       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-18-00803-CV


   Texas Commission on Environmental Quality, Toby Baker, in his Official Capacity as
         Executive Director,1 and AES Generation Development, LLC, Appellants

                                                 v.

                                   Patricia Gonzales, Appellee


          FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-18-001561, THE HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING


                             MEMORANDUM OPINION


               This is a dispute over an air quality permit issued by the Texas Commission on

Environmental Quality to AES Generation Development, LLC. Patricia Gonzales sued the

Commission, its Executive Director Toby Barker, (collectively TCEQ), to invalidate the permit,

and AES intervened.        Gonzales alleged that TCEQ failed to follow applicable notice

requirements and that this failure prevented her from, among other things, requesting a contested

case hearing to challenge AES’s permit application. The district court denied appellants’ pleas

to the jurisdiction, and this appeal followed.




       1
          This suit was originally brought against Richard A. Hyde, the former executive director
of the Texas Commission on Environmental Quality, in his official capacity. We automatically
substitute the name of his successor in that office, Toby Baker. See Tex. R. App. P. 7.2(a).
               AES has filed an unopposed motion to withdraw its appeal advising that the

permit has expired and arguing Gonzales’s claims are moot as a result. We requested and

received supplemental briefing from TCEQ and Gonzales. TCEQ agrees the case is moot, but

Gonzales argues her claim for declaratory relief against TCEQ still presents a live controversy.2

               Texas courts have no jurisdiction to decide moot cases.           State ex rel. Best

v. Harper, 562 S.W.3d 1, 6 (Tex. 2018). A case becomes moot when there ceases to be a

justiciable controversy between the parties or if 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.”

Id. (quoting Heckman v. Williamson County, 369 S.W.3d 137, 162 (Tex. 2012)). If a case

becomes moot, the court must vacate all previously issued orders and judgments and dismiss the

case. Glassdoor, Inc. v. Andra Group, LP, 575 S.W.3d 523, 527 (Tex. 2019).

               TCEQ issued Air Quality Permit No. 138152 to authorize construction of

AES’s planned Deepwater Power Plant. The permit required that construction begin within

eighteen months or it would expire automatically unless AES requested and received an

extension. See 30 Tex. Admin. Code § 116.120(a) (2018) (Tex. Comm’n on Envtl. Quality,

Voiding of Permits). The eighteen-month period expired on August 30, 2019, and AES chose

not to seek an extension. Gonzales argues her claim is not moot despite the expiration because

TCEQ could refuse to follow notice requirements in future permit proceedings.          She rests her

argument on the principle that “[a] defendant’s cessation of challenged conduct does not, in

itself, deprive a court of the power to hear or determine claims for prospective relief.” See


       2
           Gonzales concedes that her suit for judicial review of the permit, application for
injunctive relief, and petition for writ of mandamus are moot.
                                                 2
Matthews v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016). If it were otherwise,

defendants could control “the jurisdiction of courts with protestations of repentance and reform,

while remaining free to return to their old ways” after a suit is dismissed. Id.

               Gonzales contends this case is similar to Matthews and this Court’s decision in

Empower Texans, Inc. v. Texas Ethics Commission, No. 03-16-00872-CV, 2018 WL 3678005

(Tex. App.—Austin Aug. 3, 2018, no pet.) (mem. op.). In Matthews, a group of cheerleaders

sued to invalidate a school district’s policy against displaying religious banners at school events.

484 S.W.3d at 417. The district rescinded its policy but reserved its right to regulate the content

of the banners. Id. The Texas Supreme Court held the case was not moot because the school

district had not been “absolutely clear” it would not restore the ban after the litigation ended. See

id. at 418–19. Similarly, in Empower Texans, the Ethics Commission filed a petition to enforce a

subpoena it had served on Empower Texans. 2018 WL 3678005, at *1. Empower Texans

counterclaimed for a declaration that the Commission’s statutory enforcement authority was

unconstitutional.   Id.   The Commission nonsuited its enforcement action and argued the

counterclaim was moot as a result. Id. at *3. This Court disagreed because the Commission had

“never indicated that it would not act similarly in the event a new complaint was filed.” Id.

Both Matthews and Empower Texans concerned a defendant that had ceased the challenged

conduct but could easily resume it. That concern is not applicable here because the permit did

not become moot due to the cessation of challenged conduct by TCEQ. Instead, it became moot

as a result of AES’s failure to begin construction in time and its decision not to seek an

extension. Moreover, TCEQ does not control who applies for a permit or whether the permittee

will seek an extension. And now that this particular permit has expired, there is no longer a

justiciable controversy between Gonzales and TCEQ. See Heckman, 369 S.W.3d at 162 (noting

                                                 3
appeal becomes moot “when the court’s action on the merits cannot affect the parties’ rights

or interests”).

                  We vacate the district court’s order denying the pleas to the jurisdiction and

dismiss the case for want of jurisdiction. See Tex. R. App. P. 43.2(e). We dismiss AES’s

motion to withdraw its appeal as moot.



                                              __________________________________________
                                              Edward Smith, Justice

Before Chief Justice Rose and Justices Triana and Smith

Vacated and Dismissed for Want of Jurisdiction

Filed: October 30, 2019




                                                 4
