C.J. HATTEN AND CRAIG =
HATTEN,=20
Appellants, v. =
UNIVERSITY =
INTERSCHOLASTIC=20
LEAGUE AND WILLIAM FARNEY, =
EXECUTIVE=20
DIRECTOR, Appellees.
On =
appeal from the=20
261st District Court
Appellants, C.J. Hatten, Jr. and Mathew Hatten, by and through =
Marion=20
Craig Hatten and Kim Hatten, appeal from a judgment denying their =
request=20
for declaratory and injunctive relief to restrain the University=20
Interscholastic League and its executive director, William Farney=20
(collectively, "UIL"), from enforcing its decision that C.J. and =
Mathew=20
were ineligible to play high-school athletics for Pilot Point =
I.S.D.=20
because they had changed schools for athletic purposes. The trial =
court=20
issued temporary restraining orders and later temporary =
injunctions=20
barring the UIL from enforcing its decision. After a bench trial =
on the=20
merits, the trial court denied all relief. Appellants raise four =
issues=20
for our consideration. We dismiss the appeal as moot.
As a part of the University of Texas at Austin, Craig and Kim Hatten lived in Celina, Texas with their four =
children,=20
including C.J. and Mathew. During the 2002-2003 school year, C.J. =
and=20
Mathew participated in athletic events at their high school in the =
Celina=20
I.S.D. At some point, the Hattens' children experienced behavioral =
problems, and Craig and Kim separated. In February 2003, Craig =
Hatten=20
complained to a Celina I.S.D. coach about the Celina coaches' =
method of=20
disciplining Mathew. In March 2003, the Hatten family moved from =
Celina to=20
Pilot Point, Texas. In order to participate =
in=20
athletics in the Pilot Point I.S.D., C.J. and Matthew had to =
receive=20
approval from Celina I.S.D. that their move to Pilot Point was not =
for=20
athletic purposes. The Celina athletic =
director=20
determined that the move was for athletic purposes.=20
The UIL district executive committee determined that C.J. and =
Mathew=20
changed schools for athletic purposes and were, therefore, =
ineligible to=20
participate in UIL competition at their new school. The suspension =
period=20
was from March 28, 2003 until March 27, 2004. The Hattens appealed =
to the=20
UIL state executive committee, which affirmed =
the=20
decision. In October 2003, the Hattens filed suit in Travis County =
district court, seeking a declaration that they have a due-process =
interest under the Texas Constitution because of the stigmatizing =
effect=20
of the UIL's actions and, in turn, have been deprived of the full=20
evidentiary hearing to which they are entitled. The district court =
issued=20
temporary restraining orders and later temporary injunctions, =
which=20
allowed C.J. and Mathew to play varsity sports despite the UIL's =
ruling=20
that they were ineligible, and both students played varsity sports =
during=20
their year of alleged ineligibility. After a bench trial on the =
merits,=20
the district court entered a final judgment, denying the =
declaratory and=20
injunctive relief sought by appellants, declaring that the =
decisions of=20
the UIL were supported by substantial evidence, dissolving the =
temporary=20
injunctions, and denying attorneys fees to all parties.
In its appellees' brief, the UIL argues the case is moot =
because C.J.'s=20
senior year is over, and Mathew's year of ineligibility has =
expired. Thus,=20
before reaching the merits, we must determine whether there is a =
live=20
controversy to be resolved, or whether the matter has now become =
moot and=20
unreviewable. Mootness is a component of subject-matter =
jurisdiction.=20
Krohn v. Marcus Cable Assocs, L.P., 201 S.W.3d 876, 882 =
(Tex.=20
App.-Waco 2006, pet. denied); Labrado v. County of El =
Paso, 132=20
S.W.3d 581, 589 (Tex. App.-El Paso 2004, no pet.); accord =
Williams v.=20
Lara, 52 S.W.3d 171, 185 (Tex. 2001). A case becomes moot if =
a=20
controversy no longer exists or the parties lack a legally =
cognizable=20
interest in the outcome. Allstate Ins. Co. v. Hallman, =
159 S.W.3d=20
640, 642 (Tex. 2005); FDIC v. Nueces County, 886 S.W.2d =
766, 767=20
(Tex. 1994) (citing Camarena v. Tex. Employment Comm'n, =
754=20
S.W.2d 149, 151 (Tex. 1988)). "An appeal is moot when a court's =
action on=20
the merits cannot affect the rights of the parties." Zipp v.=20
Wuemling, 218 S.W.3d 71, 73 (Tex. 2007) (per curiam) (citing =
VE=20
Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. =
1993)). The holding in University Interscholastic League v. =
Jones, 715=20
S.W.2d 759 (Tex. App.-Dallas 1986, writ ref'd n.r.e.) is helpful =
in=20
determining the mootness issue in this case. Gregory Jones, a =
junior at=20
Irving MacArthur High School and a player on the school's football =
team,=20
moved from Irving to Highland Park. =
Id. at 760.=20
The UIL determined that he had moved for athletic purposes Here, because C.J.'s and Mathew's period of ineligibility has =
expired,=20
and because C.J. has graduated, this appeal is now moot. See =
id.,=20
at 760-61; Tex. Educ. Agency v. Dallas Indep. Sch. Dist., =
797=20
S.W.2d 367, 369 (Tex. App.-Austin 1990, no writ) (court determined =
appeal=20
was moot because the football season had ended); Fink v. =
Hinson,=20
243 Ga. 337, 253 S.E.2d 757, 758 (1979) (holding that the validity =
of=20
injunctive relief sought by students was mooted by football =
season's end).=20
Accordingly, the issue of whether C.J. and Mathew moved to Pilot =
Point for=20
athletic purposes is now moot.
Appellants argue that the exceptions to the mootness doctrine =
apply=20
here. The Texas Supreme Court has recognized only two exceptions =
to the=20
mootness doctrine: (1) the capable of repetition, yet evading =
review=20
exception; and (2) the collateral-consequences exception. =
FDIC,=20
886 S.W.2d at 767 A. The Capable of Repetition, Yet Evading Review =
Exception This exception applies only in rare circumstances. =
Williams,=20
52 S.W.3d at 184 (citing Los Angeles v. Lyons, 461 U.S. =
95, 109=20
(1983)). To invoke the exception, "a plaintiff must prove that: =
(1) the=20
challenged action was too short in duration to be litigated fully =
before=20
the action ceased or expired; and (2) a reasonable expectation =
exists that=20
the same complaining party will be subjected to the same action =
again."=20
City of McAllen, 221 S.W.3d at 896 (citing =
Williams, 52=20
S.W.3d at 184). Appellants cite no Texas cases applying this =
exception to=20
a fact situation similar to the case before us. Litigants have used this exception to challenge =
unconstitutional mental=20
commitments after the complaining party's release, see, e.g., =
State v.=20
Lodge, 608 S.W.2d 910 (Tex.1980); Ex parte Ullmann, =
616=20
S.W.2d 278 (Tex. App.-San Antonio 1981, writ dism'd); =
unconstitutional=20
adjudications of juvenile delinquency, Carrillo v. State, =
480=20
S.W.2d 612, 616-17 (Tex. 1972); and unconstitutional prior =
restraints on=20
speech. Iranian Muslim Org. v. City of San Antonio, 615 =
S.W.2d=20
202, 209 (Tex. 1981). In each case, the exception was used to =
preserve=20
appellate review of government conduct that violated =
constitutional=20
rights. However, the Texas Supreme Court has repeatedly held that=20
participation in extracurricular activities is not a fundamental =
right.=20
See In re Univ. Interscholastic League, 20 S.W.3d 690, =
692 (Tex.=20
2000) (orig. proceeding); Eanes Indep. Sch. Dist. v. =
Logue, 712=20
S.W.2d 741, 742 (Tex. 1986); Spring Branch Indep. Sch. Dist. =
v.=20
Starnos, 695 S.W.2d 556, 559 (Tex. 1985). Furthermore, appellants have not shown that a reasonable =
expectation=20
exists that the UIL will once again subject either C.J. or Mathew =
to the=20
athletic-purposes rule. Consequently, appellants have failed to =
prove the=20
second element of the capable of repetition, yet evading review =
exception=20
to the mootness doctrine. See Williams, 52 =
S.W.3d at=20
184. B. The Collateral-Consequences Exception This exception is invoked only under narrow circumstances when =
vacating=20
the underlying judgment will not cure the adverse consequences =
suffered by=20
the party seeking to appeal that judgment. Marshall v. Housing =
Auth.=20
of San Antonio, 198 S.W.3d 782, 789 (Tex. 2006). To invoke =
this=20
exception, a party must show both that (1) a concrete disadvantage =
resulted from the judgment and (2) the disadvantage will persist =
even if=20
the judgment is vacated and the case is dismissed as moot. Id. =
See=20
Spencer v. Kemna, 523 U.S. 1, 8 (1998); Gen. Land =
Office,=20
789 S.W.2d at 571 (noting that the collateral-consequences =
exception is=20
invoked only when prejudicial events have occurred whose effects =
will=20
continue to stigmatize after the case is moot). The Texas Supreme Court has determined that the effects of an =
order for=20
temporary inpatient mental-health services continued to stigmatize =
the=20
subject of the order even though the commitment order had expired =
on its=20
own terms; Lodge, 608 S.W.2d at 912; see also =
Campbell v.=20
State, 68 S.W.3d 747, 753-54 (Tex. App.-Houston [14th Dist.] =
2001),=20
aff'd, 85 S.W.3d 176 (Tex. 2002) (applying Lodge =
to=20
order for extended mental-health services) and that the effects of =
a=20
juvenile-delinquency adjudication continued to stigmatize the =
person=20
adjudicated even though the person had served his sentence and had =
reached=20
the age of majority. Carrillo, 480 S.W.2d at 616-18. =
Texas=20
intermediate appellate courts have determined that the effects of =
a=20
protective order carry significant collateral legal repercussions =
and a=20
social stigma even though the protective order has expired, =
see In re=20
Salgado, 53 S.W.3d 752, 757-58 (Tex. App.-El Paso 2001, no =
pet.)=20
(orig. proceeding); James v. Hubbard, 21 S.W.3d 558, =
560-61 (Tex.=20
App.-San Antonio 2000, no pet.); In re Cummings, 13 =
S.W.3d 472,=20
475 (Tex. App.-Corpus Christi 2000, no pet.), and that the subject =
of a=20
contempt order in a child-support proceeding may still suffer =
collateral=20
consequences after his release from custody. In re =
M.E.G., 48=20
S.W.3d 204, 208 n.5 (Tex. App.-Corpus Christi 2000, no pet.); =
Ex parte=20
Young, 724 S.W.2d 423, 425 (Tex. App.-Beaumont 1987, orig.=20
proceeding) (per curiam). The consequences of the UIL's attempt to prevent C.J. and =
Mathew from=20
participating in high-school athletics at Pilot Point I.S.D. were=20
minuscule when compared to the stigmatizing consequences inherent =
in=20
involuntary mental commitments, juvenile adjudications, protective =
orders,=20
and contempt orders. Appellants =
have not=20
shown that a concrete disadvantage resulted from the trial court's =
final=20
judgment and that the disadvantage will persist even if we vacate =
the=20
judgment and dismiss the case as moot. Accordingly, the=20
collateral-consequences exception does not apply to this case. C. The Public-Interest Exception The public-interest =
exception=20
permits judicial review of questions of (1) "considerable public=20
importance" (2) if the nature of the action makes it capable of =
repetition=20
and yet prevents effective judicial review. FDIC, 886 =
S.W.2d at=20
767; In re Guardianship of Keller, 171 S.W.3d 498, 501 =
(Tex.=20
App.-Waco 2005), rev'd sub nom., Zipp v. =
Wuemling, 218=20
S.W.3d 71 (Tex. 2007) (per curiam); Ngo v. Ngo, 133 =
S.W.3d 688,=20
692 (Tex. App.-Corpus Christi 2003, no pet.). In FDIC, =
the Texas=20
Supreme Court said that a common element of both the =
public-interest=20
exception and the capable of repetition, yet evading review =
exception is=20
that the complained-of action be capable of repetition yet not =
effectively=20
reviewable. Id. at 767. An issue does not evade appellate =
review=20
if appellate courts have addressed the issue on the merits. =
See=20
id.; Ngo, 133 S.W.3d at 692. At this time, the Texas =
Supreme=20
Court has as yet not recognized the public-interest exception. In Nueces County v. Whitley Trucks, Inc., 865 S.W.2d =
124 (Tex.=20
App.-Corpus Christi, 1993), The Texarkana Court of Appeals =
has also=20
recognized the public-interest exception. The court has said that =
for this=20
exception to apply, evidence must show that the controversy is of=20
considerable public importance. See Fiske v. City of=20
Dallas, 220 S.W.3d 547, 550 (Tex. App.-Texarkana 2007, no =
pet.); Neither party has cited nor =
have we found=20
any cases applying the public-interest exception to the UIL's=20
athletic-purposes rule. In University Interscholastic League =
v.=20
Buchanan, 848 S.W.2d 298 (Tex. App.-Austin1993, no writ), the =
court=20
reviewed the application of the UIL's "over-19 rule" The facts in Buchanan =
are=20
distinguishable from the facts in this case. Here, neither Celina =
I.S.D.=20
nor Pilot Point I.S.D. are parties to this appeal, and neither =
school=20
district claims a direct interest in the continued viability of =
the=20
judgment to prevent the UIL from enforcing the =
mandatory-forfeiture rule.=20
Thus, even though Buchanan concerned the application of a =
UIL=20
rule, it does not control the disposition of this cause. =
The instant cause is akin to =
Texas=20
Education Agency v. Dallas Independent School District, 797 =
S.W.2d=20
367 (Tex. App.-Austin 1990, no writ), which involved the =
application of=20
the "no-pass, no-play" law. Id. at 368. In that case, the =
state=20
commissioner of education concluded that Carter High School =
("CHS"), a=20
school within the Dallas I.S.D., had used a football player who =
was=20
ineligible under the "no-pass, no-play" law and declared the =
entire CHS=20
football team ineligible. Id. As a result, Dallas I.S.D. =
sued the=20
UIL and other defendants, seeking an order enjoining them from =
interfering=20
with CHS's participation in the 1988 championship. Id. =
The trial=20
court entered a permanent injunction prohibiting the defendants =
from=20
disqualifying CHS from "'the rights and privileges associated with =
participation in the 1988 University Interscholastic League Class =
5-A=20
state football championship.'" Id. The appellate court =
stated=20
that because the 1988 championship had passed, the appeal was =
moot.=20
Id. at 369. The court further stated that neither the =
capable of=20
repetition, yet evading review exception nor the =
collateral-consequences=20
exception applied. Id. Here, the evidence does not =
show that the=20
athletic-purposes rule is more important than the "no-pass, =
no-play" law,=20
see Tex. Educ. Agency, 797 S.W.2d at 369, or =
that the=20
rule has the same "considerable public importance" as the =
attachment and=20
priority of, and ability to foreclose upon, tax liens when the =
FDIC holds=20
a lien against the same property in its capacity as a receiver, =
See=20
Whitley Trucks, 865 S.W.2d at 126; a county's acceptance of =
bids for=20
construction contracts, Securtec, 106 S.W.3d at 811; or=20
revocation of a person's concealed handgun license. =
LaFleur, 32=20
S.W.3d at 914. We hold, therefore, that the public-interest =
exception to=20
the mootness doctrine does not apply to this case.
When a cause becomes moot, an =
appellate=20
court must dismiss the cause, not just the appeal. City of =
Garland v.=20
Louton, 691 S.W.2d 603, 605 (Tex. 1985); Brownsville =
Indep. Sch.=20
Dist. Bd. of Trs. v. Brownsville Herald, 831 S.W.2d 537, 539 =
(Tex.=20
App.-Corpus Christi 1992, no writ). Thus, we assess costs against =
the=20
party incurring them, vacate the judgment, and dismiss the cause.=20
Brownsville Herald, 831 S.W.2d at 539. See Tex. Dept. =
of=20
Health v. Long, 659 S.W.2d 158, 161 (Tex. App.-Austin 1983, =
no=20
writ). The cause is dismissed as=20
moot. ROSE VELA Justice Memorandum Opinion delivered =
and=20
filed this 27th day of =
September, 2007.=20
1. See Tex. Educ. Code Ann. =A7 =
33.083(b)=20
(Vernon 2006).=20
2. See Univ. Interscholastic League v.=20
Buchanan, 848 S.W.2d 298, 300 (Tex. App.-Austin 1993, no =
writ).=20
3. FDIC v. Nueces County, 886 =
S.W.2d 766, 767=20
(Tex. 1994); Houston Chronicle Publ'g Co. v. Thomas, 196 =
S.W.3d=20
396, 400 (Tex. App.-Houston [1st Dist.] 2006, no pet.).=20
4. Nueces County and Robstown I.S.D. (the =
taxing=20
authorities) sued Whitley Trucks to collect property taxes and to=20
foreclose a tax lien on Whitley's real property. Id. at =
125. The=20
taxing authorities also sued the FDIC because it held a mortgage =
lien on=20
the property. Id. The FDIC contended its lien was =
"property"=20
under section 1825(b)(2) of the Financial Institutions Reform, =
Recovery,=20
and Enforcement Act (FIRREA) and argued that the taxing =
authorities were=20
thus prohibited from foreclosing on the property without its =
consent.=20
Id. The trial court rendered summary judgment against =
Whitley,=20
and while the case was on appeal, the FDIC foreclosed its lien and =
bought=20
the property.=20
5. The Texas Supreme Court stated: "Even if =
we were to=20
recognize a public interest =
6. In Fiske, Frieda Fiske, a former =
Dallas=20
municipal judge, sued the City of Dallas seeking reinstatement to =
her job=20
as a city judge. She alleged that the actions of the city's =
Judicial=20
Nominating Commission which failed to recommend her for =
appointment to a=20
new term, were void because the commission violated provisions of =
the=20
Texas Open Meetings Act ("TOMA"). The trial court granted summary =
judgment=20
for the city, and Fiske appealed. The appellate court stated that =
the=20
public-interest exception did not apply "because it requires that =
the=20
controversy involve a question of considerable public importance. =
There is=20
no summary judgment evidence that the status of Fiske as a result =
of=20
alleged violations of the TOMA by a judicial nominating commission =
is a=20
question of considerable public importance." Id. at 550.=20
7. In LaFleur, the DPS tried to =
revoke=20
LaFleur's concealed-handgun license following his misdemeanor =
conviction.=20
The trial court ruled in his favor, and the DPS appealed. On =
appeal,=20
LaFleur argued that the issue was moot because his license had =
expired.=20
The appellate court noted that because Lafleur had not reapplied =
for a=20
license, there was no existing justiciable controversy. However, =
in spite=20
of the expiration of his license, the court examined the merits of =
the=20
case pursuant to the public-interest exception, stating, "It is . =
. .=20
probable that this ruling would be of considerable public interest =
because=20
of the large number of people licensed to carry guns in Texas."=20
Id. at 914. The court took judicial notice of the DPS's=20
statistics that there were 215,118 active concealed-handgun =
licenses.=20
8. This rule stated, in relevant part: =
"Subject to the=20
other sections of this subchapter, an individual is eligible to=20
participate in a League varsity contest as a representative of a=20
participant school if that individual . . . is less than 19 years =
old on=20
September 1 preceding the contest. . . ." The UIL permitted no =
exception=20
to or waiver of the over-19 rule based on special circumstances of =
individual students.=20
9. Tex. Educ. Agency v. Dallas Indep. =
Sch.=20
Dist., 797 S.W.2d 367, 369 (Tex. App.-Austin 1990, no writ).=20
10. Spring Branch I.S.D. v. =
Reynolds, 764=20
S.W.2d 16, 18 (Tex. App.-Houston [1st Dist.] 1988, no=20
writ).