Texas Department of Family and Protective Services; Stephanie Muth, in Her Official Capacity as Dfps Commissioner; Texas Health and Human Services; Cecile Erwin Young, in Her Official Capacity as Hhsc Executive Commissioner; Corrections Corporation of America; And the Geo Group, Inc. v. Grassroots Leadership, Inc.; Gloria Valenzuela; E.G.S., for Herself and as Next Friend for A.E.S.G.; F.D.G., for Herself and as Next Friend for N.R.C.D.; Y.E.M.A., for Herself and as Next Friend for A.S.A.

Supreme Court of Texas

══════════

No. 23-0192

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Texas Department of Family and Protective Services;

Stephanie Muth, in her Official Capacity as DFPS Commissioner;

Texas Health and Human Services; Cecile Erwin Young, in her

Official Capacity as HHSC Executive Commissioner; Corrections

Corporation of America; and The GEO Group, Inc.,

Petitioners,

v.

Grassroots Leadership, Inc.; Gloria Valenzuela; E.G.S., for herself

and as next friend for A.E.S.G.; F.D.G., for herself and as next friend

for N.R.C.D.; Y.E.M.A., for herself and as next friend for A.S.A.,

Respondents

═══════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Third District of Texas

═══════════════════════════════════════

Argued October 31, 2024

JUSTICE YOUNG delivered the opinion of the Court.

Chief Justice Blacklock and Justice Sullivan did not participate in

the decision.

We must decide whether Texas courts are constitutionally

authorized to adjudicate moot cases that raise questions of considerable

public importance. The court of appeals below invoked this so-called

“public-interest exception” and proceeded to resolve the case on its merits.

Under the text, structure, and history of our Constitution, however, the

court of appeals exceeded its authority. There is no such thing as a

public-interest exception to mootness in Texas.

This case stems from a Department of Family and Protective

Services rule that authorized state licenses for two residential facilities

at which the federal government has detained mothers and children after

their illegal entry into the United States. Under a prior federal consent

decree, such state licenses were necessary for more than very brief

detentions of immigrant children. A cadre of detained mothers, on

behalf of themselves and their minor children, together with Grassroots

Leadership, Inc., and a children’s day-care operator, challenged the

department’s authority under state law to adopt the rule. Their goal: to

prohibit the detention of children at the newly licensed facilities.

Long before their challenge to the rule reached the court of appeals,

however, the mothers and their children were all released from the

facilities. The court of appeals thus concluded that their claims were

moot. Ordinarily, that would lead to dismissal of the case. But due to its

application of “the public-interest exception” to mootness, the court

proceeded to address the merits and held the rule to be invalid under the

Administrative Procedure Act.

The court of appeals was correct to view the case as moot, and it

should have proceeded no further. Mootness, which refers to when a case

no longer presents a live controversy, is simply one branch of the larger

doctrine of justiciability. The justiciability requirements collectively

ensure that courts exercise only “[t]he judicial power of this State.” Tex.

2

Const. art. V, § 1. The judicial power of the Texas courts does not include

the rendition of advisory opinions. So unyielding is this principle that

only by separate constitutional authorization may this Court answer

certified questions from federal appellate courts. See id. art. V, § 3-c. All

other advisory opinions remain prohibited. The inherent consequence of

deciding a moot case, however, is the rendition of an advisory opinion. It

naturally follows that the only proper judgment in a moot case is one of

dismissal for lack of jurisdiction.

Our cases have described several “exceptions” to the mootness

doctrine, but there are no exceptions to the fundamental constitutional

requirement that courts may reach the merits of only live disputes. Each

recognized mootness “exception” complies with that mandate by

identifying disputes that seem to have ended but in fact remain live and

thus are not truly moot at all in a constitutional sense. Each exception

carefully ensures that the parties retain a genuine stake in the case and

that a judgment resolving the dispute would still afford genuine relief.

They are not exceptions to the Constitution’s limitations and,

particularly, its prohibition of advisory opinions.

The “public-interest exception,” by contrast, would be a true

exception—one that would allow courts to openly render advisory opinions

despite the constitutional ban on doing so. Courts must steadfastly accept

the constitutional limitations on our authority. That these limitations

are the law’s mandate should be enough. But beyond that, we can

hardly expect the other branches and the public to respect constitutional

boundaries if the courts are anything less than punctilious in doing so,

particularly if we are perceived as aggrandizing our own power.

3

We accordingly reverse the court of appeals’ judgment to the extent

the court held that it had jurisdiction to adjudicate the merits of a moot

dispute. And because that determination was erroneous, we vacate the

court of appeals’ judgment on the merits along with the orders and

judgment of the trial court, and we render judgment dismissing the case

for lack of subject-matter jurisdiction.

I

In a 1997 consent decree, a California federal court approved a

class-action settlement in which, among other things, the federal

government agreed not to house illegal-immigrant minors in residential

facilities that lacked a valid state license. In 2014, the federal

government began using two Texas facilities, called Dilley and Karnes,

to detain families with children who had illegally entered the United

States. Shortly thereafter, class members returned to federal court to

file a motion to enforce the 1997 consent decree on the ground that the

Dilley and Karnes facilities lacked a valid state license. The court held

that the federal government had breached the settlement agreement by

housing mothers and their children in secure, unlicensed facilities. See

Flores v. Johnson, 212 F. Supp. 3d 864, 880 (C.D. Cal. 2015).

The Texas Department of Family and Protective Services

responded by promulgating a rule in March 2016 (after initially adopting

it the prior year on an emergency basis) that established licensing

requirements for “family residential centers”—facilities like Dilley and

Karnes and, as far as we know, only those facilities. 26 Tex. Admin. Code

§ 748.7. To simplify things, family residential centers are essentially a

subset of a preexisting category, “general residential operations,” which

4

includes specifically defined child-care facilities that provide full-time

care for a specified number of children. Tex. Hum. Res. Code § 42.002(4).

To qualify for a license, a new “family residential center” must satisfy the

rules governing “general residential operations,” with a few exceptions.

One exception allows qualifying facilities to house adults and children

in the same bedroom, aiming to prevent the nighttime separation of

children from their mothers. 26 Tex. Admin. Code § 748.7(c). To avoid

splitting sibling groups, another exception allows more than four

occupants per bedroom in certain circumstances. Id.

Grassroots Leadership, Inc., a nonprofit civil-rights organization,

sued the department in September 2015 to challenge the rule. Grassroots

later amended its petition to add several detainee mothers and a day-care

operator as plaintiffs. The petition alleges that, in reliance on the rule,

Dilley and Karnes allowed unrelated adults and children to share

bedrooms and that, because of that action, one of the mother’s children

was sexually assaulted. The rule, they allege, increased the safety risk to

detainees and children and resulted in longer detention periods. The

plaintiffs asked the district court for a declaration that the department

lacked the authority under the Administrative Procedure Act to adopt the

rule; they also sought a permanent injunction. If the rule is invalid, then

so are the licenses; if the licenses are invalid, then the consent decree bars

the federal government from detaining children at Dilley and Karnes.

Corrections Corporation of America (known as CoreCivic) and The

GEO Group, Inc., the respective operators of Dilley and Karnes,

intervened to defend the rule. The department, CoreCivic, and GEO

Group filed pleas to the jurisdiction in the trial court asserting that the

5

plaintiffs lacked standing to challenge the rule. In relevant part, the trial

court denied the pleas and eventually rendered summary judgment on

the claim for declaratory relief under the Administrative Procedure Act.

It declared the rule invalid and enjoined the department from granting

licenses under it.

The Third Court of Appeals reversed. It held that the detainee-

mothers’ injuries were not traceable to the rule because the rule does

not allow children to share a bedroom with unrelated adults. The court

also held that any increase in the length of detention was not traceable

to the rule. With no individual plaintiff who had standing, the court

concluded, Grassroots likewise lacked standing.

We reversed, holding that the detainee mothers had adequately

established standing. Grassroots Leadership, Inc. v. Tex. Dep’t of Fam. &

Protective Servs., 646 S.W.3d 815, 820–21 (Tex. 2022). Specifically, we

concluded that the rule does allow children to share bedrooms with

unrelated adults, which the “general residential operations”

requirements prohibit, and so the injury was sufficiently traceable to the

new rule. Id. at 819–20. We remanded for the court of appeals to consider

the remaining jurisdictional issues and, if appropriate, the merits. Id.

at 821. (Only the plaintiff-mothers’ claims remain, see id. at 819 & n.4,

but for convenience, we collectively refer to “Grassroots” as making the

plaintiffs’ shared arguments.)

On remand, the court of appeals held the claims “moot by

definition” because the detainees were no longer residents at the

facilities. 665 S.W.3d 135, 141 (Tex. App.—Austin 2023). The period of

detention at the facilities was quite short; the court of appeals explained,

6

and Grassroots agrees, that “the evidence establishes that the average

length of detention [at the facilities] is eleven days, a period too short to

complete litigation.” Id. For example, the only concrete evidence

presented as to any particular plaintiff’s detention shows that one mother

was released eight days after being added as a plaintiff to this lawsuit. It

is undisputed that none of the plaintiff mothers remains detained. The

parties do dispute the conditions of any release, while the court of appeals

held that “there is no evidence explaining the circumstances or conditions,

if any, of the detainees’ release.” Id.

The court also held that the “capable of repetition yet evading

review” exception did not save the claims from mootness. Grassroots

cited legal authority allowing re-detention of the plaintiffs generally but

did not cite evidence “that these same former detainees are reasonably

likely to be detained at Dilley or Karnes again.” Id. Therefore, the court

could not “conclude that there [was] more than a mere physical or

theoretical possibility that they will be detained in one of these two

centers—or any center—again.” Id. at 142.

The court then, however, explained that its precedent allowed it to

invoke the so-called “public-interest exception” to mootness, under which

it could reach the merits despite having no live dispute involving the

parties to the litigation. Stating that this Court has not yet considered

the “viability of [the] public-interest exception,” the court of appeals

explained that the exception “allows appellate review of a question of

considerable public importance if that question is capable of repetition

between either the same parties or other members of the public but for

some reason evades appellate review.” Id. (quoting Univ. Interscholastic

7

League v. Buchanan, 848 S.W.2d 298, 304 (Tex. App.—Austin 1993, no

writ)). The court deemed the rule’s validity to be a matter of great public

importance. Id. After reaching the merits, the court held that the rule

was invalid. See id. at 147–48.

The department filed a petition for review. It contends that the

court of appeals rightly found the claims moot, wrongly employed the

public-interest exception as a basis to reach the merits, and then reached

the wrong merits result. Grassroots defends the judgment below but

argues that the court of appeals was mistaken to think that it needed to

invoke the public-interest exception to mootness. According to

Grassroots, the claims are not moot at all because the plaintiff-mothers’

release from detention does not foreclose the possibility of re-detention.

In any event, it continues, even if this argument were wrong, the capable-

of-repetition-yet-evading-review exception would save the claims from

mootness. And if even that exception were not enough, Grassroots

concludes, the court of appeals’ invocation of the public-interest exception

would be justified, and the court correctly invalidated the rule.

II

The Texas Constitution imposes important justiciability limits on

the judiciary’s power. “Justiciability doctrines” anchored in the

Constitution’s text, structure, and history help courts assess their

authority to adjudicate a given dispute. Central to this case is the doctrine

of mootness. Unlike in the many cases where a doctrine’s underlying

source does not much matter, whether and to what extent the

Constitution defines and requires dismissal of moot cases is of the utmost

importance here. The court of appeals’ decision to reach the merits of a

8

moot case relies entirely on the notion that a court may choose to do so

despite acknowledging the lack of a live dispute. Implicit in that notion is

a view of the Constitution’s understanding of justiciability. Specifically, if

a court may decide a moot case that the court thinks raises issues of public

significance, then the Constitution must have authorized that choice all

along, for if the Constitution requires a live dispute at every stage of

litigation, then no court could make an “exception” to it. See, e.g.,

Travelers’ Ins. Co. v. Marshall, 76 S.W.2d 1007, 1011 (Tex. 1934) (“[Courts]

are without power to write . . . an exception into the organic law.”).

The judgment of the court of appeals, therefore, rests on the

premise that the doctrine of mootness is at least in large measure a

matter of judicial administration or prudence rather than of

constitutional command. The court of appeals never expressly confronted

that question; the Constitution makes no appearance in its opinion. In

fairness, the court did not devise the “exception” in this case. It followed

its own 1993 precedent that expressly authorized the “public-interest

exception.” See 665 S.W.3d at 142 (tracing the authority to Buchanan,

848 S.W.2d at 304).

As we describe below, this Court’s cases have repeatedly

reaffirmed, including after the Third Court embraced the public-interest

exception in 1993, that mootness is a constitutional limitation on judicial

authority. Thus, “[h]owever much we may desire to provide answers in

these now-moot . . . proceedings, the constitution prohibits us from doing

so, and we must respect that prohibition.” ERCOT, Inc. v. Panda Power

Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 631 (Tex. 2021)

(emphasis added). Notably, we have at least heavily suggested that the

9

public-interest exception is an unauthorized basis for jurisdiction: “We do

not have power to decide moot cases, whether they ‘involve a matter of

public concern’ or not.” Morath v. Lewis, 601 S.W.3d 785, 789 (Tex. 2020)

(citation omitted).

These and other holdings should have cast doubt on the court of

appeals’ reliance on its precedent that embraced the public-interest

exception. See Mitschke v. Borromeo, 645 S.W.3d 251, 256–58 (Tex. 2022)

(recognizing that courts of appeals must adhere to the principles of

horizontal stare decisis, which includes not following precedents that

have been disturbed by higher authority, including decisions of this

Court). Today’s case, at the very least, illustrates the need for this Court

to remove all doubt about the matter.

We must, in other words, assess whether the Constitution truly

imposes the core requirement of a live dispute or whether the courts may

depart from it. We confirm our repeated assertions that mootness is one

aspect of the constitutional concept of justiciability—a limitation on

judicial power that neither the judiciary nor any other authority subject

to the Constitution may set aside or disregard. To resolve the case,

therefore, we proceed in two steps. First, we explain why mootness—as

one of the core justiciability doctrines—is in fact a manifestation of the

text, structure, and history of the Texas Constitution. Second, we apply

the mootness doctrine to the circumstances of this case.

A

“Justiciability” is a formal word for a fundamental concept: the line

separating lawsuits that courts may adjudicate from those they may not.

A case may be justiciable yet not fall within a particular court’s subject-

10

matter jurisdiction, but courts never have subject-matter jurisdiction over

cases that are nonjusticiable. Over time, therefore, justiciability

doctrines have been developed to readily identify when adjudicating a

case would exceed judicial authority, and especially when doing so would

violate the limitations on the judiciary imposed by the Constitution. One

fundamental example is “adversity between parties” because “without

such adversity there is no justiciable controversy.” Paxton v. Longoria,

646 S.W.3d 532, 538 (Tex. 2022).

The most familiar justiciability doctrines are standing, mootness,

and ripeness, all of which “help ensure that courts do not issue advisory

opinions,” Bienati v. Cloister Holdings, LLC, 691 S.W.3d 493, 498 (Tex.

2024), and which aid the resolution of “a real and substantial controversy

involving genuine conflict of tangible interests and not merely a

theoretical dispute,” Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 685

(Tex. 2020) (quoting Bonham State Bank v. Beadle, 907 S.W.2d 465, 467

(Tex. 1995)). The Texas Constitution does not mention mootness,

standing, ripeness, or any other justiciability doctrine by name, but those

doctrines work together to ensure that at every stage of litigation, a live

dispute exists that is proper for judicial resolution, which in turn ensures

that the eventual judgment resolves the dispute. Unsurprisingly, given

that there are only “subtle differences between mootness and related

justiciability concepts, such as ripeness and standing,” Travelers Ins. Co.

v. Joachim, 315 S.W.3d 860, 865 (Tex. 2010), a case failing one of those

tests often will fail another, or even all three, cf., e.g., MedImmune, Inc.

v. Genentech, Inc., 549 U.S. 118, 128 n.8 (2007) (noting that the “standing

and ripeness” issues in the case “boil[ed] down to the same question”).

11

Cases that focus on one doctrine often, therefore, deploy constitutionally

based justiciability analysis that is applicable to the others.

Beyond delineating their constitutional dimensions, Texas courts

have sometimes noted that the familiar justiciability doctrines also have

a “prudential” aspect, meaning that the courts themselves have erected

justiciability barriers beyond what the Texas Constitution may demand.

See, e.g., King St. Patriots v. Tex. Democratic Party, 521 S.W.3d 729, 735

& n.21 (Tex. 2017) (noting that “even in a case raising only prudential

concerns, the question of ripeness may be considered on a court’s own

motion” (citation omitted)). The question before us, however, is the extent

to which the Constitution provides the underlying basis for these

interrelated justiciability requirements. In other words, we need not

address the extent to which the judiciary or the legislature may require

more than the Constitution does; the point is that they may not authorize

courts to proceed with any lesser showing of justiciability than the

Constitution demands.

As this Court’s cases reflect, at least five specific provisions of the

Constitution’s text implicate justiciability: Article V, § 1’s “judicial power”

provision; Article V, § 3(a)’s “cases” requirement; Article II, § 1’s

“separation of powers” clause; Article IV, § 22’s “legal advice” provision;

and Article I, § 13’s “open courts” provision. These provisions also

illustrate how our constitutional structure likewise limits the judiciary to

the exercise of only judicial power, and they are bound up in the history

of how our People have allocated governmental authority. We address

them in turn.

The judicial-power provision. First, the Constitution confines

12

Texas courts to exercising only “judicial power” and no other kind.

Article V, which governs the “Judicial Department,” begins this way: “The

judicial power of this State shall be vested in one Supreme Court . . . .”

Tex. Const. art. V, § 1; see also id. art. V, § 3(a) (providing for this Court

to “exercise the judicial power of the state except as otherwise provided

in this Constitution”).

As we recently observed, “the judicial power” referenced in the

Constitution includes two broad categories: “jurisdictional power” and

“administrative powers.” See Webster v. Comm’n for Law. Discipline, 704

S.W.3d 478, 489 (Tex. 2024). In Webster, we focused on the

administrative category and explained that “the original public meaning

of the ‘judicial power’ created by the Texas Constitution” includes, among

other things, “the judiciary’s authority to regulate the practice of law.”

Id. at 490–91; accord id. at 507 n.5 (Boyd, J., dissenting).

Today’s case, by contrast, involves the far more familiar

“jurisdictional power” of the courts—the power “to adjudicate cases or

liquidate law.” Id. at 489. In this context, the original public meaning of

the term “judicial power” is well recognized. It implicates the authority

to resolve actual, non-collusive legal disputes brought by adverse parties

who have a genuine legal interest and a live stake in the outcome, which

can be reduced to an enforceable judgment. This power includes, for

example, “the distinctly judicial duties of rendering judgment, imposing

sentence, and adjudicating any appellate or collateral challenges that

may be raised.” In re Tex. House of Representatives, 702 S.W.3d 330, 342

(Tex. 2024). In this context, “ ‘[j]udicial power’ is the power of a court to

decide and pronounce a judgment and carry it into effect between persons

13

and parties who bring a case before it for a decision.” Morrow v. Corbin,

62 S.W.2d 641, 644 (Tex. 1933); see also, e.g., Panda Power, 619 S.W.3d

at 637 n.17.

The traditional understanding of “judicial power” goes far beyond

Texas, of course. The text of Article III of the U.S. Constitution begins

exactly as Article V of our Constitution does: “The judicial Power of the

United States, shall be vested in one supreme Court . . . .” U.S. Const.

art. III, § 1. The U.S. Supreme Court has emphasized that the judicial

power granted in the U.S. Constitution “gives the Federal Judiciary the

power, not merely to rule on cases, but to decide them, subject to review

only by superior courts in the Article III hierarchy—with an

understanding, in short, that ‘a judgment conclusively resolves the case’

because ‘a “judicial Power” is one to render dispositive judgments.’ ” Plaut

v. Spendthrift Farm, Inc., 514 U.S. 211, 218–19 (1995) (citation omitted);

see also, e.g., Stern v. Marshall, 564 U.S. 462, 494 (2011).

Confining courts to the exercise of “judicial power,” therefore,

circumscribes the kinds of disputes that courts can resolve. We have long

held, for example, that “the rendition of advisory opinions has generally

been held not to be the exercise of judicial power.” Morrow, 62 S.W.2d at

643–44 (emphasis added); see also, e.g., Firemen’s Ins. Co. of Newark, N.J.

v. Burch, 442 S.W.2d 331, 334 (Tex. 1968) (“[T]he giving of advice as to

proposed or possible settlements is not a judicial function.” (emphasis

added)), overruled on other grounds by Farmers Tex. County Mut. Ins. Co.

v. Griffin, 955 S.W.2d 81, 83 (Tex. 1997). To be clear, advisory opinions

are not inherently pejorative or improper—they can be quite valuable.

Clients depend on lawyers to provide high-quality legal advice. But

14

providing advisory opinions is not a species of judicial power, as it exists

outside “the conception of those who framed” the judicial-power provision.

Morrow, 62 S.W.2d at 644. Thus, Morrow rejected authority conferred

by statute precisely because it called for “the rendition of an advisory

opinion” that was “not within the appellate power of our revisory courts.”

Id. at 647.

A dispute must remain live until final judgment to be one that fits

within the judicial power. It can be entirely appropriate for the other

branches of government to resolve disputes that the judiciary cannot,

even in some legal contexts. Every time a law is passed, an executive

order is issued, a nomination is approved or rejected, or a policy choice is

otherwise enacted, a dispute of some sort is thereby resolved. But such

decisions are not judicial—they would not fit within “the judicial

power”—unless they actually and finally resolve a live, concrete,

particularized dispute among genuinely adverse parties whose legal

rights will be liquidated by a judgment. “Decisions” or “opinions” lacking

those features might be useful or even urgent, but they would not be

“judicial” because they would be impermissibly advisory.

The Constitution’s grant of the “judicial power,” in other words,

itself reflects a justiciability limit that the courts may not transgress.

This Court has been so committed to this limitation that it is only because

of a constitutional amendment that we may answer certified questions

of law from federal courts. See United Servs. Life Ins. Co. v. Delaney,

396 S.W.2d 855, 859–64 (Tex. 1965) (explaining that Texas courts could

not even adjudicate a declaratory-judgment action to supply a legal

answer necessary for resolving pending-but-abated federal cases because,

15

in so doing, the Texas court could not resolve the case but could only

supply an advisory opinion for another court’s use). A certified question

still constitutes a request for an advisory opinion—but it is a kind, indeed

the only kind, that the Constitution authorizes us to issue. In 1985, the

People amended the Constitution to allow us to answer questions certified

by “a federal appellate court.” Tex. Const. art. V, § 3-c(a); see Panda

Power, 619 S.W.3d at 637 n.17 (describing this provision as a

constitutionally authorized “exception” to the otherwise-binding

prohibition of issuing “advisory opinions”). Article V, § 3-c is thus yet

another constitutional provision illustrating the requirements of

justiciability. If advisory opinions were already available, we would not

have needed that provision, and its exacting specificity makes clear that,

outside the context of federally certified questions, advisory opinions fall

outside the judicial power, no matter how important or desirable. See,

e.g., Panda Power, 619 S.W.3d at 641. And even in that context, we have

never said that the other justiciability principles are irrelevant or have

been eliminated.

In short, “the judicial power” authorizes Texas courts only to

render judgments that bind live parties rather than give useful but

abstract legal answers. Mootness is simply one tool of complying with the

constitutional directive that courts exercise only the judicial power.

The “cases” requirement. Second, and like the federal

Constitution, ours not only limits courts to “the judicial power” but then

defines the courts’ adjudicative authority by reference to “cases.”

Article III describes “cases” or “controversies,” whereas our Constitution

refers to “cases” when describing the adjudicative functions authorized

16

under “the judicial power.” Both formulations play the same limiting role.

Our Constitution, for example, states that this Court’s authority “shall

extend to all cases except in criminal law matters and as otherwise

provided in this Constitution or by law.” Tex. Const. art. V, § 3(a)

(emphasis added). It repeatedly describes the other courts’ authority in

terms of deciding “cases” as well. See id. art. V, §§ 4(b), 5(a), (b) (court

of criminal appeals); id. art. V, §§ 5(b), 6(a) (courts of appeals); id. art. V,

§§ 7(d), 8 (district courts); id. art. V, § 11 (describing recusal of judges

based on varying relationships between a judge and a “case”). No less

than the federal Constitution, therefore, the Texas Constitution

repeatedly invokes the textual concept of “cases” as the judiciary’s

proper domain. “Cases” provide the form, in other words, in which the

adjudicative power of the Texas courts may operate.

The concept of a “case” goes hand-in-hand with the concept of “the

judicial power.” For in a “case,” the court “hear[s] the facts,” “decide[s]

the issues of fact made by the pleadings,” “decide[s] the questions of law

involved, and possess[es] the power to enter a judgment on the facts found

in accordance with the law as determined by the court.” Delaney, 396

S.W.2d at 861; accord, e.g., Holmes v. Morales, 924 S.W.2d 920, 923 (Tex.

1996). And that “determination once made, in [that] particular case,”

cannot be reversed by, say, the legislature, which only “may prescribe a

new rule for future cases.” Plaut, 514 U.S. at 222 (emphasis added)

(quoting The Federalist No. 81, at 545 (Alexander Hamilton) (J. Cooke ed.

1961)). This Court has treated our “cases” provision as identical to the

federal “case or controversy” provision to make the point: “A judicial

decision reached without a case or controversy is an advisory opinion,

17

which is barred by the separation of powers provision of the Texas

Constitution.” Brooks v. Northglen Ass’n, 141 S.W.3d 158, 164 (Tex. 2004)

(citing Tex. Const. art. II, § 1); see also Sw. Elec. Power Co. v. Grant, 73

S.W.3d 211, 222–23 (Tex. 2002); Tex. Ass’n of Bus. v. Tex. Air Control Bd.,

852 S.W.2d 440, 444 (Tex. 1993).

The textual reference to “cases” bolsters the core point that

advisory opinions are beyond the judicial sphere. A “case” must be

understood as one within the judicial power, and as Brooks put it, an

advisory opinion in contravention of the separation of powers would

result if the courts resolved a dispute that was not properly deemed a

“case.” 141 S.W.3d at 164.

The separation-of-powers clause. Third, “[l]ike the United

States and our sister states, ours is a tripartite system of government”

with three branches: legislative, executive, and judicial. Webster, 704

S.W.3d at 487 (first quoting Tex. Const. art. II, § 1; and then citing id.

arts. III–V). But unlike the federal Constitution, ours goes beyond

structure and implication by expressly commanding the separation of

powers. Beginning in 1845, each Constitution of the State of Texas has

provided that “[t]he powers of the Government of the State of Texas shall

be divided into three distinct departments,” granting powers that “are

Legislative to one” department, “those which are Executive to another,

and those which are Judicial to another,” and then forbidding those

departments from “exercis[ing] any power properly attached to either of

the others, except in the instances herein expressly permitted.” Tex.

Const. art. II, § 1; see also Webster, 704 S.W.3d at 487.

Article V requires courts to exercise only “the judicial power” and

18

to do so by resolving only “cases,” while Article II requires that only courts

may exercise that power. “[T]he lines which separate the powers of the

three great departments of our government are not always clearly

drawn,” of course, but “we find no difficulty in concluding that no power

is more properly or certainly attached to the judicial department than

that which determines controverted rights to property by means of

binding judgments.” Bd. of Water Eng’rs v. McKnight, 229 S.W. 301, 304

(Tex. 1921). The separation of powers thus protects the judicial role from

incursion, but at the same time, it imposes a “limit on courts’ jurisdiction.”

Tex. Ass’n of Bus., 852 S.W.2d at 444 (emphasis added). To prevent

improper judicial intrusion into non-judicial terrain, “we 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.” Id.

We have frequently noted that the separation-of-powers clause

limits courts to resolving live disputes, which advisory opinions by

definition cannot do. “The constitutional roots of justiciability doctrines

such as ripeness, as well as standing and mootness, lie in the prohibition

on advisory opinions, which in turn stems from the separation of powers

doctrine.” Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc., 971

S.W.2d 439, 442 (Tex. 1998) (citing Tex. Const. art. II, § 1); see NCAA v.

Jones, 1 S.W.3d 83, 86 (Tex. 1999) (“Appellate courts are prohibited from

deciding moot controversies. This prohibition is rooted in the separation

of powers doctrine in the Texas and United States Constitutions that

prohibits courts from rendering advisory opinions.” (internal citation

omitted)); see also, e.g., In re Guardianship of Fairley, 650 S.W.3d 372,

19

379 (Tex. 2022); Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822

(Tex. 2000). The U.S. Supreme Court has also repeatedly linked

justiciability to the separation of powers. See, e.g., Powell v. McCormack,

395 U.S. 486, 512 (1969) (“[T]he doctrine of separation of powers is more

properly considered in determining whether the case is ‘justiciable.’ ”);

Allen v. Wright, 468 U.S. 737, 752 (1984) (“[T]he law of Art. III standing

is built on a single basic idea—the idea of separation of powers.”).

Notably, we have recognized that the separation of powers, and its

concomitant justiciability limitation, is an innovation that distinguishes

American government from our English roots: “In England chancery

courts exercise nonjudicial, as well as judicial, powers; but our equity

courts possess only judicial powers.” Ex parte Hughes, 129 S.W.2d 270,

273 (Tex. 1939); accord Allred v. Beggs, 84 S.W.2d 223, 228 (Tex. 1935).

The English courts were the king’s courts, after all. If our courts were

mere adjuncts of the other branches, rather than a purposefully

independent branch, it would not matter much whether our courts

ventured into non-judicial territory. But the People of Texas have instead

delineated judicial authority with precision, both to protect the

independence and accountability of the judiciary and to ensure that the

other branches remain independent and accountable for their own

actions. Resolving live rather than theoretical disputes is a justiciability

limit that ensures that all branches properly exercise their own, and only

their own, authority.

The legal-advice provision. Fourth, and again like the federal

Constitution, the Texas Constitution punctuates the requirement for live

and concrete decisions to qualify as justiciable by expressly assigning

20

advisory opinions elsewhere: “The Attorney General shall . . . give legal

advice in writing to the Governor and other executive officers, when

requested by them.” Tex. Const. art. IV, § 22. The federal Constitution

more broadly provides that “[t]he President . . . may require the opinion,

in writing, of the principal officer in each of the executive departments,

upon any subject relating to the duties of their respective offices.” U.S.

Const. art. II, § 2, cl. 1.

If anything, the Texas provision is more focused on the proper

authority to give advisory legal opinions, but both this Court and the U.S.

Supreme Court have recognized the respective provisions as reflecting

an important justiciability limitation. Our decision in Morrow relied

heavily on this textually expressed delegation of legitimate advisory-

opinion authority to explain why the judiciary lacked such authority

under the original public meaning of our Constitution: “the Attorney

General, a member of the Executive Department, is the only state officer

expressly authorized to render such opinions.” 62 S.W.2d at 644

(emphasis added). Only after making that textual point did Morrow

emphasize that, wholly aside from Article IV, § 22, “the rendition of

advisory opinions has generally been held not to be the exercise of judicial

power.” Id. (citing a wide variety of scholarship and judicial authorities).

We have reaffirmed these holdings. See, e.g., Cal. Prods., Inc. v. Puretex

Lemon Juice, Inc., 334 S.W.2d 780, 782–83 (Tex. 1960) (rejecting

authority to issue “merely advisory opinions” via declaratory judgments

because “[i]n government this is a duty of the executive branch” and

because “[i]n private business it is the function of the legal profession”).

And nearly from the beginning of its history, the U.S. Supreme

21

Court has invoked the analogous provision from Article II of the federal

Constitution to demarcate judicial authority to only live disputes. The

courts, it said, could not render advisory opinions because “the Power

given by the Constitution to the President of calling on the Heads of

Departments for opinions, seems to have been purposely as well as

expressly limited to executive Departments.” 6 Documentary History of

the Supreme Court of the United States, 1789–1800, at 755 (M. Marcus

ed., 1998) (reprinting letter dated Aug. 8, 1783, from the justices to

President Washington). In that instance, Secretary of State Thomas

Jefferson, on behalf of President George Washington, turned to the

Supreme Court with a list of serious questions about the United States’

legal obligations. It was a dangerous time for the fledgling republic—in

the midst of a war ranging between Britain and France—and the

president “would . . . be much relieved” to receive answers to those

questions, which “would secure us against errors dangerous to the peace

of the [United States].” Id. at 747 (reprinting letter dated July 18, 1793,

from Thomas Jefferson to the justices). If the Supreme Court declined to

provide urgently requested assistance to George Washington because only

live disputes between parties presented justiciable cases and because

advisory opinions were purposefully assigned to other branches, it is hard

to imagine the kind of urgency that would warrant this Court yielding to

the temptation to do so today.

The open-courts provision. Fifth, and unlike the federal

Constitution, our Bill of Rights contains an open-courts provision: “All

courts shall be open, and every person for an injury done him . . . , shall

have remedy by due course of law.” Tex. Const. art. I, § 13. Justiciability

22

limits flow in part from “the open courts provision, which contemplates

access to the courts only for those litigants suffering an injury.” Tex.

Ass’n of Bus., 852 S.W.2d at 444 (emphases added).

We have had many occasions to confirm that the “access” that “the

open-courts provision guarantees” is for “those who have suffered actual

injury, not to provide a forum for general injuries or hypothetical

complaints.” City of Houston v. Williams, 353 S.W.3d 128, 145 (Tex.

2011); see also, e.g., Data Foundry, Inc. v. City of Austin, 620 S.W.3d 692,

700 (Tex. 2021); In re Abbott, 601 S.W.3d 802, 807 (Tex. 2020); Garcia v.

City of Willis, 593 S.W.3d 201, 206–07 (Tex. 2019); Heckman v. Williamson

County, 369 S.W.3d 137, 147 (Tex. 2012); S. Tex. Water Auth. v. Lomas,

223 S.W.3d 304, 307 (Tex. 2007). As Justice Gonzalez put it in a

concurring opinion quoting Texas Association of Business, “[w]e held

that [the open-courts] provision ‘contemplates access to the courts only

for those litigants suffering an injury.’ This provision, which authorizes

the courts to remedy injuries . . . , implicitly defines the bounds of

potentially justiciable issues.” Patterson, 971 S.W.2d at 445 (Gonzalez,

J., concurring) (quoting 852 S.W.2d at 444).

An injury that has not yet ripened, or that is not concrete or

genuine, or that has ceased to be remediable, is not an injury that a

litigant “is suffering.” We therefore reaffirm that the open-courts

provision expects courts to act as courts—to remedy actual injuries

without fear or favor, but not to address speculative or theoretical

disputes or disputes that, while once live, no longer are.

* * *

These textual provisions of the Texas Constitution provide the

roots of our justiciability doctrines. The fact that our Constitution

23

contains every textual and structural justiciability provision found in the

U.S. Constitution—and then adds even more through our separation-of-

powers and open-courts clauses—explains why, in case after case, this

Court has found federal doctrine instructive on justiciability’s minimum

requirements. See, e.g., Heckman, 369 S.W.3d at 154; Brown v. Todd, 53

S.W.3d 297, 305 (Tex. 2001); Tex. Ass’n of Bus., 852 S.W.2d at 444. True,

we are not in any sense bound by the U.S. Supreme Court’s conception of

the federal judicial power. See, e.g., Perry v. Del Rio, 66 S.W.3d 239, 250

(Tex. 2001) (finding federal principles to be “consistent with our own

ripeness jurisprudence”). Article III directly governs only the federal

courts, not those of Texas. But given its additional textual and structural

limitations, any justiciability differences under our Constitution are

likely to be more restrictive, not less.

Reserving the demarcation of any such differences for future cases,

we find it enough to note here that the law-articulating work of both the

federal and Texas courts is available only if a judgment would redress a

genuine injury. Stated differently, but stated in our cases very frequently,

courts must refrain from issuing advisory opinions—not because such

opinions would be useless, but because issuing them would not resolve

a live dispute between actually adverse parties and therefore would not

constitute an exercise of the judicial power. The justiciability doctrines

help ensure that a case will not lead the judiciary into forbidden terrain.

Accordingly, we reaffirm that mootness, one of the core

justiciability doctrines, is rooted in the Texas Constitution. When a case

“becomes moot, and the issues no longer justiciable,” the case “should be

dismissed.” Sterling v. Ferguson, 53 S.W.2d 753, 760 (Tex. 1932). As we

24

have emphasized, “our lack of jurisdiction over moot cases is a mandate

of the constitution, not a matter of convenience.” Panda Power, 619

S.W.3d at 641. We have repeatedly described mootness in mandatory

constitutional terms, as a constitutional rather than merely prudential or

administrative limitation on the judicial power. See, e.g., State ex rel. Best

v. Harper, 562 S.W.3d 1, 6 (Tex. 2018); Matthews v. Kountze ISD, 484

S.W.3d 416, 418 (Tex. 2016). Thus, “[a]ny ruling on the merits of a moot

issue constitutes an advisory opinion, which we lack jurisdiction to issue.”

In re J.J.R.S., 627 S.W.3d 211, 225 (Tex. 2021) (emphasis added).

With this confirmation of justiciability’s constitutional minimum—

a live dispute whose resolution will not generate an advisory opinion—

we proceed to examine whether the case before us is moot.

B

Assessing mootness generally proceeds in two steps. First, we ask

if the case is moot on its face—that is, has the live controversy come to an

end. See Joachim, 315 S.W.3d at 865. If the answer is yes, we then ask

if any “exception” to mootness applies. See Williams v. Lara, 52 S.W.3d

171, 184 (Tex. 2001). Given that the Constitution requires a live dispute

between genuinely adverse parties, see Joachim, 315 S.W.3d at 865, this

second step does not mean that the court may adjudicate a case lacking

those features. It instead means that some cases that are moot on their

face actually remain live—such as when collateral consequences flow

from the resolution of a seemingly moot dispute, see, e.g., Carrillo v. State,

480 S.W.2d 612, 616–18 (Tex. 1972), or when circumstances causing the

injury, despite having ended, are likely to recur as between the same

parties yet evade review because the injury is of short duration, see, e.g.,

25

Blum v. Lanier, 997 S.W.2d 259, 264 (Tex. 1999) (applying the capable-

of-repetition exception).

Determining whether the court of appeals properly exercised

jurisdiction in this case requires us to examine both steps because

Grassroots contends that the case is not moot on its face but that if it is,

the capable-of-repetition exception saves it. But we also examine a third

step that the court of appeals added to the analysis: whether a “public-

interest exception” saves an otherwise moot dispute. Grassroots argues

that if we must reach the public-interest exception at all, we should adopt

it and then affirm the court of appeals’ judgment on the merits.

We address all three steps in turn.

1

The court of appeals held that this case became moot because, as

is undisputed, every plaintiff has long since been released from detention.

See 665 S.W.3d at 141. Grassroots disputes this conclusion on the ground

that the federal government may re-detain the plaintiffs and could do so

at Dilley or Karnes. The court of appeals rejected that basis for avoiding

mootness as unsupported by any record evidence about “the

circumstances or conditions, if any, of the detainees’ release.” Id. We

agree with the court of appeals.

The legal claim here is that the department promulgated its rule

in violation of the Administrative Procedure Act. To assess a claim’s

justiciability, a court must begin with a clear-eyed view of how the claim

specifically affects the rights and interests of the parties themselves. To

anyone not held or imminently subject to being held within a relevant

facility, the procedural regularity of a rule leading to licensure raises only

26

a theoretical question. When we last addressed this case, we held that

these plaintiffs’ standing was secure because the plaintiff mothers could

allege specific and concrete injuries traceable to the rule. Grassroots, 646

S.W.3d at 820–21. The same kind of specificity is now essential to show

why the legal issue has not become abstract and theoretical because of

the mothers’ release. “Justiciability is a matter of concern in every civil

case, and remains a live concern from the first filing through the final

judgment.” Heckman, 369 S.W.3d at 147.

One way mootness arises is if a ruling cannot “affect the parties’

rights or interests” such that it “would be without practical effect.” Panda

Power, 619 S.W.3d at 639 (emphasis added). If the prospective relief that

plaintiffs demand could not affect their interests in a non-speculative

way, resolving the case would generate an advisory opinion. “[I]t is

axiomatic that appellate courts do not decide cases in which no

controversy exists between the parties.” Camarena v. Tex. Emp. Comm’n,

754 S.W.2d 149, 151 (Tex. 1988).

To decide whether the case is moot, we ask whether Grassroots

(or, more precisely, one of the plaintiffs it represents) retains, as the U.S.

Supreme Court has put it, “a ‘personal stake in the outcome of the

lawsuit,’ ” or, in other words, a “concrete interest, however small.”

Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 161 (2016) (first quoting

Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72 (2013); and then

quoting Chafin v. Chafin, 568 U.S. 165, 172 (2013)). Our statement in

Panda Power—that relief must have a “practical” effect, 619 S.W.3d at

639—reflects the need for a judgment to actually affect the plaintiff, not

merely vindicate a favored legal position. Another way our cases have

27

articulated the same point is that throughout litigation, there must

remain a “real and substantial controversy involving genuine conflict of

tangible interests and not merely a theoretical dispute.” Bonham State

Bank, 907 S.W.2d at 467.

To be clear, “substantial” does not mean “a big part of the case” or

“important to the law.” A claim does not become moot if only a small

part of the original amount in controversy remains disputed or if a judge

deems the legal rights that remain disputed to be relatively insignificant

compared to those asserted at a lawsuit’s inception. Rather, a “real and

substantial controversy” is one where the dispute is genuine, concrete,

and tangible rather than speculative, contingent, or hypothetical.

Accordingly, if a concrete dispute has become only theoretical, such

as when a party seeking prospective relief no longer would be affected if

that relief is granted, the claim is presumptively moot. That is why the

court of appeals was correct to conclude that the undisputed evidence of

these plaintiffs’ release from detention, which ended the injury essential

to justiciability, rendered their claims moot on their face absent some

non-speculative basis to show that the dispute nonetheless remains live.

665 S.W.3d at 141. The injury that would support jurisdiction to assess

the rule’s validity cannot merely be the risk of re-detention or even the

possibility of re-detention at Dilley or Karnes. Rather, the relevant injury

to the plaintiff-mothers is re-detention in an unlawfully licensed facility

with minor children and for an amount of time that would violate the

federal consent decree. Mootness cannot be defeated without showing

that all this is reasonably likely rather than speculative.

Grassroots resists this conclusion and asserts that its claims are

28

not moot even on their face. Its argument comes in two parts. First,

because mootness is not easily established, it contends that courts

should not find mootness until the party asserting it (here, the

department) proves it. Second, Grassroots argues that, even if it must

show why the case is not moot on its face, the federal government’s

statutory authority to re-detain these plaintiffs and Grassroots’s

expert’s deposition testimony achieve that goal.

We address both points in turn. As to the first one, Grassroots

unduly expands the circumstances in which mootness will not be found.

To the extent the department has a “burden” to establish mootness,

pointing out that the plaintiff mothers have all been released met that

burden. As to its second point, nothing Grassroots identifies constitutes

a non-speculative basis to think that any plaintiff in this case is

reasonably likely to be re-detained at Dilley or Karnes (much less with

children and for a time that would exceed the consent decree’s limits).

a

According to Grassroots, the plaintiff mothers are subject to

re-detention at Dilley or Karnes and so their claims never became moot.

Grassroots asserts that the department must affirmatively establish

mootness and that it cannot do so in light of these circumstances.

Grassroots supports these assertions by emphasizing our oft-

repeated admonition that mootness should be found reluctantly rather

than readily. As we put it last summer: “[M]ootness is difficult to

establish. The party asserting it must prove that intervening events

make it ‘impossible for a court to grant any effectual relief whatever to

the prevailing party.’ ” In re Dallas County, 697 S.W.3d 142, 151 (Tex.

29

2024) (quoting Abbott v. Mexican Am. Legis. Caucus, 647 S.W.3d 681, 689

(Tex. 2022)). Grassroots says that it is not “impossible” that any of the

plaintiff mothers might be re-detained at Dilley or Karnes with minor

children and for a lengthy period, so the department cannot meet its

burden to establish mootness.

Grassroots is at least correct that there is no presumption in favor

of mootness. Jurisdiction once established should not lightly be negated.

But the assessment of whether it is “impossible” is premised on the

antecedent requirement that such relief must be “effectual.” That

requirement cannot be speculative or contingent because it is key to the

constitutional mandate that a court may only resolve a dispute that

remains genuine and live, not one that has become theoretical or abstract.

Once it is established that the relief would be effectual if granted—that it

would resolve a live dispute and affect the plaintiff’s rights—then we will

refuse to find a case moot unless it is “impossible” for the court to award

that kind of relief. Grassroots’s error, in other words, is to expand this

principle to circumstances where it is doubtful that there is any actual

dispute to resolve in the first place.

The cases that Grassroots cites, and others, make this point. In

Mexican American Legislative Caucus, we held that an electoral-

redistricting claim that was unquestionably live when we issued our

opinion was not moot even though it would likely be overtaken by events

before the litigation’s end. See 647 S.W.3d at 689–90. Even more

recently, when pandemic-era governmental authority was the subject of

a case in this Court, the legislature enacted a statute that eliminated such

authority. See Abbott v. Harris County, 672 S.W.3d 1, 7 n.19 (Tex. 2023).

30

We did not dismiss the case as moot because the statute, despite having

been enacted, would not take effect until several months after we decided

the case. Id. The dispute was live until that supervening event occurred.

Id. Thus, it was not “impossible” to resolve a live dispute in those cases—

the stakes in each, although diminishing, remained present. As we

observed in Dallas County, “[c]ourts do not act in anticipation of potential

mootness,” and “only after a case becomes moot does a court lose

jurisdiction.” 697 S.W.3d at 151. The Supreme Court’s decision in

Campbell-Ewald is consistent with this premise because it required a

“concrete” interest for the plaintiff—perhaps “small,” but not attenuated,

doubtful, speculative, hypothetical, contingent, or theoretical. See 577

U.S. at 161.

We added further definition to the contours of when a court’s

ability to grant effectual relief is too speculative or contingent in Harper,

where we reiterated that a case was not moot because it was not

“impossible for the court to grant the relief requested or otherwise ‘affect

the parties’ rights or interests.’ ” 562 S.W.3d at 6 (emphasis added)

(quoting Heckman, 369 S.W.3d at 162). But we highlighted two practical

ways that a moot issue does not necessarily moot the case. For one, “a

case ‘is not rendered moot simply because some of the issues become moot

during the appellate process’ ”; rather, “[i]f only some claims or issues

become moot, the case remains ‘live,’ at least as to other claims or issues

that are not moot.” Id. (emphasis added) (quoting In re Kellogg Brown &

Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005)); see also, e.g., Heckman, 369

S.W.3d at 167 (“[I]f even one issue remains live between defendants and

the putative class, the suit as a whole is not moot.”); Commonwealth Bank

31

& Tr. Co. v. Morris, 77 S.W.2d 871, 871 (Tex. 1934) (reviewing a challenge

to a statute and explaining that “since this question [was] the sole one

certified in this case, the cause as it exist[ed] in this court [was] moot”).

Courts may continue to adjudicate any parts of a case that remain within

their subject-matter jurisdiction and are otherwise justiciable. We did so

just this term, where we concluded that a challenge to a divorce decree

was not moot as it usually is following the death of one of the spouses

“because whether the marriage ended by divorce or by death

substantially affect[ed] the wife’s asserted property interests,” thus

providing a basis to resolve the legality of the divorce. In re Marriage of

Benavides, ___ S.W.3d ___, 2025 WL 1197404, at *1 (Tex. Apr. 25, 2025).

A second way arises when “in some cases—but not all—a claim for

attorney’s fees ‘breathes life’ into a suit that has become moot in all other

respects.” Harper, 562 S.W.3d at 7 (citation omitted). In other words, the

issue that animated a lawsuit may become moot, but if a statute entitles

a litigant to fees based on the merit of the claim, what seems like a moot

case may remain live. See, e.g., Marshall v. Hous. Auth. of City of San

Antonio, 198 S.W.3d 782, 790 (Tex. 2006) (“[I]n some instances a case is

not moot even though the only issue presented relates to court costs.”).

Beyond Harper’s two examples, our cases identify “voluntary

cessation” as another way that a case is not moot on its face despite the

seeming end of the underlying injury. See, e.g., In re Cont. Freighters,

Inc., 646 S.W.3d 810, 812–14 (Tex. 2022) (holding that the mandamus

petition remained live when plaintiffs unilaterally withdrew discovery

demands after the Court indicated interest in reviewing the petition

because the withdrawal lacked any enforceable guarantee that similar

32

demands could not be made again). Voluntary cessation typically is not

a basis for mootness because it often represents not a defendant’s

surrender but its attempt to avoid a binding loss. If voluntary cessation

required dismissal, a defendant unilaterally “could control the

jurisdiction of courts with protestations of repentance and reform, while

remaining free to return to their old ways.” Matthews, 484 S.W.3d at 418.

Importantly, however, as both Contract Freighters and Matthews

made clear, “voluntary cessation” can lead to mootness “when subsequent

events make absolutely clear that the [challenged conduct] could not

reasonably be expected to recur.” Id. (internal quotation marks and

citation omitted); accord Cont. Freighters, 646 S.W.3d at 814. In such a

situation, the dispute necessarily has ended, and no live claim remains.

A good example of this principle, and of the need for non-

speculative showings of continuing injury, is the U.S. Supreme Court’s

decision in DeFunis v. Odegaard, 416 U.S. 312 (1974). DeFunis alleged

that a state law school denied him admission because of his race. Id. at

314. He was nonetheless admitted provisionally after obtaining an

injunction from a state court, but the state supreme court later reversed

the injunction. Id. at 314–15. He was not expelled because the Supreme

Court stayed the state supreme court’s judgment and set the case for

argument. Id. at 315. When the case was argued, DeFunis was in his

last term. Id. at 315–16. The law school represented that whether it won

or lost the appeal, it would allow DeFunis to complete that term and

graduate; graduation, of course, would eliminate the injury of being

wrongly denied admission. Id. at 316. The Court dismissed the case as

moot, reasoning that even if the challenged conduct (denial of admission)

33

had in a sense voluntarily ceased, the school’s representation satisfied the

principle that it was not reasonably likely to recur as to DeFunis. Id. at

316–20. The kind of “voluntary cessation” that would not lead to

mootness, the Court observed, would have existed if the law school had

simply (and not irrevocably) changed its admission procedures, leaving

it free upon dismissal of the case to restore those procedures and eject

DeFunis. Id. at 318.

DeFunis reflects that at bottom, mootness poses a practical test, not

one that turns on speculative, theoretical, contingent, or unlikely events

that might happen. After all, a ruling for DeFunis would have given him

some additional protections. Justice Brennan’s dissent pointed out that

“[a]ny number of unexpected events—illness, economic necessity, even

academic failure—might prevent his graduation at the end of the term.”

Id. at 348 (Brennan, J., dissenting). The case was not moot, Justice

Brennan argued, because the law school did not guarantee DeFunis any

terms after this one—so reversal “could insure that, if for some reason

[DeFunis] did not graduate this spring, he would be entitled to re-

enrollment at a later time on the same basis as others who have not faced

the hurdle of the University’s allegedly unlawful admissions policy.” Id.

Justice Brennan’s approach accords with the mootness theory that

Grassroots advances, but this Court’s cases share the DeFunis majority’s

functional understanding of mootness. Hence our conclusion in Panda

Power that the case was moot because a judgment would have no

“practical effect,” despite the still-raging legal dispute and the strong

desire for an advisory opinion. See 619 S.W.3d at 639.

Time and again, we have taken this approach. In Texas A & M

34

University–Kingsville v. Yarbrough, a professor sued over an allegedly

improper negative evaluation that she thought would harm her tenure

prospects—but then was granted tenure. 347 S.W.3d 289, 291 (Tex.

2011). She claimed that the dispute remained live because the evaluation

would remain in her file and, under the university’s rules, could affect

“future employment decisions” about her. Id. We found her claim to be

moot on its face because it “d[id] not present a substantial controversy,

between parties having adverse legal interests, of sufficient immediacy

and reality to warrant the issuance of a declaratory judgment.” Id. (first

emphasis added) (internal quotation marks and citations omitted). It is

not “impossible,” of course, that the negative evaluation could ever cause

later harm, but it was entirely speculative. See id.

Similarly, in Glassdoor, Inc. v. Andra Group, LP, we found facial

mootness where Andra hoped to identify and then sue anonymous online

commenters through a Rule 202 proceeding against Glassdoor, the online

forum where the allegedly defamatory statements had been posted. 575

S.W.3d 523, 525 (Tex. 2019). But the limitations period for any

defamation claim expired during the Rule 202 litigation, leading us to

conclude that the Rule 202 litigation had been rendered moot. Id. at 527,

530. True, we agreed, it was not literally impossible for the Rule 202

proceeding to benefit Andra, for “the statute of limitations is an

affirmative defense,” id. at 527 n.3, that any defendants identified through

the Rule 202 proceeding could have waived or forfeited. That theoretical

possibility, however, was too remote to satisfy our mootness standards.

In short, as with the law of standing, our approach to mootness

insists on a close tether to reality and rejects indulging “an ingenious

35

academic exercise in the conceivable.” United States v. SCRAP, 412 U.S.

669, 688 (1973). Yes, it is conceivable that one of the previous detainees

may be re-detained, with children, at Dilley or Karnes, and for the

requisite amount of time. But under our cases, that mere possibility is

not enough, without more, to overcome facial mootness. The “impossible

to grant relief” test does not refer to metaphysical impossibility, as if we

were inviting lawyers to devise the equivalent of a Rube Goldberg

machine for justiciability—some theoretical but highly unlikely path to

converting what otherwise would be an advisory opinion into a genuinely

effectual judgment. “[O]ne can never be certain that findings made in a

decision concluding one lawsuit will not some day . . . control the outcome

of another suit. But if that were enough to avoid mootness, no case would

ever be moot.” United States v. Juv. Male, 564 U.S. 932, 937 (2011) (per

curiam) (quoting CFTC v. Bd. of Trade of Chi., 701 F.2d 653, 656 (7th

Cir. 1983) (Posner, J.)).

Accordingly, the department carried any burden it bore to show

that all the claims in this case are moot on their face. Without dispute, it

conveyed that none of the individual plaintiffs remained detained in an

unlicensed facility—not because of any actions of the department but

because of third-party decisions of the federal government. Likewise, any

return to detention would require the federal government’s independent

decisions. To avoid dismissal, Grassroots must identify a non-speculative

basis for concluding that the detainees’ release did not facially moot the

claims. We now turn to the arguments Grassroots has raised on that

point.

36

b

Grassroots disputes any burden to negate mootness, but it

identifies two grounds for why the claims are not moot, even on their face.

First, the plaintiff mothers are subject to being re-detained at the

discretion of the Attorney General of the United States. See, e.g., 8 U.S.C.

§ 1226(b) (“The Attorney General at any time may revoke a bond or

parole[,] . . . rearrest the alien under the original warrant, and detain the

alien.”). Second, Grassroots claims that its expert’s deposition testimony

shows that the re-detention authority is real. Thus, judicial relief is

necessary to prevent re-detention at an unlicensed facility. We find these

contentions insufficient to overcome mootness and address them in turn.

First, we assume that the statute’s scope is as broad as Grassroots

asserts. If we were adjudicating the plaintiffs’ right to be in the United

States free from any threat of removal or detention, the existence of that

statutory authority might well prevent conditional release from mooting

the claims. Grassroots cites several federal cases involving direct federal

claims under federal immigration law that suggest that result. See Clark

v. Martinez, 543 U.S. 371, 376 n.3 (2005) (reasoning that because the

parolee’s release was “subject to the [Secretary of Homeland Security’s]

discretionary authority to terminate” parole, he “ ‘continue[d] to have a

personal stake in the outcome’ of his petition” (citation omitted)); Rosales-

Garcia v. Holland, 322 F.3d 386, 395–96 (6th Cir. 2003) (en banc)

(reasoning that because Rosales’s “immigration parole can be revoked by

INS at any time for almost any reason,” his “appeal [was] not moot”);

Rodriguez v. Hayes, 591 F.3d 1105, 1117–18 (9th Cir. 2010) (relying on

Clark to deem the claim not moot); In re Hutto Fam. Det. Ctr., No. A-07-

37

CA-164-SS, 2007 WL 9757682, at *1 (W.D. Tex. May 29, 2007) (same).

But even assuming that a conditional release would not moot a challenge

to one’s immigration status under federal law, whether that release has

mooted the state-law rule challenge here raises a quite different question.

For one thing, the relief in the two circumstances is materially

different. A successful plaintiff in the federal cases would obtain a

judicial determination against the federal government concerning her

immigration status, including whether, for example, she could be

removed or detained at all. Even if a plaintiff is never again to be

detained, determining the lawfulness of her presence in the country itself

may itself have consequences as to her ability to obtain employment or

housing and could thus provide the basis for her claim to remain live

(assuming that the federal government remains adverse).

Grassroots, of course, does not ask for any immigration-related

relief here. The premise of this case is that the plaintiffs can be subjected

to continued detention, yet that, for distinct reasons, particular kinds of

detention require a valid state license. All agree, as Grassroots puts it,

that “[t]he propriety of the rule [the department] issued is unquestionably

and solely a matter of state law” under our Administrative Procedure Act.

For the state-law question to remain live, therefore, the continuing threat

of federal enforcement is a necessary but not sufficient requirement. It is

not sufficient because, unlike obtaining some form of federal relief,

invalidating the department’s rule requires the nonspeculative continuing

threat not just of some adverse federal action, but all four of these specific

events: a governmental choice to re-detain any of these plaintiffs; re-

detention at Dilley or Karnes; re-detention with a minor child; and re-

38

detention for a duration that exceeds what the consent decree allows.

The statutory re-detention authority that Grassroots cites,

therefore, cannot prevent mootness of this far-more-attenuated claim

unless it is accompanied by evidence suggesting more than a speculative

likelihood of those four developments for the particular plaintiffs in this

case. Otherwise, the federal government’s statutory authority standing

alone is comparable to a bare theoretical possibility that a decision might

eventually prove useful in cases like DeFunis, Yarbrough, or Glassdoor—

hypothetically possible, but insufficient to overcome facial mootness.

Thus, while we assume that each of the four steps is possible, mere

possibility is not enough. “[U]nder our Constitution,” the judiciary may

“not give advice or decide cases upon speculative, hypothetical, or

contingent situations.” Coalson v. City Council of Victoria, 610 S.W.2d

744, 747 (Tex. 1980); accord Camarena, 754 S.W.2d at 151 (citing Coalson,

610 S.W.2d at 747). It is at least as true in the context of justiciability as

elsewhere in the law that “we cannot ‘pile speculation on speculation and

inference on inference.’ ” Raoger Corp. v. Myers, ___ S.W.3d ___, 2025

WL 1085173, at *4 (Tex. Apr. 11, 2025) (quoting Marathon Corp. v.

Pitzner, 106 S.W.3d 724, 729 (Tex. 2003)). The claims here are therefore

moot on their face unless Grassroots can show that reaching the merits

will not be an abstract ruling but will directly affect these plaintiffs’

interests under the same “reasonable likelihood” or “reasonable

expectation” standard typically used for justiciability inquiries. Cf., e.g.,

Robinson v. Parker, 353 S.W.3d 753, 755–56 (Tex. 2011) (discussing

ripeness); Williams, 52 S.W.3d at 184–85 (discussing mootness).

The deposition testimony of Erica Schommer, Grassroots’s expert

39

witness, comes into play here because it supplies the only other evidence

on which Grassroots relies. Schommer stated that U.S. Immigration and

Customs Enforcement (ICE) has broad discretion to re-detain released

immigrants for any reason that it deems appropriate. But Schommer’s

testimony fails to show any non-speculative, heightened, or imminent

likelihood as to even one named plaintiff. Instead, the testimony achieves

the opposite. As we read it, it reveals that the mothers’ re-detention is

only a remote possibility rather than the reasonable likelihood that this

Court’s precedent requires. See, e.g., Williams, 52 S.W.3d at 184. Indeed,

in 2015 alone, some 16,000 individuals resided in Dilley, but Schommer

only knew of “at least over [twenty]” families in her entire career that had

been re-detained at either Dilley or Karnes, and she personally had only

“a few clients” ever in that situation.

Even more significantly, Schommer confirmed that her re-detained

clients fit within three basic groups: those who violated their conditions

of parole, those who committed a crime, or those who received an adverse

decision in their federal case. The first and second grounds—the

possibilities of violating conditions of parole or committing crimes—

cannot overcome mootness, and it is of course improper to assume that

anyone would commit those actions. See, e.g., Williams, 52 S.W.3d at 185

(observing that ex-detainees are “required by law to prevent their own

recidivism”). Said another way, the notion that a former detainee would

violate a condition of parole or commit a criminal offense is a speculative

leap that blocks rather than establishes justiciability. See, e.g., O’Shea v.

Littleton, 414 U.S. 488, 496–97 (1974) (“[A]ttempting to anticipate

whether and when these respondents will be charged with crime . . .

40

takes us into the area of speculation and conjecture.”). The third-cited

reason for re-detention—receiving an adverse immigration decision—is

equally unlinked to any of these plaintiffs. Indeed, nothing in the

testimony (or elsewhere in the record as presented to us) suggests that

any of them is especially likely to receive an adverse determination or

that, even if such a determination comes, it would make re-detention a

likely consequence. The testimony only works the other way: that if re-

detention occurs, the re-detained individual would likely have fit in one

of the three categories Schommer listed. None of this remotely supports

Grassroots’s contention that the case never became moot in the first place.

At best, the evidence Grassroots has presented “is hypothetical,

‘iffy’ and contingent,” which amounts to no evidence at all. Burch, 442

S.W.2d at 333. The court of appeals rightly held that the record before

it did nothing to show how these plaintiffs could benefit in more than a

speculative way by continuing the litigation. 665 S.W.3d at 141.

* * *

We reiterate that “under our Constitution, [courts] do not give

advice nor decide cases upon speculative, hypothetical, or contingent

situations.” Coalson, 610 S.W.2d at 747. No plaintiff is currently

experiencing the alleged injury here—detention in an allegedly

unlawfully licensed facility—and their return to any affected facility is

entirely “speculative, hypothetical, or contingent.” Nothing here prevents

this case from being deemed moot on its face. Unless an “exception”

applies—the question to which we next turn—the case must be dismissed

without prejudice for lack of subject-matter jurisdiction.

At the same time, however, we cannot and need not hold that none

of the plaintiffs will ever be re-detained at either of these facilities. Our

41

case law addresses this scenario, too. In another case, which we

dismissed for lack of ripeness, we wrote: “We note that the [plaintiffs] are

not irrevocably harmed by this dismissal. Because the case is dismissed

without prejudice, if they choose, they can re-file and develop a record

demonstrating that the claims have ripened, allowing a new suit to

proceed.” Waco ISD v. Gibson, 22 S.W.3d 849, 853 (Tex. 2000). The same

is true for mooted disputes, of course. That a claim cannot be adjudicated

because of mootness does not foreclose litigation if the injury does recur.

It would no longer be speculative or attenuated, and the very fact of

recurrence as to a particular plaintiff would likely make it harder to again

dismiss that plaintiff’s claim as moot.

2

Grassroots argues that the claims are saved by the capable-of-

repetition-yet-evading-review “exception” even if we find them moot on

their face. The court of appeals rejected that argument, 665 S.W.3d at

141–42, and we again agree. To explain why, we first discuss the

concept of “exceptions” to mootness and then assess whether any of them

saves Grassroots’s claims from mootness.

This Court has recognized two primary and generally available

“exceptions” to mootness: (1) the “collateral consequences” exception and

(2) the “capable of repetition” exception. See FDIC v. Nueces County, 886

S.W.2d 766, 767 (Tex. 1994). 1 The deployment of the word “exception”

1 Class actions present a separate context that is not at issue here.

Without addressing all the justiciability complexities that class litigation can

engender, it is sufficient to note that courts cannot adjudicate a class’s claims

unless “there remains a live interest between the class of affected individuals—

thereby satisfying constitutional justiciability concerns.” Heckman, 369 S.W.3d

42

can be misleading because what we have referred to as mootness

“exceptions” are not really exceptions at all. They do not allow courts to

disregard the boundaries of the judicial power and adjudicate cases that

are actually moot. Rather, the exceptions elucidate when a case that

seems moot actually remains live for reasons that might not be

immediately apparent.

The collateral-consequences exception allows courts to decide cases

“when vacating the underlying judgment will not cure the adverse

consequences suffered by the party seeking to appeal that judgment.”

Marshall, 198 S.W.3d at 789. Criminal cases are frequent examples.

Convicts may be subject to burdens or obligations that linger even after

any sentence has ended, affecting their right to vote, possess firearms, or

enjoy other freedoms generally available to those without a conviction.

This Court has long recognized, for example, that “[a] juvenile’s appeal of

his adjudication is not moot simply because his disposition has ended

when . . . potential collateral consequences remain,” such as required sex-

offender registration or the inability to seal juvenile records. In re T.V.T.,

675 S.W.3d 303, 307 (Tex. 2023) (citing Carrillo, 480 S.W.2d at 617). In

such cases, the parties remain adverse and have the requisite stakes to

pursue the case. The government’s interest is in defending its conviction

and allowing any continuing consequences to be imposed. The

defendant’s interest is not merely in clearing his name but in avoiding

those consequences. “In no practical sense, therefore, can [a] case be said

at 165. Notably, this case was not brought as a class action, ostensibly for

legitimate reasons relating to litigation funding. We express no view of whether

this case, if brought as a class, could avoid mootness; it is enough that it cannot

avoid mootness in the form in which it has been brought.

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to be moot” under those circumstances. Fiswick v. United States, 329 U.S.

211, 222 (1946). We have made the same point regarding various kinds

of mental-health adjudications that entail continuing consequences.

See, e.g., In re A.R.C., 685 S.W.3d 80, 83 (Tex. 2024) (“An involuntary-

commitment order imposes collateral consequences under federal and

state law.”); State v. Lodge, 608 S.W.2d 910, 912 (Tex. 1980) (similar).

But a dispute remains live under the collateral-consequences

exception only if the otherwise-moot claim itself is the source of a

sufficiently concrete collateral consequence. If the consequence would

exist regardless, then the case remains moot. When a juvenile defendant

was required to register as a sex-offender under state law regardless of

the underlying federal adjudication, no concrete interest justified

maintaining the litigation: “True, a favorable decision in this case might

serve as a useful precedent for respondent in a hypothetical lawsuit

challenging Montana’s registration requirement on ex post facto grounds.

But this possible, indirect benefit in a future lawsuit cannot save this case

from mootness.” Juv. Male, 564 U.S. at 937.

The capable-of-repetition exception likewise applies only in rare

circumstances. Williams, 52 S.W.3d at 184. To invoke it, a plaintiff must

prove that “(1) the challenged action was too short in duration to be

litigated fully before the action ceased or expired; and (2) a reasonable

expectation exists that the same complaining party will be subjected to

the same action again.” Id. (emphasis added). In other words, the same

dispute still divides the same parties despite the seeming termination of

the dispute’s initial cause, thus generating a “reasonable expectation” of

that cause’s recurrence. In this sense, the capable-of-repetition exception

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dovetails with two circumstances that we have described as not leading

to mootness in the first place: mere voluntary cessation and when there

is a non-speculative basis for finding that adjudicating the case and

granting the desired relief would give the plaintiff a tangible and concrete

benefit. The capable-of-repetition exception recognizes genuine, ongoing

disputes as not really moot at all, but it screens out cases where any

resulting judgment would be unlikely to directly affect the actual parties’

interests. See, e.g., In re Uresti, 377 S.W.3d 696, 696 (Tex. 2012) (“Uresti

has not shown a reasonable expectation that he will be subjected to the

same action again.”).

The central point is that both exceptions only help determine

whether a case that seems moot at first glance really is—essentially

addressing the same question we considered in response to Grassroots’s

assertion that the case was not even facially moot. The fundamental

requirement, to which there is no exception, remains unchanged: the

presence of a live dispute between parties with continuing adverse

interests that can be settled by a judgment that will actually affect the

parties’ rights.

We are not alone in recognizing that the term “exception” might be

a bit of a misnomer. See, e.g., Eden, LLC v. Justice, 36 F.4th 166, 170 n.4

(4th Cir. 2022) (noting that “ ‘exception’ in th[e] [mootness] context is a

colloquialism” (citing Lighthouse Fellowship Church v. Northam, 20 F.4th

157, 162 n.4 (4th Cir. 2021))). The point is important because if the

“exceptions” are perceived as allowing courts to adjudicate cases that are

not actually live, it would be tempting to embrace the erroneous view that

mootness is a purely “prudential,” rather than a distinctly constitutional,

45

doctrine. Contra, e.g., State v. Roat, 466 P.3d 439, 446 (Kan. 2020)

(concluding that “[i]f mootness were jurisdictional, we could not have such

court-created exceptions”). Whatever we call them, therefore, it is

important to correctly view the “exceptions” as in no way purporting to

be exemptions from the constitutional mandate that we have described.

With that foundation, we now turn to Grassroots’s contention that

the capable-of-repetition exception saves its case from mootness. The

court of appeals correctly concluded that the first prong of the exception

was met because the period for detention at Dilley and Karnes is eleven

days on average, a period far too short to complete litigation. 665 S.W.3d

at 141. But it also correctly identified the problem with the second prong.

As the U.S. Supreme Court has put it, a “mere physical or theoretical

possibility” is insufficient to invoke the capable-of-repetition exception.

Murphy v. Hunt, 455 U.S. 478, 482 (1982). Because we do not presume

mootness, when there are circumstances like those discussed above in

Part II.B.1, we will not regard a claim as moot on its face. But as

Grassroots has acknowledged, we do not presume that one of the

“exceptions” to mootness applies—the exception must be established. The

evidence required is essentially the same as what a plaintiff must identify

to rebut a defendant’s establishment of facial mootness: a basis that is not

speculative or hypothetical for why continuing the litigation would

tangibly and directly affect the plaintiffs’ rights. As both we and the U.S.

Supreme Court have put it in the context of the capable-of-repetition

exception, “there must be a ‘reasonable expectation’ or a ‘demonstrated

probability’ that the same controversy will recur involving the same

complaining party.” Id. (emphasis added); see also Uresti, 377 S.W.3d at

46

696 (observing that “a reasonable expectation must exist that the ‘same

complaining party will be subjected to the same action again’ ” (quoting

Williams, 52 S.W.3d at 184)).

But to support its capable-of-repetition argument, Grassroots

points to the same deposition testimony of its expert, who stated that ICE

has broad discretion to re-detain released immigrants for any reason. We

have already explained why that testimony cannot satisfy the required

standards. See supra Part II.B.1.b. Grassroots cannot show a

“reasonable likelihood” that any plaintiff in the case will be subjected to

any of the steps leading to a restoration of the injury that a judgment

could redress, much less all of them, and thus cannot establish the

capable-of-repetition exception.

3

After concluding that Grassroots’s claims are moot and that the

capable-of-repetition exception did not apply, the court of appeals then

addressed “whether appellees’ second asserted exception to mootness

applies: the public-interest exception.” 665 S.W.3d at 142. According to

the court, this exception “expands the capable-of-repetition exception to

include parties other than those involved in the current case.” Id.

In one sense, it is hard to blame courts for pushing the envelope.

If several “exceptions” to mootness already exist, after all, why not one

more? But the public-interest exception differs from the existing

exceptions not just in degree but in kind. Every recognized exception

carefully ensures that the minimum requirements for constitutional

justiciability are satisfied and never leads to an advisory opinion. But the

public-interest exception is a true exception. It allows adjudication of

47

admittedly non-live disputes when a judge finds an issue to be of broad

public importance. This “exception” does not steer clear of constitutional

impediments. It hurtles toward them. If invoking it is necessary for a

court to reach the merits, an advisory opinion is the guaranteed outcome.

Each of the constitutional provisions that we have identified as

relevant to justiciability confirms our analysis. “The judicial power” has

never been understood to encompass rendering judgments that could only

benefit non-parties. A “case” has always been understood to require

genuine adversity by those who are party to it. The separation-of-powers

clause leaves to the other branches any dispute that lacks the features of

a “case” that can be adjudicated by a court. The open-courts provision

allows individuals to bring suit if a judgment can remedy an actual injury

or prevent one that is threatened and imminent. And the Constitution

expressly leaves advisory opinions about legal issues that are not reduced

to adversary litigation to the attorney general, at least until a justiciable

dispute arises.

Grassroots argues that a number of other states have embraced

the public-interest exception and that we should adopt it too. The U.S.

Supreme Court rejected a similar argument in DeFunis. 416 U.S. at 316.

The Court acknowledged that the public-interest exception would save

the case from mootness in Washington’s state courts. Id. But it refused

to follow suit because the exception was inconsistent with the federal

Constitution’s limitations on federal jurisdiction. Id. at 319–20.

Neither has this Court been unaware that some other states’

judiciaries can issue various forms of advisory opinions. See, e.g.,

Delaney, 396 S.W.2d at 859. Each state is free to chart its own course

48

based on its own constitutional text and tradition, which may include

allowing various kinds of advisory opinions, such as those generated by

the public-interest exception. See, e.g., Duhon v. Gravett, 790 S.W.2d 155,

156 (Ark. 1990).

After all, some states’ constitutions have, for centuries, not only

expressly allowed but have compelled certain advisory opinions. Well

before the U.S. Constitution’s ratification, several state constitutions

directed state high courts to answer requests for advice. In

Massachusetts, for example, “[e]ach branch of the Legislature, as well as

the Governor and Council, shall have the authority to require the

opinions of the Justices of the Supreme Judicial Court, upon important

questions of law, and upon solemn occasions.” Mass. Const. of 1780,

part II, ch. III, art. II. That obligation remains intact to this day. Nearly

verbatim text was considered but rejected at the federal convention, see,

e.g., 2 The Records of the Federal Convention of 1787, at 341 (M. Farrand

ed., 1911) (“Each branch of the Legislature, as well as the Supreme

Executive shall have authority to require the opinions of the supreme

Judicial Court upon important questions of law, and upon solemn

occasions.”). But as ratified, the Constitution leaves federal courts with

only unadorned “judicial power,” which excludes advisory opinions.

We do not purport to instruct our colleagues on our sister states’

high courts how to best interpret their own law. But the roots of our

justiciability doctrines lie in the text of the Texas Constitution, not in the

traditions, experiences, or choices of other states. We therefore reiterate

that “[w]hile other jurisdictions possibly having different constitutional

provisions may hold differently from our present holding,” “[i]n the

49

absence of a constitutional provision authorizing the Texas courts to

render advisory opinions, such power does not exist.” Burch, 442 S.W.2d

at 335.

The framers and ratifiers of the Texas Constitution were students

of the federal Constitution and those of other states, borrowing language

from them for use in our own Constitution. Texans were no less aware

than those who framed and ratified the federal Constitution that people

in other states had authorized their judiciaries to sometimes issue

advisory opinions. But the constitutional limitations adopted by the

People of Texas are far closer to the federal model. Our Constitution

contains every justiciability limit in the federal Constitution and then

adds more of its own. See supra Part II.A. The People have amended the

Constitution once and only once to grant us authority that did not lie

within “the judicial power” by allowing us to answer questions certified

by federal appellate courts—that is, to provide a kind of advisory opinion

when we could not adjudicate the case itself. See Tex. Const. art. V, § 3-c.

The fact that only such advisory opinions have been constitutionally

authorized underscores that all other advisory opinions remain as firmly

inconsistent with “the judicial power” of our State as they have ever been.

Of course, should they deem it expedient, the People may again amend

the Constitution to authorize advisory opinions of whatever sort and to

whichever courts they choose.

We note again that this Court has already at least forecast our

decision today. In Morath, we explained:

We do not have power to decide moot cases, whether they

“involve a matter of public concern” or not. Indeed, the need

for courts to mind their jurisdictional bounds is perhaps at

50

its greatest in cases involving questions of public

importance, where the potential for undue interference with

the other two branches of government is most acute. If

courts were empowered to ignore the usual limits on their

jurisdiction, such as mootness, when matters of public

concern are at stake, then we would no longer have a

judiciary with limited power to decide genuine cases and

controversies. We would have a judiciary with unbridled

power to decide any question it deems important to the

public. That is not the role assigned to the courts by our

constitution.

601 S.W.3d at 789 (internal citations omitted). Whether that statement

was necessary for the decision in Morath or not, we think it accurately

summarizes the law, and to the extent it was not already so understood,

we adopt that statement from Morath as a holding. 2 A genuine

controversy must exist between the parties at each stage of proceedings,

including on appeal. Williams, 52 S.W.3d at 184. There can be no

exception to that foundational justiciability principle.

We hold that the “public-interest exception” violates the Texas

Constitution’s justiciability limitations. No court in Texas may invoke

that doctrine as a basis to reach the merits of a case that otherwise is not

2 Arguably, an even older authority rejects the public-interest exception

for moot cases. In General Land Office v. OXY U.S.A., Inc., the State argued

that “the ‘collateral consequences’ exception is applicable because of both the

public interest in resolving this important question of administrative law, and

the ruling’s effect upon the numerous administrative hearings which are

pending.” 789 S.W.2d 569, 572 (Tex. 1990). With some understatement, we

observed that “[t]his is not the type of case which was envisioned when this

exception was created.” Id. And we held that “the fact that an important

question of administrative law is involved, the resolution of which would aid the

agency, is not sufficient impetus for this court to render an advisory opinion.”

Id. (emphasis added).

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justiciable. We expressly disapprove any case to the extent that it has

relied upon the public-interest exception or has acknowledged the public-

interest exception’s validity as a method to assess subject-matter

jurisdiction. 3 We express no other views about anything stated in those

opinions.

III

A court always has jurisdiction to decide its own and the lower

courts’ jurisdiction. The court of appeals concluded that this case was

justiciable. This holding was erroneous because Grassroots’s claims are

moot, the “capable of repetition” doctrine does not save them, and there

is no “public-interest exception” that authorizes Texas courts to resolve

3 We accordingly disapprove of the jurisdictional holdings in at least

these cases: In re Guerra, 235 S.W.3d 392, 432 n.198 (Tex. App.—Corpus

Christi–Edinburg 2007, pet. denied); Securtec, Inc. v. County of Gregg, 106

S.W.3d 803, 810–11 (Tex. App.—Texarkana 2003, pet. denied); Nueces County v.

Whitley Trucks, Inc., 865 S.W.2d 124, 126 (Tex. App.—Corpus Christi–Edinburg

1993), dismissed sub nom. FDIC, 886 S.W.2d at 766; Buchanan, 848 S.W.2d at

304; Tex. Dep’t of Pub. Safety v. LaFleur, 32 S.W.3d 911, 914 (Tex. App.—

Texarkana 2000, no pet.).

We likewise disapprove of the recognition of the availability of the public-

interest exception in at least the following cases: City of Georgetown v. Putnam,

646 S.W.3d 61, 73 (Tex. App.—El Paso 2022, pet. denied); Port of Corpus Christi,

LP v. Port of Corpus Christi Auth. of Nueces County, No. 13-19-00378-CV, 2021

WL 2694772, at *8 (Tex. App.—Corpus Christi–Edinburg July 1, 2021, no pet.);

NextEra Energy, Inc. v. PUC, No. 03-19-00425-CV, 2020 WL 4929778, at *4 (Tex.

App.—Austin Aug. 21, 2020, pet. denied); Gates v. Tex. Dep’t of Fam. & Protective

Servs., No. 03-15-00631-CV, 2016 WL 3521888, at *6 (Tex. App.—Austin June

23, 2016, pet. denied); Fiske v. City of Dallas, 220 S.W.3d 547, 550 (Tex. App.—

Texarkana 2007, no pet.); Hatten v. Univ. Interscholastic League, No. 13-06-

00313-CV, 2007 WL 2811833, at *5 (Tex. App.—Corpus Christi–Edinburg Sept.

27, 2007, pet. denied); In re Guardianship of Keller, 171 S.W.3d 498, 501–02

(Tex. App.—Waco 2005), rev’d sub nom., Zipp v. Wuemling, 218 S.W.3d 71 (Tex.

2007); Ngo v. Ngo, 133 S.W.3d 688, 691–92 (Tex. App.—Corpus Christi–

Edinburg 2003, no pet.).

52

moot cases. We therefore reverse the court of appeals’ judgment with

respect to its jurisdictional conclusion. Likewise, because the court of

appeals lacked authority to proceed to the merits, we vacate its judgment

with respect to its decision on the merits of the challenge to the rule, and

we also vacate the judgment and orders of the district court. We

accordingly render a judgment of dismissal without prejudice for lack of

subject-matter jurisdiction.

Evan A. Young

Justice

OPINION DELIVERED: May 30, 2025

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