                               NO. 07-03-0089-CV

                           IN THE COURT OF APPEALS

                    FOR THE SEVENTH DISTRICT OF TEXAS

                                  AT AMARILLO

                                    PANEL C

                               DECEMBER 18, 2003

                       ______________________________


      ARTHUR WARE, INDIVIDUALLY AND AS POTTER COUNTY JUDGE,
  JOHN STRADLEY, INDIVIDUALLY AND AS POTTER COUNTY COMMISSIONER,
    MANNY PEREZ-VILLASENOR, INDIVIDUALLY AND AS POTTER COUNTY
   COMMISSIONER, STRICKLAND WATKINS, INDIVIDUALLY AND AS POTTER
     COUNTY COMMISSIONER, IRIS SANDERS LAWRENCE, INDIVIDUALLY
  AND AS POTTER COUNTY COMMISSIONER, AND POTTER COUNTY, TEXAS,
                            APPELLANTS

                                        V.

    TERRY MILLER, POTTER COUNTY CONSTABLE, PRECINCT 2, APPELLEE

                     _________________________________

            FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                 NO. 88,221-E; HONORABLE ABE LOPEZ, JUDGE

                       _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.


                                     OPINION


      Arthur Ware, Potter County Judge, and John Stradley, Manny Perez-Villasenor,

Strickland Watkins, and Iris Sanders Lawrence, individually and as Commissioners or
former Commissioners of Potter County, appellants, present this appeal from a judgment

signed February 10, 2003, following a non-jury trial on the merits which, although it denied

Terry Miller any recovery for damages, awarded $90,824.25 attorney’s fees, plus other

fees. Presenting four issues,1 Arthur Ware et al. contend (1) Miller’s declaratory judgment

claim presents a moot question; (2) the award of attorney’s fees under the Declaratory

Judgments Act2 was not authorized where the declarations sought were the same as the

essential elements of the mandamus claim previously denied; (3) Arthur Ware, et al., as

individuals, are entitled to legislative immunity from liability for attorney’s fees based on

their budgetary actions; and (4) Miller was not entitled to declaratory judgment concerning

the reasonableness of his Constable’s salary because he did not (a) serve any process,

(b) attend the justice court for his precinct, (c) make any arrests, or (d) submit any reports

concerning criminal activity during his term of office. For the reasons expressed below,

the judgment of the trial court is vacated and the appeal is dismissed.


            By his original petition filed during the final month of his term of office, Miller

commenced the underlying action to recover reasonable compensation for his term as

Constable and mandamus relief under Article XVI, section 61 of the Texas Constitution

and Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104 (Tex. 1981). In

addition, Miller sought declaratory relief, including attorney’s fees. By order signed



       1
           Issues are restated.
       2
           Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-37.011 (Vernon 1997 & Supp. 2004).

                                                2
December 21, 2001, in addition to denying Arthur Ware et al.’s motion for summary

judgment, the trial court granted Miller’s motion for partial summary judgment and directed

that a writ of mandamus be issued commanding the Commissioners Court to set and pay

a reasonable salary for Miller as Constable for 24 months, including all employee benefits

provided to elected officials of Potter County. Upon Arthur Ware et al.’s interlocutory

appeal,3 we concluded


       •        the trial court erred in denying Arthur Ware et al.’s plea to the
                jurisdiction as to Miller’s claim for damages;
       •        mandamus relief was not appropriate; and
       •        legislative immunity protected the Commissioners from liability in their
                individual capacities.


Because the December 21, 2001 order was only a partial summary judgment and

interlocutory, without addressing Miller’s request for declaratory relief, we reversed the

partial summary judgment and order directing the issuance of a writ of mandamus,

rendered judgment for Arthur Ware et al. on Miller’s claim for recovery of a reasonable

salary, ordered a severance, and remanded the proceedings seeking declaratory relief to

the trial court.


       After remand, Arthur Ware et al. filed a supplemental plea to the jurisdiction

contending that Miller’s declaratory judgment action was moot; however, the supplemental




       3
           See Ware v. Miller, 82 S.W.3d 795 (Tex.App.--Amarillo 2002, pet. denied).

                                               3
plea was denied by the trial court.4 After the severance and remand, Miller did not amend

his pleadings to raise any new claims but instead, proceeded to a non-jury trial on the

merits based on his prior pleadings on February 10, 2003. Following presentation of the

evidence,5 upon conclusion of the hearing, the trial court signed its judgment. Among

other things, the trial court concluded that Miller was entitled to a reasonable salary and

that Arthur Ware et al. had the legal obligation to set a reasonable salary for him pursuant

to Article XVI, section 61; however, the judgment did not make any monetary award of

salary or damages to Miller. As material here, the judgment also provided that Miller:


       is entitled to recover reasonable attorney’s fees and expenses in the sum of
       $90,824.25 pursuant to § 37.009 of the Texas Civil Practice & Remedies
       Code. The judgment for attorneys [sic] fees shall run jointly and severally
       against all Defendants herein with the following additional sums in the event
       of an appeal:
              (a) $7,500 attorneys [sic] fee [sic] in the event of an appeal to
              the Court of appeals; and

              (b) $7,500 attorneys [sic] fees in the event of an appeal to the Texas Supreme Court.

       All sums awarded to Plaintiff shall bear interest at the rate of 10% per annum
       from the date of judgment until paid, for recovery of which let execution issue
       as to the individual Defendants. No execution shall issue as to Potter
       County or its property. In the event this judgment is not observed by


       4
       The order denying the plea to the jurisdiction concluded, “[a]fter considering the
pleadings, the arguments of counsel and the evidence relevant to the jurisdictional issues,
the Court has determined that the remaining claim under the Uniform Declaratory
Judgments Act is justiciable and is not moot. The plea to the jurisdiction, therefore, must
be denied.”
       5
        Because Arthur Ware et al. do not challenge the sufficiency of the evidence or
contend the trial court abused its discretion in awarding attorney’s fees, we need not detail
the evidence presented at the hearing.

                                             4
      Defendant, Potter County, Texas, acting by and through its commissioners
      court, the Court, without affecting the finality of this judgment, will entertain
      requests for supplemental relief in accordance with § 37.011 Tex. Civ. Prac.
      & Rem. Code Ann. Costs of court are taxed against Defendants. All relief
      requested in this cause and not specifically and expressly granted herein is
      hereby DENIED.


Findings of fact and conclusions of law were not requested and except as contained in the

judgment, no conclusions of law were made by the trial court.


      By their first issue, Arthur Ware et al. contend that Miller’s claim for declaratory

judgment upon remand was moot. We agree. A case is moot when (1) a party seeks a

judgment to resolve a controversy, but no controversy exists, or (2) judgment is sought on

a matter which, when rendered for any reason cannot have a practical legal effect on an

existing controversy. Texas Health Care Info. Council v. Seton Health Plan, Inc., 94

S.W.3d 841, 847-48 (Tex.App.–Austin 2002, no pet.); see also Campus Communications,

Inc. d/b/a A & M Magazine v. Texas A & M University System, No. 01-02-00878-CV, 2003

WL 21027936, at *1 (Tex.App.–Houston [1st Dist. May 8, 2003, no pet. h.) (dismissing the

appeal because the issues before it were moot).


      Under article II, section 1 of the Texas Constitution, Texas courts do not have any

jurisdiction to issue advisory opinions. See Valley Baptist Medical Center v. Gonzalez,

33 S.W.3d 821, 822 (Tex. 2000). Moreover, in State v. Morales, 869 S.W.2d 941, 947

(Tex. 1994), the Court re-announced that the Uniform Declaratory Judgments Act was

merely a procedural device “for deciding cases already within a court’s jurisdiction” and


                                             5
that a request for declaratory relief “cannot confer jurisdiction on the court, nor can it

change the basic character of a suit.”


       Declaratory judgment actions cannot be used to resolve hypothetical or contingent

situations. Firemen’s Ins. Co. v. Burch, 442 S.W.2d 331, 333 (Tex. 1968). In Valley

Baptist, the discovery dispute was rendered moot when the Medical Center presented a

representative for deposition. 33 S.W.3d at 822. Similarly, Miller’s action for declaratory

judgment based on his pre severance pleadings was rendered moot because of our first

decision.


          Because the District Court erroneously assumed jurisdiction of Miller’s request for

declaratory judgment, we vacate the trial court’s judgment and dismiss the appeal. Tex.

R. App. P. 43.2 (e). Our disposition of this issue pretermits consideration of the remaining

issues.


                                                   Don H. Reavis
                                                     Justice



Quinn, J., concurs in the result.




                                               6
