     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-16-00019-CV



              Empower Texans, Inc. and Michael Quinn Sullivan, Appellants

                                               v.

The State of Texas Ethics Commission; Natalia Luna Ashley, in her Capacity as Executive
 Director of the Texas Ethics Commission; Tom Ramsay, Individually and in his Capacity
  as Commissioner; Steven P. Wolens, Individually and in his Capacity as Commissioner;
    Hugh C. Akin, Individually and in his Capacity as Commissioner; James T. Clancy,
Individually and in his Capacity as Commissioner; Wilhelmina R. Delco, Individually and
 in her Capacity as Commissioner; Mary K. Kennedy, Individually and in her Capacity as
Commissioner; Chad M. Craycraft, Individually and in his Capacity as Commissioner; and
   Charles G. Untermeyer, Individually and in his Capacity as Commissioner, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
      NO. D-1-GN-14-001252, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                           MEMORANDUM OPINION


              This is an interlocutory appeal from the trial court’s denial of an application for a

temporary injunction. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(4) (permitting interlocutory

appeal of order that refuses temporary injunction). Empower Texans, Inc. and Michael Quinn

Sullivan (collectively, Empower Texans) sued the State of Texas Ethics Commission; Natalia Luna

Ashley, Executive Director of the Texas Ethics Commission; and the Commissioners of the Texas

Ethics Commission (collectively, the Commission)1 alleging causes of action arising out of the


       1
         Pursuant to Rule 7.2 of the Texas Rules of Appellate Procedure, current Commissioners
Steve P. Wolens, Mary K. Kennedy, and Chad M. Craycraft have been automatically substituted for
the former officeholders, Paul Hobby, Warren T. Harrison, and Robert K. Long, as appellees.
Commission’s investigation of two sworn complaints filed with the Commission in April 2012.2

In its petition, Empower Texans sought to quash subpoenas the Commission had issued pursuant to

its investigation of the sworn complaints. Empower Texans also sought declaratory relief related

to the Commission’s authority to pursue its investigation and alleged that the Commission’s

actions had violated its right to due process under the United States and Texas Constitutions.

See U.S. Const. amend. XIV, § 1; Tex. Const. art. I, § 19. Empower Texans further alleged that

the Commission’s investigation was a violation of its civil rights under the First, Fourth, and

Fourteenth Amendments to the United States Constitution and sought the relief authorized by

42 U.S.C. § 1983. See 42 U.S.C. § 1983. Empower Texans included in its petition the following

request for injunctive relief:


        Plaintiffs respectfully move the Court to grant them injunctive relief, against the
        Commissioners and the TEC, including, but not limited to, a temporary restraining
        order, preliminary injunction and permanent injunction restraining the enforcement
        of the subpoenas issued by the TEC.

        Plaintiffs move this Court to issue a protective order and quash the TEC subpoenas
        and/or Order as provided by the Texas Government Code. See Tex. Gov’t Code Ann.
        § 571.137(d) (West).3


In its prayer for relief, Empower Texans requested that the trial court issue a protective order and

quash the subpoenas, make a number of declarations regarding provisions of the Texas Election

        2
          The sworn complaints included allegations of violations of certain reporting and related
requirements contained in Title 15 of the Texas Election Code. See Tex. Elec. Code chs. 251-58
(regulating political funds and campaigns).
        3
         This section provides that a respondent to a subpoena issued by the Texas Ethics
Commission has a right to quash the subpoena “as provided by law.” See Tex. Gov’t Code
§ 571.137(d).

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Code and Empower Texans’s conduct, declare that the Commission’s investigation “without the

adoption of procedural rules” violated Empower Texans’s due process rights, award monetary

damages, costs, and attorneys’ fees, and “grant such other relief as Plaintiffs may be just and

equitable [sic], whether in equity or in law.”

                Empower Texans noticed a hearing on its motion to quash the subpoenas and its

request for injunctive relief. At the hearing, Empower Texans essentially argued that the sworn

complaints did not contain allegations that could supply any legal basis to justify the Commission’s

investigation and, consequently, the Commission should be enjoined from continuing its

investigation of those complaints pending a final judgment in the case. Empower Texans also asked

the trial court to quash the subpoenas. The Commission countered that a temporary injunction was

not available because Empower Texans was not seeking relief beyond quashing the subpoenas,

which it argued was a dispute about the scope of discovery and did not provide a basis for additional

injunctive relief.

                After the hearing, Empower Texans filed a proposed order with the court that

contained a proposed finding that “[Empower Texans] has suffered and will continue to suffer a

continual harassment by [the Commission] of a potentially never ending onslaught of subpoenas and

investigative efforts without any such notice as to what is being investigated.” The injunctive relief

set forth in the proposed order was that the Commission be “enjoined from issuing any further

subpoenas or investigatory requests [] in the Texas Ethics Commission cause numbers SC3120485

and SC3120486 until a final judgment is entered in this case.” The proposed order also contained

language granting a protective order that would have directed the Commission to refrain from



                                                  3
issuing any further subpoenas or investigatory requests in cause numbers SC-3120485 and

SC-3120486 and quashing the subpoenas. The trial court did not sign this proposed order but instead

signed an order that denied Empower Texans’s motion for protective order, motion to quash, and

application for temporary injunction. Empower Texans then filed a notice of interlocutory appeal,

which stated that it desired to appeal the “Order denying a temporary injunction against [the

Commission].” See Tex. Civ. Prac. & Rem. Code § 51.014(a)(4).

               While the interlocutory appeal was pending, the Commission voted to dismiss sworn

complaints SC-3120485 and SC-3120486. On October 13, 2016, the Commission signed an order

of dismissal of both sworn complaints. As a result, the Commission asserts that the interlocutory

appeal of the trial court’s denial of Empower Texans’s request for temporary injunctive relief is now

moot. We agree. Empower Texans sought to have the trial court enjoin the Commission from

issuing subpoenas and investigating sworn complaints SC-3120485 and SC-3120486 pending a final

judgment. The trial court denied the request, and this interlocutory appeal challenges that ruling.

The Commission has now dismissed both sworn complaints and thereby ceased the investigatory

efforts Empower Texans sought to enjoin. Consequently, this appeal seeks to obtain a judgment on

a controversy that no longer exists and is therefore moot. See Camarena v. Texas Emp’t Comm’n,

754 S.W.2d 149, 151 (Tex. 1988) (mootness doctrine dictates that courts avoid rendering opinion

that does not decide controversy that is “live” at time decision is made).

               Empower Texans asserts that the interlocutory appeal is not moot because “there

remains a live dispute between the parties—specifically, whether [the Commission’s] morph-into-a-

PAC theory is compatible with the Constitution.” Empower Texans is correct that this disputed



                                                 4
issue remains pending as part of the underlying case in the trial court, but not as part of this

interlocutory appeal. In an interlocutory appeal of an order granting or denying a temporary injunction

authorized by section 51.014(a)(4) of the Texas Civil Practice and Remedies Code “the merits of the

underlying case are not presented for appellate review.” Davis v. Huey, 571 S.W.2d 859, 861 (Tex.

1978). “Appellate review of an order granting or denying a temporary injunction is strictly limited

to determination of whether there has been a clear abuse of discretion by the trial court in granting

or denying the interlocutory order.” Id. at 862. Thus, the only issue before this Court is whether

the trial court abused its discretion by refusing to enjoin the Commission from further investigating

the sworn complaints to preserve the status quo pending a trial on the merits. That issue became

moot when the Commission dismissed the investigation. See Williams v. Lara, 52 S.W.3d 171, 184

(Tex. 2001) (case becomes moot when controversy ceases to exist because issue presented is no

longer “live”).

                  Empower Texans also maintains that the dispute between it and the Commission falls

within the “capable of repetition yet evading review” exception to the mootness doctrine. See Lara,

52 S.W.3d at 184 (capable of repetition yet evading review exception to mootness doctrine applies

in rare circumstance in which challenged action was too short in duration to be fully litigated before

action ceased or expired and reasonable expectation exists that same complaining party will be

subjected to same action again). The merits of Empower Texans’s dispute with the Commission

are not, however, before the Court in this interlocutory appeal, which is limited to reviewing the

trial court’s refusal to enjoin an investigation that is no longer ongoing. Moreover, the underlying

proceeding is still pending in the trial court. Even were we to assume that this exception to



                                                  5
the mootness doctrine applies, judicial review of the Commission’s activities giving rise to

Empower Texans’s claims must take place first in the trial court. See Lehmann v. Har-Con Corp.,

39 S.W.3d 191, 195 (Tex. 2001) (“Though its origins are obscure and its rationale has varied over

time, the general rule, with a few mostly statutory exceptions, is that an appeal may be taken only

from a final judgment.” (citations omitted)).

               Because the Commission’s dismissal of sworn complaints SC-3120485 and

SC-3120486 renders the question of whether it should be temporarily enjoined from investigating

those complaints pending a trial on the merits moot, we dismiss this interlocutory appeal for lack of

subject-matter jurisdiction.



                                                _____________________________________________

                                                Scott K. Field, Justice

Before Justices Puryear, Pemberton, and Field

Dismissed for Want of Jurisdiction

Filed: November 22, 2016




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