The Fourteenth Court of Appeals has dismissed a challenge to Harris County Judge Lina Hidalgo’s order cancelling a foreclosure sale scheduled at Bayou Event Center on April 6, 2021. Judge Hidalgo’s order, issued on April 2, 2021, cited data regarding increasing seven-day hospitalization rates as the basis for the order. A commercial real estate lender, Texas Funding, challenged the order on April 3, 2021, alleging that the order violated GA-34, which generally barred local orders closing businesses unless a county experienced a high rate of hospitalizations for seven consecutive days. In that event, an order could be issued but could not require a business to operate at less than 50 percent of total occupancy.
In Texas Funding Corporation v. Harris County, Texas and Lina Hidalgo in Her Official Capacity as County Judge of Harris County, Texas (No. 14-21-00197-CV), Texas Funding sought declaratory and injunctive relief and attorney’s fees pursuant to § 37.009, CPRC. On April 5 the trial court denied Texas Funding’s request for a TRO. Harris County answered the suit on April 9 and filed a plea to the jurisdiction on the ground that Texas Funding’s suit was moot because the Judge Hidalgo’s order expired on April 6. The trial court granted the plea to the jurisdiction and dismissed the case. On appeal, Texas Funding argued that it satisfied an exception to the mootness doctrine because its injury “was capable of repetition yet evaded review.” It also argued that it was entitled to injunctive relief blocking Judge Hidalgo from issuing a similar future order.
The court of appeals affirmed, holding that it lacked subject matter jurisdiction because the case was moot. Regarding Texas Funding’s claim to an exception to the mootness doctrine, the court stated that in order to show an exception, Texas Funding had to establish: “(1) the challenged action was too short in duration to be litigated fully before the action ceased or expired; and (2) a reasonable expectation exists that the same complaining party will be subjected to the same action again” (citations omitted). There was no question as to the first part of the test, so the court focused on the second. Here the court found that whether Judge Hidalgo would issue the same order again was so speculative and depended on so many contingencies, many of which were stated in the challenged order itself, that it was not “reasonable” to expect a recurrence of the same situation. Anything a court might say on that score would be an impermissible advisory opinion.
In response to Texas Funding’s claim that the trial court had the authority to prevent future orders, the court of appeals held that that issue “did not present a justiciable controversy at the time of the April 2, 2021 order and was not ripe for review.” According to SCOTX, ripeness requires “a live, non-abstract question of law that, if decided, would have a binding effect on the parties” (citations omitted). Moreover, there must be “a concrete injury for a justiciable claim to be presented” (citations omitted). Without such an injury, a court would again have to venture in the unconstitutional field of advisory opinions. It might also lead the courts into “excessive intrustion . . . on the policymaking domains of the other branches of government” (citation omitted). Here Texas Funding could not show a concrete injury “at the time it filed this suit from orders that might not ever be issued” or that are likely to occur in the future. Even a “threat of harm” must be “‘direct and immediate’ rather than conjectural, hypothetical, or remote’” (citations omitted). That is not the case here, and the trial court acted properly when it ruled that it lacked jurisdiction. Finally, in response to Texas Funding’s request that the court of appeals issue an injunction, the court ruled that it lacked jurisdiction to do so. A court of appeals can only do that to protect its own jurisdiction, which was not the case here.
We noticed this case for two reasons: it involved a conflict between a gubernatorial and local emergency order, and it contained a substantive discussion of the doctrines of mootness and ripeness. The latter issue is of critical importance, in our view, because of the growing trend in the Legislature to create civil causes of action with no concrete injury to anybody. These issues, it must be remembered, go to the constitutional basis of the courts’ jurisdiction. They are not merely doctrines of convenience that can be waved away by one or another branch of government. At some point, SCOTX will have to confront this problem, as unpleasant as that will likely be. But the courts are either an independent and coequal branch of government or they’re not. From our perspective, that’s the real issue they will have to decide.