14th Court of Appeals holds claims for attorney’s fees can save a declaratory judgment claim from mootness.

Vicki Ward v. Lamar University, Texas State University System and James Simmons 14-14-00097-CV (Tex. App. Houston [14th Dist.], January 12, 2016)

This is a Texas Whistleblower case. The panel previously issued an opinion (summary found here), but after a motion for rehearing, withdrew that opinion and issued a new one addressing an additional argument of mootness. However, the end result was still the trial court’s order being affirmed in part, reversed in part, and remanded.

Without restating most of the facts and holdings, this summary will simply list the differences from the prior opinion. However, for ease of reference, the general facts are simply that Ward worked in the finance department of the University System and noticed what she termed suspicious financial transactions. Her report on the subject was provided to the media and law enforcement. Afterwards, Wards duties were rearranged and she lost the ability to approve and review certain documents. She remained employed but resigned after the appeal was filed.

The original panel opinion noted a fact issue existed as to the adverse personnel action regarding the employer (Lamar) but the System is a different entity. The majority chided the trial court for sua sponte dismissing the constitutional claims; however, the dissent asserts Ward did not challenge the dismissal on appeal and the majority reversed an unassigned error. Lamar and the System argue for the first time on rehearing that Ward’s free speech retaliation claim under the Declaratory Judgments Act and the Texas Constitution became moot because she resigned before appellate briefing was filed.  The majority was not happy Lamar and the System did not address this argument in its original brief. The majority held that the claims were not technically moot because Ward sought attorney’s fees.  A party does not need to “win” to get attorney’s fees under the Declaratory Judgment Act, and therefore the claims are not moot.

The dissent asserts the claim for attorney’s fees does not save a declaratory judgment or injunction claim from mootness. The dissent goes through an analysis taking the majority’s reasoning to different degrees in order to demonstrate why the logic does not follow the law or work in practice. However, the end result is the same as the first opinion.

If  you would like to read this opinion click here. Chief Justice Frost, Justice Christopher, and Justice Busby. Opinion by Justice Busby.  Justice Frost dissented.  The attorneys listed for the Appellant are Iain Gordon Simpson and Larry Watts. The attorney listed for the Appellee is Eric L. Vinson.