law-justiciability | mootness doctrine | case and/or controversy between the parties |


Justiciability doctrines such as standing, ripeness, and mootness reflect the separation of powers
doctrine and the prohibition against court-issued advisory opinions. Patterson v. Planned Parenthood
of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442-43 (Tex. 1998) (citing Tex. Const. art. II, § 1; art. IV,
§§ 1, 22; and art. V, § 8); see also Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444
(Tex. 1993) ("[W]e have construed our separation of powers article to prohibit courts from issuing
advisory opinions because such is the function of the executive rather than the judicial department.").

For a litigant to have standing, a controversy must exist between the parties at every stage of the
legal proceedings. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). "A case is not ripe when its
resolution depends on contingent or hypothetical facts, or upon events that have not yet come to
pass." Patterson, 971 S.W.2d at 443 (citing Camarena v. Tex. Emp't Comm'n, 754 S.W.2d 149, 151
(Tex. 1988)). "A case becomes moot when (1) it appears that one seeks to obtain a judgment on
some controversy, when in reality none exists, or (2) when one seeks a judgment on some matter
which, when rendered for any reason, cannot have any practical legal effect on a then-existing
controversy." Pantera Energy Co. v. R.R. Comm'n of Tex., 150 S.W.3d 466, 471 (Tex. App.-Austin
2004, no pet.); see also United Servs. Life Ins. Co. v. Delaney, 396 S.W.2d 855, 860 (Tex. 1965)
(Justiciability requires "`a real controversy between the parties, which . . . will be actually determined
by the judicial declaration sought.'") (quoting Bd. of Water Eng'rs v. City of San Antonio, 283 S.W.2d
722, 724 (1955)).

Ripeness and standing are related doctrines of justiciability. Tex. Dept. of Ins. v. Reconveyance
Servs., Inc., 240 S.W.3d 418, 435 (Tex. App.-Austin 2007, pet. filed).

Ripeness implicates subject-matter jurisdiction and emphasizes the requirement of a concrete injury in
order to present a justiciable claim. Reconveyance Servs., Inc., 240 S.W.3d at 435; City of Waco v.
Tex. Nat. Res. Conservation Comm'n, 83 S.W.3d 169, 175 (Tex. App.-Austin 2002, pet. denied).
Ripeness is concerned with when an action can be brought and seeks to conserve judicial time and
resources for real and current controversies rather than hypothetical or remote disputes. City of
Waco, 83 S.W.3d at 175. Courts of this state may not issue advisory opinions, and an opinion issued
in a case that is not ripe would address only a hypothetical injury rather than remedying actual or
imminent harm. Id. In the administrative law context, moreover, avoiding premature litigation over
administrative determinations prevents courts from entangling themselves in abstract disagreements
over administrative policies while simultaneously protecting agencies from judicial interference until an
administrative decision has been formalized and its effects felt in a concrete way by the challenging
parties. Reconveyance Servs., Inc., 240 S.W.3d at 435; Tex. Court Reporters Certif. Bd. v. Esquire
Deposition Servs., L.L.C., 240 S.W.3d 79, 92 (Tex. App.-Austin 2007, no pet.).

In determining whether a cause is ripe for judicial consideration, we look to see whether the facts have
sufficiently developed to show that an injury has occurred, or is likely to occur. City of Waco, 83 S.W.
3d at 175. A person seeking a declaratory judgment need not have incurred an actual injury; a
declaratory judgment will lie if the facts show the presence of ripening seeds of controversy. Id. In the
context of claims regarding the scope of agency authority, ripeness may turn on whether the issues
presented are purely legal in nature as opposed to requiring consideration of particularized facts in
light of agency expertise. Texas Court Reporters Certif. Bd., 240 S.W.3d at 92.

We must avoid constitutional decisions until the issues are presented with clarity, precision, and
certainty. See Rescue Army v. Mun. Court, 331 U.S. 549, 576, 67 S. Ct. 1409, 1423, 91 L. Ed. 1666
(1947). Thus, we cannot decide abstract, hypothetical, or contingent questions. The subject matter
jurisdiction of courts rests, in part, on the ripeness of the issues. Patterson v. Planned Parenthood of
Houston and Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998). Ripeness is one of several categories
of justiciability. See Perry v. Del Rio, 66 S.W.3d 239, 249 (Tex. 2001). Justiciability requires a
concrete injury, a requirement based on the judicial prohibition against issuing advisory opinions. See
Patterson, 971 S.W.2d at 442-43.

We disagree with Justice Hecht that the issues here are
nonjusticiable. ERS wants $400,000 from
the Duenezes, and they do not want to pay; ERS wants this case decided administratively, and the
Duenezes want their day in court.
These are all live controversies that this case and this appeal can decide. See U.S. v. Interstate
Commerce Comm’n, 337 U.S. 426, 430 (1949) (holding that “courts must look behind names that
symbolize the parties to determine whether a justiciable
case or controversy is presented”).
ERS of Texas v. Duenez, No. 07-0410 (Tex. Jul 3, 2009)(petition dismissed)(Brister) (administrative
agency exclusive jurisdiction doctrine held not to apply to subrogation claim, which involves
collection on a claim rather than payment thereof)(
from Calhoun County; 13th district (
13-05-00729 CV, ___ SW3d ___, 04-05-07 Opinion below)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court dismisses the petition for want of jurisdiction.
Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill,
Justice Medina, Justice Green, and Justice Willett joined. [pdf]
Hecht delivered a dissenting opinion (arguing the court of appeals should have dismissed the
appeal for want of a
justiciable issue)
Wainwright delivered a dissenting opinion (favoring application of exclusive jurisdiction
doctrine to  the subrogation dispute), in which Justice Johnson joined.