Robinson v. Alief ISD (Tex.App.- Houston [14th Dist.] Aug. 25, 2009)
(school employee record
expunction dispute, lack of jurisdiction due to mootness, no need for injunctive
relief,
no declaratory judgment on constitutional violations that have ceased, plaintiff no longer an
employee subject to alleged unconstitutional conduct,
opportunity to amend waived )
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.
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.
AFFIRMED: Opinion by Chief Justice Hedges    
Before Chief Justice Hedges, Justices Brock Yates and Frost  
14-08-00949-CV Adrian Robinson v. Alief Independent School District and Louis Stoerner,
In his Official Capacity Only   
Appeal from 80th District Court of Harris County
Trial Court Judge:
LYNN M. BRADSHAW-HULL
Dissenting Opinion by Justice Frost  in Adrian Robinson v. Alief Independent School District and Louis
Stoerner, In his Official Capacity Only   

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 (“AISD") 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
“inappropriate 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 “conspired 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) “declare that [AISD] violated [his] constitutional rights"; (2) “[e]njoin [AISD] through its
Superintendent of Schools to expunge his records of all references to Brannon's acts . . . against him";
and (3) “order 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.-Houston [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.-Houston [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.-Houston [1st Dist.] 1993, writ denied)
(“Courts 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.-Houston [1st Dist.] 2008, no pet.) (quoting Tex. Health Care Info. Council v. Seton Health Plan,
Inc., 94 S.W.3d 841, 846 (Tex. App.-Austin 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.-Houston [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.-Corpus Christi 1975, no writ) (per
curiam).

A.  Injunctive Relief: Expunging Employee File

Robinson argues that AISD's “unilateral 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.-Austin 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 “clearinghouse 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 (“While 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 “without 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 184-85.

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 184-185.

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, 13-14 n.10 (Tex. 1994); Dahl v. State,
92 S.W.3d 856, 862B63 n.6 (Tex. App.-Houston [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.-Houston [14th Dist.] Dec. 11, 2003, no pet.) (mem. op.) (“[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 “remains vulnerable" because AISD “might 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 “only 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 “his 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 “agreement 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 “expunge [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 “acts as against him" as requested in his
lawsuit.  Additionally, if Mr. Robinson believes that AISD maintains any other records that reflect Mr.
Brannon's “acts 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.-Houston [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.-Houston [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.