*1 participating me- that Jimenez resisted comply Relator has failed to with
diation. contract with
the terms Jimenez
setting up preconditions arbitration. either the Warehousemen or
Under theories, the arbitration
HIM/Kemiron not See triggered.
clause has been Ware
housemen,
488; HIM,
F.3d
Kemiron,
44;
F.3d at express any opinion regarding do not
We right
whether relator has waived upon precondi-
arbitrate satisfaction
tions, only right compel arbitra- yet under terms
tion has accrued express any we
of the contract. Nor do
opinion regarding whether lawsuit despite in the trial court
should continue dispute fact that an alternative resolu- agreement
tion and arbitration exists
(whether not), but enforceable or Jimenez complied it and the relator
has not it. On the undis- properly
has not invoked here, trial
puted presented record refus-
court did abuse its discretion compel
ing arbitration. petition writ of mandamus is
denied. HENDEE, Individually
Edd
and as Executive Director C.L.O.U.T., Appellant, Craddick, DEWHURST, Tom
David Leg Texas, Appellees. Board, Budget
islative
No. 03-06-00501-CV. Texas, Appeals of
Court of
Austin. 25, 2007.
May July
Rehearing Overruled *5 Polland, Austin, Rogers, Gary
David M. Associates, Houston, appel- Polland & for lant. Malish, Malish, Foster,
Christopher Milios, L.L.P., Cowan, Blair & Danica L. Mashburn, Gen., Timothy Asst. Solicitor Austin, Counsel, for appellee. General PATTERSON, Before Justices PEMBERTON and WALDROP. OPINION PEMBERTON, BOB Justice. judgment opinion our and We withdraw 17, 2007, April and substitute issued The has over- following place. its Court Defendants’ motions ruled rehearing and en banc reconsideration. Supreme response In to the Texas Neeley v. decision in West Court’s case,1 Legislature, the 79th Orange-Cove public supreme held that Texas’s court Neeley West-Orange In Cove Consolidated (Tex.2005). system an uncon- finance constituted Dist., S.W.3d 746 school dep. Sch. during jurisdiction. The district court April its third called session of and May 2005, enacted H.B. which the Gov- granted plea specifying May on signed ernor into law 81 of that grounds, and Plaintiffs’ claims dismissed year. Among things, other H.B. at- against the State Defendants want shift tempted to of the some burden of jurisdiction. funding schools from public Texas’s local interlocutory bring appeal this and,
property taxpayers to the state to from the district court’s order. See Tex. end, appropriations made additional 51.014(a)(8) §Ann. Civ. Prac. & Rem.Code $3,825 ending billion for biennium (West Rio, Supp.2006); Perry v. Del In August June Edd (TexApp.-Austin Hendee, individually and as executive di- (Tex. 2001), dism’d, 239, pet. rector group Lowering of the Citizens Our 2001). affirm court’s order We the district (C.L.O.U.T.) Unfair (collectively, Taxes part, part, dismissal reverse Plaintiffs), against filed suit the Lieutenant remand for proceedings further consistent Governor, the Speaker House of opinion. with this Representatives, Comptroller, and the Legislative Budget members of the Board BACKGROUND (LBB),2 all in capacities, their official Texas, statutory seeking provisions State of declarations Constitutional and that H.B. 1 was unconstitutional un- jurisdictional turning Before is- lawful. allegation Plaintiffs’ central is that presented appeal, sues helpful the appropriation called for in H.B. 1 to *6 statutory consider the constitutional and caused the Defendants to ag- exceed the in context which arise. gregate biennial cap growth on the rate of 22(a) VIII, Article section of the Texas of appropriations VIII, under article sec- provides: Constitution tion 22 of the Texas Constitution and chap- In no biennium of growth shall rate ter 316 of the government code. These of appropriations from state tax reve- provisions mandate the “rate of by nues not dedicated constitution growth appropriations from state tax growth exceed rate of the estimated revenues” by not dedicated the constitu- economy. legislature state’s The tion not exceed the “estimated rate of proride by general procedures shall law growth of economy.” the state’s Tex. implement this subsection. Const, VIII, 22(a); § art. Tex. Gov’t Const, (West 22(a). 2005). § § Code VIII, Ann. All Tex. art. An “ap- 316.001 de- (collec- except propriation” fendants Comptroller legislative refers to enact- Defendants”) tively, the “State plea authorizing filed a ment state funds to be ex- property gave speaker. stitutional appointed by tax and members Tex. legislature 322.001(a) (West 2005). until June 2005 to enact correc- § Gov’t Code. Ann. legislation. tive at 800. Id. governor speaker The lieutenant and joint house are of the LBB. Id. chairs permanent joint 2. The LBB is a committee of 322.001(b). develops § budget The LBB Legislature comprised the Texas of the lieu- policy legislative appro- for recommendations governor, speaker tenant rep- of the house of priations, including Appropri a draft General resentatives, the chairman of the senate fi- session, 322.008(c) § ations Act Id. each committee, nance the chairman of the house (West 2005), impact and fiscal statements re- committee, appropriations the chairman of legislation. garding proposed other committee, ways the house and means three (West 2005). § 314.001 appointed by members of the senate lieu- governor, tenant and two additional house The pended particular purposes. speci- not exceed the priation amount requires constitution elsewhere VIII, “[n]o fied in the resolution. art. money Treasury shall drawn from be 22(b). Further, these expressly limits in pursuance specific appropriation alter, repeal do not amend or the Texas law; by any appropriation made nor shall “pay-as-you-go” Constitution’s balanced money term longer be made III, budget article 49a. limitation of section Const, See Tex. years.” than two art. 22(c). Id. art. VIII, § “pay-as-you- VIII, § 6.3 tax not dedi- “State revenues go” requires limitation that be- generally cated to one this constitution” refers any containing an appropriation fore bill could legislature source funds passed can be considered and be sent appropriate; others include non-tax reve- certify governor, comptroller must nues and is dedi- tax revenues whose use appropriated that each amount is within cated the constitution. amount to be of revenue estimated (b) VIII, Subsection of article section corresponding available affected legislature authorizes the to override 49a(b).4 Id. art. Ill, § funds. appropriations limit imposed otherwise Article of a section was borne (a) resolution, by adopting subsection late It was tax reform effort 1970s.5 house, approved vote by a record of each “Tax Relief components one of several finding emergency that an exists and iden- proposed Amendment” to the constitution tifying emergency, of that nature year legislature’s appro- legislature which case the earlier the 65th excess parties appear agree membership each 3. The that the relevant fifths vote the total biennium, House, appropriation “biennium” is the state’s fiscal no excess of September odd- which runs from 1 of each anticipated the funds cash revenue of through August year of the suc- numbered appropriation from which such is to ceeding year. odd-numbered containing shall No bill made be valid. passed shall be considered as III, provides 4. Article 49a in full: section or be sent the Governor for consideration Comptroller *7 until unless the of Public (a) duty Comptroller It of of shall be the the Accounts endorses his certificate thereon Regular Public Accounts in advance of each showing appropriated is that the amount Legislature prepare Session the and of the within amount estimated to be available Legisla- submit Governor the and to Comptrol- When in the affected funds. the upon convening under ture its a statement ler finds the an bill exceeds fully showing oath condition financial estimated he shall revenue endorse such Treasury of the of the last the close finding and return to thereon the House period proba- fiscal and an estimate of the originated. which same Such information receipts ble the then and disbursements for immediately be made to both shall known year. be current fiscal There shall also Representatives Sen- the House and the itemized es- contained in said statement an steps necessary and the be taken ate shall anticipated timate revenue based bring appropriation to the reve- such within received the laws then in effect that will be nue, by providing either additional revenue by and State from all show- for the sources reducing appropriation. or during ing the fund accounts to be credited Const, Ill, § Tex. 49a. art. succeeding and state- biennium said ment shall contain such other information Larry Toomey, Tax John Greene & The 5.See may required by Supplemental as be law. Act B Tex. .J. any Spe- statements shall be submitted Reform (1979) (contemporaneously observing, with Legislature cial and at such Session of taxpayer- notable California reference may necessary to show other times as 1970s, "Proposi relief measures of the probable changes. Leg (b) has invaded the Texas Except emergency im- tion 13 sentiment case of in the islature.”). necessity perative public and with a four- from the biennium to during special economy” a session current called for purpose by Dolph Briscoe. by “dividing Governor biennium the esti- the next Leg., appar H.J.R. 65th 2d C.S. It was personal total income for the mated Texas ently provision. modeled on Tennessee by estimated Texas to- next biennium the May, See The Con Janice C. Texas State income for current bienni- personal tal (1996). stitution: A Guide 310 (b). 316.002(a)(1), Reference “Using § um.” Id. VIII, Article was section ratified methods, statistical the board standard voters November 1978. by projecting shall make the estimate VIII, As the second sentence of Article the biennium the estimated Texas through 22(a) en- requires, legislature section by the personal reported total income implement provision. acted laws to Department of Commerce United States regular legislature during The did so successor in function.” Id. its January session imme- beginning 316.002(b). 316.002(c) However, § section diately VIII, following article section 22’s comprehen- contemplates more “[i]f generally ratification. See Acts 66th growth sive definition of the rate of of the R.S., Leg., intervening ch. 302. With some economy ap- is and is developed state’s amendments, these now enactments are governor, proved” committee of the codified in chapter government 316 of the governor, of the speaker lieutenant house 9, § code. See id. art. representatives, comptroller, “the 316.001, code, government Section may use that board definition.” VIII, tracks the mandate article section 2005). (West 316.002(c), §§ 316.005 The 22(a): growth “The rate of of appropria- that such an represent State Defendants in biennium tions from state tax revenue alternative, comprehensive” “more defini- not dedicated constitution adopted. tion has never been exceed the estimated rate of the growth 316.002 the LBB to requires Section also economy.” state’s Tex. Ann. Gov’t Code “the appropriations establish level of § provisions 316.001. chapter Other biennium from tax reve- current address how growth “the estimated rate of nues not dedicated constitution.” economy” the state’s is calculated 316.002(a)(2). figure is itself This that, provide for ensuring mechanisms estimate, relating partly an reasons 22(a) article requires, section of appropriations.6 the nature Even with- growth appropriations rate of does action, legislative out exceed the estimated rate of additional growth charged LBB as well as economy. appropriation, state’s amount of *8 source, with key responsibilities several this funding may change during within a bien- statutory scheme. nium, as when economic changes such originally impact not conditions forecasted 316.002(b),
Under is to section the LBB of composition funding the amount or “the rate of determine both estimated subject to an Be- appropriation. sources growth the economy” of the state’s “level of appropriations cause the the compar- appropriations growth by rate of tax current biennium from state revenues from of ing figures those the baseline the by the constitution” is calcu- dedicated to current biennium the next biennium. 2005). biennium, 316.002(b) (West during the it is § lated current Id. It calculates state’s of both actual of growth comprised appropriations “the estimated rate of of the regard- following public attached to their We base the observations documents Plaintiffs chiefly petition. ing appropriations on the nature of required by items information sec- (appropriated tax revenues the of non-dedicated 316.002, required al- the LBB is to pub- tax revenues that have tion non-dedicated ready Register lish the Texas the spent, proposed been and whose amount ascertainable) “a description thus items of information and finally and estimated methodology reve- the and sources used in the appropriations of non-dedicated tax (West 2005). (the § the Id. nues amount of such funds that calculations.” 316.003 spent anticipates pursuant LBB will be After LBB approves items appropriations of the during remainder 316.002, it required by section information biennium). Reflecting potential must submit the information to the com- changes in the amount or fund- unforeseen composed governor, mittee of the lieuten- ing in the appropriations source later governor, speaker rep- ant house biennium, level the LBB determines “the resentatives, comptroller. Id. for the current biennium appropriations 316.005(a). days § This committee has ten by from state tax revenues not dedicated items, any adopt amendments “subject adjustments the constitution” 316.005(b). § Id. If the might make. from forecast revisions resulting revenue ten-day fails to act within the committee by subsequent appropriations or certified by are period, approved the items deemed the Comptroller.”7 316.005(c). § the committee. Id. represent applies growth The LBB “rate of of State Defendants this com- approve never these economy” to the “the level mittee “has met state’s items,” historically “the appropriations for the current biennium so that items by com- by approved tax been the inaction of the from state revenues dedicated yield appropria- mittee.” constitution” to limit, “the cap”: tions or “spending compliance “To ensure with Article amount of state tax revenues not dedicated Constitution,” Section by appropri- the constitution that could be “in transmitting prohibited LBB is from limit within the ated for the next biennium any governor legislature form” rate of established the estimated “budget appropria- of estimated either the economy.” the state’s growth of general appropriations tions” or the bill 316.002(a)(3). Reflecting potential § rate of growth until “the limit current-biennium re- adopted has appropriations been spend- the LBB’s might change, baseline subchapter.” quired ing cap expressly made “sub- calculation is 316.002(d). ordinarily § These are events ject adjustments biennial [current] later than the fifth required to occur not appropriations.”8 reg- days, respectively, seventh after 322.008(c) & public hearing” ular session convenes. Id. The LBB is to “hold (West 2005). (d) “In the absence of of each even-numbered December (ie., adopt spending legis- [LBB] action year preceding regular those session) limit,” growth of the regard- rate of testimony “to the estimated lative solicit *9 zero, to economy is be and state’s deemed ing items information proposed next meaning for the appropriations calcu- that methodology making used in tax revenues Id. from non-dedicated by 316.002.” biennium required lations Section 2005). ap- (West amount of such approves could not exceed the § Before 316.004 Legislative Budget Id. Meeting 7. Notice of (C.R. (Nov. 17, 2004) Board, Agenda Item 3 57, petition). original Ex. E to Plaintiff’s 316,
propriations priations Chapter under the current biennium. established 316.002(e).9 § Government Code. 21(f), 5, § Tex. H.R. Tex. H.R. Rule Additionally, provides 316.006 section 108, 114; R.S., 79th Leg., 2005 H.J. Tex. by majority that unless authorized vote 7.20, Tex. S. Rule Tex. S. Res. 80th house, of the LBB from each members R.S., Leg., Tex. 24. In 2007 S.J. of other budget LBB’s relating recommendations words, a that believe would bill members proposed appropriations state tax cap subject spending exceed the to a revenue not dedicated the constitution point of order. If determined meritorious may not limit on exceed the estimated and presiding sustained the chamber’s (West 2005). § appropriations. 316.006 officer, ruling prevent pas- such a would Moreover, provides section 316.008 sage of the bill until the defect is remed- “proposed limit” on appropriations is 1, 9,§ ied. See Tex. H.R. Rule Tex. H.R. “binding on the legislature respect with R.S.; 4.03, Leg., 80th Tex. S. Rule Tex. appropriations all for the next biennium Leg., S. Res. 80th R.S. made from state tax revenues not dedicat- allegations Plaintiffs’
ed absent a constitution” resolution VIII, to raise cap under article section pleading Plaintiffs’ live before the dis- 22(b). (West 316.008(a) 2005). §Id. “The trict original petition, court was their filed rules of representatives the house of and it, sought in June 2005. In Plaintiffs relief senate provide shall for enforcement” of Declaratory under Judgments the Uniform 316.008(b). § this limitation. Id. Both the Act10 based on that the claims Defendants house and senate rules effect during the 22(a) VIII, violated article section 79th Legislature’s session, third called Texas Constitution section and 316.001 of enacted, when H.B. 1 was contained virtu- government code. Plaintiffs seek “de- ally identical provisions that: claratory prevent relief to stop and uncon- illegal spending stitutional the Tex- authority Unless within the of a resolu- government.” They allege as State two tion adopted or pursuant resolutions chief how H.B. regarding ap- theories l’s VIII, 22(b),
Article Section of the Texas propriation violates article section Constitution, it is not order for the chapter theory or as well [chamber] consider for final passage chapter separation pow- violates the on third reading, on motion to concur in ers. amendments, [the other chamber’s] or on motion to adopt legislature’s a conference commit- allege that the re- report, tee appropriating quirement a bill funds the “estimated rate of treasury from the growth economy” an amount pre- the state’s be that, sumptively when added amounts previously solely growth based in Tex- income, appropriated by previously passed personal bills as’s total see Tex. Gov’t 316.002(b) (c), sent or due to sent to the Code comp- Ann. & and the troller, measure, would the limit on appro- exceed LBB’s sole reliance on are (d) (e), 1991, ap compel Supreme Subsections added in with the Court to parently responded act). an initial failure LBB to comply refusal of LBB its statuto ry requirements spending cap. to set C.R. 10. Tex. Civ. Prac. & Rem.Code Ann. 54; May, see Janice C. The Texas State Consti (West Supp.2006) §§ & 37.001-.011 (1996) (noting tution: A Guide Reference ("UDJA”). *10 twenty legislators sought had mandamus permit appropriations the text and intent of set on that basis to inconsistent with VIII, 22(a). exceeding the true constitutional limit. As a matter of article section that, complain way, Plaintiffs in this H.B. interpretation, Plaintiffs constitutional l’s unconstitutional rela- the urge, growth the “estimated rate of of to of growth tive the “real” rate economic of the en- economy” growth state’s means as to the the compared both baseline of economy, merely growth tire the biennium and when article single component personal of a income. — VIII, Regarding section was ratified. rely legislative Plaintiffs also on the histo- latter, complain the Plaintiffs that overesti- VIII, ry They ob- of article section growth have “com- mations of economic legislature apparently con- serve the pounded over the decades” correc- eventually rejected but sidered a version tion, causing spending cap the to likewise (a) of explicitly subsection that would have requirements.12 deviate from constitutional spending growth per- tied the limit to in income,11 urge intent sonal us infer Second, allege Plaintiffs that the mecha reject personal growth as the income legislature nisms has adopted imple the cap. sole for spending basis the VIII, article 22— ment and enforce section in- [personal that “this allege barometer chiefly govern in the chapter found 316 of growth] historically proven come has been ment code—constitute unconstitutional the wildly growth overstate of delegations legislative power of its economy,” causing spending caps separation-of-powers LBB in of state’s violation emergency representa- in the of exists and identifies the nature As introduced house Amendment, tives, proposed Tax legislature may provide Relief emergency, part, growth would have limited the relevant appropriations for of the amount excess legislative appropriations tax all from state (a) authorized Subsection of this section. per- to a revenue fixed annual increase of 7½ The excess authorized under this subsection Tex., Leg., cent. HJ. 2d C.S. 9 65th may specified exceed amount in the (1978). entirely provision That deleted was resolution. substitute, id. at the committee see but (d)In appropriations no case exceed shall following provision through a later added was III, provided revenues as in Article Section house floor amendment: 49a. That Article VIII the Texas Constitution provision 142-43. This version of by adding read be amended Section 21 to VIII, that became section remained article follows: as Taxpayer passed by in the Relief Amendment (a) Except provided Sec. as otherwise id., house, was deleted in senate Section, legislative appropriations committee substitute omitted from from State tax revenue for fiscal bienni- approved by that version chamber. appro- not exceed the total of those um agreed on 309. The conference committee preceding priations biennium appears language that now in article percentage than more would result from submitted to and rati- section which was percentage growth total equaling the fied the voters. during personal income biennium, reported by the previous as complaining 12. To the extent Plaintiffs are Comptroller Public Accounts. expendi- specific appropriations and about (a) (b) The hereof limitation subsection biennia, during prior opposed tures made apply appropriations and tax in- shall not forthcoming expenditures under H.B. provide necessary creases reimburse- standing appropriation, they would lack un- replace revenues ment to school districts to See principles der we discuss below. by partial of ad valorem or total abolition lost Davis, property Tex. taxes. Hoffman (c) adoption reso- legislature by (Tex.1937). If the of a approved by a vote of three- lution record house, of the members of each finds fifths *11 Const, II, alternative, allege limitations. Tex. l.13 In the Plaintiffs that art. appropriation ap- H.B. l’s total “cause[s] Plaintiffs that complain enacting also when propriations unap- even the exceed H.B. legislature upward relied on an proved staff-generated by limit billion $1.3 original spending revision of the LBB’s allege dollars.” the State Plaintiffs cap by made LBB the board —and staff—not acknowledge Defendants “based on —that which, contend, was invalid itself— prior the appropriation^] made to the Specifically, allege— and void. Plaintiffs session, special Legislature had acknowledge— the State Defendants appropriated billion Non-Dedicat- $53.0 that in approved November the LBB ed General Related Funds.” Revenue a resolution complying chapter 316 Plaintiffs concede that this left billion $2.6 $52,145 that spending set a limit of billion in appropriations non-dedicated from state appropriated could be from non-dedi tax revenues that could have been made cated during state tax revenues the 2006- exceeding “the billion staff $55.6 07 biennium.14 allege Plaintiffs also —and generated unapproved limit.”16 Because agree the State Defendants —that billion, H.B. appropriation l’s was $3.9 spending cap adjusted upward was in late allege, Plaintiffs it “caused total appropria- 2005 to billion. In contending that $55.6 unapproved tions to exceed even staff- adjustment void, empha was Plaintiffs generated by limit billion dollars.” $1.3 size statements a December 2005 LBB request Plaintiffs including declarations publication that “[t]he [LBB] instructed that “the in H.B. 1 ... appropriation adjust the level of ap staff unconstitutional basis that on the ex i[t] propriations from tax revenues not VIII, ceeds the mandates of Article Sec dedicated the Constitution and 2006- 22(a) enactment, applied tion since as 2007 spending limit calculations to reflect or alternatively that said subsequent appropriations certified is unconstitutional on the basis that added).15 by the Comptroller.” (Emphasis VIII, exceeds the mandates Article urge adjustment Plaintiffs such 22(a) Section over the applied last would have only been valid if enacted biennium, alternatively ap said legislature through general proce law propriation is unconstitutional because it dures, or at least the LBB itself extremely generous exceeds even the through a formal resolution under chapter and faulty provided by estimates adjustment 316. upward Because this is, Legislative Budget Board accord invalid, spending cap was ing calculations, to the LBB’s own vi assert, $52,145 billion, cap remained 22(a).” olation of Article Section a level undisputedly was exceeded Proceedings below subsequent appropriations for that bienni um. The State filed a plea Defendants original petition, Legislative Budget In Up Plaintiffs also Board’s "Fiscal Size alleged delegation legisla- 2005) unconstitutional (published 2006-2007 Edition” Dec. powers tive to the committee established (C.R. 58, 61, un- original peti- Ex. F to Plaintiffs’ 316.005, appear der section do tion). press appeal. this claim on 16. Meeting Legislative 14. Notice of Bud- Board, (Nov. 17, 2004) get Agenda Item 3 (C.R. original petition). Ex. E to Plaintiff’s
366
(Tex.1993)).
440,
jurisdiction17
only
pleader
the
challenging
the suffi-
446
Whether
question
has met this
is a
law
burden
pleadings; they
of Plaintiffs’
did
ciency
de novo.
that we review
Id. We construe
the
facts Plaintiffs
challenge
jurisdictional
pleadings liberally
the
and look
the
to
in
pleaded
support
or submit evidence
intent.
If
pleader’s
pleadings
do
argued
Defendants
plea. The State
affirmatively
facts
not contain sufficient
to
sufficiently
plead
that Plaintiffs failed
to
jurisdiction
the trial court’s
demonstrate
(so
or an
act
as to
standing
ultra vires
affirmatively
do
incurable
but
defects
sovereign
and that the
immunity18)
avoid
jurisdiction,
pleading
is one of
the issue
non-justiciable
present
political
claims
sufficiency
plaintiffs
should
af
be
at
questions. Following
hearing
a brief
to
opportunity
forded the
amend.
Id. at
evidence,
presented
which neither side
226-27;
R.N.,
Elgin Indep. Sch. Dist. v.
that it
district court ruled from the bench
2006,
(Tex.App.-Austin
191
272
S.W.3d
juris-
grant
the State Defendants’
would
pet.).
affirmatively
no
If
pleadings
suit.
plea
dictional
and dismiss Plaintiffs’
jurisdiction,
a
negate the existence
then
appeal
This
followed.
jurisdiction may
granted
to
plea
allowing
plaintiffs
opportu
DISCUSSION
Miranda,
nity to amend.
133
at
S.W.3d
a
appeal,
bring single
On
issue
227.
complaining that the district court erred
However,
deciding
“a court
a
the State
granting
abused
discretion
jurisdiction
required
is not
plea
plea
jurisdiction.
to the
Defendants’
con
solely
pleadings
look
Standard of review
must
when neces
sider evidence and
do so
A
challenge
a trial court’s sub
sary
jurisdictional
to resolve
issues
ject
jurisdiction may be
matter
asserted
Bland,
raised.”
at 555.
34 S.W.3d
“When
Dep’t
Texas
plea
jurisdiction.
a
to the
jurisdiction challenges the
plea
Miranda,
v.
S.W.3d
Parks &
alleged by
pleader
Wildlife
of facts
existence
(Tex.2004);
Indep. Sch.
225-26
Bland
subject matter
establish the trial court’s
Blue,
(Tex.
Dist. v.
34 S.W.3d
jurisdiction, the trial court must consider
2000).
subject mat
Whether a court has
par
relevant evidence submitted
jurisdiction
question
Mi
ter
law.
Miranda,
(citing
ties.”
133 S.W.3d at
randa,
at
226.
determina
S.W.3d
Bland,
555).
varying
To
34 S.W.3d
subject
tion
a trial court has
of whether
jurisdictional
degrees,
inquiry may
this
begins
plead
jurisdiction
matter
pleader’s
merits
also
implicate
ings.
Bland,
Id. The
has the initial bur
pleader
Compare
cause of action.
affirmatively
challenges
den of
facts that
alleging
(citing
to as
jurisdiction
jurisdic
personal
trial court’s
standing
demonstrate the
sociational
evidentiary
entailing
inquiry
Texas
“an
(citing
hear the
Ass’n
tion
cause.
Bd.,
significant
... does not involve
[that]
Bus.
Control
Air
defendant,
22(a),
adopting
Article
Although
as a
named
judg-
appropriate
Stray-
same
be enforced
Comptroller
should
Carole Keeton
—then
Court, to the extent authorized
ments of this
denying responsibility
answer
horn—filed an
party
Comptroller is not
law.” The
complained-of
well
appropriations, as
for the
appeal.
Plain-
Realignment” with
as a "Statement of
"contending that mean-
to the extent of
tiffs
on,
of,
Strayhorn, 148 S.W.3d
ingful
See McLane Co. v.
control
and effective limitations
denied).
(Tex.
pet.
App.-Austin
spending was intended
the voters
inquiry
any
into
indulge every
the substance of the claims”
inference and resolve
*13
holding
challenge
taxpayer
and
doubt in the nonmovant’s favor.
Id. at
merits),
standing did
a
implicate
presents
not
with
the evidence
fact
Whether
(describ
Miranda,
question regarding
jurisdictional
whether
determination
(Tex.2004)
(applying
preliminary hearing
should be made
a
context).
principle
summary judgment
case,
await fuller development
court,
noted,
In
previously
the district
as
jurisdictional
mindful that the
determina
challenged only
the State Defendants
tion
practicable.
must made as soon as
sufficiency
they
of Plaintiffs’ pleadings;
Miranda,
“[I]n which the juris support introduce evidence to their dictional challenge implicates the merits of However, plea. at dictional Plaintiffs did plaintiffs plea cause of action and the tach petition. appeal, evidence to their On jurisdiction evidence, to the includes attempt the State to broaden Defendants trial court reviews the relevant evidence to jurisdic their challenge attack certain if determine a fact issue exists.” Id. tional underlying facts Plaintiffs’ alterna standard, 227. This mir “generally which tive that H.B. “ex appropriation claim l’s summary rors that of a judgment under extremely generous ceeds even the and 166a(c),” Texas Rule of Civil Procedure faulty provided by Legisla estimates seeks to reconcile pre is, “the fundamental Budget according tive Board to the cept calculations, that a court proceed must not on the in violation Ar LBB’s own 22(a).” VIII, merits of a until legitimate challenges case Specifically, ticle Section jurisdiction to its they have been rec public decided” while attach to brief two “protecting] the interests of the state and conclusively ords assert establish that ... claimants in ... eases in which the H.B. did l’s not exceed subject determination of the spending cap matter of the as determined the LBB: (1) implicates parties’ April court the merits of the entirety Comptroller’s cause of action.” Id. at 227-28. Accord 79th 2006 “Revenue Estimate ingly, Session,”19 reviewing plea juris Legislature, when Third Called (2) which pleading requirement diction in 2006 memo the LBB’s April from has been met and deputy evidence has been sub director to Lieutenant Gover stating mitted support plea implicates Speaker nor and billion $3.95 case, the merits of the as all made appropriations we take true in additional could be general exceeding evidence favorable the nonmovant and from revenue “without portions petition, 19. Selected document were but not entire document. attached as Exhibits I and J to Plaintiffs’ department parks
the Article Section limit.”20 whether and wildlife acknowledge that State Defendants these gross negligence acted with so to waive the trial documents “were not before sovereign immunity under the recreational court,” judicial us no request statute). to take use It is also well-established them, urging tice of that the facts stated jurisdiction that where trial court’s de- subject them are within to reasonable pends upon whether state official’s acts dispute capable and are accurate statutory are within her constitutional or *14 ready reliable public ascertainment from plaintiff authority, alleges such as when a Tex. R. Evid. 201. sources. See sovereign ultra action to avoid immu- vires nity, may the trial court sometimes be able Plaintiffs that reply the State Defen- jurisdictional to the issue a mat- decide as seeking are liti- inappropriately dants to pleadings by ter on the con- of law based gate guise the merits of their claims in the struing statutory the constitutional and jurisdictional challenge. Allowing aof so, provisions defining authority the actor’s if “to especially them to do allowed alleged ascertaining whether the acts change theories and introduce evidence See, authority. appeal,” urge, e.g., Plaintiffs is inconsistent would exceed [on] supreme precedent Strayhorn, with court and “funda- McLane Co. denied) any process.”
mental notions of due In (TexApp.-Austin pet. event, contend, new docu- the (acknowledging that in determining wheth- bearing” no on whether the ments “have may declaratory judgment er suit be main- the complied spend- State Defendants official, against it tained a state was first ing cap. necessary, sovereign immunity light defining principles, to construe statutes of- question We will specific address powers “decide whether the [offi- ficial’s to the jurisdictional whether we consider or validly exercised her discretion act- cial] challenge and evidence that the De- legal authority.”); ed outside of her to cf. appeal fendants seek raise on as Dept. Agric. & Environ. v. Director analysis. relevant to our Howev- become Ass’n, Printing 600 S.W.2d Indus. er, sug- parties’ respective arguments (Tex.1980) (construing 265-70 constitution clarify here gest that we should some alleged ul- plaintiff determine whether principles governing broader our review. officials; had tra vires action state suggest To extent that Plaintiffs that it special issue via And exceptions).21 raised adjudicate, categorically improper jurisdictional Miranda further allow would jurisdictional jurisdictional a through plea, summary judgment-like via merits, challenges, its implicate overlap issues that acts process, alleged to the existence See notion is belied Miranda. Miranda, beyond are to have been (regarding asserted 133 S.W.3d 227-28 noted, appropriated agency’s powers, the basis for our hold previously As H.B. 1 $3,825 plaintiff billion. ing was had added this ultra that the hearing day a only one before on vires claim v. Burnam is not to Our decision Davis plea jurisdiction to other related (Tex. contrary. therefore, agency, had claims and that App.-Austin pet.). part, no In relevant inadequate might notice that the trial court a plea we a trial vacated court’s denial newly- regarding jurisdiction its over the rule jurisdiction challenged that had whether claim, inadequate opportunity to added alleged agency plaintiff had that a state arguments develop Id. & and authorities. While we director had acted ultra vires. involving n. 16. "the mer characterized issue as “statutory turning its” and construction” statutory actor’s constitutional or authori- They attempt article section 22. ty- political question invoke the doctrine self-executing the related doctrine of Yet this does mean that provisions, constitutional each of which defendants and trial courts have free rein separation-of-powers emanate from con- “require!] plaintiff prove his law, cepts. Long recognized in Texas case ... at pleading stage, any before of self-executing doctrine constitutional discovery conducted,” has been Plain as provisions is concerned with whether succeed, tiffs contend occurred here. To provision confers determinate sufficiently challenging jurisdictional defendant fact judicial permit standards ascertainment plea jurisdiction via a satisfy must and enforcement: the same initial burden in a “tradition provision A constitutional is said to be summary al” judgment conclusively ne — sufficient self-executing supplies if gating the judg existence of the fact—and *15 rule right given means of which the proper ment is in such if only instance may enjoyed and protected, be or the plaintiff present controverting cannot evi duty imposed may enforced; be is raising dence a genuine issue of material self-executing merely when it indi- Miranda, fact. 133 at S.W.3d 227-28. principles, laying cates down generally, More a trial court must exercise rules principles means of which these deciding sound discretion in ju whether a given of force law. risdictional implicating determination Neeley, at (quoting 176 S.W.3d 782 Mitch merits “should preliminary be made at a Bank, 361, ell v. County City Nat’l 91 Tex. or hearing await a development fuller of (Tex.1898) 880, 43 case, S.W. (quoting 883-84 T. mindful that this determination Cooley, Constitutional Limitations 99-100 must be made soon practicable.” as (6th 1890))). ed. 227; Bland, Similarly, “political see 34 It S.W.3d question,” at as it least has been defined that a follows trial court’s decision to de (1) courts, the federal is one that involves jurisdictional termine implicating issue “a lack of judicially discoverable and man particular merits at a preliminary (2) ageable it,” resolving standards for or stage case development may of be so arbi textually “a trary unreasonable, demonstrable constitutional given the state of record, political commitment to a de coordinate that it constitutes an abuse of partment.” (quoting at 777-78 Baker Burnam, discretion. Davis v. Cf. Carr, 186, 217, 691, 369 U.S. S.Ct. S.W.3d (Tex.App.-Austin (1963)). L.Ed.2d 663 pet.) no (vacating trial court’s of denial jurisdictional plea turning statutory on The State Defendants argue that article construction to alleged determine whether VIII, 22(a), by requiring section that “[t]he vires; acts were ultra defendant inad had legislature general shall provide by law issue). equate notice argue to brief and procedures subsection,” to implement this including determining method “the question/self-executing Political consti- growth rate of estimated of the state’s provision tutional economy,” a “textually embodies demon- The State argue Defendants strable constitutional commitment” of the district court’s of dismissal Plaintiffs’ these matters to the legislature. See Tex. Const, 22(a). VIII, claims should be affirmed because the art. section And subject jurisdiction court lacked matter to requirement no “[i]n biennium shall provide a remedy for any alleged growth violation the of appropriations rate of from power Legislature
state tax revenues not dedicated shall cities, towns, and enact laws to enable constitution exceed the estimated rate of ... Com- villages provide Workmen’s growth economy,” state’s Legis- pensation ... and Insurance urge, provide Defendants does not suffi- for the laws provide lature shall suitable judicial ciently permit definite standards to of in the administration such insurance determination and enforcement. payment of municipalities said and for article equate The State Defendants costs, pol- charges, premiums 22(a) section to the constitutional to be icies insurance the benefits provision City Corpus addressed paid thereunder. Pleasanton, v. City Christi 154 Tex. Const, No Ill, (repealed Tex. art. (Tex.1955). In City 2001). ques “the We held that vember
Pleasanton, the supreme applied court is within tion what a ‘suitable’ law self-executing doctrine of constitutional By its power of a court to decide. XVI, provisions to article section 59 nature, com very political question it is Constitution, it calls legislature which declares that mitted because beyond a pure public policy decisions development of all “[t]he conservation and City, City Bridge competence.” court’s the natural [are] resources this State at 415. rights public requires and duties” and *16 legislature may laws article sec “pass all such be Plaintiffs contend that Const, 22(a) VII, article comparable tion is appropriate thereto.” Tex. art. Constitution, 1 of and section the Texas XVI, provi- § 59. The court that this held ju Court’s emphasize Supreme the Texas provide sion did not courts basis de- is risprudence holding provision that this clare “what of conduits and reser- types prohibiting of self-enforcing to extent voirs transportation be used for the under it inconsistent laws and that claims water, storage lawfully and of obtained non-justiciable present political do not lawfully used” or “declare the use of VII, provides: 1 section questions. Article types certain of conduits and reservoirs to being diffusion general knowledge A of Legislature, be unlawful when the nec- of liber- preservation essential essary implication, has declared them to be it people, of shall rights ties and Pleasanton, 276 at City lawful.” S.W.2d of of the State duty Legislature 803. provision suitable to establish and make rely The also on a State Defendants of an for the maintenance support and prior decision of this Court which we system of free schools. public efficient III, 61 Const, held that the former article section VII, supreme The Tex. art. did not confer the Texas Constitution chal repeatedly reaffirmed that court has judicially right. Texas Work enforceable provision the “efficien lenges under this Comp. Bridge City, v. City ers’ Comm’n “suitability” Tex cy,” “adequacy” 411, (Tex.App.-Austin 900 S.W.2d do not public system as’s school finance denied). III, questions. non-justiciable political Article section 61 present writ Neeley, at 176 S.W.3d 776-80.22 Most provided: See Bridge City, supreme explicitly City v. 900 S.W.2d did not hold Comm’n The court VII, denied) (Tex.App.-Austin writ "suitability” claims under article 415 supreme justiciable (emphasizing court’s hold until after our that the section were Edge “efficiency” City Neeley, ing regarding clause in Bridge Compare decision. 776-80, Indep. Kirby, Comp. v. with Texas Workers' wood Sch. Dist. S.W.3d words, recently, Neeley, the court assumed defendants’ “the arbiter of edu- deciding overseeing without policy, the Baker v. Carr cation and such issues test applied testing development, to the as curriculum and Texas Constitution VII, approval, reaffirmed that claims textbook and teacher certifica- under article Rather, tion.” present judiciary’s duty section did not political ques legal decide the properly tions. Id. While issues before acknowledging that arti VII, policy matters. The dictating cle Legisla section 1 “commits to the ture, ap- constitutional standards provide the most democratic branch of the judicial propriate basis for review and government, authority to determine determination. the broad range policy issues in provid education,” ing public id. at I, 778-79; Id. at see also Edgewood court reiterated that duty is not “[t]his (“By express S.W.2d at 394 constitutional committed unconditionally legisla mandate, legislature must make ‘suit discretion, ture’s accompa instead is provision able’ system for an ‘efficient’ nied standards.” (quoting purpose the ‘essential’ ‘general diffu Edgewood Indep. Kirby, Sch. Dist. 111 sion of knowledge.’ While these are ad (Tex.1989) (“Edgewood mittedly precise terms, pro do I”)). As for whether those “standards” must, vide a which standard this court judicial capable enforcement, were so, when upon called to do measure supreme court stated: constitutionality of the ac legislature’s tions.”). agree
Nor do we with the defen- dants the constitutional standards Neeley rejected similarly court of adequacy, efficiency, and suitability VII, contention that article section 1 was are judicially unmanageable. These not self-executing susceptible and not standards import spectrum a wide judicial provisions. action to enforce its *17 admittedly considerations and are im- 176 at 782-83. recognizing While precise, VII, but are not without con- that article section 1 not was “self- tent. ... judiciary The is in executing” well-accus- of mandating sense to applying specific through tomed substantive standards means which the legisla- crux duty of which ture comply is must with its under reasonableness. that say provision, This is not to it that the court held that was “self- standards VII, executing” leg- article section 1 to the extent of prohibiting involve no political islative action beyond provi- inconsistent with the judiciary’s considerations sion: power to determine. We have acknowl-
edged that much
design
VII,
of the
of an
The standards of article
1—
section
adequate public
system
efficiency,
education
cannot
adequacy,
suitability
—do
judicially prescribed.
be
Litigation over
a particular
dictate
structure that
of
adequacy
public
may
system
education
of free public schools must have.
judicial
well invite
but
policy-making,
We have
this repeatedly....
stressed
accepted.
VII,
the invitation need
be
But
...
article
section
dictates
judiciary’s
choice is not
public
system
between
what the
education
cannot
VII,
complete abstinence from article
inadequate
be:
it cannot be so
it
issues,
being,
section
provide
general
the State
does not
for a
diffusion
(Tex.1989)
I”),
task.”).
("Edgewood
was
which a court has undertaken such
only
"the
of
we
instance which
are aware in
provisions
“the
ing:
constitutional
were
of
or so inefficient
dis-
knowledge,
general
only in
self-executing
prohibiting
tricts which must achieve this
conflict-
knowledge
preclude
diffusion of
do not
sub-
did not
ing laws and
statutes
stantially equal
to available reve-
provisions.”).
access
passed to effectuate the
mission, or so
perform
nues to
Plaintiffs that the
agree
We
with
of its
unsuitable that
cannot because
un
Supreme
jurisprudence
Court’s
purpose.
structure achieve its
VII,
1 compels
section
us to
der article
Thus,
agree
we
State defen-
VIII,
that article
section
is self-
hold
VII,
dants that article
section does not
executing
prohibiting
to the extent of
declaring
provide the courts a basis for
with its
legislative action inconsistent
systems
or finance
will
what education
provisions, and that Plaintiffs’ claims
satisfy
pro-
alone
its standards. But
non-justiciable
present
violations do not
is
insofar as it
self-executing
pro-
vision
legis
political
Although
questions.23
any system that
fails
meet
hibits
authority make
delegated
lature is
those standards.
VIII, section
implement
article
laws
(footnotes omitted). For this
Id. at 783
22(a),
dele
this
not the sort of broad
distinction,
supreme court relied on the
appro
gation to enact “laws
County City
Nat’l
rationale Mitchell
Pleasanton,
City
priate” at
issue
Bank,
County
Our is further informed pres- standards have been violated do Neeley court’s that observations non- non-justiciable ent a political question, we justiciable rare, political questions are id. cannot affirm the district 779-80, court’s order of City and that Pleasanton dismissal based these doctrines. instance in sole which it has used the self-executing doctrine of constitutional appropriation Unlawful provisions preclude judicial action. The State Defendants further at 782-83. are also We mindful of the standing lack contend supreme court’s observations that while that their claims are sovereign barred the Texas empower Constitution does not immunity they not, because have and can judicial engage in legislative branch not, assert valid claim that H.B. l’s policymaking in the guise of constitutional plead is unlawful. Plaintiffs interpretation, permit neither does it standing ed that have as “residential duties, courts avoid their when called taxpayers,” an allegation business upon, to strike down laws that are incon- construe, we in the context of their other sistent with provisions. constitutional allegations, they pay to assert at 776-82. the supreme As court observed taxpayer taxes that could establish standi when first summoned to strike down act ng.24 Supreme The Texas has ex Court Republic Congress: plained general, taxpayers do not “[i]n have not
[W]e been unmindful of the a right bring gov suit to contest magnitude involved, of the principles decision-making gov ernment ... because respect every and the due to the popular operate ernments cannot if citizen government.... public branch Fortu- that a who concludes official has however, nately, people, granted for the the func- the right abused his discretion is *19 judiciary tion in to deciding bring constitu- come into court and such official’s Bland, questions public tional is not one which it at is acts under review.” 34 Keith, liberty cannot, to v. (quoting decline.... as 555 Osborne [We] S.W.3d (Tex. legislature may, avoid a measure 142 Tex. 177 200 S.W.2d 1944)). approaches standing by because it the confines of the is conferred Unless statute,25 constitution; by it pass cannot be- must show as a rule taxpayers [we] 24. question The State "do not that 25. the UDJA Defendants Plaintiffs do contend that taxpayer standing Hendee is a the facts set forth to confer as tax- under alone suffices them pleadings.” payers. in the
374 “exceeds even the they appropriation have the H.B. 1 particularized
that suffered faulty extremely estimates generous that injury distinct from suffered Budget Legislative general public standing provided in order to have to they issues—as challenge government dispositive action or a Board.” The assert right. law, appeal controlling public at 555-56. Texas have evolved — however, validly pleaded have long recognized important has whether Plaintiffs raised, briefed, or taxpayer theory each were not exception general to this rule: court. enjoin developed in standing equity has the district sue funds, illegal expenditure public even jurisdic plea In their showing injury. a distinct tion, that Defendants contended State pleadings that Plaintiffs contend per the use of regarding claim Plaintiffs’ within this ex- allege bringing facts them spending cap did sonal income set ception. standing The foundation of their allege conduct because validly unlawful is theory they their contention that have complied had State Defendants that, if proven, sufficient facts alleged code, government of the section 316.002
would establish that H.B. violates article personal required which the use VIII, (which, chapter section As for whether section income measure. reason, any ex- they illegal would render VIII, article might violate 316.002 itself penditures appropriation). under the made did not Defendants section State Const, VIII, § See Tex. art. (forbidding other than comment address that claim expenditure pursu- of state funds “but invalidating “if Plaintiffs succeed that made specific appropriations ance (which 316.002(b),” injunctive relief law”).26 reasons, For the same be requested) would Plaintiffs had not urge pleaded claim have valid presumes “premature” the law because that is not barred ultra vires action comply Defendants would See, sovereign immunity. e.g., Cobb invalidi with a of the statute’s declaration Harrington, 144 Tex. 190 S.W.2d questions ty. appeal, response On (Tex.1945) sovereign (recognizing argument, the during from the oral Court immunity bar does not claim of ultra vires aspect to address one parties begun Co., acts); McLane Plaintiffs’ of a whether determination H.B. a valid claim that allegations conclude that the district assert We if the standard 1’s is unlawful: court would have abused discretion establishing of article dismissed on Plaintiffs’ a violation this basis claims (1) 22(a). parties that the personal use section concur income arbitrariness, is appropriate barometer” of “the estimated rate of standard “sole ap has court growth economy” supreme of the state’s causes the standard that the public spending plied challenging on that to claims Texas’s caps permit set basis VII, under article unconstitutionally appropria system excessive school finance tions, Neeley, at 783- appropria and that H.B. such an section 1. See (2) addressed tion; claim that 85.27 Yet much remains their alternative arbitrary it is taken 27. An action is when The State Defendants raise several other *20 princi guiding rules or without reference disputing arguments whether Plaintiffs have (citing Neeley, Gener ples. 176 S.W.3d pleaded standing adequately under the tax- Tire, Kepple, 970 S.W.2d al Inc. argu- payer exception. We address those (Tex.1998)). legislative enactment Whether opinion. this ments in the next section of is a arbitrary and therefore unconstitutional concerning apply (considering how this at 445-46 associational standard would here. parties Because the have not had an standing appellant sponte),28 there sua adequate opportunity develop these is- are chal principle limits to this where the sues, the district court would abused jurisdictional lenge concerns evidence. by dismissing discretion Plaintiffs’ where, here, Miranda indicates that as Davis, claim on this basis. See 137 S.W.3d jurisdictional fact challenge concerns at 335 & n. 16. merits, challenges that implicates the such (1) court, must raised in the trial
Similarly,
the State Defendants
(2)
separately challenge
by jurisdictional
did not
be supported
the district
evidence
subject
jurisdiction
court’s
matter
over
that conclusively negates the
existence
Plaintiffs’
claim
H.B.
alternative
l’s
challenged jurisdictional
fact. This
appropriation,
even
the LBB’s own
“generally
standard thus
a “tradi
mirrors”
316.002(b),
measures under section
exceed
summary
tional”
judgment motion. Mi
spending
ed the
On
as
cap.
appeal,
previ
randa,
(citing
tion the legislature constitution affords the may appear, er undesirable the latter fashioning public system school finance sat- Legis- must on the other hand examine the isfying requirements "adequacy,” "effi- carefully lature’s choices to determine ciency,” "suitability” recognizing while require- those whether choices meet the judiciary's proper enforcing role in these By steering ments of the Constitution. requirements: course, Judiciary can assure Legislature's If the choices are informed people’s guarantees under the Constitution guiding principles properly rules and relat- protected straying pre- are into the is, public ed to education—that if the rogatives Legislature. arbitrary system are choices —then (footnotes omitted). and citations provi- does violate the constitutional sion. instances, appellate In such must courts VII, For article section as with other petition, plead consider the construed in the provisions, authority and, "[t]he final to deter- favor, necessary, er’s if review the entire mine adherence to the Constitution resides any supports record to determine if evidence " said, Judiciary.” with the As we have 'a subject jurisdiction. matter Texas Ass’n of Bd., judges opinion mere difference of [between Bus. v. TexasAir Control (Tex. 1993). legislators], where reasonable minds *21 376 protects independent grounds summary It the less
goal and more. also —much presented to the injured judgment the evidence—not interests of the state and See, e.g., Ins. one, trial court. Cincinnati like in claimants cases which Life Cates, (Tex. Co. v. 927 S.W.2d 626 subject the the of matter determination 1996). compels that Miranda We believe jurisdiction implicates of the court the regarding the same result the State Defen the of action. parties’ merits of cause attempt jurisdictional to attack facts dants’ timely The the in a standard allows state appeal. with evidence on litigation to extricate itself from manner However, if it truly immune. re- is v. Independent Bland School District fact finder the resolution serving the Blue also be instructive. As dis- jurisdictional of facts that im- disputed below, in detail the case involved a cussed claim plicate the merits of the or de- appeal from a its school district’s denial of fense, preserve right the to parties’ we plea jurisdiction the the challenging at present permanent the of their case trial. standing taxpayers merits to seek a plea injunction against expen- the a the a purpose Similar to school district’s relating jurisdiction, which is to defeat a cause of ditures funds construc- building. tion of school S.W.3d the has not waived action which court, had In trial district immunity (usually before the sovereign had presented building that the evidence litiga- the full state has incurred costs constructed, already implicated been which tion), summary judg- purpose “ standing taxpayers. plaintiffs’ to sue patent- ‘to eliminate ments Texas is trial court had refused consider The ly claims unmeritorious and untenable ” that it was evidence the belief bound Brand, v. defenses.’ Casso S.W.2d only pleadings, ruling consider (Tex.1989) (quoting City Court later held erro- Supreme the Texas Auth., v. Houston Clear Creek Basin Id. In on the trial neous. at 555. reliance (Tex.1979)). 589 S.W.2d 678 n. 5 not to consider the evi- court’s decision By requiring the state to meet sum- dence, plaintiffs attempted had not judgment proof mary standard appeal, On contrary offer evidence. Id. one, protect plain- like this we cases not to con- they urged supreme court “put on their case having tiffs from giving sider district’s evidence Bland, jurisdiction.” simply establish opportunity on remand to have them Instead, at 554. after the S.W.3d evidentiary hearing. supreme full supports with evidence state asserts and would court stated that such a remand subject matter that the trial court lacks plaintiffs’ if the appropriate have been jurisdiction, simply require plain- we dependent on evidence standing had been tiffs, underlying facts the mer- when the disputed had and contended was subject jurisdiction matter are However, because the conclusive. intertwined, that there is a dis- to show dispute plaintiffs did “not BISD’s evidence puted regarding juris- material fact building that construction the school v. dictional issue. See Huckabee Time proceeded court to consider complete,” the L.P., Warner Entm’t Co. 19 S.W.3d undisputed evidence con- “whether this Pena, (Tex.2000); Phan Son Van project defeats cerning status (Tex.1999). standing.” claim of Id [plaintiffs’] Miranda, Here, dispute the conclusiveness summary Defendants reviewing judg of the evidence that the State When ment, appeal. present would appellate court cannot consider
377 fact, jurisdictional The we urge State Defendants This issue of as have observed, that oppor overlaps Plaintiffs are not entitled merits of with the instances, tunity dispute jurisdictional the new Plaintiffs’ claim. In such Mi- they present appeal— employ evidence seek courts randa instructs trial 17, to, the Comptroller’s summary judgment-like April procedures revised 2006 27, April protect revenue estimate and memo among things, plaintiffs 2006 other from the LBB’s their deputy against premature director —because extinction of together guise jurisdictional rulings. those documents of are conclusive claims Miranda, proof spending cap Regardless that the raised at was so 133 S.W.3d as to permit ap juris- billion additional of what State $3.95 Defendants’ new propriations. show, ultimately The State might Defendants add dictional evidence judicial that we bound attempt challenge are to take notice of their raise jurisdictional these documents and appeal inescapably these “conclusive” facts on facts they part legisla because are improperly proce- would circumvent the 1, history tive of H.B. see Humble Oil & dural protections required Miranda.29 Tex., Refining v.Co. Railroad Comm’n We that an appellate also note court’s deci- 813, 85 judicial S.W.2d 814 (Tex.Civ.App.-Austin sion to take notice of a fact on 1935, dism’d), writ may appeal do even on generally discretionary,30 so appeal because concern that appellate generally the district are reluc- courts subject jurisdiction. court’s matter tant We to do when has not so such evidence disagree. See, argu presented State Defendant’s been to the trial court. Fiorenza, ment they challenge e.g., 740, overlooks that Tran v. 934 S.W.2d jurisdictional fact-whether, 1996, existence of (Tex.App.-Houston 742-43 [1st Dist.] writ). Thus, allege not, Plaintiffs in them alternative no even if Miranda does claim, the State Defendants strictly speaking, holding exceeded the our compel spending cap as determined the LBB. we not consider the State Defendants’ 1989, writ) Wellborn, immediately Nor is (citing obvious no Judicial No jurisdictional State Defendants’ evidence is tice Article II Rules Under Texas conclusive, Evidence, necessarily though (1987)). express we Mary’s no 19 St. L.J. 20 opinion juncture. on that issue this We emphasize The State Defendants that, agree State Defendants previously least Court to a has held itself bound under their alternative claim—which assumes duty, mandatory requested even when not validity spending cap— the LBB-set parties, judicial regarding to take notice "go Plaintiffs would not have a be- basis to regulations agency published administrative dispute validly hind” and estimates made Register in the Texas or Administrative However, Comptroller or LBB. Rosiers, Code. v. S.W.2d Eckmann Des 940 dispute could nonetheless whether additional (Tex.App.-Austin pet.); no see subsequent superseded estimates also Public Util. Util. Counsel v. Pub. Office April undeveloped those made in Comm’n, 2006. Also (Tex. 1994) legal is the basis (court for the State Defendants’ appeals refusing erred to take April that the assertions memo from the order). judicial published notice of P.U.C. deputy represents LBB’s director official disagree holdings concerning We that these point, actions of the LBB More decisions, itself. regulations and administrative contemplates cases, Miranda that Plaintiffs have that which are akin to statutes and court opportunity to raise such the trial matters in logically jurisdictional would extend to the court, regardless jurisdictional of what the challenge. facts the Defendants seek to ultimately might Eckmann, evidence establish. (noting See also S.W.2d at government requires code courts to take Antonio, City judicial Regis 30. See San notice contents of Texas Martinez Code). (Tex.App.-San Antonio ter and Texas Administrative *23 evidence, jurisdictional challenge regarding proposed legislative new mendations including a draft appropriations, to General we our discretion to decline exercise session, Act each Appropriations judicial light this take notice of evidence 322.008(c); § re- impact fiscal statements neither nor of our concerns that Plaintiffs garding proposed legislation, id. other opportunity court have had the the district 314.001; § of spend- and calculations this For all of these to address evidence. As cap. reported with bills from other ing affirm, reasons, on the we cannot based committees, legisla- the ultimate legislative jurisdictional new evi- State Defendants’ an containing power tive bill dence, of the district court’s dismissal —whether amended, re- appropriation passed, is or regarding Plaintiffs’ alternative claim com- jected the LBB or its with —remains as set pliance spending cap with staff, respective with each chamber but LBB. members, who can utilize and its individual However, the district court would procedural mechanisms to resist several not have erred or abused its discretion containing appropriations passage bills delegation” dismissing Plaintiffs’ “unlawful spending believe would exceed it. claim based on record before Plain 316.006, §§ Plaintiffs ac- 316.008. cap. pleadings that claim regarding tiffs’ dem allege cordingly cannot a violation of jurisdictional onstrate fatal and incurable powers on separation constitutional Miranda, at defects. 133 226- See S.W.3d basis. allege legislature 27. Plaintiffs that standing issues Other separation-of-powers principles by
violated improperly delegating legislative pow additional, raise State Defendants spending cap to the LBB or ers over challenges to Plain- potentially dispositive Const, II, 1,§ art. its staff. See Tex. standing. previously As pleadings tiffs’ (“A interpretive commentary max settled noted, rely exception Plaintiffs power im of law is that the constitutional general standing requirements per- that upon legislature make conferred enjoin taxpayer equity to sue in mits delegated by depart laws cannot be funds, illegal even expenditure body any authority.”). ment other injury. See showing distinct However, of chap as our earlier discussion (Tex. Lara, 171,180 v. 52 S.W.3d Williams illustrates, only “delegation” 316 ter Bland, 555-56; 2001); Cal 34 S.W.3d attack is legislative power that Plaintiffs (Tex. Hull, 907, vert v. 475 908 S.W.2d merely within the assignment duties 1972) v. Osborne (citing approval legislative branch akin to each chamber’s Keith, 198, 200- 142 Tex. prior McCall, referral bills to committees (Tex.1944)); City Austin v. 01 (Tex. the entire chamber. consideration before 793-94 Tex. 68 S.W. only Middleton, contem The Texas Constitution 1902); 187 S.W. Terrell requires 1916), chamber of the plates each (Tex.Civ.App.-San Antonio committee, all bills to a legislature refer ref'd, Tex. writ S.W. (Tex.1917)). that, report must the bill before consider which contend be Plaintiffs Const, Tex. allege ation the entire chamber. that the H.B. pleadings cause their fashion, Ill, § and ille art. In similar is unconstitutional appropriation LBB, necessarily “spe joint gal, they complain committee of permanent funds illegal expenditure” Ann. of state Legislature, Tex. Gov’t Code. cific See 322.001(a), appropriation. to that pursuant for each chamber’s made proposes Const, (requiring § 6 Tex. art. policy recom- budget consideration expended state funds not be pursu- penditures “but in challenge should specific ance of appropriations made Bland, already spent. be deemed See law”). In addition to challenges 556-57.31 predicate Plaintiffs’ allegations Regarding the Defendants’
H.B. 1
illegal,
the State
argument,
disagree
first
we
that Plaintiffs
*24
Defendants contend that
fail
Plaintiffs
to
lack standing
challenge “specific illegal
to
allege illegal expenditures
sufficient
to
expenditures”
they complain
because
that
bring them within
taxpayer
the
standing
a limit has been exceeded and do not al
exception. Specifically, the State Defen-
(1)
lege that
expenditures
are directed
urge
dants
that
required
Plaintiffs were
specifically
plead
purposes.
to
that
to unlawful
expenditures
While
being
are
made
particular
many
for
illegal purposes
ends,
upholding taxpayer
cases
or
not
merely that
standing
enjoin illegal
amount of the
to
appropria-
expenditures
authorizing
tions
expenditures
would
have
challenges
legality
involved
to the
(2)
spending
exceed the
cap; and
ex-
expenditures’
those
purposes,32 we dis
suggest
The State Defendants do not
ize them to obtain
regarding
declarations
standing
challenge
Plaintiffs lack
prospec-
component
to
expenditures
issue of whether the
tive
expenditures
unlawful
excep-
under
illegal.
were
Hosp.
El Paso Co.
Dist. v.
Cf.
merely
Gilbert,
they
200,
tion
yet sought
because
have not
(Tex.App.-El
64 S.W.3d
202-03
injunction against
an
expenditures,
2001,
denied) (where
those
pet.
plaintiffs
Paso
had
request only
ap-
declarations that the H.B.
justiciable
1
controversy arising
interest in
un
propriation
expenditures
code,
made under it
property
they
der section 26.04 of
like
fact,
illegal.
are
plea
In
juris-
UDJA).
standing
wise had
to seek relief under
diction, the State Defendants contended that
Lara,
171,
injunctive
"premature”
relief would be
See Williams v.
before
52 S.W.3d
180-
(Tex.2001)
had
opportunity
comply
any
(complaint
public
83
to
funds be
might
ing expended
prison
declaration
the court
issue because
at
in violation of Estab
presumes
Clause);
Hull,
"[t]he law
that a defendant will
lishment
Calvertv.
475 S.W.2d
recognize
907,
respect
rights
(Tex. 1972) (suit
enjoin
declared
a
908
ap
funds
declaratory judgment
and will
propriated by legislature
abide
procure
site of
judgment
carrying
out
University
its duties.” Plea to
of Texas of the Permian Basin on
Jurisdiction,
(quoting
C.R. 139-40
Howell
appropriation
basis that conditions for
were
Comm'n,
met);
Keith,
v. Texas
Comp.
262,
Workers'
143 S.W.3d
v.
Osborne
142 Tex.
177
416,
2004,
denied)).
198,
(Tex.App.-Austin
433
pet.
(Tex.1944) ("recog
S.W.2d
200-01
nizing]
right
taxpaying
of a
citizen to
At least to the extent
properly
that Plaintiffs
equity
maintain an action in a court of
challenge
legality
expenditures
of future
enjoin public officials under a contract that is
made under the H.B.
appropriation,
1
we
McCall,
illegal.”); City
void or
Austin v.
conclude
standing
that Plaintiffs would have
565,
791,
(Tex.1902)
Tex.
68 S.W.
793-94
to assert that claim under the UDJA without
(same).
seeking injunctive relief. While the UDJA
expand
Middleton,
jurisdiction
does not
suggest
trial court’s
Plaintiffs
that Terrell v.
dispense
case,”
Hull,
justiciability requirements
with the
the notable “chicken salad
see
ripeness
908,
standing,
provide
it does
closely analogous
475 S.W.2d at
to this
remedy
subject
jurisdiction
where
matter
squarely supports
proposition
oth-
case and
erwise exists. Tex.
taxpayers may
Civ. Prac. & Rem.Code
enjoin
expen
sue to
state
37.003(a) (West 1997) ("A
§Ann.
court of
spending
ditures that exceed constitutional
fact,
jurisdiction
record
power
within its
has
limits. In
it is somewhat unclear wheth
rights,
legal
declare
allegedly
status and other
expenditures
relations
er the
unlawful
-”)
added);
Bus.,
(emphasis
standing upon
TexasAss'n
taxpayer plaintiff
conferred
Thus,
In
ment
threatens a substantial
taxpayers
interfer-
enjoin
sued to
governmental
school
ence with
making payments
district from
un-
actions. The
they
only
der what
contended
an
Blues’ action not
threatens BISD’s
was
invalid
lease-purchase agreement
already
in
Citicorp.
with
substantial
investment
its
school,
agree-
high
The district had entered into the
and what
now are the
help
ment to
finance the
expectations
taxpayers
construction of
settled
of other
suit,
new high
By
school.
the time of
the district who are also served
attempt
bring
allegedly
In an
this case within
ant to
unconstitutional or unlawful
Robinson,
most,
might
appropriations.
the State Defendants characterize
At
Robinson
"attacking] only
pro-
implications
standing
Plaintiffs’ claims as
have
for Plaintiffs’
chapter
cess
which the funds were allocated.”
assert their claims that
316 unlawful-
LBB,
clearly
ly delegates legislative power
are
Plaintiffs’ claims
not so limited.
to the
They challenge expenditures
already
claimed
that we
claim
have
held is barred
being
pursu-
standing
sovereign immunity.
unlawful because
are
made
lack of
school,
sponte
high
but should the action suc-
Issues
sua
raised
merits, it
in-
signal
ceed on the
would
standing
Associational
creased risks to lenders and others
the State Defendants
While
dealing
governmental entities. The
challenged
separately
have
associa
disruption
potential
government
C.L.O.U.T.,
standing
tional
we must
operations
great
taxpay-
is too
allow a
sponte. See
consider that issue sua
injury
special
with no
distinct from
er
Bus.,
Ass’n
445-46. An
public’s
prohibit
general
sue
standing
association
to sue on behalf
has
paying
goods
from
government
(1)
if:
its members would
members
already
it has
received and
and services
standing to sue
otherwise have
placed
permanent
use.
(2)
right;
organiza
own
the interests the
protect
germane
tion seeks to
are
urge
Id. at 557-58. The State Defendants
(3)
organization’s
purposes;
neither
teachers, just
that “the school districts
requested
claim
relief
nor the
asserted
Bland,
building
as
contractor in
have
requires
participation
individual
on an ex-
operations
ordered their
based
Id. (adopting
members in the lawsuit.
State,”
pectation
from
payment
from
Washington
Apple
test
Hunt v.
deprive
salary
teachers
increases
“[t]o
Comm’n,
333, 343, 97
Adver.
432 U.S.
S.Ct.
money
districts of
for their
and school
(1977)).
2434,
under these we pro- adopt tant to the State Defendants’ Finally, the concurrence would posed of Bland’s See extension rationale. any issue decline address this case Davis, 16; 334-35 & n. see concerning S.W.3d the claim al other than those Supplies, Animal Inc. v. Schus delegation also Petco leging pow unconstitutional ter, (Tex.App.-Austin S.W.3d ers. The basis is other stated of the are decision” pet.). “ripe no Given claims evidence, law, argument pleadings, this does a “fuller record and ventilation district court” would be affirming briefing us a basis for provide advisory opinion. We order. needed avoid district court’s do not ripeness view as an issue in this CONCLUSION Ripeness whether, case. concerns at the reasons, foregoing For the we affirm the brought, time a lawsuit is the facts have district dismissal of claim court’s Plaintiffs’ developed sufficiently injury such that an alleging delegation leg- unconstitutional occur, likely has occurred or is rather powers jurisdiction. islative for want of being contingent than Patter remote. However, to the extent that Plaintiffs’ re- Parenthood, son v. Planned maining two claims seek declarations that (Tex.1998). 489, 442 requirement It is a expenditures appro- future under H.B.l’s subject jurisdiction. matter Indep. Waco priation illegal, are unconstitutional or Gibson, Sch. Dist. district court erred or abused its discretion (Tex.2000). If the State Defendants have in dismissing those claims based on acted in a manner so as to violate the it, record before and we reverse those spending cap, allege, as Plaintiffs those portions of the district judgment. court’s completed actions have been and Plaintiffs’ Additionally, that, we hold while Plaintiffs ripe. claims are We also note that none of sufficiently plead failed to the associational parties suggested ripeness C.L.O.U.T., standing Plaintiffs are enti- a problem, and that remedy the con tled to leave to amend to address currence proposes rather than —remand defect. dismissal—is inconsistent with the exis tence of a ripeness defect. See id. at 853. Concurring Opinion by
The concurrence’s reference to a “fuller Justice evidence, ventilation pleadings, and PATTERSON.
briefing” may express a concern that there PATTERSON, Justice, JAN P.
is a problem here with the State Defen concurring. raising jurisdictional dants them com plaints through the procedural device of a we to Were address the issues raised plea jurisdiction opting without fully litigation, but not formed we some other device summary judg like a would speaking portfolio. ment motion. Similar concerns were Tempting speak be to to these
voiced dissenting justices in Mi *28 issues, important posture of this case randa, but carry their views did not using plea shows the inefficiencies of day. (Jefferson, See id. 235-36 jurisdiction, particularly without C.J., (Blis dissenting); id. at evidence, production of essential to force ter, J., dissenting). The concurrence judge the trial this Court—to make —and intend its comments as an invitation to the an ad hoc give advisory decision and an supreme so, court to revisit If Miranda. opinion that should be determined after a it would seem more simply say direct to so. evidence, pleadings, fuller ventilation of event, any In as an intermediate appellate briefing and in the district court than oc- court, we are bound to follow Miranda By allowing parties opt curred here. until the supreme court reverses or modi procedures out full designed to allow Petco, fies that decision. issues, and fair consideration of these we 565. To the extent the concurrence ex greater uncertainty games- introduce and presses concerns that issues have been system. manship employ- into the raised for the first appeal time on without record, ment development procedural of standard motions adequate of an we have noted those the district court allows issues to be ruled issues and remand proceedings. upon ed them for further first the district court instead appeal being raised for the first time only is- adequate record. The ripe for decision is the district court’s
sue alleging of the claim unconstitu-
dismissal delegation powers, of legislative
tional join
I in this Court’s affirmance in revers- only I otherwise concur
issue. the dis-
ing remanding this cause to
trict court. KIZER, Appellant, D.
Robert
MEYER, LYTTON, ALEN & WHIT
AKER, INC. MLAW Consul d/b/a Engineers, Appellee.
tants
No. 03-05-00652-CV. Texas, Appeals
Court
Austin.
May