      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-15-00118-CV




    Appellants, Texas Quarter Horse Association; Texas Thoroughbred Association;
  Texas Horsemen’s Partnership; Gillespie County Fair and Festivals Association, Inc.;
Global Gaming LSP, LLC d/b/a Lone Star Park at Grand Prairie; and Sam Houston Race
Park, LLC// Cross-Appellants, American Legion Department of Texas, Temple Post 133;
     Kickapoo Traditional Tribe of Texas; Thompson Allstate Bingo Supply, Inc.;
                              and Moore Supplies, Inc.

                                                  v.


            Appellees, American Legion Department of Texas, Temple Post 133;
        Kickapoo Traditional Tribe of Texas; Thompson Allstate Bingo Supply, Inc.;
       and Moore Supplies, Inc.// Cross-Appellees, Texas Quarter Horse Association;
             Texas Thoroughbred Association; Texas Horsemen’s Partnership;
                   Gillespie County Fair and Festivals Association, Inc.;
             Global Gaming LSP, LLC d/b/a Lone Star Park at Grand Prairie;
                             and Sam Houston Race Park, LLC


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
     NO. D-1-GN-14-003700, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING



                                           OPINION


               This proceeding presents two issues of potential significance to appellate and

administrative-law practitioners. The first is whether third parties have standing to appeal from a

trial-court judgment invalidating an agency rule when the affected agency has not perfected its

own appeal. At least under the circumstances here, we conclude that the third parties lack standing

to appeal. The second issue is whether an attempted appeal by such third parties, and no other

parties, is subject to the rule requiring appellate courts to vacate lower-court judgments and dismiss
the cause, not merely the appeal, when a case becomes moot on appeal.1 We conclude it is not.

Instead, the proper remedy is to dismiss the appeal for want of jurisdiction and leave the trial court’s

judgment undisturbed.


                                           BACKGROUND

                 This proceeding arose from the controversy concerning the “historical racing”

rules that had been adopted by the Texas Racing Commission in 2014.2 Alleging justiciable

interests deriving from perceived detrimental impact of the rules upon them, several original and

intervening plaintiffs—appellees here—sued the Commission and various official-capacity

defendants (collectively, the Commission Defendants) in district court to challenge the rules’

legality. Among other claims and theories, appellees sought declarations under either or both

section 2001.038 of the Administrative Procedure Act (APA)3 and the Uniform Declaratory

Judgments Act (UDJA)4 that the rules exceeded the Commission’s delegated authority under its




        1
          See, e.g., Texas Foundries, Inc. v. International Moulders & Foundry Workers Union,
248 S.W.2d 460, 461 (Tex. 1952) (“The rule has long been established . . . that when a case becomes
moot on appeal, all previous orders are set aside by the appellate court and the case is dismissed”;
courts do not merely “dismiss the appeal only . . . .”) (citations omitted); see also Heckman
v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012) (“If a case is or becomes moot, the court must
vacate any order or judgment previously issued and dismiss the case for want of jurisdiction.” (citing
Speer v. Presbyterian Children’s Home & Serv. Agency, 847 S.W.2d 227, 228–29 (Tex. 1993))).
        2
            See 39 Tex. Reg. 7573 (Sept. 19, 2014) (proposed June 27, 2014).
        3
          See Tex. Gov’t Code § 2001.038 (authorizing plaintiff who “allege[s] that [a] rule or its
threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right
or privilege of the plaintiff” to assert declaratory-judgment action to determine “[t]he validity or
applicability of a rule” and requiring that “[t]he state agency must be made a party to the action”).
        4
            See generally Tex. Civ. Prac. & Rem. Code §§ 37.001–.011 (UDJA).

                                                    2
organic statute, the Texas Racing Act.5 The Commission Defendants answered, and several entities

that alleged justiciable interests deriving from the rules’ perceived benefits for them—the appellants

here—intervened as additional defendants. None of the appellants asserted a claim for affirmative

relief, but instead acted solely to defend the rules’ legality alongside the Commission Defendants.

                The two sides subsequently filed competing motions for summary judgment on

appellees’ declaratory claims challenging the rules as beyond the Commission’s authority under the

Texas Racing Act. The district court, in relevant part: (1) sustained objections made by appellants

to some of appellees’ summary-judgment evidence; (2) granted appellees’ summary-judgment

motion; and (3) denied competing motions filed by the Commission Defendants and appellants.

Appellees thereafter nonsuited all of their other pending claims so as to make the summary-judgment

rulings final.6 The trial-level litigation was concluded with a December 2014 final judgment that

incorporated the aforementioned rulings and nonsuit and declared that the rules “exceed the

Texas Racing Commission’s authority under the Texas Racing Act . . . and are invalid.”

                The Commission Defendants chose not to perfect an appeal from the district court’s

judgment. Subsequently, consistent with an agency’s statutory obligations when a rule has been

declared invalid by a “final court judgment,”7 the Commission would repeal the “historical racing”




       5
           See Tex. Rev. Civ. Stat. art. 179e, §§ 1.01–18.08 (Texas Racing Act).
       6
         Appellees’ notice of nonsuit dismissed “all of their claims except for their claims that the
Texas Racing Commission’s ‘historical’ or instant racing rules at issue violate the Texas Racing Act,
which claims are asserted under [APA] §[]2001.038, [the UDJA], and common law ultra vires.”
       7
          See Tex. Gov’t Code § 2002.058(b) (“A state agency shall repeal a rule that has been
declared invalid by a final court judgment. For purposes of this subsection, a court judgment is not
considered final during the time that the judgment may be reversed by an appellate court.”).

                                                  3
rules in March 2016.8 But appellants (the third parties who had intervened below as defendants

in support of the rules) did timely file a notice of appeal from the district court’s judgment. We

docketed that appeal as the above-captioned cause.

                 After appellants filed their notice of appeal, appellees filed a timely notice of cross-

appeal from the district court’s judgment, thereby preserving their right to challenge, if need be, the

portion of the district court’s judgment incorporating its adverse ruling on appellees’ summary-

judgment evidence.9 But appellees’ primary response was to move to dismiss appellants’ appeal

(and, conditioned on that relief, appellees’ own cross-appeal) for want of subject-matter jurisdiction.

Appellees urged that appellants’ appeal was “moot” in the absence of any appeal by the Commission

Defendants. Because the agency that had promulgated the rules was no longer attempting to

defend their legality but had instead acceded to being bound by the district court’s judgment,

appellees reasoned, any justiciable controversy regarding the rules’ validity had been concluded and

appellants’ appeal could have no effect on any party’s rights or interests.10

                 Appellees’ motion to dismiss remained pending for several months while appellants,

without opposition from appellees, obtained a succession of abatements and postponements




       8
            See 41 Tex. Reg. 1683 (Mar. 4, 2016) (proposed Dec. 4, 2015).
       9
       As appellees emphasize, they sought this relief only against appellants, not the Commission
Defendants, as the evidentiary ruling in question responded to objections made by appellants.
Consequently, the Commission Defendants are neither appellants nor appellees in this proceeding.
       10
           Appellees also urged that the Commission was an indispensable party to the appeal with
respect to the claims asserted under APA section 2001.038. See Tex. Gov’t Code § 2001.038(c)
(requiring joinder of the state agency). In light of our disposition of appellees’ other arguments, we
need not reach this narrower ground. See Tex. R. App. P. 47.1.

                                                    4
of appellate proceedings while awaiting the outcome of further Commission action.11 After the

Commission’s recent repeal of the historical-racing rules, appellees supplemented their dismissal

motion to raise that action as an additional ground for concluding that no justiciable controversy

existed on appeal.

               Appellants then filed a response in which they conceded that no justiciable

controversy regarding the rules’ validity could have survived the repeal. But appellants attacked

appellees’ premise that this Court had lacked jurisdiction from the appeal’s inception in the absence

of any appeal by the Commission Defendants. Appellants reasoned that they had standing to appeal

the judgment even in the absence of the Commission Defendants’ participation, that appellants had

thereby invoked this Court’s jurisdiction, and that we had possessed such jurisdiction until the

controversy was finally rendered moot by the rules’ repeal. And based on that argument, appellants

asserted a request for relief from the district court’s judgment and its preclusive effects—they urged

that this Court must vacate the district court’s judgment and dismiss the cause, not merely dismiss

the appeal as appellees had requested. In support, appellants invoked the rule, noted at the outset,

that appellate courts are required to vacate lower-court judgments and dismiss the cause, not merely

the appeal, when a case becomes moot on appeal. Appellees have filed a reply in which they join

issue with both of appellants’ contentions.




       11
         Texas Quarter Horse Ass’n v. American Legion Dep’t of Tex., No. 03-15-00118-CV,
2015 Tex. App. LEXIS 12239, at *1 (Tex. App.—Austin Dec. 2, 2015) (mem. op.) (per curiam);
Texas Quarter Horse Ass’n v. American Legion Dep’t of Tex., No. 03-15-00118-CV, 2015 Tex. App.
LEXIS 6116, at *1 (Tex. App.—Austin June 17, 2015) (mem. op.) (per curiam).

                                                  5
                                            ANALYSIS

                The parties’ arguments implicate the justiciability doctrines that the Texas Supreme

Court has held to derive from the Texas Constitution’s open-courts and separation-of-powers

provisions.12 It is therefore helpful to begin with a brief overview of these doctrines.13 In general,

the justiciability doctrines serve to bar Texas courts jurisdictionally from issuing advisory

opinions—those that “decide[] an abstract question of law without binding the parties,” considered

to be a proper function of the Executive rather than Judicial Branch14—or from granting court access

to persons lacking any actual, concrete injury.15 Under the ripeness doctrine, courts must “consider

whether, at the time a lawsuit is filed, the facts are sufficiently developed ‘so that an injury

has occurred or is likely to occur, rather than being contingent or remote.’”16 Conversely, “[t]he

mootness doctrine applies to cases in which a justiciable controversy exists between the parties at the

time the case arose, but the live controversy ceases because of subsequent events.”17 A justiciable




       12
          See, e.g., Heckman, 369 S.W.3d at 147–48 (citing Tex. Const. arts. I, § 13, II, § 1);
Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).
       13
           The application of these doctrines presents questions of law that we review de novo.
Heckman, 369 S.W.3d at 149–50. Further, because the doctrines implicate subject-matter
jurisdiction, they may be raised at any time, including appeal, and we may (and sometimes must)
consider them sua sponte. See Texas Ass’n of Bus., 852 S.W.2d at 446.
       14
            See Texas Ass’n of Bus., 852 S.W.2d at 444.
       15
            See id. at 444–45.
       16
         Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851–52 (Tex. 2000) (quoting Patterson
v. Planned Parenthood of Hous. & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998)).
       17
           Matthews v. Kountze Indep. Sch. Dist., ___ S.W.3d ___, No. 14-0453, 2016 Tex. LEXIS
95, at *3 (Tex. Jan. 29, 2016) (citing Heckman, 369 S.W.3d at 162).

                                                  6
controversy ceases and the case becomes moot when “the issues presented are no longer ‘live’ or

the parties lack a legally cognizable interest in the outcome.”18

                 Standing doctrine, in turn, focuses on whether a particular party “has a sufficient

relationship with the lawsuit so as to have a ‘justiciable interest’ in its outcome.”19 “The general test

for standing in Texas requires that there ‘(a) shall be a real controversy between the parties, which

(b) will be actually determined by the judicial declaration sought.’”20 This test, the Texas Supreme

Court has elaborated, is “parallel[]” to the federal test for Article III standing, and thereby

incorporates the elements of (1) “‘injury in fact’” (“‘an invasion of a legally protected interest

which is (a) concrete and particularized, and (b) ‘actual or imminent, not conjectural or

hypothetical’”); (2) a causal relationship between the alleged injury and “‘the conduct complained

of’”; and (3) redressability (that it is “‘likely, as opposed to merely speculative, that the injury will

be redressed by a favorable decision’”).21

                 Justiciability remains a jurisdictional prerequisite “from the first filing through the

final judgment,” including any appeal.22 Consequently, if a justiciable controversy ceases while a

case is on appeal, the case is moot and the appellate court lacks subject-matter jurisdiction to act


        18
           Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (quoting Murphy v. Hunt, 455 U.S.
478, 481 (1982)). See also Heckman, 369 S.W.3d at 162 (“Put simply, a case is moot when the
court’s action . . . cannot affect the parties’ rights or interests.” (citing VE Corp. v. Ernst & Young,
860 S.W.2d 83, 84 (Tex. 1993) (per curiam))).
        19
             Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005).
        20
          Texas Ass’n of Bus., 852 S.W.2d at 446 (quoting Board of Water Eng’rs v. City of
San Antonio, 283 S.W.2d 722, 724 (1955)).
        21
         Heckman, 369 S.W.3d at 154–55 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
560–61 (1992)) (internal quotations omitted).
        22
             Id. at 147–48 (citing Board of Adjustment v. Wende, 92 S.W.3d 424, 427 (Tex. 2002)).

                                                   7
on the merits.23 Likewise, an appellant must have standing to appeal a lower-court judgment, and

the appellate court lacks subject-matter jurisdiction to decide the merits of that appeal otherwise.24

                 On this record, there is no dispute and seems little question that no justiciable

controversy regarding the validity of the historical-racing rules could have survived the

Commission’s repeal of them—the rules no longer exist in any form,25 and there is no hint that

the agency will reverse course once litigation concludes26 or that any exception to the mootness

doctrine applies.27 The parties’ disagreement centers on whether a justiciable controversy ever

existed on appeal. While phrasing their jurisdictional challenge in terms of “mootness,” the



        23
             See, e.g., Lara, 52 S.W.3d at 184.
        24
            See, e.g., State v. Naylor, 466 S.W.3d 783, 787 (Tex. 2015) (acknowledging that courts
lack subject-matter jurisdiction to determine appeal brought by an “improper party” who lacks
“appellate standing”); see also Hollingsworth v. Perry, ___ U.S. ___, 133 S. Ct. 2652, 2661–63
(2013) (observing that Article III requirement of an “‘actual controversy’ persist[ing] throughout
all stages of litigation” implies that standing “‘must be met by persons seeking appellate review, just
as it must be met by persons appearing in courts of first instance,’” and proceeding to analyze
appellants’ standing under Article III test (quoting Arizonans for Official English v. Arizona,
520 U.S. 43, 64 (1997))).
        25
           See, e.g., Heckman, 369 S.W.3d at 167 (acknowledging that “where a plaintiff challenges
a statute or written policy, that challenge may well become moot if the statute or policy is
repealed or fundamentally altered” (citing Trulock v. City of Duncanville, 277 S.W.3d 920, 925–27
(Tex. App.—Dallas 2009, no pet.); Erwin Chemerinsky, Federal Jurisdiction § 2.5.4, at 141–43
(5th ed. 2007))); Texas Dep’t of Health v. Long, 659 S.W.2d 158, 160–61 (Tex. App.—Austin 1983,
no writ) (holding that rule challenge was rendered moot by rules’ repeal).
        26
            Cf. Matthews, ___ S.W.3d at ___, 2016 Tex. LEXIS 95, at *3–8 (holding that challenge
to school-district policy was not rendered moot by district’s cessation of policy where it was not
“‘absolutely clear’” that the district “will not reverse itself after this litigation is concluded” (quoting
Bexar Metro. Water Dist. v. City of Bulverde, 234 S.W.3d 126, 131 (Tex. App.—Austin 2007,
no pet.))).
        27
           See generally Lara, 52 S.W.3d at 184 (discussing exception where controversy is
“‘capable of repetition, yet evading review’” (citing City of Los Angeles v. Lyons, 461 U.S. 95, 109
(1983))).

                                                     8
substantive thrust of appellees’ arguments is more precisely that appellants lacked standing to bring

their appeal—appellees contest whether, considering that the Commission Defendants have acceded

to the district court’s judgment, the judgment invades any legally protected interest of appellants for

which their appeal could provide remedy.28

               Although considerations of mootness and standing are closely related,29 the distinction

proves to be highly significant under Texas law in determining the appropriate remedy at the

appellate level. “[W]hen a case becomes moot on appeal,” as appellants suggest, “[t]he rule has

long been established” by the Texas Supreme Court that “all previous orders are set aside by

the appellate court and the case is dismissed.”30 However, if the defect is more precisely a lack of

appellate standing, the Texas Supreme Court has indicated that the proper remedy is simply to

dismiss the appeal.31

               This distinction is consistent with the underpinnings of the rule of vacating lower-

court judgments when a case becomes “moot on appeal.” That rule is not a jurisdictional imperative,


       28
          See, e.g., Hollingsworth, ___ U.S. at ___, 133 S. Ct. at 2662 (emphasizing, with reference
to appellate standing, that “a litigant must seek relief for an injury that affects him in a ‘personal
and individual way’” and “must possess a ‘direct stake in the outcome’ of the case” (quoting Lujan,
504 U.S. at 560 n.1; Arizonans for Official English, 520 U.S. at 64)).
       29
          See Lara, 52 S.W.3d at 184 (observing that “[i]f a case becomes moot, the parties lose
standing to maintain their claims”).
       30
           Texas Foundries, Inc., 248 S.W.2d at 461 (citing Freeman v. Burrows, 171 S.W.2d 863
(Tex. 1943); Danciger Oil & Ref. Co. v. Railroad Comm’n, 56 S.W.2d 1075 (Tex. 1933);
McWhorter v. Northcutt, 58 S.W. 720 (Tex. 1900)). Accord, e.g., Speer, 847 S.W.2d at 228–29;
Raborn v. Davis, 795 S.W.2d 716, 717 (Tex. 1990) (per curiam); United Servs. Auto. Ass’n
v. Lederle, 400 S.W.2d 749, 749 (Tex. 1966) (per curiam). See also International Ass’n of
Machinists v. Federated Ass’n of Accessory Workers, 130 S.W.2d 282, 283 (Tex. 1939) (terming the
rule already “long established in this jurisdiction”).
       31
            See Naylor, 466 S.W.3d at 787 (“Standing is a component of subject-matter jurisdiction
. . . . Consequently, an appeal filed by an improper party must be dismissed.”) (citations omitted).

                                                  9
per se,32 but is a procedural or remedial directive that is founded on two closely related

policy concerns that may arise when a case becomes moot during the pendency of an appeal.

The first concern is that dismissing only the appeal in those circumstances may be unfair to the

appellant because it causes the lower-court judgment to become final and preclusive—effectively

affirming it—without affording the appellant the opportunity to be heard on the merits.33 A second

concern, closely related to first, is that dismissing the appeal in those circumstances achieves

the effect of an affirmance in a moot case.34 Both of these policies thus presume the initial


       32
           As appellees point out, the Texas Supreme Court, through the Texas Rules of Appellate
Procedure, has afforded appellate courts discretion to dismiss a pending appeal without disturbing
lower court judgments when the proceeding becomes moot by virtue of settlement. See Tex. R. App.
P. 42.1 & cmt. to 2002 change; id. R. 43.2; Caballero v. Heart of Tex. Pizza, L.L.C., 70 S.W.3d 180,
180–81 (Tex. App.—San Antonio 2001, no pet.) (per curiam); cf. Panterra Corp. v. American Dairy
Queen, 908 S.W.2d 300, 300–01 (Tex. App.—San Antonio 1995, no writ), modified by Caballero,
70 S.W.3d 180 (concluding, under earlier version of appellate rules and rule that “[w]hen a cause
becomes moot on appeal, all previous orders and judgments should be set aside and the cause,
not merely the appeal, dismissed,” that it was required to vacate lower-court judgment following
appellate-level settlement (quoting Freeman, 171 S.W.2d at 863)). The Texas Supreme Court’s
promulgation of Rule 42.1 belies any notion that it views mootness arising on appeal as giving rise
retroactively to some sort of jurisdictional defect in prior lower-court judgments. See also Lederle,
400 S.W.2d at 749 (stating that “[n]o reason is made known to us and none appears in the record to
cause us to vary from the rule that a moot cause should be dismissed,” perhaps implying that
appellate courts may possess some discretion in applying the rule).
       33
           See, e.g., International Ass’n of Machinists, 130 S.W.2d at 283 (“To dismiss the appeal
would be to leave undisturbed the judgment of the lower court and thereby, in effect, affirm
same without according to the appealing parties a hearing upon the merits of their appeal.”);
Danciger, 56 S.W.2d at 1076 (“In order that plaintiff in error may not be prejudiced in any
subsequent proceeding by a judgment which this court has refused to consider on its merits, we think
a proper disposition of the case would be to reverse the judgment of the trial court and the Court of
Civil Appeals and to dismiss the cause.”) (citations omitted); see also Panterra, 908 S.W.2d
at 301–02 (Duncan, J., dissenting) (similarly distilling this underlying jurisprudential policy from
case law).
       34
           See, e.g., Lederle, 400 S.W.2d at 749 (“To dismiss the applications [for writ of error]
would permit the judgment of the Court of Civil Appeals to become a final judgment in a moot
case.”); see also Panterra, 908 S.W.2d at 301–02 (Duncan, J., dissenting) (identifying same
underlying policy in case law).

                                                 10
         Emphasizing that the rule is not a jurisdictional imperative, appellees suggest that Texas law
is equivalent to the equitable principles that federal courts apply to determine the remedy when a
case becomes moot on appeal. To summarize the federal jurisprudence in this area, the United States
Supreme Court has held that “vacatur”—i.e., remand to the lower court with instructions to vacate
its judgment after the case becomes moot on appeal—is an “exceptional” equitable remedy whose
availability depends principally on the extent to which the mootness is attributable to the party
seeking relief from the judgment. See generally U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,
513 U.S. 18, 22–29 (1994). Vacatur tends to be favored, the Supreme Court has explained, where
“[a] party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries
of circumstance” beyond the party’s control, as such a party “ought not in fairness be forced to
acquiesce in the judgment,” id. at 25, and be barred by former-adjudication doctrines from
relitigating the issues at some future time. Id. at 22–23 (vacatur “‘clears the path for future
relitigation of the issues between the parties and eliminates a judgment, review of which was
prevented through happenstance’” (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 40
(1950))). Vacatur is similarly favored “where mootness results from the unilateral action of the party
who prevailed in the lower court.” Id. at 23. In contrast, vacatur tends to be disfavored when
mootness is attributable to the party seeking relief from the judgment. See id. 25–29 (holding that
voluntary settlement did not present the “extraordinary circumstances” justifying vacatur). Providing
such a party the remedy of vacatur, the Supreme Court has observed, effectively facilitates “a refined
form of collateral attack on the judgment” pursued in lieu of the appeal on the merits. Id. at 26–27.
In terms of the equities, such a “case stands no differently than it would if jurisdiction were lacking
because the losing party failed to appeal at all.” Id. at 25. The Supreme Court has held that an
appeal having a defect of parties or standing falls into the latter category, see Karcher v. May,
484 U.S. 72, 81–83 (1987), and the Fifth Circuit has held that a municipality’s repeal of an ordinance
amounted to “voluntary action” that should preclude vacatur of a lower-court judgment invalidating
that ordinance. See Houston Chronicle Publ’g Co. v. City of League City, 488 F.3d 613, 619–20
(5th Cir. 2007).

       While there are some parallels between the Texas rule and the federal jurisprudence,
see Marshall v. Housing Auth. of San Antonio, 198 S.W.3d 782, 788–89 (Tex. 2006) (observing, in
context of analyzing applicability of collateral-consequences exception to mootness doctrine, that
“[o]ne purpose of vacating the underlying judgment if a case becomes moot during appeal is to
prevent prejudice to the rights of parties when appellate review of a judgment on its merits is
precluded,” and citing “see also” to Bonner Mall), and the Texas Supreme Court has frequently
looked to federal jurisprudence in applying substantive justiciability principles, that court has of yet
never adopted the federal-equity based approach for determining the remedy when a case becomes
moot on appeal. See, e.g., Speer, 847 S.W.2d at 227–30 (applying rule so as to vacate lower-court
judgment in appeal held to be mooted by litigants’ voluntary action); Freeman, 171 S.W.2d at 863
(holding that court of civil appeals erred in failing to vacate lower-court judgment in case that
became moot on appeal; no reference to causes of mootness); see also Brandon T. Allen, Note:
A New Rationale for an Old Practice: Vacatur and the Rules of Professional Responsibility, 76 Tex.
L. Rev. 661, 675–76 (1998) (surveying Texas precedents and noting absence of consideration of

                                                  11
existence of a justiciable controversy on appeal, and neither is implicated where the appellant lacks

standing to invoke the appellate court’s jurisdiction in the first place. In this respect, an appeal

brought by an appellant lacking standing is the legal equivalent of no appeal having been perfected

at all, or if a party having standing had filed its notice of appeal too late—our jurisdiction over the

merits is never invoked.35 We would add that if this sort of “mootness on appeal” is subject to the

rule that we must vacate lower-court judgments, little would remain of standing doctrine, the finality

of judgments, or conventional appellate procedure, as lower-court judgments would be vulnerable

to being vacated by appellate courts at the behest of even strangers to the litigation.

                Accordingly, whether the proper remedy here is to dismiss the appeal only, as

appellees urge, or to vacate the district court’s judgment and dismiss the case, as appellants

maintain, ultimately turns on whether appellants had standing to bring their appeal. Appellants

suggest that it was sufficient that they intervened below (and “without objection from Appellees,”

they emphasize), thereby “became parties to the suit for all purposes,” and were ultimately named

in a judgment that rejected their arguments. Appellants similarly emphasize that section 2001.901

of the APA authorizes a “party”—a term that the APA defines generally as “a person or state

agency named or admitted as a party”36 —to “appeal a final district court judgment under this


whether mootness stemmed from litigant’s “voluntary” actions). Accordingly, unless and until the
Texas Supreme Court instructs us otherwise, we must decline appellees’ invitation to follow the
federal jurisprudence favoring them. See Panterra, 908 S.W.2d at 300–01 (similarly observing
that Bonner Mall “is not binding precedent [on Texas courts] because the issue decided was one of
federal procedural law [and] does not apply to state courts’ application of state procedural law”).
       35
             Cf. Texas Comm’n on Envtl. Quality v. Bonser-Lain, 438 S.W.3d 887, 891 & n.1
(Tex. App.—Austin 2014, no pet.) (explaining that even while subject-matter jurisdiction of
trial court can be challenged at any time, such challenges can be raised only before appellate court
that possesses subject-matter jurisdiction).
       36
            Tex. Gov’t Code § 2001.003(4).

                                                  12
chapter in the same manner provided for civil actions generally.”37 Accordingly, appellants deduce,

section 2001.901 empowered them to appeal the district court’s adverse judgment on the declaratory

claims asserted under APA section 2001.038, as these are claims “under this chapter,” the APA.

                Appellants’ arguments are ultimately unavailing. While appellate standing typically

extends only to those who were parties before the trial court,38 party status per se is not

controlling—the ultimate inquiry is whether the appellant possesses a justiciable interest in obtaining

relief from the lower court’s judgment.39 And in the posture of this case on appeal, appellants lack

any such interest for reasons similar to those that controlled our analysis in our recent Bonser-Lain

decision—appellants have not asserted, nor likely could assert, any basis to compel the Commission

to adopt or maintain historical-racing rules if the agency does not wish to do so.40 The Commission’s


       37
            Id. § 2001.901(a).
       38
            See, e.g., Naylor, 466 S.W.3d at 787 (“appellate standing is typically afforded ‘only to
parties of record’” (quoting Gunn v. Cavanaugh, 391 S.W.2d 723, 724–25 (Tex. 1965))).
       39
            See Torrington Co. v. Stutzman, 46 S.W.3d 829, 843–44 (Tex. 2000) (explaining that
appellate standing requires that party’s own interests must be prejudiced by alleged error and that it
“may not complain of errors that do not injuriously affect it or that merely affect the rights of
others”). See also Diamond v. Charles, 476 U.S. 54, 68 (1986) (where Illinois authorities had not
appealed lower-court judgment invaliding state law, private party who had intervened below in
support of law lacked standing to appeal; mere “status as an intervenor below, whether permissive
or as of right, does not confer standing sufficient to keep the case alive in the absence of the State
on this appeal”).
       40
            Bonser-Lain, 438 S.W.3d at 893–95 (holding that neither APA nor Water Code provided
a right to judicial review from agency’s denial of rulemaking petition, and observing that “[i]ndeed,
no Texas court has ever held that an agency’s refusal to promulgate rules is reviewable by courts”).
See also Diamond, 476 U.S. at 65 (observing that private party’s attempt to appeal lower-court
judgment invalidating state law where State had not appealed amounted to “an effort to compel the
State to enact a code in accord with [the appellant’s] interests,” and that “only the State has the
[requisite] kind of direct stake . . . in defending the standards embodied in that code”) (internal
quotations and citations omitted); accord Hollingsworth, ___ U.S. at ____, 133 S. Ct. at 2668 (“We
have never before upheld the standing of a private party to defend the constitutionality of a state
statute when state officials have chosen not to. We decline to do so for the first time here.”).

                                                  13
accession to the district court’s judgment represented the Commission’s determination that it will

no longer have historical-racing rules. Absent any right to alter that agency decision, appellants’

challenge to the district court’s judgment, which would necessarily focus on whether the now-

hypothetical rules would be within the Commission’s statutory authority, reduces to a request for an

advisory opinion, the antithesis of a justiciable claim.41

                 APA section 2001.901 does not change the analysis. To the extent this statute could

be read to authorize an appeal by a “party” lacking a justiciable interest, it would be unenforceable.42

We must instead construe “party” in section 2001.901 to extend no farther than what the

Texas Constitution allows—to presume or incorporate the jurisdictional requirement that the “party”

possess a justiciable interest and standing to appeal.43




        41
             See Texas Ass’n of Bus., 852 S.W.2d at 444–45.
        42
           Finance Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 582 n.83 (Tex. 2013) (observing
that APA section 2001.038, by requiring that plaintiff “allege[] that [a] rule or its threatened
application interferes with or impairs, or threatens to interfere with or impair, a legal right or
privilege of the plaintiff[,] . . . does not purport to set a higher standard than that set by the general
doctrine of standing, and it cannot be lower, since courts’ constitutional jurisdiction cannot be
enlarged by statute” (citing In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 462 (Tex. 2011)));
see also In re Lazy W Dist. No. 1, ___ S.W.3d ___, No. 15-0117, 2016 Tex. LEXIS 410, at *15
(Tex. May 27, 2016) (“For the Legislature to attempt to authorize a court to act without subject
matter jurisdiction would violate the constitutional separation of powers.” (citing Tex. Const. art. II,
§ 1)).
        43
           See Norwood, 418 S.W.3d at 582 n.83; see also, e.g., In re Bay Area Citizens Against
Lawsuit Abuse, 982 S.W.2d 371, 380 (Tex. 1998) (“We should, if possible, interpret [a] statute in
a manner that avoids constitutional infirmities.”); cf. Bacon v. Texas Historical Comm’n, 411 S.W.3d
161, 179 (Tex. App.—Austin 2013, no pet.) (similarly holding that plaintiff “must meet the
constitutional standing requirements to seek judicial relief regarding the [agency] proceedings—and
the bare fact that he could be said to have ‘standing’ before the agency [i.e., “party” status there]
is not enough” (citing Fort Bend Cty. v. Texas Parks & Wildlife Comm’n, 818 S.W.2d 898, 899
(Tex. App.—Austin 1991, no writ))).

                                                   14
                Because appellants lacked standing to bring their appeal, the proper remedy is for us

to dismiss this appeal for want of subject-matter jurisdiction without disturbing the district court’s

judgment.44 To this extent, we grant appellees’ motion to dismiss appellants’ appeal—and, in turn,

appellees’ own cross-appeal—for want of subject-matter jurisdiction. We deny appellants’ request

to vacate the district court’s judgment also.



                                                __________________________________________

                                                Bob Pemberton, Justice

Before Chief Justice Rose, Justices Pemberton and Field

Dismissed for Want of Jurisdiction

Filed: June 8, 2016




       44
            See Naylor, 466 S.W.3d at 787.

                                                  15
