      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00299-CV



                                       Suvi Orr, Appellant

                                                  v.

           The University of Texas at Austin, Gregory L. Fenves, Judith Langlois, and
                  Shelby Stanfield, in their official capacities only, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
       NO. D-1-GN-14-000465, HONORABLE DARLENE BYRNE, JUDGE PRESIDING



                             MEMORANDUM OPINION

                After the University of Texas at Austin revoked her Doctor of Philosophy degree,

Suvi Orr sued the University of Texas at Austin and Gregory L. Fenves, Judith Langlois, and

Shelby Stanfield, in their official capacities (collectively UT), challenging UT’s investigation and

decision-making process and alleging that UT had violated her due course of law rights. See Tex.

Const. art. I, § 19.1 After UT restored Orr’s degree and initiated its student discipline process to

address allegations that Orr had engaged in scientific misconduct, UT filed a plea to the jurisdiction

asserting that Orr’s claims were moot. The district court granted the plea.




       1
          Consistent with the parties’ briefing, we use the terms “due process” and “due course of
law” interchangeably. See University of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995)
(regarding Texas Constitution’s term “due course” and United States Constitution’s term “due
process” to be “without meaningful distinction”); see also U.S. Const. amend. XIV, § 1.
                On appeal, Orr challenges the district court’s ruling, arguing (1) her suit is not moot

because it is too early to determine if UT’s new proceeding will satisfy due process, and (2) the

“availability of declaratory relief and attorney fees and costs ‘breathes life’ into [her] claims against

UT.” For the following reasons, we affirm the district court’s order granting UT’s plea.


                                            BACKGROUND

                Suvi Orr earned her doctoral degree from the University of Texas at Austin (UT

Austin) in 2008. In 2012, UT Austin informed Orr that allegations of scientific misconduct

concerning her degree had been made against her. A committee was then formed to investigate the

allegations. After an investigation, the committee submitted its findings to UT Austin’s Executive

Vice President and Provost, who referred the findings to Orr’s dissertation committee. The

dissertation committee determined that, based on the investigation’s findings, Orr’s degree was

awarded improperly and should be revoked. On February 3, 2014, UT Austin’s Senior Vice Provost

and Dean of Graduate Studies notified Orr that her degree would be revoked; Orr’s degree was then

revoked on February 12, 2014.

                Orr filed suit two days later, asserting that UT’s process in connection with its

investigation and decision to revoke her degree was insufficient to meet minimum constitutional

standards under the Texas Constitution’s due course of law provision. See Tex. Const. art. I, § 19.

Orr sought temporary and permanent injunctive relief to prevent UT from revoking her degree and

from violating her constitutional rights. See Tex. Civ. Prac. & Rem. Code § 65.011 (outlining

grounds for injunctive relief generally).




                                                   2
                The same day that Orr filed suit, Orr and UT entered into a Rule 11 agreement

specifying that UT would restore Orr’s degree “subject to further discussions regarding additional

process.” See Tex. R. Civ. P. 11. The Rule 11 agreement also states that “[t]he parties have also

agreed to discuss providing Ms. Orr with additional process to challenge UT Austin’s actions as a

possible resolution to this litigation” and “that any such agreement requires further discussions and

consideration by the parties.” In a subsequent letter sent approximately two weeks later, UT

informed Orr that it would “be initiating the student discipline process to address the findings of an

investigative committee and the Provost that Suvi Orr engaged in scientific misconduct and the

subsequent recommendation of her dissertation committee that her Ph.D. be revoked.” Enclosed

with this letter was a copy of the governing procedures for the student discipline process.

                On April 9, 2014, UT filed a plea to the jurisdiction, alleging that UT’s restoration

of Orr’s degree and its initiation of the student discipline process to consider the allegations against

her had mooted her claims. UT urged that the additional process satisfied the due course of law

clause and that “this additional process rendered Orr’s single cause of action moot because she is

being provided all the relief that she seeks in this lawsuit.” Orr did not file a response to UT’s plea,

but she amended her petition on April 30, 2014, to add requests for declaratory relief and attorney’s

fees under the Uniform Declaratory Judgments Act (UDJA). See Tex. Civ. Prac. & Rem. Code

§§ 37.001–.011. Although she did not amend her factual allegations to include a complaint

concerning UT’s student discipline process, Orr sought declarations that she “is entitled to rights

under article I, section 19 of the Texas Constitution” and “that Defendants have violated Plaintiff’s




                                                   3
said rights.” After a hearing on May 1, 2014, the trial court granted the plea without stating the

grounds for its ruling and dismissed Orr’s claims. Orr then brought this appeal.


                                     STANDARD OF REVIEW

                Whether a court has subject matter jurisdiction is a question of law, which we review

de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We focus

on the plaintiff’s petition to determine whether the facts that were pleaded affirmatively demonstrate

that subject matter jurisdiction exists, and we construe the pleadings liberally in favor of the plaintiff.

Id. If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider the

pleadings and the evidence that is related to the jurisdictional inquiry. Id. at 227 (citing Bland Indep.

Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)).


                                              ANALYSIS

Mootness

                “Standing is a constitutional prerequisite to maintaining suit.” Williams v. Lara,

52 S.W.3d 171, 178 (Tex. 2001). A court has no jurisdiction over a claim made by a plaintiff who

lacks standing and as such must dismiss it. Heckman v. Williamson Cnty., 369 S.W.3d 137, 150–51

(Tex. 2012). “For a plaintiff to have standing, a controversy must exist between the parties at every

stage of the legal proceedings.” Lara, 52 S.W.3d at 184. “If a controversy ceases to exist—‘the

issues presented are no longer “live” or the parties lack a legally cognizable interest in the

outcome’—the case becomes moot.” Id. (citation omitted); see In re Kellogg Brown & Root, Inc.,

166 S.W.3d 732, 737 (Tex. 2005) (noting case becomes moot if controversy ceases to exist between



                                                     4
parties); Texas Health Care Info. Council v. Seton Health Plan Inc., 94 S.W.3d 841, 846–47 (Tex.

App.—Austin 2002, pet. denied) (“A case becomes moot when: (1) it appears that one seeks to

obtain a judgment on some controversy, when in reality none exists; or (2) when one seeks a

judgment on some matter which, when rendered for any reason, cannot have any practical legal effect

on a then-existing controversy.”). If a case becomes moot, the parties lose standing to maintain their

claims. Lara, 52 S.W.3d at 184; see Texas Health Care Info. Council, 94 S.W.3d at 846 (“The

mootness doctrine dictates that courts avoid rendering advisory opinions by only deciding cases that

present a ‘live’ controversy at the time of the decision.”).

               In her first issue, Orr argues that her due course of law claim is not moot because she

“has not received all of the relief that she seeks” in this claim. Orr does not dispute that UT has

restored her degree and initiated its student discipline process to address the scientific misconduct

charges against her but urges that this proceeding “is in its infancy and UT has withheld critical

details regarding the new proceedings.” Orr’s factual allegations in her pleadings, however, do not

address UT’s student discipline process; they address UT’s past action of allegedly revoking her

degree “without due process.” See Miranda, 133 S.W.3d at 227 (considering pleadings and evidence

that is related to the jurisdictional inquiry to determine trial court’s jurisdiction). Based on UT’s

alleged past conduct, Orr seeks injunctive relief “enjoining the Defendants from violating [her] rights

under the Texas Constitution” and declarations that she “is entitled to rights under Article I, Section

19 of the Texas Constitution” and that “Defendants have violated [her] said rights.”2


       2
         Orr does not seek money damages against UT, limiting her request for relief to injunctive
and declaratory relief. See Texas Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849,
853 (Tex. 2002) (“Sovereign immunity protects the State from lawsuits for money damages.”).

                                                  5
               The foundation for Orr’s request for relief is UT’s alleged revocation of her degree

without procedural due process.3 “[T]he remedy for the denial of due process is due process,” which

at a minimum requires “notice and an opportunity to be heard at a meaningful time and in a

meaningful manner.” See University of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 931, 933 (Tex.

1995). Thus, assuming that Orr is entitled to procedural due process, her relief for her allegations

would be “a fair hearing with notice of the charges and evidence to be used against [her] with

an opportunity to defend against the charges.” See id. at 933–34 (citing Perry v. Sindermann,

408 U.S. 593, 603 (1972), for its holding that “upon proof of protected interest, professor whose

contract was not renewed is not entitled to reinstatement but to hearing comporting with due

process”). UT’s undisputed evidence, however, established that UT went beyond the remedy of

due process by restoring Orr’s degree. In this context, Orr’s pleadings do not identify a “legally

cognizable interest” in obtaining any prospective relief as to UT’s past investigation and

decision-making process. See Lara, 52 S.W.3d at 184 (concluding plaintiffs “lack a legally

cognizable interest in obtaining injunctive or declaratory relief” and that claims were moot because

plaintiffs “no longer face the unconstitutional conduct about which they complain, and thus any

prospective relief we might grant cannot help them”); Texas Health Care Info. Council, 94 S.W.3d


Sovereign and governmental immunity generally do not shield a political subdivision and state
officials from suit for equitable relief based on alleged constitutional violations. See City of El Paso
v. Heinrich, 284 S.W.3d 366, 368 (Tex. 2009) (concluding that “while governmental immunity
generally bars suits for retrospective monetary relief, it does not preclude prospective injunctive
remedies in official-capacity suits against government actors who violate statutory or constitutional
provisions”); City of Elsa v. M.A.L., 226 S.W.3d 390, 391 (Tex. 2007) (reaffirming that
“governmental entities may be sued for injunctive relief under the Texas Constitution”).
       3
        In her reply brief, Orr states that her suit “does not challenge future discipline that UT may
or may not institute against her.”

                                                   6
at 846 (requiring “live” controversy at time of court’s decision). Thus, we conclude that Orr’s due

course of law claim is moot and that she does not have standing to maintain it.4

                Although Orr’s amended petition does not address the student discipline process that

UT initiated after her suit was filed, Orr urges on appeal that her suit is still “live” in the sense that

it is too early to determine if the new proceeding will comport with the due course of law clause.

UT responds that claims concerning the student discipline process are unripe and would require this

Court to issue an advisory opinion. See Robinson v. Parker, 353 S.W.3d 753, 755 (Tex. 2011)

(“Ripeness ‘is a threshold issue that implicates subject matter jurisdiction . . . [and] emphasizes the

need for a concrete injury for a justiciable claim to be presented.’” (quoting Patterson v. Planned

Parenthood, 971 S.W.2d 439, 442 (Tex. 1998)); Planned Parenthood, 971 S.W.2d at 444 (holding

that “the essence of the ripeness doctrine is to avoid premature adjudication of just such a situation;

to hold otherwise would be the essence of an advisory opinion, advising what the law would be on

a hypothetical set of facts”). At this point, Orr’s degree is intact, and any alleged injury based on the

new proceeding remains contingent. See Robinson, 353 S.W.3d at 755. Thus, we conclude that,




        4
           In her reply brief, Orr cites cases discussing the voluntary-cessation doctrine. See, e.g.,
Drexel Corp. v. Edgewood Dev., Ltd., 417 S.W.3d 672, 676 (Tex. App.—Houston [14th Dist.] 2013,
no pet.) (describing voluntary-cessation doctrine and concluding UDJA claim was not moot because
party “has retained an ‘unfettered ability’ to insist that [other party] make payments that [other party]
denies it owes” under contract between parties); Lakey v. Taylor, 278 S.W.3d 6, 12 (Tex.
App.—Austin 2008, no pet.) (concluding “Department may not moot this appeal by voluntarily
abandoning the policy at issue ‘without any binding admission or extrajudicial action that would
prevent a recurrence of the challenged action’”). Although UT might decide to revoke Orr’s degree
at some point in the future, Orr does not dispute that UT has restored her degree and initiated the
student discipline process to address the scientific misconduct allegations against her, which process
she does not challenge in her pleadings. She also is not challenging any future discipline in this suit.
In this context, we do not find cases addressing the voluntary-cessation doctrine applicable.

                                                    7
even if Orr had alleged injury concerning the student discipline process in her amended petition, this

allegation would not have conferred jurisdiction on the district court. See id. We overrule Orr’s

first issue.


Claim for Attorney’s Fees under UDJA

               In her second issue, Orr asserts that, even if her claims “on the merits” are moot, her

request for attorney’s fees under the UDJA “keeps this case ‘alive.’” Orr amended her petition to

include a request for declaratory relief and attorney’s fees under the UDJA one day before the trial

court’s hearing on UT’s plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code § 37.009

(authorizing court to award costs and reasonable and necessary attorney’s fees as are equitable

and just).

               The Texas Supreme Court has held that a claim for attorney’s fees under the UDJA

“breathes life” into an appeal and prevents it from being moot when the substantive claims are

mooted during the pendency of the case. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642–43

(Tex. 2005) (concluding that “[party]’s remaining interest in obtaining attorney’s fees ‘breathes life’

into appeal and prevents it from being moot”); Camarena v. Texas Emp’t Comm’n, 754 S.W.2d 149,

151 (Tex. 1988) (concluding “‘live’ issue in controversy is whether or not the [parties] have a legally

cognizable interest in recovering their attorney’s fees and costs”). In those cases, however, the trial

court had jurisdiction over the substantive claims before they became moot and the claims for

attorney’s fees were pending at the time the substantive claims became moot. See, e.g., Hallman,

159 S.W.3d at 641 (addressing mootness after underlying litigation concluded during pendency of

case in context of declaratory judgment action in which both parties sought attorney’s fees and

                                                  8
dispute concerned coverage under insurance policy); Camerena, 754 S.W.2d at 150 (addressing

mootness after statute amended to rectify challenged provision in context of declaratory judgment

action in which plaintiff sought attorney’s fees and challenged statute’s constitutionality).

               The UDJA “does not extend a trial court’s jurisdiction, and a litigant’s request for

declaratory relief does not confer jurisdiction on a court or change a suit’s underlying nature.” Texas

Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); see Texas Ass’n

of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (noting that UDJA is “merely

a procedural device for deciding cases already within a court’s jurisdiction rather than a legislative

enlargement of a court’s power, permitting the rendition of advisory opinions”). A declaratory

judgment action “does not vest a court with jurisdiction ‘to pass upon hypothetical or contingent

situations, or to determine questions not then essential to the decision of an actual controversy,

although such questions may in the future require adjudication.’” See Bexar Metro. Water Dist.

v. City of Bulverde, 234 S.W.3d 126, 130–31 (Tex. App.—Austin 2007, no pet.) (quoting Firemen’s

Ins. Co. v. Burch, 442 S.W.2d 331, 333 (Tex. 1968)).

               In contrast to the procedural posture of the cases cited above in which a party’s

request for attorney’s fees under the UDJA was “live,” Orr amended her petition to add her request

for declaratory relief after her due course of law claim requesting injunctive relief was already moot.

Thus, the due course of law claim was not available to support the district court’s jurisdiction to

consider her UDJA claims, including her claim for attorney’s fees. See Texas Dep’t of Pub. Safety

v. Salazar, No. 03-11-00478-CV, 2013 Tex. App. LEXIS 13400, at *23 n.7, 37 (Tex. App.—Austin

Oct. 31, 2013, pet. denied) (mem. op.) (concluding that district court did not have jurisdiction over



                                                   9
UDJA claims, including claims for attorney’s fees, and noting that “issue of attorney’s fees could

only be a live dispute if the district court had jurisdiction over the declaratory claims to begin with”);

see also IT-Davy, 74 S.W.3d at 855; Bexar Metro. Water Dist., 234 S.W.3d at 130–31.

                Because Orr’s due course of law claim was already moot when Orr amended her

petition to request declaratory relief and attorney’s fees, we conclude that the district court did not

have a jurisdictional basis to consider Orr’s UDJA claims, including her request for attorney’s fees.5

See Bexar Metro. Water Dist., 234 S.W.3d at 130–31; Strayhorn v. Raytheon E-Sys., Inc.,

101 S.W.3d 558, 572 (Tex. App.—Austin 2003, pet. denied) (“To establish jurisdiction under the

UDJA, a party must plead the existence of an ‘underlying controversy’ within the scope of section

37.004 of the civil practice and remedies code.”); see, e.g., MBM Fin. Corp. v. Woodlands Operating

Co., 292 S.W.3d 660, 670 (Tex. 2009) (stating rule that “a party cannot use [UDJA] as a vehicle to

obtain otherwise impermissible attorney’s fees”). Thus, we overrule Orr’s second issue.


Opportunity to Cure Jurisdictional Deficiencies

                Orr urges that, even if her claims as currently pleaded are moot, this Court should

reverse the district court’s order and remand the case to the district court to provide her with an

opportunity to cure any jurisdictional deficiencies in her pleadings. A party, however, is not entitled

to the opportunity to cure a pleading defect when it is not possible to cure the defect. Texas A&M




        5
           Although UT does not raise this precise argument, we consider it sua sponte. See Rusk
State Hosp. v. Black, 392 S.W.3d 88, 95–96 (Tex. 2012) (holding that subject matter
jurisdiction may be raised for first time on appeal); Texas Ass’n of Bus. v. Texas Air Control Bd.,
852 S.W.2d 440, 446 (Tex. 1993) (holding that subject matter jurisdiction may be raised for first
time on appeal by court).

                                                   10
Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007); see Texas State Bd. of Veterinary Med.

Exam’rs v. Giggleman, 408 S.W.3d 696, 707–08 (Tex. App.—Austin 2013, no pet.) (noting that

“jurisdictional defect [would not] be curable at this juncture, as the underlying controversy is now

moot”); see also Miranda, 133 S.W.3d at 227 (noting that plea to jurisdiction may be granted

without allowing plaintiff opportunity to amend if pleadings affirmatively negate existence of

jurisdiction). As previously noted, Orr amended her petition to add a request for declaratory relief

and attorney’s fees under the UDJA after UT had already restored her degree and her constitutional

claim was moot, and she does not challenge future discipline that UT may or may not institute

against her in this suit. In this context, because the underlying controversy concerning UT’s past

revocation of Orr’s degree is moot, the jurisdictional defect in Orr’s pleadings is not curable. See

Giggleman, 408 S.W.3d at 707–08. Thus, we deny Orr’s request to remand this case to the district

court to allow her an opportunity to cure the jurisdictional deficiencies in her pleadings.


                                         CONCLUSION

                For the foregoing reasons, we affirm the trial court’s order granting UT’s plea to

the jurisdiction.



                                              __________________________________________
                                              Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

Affirmed

Filed: September 23, 2015



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