State v. City of Austin, Texas County of Travis, Texas Steve Adler, in His Official Capacity as Mayor, City of Austin, Texas And Andy Brown, in His Official Capacity as County Judge, County of Travis, Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00619-CV
The State of Texas, Appellant
v.
City of Austin, Texas; County of Travis, Texas; Steve Adler, in his Official Capacity as
Mayor, City of Austin, Texas; and Andy Brown, in his Official Capacity as County Judge,
County of Travis, Texas, Appellees
FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-20-007712, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING
DISSENTING OPINION
I respectfully dissent because I disagree with the Court’s analysis and conclusion
that it lacks jurisdiction over this interlocutory appeal.
In reaching its conclusion that this interlocutory appeal is moot, the Court faults
the State for its “conclusory statement” that the local officials began to enforce County Judge’s
Order 2020-24 and the Mayor’s Order No. 20201229-24 (the local orders) and then relies on the
lack of evidence in “the record” of actual enforcement of the local orders such as probable-cause
affidavits. That there is no evidence in the appellate record of the local officials’ enforcement
efforts, however, is hardly surprising given that the hearing on the State’s requested temporary
relief and the trial court’s ruling occurred on December 31, 2020, before the local orders went
into effect.
The Court “construe[s] the local officials’ arguments as to mootness” to mean that
the local officials did not pursue and do not intend to pursue enforcement of any violations that
occurred during the period that the local orders were in effect and “decline[s] to assume that the
local officials would engage in the same conduct—enforcing the expired local orders—again.”
Businesses, however, remain subject to criminal prosecution for non-compliance with the local
orders during the time period that they were in place—from 10:30 p.m. on December 31, 2020,
to 6:00 a.m. on January 1, 2021—before this Court issued its temporary stay of the orders. See
In re State, No. 21-0001, 2021 Tex. LEXIS 1, at *1 (Tex. Jan. 1, 2021) (conditionally granting
mandamus relief and directing court of appeals to issue relief under Rule 29.3 “instanter,
enjoining enforcement of [local orders] pending final resolution of the appeal”); State v. City of
Austin, No. 03-20-00619-CV, 2021 Tex. App. LEXIS 1, at *1 (Tex. App.—Austin Jan. 1, 2021,
order) (per curiam).1 And in their briefing to this Court, the local officials continue to vigorously
defend their authority to adopt and enforce the local orders and do not concede that the local
orders were invalid or unlawful. Cf., e.g., Matthews v. Kountze Indep. Sch. Dist., 484 S.W.3d 416,
418–19 (Tex. 2016) (concluding that case was not moot and observing that School District’s
policy change could be “easily reinstated” and “the change hardly makes ‘absolutely clear’ that
the District will not reverse itself after this litigation has concluded, without the [plaintiffs]’
requested declaratory and injunctive relief”).2
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Because the trial court denied the State’s requested injunctive relief before the local
orders went into effect, the record is undeveloped as to appellees’ intentions concerning criminal
prosecution for non-compliance of the local orders. That the trial court, after the evidentiary
record is developed, ultimately may determine that the underlying case is moot does not give this
Court jurisdiction to make that determination in this interlocutory appeal.
2
Matthews v. Kountze Independent School District is not directly applicable here
because the record does not show that appellees have voluntarily ceased any challenged conduct.
2
On this record and given the particular nature and expedited concerns associated
with the declared emergency state of disaster of the COVID-19 pandemic along with the “public
interest in having the legality of the challenged conduct settled,” cf. id. at 418, I would conclude
that this interlocutory appeal is not moot and address the substance of the State’s appellate issue.
Further, informed by the Texas Supreme Court’s directive to this Court and our sister court’s
analysis in El Paso County, I would conclude that the State established a probable right to relief
and irreparable injury and sustain the State’s issue. See In re State, 2021 Tex. LEXIS 1, at *1;
State v. El Paso County, No. 08-20-00226-CV, 2020 Tex. App. LEXIS 8872, at *29–30 (Tex.
App.—El Paso Nov. 13, 2020, no pet.) (mem. op.); see also State v. Naylor, 466 S.W.3d 783,
390 (Tex. 2015) (“As a sovereign entity, the State has an intrinsic right to enact, interpret, and
enforce its own laws.”). Thus, I respectfully dissent.
See 484 S.W.3d 416, 418 (Tex. 2016) (“A defendant’s cessation of challenged conduct does not,
in itself, deprive a court of the power to hear or determine claims for prospective relief.”).
Nevertheless, Matthews provides some guidance here and stands for the general principle that a
defendant’s potential conduct in the future, even in the face of a current cessation of the
challenged conduct, may overcome mootness in establishing jurisdiction.
In Matthews, cheerleaders, through their parents, sued the School District “after the
District prohibited them from displaying banners containing religious signs or messages at
school-sponsored events.” Id. at 417. The School District sought to dismiss the case as moot
after it adopted a resolution and order that no longer prohibited the cheerleaders from displaying
banners with religious signs or messages but maintained the School District’s authority to restrict
the content of banners. Id. at 418–19. In that context, the Texas Supreme Court concluded that
the case was not moot, observing that the School District’s prohibition could be “easily
reinstated” and “the change hardly makes ‘absolutely clear’ that the District will not reverse
itself after this litigation has concluded, without the cheerleaders’ requested declaratory and
injunctive relief.” Id. at 419. The court recognized: “[W]hile there are cases where the
defendant’s voluntary conduct yielded mootness in the absence of an admission by the defendant
that the challenged conduct was illegal, those cases generally involved conduct that could not be
easily undone, and thus foreclosed a reasonable chance of recurrence.” Id. The court reasoned
that if a defendant’s cessation of challenged conduct mooted a claim for prospective relief,
“defendants could control the jurisdiction of courts with protestations of repentance and reform,
while remaining free to return to their old ways,” which “would obviously defeat the public
interest in having the legality of the challenged conduct settled.” Id. at 418.
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Melissa Goodwin, Justice
Before Justices Goodwin, Triana, and Kelly
Filed: April 8, 2021
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