Court of Appeals of Texas, Third District, Austin
Texas Commission on Environmental Quality, Toby Baker, in his Official Capacity as Executive Director,  and AES Generation Development, LLC, Appellants
Patricia Gonzales, Appellee
THE 459TH DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-18-001561, THE HONORABLE SCOTT H. JENKINS, JUDGE
Chief Justice Rose and Justices Triana and Smith
a dispute over an air quality permit issued by the Texas
Commission on Environmental Quality to AES Generation
Development, LLC. Patricia Gonzales sued the Commission, its
Executive Director Toby Barker, (collectively TCEQ), to
invalidate the permit, and AES intervened. Gonzales alleged
that TCEQ failed to follow applicable notice requirements and
that this failure prevented her from, among other things,
requesting a contested case hearing to challenge AES's
permit application. The district court denied appellants'
pleas to the jurisdiction, and this appeal followed.
filed an unopposed motion to withdraw its appeal advising
that the permit has expired and arguing Gonzales's claims
are moot as a result. We requested and received supplemental
briefing from TCEQ and Gonzales. TCEQ agrees the case is
moot, but Gonzales argues her claim for declaratory relief
against TCEQ still presents a live controversy.
courts have no jurisdiction to decide moot cases. State
ex rel. Best v. Harper, 562 S.W.3d 1, 6 (Tex. 2018). A
case becomes moot when there ceases to be a justiciable
controversy between the parties or if the parties have no
legally cognizable interest in the outcome. City of Krum
v. Rice, 543 S.W.3d 747, 749 (Tex. 2017) (per curiam).
"Put simply, a case is moot when the court's action
on the merits cannot affect the parties' rights or
interests." Id. (quoting Heckman v.
Williamson County, 369 S.W.3d 137, 162 (Tex. 2012)). If
a case becomes moot, the court must vacate all previously
issued orders and judgments and dismiss the case.
Glassdoor, Inc. v. Andra Group, LP, 575 S.W.3d 523,
527 (Tex. 2019).
issued Air Quality Permit No. 138152 to authorize
construction of AES's planned Deepwater Power Plant. The
permit required that construction begin within eighteen
months or it would expire automatically unless AES requested
and received an extension. See 30 Tex. Admin. Code
§ 116.120(a) (2018) (Tex. Comm'n on Envtl. Quality,
Voiding of Permits). The eighteen-month period expired on
August 30, 2019, and AES chose not to seek an extension.
Gonzales argues her claim is not moot despite the expiration
because TCEQ could refuse to follow notice requirements in
future permit proceedings. She rests her argument on the
principle that "[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." See Matthews v. Kountze Indep.
Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016). If it were
otherwise, defendants could control "the jurisdiction of
courts with protestations of repentance and reform, while
remaining free to return to their old ways" after a suit
is dismissed. Id.
contends this case is similar to Matthews and this
Court's decision in Empower Texans, Inc. v. Texas
Ethics Commission, No. 03-16-00872-CV, 2018 WL 3678005
(Tex. App.-Austin Aug. 3, 2018, no pet.) (mem. op.). In
Matthews, a group of cheerleaders sued to invalidate
a school district's policy against displaying religious
banners at school events. 484 S.W.3d at 417. The district
rescinded its policy but reserved its right to regulate the
content of the banners. Id. The Texas Supreme Court
held the case was not moot because the school district had
not been "absolutely clear" it would not restore
the ban after the litigation ended. See id. at
418-19. Similarly, in Empower Texans, the Ethics
Commission filed a petition to enforce a subpoena it had
served on Empower Texans. 2018 WL 3678005, at *1. Empower
Texans counterclaimed for a declaration that the
Commission's statutory enforcement authority was
unconstitutional. Id. The Commission nonsuited its
enforcement action and argued the counterclaim was moot as a
result. Id. at *3. This Court disagreed because the
Commission had "never indicated that it would not act
similarly in the event a new complaint was filed."
Id. Both Matthews and Empower
Texans concerned a defendant that had ceased the
challenged conduct but could easily resume it. That concern
is not applicable here because the permit did not become moot
due to the cessation of challenged conduct by TCEQ. Instead,
it became moot as a result of AES's failure to begin
construction in time and its decision not to seek an
extension. Moreover, TCEQ does not control who applies for a
permit or whether the permittee will seek an extension. And
now that this particular permit has expired, there is no
longer a justiciable controversy between Gonzales and TCEQ.
See Heckman, 369 S.W.3d at 162 (noting appeal
becomes moot "when the court's action on the merits
cannot affect the parties' rights or interests").
vacate the district court's order denying the pleas to
the jurisdiction and dismiss the case for want of
jurisdiction. See Tex. R. App. P. 43.2(e). We
dismiss AES's motion to withdraw its appeal as moot.
and Dismissed for Want of Jurisdiction.
 This suit was originally brought
against Richard A. Hyde, the former executive director of the
Texas Commission on Environmental Quality, in his official
capacity. We automatically substitute the name of his
successor in that office, Toby Baker. See Tex. R.
App. P. 7.2(a).
 Gonzales concedes that her suit for
judicial review of the permit, application for injunctive
relief, and petition for writ ...