                               NUMBER 13-10-444-CV

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

CITY OF MCALLEN AND
CHIEF VICTOR RODRIGUEZ,                                                        Appellants,

                                              v.

MCALLEN POLICE OFFICERS UNION,                                                    Appellee.


                  On appeal from County Court at Law No. 6
                         of Hidalgo County, Texas.


                          MEMORANDUM OPINION
                 Before Justices Rodriguez, Garza, and Vela
                   Memorandum Opinion by Justice Vela
       This interlocutory appeal is from a trial court order denying a plea to the jurisdiction

filed by the City of McAllen and McAllen chief of police, Victor Rodriguez (“the City”). The

McAllen Police Officers’ Union (“the Union”) sought a declaratory judgment action against
the City, complaining that the City violated chapters 143 and 174 of the local government

code and the parties’ collective bargaining agreement by “wrongfully and without

authority or justification unlawfully interpreting and applying the Collective Bargaining

Agreement terms by placing returning rehired McAllen Police officers in a probationary

status, denying seniority rights and rights to education reimbursements and the

opportunity to test for promotion and by detrimentally affecting the pay scale of the

returning officers.” See TEX. LOC. GOV’T CODE ANN. § 143.001-.363 (Vernon 2008 &

Supp. 2010); § 174.001-.253 (Vernon 2008 & Supp. 2010). The City moved to dismiss

the case for lack of jurisdiction, arguing that the declaratory judgment action sought an

advisory opinion, was moot and not ripe for review, and that the Union did not have

standing. On appeal, the City raises issues with respect to mootness and urges that the

Union had no standing. We reverse and render judgment dismissing the case for lack of

jurisdiction.

                                     I. BACKGROUND

       The Union originally filed suit against the City, claiming that it was the recognized

bargaining agent for all McAllen police officers. It urged that the City had violated the

local government code and the collective bargaining agreement by wrongfully interpreting

and applying the collective bargaining agreement by placing returning rehired McAllen

police officers on probationary status and, in so doing, denied “seniority rights and rights

to education reimbursements and the opportunity to test for promotion and by

detrimentally affecting the pay scale of returning officers.” As declaratory relief, the

Union sought several declarations, including a declaration that it has standing to raise


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such claims, grievances and concerns of union members, and that the City failed in its

duty to deal with the issue of returning rehires in a fair and consistent manner under the

terms of the collective bargaining agreement.

       The City filed its plea to the jurisdiction urging that, based on the Union’s

pleadings, there was no live controversy. It is, in fact, undisputed that at the time the

declaratory judgment action was filed, no employee was adversely affected by the City’s

alleged policy of requiring rehires to complete a one-year period of probation. Two

officers had allegedly been affected by this policy, but each of those officers had

completed the year-long probationary term. The City argued that the Union failed to

plead that any officer is currently being affected by this policy, thus there was no more

than a contingent or remote possibility of an injury.

       In response, the Union argues that an action is not moot when a party voluntarily

abandons the conduct at issue. But, it focuses primarily on the fact that “one cannot

assume that the City will not apply the probationary status again.” The Union also urges

this Court to uphold the trial court’s denial of the City’s plea based on the “capable of

repetition yet evading review” exception to the mootness doctrine. The Union also

argues that there is a public interest exception where appellate review may be obtained if

an issue is of considerable public importance and if that issue is capable of evading

review.

                                 II. STANDARD OF REVIEW

       We review a trial court's ruling on a plea to the jurisdiction under a de novo

standard of review. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.


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2004). The plaintiff bears the burden of alleging facts affirmatively demonstrating the

trial court's jurisdiction to hear a case. Id. We construe the pleadings liberally in favor

of the pleader, look to the pleader's intent, and accept as true the factual allegations in the

pleadings. Id. at 228; see City of San Antonio v. Butler, 131 S.W.3d 170, 174 (Tex.

App.–San Antonio 2004, pet. denied).          If a plea to the jurisdiction challenges the

existence of jurisdictional facts, we consider relevant evidence submitted by the parties

when necessary to resolve the jurisdictional issues raised, as the trial court is required to

do. Miranda, 133 S.W.3d at 227; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554

(Tex. 2000).

                                        III. ANALYSIS

       The City first argues that based upon the Union’s pleadings, it is clear that the

Union seeks declaratory relief on alleged instances of previous conduct. As a result, the

City claims the issue is moot and not the proper subject of a declaratory judgment action.

Conversely, the Union argues that the City, through its chief of police, is misinterpreting

the re-hire provision of the collective bargaining agreement by placing rehired police

officers on an arbitrary one-year probationary period.

       Mootness is a component of subject matter jurisdiction. Krohn v. Marcus Cable

Assocs., L.P., 201 S.W.3d 876, 882 (Tex. App.–Waco 2006, pet. denied); Labrado v.

County of El Paso, 132 S.W.3d 581, 589 (Tex. App.–El Paso 2004, no pet.). A case

becomes moot if a controversy no longer exists or if the parties lack a legally cognizable

interest in the outcome. Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005).

When a case becomes moot, the parties lose standing to maintain their claims. City of


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McAllen v. McAllen Police Officers Union, 221 S.W.3d 885, 895-96 (Tex. App.–Corpus

Christi 2007, pet. denied) (citing Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001).

       Here, assuming without deciding that the Union had standing to initially bring the

lawsuit, it is clear that it was seeking relief based upon previous alleged injuries, not

current injuries that are presently justiciable.       The Union wholly failed to plead or

establish that any officer is currently affected by the rehire policy of the City or that the City

has voluntarily abandoned the conduct at issue. Therefore, there is no live controversy

for this Court to rule upon.

       The Union argues that exceptions to the mootness doctrine apply here. The

Texas Supreme Court has recognized only two exceptions to the mootness doctrine: (1)

the   capable     of   repetition,   yet    evading     review    exception;     and    (2)   the

collateral-consequences exception. Fed. Deposit Ins. Corp. v. Nueces County, 886

S.W.2d 766, 767 (Tex. 1994); Gen. Land Office v. Oxy U.S.A., Inc., 789 S.W.2d 569, 571

(Tex. 1990). The Union specifically urges the “capable of repetition yet evading review”

exception.

       The “capable of repetition yet evading review” exception applies only in rare

circumstances. Williams, 52 S.W.3d at 184 (citing Los Angeles v. Lyons, 461 U.S. 95,

109, 103 (1983)).      To invoke the exception, “a plaintiff must prove that:            (1) the

challenged action was too short in duration to be litigated fully before the action ceased or

expired; and (2) a reasonable expectation exists that the same complaining party will be

subjected to the same action again.” City of McAllen, 221 S.W.3d at 896 (citing Williams

52 S.W.3d at 184). Appellants cite no Texas cases applying this exception to a fact


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situation similar to the case before us.

       Litigants have used these exceptions to challenge such actions as unconstitutional

mental commitments after the complaining party's release, see, e.g., State v. Lodge, 608

S.W.2d 910 (Tex. 1980); Ex parte Ullmann, 616 S.W.2d 278 (Tex. App.–San Antonio

1981, writ dism'd); unconstitutional adjudications of juvenile delinquency, Carrillo v. State,

480 S.W.2d 612, 616-17 (Tex. 1972); and as unconstitutional prior restraints on speech.

Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 209 (Tex. 1981).

       It is undisputed that the officers in question were on probation for one year. There

is nothing in the record to suggest that a one-year period is too short for a claim to be

litigated. Further, there is nothing to suggest that the officers in question could meet the

“capable of repetition” element of the exception. There is no reasonable expectation that

any of the previously affected officers will resign again, be rehired within six months, and

be placed on probationary status again. See Williams, 52 S.W.3d at 184. This case is

simply not one of those rare circumstances where the mootness doctrine should not be

applied.

       The Union also urges that we apply a public interest exception to the mootness

doctrine to this case. The public-interest exception allows appellate review of an issue of

considerable public importance if that issue is capable of repetition between either the

same parties or other members of the public, but, for some reason, evades appellate

review. Tex. Dep't of Pub. Safety v. LaFleur, 32 S.W.3d 911, 914 (Tex. App.–Texarkana

2000, no pet.). While this Court has acknowledged the existence of the public interest

exception, even though the supreme court has not, the issue is not before us because this


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case does not affect the public interest. See In re Guerra, 235 S.W.3d 392, 433 n. 198

(Tex. App.–Corpus Christi 2007, orig. proceeding) (recognizing and applying the

exception). Therefore, even if such exception is recognized, it is not applicable here.

We sustain the City’s first issue.

                                     IV. CONCLUSION

       Having addressed all dispositive issues, we reverse the trial court’s order denying

the plea to the jurisdiction and render judgment dismissing the case for lack of subject

matter jurisdiction.




                                                ROSE VELA
                                                Justice

Delivered and filed the
17th day of March, 2011.




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