sheet, none of which show that 

the State has asserted any independent claims for affirmative relief.