Opinion
No. 04-05-00813-CV
Delivered and Filed: April 19, 2006.
Appeal from the 225th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CI-14466, Honorable Janet P. Littlejohn, Judge Presiding.
The Honorable John J. Specia, Jr., is the presiding judge of the 225th Judicial District Court, Bexar County, Texas. The Honorable Janet P. Littlejohn, presiding judge of the 150th Judicial District Court, Bexar County, Texas, signed the order being appealed.
Dismissed As Moot.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Third party defendants-appellants Bryan Collier, Rissie Owens, Mike Lozito, the Texas Department of Criminal Justice, the Texas Board of Criminal Justice, the Texas Board of Pardons and Paroles, and the Texas Department of Criminal Justice-Parole Division (collectively, the "Department") appeal the trial court's order denying their plea to the jurisdiction signed on October 21, 2005. Because an actual controversy no longer exists in this case, we dismiss the appeal as moot.
Background and Procedural History
In April 2005, Michelle M. Grant filed an original petition for divorce against Gerry Grant in Cause No. 2005-CI-06640. The trial court entered temporary orders on May 12, 2005, appointing the parties temporary joint managing conservators of their minor child. The temporary orders included the following provisions:
IT IS ORDERED that GERRY GRANT shall have possession of, and access to the child . . . at all reasonable times by agreement of the parties, and short of any agreement, GERRY GRANT shall have the child at all times as set forth in a Standard Possession Order, of the Texas Family Code.
Having been notified that GERRY GRANT is currently on parole for possession of child pornography and that as a condition of his continued parole by the Texas Board of Pardon[s] and Paroles his visitation with the child is currently requi[r]ed to be supervised, nevertheless the Court takes note that it is agreed by the parties, and therefore Ordered that GERRY GRANT'S periods of access and possession shall be unsupervised and or unchaperoned.
On June 2, 2005, Gerry Grant filed a third party petition against the Department seeking temporary and permanent injunctions prohibiting the Department from conditioning his parole on supervised visitation with his child and from imposing any conditions that would prevent Grant from being in public with his child or at Grant's residence. On June 10, 2005, the trial court granted a temporary injunction against the Department enjoining it from conditioning Gerry Grant's parole on supervised visitation with his child, and from imposing any conditions that would prevent Grant from being at his residence with his child or in public with his child. None of the third party defendants appeared. On June 28, 2005, the Department filed a motion to vacate the temporary injunction for lack of jurisdiction, a plea in abatement, and a plea to the jurisdiction asserting sovereign immunity. Grant filed a motion to sever the third party action from the divorce proceeding, which was granted on September 7, 2005. An agreed final divorce decree appointing Michelle and Gerry Grant joint managing conservators of their minor child was signed on September 8, 2005. The third party action between Gerry Grant and the Department, in which the plea to the jurisdiction was pending, was severed into Cause No. 2005-CI-14466. The court denied the Department's plea to the jurisdiction on October 21, 2005. The Department timely filed notice of appeal from the order denying its plea to the jurisdiction. See Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2005).
In their brief, the third party defendants assert they were not served with process before the injunction was granted; the record does not reflect any service of process on the third party defendants.
Analysis
In its reply brief filed February 28, 2006, the Department states that the restriction on Gerry Grant's parole has been modified to permit unsupervised contact with his child. The Department goes on to state that, "[h]owever, this does not resolve the issues raised in this appeal as the Final Judgment in the divorce action is too broad and violates the state Child Safety Zone statute. See Texas Government Code § 508.187. Therefore, the issues raised in this appeal are still ripe for consideration." On March 6, 2006, we issued a show cause order requesting the Department to further clarify why it believes the issues raised in this appeal are not moot. The Department responded by merely repeating the conclusory statement contained in its reply brief, without providing any additional authorities for or explanation of its position that this appeal is not moot.
Attached to the reply brief is a copy of the Parole Division's advisement form stating that effective February 24, 2006, Gerry Grant has been granted permission to have unsupervised contact with his biological child, and requiring Grant to notify his supervising officer prior to any visit with his child. The form states that this modification does not affect any other conditions of Grant's parole, and does not allow contact with any other children other than the child named in the form, without prior approval and an approved chaperone.
The mootness doctrine limits courts to deciding cases in which an actual controversy exists between the parties. Federal Deposit Ins. Corp. v. Nueces County, 886 S.W.2d 766, 767 (Tex. 1994). A controversy must exist between the parties at every stage of the legal proceedings, including the appeal. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). Neither the Texas Constitution nor the state legislature has vested us with the authority to render an advisory opinion. Tex. Const. art. II, § 1; Speer v. Presbyterian Children' s Home Serv. Agency, 847 S.W.2d 227, 229 (Tex. 1993).
Based on the record and briefing before us, it appears that the actual controversy between Gerry Grant and the Department ceased to exist when the Department modified the conditions of Grant's parole to permit unsupervised visitation with his child. The Department has failed to explain to the Court how or why permitting Grant unsupervised access to his own child violates the Child Safety Zone provision of the Government Code, particularly in view of its own parole policy and procedures contained in the record. See Tex. Gov't Code Ann. § 508.187 (Vernon 2004) (providing in part that a parole panel shall establish a child safety zone applicable to a sex offender releasee if the panel determines that a child was the victim of the offense). An appellant carries the burden to provide sufficient argument and authorities to adequately inform the appellate court of the parameters of the controversy between the parties on appeal. Tex.R.App.P. 38.1. Moreover, the Department is not appealing the final divorce decree between Michelle and Gerry Grant, nor could it. This appeal arises from the third party action between Grant and the Department concerning his parole conditions, which was severed from the divorce proceeding. Because the Department has given Grant the relief he sought in the third party action, i.e., modification of his parole conditions to allow unsupervised access to his child, there is no longer an actual controversy between the parties to this appeal. Accordingly, the appeal is dismissed as moot.
The record contains a copy of the Texas Department of Criminal Justice Parole Division's Policy and Operating Procedures for sex offender releasees, which provides in relevant part under Part 1 "Containment Approach — Internal Controls," Subpart I, that "[c]ourt orders from state district or U.S. district courts have precedence over special conditions. For example, if an offender has a special condition prohibiting him from contact with children, but a district court awards the offender custody of his children, then the offender would be allowed to live with his children. In such cases, the supervising officer shall request that the Board modify the special condition by restricting the offender from having contact with any children other than those children named in the court order. . . ."