Adrian Robinson v. Alief Independent School District and Louis Stoerner, in His Official Capacity Only

Affirmed and Majority and Dissenting Opinions filed August 25, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-08-00949-CV ____________ ADRIAN ROBINSON, Appellant V. ALIEF INDEPENDENT SCHOOL DISTRICT AND LOUIS STOERNER, IN HIS OFFICIAL CAPACITY ONLY, Appellees On Appeal from the 80th District Court Harris County, Texas Trial Court Cause No. 2007-07420 M A J O R I T Y   O P I N I O N Appellant, Adrian Robinson, brings this accelerated appeal challenging the trial court=s order granting the plea to the jurisdiction filed by appellees, Alief Independent School District (AAISD@) and Louis Stoerner. In his sole issue, Robinson contends that the trial court erroneously granted the plea to the jurisdiction because his claims against AISD and Stoerner were not moot. We affirm. I.  BACKGROUND Robinson was employed by AISD as a teacher during the 2004-2005 school year. Robinson contends that in the fall of 2004, he had a brief romantic relationship with a fellow employee, Lenetta Freeman. He claims that after he ended the relationship, Freeman and Dwight Brannon, an employee in AISD=s human resources department, began a campaign against Robinson to tarnish his reputation as an educator. Robinson contends that Brannon placed him on administrative leave in February 2005 for making Ainappropriate comments regarding a coworker@ without divulging the substance of the alleged inappropriate statements. Moreover, Robinson claims that while he was on leave, an email was sent to AISD employees indicating that Robinson suffered from AIDS and was attempting to maliciously spread the disease. Robinson claims that in August 2005, he was forced to resign due to a stress-related medical disorder. Freeman resigned from AISD in 2006, and Brannon resigned in 2007. In February 2007, appellant filed the underlying lawsuit against AISD, AISD=s superintendent, Stoerner, in his official capacity, Freeman, and Brannon. Against AISD and Stoerner, Robinson alleged equal rights, freedom of speech, and due process violations under Article I, Sections 3, 8, and 19 of the Texas Constitution. Against Freeman and Brannon, Robinson claimed that they Aconspired to and each intentionally inflicted him with emotional distress, interfered with his business relationship, and invaded his constitutional right to privacy.@ Robinson sought declaratory and injunctive relief, requesting that the trial court: (1) Adeclare that [AISD] violated [his] constitutional rights@; (2) A[e]njoin [AISD] through its Superintendent of Schools to expunge his records of all references to Brannon=s acts . . . against him@; and (3) Aorder that Brannon, Freeman and all other employees of [AISD] cease violating or infringing upon [his] protected rights and liberties.@ AISD and Stoerner answered the lawsuit and subsequently filed a plea to the jurisdiction contending that Robinson=s claims against them were moot. AISD and Stoerner first argued that Robinson=s request for injunctive relief regarding expungment of his employee file was moot because AISD, sua sponte, had agreed to expunge the specific portions of Robinson=s personnel file that he requested to be removed. After Robinson filed his lawsuit, AISD voluntarily agreed to expunge all references to Brannon=s acts against Robinson from the employee file as requested in Robinson=s original petition and forwarded a letter to Robinson notifying him of its decision to expunge those records. Accordingly, AISD and Stoerner argued in their plea to the jurisdiction that the voluntary decision to expunge all references to Brannon=s acts against Robinson from the personnel records mooted Robinson=s request that the trial court order AISD, through Stoerner, to expunge the same. AISD and Stoerner further argued that Robinson=s remaining requests for declaratory and injunctive relief were moot. Specifically, AISD and Stoerner argued that because Robinson resigned from AISD in 2005, he was no longer subjected to the alleged unconstitutional conduct. Consequently, there was no live controversy. AISD and Stoerner urged the trial court to dismiss Robinson=s claims against them because the trial court did not have subject-matter jurisdiction over the moot claims. With no response from Robinson, the trial court signed an order granting AISD and Stoerner=s plea to the jurisdiction and dismissed Robinson=s claims against them. On appeal, Robinson argues that the trial court erred in granting the plea to the jurisdiction and dismissing his claims against AISD and Stoerner because those claims were not moot.[1] In the alternative, Robinson argues that the trial court should have afforded him the opportunity to amend his pleadings to cure any jurisdictional defects. II. STANDARD OF REVIEW A plea to the jurisdiction seeks dismissal of a cause based on lack of subject-matter jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Ahmed v. Metropolitan Transit Auth., 257 S.W.3d 29, 31 (Tex. App.CHouston [14th Dist.] 2008, no pet.). Whether a court has subject-matter jurisdiction and whether a plaintiff has affirmatively demonstrated subject-matter jurisdiction are questions of law that we review de novo. Tex. Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In deciding a plea to the jurisdiction, we may not weigh the merits of the plaintiff=s claim, but must consider only the plaintiff=s pleadings, construed in favor of the plaintiff, and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Saturn Capital Corp. v. City of Houston, 246 S.W.3d 242, 244B45 (Tex. App.CHouston [14th Dist.] 2007, pet. denied). When a plaintiff fails to plead facts establishing jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency. In that instance, the plaintiff should be afforded the opportunity to amend. Brown, 80 S.W.3d at 555. However, if the pleadings affirmatively negate the existence of jurisdiction, dismissal is proper without allowing the plaintiff an opportunity to amend. Id. III. MOOTNESS In his sole issue, Robinson contends that his requests for injunctive and declaratory relief were not moot despite his resignation from AISD and AISD=s decision to expunge portions of his employee file. In response, AISD and Stoerner argue that because there is no live controversy, any judicial action on the merits of Robinson=s claims would merely be advisory. The mootness doctrine precludes a court from rendering an advisory opinion in a case where there is no live controversy. Camarena v. Tex. Employment Comm=n, 754 S.W.2d 149, 151 (Tex. 1988); Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478, 487 (Tex. App.CHouston [1st Dist.] 1993, writ denied) (ACourts may not give advisory opinions or decide cases upon speculative, hypothetical, or contingent situations.@). A declaratory judgment is appropriate when a justiciable controversy exists concerning the rights and status of the parties and the controversy will be resolved by the declaration sought. But an action does not vest a court with the power to decide hypothetical or contingent situations or to determine questions not essential to the decision of an actual controversy, even if such question may require adjudication in the future. Harris County Mun. Util. Dist. No. 156 v. United Somerset Corp., 274 S.W.3d 133, 139B40 (Tex. App.CHouston [1st Dist.] 2008, no pet.) (quoting Tex. Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 846 (Tex. App.CAustin 2002, pet. denied)). A case becomes moot when: (1) it appears that a party seeks to obtain a judgment upon some controversy, when in reality none exists; or (2) a party seeks a judgment upon some matter which cannot have any practical legal effect upon a then existing controversy. Mollinedo v. Tex. Employment Comm=n, 662 S.W.2d 732, 738 (Tex. App.CHouston [1st Dist.] 1983, writ ref=d n.r.e.); Scholl v. Firemen=s & Policemen=s Civil Serv. Comm=n, 520 S.W.2d 470, 471 (Tex. Civ. App.CCorpus Christi 1975, no writ) (per curiam). A. Injunctive Relief: Expunging Employee File Robinson argues that AISD=s Aunilateral decision to expunge@ his employee record did not moot his request for injunctive relief to expunge his records. Relying heavily upon Lakey v. Taylor, Robinson argues that without a judicial admission of wrongdoing or extrajudicial action preventing AISD from reversing its decision to expunge his personnel file in the future, AISD is capable of retracting its expungement of the records. 278 S.W.3d 6 (Tex. App.CAustin 2008, no pet.). Lakey involved a due-process constitutional challenge to a departmental policy implemented by the Texas Department of Health Services. Id. at 10. Texas law required defendants determined to be incompetent to stand trial but ineligible for bail to be committed to a mental health facility for competency-restoration treatment. Id. These particular commitments were referred to as forensic commitments. The Department operated the state mental health hospital system, which housed and treated a number of forensic-commitment defendants. Id. In 2005, the number of persons required to be committed under the statute increased dramatically and exceeded the number of available hospital beds for forensic commitments. Id. In response, the Department developed a Aclearinghouse list,@ which was essentially a wait list for forensic commitments; the list made all forensic commitments to state hospitals contingent on the availability of space. Consequently, individuals on the clearinghouse list remained in county jail until a state hospital bed was available for competency-restoration treatment. Id. Thereafter, a group of plaintiffs brought suit against the commissioner seeking declaratory and injunctive relief. The plaintiffs requested an injunction requiring the Department to provide competency-restoration treatment within a reasonable period of time, not to exceed three days, and a declaration that the Department=s current policies, procedures, and practices regarding the clearinghouse list violated the Texas Constitution. Id. at 11. The commissioner responded, in part, by arguing that the plaintiffs= claims had been mooted by recent legislative funding and policy changes to the clearinghouse list. Specifically, the Department had revised its clearinghouse-list policy so that the waiting period for forensic commitments had dropped significantly. The Lakey Court rejected the commissioner=s mootness argument, concluding that a controversy still existed, despite the policy changes resulting in a decline in the waiting period, because the changes did not eliminate the waiting period. Id. at 12 (AWhile the Commissioner asserts that the number of criminal defendants on the clearinghouse list has been reduced, he does not contend that it has been eliminated.@). The Lakey Court further opined that the Department could not moot the appeal by voluntarily abandoning the challenged policy Awithout any binding admission or extrajudicial action that would prevent a recurrence of the challenged action.@ Id. Accordingly, the court held that the plaintiffs= injunctive and declaratory claims were not moot. Id. Lakey can be distinguished on two dispositive points. First, the Lakey Court held that the injunctive claim was not moot because the Department=s actions did not fully satisfy the plaintiffs= injunctive request. See id. The plaintiffs in Lakey requested that competency-restoration treatment be provided within a reasonable time period not exceeding three days. Id. at 11. The Department=s unilateral policy changes fell short of this request because the changes did not decrease the waiting period to three days or less. Rather, the waiting period was reduced to six months. Id. at 12. Accordingly, the plaintiffs= request for injunctive relief had not fully been satisfied by the Department=s policy changes. In contrast, Robinson requested in the instant case that his employee file be expunged, and AISD fully agreed to comply with this injunctive request. Accordingly, there is no more action that a court can enjoin to satisfy Robinson=s request to expunge his records. See Scholl, 520 S.W.2d at 471 (concluding that because actions requested in suit for declaratory and injunctive relief were taken, no controversy remained to be resolved). Furthermore, unlike Lakey, a case involving the cessation of an ongoing injury caused by an unconstitutional departmental policy, there is no present or immediate injury in the case before us. Robinson seeks an injunction ordering AISD to remove documents that AISD has already agreed to expunge in the event AISD reinstates the documents sometime in the future. Without any evidence of an existing or continuing present injury, or a reasonable expectation that AISD will reinstate the expunged documents in his employee file, Robinson=s request is merely conjunctural and hypothetical.[2] Accordingly, any judicial action would be advisory. See id. Because Texas courts are not vested with the authority to render advisory opinions,[3] we hold that Robinson=s injunctive request to expunge his employee file is moot. B. Declaratory Relief: Violation of Robinson=s Constitutional Rights Next, Robinson argues that his claim for declaratory relief regarding the violation of his constitutional rights was not moot. As stated above, Robinson=s claim for declaratory relief is justiciable only if the pleadings articulate an existing controversy. See Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). Past exposure to illegal conduct does not in itself amount to a present controversy for declaratory relief if unaccompanied by any continuing, present, adverse effects. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2000). The pleadings before us reflect that Robinson is no longer employed with AISD. Thus, he is not currently subjected to the allegedly unconstitutional activity for which he seeks declaratory relief. The Supreme Court of Texas has held that a claim for declaratory relief is moot if the party is no longer subject to the alleged illegal conduct. See id. at 184B85. In Lara, former inmates sued Tarrant County and other defendants for operating a religious-education program instructing inmates about Christianity. Id. at 175. The former inmates complained that the religious instruction violated the Establishment, Free Exercise, and Equal Protection Clauses of the United States and Texas Constitutions and violated their civil rights under 42 U.S.C. ' 1983. Id. The Lara court held that the former inmates lacked standing to assert claims for injunctive and declaratory relief because they no longer were subjected to the unconstitutional conduct about which they were complaining. Id. at 184. Accordingly, their claims for injunctive and declaratory relief were moot.[4] Id. Similar to the former inmates in Lara, Robinson, as a former AISD employee, no longer faces the alleged misconduct about which he complains. Following Lara, we hold that Robinson=s claim for declaratory relief regarding the violation of his constitutional rights is moot. See id. at 184B185. IV. OPPORTUNITY TO AMEND In the alternative, Robinson complains that the trial court erred in dismissing his claims without first affording him the opportunity to amend his pleadings to cure any jurisdictional defect. While the general rule expresses a preference to allow a plaintiff the opportunity to amend, a plaintiff can waive this opportunity through inaction. See Kassen v. Hatley, 887 S.W.2d 4, 13B14 n.10 (Tex. 1994); Dahl v. State, 92 S.W.3d 856, 862B63 n.6 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (noting that plaintiffs arguably waived complaint that the trial court failed to provide them with an opportunity to amend their pleadings when they did not seek leave to amend); Gray v. City of Galveston, No. 14-03-00298-CV, 2003 WL 22908145, at *2 (Tex. App.CHouston [14th Dist.] Dec. 11, 2003, no pet.) (mem. op.) (A[A]ppellant did not request an opportunity to amend in the trial court, so she has waived any complaint that she has been denied this opportunity.@). After AISD and Stoerner filed their plea to the jurisdiction, Robinson neither responded to the plea with additional jurisdictional facts reflecting a live controversy nor requested an opportunity to replead or amend his pleadings. Despite ample notice of AISD and Stoerner=s jurisdictional argument, Robinson did not attempt to replead. Accordingly, Robinson has waived his right to cure any jurisdictional defects by amendment. We overrule appellant=s sole issue and affirm the trial court=s order granting AISD and Stoerner=s plea to the jurisdiction. /s/ Adele Hedges Chief Justice Panel consists of Chief Justice Hedges and Justices Yates and Frost. (Frost, J. Dissenting). [1] Robinson appeals only the dismissal of his request for a declaration that his constitutional rights were violated by AISD and his request for injunctive relief ordering AISD to expunge his employee file. He does not challenge the dismissal of his claim for injunctive relief to order Brannon, Freeman, and all AISD employees to cease violating or infringing upon his constitutional rights. [2] Robinson neither argues that AISD has not expunged the documents nor identifies a present ongoing injury. Rather, he argues only that in the future, AISD may decide to resurrect the expunged documents. The dissent contends that Robinson Aremains vulnerable@ because AISD Amight not honor@ its agreement to expunge the records. However, granting relief on the possibility of noncompliance is advisory. The dissent asserts arguments not raised, explicitly or implicitly, by Robinson: Robinson=s request for expungement is not moot because, inter alia, (1) AISD was required to expunge all records within their possession, not exclusively Robinson=s personnel file, (2) AISD Aonly offer[ed] to take documents from Robinson=s personnel file and move them to another file,@ and (3) AISD Aha[d] not expunged the items requested by Robinson.@ Not only did Robinson fail to make these arguments on appeal, they are without merit. In his petition, Robinson requested AISD to expunge Ahis records of all references to Brannon=s acts against him.@ Liberally construing the petition, Robinson requests that only his records be expunged, not any and all other files within AISD=s possession. As for the dissent=s Aagreement to merely transfer@ argument, AISD=s letter did not indicate that AISD would merely transfer the documents from one file to another. Specifically, the letter indicates: Part of the relief Adrian Robinson seeks in this lawsuit is for the Court to enter an injunction requiring AISD to Aexpunge [Mr. Robinson=s] records of all references to [Dwight] Brannon=s acts as against him[.]@ As an initial matter, my clients adamantly dispute engaging in any unlawful acts against Mr. Robinson, and maintain that Mr. Robinson=s claims in this case are unfounded. Moreover, AISD does not believe that it has any obligation to expunge Mr. Robinson=s records as requested. Nevertheless, in order to moot the issue and avoid incurring additional expenses related to this issue, AISD is enclosing with this letter Mr. Robinson=s personnel file from AISD (labeled AISD 1 through AISD 109), as well as all other non-privileged documents of which it is aware relating to the allegations in this lawsuit (labeled AISD 110 through AISD 214 and AISD 381-382). AISD agrees to expunge any of these records that Mr. Robinson believes reflect Dwight Brannon=s Aacts as against him@ as requested in his lawsuit. Additionally, if Mr. Robinson believes that AISD maintains any other records that reflect Mr. Brannon=s Aacts as against him@ as alleged in his lawsuit (of which AISD is unaware), AISD requests that Mr. Robinson identify any such documents and AISD agrees to expunge them. The letter in no way indicates that AISD is merely transferring the relevant documents to another file. Rather, the letter explicitly reflects AISD=s agreement to expunge the records. Finally, contrary to the dissent=s argument that AISD has not in fact expunged the records and only made a unilateral offer to expunge, Robinson has made no complaint that AISD has not actually expunged his records or that the letter makes a mere unilateral offer. His only complaint is that in the future, a person without knowledge of the underlying litigation may inadvertently resurrect the already-expunged records. We cannot address the substantive arguments raised by the dissent because they were not asserted or briefed by Robinson. See Zamarron v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex. App.CHouston [14th Dist.] 2003, pet. denied) (complaint waived because it was not raised in initial brief); Stevens v. Nat=l Educ. Ctrs., Inc., 990 S.W.2d 374, 378 n.1 (Tex. App.CHouston [14th Dist.] 1999, pet. denied) (appellate court will not address an issue that is not raised on appeal by an appellant). [3] See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000). [4] The Texas Supreme Court reasoned that past illegal conduct without a present ongoing injury is moot for declaratory and injunctive relief. Lara, 52 S.W.3d at 184. Nevertheless, if a party also seeks damages, the damages claim is not moot. Id. at 185. Robinson, however, does not seek damages in his suit against AISD and Stoerner.