### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00118- CV

Appellan ts, Texas Quarter Horse Assoc iation; Texas Th oroughbred Association; Texas Horsem en’s P artner ship ; G illespi e County F air and Fe stivals Association, In c.; Global Gam ing L SP, LLC d/b/ a Lone Star P ark at G rand Pr airie; and Sam Houston Race P ark, LLC// Cross-Appellan ts, Am eric an Legion Depart m ent of Texas, Tem ple P ost 133; Kic kapoo T raditional T ribe of Texas; Th om pson Allstate Bingo Su ppl y, Inc.; and Moore Supp lies, Inc.

v.

Appellees, Am eric an Legion Depart m ent of Texas, Tem ple P ost 133; Kic kapoo T raditional T ribe of Texas; Th om pson Allstate Bingo Su ppl y, Inc.; and Moore Supp lies, Inc.// Cross-Appellees, Texas Quarter Horse Assoc iation; Texas Thorough bred Association; Texas Horsem en’s P artner ship ; Gillespie County F air and Fe stivals Association, In c.; Global Gam ing L SP, LLC d/b/ a Lone Star P ark at G rand Pr airie;

and S am Houston Race P ark, LLC

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 53RD J UDICIAL DI STRICT NO. D-1 -GN-1 4-0 0370 0, H ONO RAB LE LO RA J. LI VINGSTO N, JUDGE P RESIDING

O P I N I O N

This proce ed i n g prese nts two issues of potential signific ance to appellate and

administrative-law prac titioners. The first is whether third parties have st anding to appea l from a

trial-cour t judgme nt invalidating an ag ency rule when the aff ecte d ag ency has not perf ecte d its

own appea l. At least under the circ umstances here , we conclude that the third parties lack standing

to appea l. The second issue is wh et h er an at t empted appea l by such third parties, and no other parties, is subject to the rule requiring appellate courts to vacate lower- court judgme nts and dismissthe cause , not mere ly the appea l, when a ca s e b ecome s moot on appea l. We conclude it is not. 1

I nstead, the proper reme dy is to dismiss the appea l for want of jurisdiction and leave the trial court’s judgme nt undisturbed.

BACK GR OUND

This proce eding arose from the controve rsy conce rning the “historical rac ing”

rules that had b ee n ad o pted by the Texas Racing Commi ssion in 2014. Alleg ing justiciable 2

interests d eriving from perc eived detrimental impact of the rules upon them, sever al orig inal and intervening plaintiffs— appellees here —sued the Commi ssion and various officia l-ca pacity

defe ndants (collec tively , the Commi ssion Def endants) in district court to challeng e the rules’ leg ality

. Among other claims and theories, appellee s s oug ht decla rations under either or both

section 2001.038 of the Administrati v e P ro ce d ure Act (APA) and the Uniform Dec lara tory 3

J udg ments Act (UDJA) that the rules exceede d the Commi s s i o n’s deleg ated authority under its 4

See, e.g ., Texas Foundries, Inc. v. International Moulders & Found r y W orkers Union , 1 248 S.W .2d 460, 461 (Tex. 1952) (“The rule has long been established

. . . that when a case become s moot on appeal, a ll previous order s are set aside by the appe llate cour t and the ca se is dismiss ed”; courts do not mere ly “dismiss the appea l only

. . . .”) (citati o n s o m i t ted); see also Hec kman
v. W illiamson Cty. , 369 S.W .3d 137, 162 (Tex. 2012) (“I f a case is or become s moot, the court must
vacate any order or judgme nt previously issued and dismiss the case for want of jurisdiction.” (citing Speer v . Presbyte rian Chil dren’s Hom e & Serv. Age ncy , 847 S.W .2d 227, 228–29 (Tex. 1993))).
See 39 Tex. Reg. 7573 ( Sept. 19, 2014) (propose d J une 27, 2014). 2

See Tex. Gov’t C ode § 2001.038 (authoriz ing plaintiff who “alleg e[s] that [a] rule or its 3 threa tened application interfe res with or impairs, or threa tens to interfe re with or impair, a leg al rig ht
or privileg e of the plaintiff” to asser t decla ratory -judg ment action to deter mine “[t] he validity or applicability

of a r ule” a nd requiring that “[t] he state a g ency must be made a

party to the action”)

. See ge nerally Tex. Ci v. Prac. & Rem. Code §§ 37.001–.011 (UDJA). 4

2org anic statute, the Texas Racing Act. The Commi ssion Def endants answe red, and sever al entities 5

that alleg ed justiciable interests deriving from the rules’ perc eived benef its for them—the appellants

here —intervene d as additional defe ndants. None of the appellants asser ted a claim for aff

irmative

relief , but instead ac ted solely

to defe nd the rules’ leg ality along side the Commissi on Def endants.

The two sides subsequently filed com p et i n g motions for summary judgme nt on appellee s’ decla

ratory claims challeng ing the rules as bey ond the Commi ssion’s authority under the

Texas Racing Act. The district court, in rele vant part: (1) sustained objections made by appellants

to some of appellee s’ summary -judg ment evidenc e; (2) g rante d appellee s’ summary -judg ment

m o t i o n ; and (3) denied competing motions filed by the Commi ssion Def endants and appellant s

. Appellee s there afte r nonsuited all of their other pending claims so as to make the summary -judg ment ruling s final. The trial-level l itigation wa s co n cl uded with a Decembe r 2014 final j udg ment that

6 incorpora ted the afor ementioned ruling s and nonsuit and decla red that the rules “excee d the Texas Racing Commi ssion’s authority under the Texas Racing Act . . . and a re inva lid.”

The Commi ssion Def

endants chose not to perf

ect an appea l from the district court’s judgme nt. Subsequently , consistent wi t h an ag ency ’s statutory obliga tions when a rule has been

decla red invalid by a “fina l court judgme nt,” the Commi ssion would repe al the “historical rac ing” 7

See Tex. Rev. Ci v. Stat. art. 179e, §§ 1.01–18.08 (T exas Racing Act). 5 Appellee s’ notice of nonsuit dismiss ed “all of their claims except for their claims that the 6 Texas Racing Commi ssion’s ‘historical’ or instant rac ing rules at issue violate the Texas Racing Act, which cla ims are a sserted unde r [APA] §[] 2001.038, [t he UDJA], and common law ultra vires.”
See Tex. Gov’t Code § 2002.058(b) (“A state ag ency shall repe al a rul e t h at h as been 7 decla red invalid by a final court judgme nt. For purposes of this subsection, a court judgme nt is not considere d final during the time that the judg ment may be re verse d by

an appe llate cour

t.”).
3rules in Marc h 2016. But ap p el lants (the third parties who had intervene d below as defe ndants 8

in support of the rules) did timely fi l e a n o t i ce of appea l from the district court’s judgme nt. We

dockete d that appea l as the above -ca ptioned cause

. After appellants filed their notice of appea l, appellee s filed a timely notice of crossappea l from the district court’s judgme nt, there by prese rving their rig ht to challeng e, if need be, the portion of the district court’s judgme nt incorpora ting its adver se rul i n g o n appellees’ summary
judgme nt evidenc e. But appellee s’ primary response was to move to dismiss appellants’ appea l 9 (and, conditioned on that relief , appellee s’ own cross-a

ppeal) for want of subject-matter jurisdiction. Appellee s urg ed that appellants’ appea l was “moot” in the absenc e of any appea l by the Commi ssion

Defendants. Be cause the ag ency that had promulg ated the rules was no longe r attempting t o
defe nd their leg ality but had instead acc eded to being bound by the district cou rt ’s judgme nt, appellee s rea soned, any justiciable controve rsy reg arding the rules’ validity had been conclude d and appellants’ a

ppeal c ould have no e ffe ct on any party ’s rig hts or interests. 1 0 Appellee s’ motion to dismiss rema ined pending for sever al months while appellants,

without opposition from appellee s, obtained a succe ssion of abate ments and postponements

See 41 Tex. Reg. 1683 ( Mar. 4, 2016) (propose d Dec . 4, 2015). 8

As appellee s emphasize, they soug ht this relief only ag ainst a p p ellants, not the Commi ssion 9 Def endants, as the evidentiar y ruling in question responde d to objections made by ap p el lants. Consequently , the Commi ssion Def endants are neither appellants nor appellee s in this proce eding

. Appellee s also urg ed that the Commi ssion was an indispensable party to the appea l with 1 0 respe ct to the claims asser ted under APA section 2001.038. See Tex. Gov’ t C o d e § 2001.038(c) (re quiring joinder of the state ag ency ). I n light of our dispositi on of appellee s’ other arg uments, we need not r eac h this narrowe r g round. See Tex. R. App. P . 47.1.
4of appellate proce eding s while awa iting t h e o u t come of further Commi ssion action. After the 1 1

Commi ssion’s rec ent repe al of the historical-ra cing rules, appellee s s u p p l emented their dismiss al

motion to raise that action as an additional g round for concluding that no justiciable controv ersy
exis ted on appe al.

Appel l an t s then filed a response in which they conce ded that no justiciable

controve rsy reg ard i n g t h e rul es’ validity could have survived the repe al. But appellants attacke d appellee s’ premise that this Court had lacke d jurisdiction from the appea l’s inception in the absenc e
of any appea l by the Commi ssion Def endants. Appellants rea soned that they had standing to appea l

the judgme nt even in the absenc e of the Commi ssion Def endants’ participa tion, that appellants had

there by invoked this Court’s jurisdiction, and that we h ad p ossessed such jurisdiction until the

controve rsy was finally rende red moot by the rules’ repe al. And based on that arg ument, appellants

asser ted a reque st for relief from the district court’s judgme nt and its prec lusive eff ects—they urg ed

that this Court must va cate the district c ourt’s judgme nt a nd dismiss the cause , not me rely dismiss the appe al as a

ppellees ha d reque sted. I n support, appellants invoked the rule, noted a t the outset,

that appellate courts are require d to vacate lower- court judgme nts and dismiss the cause , not mere ly the appeal, when a

case become s moot on appeal. Appe llees have filed a reply in which they join issue with both of appellants’ c ontentions.

Texas Quarter Horse Ass’n v. American Legion Dep’ t of Tex. , No

. 0 3 -15-00118-CV, 1 1 201 5 T ex

. App. L EXI S 12239, at *1 (Tex. App.—Austin Dec

. 2, 2015) (mem. op.) (per curia m); Texas Quarter Horse Ass’n v. A m e rican Legion Dep’ t of Tex. , No. 03-15-00118- CV, 2015 Tex. App. L EXI S 6116, at *1 (Tex. App.—Austin J une 17, 2015) ( mem. op.) (pe r cur iam).

5ANALYSIS

The parties’ arg uments implicate the justiciabilit y doctrines that the Texas Supreme

Court has held to derive from the Tex as Constit ution’s open-c ourts and separ ation-of- power s provisions. I t is there fore helpful to be g in w ith a brief overvie w of these doc trines. I n g ener al,

1 2 1 3

the justiciabilit y doctrines serve to bar Texas courts jurisdictionally from issuing advisory opinions—those that “dec ide[] an abstrac t question of law without binding the parties,” considere d

to be a proper function of the Ex ecutive rathe r than J udicial Br anch —or from g ranting court acc ess 1 4

to persons lacking any actua l, concr ete injury

. Under the ripene ss doctrine, courts must “conside r 1 5

whether , a t t he time a lawsuit is filed , the fac ts are sufficie ntly develope d ‘so that an injury

has occur red or is likely to occur , rathe r than being conting ent or remote.’ ” Conversely , “[t] he 1 6

mootness doctrine applies to case s in which a justiciable controve rsy exis ts betwee n the parties at the

time the case arose , but the live controve rsy cea ses beca use of subsequent events.” A justiciable 1 7

See, e. g ., Hec kman , 369 S.W .3d at 147–48 (citing Tex. Const. arts. I , § 13, I I , § 1); 1 2 Texas Ass’n of Bus. v. Tex as Air Contr ol Bd. , 852 S.W .2d 440, 444 (Tex. 1993).

The application of these doctrin es prese nts questions of law that we revie w de novo. 1 3 Hec kman , 369 S.W .3d at 149–50. Fur ther, beca

use the doctrines i m plicate subject-matter jurisdiction, they may be raised at any time, including appea l, and we may (and sometime s m ust) consider the m sua sponte. See Texas Ass’n of Bus. , 852 S.W .2d at 446.

See Tex as Ass’n of Bus. , 852 S.W .2d at 444. 1 4
See id. at 444–45. 1 5

W aco Indep. Sch. Dist. v. Gibson , 22 S.W .3d 849, 851–52 (Tex. 2000) (quoting Patterson 1 6 v. Planned Pare nthood of Hous. & Se. Tex., I nc. , 971 S.W .2d 439, 442 (Tex. 1998)).
Matthews v. Kountze Indep. Sch. Dist. , ___ S.W .3d ___, No. 14-0453, 2016 Tex. L EXI S 1 7 95, at *3 (Te x . J an. 29, 2016) ( citing Hec kman , 369 S.W .3d at 162).
6controve rsy cea ses and the case become s moot when “the i s s ues prese nted are no longe r ‘live’ or

the par ties lack a leg ally cog nizable interest in the outcome.” 1 8 Standing doctrine, in turn, focu s es o n wh ether a particula r party “has a sufficie nt
rela tionship with the lawsuit so as to have a ‘justiciable interest’ in its outcome.” “The g ener al test 1 9

for standing in T exas r equire s that there ‘(a ) shall be a rea l c ontroversy betwee n the parties, which (b) will be actua lly deter

mined by the judicial decla ration soug ht.’” This test, the Texas Supreme 2 0

Court has elabor ated, is “par allel[] ” to the federal test for Article I I I standing , and there by

i n co rp orate s the elements of (1) “‘injury in fac t’” (“‘ an invasion of a leg ally protec ted interest

which is (a) concr ete and particula rized, and (b) ‘ac tual or imminent , n o t conjec tural or hy pothetical’” ); (2) a causa l r elationship betwee n the alleg ed injury and “‘the conduct complained

of’” ; and (3) redr essability (that it is “ ‘likely , as opposed to me rely specula tive, that the injury will

be re dresse d by

a fa vorable decision’” ). 2 1

J usticiability rema ins a jurisdi ctional p rerequisite “fr om the first filing through the final judg ment,” including any appea l. Consequently , if a jus ticiable controversy cea ses whil e a

2 2

case is on appea l, the case is moot and the appellate court lacks subject-matter jurisdic t i o n to act

W illiams v. Lara , 52 S.W .3d 171, 184 (Tex. 2001) (quoting Murphy v. Hunt , 455 U.S. 1 8 478, 481 (1982))

. See also Hec kman , 369 S.W .3d at 162 (“Put simply , a case is moot when the court’s action

. . . cannot aff ect the parties’ rig hts or interests.” (citing VE Corp. v

. Ernst & Y oung , 860 S.W .2d 83, 84 (Tex. 1993) (per curia m))).
Austin Nurs ing Ctr., Inc. v. Lovato , 171 S.W .3d 845, 848 (Tex. 2005). 1 9

Texas Ass’n o

f B u s

. , 8 5 2 S.W .2d at 446 (quoting Board of W ater Eng’rs v. City of 2 0 San Antonio , 283 S.W .2d 722, 724 (1955))

.

Hec kman , 369 S.W .3d at 154–55 (quoting Lujan v. Defende rs of W ildlif e , 504 U.S. 555, 2 1 560–61 (1992)) (interna l quotations omi tted).
Id . at 147–48 (c iting Board of Adjustment v. W ende , 92 S.W .3d 424, 427 (Tex. 2002)). 2 2

7on the merits. L ikewise, an appellant must have standing to a ppeal a lower- court judg ment, and 2 3

the appellate court lacks subject-matter jurisdiction to decide the merits of that appea l otherwise. 2 4

On this rec ord, there is no dispute and seems littl e question that no justi ci ab l e

controve rsy reg arding the validity of the hist o ri ca l-rac ing rules could have survived the

Commi ssion’s repe al of th em

— t h e rul es no longe r exis t in any form, and there is no hint that 2 5

the ag ency will reve rse course once litigation conclude s or that any exception to the mootness 2 6

doctrine applies. The parties’ disag ree ment cente rs o n whether a justiciable controve rsy ever 2 7

exis ted on appea l. Whil e phrasing their jurisdictional challe n ge i n terms of “mootness,” the

See, e.g. , Lara , 52 S.W .3d at 184. 2 3
See, e.g. , State v. Naylor , 466 S.W .3d 783, 787 (Tex. 2015) (acknowledg ing tha t courts 2 4 lack subject-matter jurisdiction to deter mine appea l broug ht by an “i mproper party ” who lacks “appe llate standing ”); see also Hollingswor th v. P er r y ,

_ _ _ U.S. ___, 133 S. Ct. 2652, 2661–63 (2013) (obser

ving that Article I I I require ment of an “‘a ctual controve rsy ’ persist[ing] throug hout all stag es of litigation” implies that standing “‘must be met by persons seeking appellate revie w, just
as it must be met by persons appea ring in courts of first instance,’ ” and pro ce ed i ng to analy ze appellants’ standing under Article I I I test (quoting Arizonans for Official English v. Arizona , 520 U.S. 43, 64 (1997)))

. See, e.g. , Hec kman , 369 S.W .3d at 167 (ac knowledg ing that “whe re a plaintiff challeng es 2 5
a statute or written policy , that challeng e may we l l b ecome moot if the statute or policy is repe aled or fundame ntally altere d” (citing Trulock v. City of Duncanv ille , 277 S.W .3d 920, 925–27 (Tex. App.—Dallas 2009, no pet.); Erwin Chemerinsky , Fede ral Jurisdiction § 2.5.4, at 141–43 (5th ed. 2007))) ; Texas Dep’ t of Health v. Long , 659 S.W .2d 158, 160–61 (Tex. App.—Austin 1983, no writ) (holding that rule c halleng e wa s rende red moot by rules’ r epea l). Cf. Matthews , ___ S.W .3d at ___, 2016 Tex. L EXI S 95, at *3–8 (holding that challeng e 2 6 to school-district policy was not rende red moot b y d istrict’s cessa tion of policy wher e it was not “‘a bsolutely clea

r’” that the district “will not reve rse itself afte r this litigation is conclude d” (quoting Bex a r Me tro. W

ater Dist. v. City of Bulverde , 234 S.W .3d 126, 131 (Tex. App.—Austin 2007, no pet.)))

. See gene r a l l

y Lara , 52 S.W .3d at 184 (discussing exception wher e controve rsy is 2 7 “‘c apable of repe tition, y et evading revie w’” (citing City of Los Angeles v. Lyons , 461 U.S. 95, 109 (1983)) ).
8substantive thrust of appellee s’ arg uments is more prec isely that appellants lacke d standing to bring

their appea l—appellee s contest whether , considering that the Commi ssion Def endants have acc eded

to the district court’s judgme nt, the judgme nt invades any leg ally protec ted interest of appellants for

which their a

ppeal c ould provide re medy

. 2 8 Although consid e r a

ti o n s o f mo o tn e s s a

n d s ta n d in g a r e c lo s e ly r e la

te d , the distinction 29

proves to be highly signific ant under Texas law in deter mining the appropr iate rem ed y at the appellate level. “[ W] hen a case become s moot on appea l,” as appellants sug g est, “[t] he rule has long been established” by the Texas Supreme Court that “all previous order s are set aside by the appe llate cour

t and the ca se is dismiss ed.” Howeve r, if the de fec t is more prec isely a lack of 3 0 appellate standing , the Texas Supreme Court has indicated that the p roper reme dy is simply to
dismiss the appe al. 3 1

This distinction is consistent wi t h t h e u nderpinning s of t he rule of vacating lowercourt judgme nts when a case become s “moot on appea l.” That rule is not a jurisdictional imperative,

See, e.g. , Hollingswor th , ___ U.S. at ___, 133 S. Ct. at 2662 (empha siz ing, with ref ere nce 2 8 to appellate s t an d i n g, that “a litigant must seek relief for an injury that aff ects him in a ‘per sonal and individual way ’” and “must possess a ‘direc t stake in the outcome’ of the case ” (quoting Lujan , 504 U.S. at 560 n.1; Arizonans for Off icial English , 520 U.S. at 64)).
S ee L a r a , 52 S.W .3d at 184 (obser ving that “[i] f a case become s moot, the parties lose 2 9 standing to maintain their claims”)

.

Texas Foundries, Inc. , 248 S.W .2d at 461 (citing Freem an v. Burrows , 171 S.W .2d 863 3 0 (Tex. 1943); Danciger Oil & Ref. Co. v. Railroad Comm’n , 56 S.W .2d 10 7 5 (Tex. 1933); McW horter v. Northcutt , 58 S.W

. 720 (Tex. 1900)). Acc ord, e.g. , Speer , 847 S.W .2d at 228–29; Raborn v. Davis , 795 S.W .2d 716, 717 (Tex

. 1990) (per curia m); United Servs. Auto. Ass’n
v. Lederle , 400 S.W .2d 749, 7 4 9 (Tex. 1966) (per curia m). See also International Ass’n of Machinists v. Fede rated Ass’n of Acc essory W

orkers , 130 S.W .2d 282, 283 (Tex. 1939) (terming the rule a lrea dy

“long established in this jurisdiction”).
See Naylor , 466 S.W .3d at 787 (“Standing is a component of subject-matter jurisdiction 3 1

. . . . Consequently , an appea l f iled by an improper party must be dismiss ed.”) (citations omitted).

9per s e, but is a proce dural or reme dial direc tive that is founded on two closely rela ted 3 2 policy conce rns that m ay ar i s e when a case become s moot during the pendenc y of an appea l.

The first conce rn is that dismiss ing only the appea l in those circ umstances may be unfair to the

appe l l ant beca

use i t cause s the l ower -cour t judgme nt to become final and prec lusive—eff ectively

aff irming it—without aff

ording the appellant the opportunity to be hear d on the merits. A second 3 3

conce rn, closely rela ted to first, is that dismiss ing the appea l in t hose circ umstances achie ves
the eff ect of an af

fi rm an ce in a moot case

. Both of these policies thus presume the initial 3 4

As appellee s point out, the Texas Supre me Court, thr oug h the Texas Rules of Appellate 3 2 Procedur e, has aff

orded appellate courts discretion to dismiss a pending appea l w ithout disturbing lower court judgme nts when the proce eding become s moot by virtue of settlement. See Tex. R. App. P. 42.1 & cmt. to 2002 chang e; id. R. 43.2; Caballero v. Heart of Tex. Pizza, L.L.C

. , 70 S.W .3d 180, 180–81 (Tex. App.—San Antonio 2001, no pet.) (per curia m); cf

. Panterra Corp. v. American Dairy Quee n , 908 S.W .2d 300, 300–01 (Tex. App.—San Antonio 1995, no writ), modified by Caballero , 70 S.W .3d 180 (conc luding, under earlier version of appellate rules and rule t h at “[w]hen a cause become s moot on appea l, al l p revious order s and judgme nts should be set aside and the cause , not mere ly the appea l, dismiss ed,” that it was require d to vacate l o we r- court judgme nt following appellate -leve l settlement (quoting Freem an , 171 S.W .2d at 863)). The Texa s S u p reme Court’s promulg ation of Rule 42.1 belies any notion that it views mootness arising on appea l as g iving rise retroa ctively to some sort of jurisdictional defe ct in prior lower- court judgme nts. See also Lederle , 400 S.W .2d at 749 (stating that “[n] o rea son is made known to us and none appea rs in the rec ord to
ca u s e us to vary from the rule that a moot cause should be dismiss ed,” perha ps imply ing t h at appellate courts may

possess some discre tion in apply ing the rule).
See, e.g. , International Ass’n of Machinists , 130 S.W .2d at 283 (“ To dismiss the appea l 3 3 would be to leave undisturbed the judgme nt of the lower court and there by , in effect, aff irm
same without acc ording to the appea ling parties a hear ing upon the merits of their appea l.”); Danciger , 5 6 S

. W

. 2 d at 1076 (“I n order that plaintiff in err or may not be prejudice d in any subsequent proce eding by a judgme nt which this court has ref used to consider on its merits, we think
a proper dispositi on of the case would be to reve rse the judgme nt of the trial court and the Court of Civil Appea ls and to dismis s the cause .”) (citations omitted); see also Panterra , 908 S.W .2d at 301–02 (Dunc an, J ., dissenting) (similarly dis t i l l i ng this underly ing jurisprudential policy from
case law).
See, e.g. , Lederle , 400 S.W .2d at 749 (“To d i s m i s s the applications [for writ of err or]

3 4 would permit the judgme nt of the Court of Civil Ap p ea l s t o b ec ome a final judgme nt in a moot
case .”); see also Panterra , 908 S.W .2d at 301–02 (Du n ca n , J

. , dissenting) (identify ing same underly ing policy

in case law).
10Emphasizing that the rule is not a jurisdictional imperative, appellee s sug g est that Texas law

is equivalent to the equitable principles that fede ral co u rt s apply to deter mine the reme dy when a case become s moot on appea l. To summarize the fede ral jurisprudenc e in this are a, the United States Supreme Court has held that “vac atur” —i.e., rema nd to the lower court with instructions to vacate its judg ment afte r the case become s moot on appea l—is a n “exceptional” equitable reme dy whose availability depends principally on the extent to which the m o o t n ess is attributable to the party seeking relief

from the judg ment. See ge nerally U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship , 513 U.S. 18, 22–29 (1994). Vac atur tends to be favor ed, the Supreme Court ha s explained, w here “[a] party who seeks review o f t h e m er its of an adver se ruling , but is frustra ted by the vag arie s of circ umstance” bey ond the party ’s control, as such a party “oug ht not in fa i rn es s b e fo rce d to
ac q u i es ce in the judgme nt,” id

. at 25, and be barr ed by former -adjudica tion doctrines from relitig ating the issues at s o m e future time. Id

. at 22–23 (vac atur “‘c lear s the path for future relitig ation of the issues betwee n the parties an d el i m i n at es a judgme nt, revie w of which was preve nted throug h happensta nce’ ” (quoting United States v. Munsingwear, Inc. , 340 U.S. 36, 40 (1950)) ). Vac atur is simil arly favor ed “whe re mootness results from the unilatera l action of the party who preva iled i n t he lower court.” Id

. at 23. I n contra st, vacatur tends to be disfavore d when mootness is a ttributable to the party seeking relief from the judgme nt. See id

. 25–29 (holding that voluntary settlement did not prese n t th e “ e xtr a o r d in a r y c ir c u ms ta n c e s ” ju stify ing vacatur). Providing such a party the reme dy of vacatur, the Supreme Court has observe d, eff ectively fac ilitates “a ref

ined form of collater al attack on the judgme nt” pursued in lieu of the appea l on the merits. Id

. at 26–27. I n terms of the equities, such a “ca se stands no differ ently than it would if jurisdiction wer e lacking beca use the losing party failed to appea l at all.” Id

. at 25. T h e S u p re m e C o u rt has held that an appea l having a defe ct of part ies or standing falls into the latter cate g ory , see Karcher v. May , 484 U.S. 72, 81–83 (1987), and the Fifth Circuit has held that a municipality ’s repe al of an ordinanc e amounted to “voluntary action” that should prec lude vacatur of a lower- court judgme nt invalidating that ordinanc e. See Houston Chronicle Publ’g C o

. v. City of League City , 488 F.3d 613, 619–20 (5th Cir. 2007).

Whil e there are some para llels betwee n the Texas rule and the fede ral jurisprudenc e, see Marshall v. Housing Auth. of San Antonio , 198 S.W .3d 782, 788–89 (Tex. 2006) (obser ving, in context of analy

zing applicability of collateral-c onsequenc es ex ception to mootness doctrine, that “[o] ne purpose of vaca

ting the underly

ing judgme nt if a cas e become s moot during appea l is to preve nt prejudice to the rig hts of parties when appellate revie w o f a j u d gm ent on its merits is prec luded,” and ci t i n g “see also” to Bonner Mall ), and the Texas Supreme Court has fre quently looked to fede ral jurisprudenc e in apply ing substantive justiciabilit y principles, that court has of y et
never adopted the fede ral-e quity based approa ch for deter mining the reme dy when a case become s moot on appea l. See, e.g. , Speer , 847 S.W .2d at 227–30 (apply ing rule so as to vacate lower- court judgme nt in appea l held to be mooted by litigants’ voluntary action); Freem an , 171 S.W .2d at 863 (holding that court of civil appea ls err ed in failing to vacate lower- court j u d gment in case that beca me moot on appea l; no ref ere nce to cause s o f mootness); see also Br andon T. Allen, Note: A New Rationale

for an Old Practice: Vacatur and the Rules of Professional Responsibility , 76 Tex. L

. Rev. 661, 675–76 (1998) (su rv ey ing Texas prec edents and noting absenc e of consideration of
11exis tence of a justiciable controve rsy on appea l, and neither is implicated wher e the appellant lacks

stand i ng to invoke the appellate court’s jurisdiction in the first place

. I n this respe ct, an appea l broug ht by an appellant lacking standing is the leg al equivalent of no appea l having been perf ecte d

at all, or if a party having standing had filed its notice of appea l too late—our jurisdiction ove r the

merits is ne ver invoked. We w ould a dd that if this sort of “mootness on appea l” is subjec t to the 3 5

rule that we must vacate lower- court judgme nts, littl e would rema in of standing doctrine, the finality

of judgme nts, or conventional appellate proce dure, a s lower- court judgme nts w ould be vulnera ble to being vacated by

appellate courts at the be hest of eve n strang ers to the litiga tion.

Acc ording ly , whether the proper reme dy h er e i s to dismiss the appea l only , as appellee s urg e, or to vaca te th e d i s trict court’s judgme nt and dismiss the case , as appellants

m ai n t ai n , ultimately turns on whether appellants had standing to bring their appea l. Appellants

sug g est that it w as sufficie nt tha t the y intervene d below (a nd “without objection from Appe llees,” they emphasize), ther eby

“bec ame pa

rties to the suit for all purpose s,” and w ere ultimately named

in a judgme nt that reje cted their arg uments. Appellants simil arly emphasize that section 2001.901

of the APA authorizes a “par ty ”—a term that the APA define s g ener ally as “a person or state

ag ency named or admitted as a party ” —to “appe al a final district court judgme nt under this 3 6

whether mootness stemmed from litigant’s “voluntary ” actions). Acc ording ly , unless and until the Texas Supreme Court instructs us otherwise, we must decline appellee s’ invi t at i o n t o fol low the fede ral jurisprudenc e favor i n g t h em. See Panterra , 908 S.W .2d at 300–01 (similarly observing that Bonner Mall “is not binding prec edent [on Texas courts] beca use the issue decide d was one of fede ral proc edura l law [and] does not apply to state courts’ a

pplication of state pr ocedur al law” ). Cf. Texas Comm’n on Envtl. Quality v. Bonser-Lain , 438 S. W

. 3 d 887, 891 & n.1 3 5 (Tex. App.—Austin 2014, no pet.) (explaining that even while subject-matter jur i s d i ct i on of trial court can be challeng ed at any time, such cha lleng es ca

n be raised only befor e appellate court that possesses subject- matter jurisdiction). Tex. Gov’t Code § 2001.003(4). 3 6

12chapte r in the same manner provided for civil actions g ener ally .” Acc ording ly , appellants deduce , 3 7

section 2001.901 empower ed them to appea l the district court’s adver se judgme nt on the decla ratory
claims asser

ted under APA section 2001.038, as these are claims “unde r this chapter ,” the APA. Appellants’ arg uments are ultimately unavailing

. Whil e appellate standing ty pically

exte n d s only to those who wer e parties befor e the trial court, party status per se is not 3 8

c o n tr o ll ing—the ultimate inquiry is whether the appellant possesses a justiciable interest in o b ta in in g
relief from the lower court’s judgme nt. And in the posture of this case on appea l, appellants lack 3 9

any such interest for rea sons simil ar to those that controlled our analy sis in our rec ent Bonser-Lain decision—appe llants have not asser ted, nor likely could asser

t, any basis to compel the Commi ssion

to adopt or maintain historical-ra cing rules if the ag ency does not wish to do so. The Commi ssion’s 4 0

Id . § 2001.901(a)

. 3 7
See, e.g. , Naylor , 466 S.W .3d at 787 (“a ppellate s t anding is ty

pically aff

orded ‘only to 3 8 parties of rec ord’” (quoting Gunn v. Cavanaugh , 391 S.W .2d 723, 724–25 (Tex. 1965))).
See Torringt on Co. v. Stutz ma n , 4 6 S

. W.3d 829, 843–44 (Tex. 2000) (explaining that 3 9 appellate standing require s that party ’s own interests must be prejudice d by alleg ed err or and that it “may not compl ai n of err ors that do not injuriously aff ect it or that mere ly aff

ect the rig hts of others”)

. See also D iamond v. Charles , 476 U.S. 54, 68 (1986) (w here I llinois authorities had not appea led lower- court judgme nt invaliding state law, private party who had intervene d below in support of law lacke d standing to a ppeal; mere “status as an intervenor below, whether permissive or as of rig ht, does not confe r standing sufficie nt to keep the case alive in the absence of the S tate on this appeal” ).

Bonser-Lain , 438 S.W .3d at 893–95 (holding that neither APA nor Water Code provided 4 0
a rig ht to judicial revie w from ag ency ’s denial of rulemaking petition, and observing that “[i] ndeed,
no Texas court has ever held that an ag ency ’s ref usal to promulg ate rules is revie wable by courts”)

. See a l s o Diamond , 476 U.S. at 65 (obser ving that private party ’s attempt to appea l lower- court judgme nt invalidating state law wher e State had not appea led amounted to “an eff ort to compel the State to enac t a code in accor d wi t h [ t he appellant’ s] interests,” and that “only the State has the [requisite] kind of direc t stake

. . . in defe n d i n g t h e standards embodied in that code” ) (interna l quotations and citations omitted); accord Hollingswor th , ___ U.S. at ____, 133 S. Ct. at 2668 (“We have never befor e upheld the standing of a private party to defe nd the constitutional i t y o f a state statute when state officia ls have c hosen not to. We decline to do so for the first time here .”).
13acc ession to the district court’s judgment represe nted t he C ommissi on’s determination that it will

no longe r have histor i cal-rac ing rules. Absent any rig ht to alter that ag ency decision, appellants’

ch al l enge to the district court’s judgme nt, which would nece ssarily focus on whether the n o why pothetical rules would be within the Commi ssion’s statutory authority , reduc es to a reque st for an advisory opinion, the antithesis of a justiciable cla im. 4 1

APA section 2001.901 does not chang e the analy sis. To the extent this statute could

be rea d to authorize an appea l by a “par ty ” lacking a justiciable interest, it would be unenfor cea ble. 4 2

We must instead construe “par ty ” in section 2001.901 to extend no far ther than wh at t he

Texas Co n s ti tu

tion allows—to presume or incorporate the jurisdictional require ment that the “par ty ” possess a justiciable intere st and standing to appea l. 4 3

See Texas Ass’n of Bus. , 852 S.W .2d at 444–45. 4 1

Finance Comm’n of Tex. v. Norwood , 418 S.W .3d 566, 582 n.83 (Tex. 2013) (obser ving 4 2 that APA section 2001.038, by requiring that plaintiff “alleg e[] that [a] rule or its threa tened application interfe res with or impairs, or threa tens to interfere wi t h o r impair, a leg al rig ht or privileg e of the plaintiff[,]

. . . does not purport to se t a highe r standard than that set by the g ener al doctrine of standing , and it cannot be lower, since cour t s ’ constitutional jurisdiction cannot be enlar g ed by statute” (citing In r e A llcat Claims Serv., L.P. , 356 S.W .3d 455, 462 (Tex. 2011))) ; see also In re Lazy W Dist. No. 1 , ___ S.W .3d

_ __, No. 15-0117, 2016 Tex. L EXI S 410, at *15 (Tex. May 27, 2016) (“F or the L eg islature to attempt to authorize a court t o ac t wi thout subject matter jurisdiction would violate the constitutional separ ation of power s.” (citing Tex. Const. art. I I , § 1)).
See Norwood , 418 S.W .3d at 582 n.83; s ee also, e.g. , In re Bay Area Citi zens Against 4 3 Lawsui t Abuse , 982 S.W .2d 371, 380 (Tex. 1998) (“We should, if possi ble, i nterpre t [a] statute in
a manner that avoids constitutional infirmities.” ) ; c f. B a c o n v

. Te

x a s H is torical Comm’n , 411 S.W .3d 161, 179 (Tex. App.—Austin 2013, no p et.) (similarly holding that plaintiff “must meet the constitutional standing require ments to seek judicial relief reg arding the [age ncy ] proce eding s—and the bare fac t that he could be said to hav e ‘st anding ’ befor e the ag ency [i .e., “par ty ” status there ] is not enoug h” (citing Fort Bend Cty. v. Texas Parks & W i l d l i f e Comm’n , 818 S.W .2d 898, 899 (Tex. App.—Austin 1991, no writ))).
14Be cause appellants lacke d standing to bring their appea l, the proper reme dy is for us

to dismiss this a

ppeal for want of subject-matter jurisdiction without disturbing the district c ourt’s judgme nt. To this extent, we g rant appellee s’ motion to dismiss appellants’ appea l—and, in turn,

4 4 appellee s’ own cross-a

ppeal—f or want of subject-matter jurisdiction. We deny appellants’ reque st

to vaca te the district cour t’s judgme nt also.

__________________________________________

Bob Pembe rton, J ustice

Be fore Chief J ustice Rose, Jus tices Pemberton a nd Field

Dismissed for Want of J urisdiction
Filed: June 8, 2016

See Nay lor , 466 S.W .3d at 787. 4 4

15