## 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 T rial Court No. 22

- 3236

- 431

Before Kerr, Birdwell , and Basse l, JJ. Memorandum Opinion by Justice Kerr 

### M ICHAEL 

### M OATES 

### , Appellant

V


### . G REG 

### A BBOTT 

### , IN HIS 

### C APACITY AS 

### G OVERNOR OF THE 

### S TATE OF 

### T EXAS 

### ; K EN 

### P AXTO N 

### , IN HIS 

### C APACITY AS 

### A TTORNEY 

### G ENERAL OF THE 

### S TATE OF 

### T EXAS 

### ; T EXAS 

### D EPARTMENT O F 

### L ICENSING AND 

### R EGULATION 

### ; M ICHAEL 

### A RISMENDEZ 

### , IN HIS 

### C APAC ITY AS 

### E XECUTIVE 

### D IRECTOR OF THE 

### T EXAS 

### D EPARTMENT O F 

### L I CENSING AND 

### R EGU LATION 

### ; B RAD 

### B OWMAN 

### , IN HIS 

### C APACITY AS GENERAL 

### C OUNSEL

OF THE 

### T EXAS 

### D EPARTMENT OF 

### L ICENSING AND 

### R EGULATION 

### ; AND 

### T EXAS 

### C OMMIS SION ON 

### L ICENSING AND 

### R EGULATION 

### , Appellees2 MEMORANDUM O PINION
Mi chael Mo a tes sued two State agencies and several Sta te officials in their official capacities (collectively, the State ) and filed th is appeal from an interlocutory ruling denying his temporary

- injunction request
. See Te x. Civ. Prac. & R em. 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 ha d not signed an order in this case . B ecause i t appeared that the re was no final judgment or appe alable interlo cutory orde r and that Moates ’ s notice of appeal was thu s premature, we warn ed that we could di smiss the appeal for want of jurisdiction unless, wi thin 20 days, the parties sen t us a signed c opy of the order Moates wanted to appeal. See Tex. R. A p p. P. 26.1(a), 2 7.1(a ) , 42.3(a), 43.2 (f ) , 44.3 , 44.4(a)(2)

. Shortly thereafter, the trial

- cour t clerk p rovid ed us with a copy of the trial

court ’s order dismissing the case without pr e judice upon M oates ’ s notice of nonsuit

. We once again notified the parties by l etter that we were concerned tha t we lacked jurisdiction over th is appeal , this time be cause it appeared that M oates lacked s tandin g to appeal as there was no longer a ca se o r contro ver sy between the parties. See In re Est

. of Garz a , No. 13

- 14

- 00730

- CV, 2015 WL 3799370 , at *3 (Tex. App. —C orpus Chris ti

– Edinburg June 18, 20 15, no pet. ) (mem. op.) ; Hirner v. Do e , No. 12

- 08

- 00046

- CV, 2009 WL 1871794 , at *1 (Te x. App .— Tyler Ju ne 30, 2009, no pet. ) (mem. op.)

. We warne d that we c ould dismiss the appe al for want of jurisdiction unless Moates or3 any party de siring to continue the appeal filed a response within te n days sh owing grounds for continuing it

. See Tex. R. App. P. 42. 3 (a), 44.3

. Ten days have pa ssed , and

we have not re ceived a response. A plaintiff may voluntar ily dismis s a case or take a nonsuit at any time before al l the p laintiff ’ s evidence other than reb ut tal evidence has been introduc ed. Tex. R. Civ. P. 162

. A p laintiff has an absolute right to take a nonsuit

. E.g. , Travelers Ins. Co. v. Joachi m , 315 S.W.3d 860 , 862 (Tex. 2010 ) . A pla intiff ’ s non suit typically moo ts the
entire case or controversy
. See , e. g. , Morath v. Lewi s , 601 S.W.3d 785, 788 (Tex. 2020 );
K

lein v. He rnande z , 315 S.W.3d 1 , 3 (Tex. 2010 ) ; Univ. of Tex. Med. Branch at Galveston v. Est

. of Blackmon ex r el. Shult z

, 195 S. W.3d 98 , 1 00 (Tex. 2006 ). Ex ceptions exist , how ever, such as when a de fendant has asserted a n independent claim for affirmati ve relief

. Klein , 3 15 S.W.3d at 3 (citing Gen. Land Off

. of Tex. v. O XY U.S. A. , Inc. , 789 S.W.2d 569, 570 (Tex. 1 990)) ; see , e.g. , Villafani v. Trej o , 251 S.W.3d 466, 468

– 71 (Tex.
2008 ) ( explaining that plaintiff ’ s n onsuit did not render moot trial court ’ s order denying defendant ’ s motion for dismissal with prejudice and attorney ’ s fees u nder statute) ; Fel derhoff v. Knauf , 81 9 S .W.2d 110, 110

– 11 (Tex. 1991) (h ol ding plaintiff ’ s nonsuit did not preclude plaintiff from challenging tri al cour t’ s order granting4 defendant s’ monetary

- sanctions motion against him ). But neither Moates n or the State has responded that such a c laim exists here

. 1 We are prohibited from decid ing moot controversies because the Texas
Constitution ’ s separation

- of

- powers provision prohibits adv isory opinions

. See Tex.
Const. art. II, § 1; Klein , 315 S.W.3d at 3; s ee 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 pow ers provision of the Texas
Constitution. ” ). Her e, there is no con troversy for us to decide bec ause Moat es’ s nonsuit ended the entire case. When a case becom es moot, the partie s los e standing to maintain their claims

. Williams v. Lara , 52 S.W .3d 171, 184 (T ex. 2001)

. Accordingly,

we dismiss this appeal for want of jur isd iction. See Tex . R. App. P. 42.3 (a) , 4 3.2(f) ; see al

so E st. of Garza , 2015 WL 3799370 , at *3 (explain ing that when a plaintiff nonsuits his cl aims, “ there is no longer a case or controversy, and the court of appeals has no jurisdiction over the suit”).

/s/ Elizabeth Kerr E lizabeth Kerr Ju stice
De livered: Oct ober 13, 2022

1 We have o btained a nd examined copies of the State ’ s an swer an d protective

order motion , Moates ’ s nonsuit notice, and the docket s heet , no ne of which show that the S tate has asserted any independent claim s for a ffir mat ive relief.