OPINION
Appellants, The Houston Chronicle Publishing Co. (“Chronicle”) and Peggy O’Hare, filed suit under the Texas Public Information Act 1 and Texas Uniform Declaratory Judgment Act 2 seeking a writ of mandamus, declaratory relief, and attorney’s fees against appellee, the Honorable Tommy Thomas, Sheriff of Harris County. Both parties filed motions for summary judgment. The trial court denied as moot both motions for summary judgment. On appeal, appellants argue that (1) the trial court erred in finding that it lacked subject-matter jurisdiction over the case because the “public interest” exception to the mootness doctrine is applicable here; (2) even if the public interest exception does not apply, the trial court nevertheless erred in dismissing appellants’ claims for declaratory judgment and attorney’s fees; and (3) the trial court erred in denying their motion for summary judgment because appellants are entitled to judgment as a matter of law on their claims for mandamus and declaratory relief. For the reasons that follow, we affirm.
BACKGROUND
In the spring of 2004, Hiji Harrison was shot to death by Harris County Sheriff’s Deputy William Wilkinson during an early morning traffic stop. This was the second suspect Wilkinson had shot in the span of eight days. O’Hare, a reporter for the Chronicle, filed a request under the Texas Public Information Act, asking that the Sheriffs Department provide a copy of Harrison’s autopsy report. The Sheriff’s Department, via the Harris County Attorney’s Office, sought an opinion from the Attorney General of Texas to determine *398 whether an exception to the Public Information Act applied under the present circumstances. The Sheriffs Department, in a letter accompanying the request, stated that “the release of the requested information ... would interfere with the detection, investigation, and prosecution of crime” because the information related to a pending homicide investigation.
The Attorney General granted the Sheriffs Department’s request and concluded that an exception to the Public Information Act applied. 3 In August 2004, O’Hare and the Chronicle filed suit against Thomas, asking the court to order Thomas to release the autopsy report, and seeking a declaratory judgment regarding construction of article 49 of the Texas Code of Criminal Procedure 4 and the Texas Public Information Act. Over six months passed, and with Thomas still refusing to release the autopsy report, O’Hare and the Chronicle filed a motion for summary judgment; eighteen days later, Thomas filed his own motion for summary judgment, arguing that because he had released the autopsy report to the Chronicle the day before he filed his motion, the trial court should deny O’Hare and the Chronicle any relief they sought. The trial court subsequently denied both parties’ motions for summary judgment as moot. O’Hare and the Chronicle filed a motion for reconsideration, to which Thomas responded. The trial court denied the motion. In response to a request from the trial court, O’Hare and the Chronicle filed a motion for entry of final judgment and trial court rendered judgment shortly thereafter. O’Hare and the Chronicle promptly filed their notice of appeal.
Jurisdiction
Thomas first argues that this Court lacks subject-matter jurisdiction over appellants’ appeal because their notice of appeal was not timely filed. That is, Thomas insists that the appellate timetable began to run once the trial court denied both parties’ motions for summary judgment as moot because that was a final judgment disposing of the claims and parties in the case.
It has long been the rule in Texas that “an order overruling a motion for summary judgment [is] interlocutory in nature and hence not appealable.” Acker
mann v. Vordenbaum,
Thomas relies on
Lehmann v. Har-Con Corporation,
which held that a summary judgment order is not final unless “it actu
*399
ally disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties.”
Lehmann directed the intermediate appellate courts to “of course” analyze the record in determining whether an order disposes of all pending claims, id. at 205-06, giving the example of an order granting summary judgment that states “plaintiff take nothing by his claims against X.” Id. at 206. This would be an example of a final, appealable summary judgment order (as long as there were only one plaintiff and one defendant involved in the lawsuit). Id. The Court further said that “if the language of the order is clear and unequivocal” then the order must be treated as final (unless there is a concrete indication that the judgment was not meant to be final). Id. Lastly, the court stressed that the guiding principle in determining whether an order is final is that the right to an appeal should never be lost due to overly technical application of the law. Id. at 205.
The record does not indicate that either party treated the date the trial court denied both motions as moot as starting the appellate timetable clock — in fact it indicates just the opposite. O’Hare and the Chronicle filed a motion for reconsideration shortly after the trial court denied the motions, and Thomas filed a response to their motion for reconsideration. At the trial court’s behest, O’Hare and the Chronicle filed a motion for entry of final judgment. Given that there is no language in either order denying the motions for summary judgment as moot that would “unequivocally” mean that the parties should treat it as a final judgment,
Lehmann,
Public Interest Exception
O’Hare and the Chronicle’s first point of error is that the trial court erred in denying their motion for summary judgment as moot because the “public interest” exception to the mootness doctrine is applicable here.
“The mootness doctrine limits courts to deciding cases in which an actual controversy exists.”
F.D.I.C. v. Nueces County,
This Court has not previously decided the viability of the public interest exception, and we find it unnecessary to reach that issue here. As articulated by the court of appeals, the public interest exception permits judicial review of questions of considerable public importance if the nature of the action makes it capable of repetition and yet prevents effective judicial review. Thus, a common element of both the public interest exception and the capable of repetition exception is that the complained of action be capable of repetition yet not effectively reviewable. Even if we were to recognize a public interest exception to the mootness doctrine, this case does not meet the suggested requirements.
Id.
The Texas Supreme Court has as yet not recognized the public interest exception to the mootness doctrine and judicial restraint compels us to wait until that court decides to resolve the split in authority in the intermediate appellate courts.
See, e.g., Securtec, Inc. v. County of Gregg,
Declaratory Judgment
O’Hare and the Chronicle’s second point of error is that even if the public interest exception is not applicable, the trial court erred in ruling that the release of the autopsy report rendered the case moot instead of determining the parties’ rights and obligations under the Texas Uniform Declaratory Judgment Act (UDJA). Specifically, O’Hare and the Chronicle argue that we should instruct the trial court to construe the relevant portions of the Texas Public Information Act in relation to (1) whether appellants were legally entitled to that particular autopsy report and (2) whether, as a general proposition, autopsy reports and photographs of individuals who have died while in law enforcement custody constitute public information not subject to any statutory exception. That is, neither of these issues, so their argument goes, was resolved by Thomas’s release of the autopsy report and therefore the trial court erred in refusing to construe the act.
*401
A declaratory judgment is available only when there is a justiciable controversy between the parties.
Brooks v. Northglen Ass’n,
141 S.W.Bd 158, 163-64 (Tex.2004). That is, the Declaratory Judgment Act does not empower a court to render an advisory opinion or to rule on a hypothetical fact situation.
Id.
at 164. There are two prerequisites for a declaratory judgment action: (1) there must be a real controversy between the parties and (2) the controversy must be one that will actually be determined by the judicial declaration sought. Tex. Civ. Prac. & Rem. Code Ann. § 37.008 (Vernon 1997);
see also Brooks,
O’Hare and the Chronicle do not satisfy the prerequisites for a declaratory judgment action. There is no more need to determine, as they request, whether they were legally entitled to the autopsy report from Thomas — they received it. O’Hare and the Chronicle are thus asking for an impermissible construction of the statute based on a hypothetical fact situation.
See Brooks,
At oral argument, O’Hare and the Chronicle brought to our attention
City of Waco v. Tex. Nat’l Res. Conservation Comm’n,
We are also not persuaded by their argument that the following sentence from Thomas’s trial court filings constitutes a concession from him that there is a live controversy: “The plaintiff may or may not request future autopsy reports and the Defendant may or may not invoke an exception to the open records Act [sic ] and send the request to the Attorney General.” As noted by Thomas, in context, that sentence reads:
Plaintiff incorrectly claims that the residue of the case is appropriate for a declaratory judgment; however, Plaintiff fails to prove that there is any remaining controversy between *402 the parties. The plaintiff may or may not request future autopsy reports and the Defendant may or may not invoke an exception to the open records Act [sic ] and send the request to the Attorney General. It should be noted that Plaintiff sued Defendant for complying with the open records decision of the Texas Attorney General. Plaintiff cannot state with certainty how the Attorney General may or may not rule on a future request because each request by its nature is unique, just as each law enforcement situation is unique (emphasis omitted).
This hardly amounts to a concession that there is a live controversy.
Equally unavailing is O’Hare and the Chronicle’s argument that
The Pea
Picker;
Inc. v. Reagan
and
Texas Department of Human Services v. Benson
are analogous to the present facts.
In
Pea Picker,
local government officials had met to discuss jail conditions but did not notify The Pea Picker because they did not believe (or did not know) whether this sort of meeting fell under the statute.
Pea Picker,
The Pea Picker appealed, arguing that there was no actual controversy that would give rise to a declaratory judgment. Id. at 676. The Tyler Court of Appeals disagreed, stating, “Since the parties were obviously uncertain whether the meeting in question was required to be open” the trial court was within its power to pass on the question posed by the declaratory judgment request. Id. at 677.
O’Hare and the Chronicle contend that this parallels the current situation — even though Thomas had turned over the autopsy report, both parties were still uncertain as to whether such autopsy reports are always to be turned over in the future without exception. And they are correct, insofar as the analogy goes. However, more important for present purposes is that the reasoning of the Tyler Court of Appeals is problematic when squared with the test laid out by the Texas Supreme Court in
Brooks.
The
Pea Picker
Court, it appears to us, wrote an advisory opinion— if the meeting had already occurred, there was no live controversy, thereby precluding a declaratory judgment from resolving the controversy.
See Brooks,
As we have concluded, there is no live controversy in this case under the present facts. Therefore, we decline to follow the reasoning of the Pea Picker court.
In
Benson,
Reverend Ned Benson informed the Texas Department of Human Services that two members of his congregation had been physically and emotionally abusing their two young children.
O’Hare and the Chronicle argue that, like the plaintiff in Benson, they seek prospective relief in the form of a declaration by the trial court construing the statute relevant to the dispute. Moreover, they argue that “the Benson Court was required to consider its jurisdiction over the case ... and implicitly found that it had subject-matter jurisdiction to hear the case.”
Be that as it may, O’Hare and the Chronicle are attempting to make the holding in Benson stretch beyond its capability. The Benson Court was construing the substance of the trial court’s declaratory judgment, i.e., whether the trial court properly construed the Family Code. The question of mootness was never an issue in that case. Even granting for the sake of argument that, as O’Hare and the Chronicle put it, the Benson Court “implicitly found” that it had subject-matter jurisdiction (which, we agree, it had), the reason that court felt comfortable in affirming the trial court’s prospective relief in construing the Family Code was because
Benson had an interest in and his petition sought prospective relief from the Department’s disclosure of his name in connection with this case or others with which he could become involved. Benson’s position as a clergyman makes him likely to learn of child abuse, which he is obligated by law to report. When a question presented is one of public interest and of recurrent character, jurisdiction is not lost because a threatened act has become an accomplished fact.
Benson,
To reiterate: we agree with O’Hare and the Chronicle that the matter may be one of public interest — the facts arouse suspicion of a police officer who is too quick to resort to deadly force, certainly something the public should be aware of. However, they have shown no evidence that this is an act of recurrent character. There is no evidence of past situations or relevant case law that would lead to an inference that Thomas has a de facto policy of stonewalling the press. Moreover, if the information was as time-sensitive as O’Hare and Chronicle claim it to be, we question why nearly seven months passed from the filing of the lawsuit to the filing of a motion for summary judgment. Benson is distinguishable on this important point, and we reject O’Hare and the Chronicle’s contention that the trial court erred in refusing declaratory judgment relief. Accordingly, we overrule their second point of error.
Mandamus Relief
O’Hare’s and the Chronicle’s final point of error is that the trial court erred in denying their motion for summary judgment as a matter of law on their claims for mandamus and declaratory relief. Having already resolved their argument regarding declaratory relief, we examine them argument regarding mandamus relief.
O’Hare’s and the Chronicle’s original petition for mandamus asked the trial court to grant the following relief: “That an order of mandamus issue compelling Sheriff Thomas to release the autopsy report of Hiji Harrison.” Because O’Hare *404 and the Chronicle have been given Harrison’s autopsy report, there is nothing for us to review on appeal. Accordingly, we overrule their third point of error.
CONCLUSION
We affirm the judgment of the trial court.