in Re Panda Power Infrastructure Fund, LLC, D/B/A Panda Power Funds

IN THE SUPREME COURT OF TEXAS
══════════
No. 18-0781
══════════
ELECTRIC RELIABILITY COUNCIL OF TEXAS, INC., PETITIONER,
v.
PANDA POWER GENERATION INFRASTRUCTURE FUND, LLC, D/B/A PANDA POWER
FUNDS, ET AL., RESPONDENTS
══════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS
══════════════════════════════════════════
~ consolidated for oral argument with ~
══════════
No. 18-0792
══════════
IN RE PANDA POWER INFRASTRUCTURE FUND, LLC, D/B/A PANDA POWER FUNDS, ET
AL., RELATORS
══════════════════════════════════════════
ON PETITION FOR WRIT OF MANDAMUS
══════════════════════════════════════════
Argued September 15, 2020
JUSTICE BOYD delivered the opinion of the Court, in which JUSTICE BLACKLOCK, JUSTICE
BUSBY, JUSTICE BLAND, and JUSTICE HUDDLE joined.
JUSTICE BLACKLOCK filed a concurring opinion.
CHIEF JUSTICE HECHT filed a dissenting opinion, in which JUSTICE GUZMAN, JUSTICE
LEHRMANN, and JUSTICE DEVINE joined.
JUSTICE GUZMAN filed a dissenting opinion, in which JUSTICE LEHRMANN and JUSTICE
DEVINE joined.
These two petitions—one for writ of mandamus and the other for review—arise from a
lawsuit several Panda Power companies 1 filed against the Electric Reliability Council of Texas,
Inc. (ERCOT). The underlying suit involves allegations of fraud and fiduciary breach, but these
petitions challenging the court of appeals’ review of a trial court’s interlocutory order present a
medley of jurisdictional issues. We granted review and consolidated the two causes because these
issues—which include whether the Texas Public Utility Commission has exclusive jurisdiction
over Panda’s claims and whether sovereign immunity applies to ERCOT and protects it from
Panda’s suit—are important to the parties and to our state’s jurisprudence. But after the court of
appeals rendered its decision, and before the parties asked us to review that decision, the trial court
entered a final judgment in the underlying suit, and that judgment is now the subject of a separate
appeal pending in the court of appeals. Because the trial court’s interlocutory order merged into
the final judgment and no longer exists, we cannot grant the relief the parties seek. As a result, any
decision we might render would constitute an impermissible advisory opinion, and these
consolidated causes are moot. However much we may desire to provide answers in these now-
moot interlocutory proceedings, the constitution prohibits us from doing so, and we must respect
that prohibition. We must therefore dismiss both the petition for writ of mandamus and the petition
for review for want of jurisdiction.
1
The suit identifies thirteen Panda companies as plaintiffs: Panda Power Generation Infrastructure Fund,
LLC (d/b/a Panda Power Funds); Panda Sherman Power Holdings, LLC; Panda Sherman Power Intermediate
Holdings I, LLC; Panda Sherman Power Intermediate Holdings II, LLC; Panda Sherman Power, LLC; Panda Temple
Power Holdings, LLC; Panda Temple Power Intermediate Holdings I, LLC; Panda Temple Power Intermediate
Holdings II, LLC; Panda Temple Power, LLC (n/k/a Temple Generation I, LLC); Panda Temple Power II Holdings,
LLC; Panda Temple Power II Intermediate Holdings I, LLC; Panda Temple Power II Intermediate Holdings II, LLC;
and Panda Temple Power II, LLC. We will refer to them collectively as Panda.
2
I.
Background
ERCOT serves as the independent system operator for the Texas power region. 2 Because
ERCOT manages only intrastate transmission, it is generally not subject to federal law or to
oversight by the Federal Energy Regulatory Commission.3 Instead, Texas law governs ERCOT
and makes it “directly responsible and accountable to the” Public Utility Commission of Texas. 4
Among its many other responsibilities, ERCOT is required to publish “resource adequacy
reports,” at least annually, providing a five-year forecast of the Texas power region’s ability to
generate and transmit sufficient electricity to meet projected demands. 5 Fulfilling this duty,
ERCOT publishes a “Report on Capacity, Demand, and Reserves” twice a year, in May and
December.6 These “CDR Reports” provide predictions on future electricity demands within the
Texas power region and the region’s ability to supply sufficient electricity to meet those demands.
Participants in the electric industry rely on ERCOT’s CDR Reports when deciding, for example,
whether to invest in new generation plants or transmission facilities.
In 2011 and 2012, ERCOT’s CDR Reports projected a likelihood of severe energy
shortfalls. Panda alleges it relied on these reports when it decided to invest $2.2 billion to build
2
See FPL Energy, LLC v. TXU Portfolio Mgmt. Co., 426 S.W.3d 59, 61 (Tex. 2014).
3
See Oncor Elec. Delivery Co. LLC v. Pub. Util. Comm’n of Tex., 507 S.W.3d 706, 708 n.1 (Tex. 2017);
Pub. Util. Comm’n of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310, 312 (Tex. 2001); Sean
Farrell, Federal Energy Regulatory Commission Order 1000: Summary of Issues, Requirements, and How It Affects
Texas, 14 TEX. TECH ADMIN. L.J. 119, 120–21 (2012).
4
TEX. UTIL. CODE § 39.151(d).
5
16 TEX. ADMIN. CODE § 25.505(c); see also TEX. UTIL. CODE § 39.155(b).
6
Previous CDR Reports are available at http://www.ercot.com/gridinfo/resource.
3
two new power plants in Temple and one in Sherman. After Panda began construction, however,
ERCOT revised its forecasts and—instead of projecting a shortfall—now predicted an excess of
generation capacity in the ERCOT region. Claiming that ERCOT’s original CDR Reports misled
it to invest in losing endeavors, Panda sued ERCOT and three of its officers for fraud, negligent
misrepresentation, and breach of fiduciary duty.
ERCOT responded by filing a plea to the jurisdiction arguing that the Public Utility
Commission has exclusive jurisdiction over Panda’s claims. Although the Commission filed an
amicus brief supporting ERCOT’s plea, the trial court denied it. Soon thereafter, we explained in
University of the Incarnate Word v. Redus that the issues of (1) whether a private entity qualifies
as a “governmental unit” under the Texas Tort Claims Act and (2) whether sovereign immunity
applies to and protects the private entity are “separate questions with separate analytical
frameworks.” 518 S.W.3d 905, 911 (Tex. 2017). Relying on Redus, ERCOT filed a motion for
reconsideration and alternative amended jurisdictional plea, arguing that sovereign immunity
applies and bars Panda’s claims. The trial court denied ERCOT’s motion and amended plea.
ERCOT appealed the trial court’s denial order. As a general rule, subject only to “a few
mostly statutory exceptions,” parties may only appeal a final judgment. Bonsmara Nat. Beef Co.
v. Hart of Tex. Cattle Feeders, 603 S.W.3d 385, 387 (Tex. 2020). ERCOT asserted, however, that
the court of appeals had interlocutory jurisdiction because ERCOT qualifies as a “governmental
unit” under the Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (allowing
interlocutory appeal from an order that “grants or denies a plea to the jurisdiction by a
governmental unit as that term is defined” in the Tort Claims Act). At the same time, as an
alternative, ERCOT filed a petition for writ of mandamus in the court of appeals, arguing that
4
sovereign immunity bars Panda’s claims even if ERCOT is not a governmental unit. After
consolidating the two cases, the court of appeals held that ERCOT is not a governmental unit and
dismissed ERCOT’s interlocutory appeal for want of jurisdiction, but it granted ERCOT’s
mandamus petition, holding that sovereign immunity applies and bars Panda’s claims. Elec.
Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC (Panda I),
552 S.W.3d 297, 309, 320 (Tex. App.—Dallas 2018).
Based on its holding that sovereign immunity applies, the court of appeals entered
judgment ordering the trial court to dismiss Panda’s claims within thirty days. Panda filed a petition
for writ of mandamus in this Court challenging the court of appeals’ holding that sovereign
immunity bars Panda’s claims (No. 18-0792). ERCOT filed a conditional petition for review
challenging the court of appeals’ holding that ERCOT is not a governmental unit under the Tort
Claims Act (No. 18-0781). We requested briefing in both cases, granted ERCOT’s petition for
review, and consolidated the causes for oral argument.
II.
Mootness
On April 24, 2018—eight days after the court of appeals decided Panda I, four months
before Panda filed its mandamus petition in this Court, and five months before ERCOT filed its
conditional petition for review—the trial court entered a final judgment dismissing Panda’s claims
as the court of appeals had ordered.7 Three days later, on April 27, 2018, Panda filed an emergency
motion in Panda I, asking the court of appeals to stay its mandamus order and require the trial
7
Panda asserts that the trial court unexpectedly entered its final judgment while the parties were discussing
an agreement to stay the court of appeals’ order while Panda requested relief in this Court. ERCOT asserts that it
agreed to a stay but Panda failed to act expeditiously to obtain the stay before the trial court acted on the court of
appeals’ order.
5
court to set aside its final judgment. The court of appeals denied that motion on May 2, 2018. On
May 23, 2018, twenty-nine days after the trial court entered its final judgment, Panda filed a notice
of appeal from the final judgment, initiating a new proceeding in the court of appeals. See Panda
Power Generation Infrastructure Fund, LLC, v. Elec. Reliability Council of Tex., Inc. (Panda II),
No. 05-18-00611-CV (Tex. App.—Dallas filed May 28, 2018).
A week later, on May 31, 2018, Panda filed a motion asking the court of appeals to rehear
Panda I en banc. The court denied that motion on July 10, 2018. On August 15, 2018, Panda filed
a motion to abate Panda II “in the interest of judicial economy” until this Court resolved Panda I.
The court of appeals denied the abatement, requested briefs, and scheduled oral argument. On
August 24, 2018, Panda filed its mandamus petition in this Court (No. 18-0792), challenging the
court of appeals’ order in Panda I, which addressed the trial court’s interlocutory order. In a
footnote, Panda’s mandamus petition mentioned in passing that the trial court had dismissed
Panda’s suit as the court of appeals had ordered, and that Panda had filed a “protective appeal”
from the dismissal.
On September 24, 2018, ERCOT filed its conditional petition for review (No. 18-0781). In
its petition, ERCOT explained that the trial court had entered a final judgment, that Panda had
appealed from that final judgment in a separate appellate proceeding, and that the trial court had
lost plenary jurisdiction over the case. ERCOT suggested that this Court “may therefore lack
jurisdiction over Panda’s mandamus petition [in No. 18-0792] because it challenges an
interlocutory trial-court order that has since been superseded by a final judgment.” On January 4,
2019, ERCOT filed a response to Panda’s mandamus petition, again suggesting that “this
mandamus proceeding may be moot” because “the trial court’s original order denying ERCOT’s
6
plea has already been vacated, a contrary judgment has been rendered, and the trial court’s plenary
power has long ago expired,” so “it is difficult to see how vacating the court of appeals’ order
could have any effect.” On January 28, 2019, Panda filed a reply in support of its mandamus
petition, acknowledging that “this case comes to the Court in an unusual procedural posture” but
insisting “that does not make this case moot or unworthy of review.”
Eight days later, on February 5, 2019, we requested briefs addressing Panda’s mandamus
petition. On April 5, 2019, we requested briefs addressing ERCOT’s conditional petition for
review. In its brief in response to Panda’s mandamus petition, filed on August 7, 2019, ERCOT
asserted that, “because the trial court no longer has plenary power over the underlying proceeding,
an order from this court would not redress Panda’s alleged injury,” but “[n]evertheless ERCOT,
like Panda, would prefer a final resolution to this dispute.” On June 5, 2020, we granted ERCOT’s
conditional petition for review and set both it and Panda’s mandamus petition for oral argument,
which occurred on September 15, 2020. On October 16, 2020, we requested that the parties file
supplemental briefs specifically addressing the mootness issue, and the parties filed those briefs as
requested on November 2, 2020.8
8
Any suggestion that the Court has unnecessarily delayed the resolution of these consolidated causes is
groundless, as is any suggestion that any unusual delays have been objectionable or detrimental to the parties.
Although these petitions have been pending in this Court for two-and-a-half years, the parties themselves requested
and received sixteen separate thirty-day extensions of their filing deadlines. In No. 18-0781 (involving ERCOT’s
conditional petition for review), ERCOT requested one extension of the deadline to file its petition, two extensions of
the deadline to file its reply in support of its petition, two extensions of the deadline to file its brief on the merits, and
two extensions of the deadline to file its reply brief, while Panda requested one extension of the deadline to file its
response and one extension of the deadline to file its brief on the merits. Those extensions comprise nine of the thirty-
one months that have passed since since ERCOT first filed in this Court. And in No. 18-0792 (involving Panda’s
mandamus petition), ERCOT requested two extensions of the deadline to file a response to Panda’s petition, and two
extensions of the deadline to file its brief on the merits, while Panda requested two extensions of the deadline to file
its brief on the merits and one extension of the deadline to file its reply brief. All sixteen of these requests were
unopposed by the other party. While the parties have expressed the hope that we can decide the issues in these
consolidated causes, they have never demonstrated the urgency the dissenting Justices now argue should permit us to
disregard or impermissibly expand our jurisdictional limits.
7
Meanwhile, on October 22, 2019, the court of appeals heard oral arguments in Panda II.
But nine days after hearing arguments, the court granted Panda’s August 15, 2018 motion to abate
Panda II pending our final disposition of the two petitions now before us, which challenge the
court of appeals’ judgment in Panda I.
Because Panda’s mandamus petition and ERCOT’s petition for review both challenge the
court of appeals’ decision in Panda I, which addressed the trial court’s interlocutory order denying
ERCOT’s jurisdictional plea, we asked the parties to provide supplemental briefs specifically
addressing the issue of whether the trial court’s subsequent entry of a final judgment rendered
these proceedings moot. See Heckman v. Williamson County, 369 S.W.3d 137, 166–67 (Tex. 2012)
(noting that a suit can become moot at any time, including on appeal). If it did, then we lack
jurisdiction to decide these causes. See State ex rel. Best v. Harper, 562 S.W.3d 1, 6 (Tex. 2018).
The mootness doctrine—a constitutional limitation founded in the separation of powers
between the governmental branches—prohibits courts from issuing advisory opinions. Patterson
v. Planned Parenthood of Hous. & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998). A case
becomes moot when (1) a justiciable controversy no longer exists between the parties, (2) the
parties no longer have a legally cognizable interest in the case’s outcome, (3) the court can no
longer grant the requested relief or otherwise affect the parties’ rights or interests, or (4) any
decision would constitute an impermissible advisory opinion. Harper, 562 S.W.3d at 6 (first
quoting Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001); and then quoting Heckman, 369
S.W.3d at 162).9 Under these principles, a trial court’s entry of a final judgment will often moot
9
Although JUSTICE GUZMAN correctly observes that a case becomes moot when “the parties lack (1) a
justiciable controversy between them or (2) a legally cognizable interest in the outcome,” post at ___ (GUZMAN, J.,
dissenting), she fails to acknowledge that a case also becomes moot when, “for any reason,” the Court’s judgment
8
an interlocutory appeal or mandamus petition that challenges a prior trial-court order. See
Roccaforte v. Jefferson County, 341 S.W.3d 919, 922 (Tex. 2011) (quoting Hernandez v. Ebrom,
289 S.W.3d 316, 319 (Tex. 2009)).
For example, a final judgment granting a permanent injunction typically moots a pending
interlocutory appeal from a prior order granting a temporary injunction. Richards v. Mena, 820
S.W.2d 372, 372 (Tex. 1991).10 Similarly, a final judgment terminating parental rights moots the
parent’s pending appeal from a prior temporary order authorizing the emergency removal of the
child from the parent’s custody. In re E.R.W., 528 S.W.3d 251, 257 (Tex. App.—Houston [14th
Dist.] 2017, orig. proceeding). And a final judgment enforcing a settlement agreement in a
parental-termination case moots the child’s foster parents’ pending mandamus petition challenging
a prior order striking their petition to intervene, because “there is no longer a justiciable
controversy between the parties that would be resolved by the petition for mandamus relief.” In re
Salverson, No. 01-12-00384-CV, 2013 WL 557264, at *1 (Tex. App.—Houston [1st Dist.] Feb.
14, 2013, orig. proceeding) (per curiam) (mem. op.). In each of these examples, the trial court’s
final judgment mooted the substantive issue the interlocutory appeal or mandamus petition
presented. Once the trial court entered a permanent injunction or terminated the parent’s rights,
the issue of whether the trial court erred by granting a temporary injunction, authorizing the child’s
can have no “practical legal effect” on an “existing controversy.” McNeill v. Hubert, 23 S.W.2d 331, 333 (Tex. 1930)
(emphasis added); see also Harper, 562 S.W.3d at 6 (“Mootness occurs when events make it impossible for the court
to grant the relief requested or otherwise ‘affect the parties’ rights or interests.”); Heckman, 369 S.W.3d at 162 (“Put
simply, a case is moot when the court’s action on the merits cannot affect the parties’ rights or interests.”); VE Corp.
v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993) (per curiam) (“Generally, an appeal is moot when the court’s action
on the merits cannot affect the rights of the parties.”).
10
See also Isuani v. Manske-Sheffield Radiology Grp., P.A., 802 S.W.2d 235, 236–37 (Tex. 1991).
9
emergency removal, or denying the foster parents’ intervention no longer presented a live
controversy that was relevant to the resolution of the parties’ then-current dispute. 11
As Texas courts of appeals have repeatedly recognized, however, a trial court’s entry of a
final judgment can moot a pending interlocutory appeal or mandamus petition even when the final
judgment does not moot the substantive issue the interlocutory appeal or mandamus petition
presents. For example, the trial court’s entry of a final summary judgment in the plaintiff’s favor
moots the defendant’s pending interlocutory appeal from a prior order denying the defendant’s
special appearance, because the prior order merges into the final judgment. See Chen v. Razberi
Techs., Inc., No. 05-19-01551-CV, 2020 WL 6390507, at *2 (Tex. App.—Dallas Nov. 2, 2020, no
pet. h.) (mem. op.).12 Similarly, a final judgment granting the defendant’s motion to dismiss moots
the defendant’s pending interlocutory appeal from a prior order denying the dismissal motion and
refusing to award attorney’s fees, again because the prior order merges into the final judgment.
Scott L. Ortho Corp. P.C. v. Marshall, No. 03-19-00575-CV, 2019 WL 6693770, at *1 (Tex.
App.—Austin Dec. 6, 2019, no pet.) (mem. op.). And a final judgment entered in the plaintiff’s
favor moots the defendant’s pending interlocutory appeal from a prior order denying the
defendant’s jurisdictional plea for the same reason: the interlocutory order merges into the final
judgment, and the appellate court’s decision in the interlocutory appeal “could not have a practical
11
See also Roccaforte, 341 S.W.3d at 924 n.9 (citing additional cases in which “further proceedings mooted
the [substantive] issues raised” in an interlocutory appeal).
12
See also Henry v. Flintrock Feeders, Ltd., No. 07-04-0224-CV, 2005 WL 1320121, at *1 (Tex. App.—
Amarillo June 1, 2005, no pet.) (mem. op.).
10
effect on the final judgment.” Tex. Dep’t of Transp. v. Flores, 513 S.W.3d 826, 827 (Tex. App.—
El Paso 2017, no pet.).13
In these examples, the parties’ controversy over the substantive issue remained live after
the trial court entered a final judgment, even though the final judgment rendered the appeal from
the interlocutory order “procedurally moot.” Alexander, 2005 WL 8147253, at *1 (noting that “the
issue of the denial of the plea to the jurisdiction is not moot,” but “the purpose of an interlocutory
appeal has been mooted by the final judgment”). 14 When that occurs, the complaining party’s
remedy is to raise the live substantive issue in an appeal from the final judgment. Id. (explaining
that the live substantive issue “may be raised by appellant in its appeal from the final judgment”). 15
As in these examples, the parties’ controversy over the substantive jurisdictional issues in
this case—whether sovereign immunity bars Panda’s claims and, if not, whether the Public Utility
13
See also City of Lancaster v. White Rock Com., LLC, No. 05-16-00842-CV, 2017 WL 2875520, at *1 (Tex.
App.—Dallas July 6, 2017, no pet.) (mem. op.); Tex. Dep’t of Pub. Safety v. Alexander, No. 03-04-00439-CV, 2005
WL 8147253, at *1 (Tex. App.—Austin Apr. 14, 2005, no pet.) (mem. op.). Other examples abound. See, e.g., In re
Gee, No. 01-05-00851, 2006 WL 2640989, at *1 (Tex. App.—Houston [1st Dist.] Sept. 11, 2006, orig. proceeding)
(mem. op.) (holding final judgment awarding interpleaded funds to plaintiff mooted defendant’s mandamus petition
challenging prior order allowing interpleader and disbursing some but not all interpleaded funds to plaintiff); Lincoln
Prop. Co. v. Kondos, 110 S.W.3d 712, 715–16 (Tex. App.—Dallas 2003, no pet.) (holding final summary judgment
against plaintiffs mooted defendant’s interlocutory appeal from prior order certifying proposed class); Siebenmorgen
v. Hertz Corp., No. 14-97-01012-CV, 1999 WL 21299, at *2 (Tex. App.—Houston [14th Dist.] Jan. 21, 1999, no pet.)
(not designated for publication) (holding final judgment against plaintiff mooted plaintiff’s interlocutory appeal from
prior order denying plaintiff’s motion for class certification); In re Alexis, No. 05-97-01916-CV, 1998 WL 564933, at
*1 (Tex. App.—Dallas Sept. 8, 1998, orig. proceeding) (not designated for publication) (holding final judgment
against plaintiff mooted plaintiff’s mandamus petition challenging prior pretrial-discovery order because discovery
order merged into the final judgment and trial court lost power to modify it when it lost plenary jurisdiction).
14
See also Scott L. Ortho Corp., 2019 WL 6693770, at *1 (“While the issue of attorney’s fees and costs
related to the denial of appellants’ motion to dismiss is not moot, the purpose of the interlocutory appeal has been
mooted by the final judgment.”); City of Lancaster, 2017 WL 2875520, at *1 (“Although we dismiss this interlocutory
appeal as moot, the issue of the denial of the plea to the jurisdiction is not moot.”).
15
See also Flores, 513 S.W.3d at 827 (“TXDOT must appeal the final judgment in order to challenge the
denial of its plea to the jurisdiction.”); City of Lancaster, 2017 WL 2875520, at *1 (“The City may raise that issue in
its appeal from the final judgment.”); Lincoln Prop., 110 S.W.3d at 716 (explaining that the parties’ rights are instead
“subject to the disposition of the appeal concerning the final judgment”); Siebenmorgen, 1999 WL 21299, at *2
(noting that plaintiff failed to appeal the final judgment); Alexis, 1998 WL 564933, at *1 (same).
11
Commission has exclusive jurisdiction—remains live, and the parties have a legally cognizable
interest in the resolution of those issues. See Harper, 562 S.W.3d at 6–7. But the mere existence
of a live controversy does not create jurisdiction when other obstacles prevent the court from
interceding. See id. (noting the many grounds upon which a finding of mootness can rest). Panda’s
petition for writ of mandamus asks this Court to “reverse the court of appeals’ judgment [in Panda
I], direct the court of appeals to set aside its order mandating dismissal of Panda’s claims, reinstate
the denial of the plea to the jurisdiction, and remand for further proceedings.” But we cannot direct
the court of appeals to set aside its “order mandating dismissal of Panda’s claims” or direct it to
order the trial court to reinstate its interlocutory order denying ERCOT’s jurisdictional plea
because the trial court has already entered a final judgment to comply with the court of appeals’
order, and that judgment is pending on appeal in a separate appellate proceeding. Neither the trial
court’s interlocutory order nor the court of appeals’ order directing the trial court to set aside that
order have any remaining effect separate from the trial court’s final judgment. See Coal. of Cities
for Affordable Util. Rates v. Third Ct. of Appeals, 787 S.W.2d 946, 947 (Tex. 1990). We must
conclude that the trial court’s entry of a final judgment rendered these causes procedurally moot,
and the parties must seek final resolution of their pending controversies by appeal from the trial
court’s final judgment.
To be clear,16 the court of appeals cannot now set aside its order in Panda I and order the
trial court to reinstate its earlier order denying ERCOT’s plea to the jurisdiction because that order
16
We risk repeating ourselves to provide additional clarity in light of the dissenting Justices’ inexplicable
assertion that the “Court offers no reason why it cannot” direct the court of appeals to set aside its order mandating
dismissal of Panda’s claims. Post at ___ (HECHT, C.J., dissenting). One may disagree in good faith with the Court’s
reasoning, but one cannot in good faith simply ignore the reasons and pretend they don’t exist.
12
no longer exists as a separate order. The order has been superseded by and has merged into the
trial court’s final judgment dismissing Panda’s claims. See Bonsmara, 603 S.W.3d at 390 (“When
a trial court renders a final judgment, the court’s interlocutory orders merge into the judgment and
may be challenged by appealing that judgment.”). Similarly, an order by this Court directing the
court of appeals to set aside its order in Panda I could have no practical effect because the trial
court has already complied with that order by entering its own final judgment. And this Court does
not have the power to vacate the trial court’s final judgment in this proceeding because Panda is
appealing that judgment in Panda II, which is currently pending in the court of appeals. Because
the court of appeals abated Panda II, it has not yet entered a judgment addressing the trial court’s
final judgment, so of course neither party has petitioned this Court for relief from any such
judgment.17
17
The dissenting Justices suggest that we can decide the issues now—even though our decision cannot now
affect the trial court’s interlocutory order or the court of appeals’ judgment in Panda I—because our decision will
instruct the court of appeals how to decide the issue when it decides Panda II. Post at ___ (HECHT, C.J., dissenting)
(“If we answered here the question of ERCOT’s immunity, the court of appeals would decide the pending appeal in
accordance with our decision.”). But the “judicial power” over Panda II currently rests exclusively in the court of
appeals, see United Servs. Life Ins. Co. v. Delaney, 396 S.W.2d 855, 861 (Tex. 1965) (explaining that “judicial power”
is the authority to hear and decide the issues and enter judgment “in accordance with the law as determined by the
court”), and we must permit that court to exercise its power “without conflict with the authority confided to another
tribunal,” including this Court, Morrow v. Corbin, 62 S.W.2d 641, 645 (Tex. 1933). Although the constitution grants
limited exceptions that allow us to issue such advisory opinions for cases pending in other courts, such as the power
to answer certified questions from the federal appellate courts, see Richards v. State Farm Lloyds, 597 S.W.3d 492,
497 n.6 (Tex. 2020) (discussing TEX. CONST. art. V, § 3-c), no such exception applies here.
The dissenting Justices also argue that rule 27.3 of the Rules of Appellate Procedure “should apply” in this
case. Post at ___ (HECHT, C.J., dissenting). Rule 27.3 provides that, if a party appeals from a trial court’s order or
judgment and the trial court later modifies or vacates and replaces that order or judgment with another appealable
order or judgment, “the appellate court must treat the appeal as from the subsequent order or judgment.” TEX. R. APP.
P. 27.3. The rule appears in Section Two of the rules of appellate procedure, which governs “Appeals from Trial Court
Judgments and Orders,” not in Section Four, which governs “Proceedings in the Supreme Court.” Nevertheless, we
said in Roccaforte that rule 27.3 permitted this Court to “treat [an] interlocutory appeal as an appeal from [a
subsequent] final judgment.” 341 S.W.3d at 924. But that was because, in that case, the court of appeals treated the
interlocutory appeal as an appeal from the final judgment. In Roccaforte, the trial court entered a final judgment before
the court of appeals decided the appeal from the trial court’s earlier interlocutory order, so rule 27.3 required the court
of appeals to treat the interlocutory appeal “as though it were from the final judgment.” Id. Here, the trial court entered
the final judgment after the court of appeals had dismissed the interlocutory appeal and granted mandamus relief, and
in fact did so to comply with the court of appeals’ mandamus order. If the trial court in this case had entered a final
13
Because the trial court’s interlocutory order (which gave rise to these consolidated causes)
merged into the final judgment, the final judgment is on appeal in a separate proceeding in the
court of appeals, and the trial court no longer has plenary jurisdiction over Panda’s claims against
ERCOT, this Court cannot instruct the trial court to render a new judgment. Nor can we instruct
the court of appeals how to resolve Panda II without issuing an advisory opinion, because that
appeal is not yet before us. We are therefore unable to provide the relief the parties’ petitions seek,
and any order by this Court would be without practical effect. Therefore, we are compelled to
conclude that this proceeding is moot.18 See Dow Chem. Co. v. Garcia, 909 S.W.2d 503, 504–05
judgment before the court of appeals decided Panda I, rule 27.3 would have required the court of appeals to treat
Panda I as an appeal from the final judgment, and not from the prior interlocutory order denying ERCOT’s
jurisdictional plea, which merged into the final judgment. Under those circumstances, the court of appeals would have
reviewed the final judgment, rather than the interlocutory order, and we too could review the court of appeals’
judgment as the decision in an appeal from the final judgment. But here, the court of appeals could not have treated
the interlocutory appeal as an appeal from the final judgment because the appeal was no longer pending when the trial
court entered the final judgment, so rule 27.3 could not have applied.
The dissenting Justices suggest that the court of appeals could have granted Panda’s motion for rehearing
before it lost plenary power and then reconsidered the appeal as an appeal from the final judgment. But rule 27.3
certainly did not require the court of appeals to grant rehearing. As it is, the court of appeals did not grant rehearing,
presumably because Panda appealed the final judgment as a separate appellate proceeding. With the rare exception of
permissible direct appeals, this Court reviews court of appeals’ judgments, not trial court judgments, and unlike
Roccaforte, the court of appeals in this case has not yet reviewed the trial court’s final judgment. Rule 27.3, which
governs appeals from trial court judgments and orders, may permit us to treat an appeal from an interlocutory order
as an appeal from the final judgment when the court of appeals did, but it does not permit us to do so when the court
of appeals could not. By doing so, we would infringe upon the court of appeals’ judicial power by reviewing a
judgment the court of appeals has not yet had the opportunity to review.
18
The dissenting Justices fear “potentially dangerous” results from the Court’s decision. Post at __ (HECHT,
C.J., dissenting). We do not, because the legislature and our rules have already addressed the Dissent’s concern by
mandating or providing for a stay of the trial-court proceedings. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8),
(b) (“An interlocutory appeal [of an order that grants or denies a plea to the jurisdiction by a governmental unit] also
stays all other proceedings in the trial court pending resolution of that appeal.”); TEX. R. APP. P. 52.10(a) (permitting
mandamus relator to obtain a stay of “any underlying proceedings”). Once ERCOT filed its interlocutory appeal and
alternative mandamus petition challenging the trial court’s denial of its jurisdictional plea, the parties were entitled to
a stay of all proceedings until that appeal was resolved. They sought and obtained a stay while Panda I was pending,
but the stay was lifted when the court of appeals issued its opinion in Panda I. ERCOT claims that it promptly agreed
to another stay after the court of appeals issued its decision, but Panda failed to seek that stay before the trial court
complied with that decision by entering the final judgment. According to Panda, the trial court entered its final
judgment while the parties were “in the process of conferring on a request to stay.” In either case, Panda then asked
the court of appeals to stay the effect of its order and to require the trial court to vacate its final judgment, but the court
of appeals denied that relief. Although the statutory stay is mandatory, parties must seek the stay and object to court
14
(Tex. 1995) (quoting Holcombe v. Fowler, 9 S.W.2d 1028, 1028 (Tex. 1928)) (agreeing with
plaintiffs that Dow’s mandamus petitions “are moot because this Court can never give Dow
Chemical the relief it seeks” and stating that “we will not issue mandamus ‘if for any reason it
would be useless or unavailing’”).
The parties note that this case presents circumstances similar to those we addressed in In
re Wood, 140 S.W.3d 367 (Tex. 2004) (per curiam), overruled on other grounds by Robinson v.
Home Owners Mgmt. Enters., Inc., 590 S.W.3d 518 (Tex. 2019). But as they also acknowledge,
Wood is distinguishable in one key respect. Wood arose from a putative class action a group of
former clients filed against their former attorneys. See id. at 368. Without deciding whether to
certify the proposed class, the trial court entered an order sending the clients’ claims to binding
arbitration and abating the case pending the arbitration. In response to the clients’ motion, the trial
court issued a second order clarifying that the arbitrator must decide whether to certify the
proposed class. Id. The attorneys filed a mandamus petition in the court of appeals challenging the
trial court’s second order, and the court of appeals granted that petition and ordered the trial court
to vacate its second order and decide the class-action issues. Id.; see In re John M. O’Quinn, P.C.,
155 S.W.3d 195, 198, 202 (Tex. App.—Tyler 2003, orig. proceeding). The trial court’s third order
vacated its second order as the court of appeals had instructed. Wood, 140 S.W.3d at 368. The
court of appeals then issued an order dismissing the attorneys’ mandamus proceeding as moot. See
actions in violation of the stay. See In re Geomet Recycling LLC, 578 S.W.3d 82, 87 n.1 (Tex. 2019) (“While trial
court action taken in violation of the stay is voidable, it is not necessarily void.”); Roccaforte, 341 S.W.3d at 923–24
(stating that the entry of a final judgment while an interlocutory appeal is pending in violation of the mandatory stay
is “voidable, not void”). Here, neither party has ever complained to this Court that the trial court or the court of appeals
erred or abused its discretion by failing to stay the proceedings below. Instead, Panda appealed the final judgment to
the court or appeals. In any event, the danger the dissenting Justices fear—that crafty courts of appeals can preclude
our review of their decisions—does not present itself in this case because we will review the court of appeals’ decision
on appeal from the trial court’s final judgment.
15
In re O’Quinn, No. 12-02-00352-CV, 2003 WL 21571427, at *1 (Tex. App.—Tyler July 10, 2003,
orig. proceeding) (mem. op.).
The clients filed a mandamus petition in this Court, challenging the court of appeals’ order
granting mandamus relief and requiring the trial court to vacate its second order. Wood, 140
S.W.3d at 368. In response, the attorneys argued that the trial court’s entry of its third order (which
vacated its second order) mooted the clients’ mandamus petition in this Court, because the
mandamus petition challenged the court of appeals’ judgment addressing the trial court’s second
order. Id. at 370. We disagreed and held that the proceeding was not moot, despite the trial court’s
entry of its third order, because a live controversy remained over whether the court of appeals
abused its discretion by ordering the trial court to vacate its second order, and our resolution of
that controversy required us to decide whether the trial court abused its discretion by entering the
second order. Id.
In the same way, here, despite the trial court’s entry of its final judgment, a live controversy
exists over whether the court of appeals erred by ordering the trial court to vacate its interlocutory
order denying ERCOT’s jurisdictional plea, even though our resolution of that issue requires us to
decide whether the trial court erred by entering that interlocutory order. But we could grant
effective relief in Wood because the trial court retained plenary jurisdiction over the case after
entering its third interlocutory order. Here, we cannot grant effective relief because the trial court
lost plenary jurisdiction thirty days after it entered its final judgment granting ERCOT’s
jurisdictional plea and dismissing Panda’s claims. The trial court here no longer has the power to
act. See TEX. R. CIV. P. 329b(f) (“On expiration of the time within which the trial court has plenary
power, a judgment cannot be set aside by the trial court except by bill of review . . . .”). If it did
16
act, its action would be void. See Travelers Ins. v. Joachim, 315 S.W.3d 860, 863 (Tex. 2010)
(quoting Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005)) (“A judgment is void only when
it is apparent that the court rendering judgment had no jurisdiction of the parties or property, no
jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to
act.”). We have no authority to order a court to perform a void act.
Finally, we note that the fact that these consolidated causes include a petition seeking
mandamus relief does not alter our analysis. Our mandamus power does not authorize us to decide
moot cases or issues any more than our power of appellate review. See, e.g., In re State, 489 S.W.3d
454 (Tex. 2016) (dismissing mandamus proceeding as moot); In re Uresti, 377 S.W.3d 696, 697
(Tex. 2012) (per curiam) (same); Republican Party of Tex. v. Dietz, 940 S.W.2d 86, 94 (Tex. 1997)
(same); Garcia, 909 S.W.2d at 505 (same). And as we have said time and again, including quite
recently, we will not exercise our mandamus jurisdiction if the parties have an adequate remedy
by appeal. See, e.g., In re Murrin Bros. 1885, Ltd., 603 S.W.3d 53, 56 (Tex. 2019) (orig.
proceeding); In re Turner, 591 S.W.3d 121, 124 (Tex. 2019) (orig. proceeding). 19 Mandamus
is meant for circumstances “involving manifest and urgent necessity and not for grievances that
may be addressed by other remedies.” Murrin Bros., 603 S.W.3d at 57 (quoting Walker, 827
S.W.2d at 840). An appeal is inadequate “when parties are in danger of permanently losing
substantial rights,” which occurs when “the appellate court would not be able to cure the error,
19
We do not suggest that this fundamental limitation on our mandamus power is jurisdictional. But our
mandamus power does not permit us to review a court of appeals judgment addressing a trial court order when a
subsequent judgment has rendered those orders moot, or when a pending appeal from that judgment indisputably
provides an adequate remedy. Although we are of course fully aware of the distinction between a mandamus writ and
a judgment on appeal, that distinction is illusory here because either one would have to instruct the court of appeals
to instruct the trial court to vacate an interlocutory order that no longer exists, and to do so after the trial court has lost
its plenary power to act.
17
when the party’s ability to present a viable claim or defense is vitiated, or when the error cannot
be made part of the appellate record.” In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex.
2004) (orig. proceeding). Because Panda II is fully briefed and argued in the court of appeals—
and has been abated pending only an order from this Court on these petitions—we cannot say that
the parties lack an adequate appellate remedy here. Although this “Court may consider whether
mandamus can spare the litigants and public ‘the time and money utterly wasted enduring eventual
reversal of improperly conducted proceedings,’” In re Keenan, 501 S.W.3d 74, 76 (Tex. 2016)
(quoting In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004)), the time and money
has already been expended here. This Court can do little now to ameliorate that concern.
We are not insensitive to the importance of the issues these consolidated causes present.
Indeed, as we said long ago when faced with similar limitations on our own jurisdiction, “[i]n view
of the importance of the questions involved . . . , we regret that [our] jurisdiction . . . has not been
invoked in a constitutional way, so that we might have assisted in their solution at this time.”
Morrow, 62 S.W.2d at 651. Nor are we insensitive to the parties’ desire to have those issues
resolved in this proceeding. Jurisdictional limitations, as we once observed, can impose a
cumbersome procedural process that seems “rather like burning a house to roast a pig.” Delaney,
396 S.W.2d at 864. But our lack of jurisdiction over moot cases is a mandate of the constitution,
not a matter of convenience. See Patterson, 971 S.W.2d at 442–43. Just as in Morrow and Delaney,
we must respect our own constitutional limitations, however much we may prefer to resolve the
issues here, because “neither we nor the legislature can create jurisdiction the Constitution does
not permit.” In re Occidental Chem. Corp., 561 S.W.3d 146, 174 (Tex. 2018) (BOYD, J.,
dissenting).
18
We hold that the trial court’s entry of a final judgment mooted Panda’s mandamus petition.
It has likewise mooted the need for ERCOT’s conditional petition for review, which seeks relief
on the condition that this Court accept Panda’s mandamus petition. As ERCOT itself notes in its
petition, if this Court lacks jurisdiction over Panda’s mandamus petition, “the need for [ERCOT’s]
conditional petition would be obviated.”
III.
Conclusion
The trial court’s entry of a final judgment rendered these causes arising from an
interlocutory order moot. We therefore dismiss both the mandamus petition and the conditional
petition for review for want of jurisdiction.
_____________________
Jeffrey S. Boyd
Justice
Opinion delivered: March 19, 2021
19