Michael Moates v. Greg Abbott, in His Capacity as Governor of the State of Texas Ken Paxton, in His Capacity as Attorney General of the State of Texas Texas Department of Licensing and Regulation Michael Arismendez, in His Capacity as Executive Director of the Texas Department of Licensing and Regulation Brad Bowman, in His Capacity as General Counsel of the Texas Department of Licensing and Regulation And Texas Commission on Licensing and Regulation ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00158-CV
___________________________
MICHAEL MOATES, Appellant
V.
GREG ABBOTT, IN HIS CAPACITY AS GOVERNOR OF THE STATE OF
TEXAS; KEN PAXTON, IN HIS CAPACITY AS ATTORNEY GENERAL OF THE
STATE OF TEXAS; TEXAS DEPARTMENT OF LICENSING AND
REGULATION; MICHAEL ARISMENDEZ, IN HIS CAPACITY AS EXECUTIVE
DIRECTOR OF THE TEXAS DEPARTMENT OF LICENSING AND
REGULATION; BRAD BOWMAN, IN HIS CAPACITY AS GENERAL COUNSEL
OF THE TEXAS DEPARTMENT OF LICENSING AND REGULATION; AND
TEXAS COMMISSION ON LICENSING AND REGULATION, Appellees
On Appeal from the 431st District Court
Denton County, Texas
Trial Court No. 22-3236-431
Before Kerr, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Michael Moates sued two State agencies and several State officials in their
official capacities (collectively, the State) and filed this appeal from an interlocutory
ruling denying his temporary-injunction request. See Tex. Civ. Prac. & Rem. Code
Ann. § 51.014(a)(4). We notified the parties by letter that we were concerned that we
lacked jurisdiction over this appeal because the trial-court clerk had informed us that
the trial-court judge had not signed an order in this case. Because it appeared that
there was no final judgment or appealable interlocutory order and that Moates’s
notice of appeal was thus premature, we warned that we could dismiss the appeal for
want of jurisdiction unless, within 20 days, the parties sent us a signed copy of the
order Moates wanted to appeal. See Tex. R. App. P. 26.1(a), 27.1(a), 42.3(a), 43.2(f),
44.3, 44.4(a)(2).
Shortly thereafter, the trial-court clerk provided us with a copy of the trial
court’s order dismissing the case without prejudice upon Moates’s notice of nonsuit.
We once again notified the parties by letter that we were concerned that we lacked
jurisdiction over this appeal, this time because it appeared that Moates lacked standing
to appeal as there was no longer a case or controversy between the parties. See In re
Est. of Garza, No. 13-14-00730-CV, 2015 WL 3799370, at *3 (Tex. App.—Corpus
Christi–Edinburg June 18, 2015, no pet.) (mem. op.); Hirner v. Doe, No. 12-08-00046-
CV, 2009 WL 1871794, at *1 (Tex. App.—Tyler June 30, 2009, no pet.) (mem. op.).
We warned that we could dismiss the appeal for want of jurisdiction unless Moates or
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any party desiring to continue the appeal filed a response within ten days showing
grounds for continuing it. See Tex. R. App. P. 42.3(a), 44.3. Ten days have passed, and
we have not received a response.
A plaintiff may voluntarily dismiss a case or take a nonsuit at any time before
all the plaintiff’s evidence other than rebuttal evidence has been introduced. Tex. R.
Civ. P. 162. A plaintiff has an absolute right to take a nonsuit. E.g., Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A plaintiff’s nonsuit typically moots the
entire case or controversy. See, e.g., Morath v. Lewis, 601 S.W.3d 785, 788 (Tex. 2020);
Klein v. Hernandez, 315 S.W.3d 1, 3 (Tex. 2010); Univ. of Tex. Med. Branch at Galveston v.
Est. of Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex. 2006). Exceptions exist,
however, such as when a defendant has asserted an independent claim for affirmative
relief. Klein, 315 S.W.3d at 3 (citing Gen. Land Off. of Tex. v. OXY U.S.A., Inc., 789
S.W.2d 569, 570 (Tex. 1990)); see, e.g., Villafani v. Trejo, 251 S.W.3d 466, 468–71 (Tex.
2008) (explaining that plaintiff’s nonsuit did not render moot trial court’s order
denying defendant’s motion for dismissal with prejudice and attorney’s fees under
statute); Felderhoff v. Knauf, 819 S.W.2d 110, 110–11 (Tex. 1991) (holding plaintiff’s
nonsuit did not preclude plaintiff from challenging trial court’s order granting
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defendants’ monetary-sanctions motion against him). But neither Moates nor the State
has responded that such a claim exists here.1
We are prohibited from deciding moot controversies because the Texas
Constitution’s separation-of-powers provision prohibits advisory opinions. See Tex.
Const. art. II, § 1; Klein, 315 S.W.3d at 3; see also Brooks v. Northglen Ass’n, 141 S.W.3d
158, 164 (Tex. 2004) (“A judicial decision reached without a case or controversy is an
advisory opinion, which is barred by the separation of powers provision of the Texas
Constitution.”). Here, there is no controversy for us to decide because Moates’s
nonsuit ended the entire case. When a case becomes moot, the parties lose standing to
maintain their claims. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). Accordingly,
we dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f); see
also Est. of Garza, 2015 WL 3799370, at *3 (explaining that when a plaintiff nonsuits
his claims, “there is no longer a case or controversy, and the court of appeals has no
jurisdiction over the suit”).
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: October 13, 2022
1
We have obtained and examined copies of the State’s answer and protective-
order motion, Moates’s nonsuit notice, and the docket sheet, none of which show that
the State has asserted any independent claims for affirmative relief.
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