Speer v. Presbyterian Children's Home & Service Agency

847 S.W.2d 227, 36 Tex. Sup. Ct. J. 511, 1993 Tex. LEXIS 13, 1993 WL 22225

• Court: Texas Supreme Court
• Decided: February 3, 1993
• Docket: D-2170
• Status: Published

Opinions

OPINION

CORNYN, Justice.

We granted the writ of error in this case to decide whether the Presbyterian Children’s Home and Service Agency (“the Agency”) is a religious corporation exempted from the general prohibition of discriminatory hiring practices contained in the Texas Commission on Human Rights Act (“the Act”).¹ Tex.Rev.Civ.Stat. art. 5221k § 5.01 (Vernon 1987).² However, at oral argument the Agency urged us to dismiss this case as moot, arguing that no live controversy exists between it and Speer. We agree. Accordingly, without reference to the merits, we vacate the judgment of the court of appeals and of the trial court, and dismiss this case as moot. See Guarjardo v. Alamo Lumber Co., 159 Tex. 225, 317 S.W.2d 725, 726 (1958).

The Agency is a nonprofit Texas corporation founded by and affiliated with the Presbyterian church. In 1988, when Georgette Speer applied for the position of senior adoption worker at the Agency, it provided child care and adoption services to needy children. During a job interview, Speer identified herself as Jewish; an employee for the Agency informed Speer that it had a policy of hiring only Christians.

The day after the interview, Speer completed the Agency’s employment application, which included the following question: “Do you feel that you can serve without reservation in this Agency, which is operated by the Presbyterian church, if you are not a Presbyterian?” Speer answered “Yes.” On June 8, 1988, Speer was sent a rejection letter informing her that the Agency hired only Christians.³

Speer then filed a claim of unlawful discrimination with the Texas Commission on Human Rights (“TCHR”). After investigating her claim, TCHR brought suit against the Agency for violating the Texas Commission on Human Rights Act. Speer also brought a suit for injunctive relief against the Agency. After a bench trial on the consolidated cases, the district court rendered judgment for the Agency, holding that it fell under the statutory exception for religious organizations. The court of appeals affirmed the judgment of the trial court. 824 S.W.2d 589 (1991). Both Speer and TCHR filed separate applications for writ of error to this court.

When this case was argued on October 6, 1992, the attorney representing the Agency informed us that the controversy upon which this case is based was moot and sought dismissal of this appeal. Both the Attorney General, representing the TCHR, and Speer’s attorney disagreed. Contrary to the dissenting justices’ contention, all parties have filed post-submission briefs, which reveal no factual dispute on the issue of mootness.

Speer seeks solely injunctive and declaratory relief; and although the Act specifically allows for compensatory relief when requested and proven, Speer seeks no money damages. Tex.Rev.Civ.Stat.Ann. 5221k, § 7.01(d)(1) (Vernon 1987). Additionally, effective January 31, 1992, the Agency withdrew from offering adoption services entirely and the Senior Adoption Worker position originally sought by Ms. Speer has been abolished. Under these circumstances, we conclude this appeal should be dismissed as moot. See General Land Office v. Oxy U.S.A., Inc., 789 S.W.2d 569, 570 (Tex.1990); Fireman’s Ins. Co. v. Burch, 442 S.W.2d 331, 333 (Tex.1968).⁴

At trial, Speer sought an injunction compelling the Agency to “hire the most qualified person for that particular position” and declaratory relief. In McKie v. Bullock, 491 S.W.2d 659, 660 (Tex.1973), we stated that when the action sought to be enjoined is accomplished and “suitable coercive relief” becomes impossible, it is improper to grant declaratory relief. The Fifth Circuit has agreed with this conclusion in a case construing the federal counterpart of the Act. See Landgraf v. USI Film Prods., 968 F.2d 427, 432 (5th Cir.1992) (holding that there is no right to declaratory relief for purposes of vindication).

The dissent offers two arguments why we should not dismiss this case as moot. The first argument relates to the merits of the case, in which the dissent claims that dismissal “endors[es] ... evasion of our state prohibition against employment discrimination.” infra 847 S.W.2d at 242 (Doggett, J., dissenting). We do nothing of the kind. Dismissal for mootness is not a ruling on the merits. Rather, the court’s duty to dismiss moot cases arises from a proper respect for the judicial branch’s unique role under our constitution: to decide contested cases. Under our constitution, courts simply have no jurisdiction to render advisory opinions. Tex. Const, art. II, § 1. Furthermore, it is hard to understand why the dissent would insist that this case remains alive when all of the requested relief has been foreclosed by the very change in circumstances the Act was designed to achieve: a party has ended the allegedly illegal hiring practice.⁵

The dissenting justices also argue that Speer’s claim for attorneys fees prevents this case from being moot, citing our decision in Camarena v. Texas Employment Commission, 754 S.W.2d 149 (Tex.1988). Camarena was a class action by farm workers who sued to challenge the constitutionality of the agricultural exemption in the Texas Unemployment Compensation Act (TUCA). The trial court granted the declaratory relief sought, but found that sovereign immunity barred the requested award of attorneys fees. Later that year, the Texas Legislature amended the TUCA to provide farm workers with unemployment coverage. Consequently, the trial court modified its judgment, holding the new amendment constitutional and enjoining enforcement of the former statute. The Texas Employment Commission appealed, contending that the amendment mooted the case. In response, the farm workers complained that the trial court erred in refusing to award attorneys fees. The court of appeals held that the trial court’s judgment was indeed moot, and that the attorneys fees were barred by sovereign immunity, but we reversed the court of appeals’ judgment, holding that the prevailing farm workers’ claim for attorneys fees prevented the case from being moot.

Here, the dissent would hold that although a party has lost in the trial court and on appeal, the possibility that Speer and TCHR might prevail in their claim that the Agency is not a religious corporation in this court and overcome the Agency’s other defenses on remand keeps the controversy alive. This argument ignores the fact that Speer, who seeks only injunctive and declaratory relief, can never show her entitlement to such relief because the position of Senior Adoption Worker no longer exists and the Agency no longer performs adoption services. Speer sought no money damages because, as she testified, “I did not lose any money.” Because, as we have explained, injunctive and declaratory relief are unavailable, Speer could never be a prevailing party entitled to such relief under the Act, even on retrial, and is thus not entitled to recover her attorneys fees and costs. See Tex.Rev.Civ.Stat.Ann. art. 5221k § 7.01(e) (Vernon 1987).

Accordingly, without reference to the merits, we vacate the judgment of the court of appeals and of the trial court, and dismiss this case as moot.

Concurring opinion by GONZALEZ, J. Dissenting opinion by DOGGETT, J., joined by GAMMAGE, J.

1 . Certain employers are exempt from the general prohibition against discrimination:

This article does not apply to:

(1) the employment of an individual of a particular religion by a religious corporation, association, or society to perform work connected with the performance of religious activities by the corporation, association, or society-

Tex.Rev.Civ.Stat.Ann. art. 5221k § 5.06(1) (Vernon 1987). In 1989, the Act was amended to include under the category of “Nondiscriminatory Practices" the following:

Notwithstanding any other provision of this article, it is not an unlawful employment practice:

(2) for a religious corporation, association, society, or educational institution or an educational organization operated, supervised, or controlled, in whole or in substantial part, by a religious corporation, association, or society to limit employment or give preference to members of the same religion.

Acts 1989, 71st Leg., ch. 1186, § 16, eff. Sept. 1, 1989 (current version at Tex.Rev.Civ.Stat.Ann. art. 5221k § 5.07(a)(2) (Vernon Supp.1993)).

2 .This section of the Act provides:

It is an unlawful employment practice for an employer:

(1) to fail or refuse to hire or to discharge an individual or otherwise to discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment because of race, color, handicap, religion, sex, national origin, or age; or (2) to limit, segregate, or classify an employee or applicant for employment in a way that would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect the status of an employee because of race, color, handicap, religion, sex, national origin, or age.

3 . There is no dispute that Speer’s nonreligious credentials qualified her for the position.

4 . The dissenting justices aver that discrimination claims do not become moot when the employer stops the allegedly illegal hiring practices. 847 S.W.2d at 243 (Doggett, J., dissenting). In each of the cases cited by the dissent, the defendant ceased its illegal conduct but continued operations, thus making the threat of future illegal conduct real. In this case, however, the defendant has discontinued providing adoption services entirely, thereby rendering futile the requested injunctive relief even if Speer were ultimately to prevail. The cases cited in support of the dissent's contention are, therefore, inap-posite. See e.g., Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.1972); Parham v. Southwestern Bell Tel. Co., 433 F.2d 421 (8th Cir.1970); Local 53 v. Vogler, 407 F.2d 1047 (5th Cir.1969); Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir.1968).

5 . The dissent obliquely adverts to racial discrimination, infra 847 S.W.2d at 243, but there is no such allegation in this case.