Texas Ass'n of Business v. Texas Air Control Board

TEXAS OF ASSOCIATION

BUSINESS, Appellant, AIR

TEXAS BOARD and CONTROL Commission,

Texas Water

Appellees.

No. C-9556.

Supreme Texas. Court of

March

Rehearing May Overruled Golemon, Checkley,

R. Kinnan James W. Jr., Axe, Jr., Albert R. Scott R. Kidd and Alexander, Austin, Douglas appel- W. lant. Caroom,

Douglas Mary Kelly, E. Dan G. Morales, Nancy Lynch, N. D. Du- William Johnson, Austin, gat, Amy III and R. appellees.

OPINION CORNYN, Justice. of Business

The Texas Association (TAB), members, brought of its on behalf seeking a declaratory judgment action ruling empowering state that statutes two levy penal- agencies administrative civil regulations con- ties for violations of their flict courts and with provisions Constitution. agencies denied TAB’s Intervenors,1 claims, along with two seeking a declaration filed counterclaims League party's faculty 1. The the court’s of Women Voters and the Lone cerns a to invoke Chapter Star the of the Sierra Club intervened in subject jurisdiction. has been matter Once it aligned suit were as defendants with the plaintiff, subject matter invoked court’s Texas Air Control Board and the Texas Water jurisdiction by the of de- is not affected status Doggett Commission. Justice contends that the aligned in interest fendants or intervenors with standing of the Intervenors should be addressed defendants. along disagree. Standing with TAB’S. We con- regulations legislation protect public the same for this was statutes comport provi- by regulating health “col- those and welfare lection, handling, storage, disposal sions. solid waste.” Id. at The Texas Water trial, Following a bench the trial court Quality designated primary Board was TAB, sought by denied the relief and as agency Disposal Act’s to effectuate the Intervenors, requested by the State and 4(f). purpose. Air Con- Id. at Like the § declared that section 4.041 of the Texas Board, Quality trol the Water Board was Act, Clean Air sections 26.136 and 27.1015 regula- its authorized to enforce rules and Code, of the Texas Water and section of8b tions in district court. The Solid state Act, Disposal the Texas Solid Waste as well Disposal provided Waste Act same rem- the regulations promulgated the as rules edies Air at as the Clean Act. See id. statutes, under those are constitutional 8(c). § regard to open jury the courts and provisions. statutory affirm In en- trial We the trial the last of the relevant actments, 1969, judgment jury Legislature court’s as it relates to TAB’s the Texas challenge judgment promulgated trial its the Water reverse a revised version of Revision, open challenge. Quality Quality to TAB’s Act. Water Act— R.S., 760,1969 Leg., ch. 61st Tex.Gen.Laws regulatory An overview scheme Act, Quality By 2229. the Water legislature agen- enacted these given power develop Board was to understanding to cies is essential of this quality perform plan, statewide to water 1967, Legislature In case. Texas enact- investigations, adopt research and and to Air ed the Clean Act of Texas. Clean Air necessary effectu- rules and issue orders to Texas, R.S., Leg., Act of 60th ch. purposes. ate Act’s Id. at 3.01-3.10. § Tex.Gen.Laws 1941. The Clean Air Act Quality provided Act the same Water designed to safeguard was the state’s air Management the Solid Waste remedies as compromising resources without the eco- Air Act id. at and the Clean Act. See development nomic of the state. Id. at § 4.02. § The Act created Air the Texas Control granted Quality authority pro- Originally, Board and it the to neither the Water mulgate regulations accomplish Air had the the Board nor the Control Board 4(A)(2)(a). goals. power penalties directly in the levy Act’s Id. at In the civil § regulations or event the Air Control Board determined event it that its determined Instead, regulations each that a violation of its had oc- orders had been violated. curred, against required it was first file suit authorized to enforce those board was Only dis- regulations Upon judi- in district in district court. court. violator power trict to assess civil cial determination that a violation of the court had regulations penalties. Air Control Board’s had oc- curred, two remedies cumulative were substantially changed legislature available, injunctive prohibit relief fur- in 1985. That this enforcement scheme fine

ther violations and assessment year the Air Control Board and Water $1,000 ranging day $50 to each (formerly Control Commission the Water 12(B). persisted. at the violations Id. § Board) granted power to assess were $10,000 directly per Legislature penalties up civil enacted day per Disposal the Solid Waste Act. Solid Waste violation.2 Both Act, R.S., pursue Disposal Leg., option 61st ch. retained the 1969 bodies also express penalties in purpose 1320. The civil district court. Tex.Gen.Laws Tex.Health R.S., 14, 1985, Leg., (amending Disposal Waste Act codified at Act of June ch. Solid 69th 1976), (Vernon (amending art. 4477-7 Tex.Rev.Civ.Stat.Ann. § 1985 Tex.Gen.Laws currently Air as amended at Tex.Health & Texas Clean Act codified at codified Tex.Rev.Civ.Stat. 361.252; 15, 1985, Safety (Vernon 1976), currently Act of June § Ann. art. 4.041 codified Code R.S., 5.007, Safety Leg., 1985 Tex.Gen. § 69th ch. & Code § as amended 382.- Tex.Health 088; 15, 1985, R.S., Leg., (amending Tex.Water Code Act of June 69th ch. Laws 6.001, 26.136). § 1985 Tex.Gen.Laws § Safety 361.224, 382.081; The Defendants and Intervenors counter- §§ & Code 26.123. This was the seeking declaratory judgment claimed Tex.WateR Code regulatory scheme in effect the dis- when statutes, rules, regulations judgment trict court rendered in this case.3 not, face, challenged by TAB do on their courts and

After the Air conflict with Control Board or Water penalty, Commission assesses a the offend provisions of our constitution. The trial timely pay er penalty must either granted the court Defendants’ and Interve- However, file suit in district court. a su- requested declaratory judgment and nors’ persedeas deposit paid or cash bond into an request declaratory denied TAB’s for a account, in the full amount of escrow judgment. The court also denied TAB’s prerequisite penalty, is a review. request injunctive relief. Safety 382.089(a), Code §§ Tex.Health & appealed directly TAB to this court. See 361.252(k),(l); (b), 26.- § Tex.Water Code Tex.R.App.P. 22.001(c);4 136(j). party A who fails to make a cash § Tex.Gov’t Code deposit rights court, or file a bond forfeits all In TAB this has limited its Safety review. challenges to claims of unconstitutional de- Tex.Health & Code 361.252(m),382.089(c); Tex.Water Code §§ of a our nial trial and violation of 26.136(k). § open provision. constitution’s courts alleges

TAB that it is a Texas not-for- profit corporation, that its do members Standing I. throughout Texas, business and that it is represent authorized to any its members on case, Before we reach the merits of this impact matter that have an on their we first consider the matter of the trial businesses. own; jurisdiction, court’s as well as our specifically

TAB we determine TAB has filed this suit under the whether Uniform Act, Declaratory Judgments standing challenge reg- the statutes and Tex.Civ.PRAC. 37.001-37.011, alleging that §§ question. & Rem.Code ulations in Because TAB’s some of its subjected members had been standing bring readily this action is not penalties civil assessed either the Air apparent, jurisdiction because as Control Board or the Water Commission. depends well as that of the trial court on TAB alleged further that all of other its issue, requested supplemental operate pur- members their businesses briefing standing argument at the oral pertinent suant provisions response, of parties this case. insist Act, Texas Clean Air the Texas Water any question standing of has been Code, or Disposal the Texas Solid Waste waived in the trial court and cannot Act pursuant or rules or orders issued raised the court for the first time on provisions put those were at “substantial appeal. disagree. We (if certainty)” being risk not of assessed penalties by civil Air Control Board or Subject jurisdiction matter is essen the Water Commission. Thus this suit authority tial to the of a court to decide a challenge does not specific of instances Standing implicit concept case. in the Air Control Board’s or the Water Commis- subject jurisdiction. matter exercise, exercise, sion’s or threatened requirement stems from two limitations on Instead, penalty power. civil TAB’s subject jurisdiction: separation matter challenge suit is a facial to the constitution- and, Texas, ality powers doctrine of this administrative enforcement provision. scheme under the Texas Constitution. Subject jurisdic- matter Although 4. "An appeal may directly some amendments have been be taken to the su- since, preme court an order of a trial court adopted they are not relevant to the issue granting denying interlocutory perma- an or Dutton, presented in this case. See Diana C. injunction ground nent on the of the constitu- (1991) (summariz- 45 Sw.L.J. 389 Environmental, tionality of a statute of this state.” Tex.Gov’t ing statutory developments). 22.001(c). § Code 444 is never McAdo presumed

tion cannot be Alabama Fed’n Labor v. State 450, 461, waived.5 65 ry, S.Ct. U.S. (1945); Co., L.Ed. Firemen’s Ins. jurisdiction One limit on courts’ 333; Juice, 442 S.W.2d at Puretex Lemon under both the and federal state constitu Inc., 160 Tex. at at 783. separation powers tions is the doctrine. opinion brought by An issued a case II, 1; Valley Forge Tex.Const. art. party advisory without because College v. Christian Americans United remedying rather or immi than actual State, Separation Church harm, only a judgment nent addresses 464, 471-74, 757-60, U.S. 102 S.Ct. hypothetical injury. Wright, See Allen v. (1982); Seldin, L.Ed.2d 700 Warth 737, 751, 468 U.S. 104 S.Ct. 490, 498, 2197, 2204, 45 U.S. 95 S.Ct. courts, like fed L.Ed.2d also, (1975); Antonin L.Ed.2d 343 see Sca courts, jurisdiction eral have no to render lia, Standing The Doctrine an Essen opinions. such Powers, Separation tial Element (1983) n. 18 Suffolk U.L.Rev. powers separation doctrine is Cohen, (noting dicta of Flast v. the only constitutional basis for stand 83, 100, 392 U.S. 88 S.Ct. law, ing. standing is also an Under federal (1968), suggesting L.Ed.2d 947 that stand III aspect of the Article limitation of separation powers is unrelated to the judicial power “cases” and “controver disavowed). doctrine has since been Under Morton, sies.” v. 405 U.S. Sierra Club doctrine, governmental authority vest 727, 731, 1361, 1364, 92 S.Ct. 31 L.Ed.2d department government in one cannot ed (1972). III, comport 636 To with Article department be exercised another unless may only federal hear case when court expressly permitted by the constitution. litigant or has been threatened with separation have Thus we construed injury. Forge Valley has sustained an powers prohibit article courts from issu 471, 102 College, 454 U.S. at Christian opinions ing advisory because such is the S.Ct. at Under the Texas Constitu function of the executive rather than the tion, standing implicit open courts department.6 Firemen’s Ins. Co. contemplates provision, access Burch, 331, (Tex.1969); 442 333 v. S.W.2d litigants suffering an courts for those 553, Corbin, v. 122 Tex. 62 Morrow S.W.2d injury. provi courts Specifically, 641, (Tex.1933). Accordingly, 644 we have provides: sion interpreted Declaratory Judg the Uniform open, every per- All shall be and courts Act, ments & Tex.Civ.Prac. Rem.Code lands, injury him, done in his son for an 37.001-.011, merely procedural to be §§ goods, reputation, shall have person deciding already for device cases within a remedy by due course law. jurisdiction legislative court’s rather than a enlargement power, permitting added). I, a court’s (emphasis 13 Const. art. § Tex. opinions. advisory the rendition of Fire standing prereq Because is a constitutional Co., 333; men’s Ins. 442 S.W.2d at United maintaining a suit fed uisite under both Delaney, Ins. 396 Serv. Co. v. S.W.2d law, look to the more eral Texas we Life Prods., 855, (Tex.1965); 863 experience of the jurisprudential extensive California Juice, Inc., Puretex 160 Inc. v. Lemon subject any guid federal on this 586, (1960). Tex. 334 780 may yield. ance it law, standing Under federal a lack of feature of distinctive an advi deprives subject jurisdic- opinion is it decides an a court of matter sory abstract binding of such parties. of law tion is an element question without because Doggett subject juris- analysis federal 6. The is the same under the 5. Justice confuses matter e.g. Correspondence Jus- See personal jurisdiction. constitution. Only lat- diction tices, Jay Chief Justice John Letter from ter can be waived when uncontested. See TEX. Washing- George President Associate Justices to R.CIV.P. 120a. ton, Tribe, 8, August Ameri- 1793 in Laurence H. 1988). (2nd n. can Law 73 3 ed. Constitutional

445 Indus., County, 175 Mont. 197, 184, 186, v. Alta Verde 573 P.2d Carr jurisdiction. v. (1977); State ex rel. Albritton 1055, (5th Cir.1991); Sim 931 F.2d 1061 188 Comm’n, Moore, 502, 728, mons v. Interstate Commerce 238 La. 116 So.2d 504 Cir.1990); 1023, (7th (1959). 1026 900 F.2d Commissioner, Dept. M.A.I.N. v. Maine Subject jurisdiction matter is an is Serv., (1st 1051, Human 876 F.2d 1053 for the first time on may sue that be raised Sessions, 835 F.2d Cir.1989); 902, Haase v. par appeal; may not be it waived Schweiker, Page (D.C.Cir.1987); v. 908 786 v. In Employment ties. Comm’n 150, (3d Cir.1986); Lujan see also F.2d 153 Elec., Radio and ternational Union of - U.S. -, Wildlife, v. Defenders of 112 Workers, 782, 163 Mach. Local Union No. Heckler 2130, 119 (1992); S.Ct. L.Ed.2d 351 252, (1961); Re 352 S.W.2d Mathews, 728, 737, 104 465 U.S. S.Ct. Judgments (Second) statement (1984); Warth, 1387, 1394, 79 L.Ed.2d 646 (1982). recently c This court reit comment 422 U.S. at 95 S.Ct. at 2211. Other In erated that axiom Gorman v. Life analysis in states have followed this con Co., (Tex.), surance 811 S.W.2d e.g., their own constitutions.7 struing - denied, -, cert. U.S. S.Ct. Sec.,

Prudential-Bache Inc. Commis Because con L.Ed.2d Revenue, sioner of 412 Mass. component clude that is a of sub (1992); Bennett v. Board N.E.2d ject jurisdiction, matter it cannot be waived Colorado, Trustees Univ. of N. raised for the first time on de cert. (Colo.App.1989), P.2d appeal.8 nied, (Colo.1990); Pace P.2d If we were to conclude stand Highway Constr. Co. v. Missouri three Comm’n, appeal is unreviewable on at least Transp. (Mo. consequences could result. Terracor v. Utah Bd. App.1988); undesirable State foremost, appellate Forestry, Lands & First and courts would 716 P.2d (Utah 1986); by Sports State McClure v. impotent prevent be to lower courts from Club, Inc., and Health 844, exceeding statutory their constitutional and 370 N.W.2d dism’d, Second, appeal (Minn.1985), appellate authority. 850 478 limits of U.S. 1015, 3315, (1986); 106 S.Ct. suits. 92 L.Ed.2d 730 courts could not arrest collusive Co., Smith v. Allstate 344, Third, by operation Ins. 483 A.2d of the doctrines of res (Me.1984); Ardmare v. 346 Constr. Co. judicata estoppel, judgments and collateral Freedman, 497, 674, addressing only hypothet 191 Conn. 467 A.2d rendered in suits 4, (1983); County Horn v. relitigation 675 n. 676-77 of issues injuries ical could bar Ventura, 605, 718, 24 Cal.Rptr. by litigant eventually Cal.3d 156 a who suffers an 726, 1134, (1979); 596 1142 Stewart v. injury. P.2d therefore hold that actual We County Board Big Comm’rs Horn standing, component subject matter as a Doggett, only objection); Poling Physi 7. Of the states listed Justice v. Wisconsin interest Illinois, Iowa, 603, 293, York, Serv., Kentucky, New South Da- cians 120 Wis.2d 357 N.W.2d kota, Ohio, (addressing party perhaps Pennsylvania (App.1984) in in and real objection); Washington actually jurisdictional v. Farm Mut. terest State treat stand- Torrez Co., 223, 511, P.2d 513 n. Auto. Ins. 130 Ariz. 635 as waivable. See 852 S.W.2d at 469. The (addressing party (App.1981) real in interest 2 other state cases cited deal with the waiver of 272, Robinson, objection); So.2d objections join Brown v. 354 party a real in interest or to a (Ala. 1977); City 273 Cowart v. West Palm party’s capacity jurisdic- to sue rather than Beach, (Fla.1971) (addressing So.2d 675 standing. Depository, See tional International State, capacity objection). (R.I.1992) Inc. 603 A.2d (addressing party objection); real in interest League, Princess Anne Hills Civ. Inc. v. Susan Doggett disagrees standing is a 8. Justice Trust, Constant Real Estate subject jurisdiction, yet Va. component he matter (1992) (addressing S.E.2d n. 1 real explain standing plays role declines to what objection); party critique in interest jurisprudence. Jackson From his harsh Sanford Co., doctrine, Shopping only objects Mall Ctr. 516 So.2d it seems that he not (Miss.1987) (addressing party standing real in interest the conclusion that cannot be waived objection); Nangle, standing Jackson v. 677 P.2d to the conclusion that is a but also (Alaska 1984) (addressing party requirement n. 10 real to initiate a lawsuit. jurisdiction, any pleadings cannot be in this appellate waived or “construe the plaintiff plead other case and be for the first raised favor of the and look to the appeal by parties time on Deposit intent.” er’s Huston v. Federal (Tex. court. Corp., 663 Ins. App. ref’d n.r.e. writ holding — Eastland We are aware that this conflicts 1984); Hall, W. see also Wendell Stan League v. with Texas Industrial Traffic Ap Appellate dards Review in Civil Commission, Railroad Mary’s peals, 21 St. L.J. (Tex.1982) curiam).9 (per analysis us to the reach that leads conclusion we Here, however, we are not review however, here, compels us to Tex overrule ing a trial court order dismissal for want disap League as Industrial Traffic jurisdiction, considering standing we are prove relying of all cases on it to extent on A appeal. for the first time review of Al they opinion.10 conflict with this pleadings subject only to determine though our concern for the rule of stare jurisdiction is in the matter sufficient decisis makes us hesitant to overrule litigant has a court because case, principles when constitutional are attempt pleading defects amend cure practical issue this court as matter is the jurisdictional alleged. if facts only government power institution that, Failing Tex.R.Civ.P. the suit is duty to correct such errors. See ques appellate dismissed. When an court - Tennessee, U.S. -, - - Payne v. jurisdiction appeal tions first -, 2597, 2609-11, 111 S.Ct. 115 L.Ed.2d however, time, opportunity there no is (1991)(observing that reexamination of Therefore, cure the defect. when Texas appropriate constitutional decisions when standing of appellate court reviews the through legislative “correction action peti sponte, it construe the party sua must practically impossible”). necessary, if party, tion in favor of Consequently, proceed we to determine if any the entire to determine review record here, motion, TAB on our own whether supports standing. evidence bring this standing to suit. standing TAB asserts on behalf of component Because is a general test stand its members. jurisdiction, of subject matter we consider “(a) requires shall ing in Texas that there TAB’s under standard the same controversy parties, a real between subject jurisdic review matter (b) by actually will be determined which generally. requires tion That standard sought.” Board Wa judicial declaration pleader allege affirmatively facts that of Antonio, 155 Engineers City v. jurisdiction the court’s to hear ter San demonstrate 114, 722, 111, 283 724 S.W.2d cause. Richardson v. First Nat’l Life however, Texas, test for Co., (Tex.1967). particular has no Ins. 419 S.W.2d 839 organiza determining standing of an reviewing When a trial order dismiss court ing tion, Touchy e.g., Texas such as TAB. v. jurisdiction, a cause want See League Doggett on two claims that we overrule three 9. Texas Industrial relied 10. Justice Traffic support standing holding its cannot cases to that decisions of this court. See Central additional appeal: first Burke, (Tex. 1986) be raised for the time on Agency v. 711 S.W.2d 7 Educ. Coffee University, Rice S.W.2d William Marsh 403 curiam); (per Casualty American Gen. Fire & (Tex.1966), Authority Sabine River (Tex. 1982); Weinberg,639 Cox Co. v. S.W.2d Willis, (Tex.1963). We 1982) Johnson, (Tex. (per cu 638 S.W.2d 867 v. riam). however, cases, these need not overrule two disagree. cases hold that We These mat League, Texas because unlike Industrial Traffic court are waived. ters not raised the trial standing present that in the trial we believe was decisions, exception noted howev One these these cases. is with a court in Our concern er, jurisdiction may be is a lack of which raised party’s right to initiate and the trial a lawsuit court, party, or the for the first time on corresponding power the case ab court’s to hear Doggett appeal. Justice does not believe that Standing time suit initio. is determined at the exception standing because falls within that he court, subsequent is filed in the trial events standing jurisdictional. contends that is not subject juris- deprive the court matter do not Carr, F.2d diction. at 1061. resolving Found., subject jurisdiction, and matter Legal Houston S.W.2d favor, conclude that (Tex.1968); any in TAB’s Highway Comm’n v. doubt pursue Inc., standing the relief it Importers, 372 TAB has Texas Ass’n Steel (Tex.1963). seeks in While we this case. general of the agree the statement requires test prong Hunt The first of the standing out in test for set Board Water pleadings and the rest of the that TAB’s rely difficulties in Engineers, we foresee TAB’s record demonstrate that members ing standing on it alone to determine standing to their own behalf. have sue instance, organization TAB. For an like interpreted not requirement This should be organization of an have in when members impose obstacles to associ- unreasonable standing, organization dividual but was regard In this representation. ational purpose protect not for the established Supreme Court stated that United States issue, particular interest at it is not part purpose “the first of the of the Hunt necessarily in the members’ best interest to plaintiffs out simply test is to weed who organization allow such a disinterested cases, try bring could not other- Furthermore, orga sue on their behalf. brought, by manufacturing allega- be wise nization should be allowed to sue on standing lack real tions that founda- behalf of its when the claim as members Ass’n, tion.” New York State Club requires participation serted of the U.S. at 108 S.Ct. at We are satis- members rather than individually as an as fied that TAB not manufactured this has sociation, such as the members seek when A of the comparison lawsuit. association’s money damages to recover and the amount membership the list of roster with busi- damages with each varies member. subjected penalties nesses state indi- States Supreme United Court cates individual TAB members have been has penalties pursuant articulated a standard for associational assessed administrative standing itself to challenged that lends our use. We Additional- enactments. adopt today. that ly, alleged test Hunt v. TAB has that other of its mem- Wash ington penalty. risk of Apple Advertising State Commis bers remain at substantial sion, injury the Court held that an association A is sufficient substantial risk of standing to sue behalf of its e.g., City members under Hunt. Pennell v. “(a) Jose, when its members would otherwise n. 108 S.Ct. San U.S. (1988) right; (b) (concluding have in their to sue own 855 n. 99 L.Ed.2d protect ger interests it seeks landlords had association of organization’s (c) mane to purpose; pleadings individual based on members ordinance). neither the claim rent likely asserted nor the relief would harmed requested requires participation prong Thus TAB first indi satisfies the vidual lawsuit.” members 432 U.S. Hunt test. 333, 343, 2434, 2441, 97 S.Ct. 53 L.Ed.2d requires prong The second of Hunt (1977); see New York also State Club pleadings rest of the record TAB’s and the York, 1, 9,

Ass’n v. City New 487 U.S. TAB demonstrate that the interests seeks 2231, (1988); 108 S.Ct. 101 L.Ed.2d 1 protect germane organiza- to the to are Union, Auto., International United Aero purpose. TAB was chartered to tion’s space Implement Agric. and Workers of “represent the interests its members on Brock, Am. v. 477 106 U.S. S.Ct. upon may impact its members’ issues which 2523, 2528, (1986). 91 L.Ed.2d This Considering very a similar businesses.” incorporates standing the analysis standard question in State Associa- New York Club adopted Engineers, we in Board Water tion, Supreme the Court held United States yet addresses the additional concerns we interests that the that: associational “[T]he have noted. germane are to protect consortium seeks to apply purpose: appellant’s

We now the Hunt its certificate of incor- standard Reviewing poration purpose pro- to the case is ‘to before us. the rec states that its ord in entirety supporting its for evidence mote interests of its the common business ” law, relief, at 10 n. raises issues of and need [member clubs].’ U.S. (bracketed language n. 4 in S.Ct. at prove not the individual circumstances of original). Likewise, the TAB de- interests relief, its members obtain that thus protect germane organi- sires to are meeting prong the third of Hunt. purpose, and second zation’s thus the Having found TAB meets all that three prong is met. test, Hunt conclude prongs of the we that prong Under the third and of the final pursue relief TAB has the it test, pleadings TAB’s and the record Hunt in this case. seeks the claim must demonstrate neither require requested the relief asserted nor Open II. Courts participation members individual Supreme inter- Court has lawsuit. provi- TAB contends that the forfeiture preted prong as follows: regulations of the sions statutes standing to an association has [W]hether provision question open violate the courts powers on invoke the court’s remedial by unreasonably Texas Constitution depends in sub- behalf of its members restricting After access to the courts. stantial measure the nature agency party has found a violation be sought. If in case the proper relief regulations, of these statutes declaration, injunc- association seeks must tender a cash the offender either tion, prospective other form or some post a deposit supersedeas or bond relief, reasonably supposed can it be assessed, the penalties full amount of granted, remedy, if inure to will forfeit review.11 of those of the associa- benefit members injured. Historically, recognized at actually tion least have guarantees separate three Hunt, 432 U.S. at S.Ct. at provision. emanating open from our courts Warth, (quoting 422 U.S. 95 S.Ct. at First, must actually courts 2213). that, example, legisla operating, so By seeking damages of its on behalf county judi place every ture must within members, necessitating that each individual Runge Wyatt, 25 cial district. & Co. v. prove profits particular opera- lost to its Second, citizens Tex.Supp. tions, organization in lacked Warth unimped must have access those sue; rather, standing to each individual barriers, ed unreasonable financial so party had to be a to the suit. member litiga impose a legislature cannot distinguishable These facts filing in the form of increased fees tion tax Brock, challenged an the union revenue, general enhance the state’s Le interpretation statutory (Tex. Hanlon, Croy v. S.W.2d provisions relating to com- unemployment 1986). Finally, meaningful legal remedies pensation. 477 U.S. 106 S.Ct. 2523. citizens, afforded to so that must be pure Recognizing that the suit raised “a legislature may abrogate the law,” question individual that “the common law any aggrieved member to assert well-established circumstances” issue, that the action the reason its were not in Court held cause of unless gov- challenge outweighs litigants’ constitution UAW had action 287-88, 290, Votteler, ernment’s actions. Id. at right of redress. al Sax 2531-32, 2533; Pennell, S.Ct. at see also (Tex.1983). 3, 108 n. 3 at 7 n. S.Ct. at 855 U.S. appli guarantee Here second (facial challenge to rent does not ordinance abroga of the question This is not a require land- cable. participation individual Here, common law lords). only prospective TAB tion of well-established seeks Litigants: jurisdictions, Rights Indigent prepayment Process Will 11. In most other such Due required stay Down?, provisions execution Trickle 61 N.Y.U.L.Rev. Texaco right judgments prerequisites and are not to the (1986). Stein, Gary Expanding appeal See itself. action,12just argues delay may pen- question cause of as it is not a also that render the physical uncollectible, alty of the absence of a court to which as the be- violator complaint may brought. The issue come insolvent. previ- In before us is access to the courts. rationales, considering these note involving issue, ous cases we did not prepayment provisions actually predicate party our decision on whether First, consist of elements. the as- two whose access had been restricted was at- penalty paid, sessed must be or financial tempting to assert a common law cause of security provided, thirty days; within en- example, In LeCroy, action. the court stayed pending any period forcement is not permit filing did not increased fees for Second, judicial payment if review.15 statutory denying causes of action while security provided not made or financial them for common law claims. 713 S.W.2d thirty-day period, within the Putnam, in Dillingham 335. Likewise judicial agree review is forfeited. We when the court struck down a statute re- by justify the rationales advanced the state quiring supersedeas bond a condition Requiring the first of these elements. ex- appeal, the court did not concern itself peditious payment of the administrative particular appeal being with whether the penalties increases their effectiveness. restricted involved a common or law statu- however, legislature, The im- could have tory (1890). claim. 109 Tex. S.W. posed the first element without the second. Similarly, case, present the issue is provided agency It could have with simply prepayment require- whether the penalties ment is an to collection of assessed un- unreasonable financial barrier to light access to the courts in supersedeas posted, yet pro- of the state less a bond is interest involved. judicial requirement vided for review. The payment, of immediate the corre- without purpose regulatory stated sponding provision, forfeiture not would statutes at issue protect here is to our implicated open provision, have courts state’s natural resources.13 There is no charged party as the could have obtained question important this is an state regardless payment. review argues interest.14 The pre- state that the approach This would have been in accor- payment provisions further this interest increasing procedure governing dance the usual deterrent with penal- effect of the by aiding appeals R.App.P. judgments. ties and of trial court their collection. The litigant state maintains that Any may appeal a violator less with- will be deterred superseding if penalty judgment, it out the trial court’s delay payment can ap- pendency appeal without bond while but the mere of an does pealing the case in stay the courts. The state judgment.16 enforcement of the Thus, contrary of 15. If the Doggett’sreading person charged pay- Justice does not make opinion, inapplicable. the Sax test is post thirty days, agen- ment or bond within cy may attorney gen- matter forward the 13. The Clean Air Act was implemented to "safe- eral for enforcement. & SAFE- TEX.HEALTH guard pollution by the state’s air resources from 382.089(c), 361.252(m); TY CODE TEX.WA- § § controlling abating pollution air and emis- 26.136(k). TER CODE § contaminants_” sions of air TEX.HEALTH 382.002(a). & SAFETYCODE § The Texas Wa- 16. It has been argued procedure that our implemented ter was Code to “maintain the allowing immediate enforcement of court quality of water in the state consistent judgments process violates federal due when the public enjoyment health and ...” Tex.Water judgment financially post debtor is unable 26.003. § Code supersedeas bond and immediate enforcement 14. Texaco, irreparable injury. XVI, will importance cause Inc. v. is evidenced article Co., (2d 59(a) constitution, Cir.1986), pro 784 F.2d 1133 rev’d section of our Pennzoil grounds, part vides in relevant on other 481 U.S. 107 S.Ct. that: "The conservation argument development L.Ed.2d 1 A of all the natural similar could be resources preservation open provi- this State ... and the fashioned under the Texas courts and conser sion, argument vation of all such natural resources ... are each but TAB does not assert that public rights challenge and all ... and duties.” TEX. here. TAB’s centers not XVI, 59(a). requirement payment, CONST. art. on the of immediate but I, specific purposes open Our focus for constitution20 Artiele section 15 of our therefore, right by jury to analysis, preserves trial for those courts is not whether actions, actions, analogous tried to the requirement payment of immediate is jury at the time constitution of 1876 reasonable, but whether the forfeiture of adopted. E.g., State v. Credit Bureau was right judicial review, penalties if the Laredo, (Tex.1975); superseded, are not is reasonable. White, White Tex. S.W. 508 provision We conclude that forfeiture Houston, Hatten v. City (1917); is an access to unreasonable restriction on (Tex.Civ.App. S.W.2d — Houston requirement pre- courts. While the Smith, n.r.e.); Hickman ref’d writ payment posting stay or the of a bond to (Tex.Civ.App. — Austin important furthers enforcement state’s ref’d). juryA mandated by writ trial is not creating by environmental interests pro provision judicial this other strong timely payment incentive for Id. ceeding. penalties, provision assessed forfeiture Bureau, In Credit we concluded serves no additional interest.17 The state penalties for civil for violation that a suit may accomplish goals enforcing its by injunction pursuant issued to the an Texas prepayment requirements infring- without Deceptive Trade Practices Act was analo right party’s day on a to its in court. debt, gous to the common law action for Accordingly, hold we that forfeiture sec- jury at the tried to a time our constitution regulations tions of the statutes adopted. Thus, 530 S.W.2d at 293. was facially open provi- issue violate our courts right jury held that to a trial for we sion.18 Id. We that action remained inviolate. Bureau, however, Credit in observed Jury III. Trial types adversary proceedings in certain TAB also claims that the statutes em- right jury constitutional to a trial does powering agencies pen- Among these to assess civil proceedings not attach. right guar- to jury appeals alties violate the trial referred are from administrative Silva, Id. v. De State the Texas (citing anteed Constitution.19 We decisions.21 and disagree. 95, 145 (1912), 105 Tex. S.W. 330 judicial payment positive question on the forfeiture of if is a trial de novo and review whether not corresponding right jury made. trial is to a consti- tutionally required upon judicial review of the assertion, Thus, contrary Doggett’s 17. to Justice Cox, agency’s decision. See Cockrill v. 65 Tex. penalties we do not strike down the themselves. (“The (1886) right jury trial remains Nothing opinion prohibits this col- the state's inviolate, though in the court of first denied penalties. lection of assessed as viola- We hold cases], right appeal civil if the instance [in provision only tive of our the re- secured.”) jury appeal trial and the on quirement penalties paid that the as a condi- be (bracketed language original). Furthermore, nothing tion review. requires already opinion penalties in our I, 15, provides, pertinent 20. Article section paid refunded. be part: parties may affected able to af- That the be right jury trial remain shall invio- guarantee prepayment ford is irrelevant. The Legislature pass such laws late. The shall as rights depend should same, regulate be needed in one’s bank account. balance * * purity efficiency. *. maintain its court, presented as it TAB has not in this did jury 19. TABclaims that the lack of a trial before below, regu- complaint its that the statutes and agency as the trial de novo as well lack of a jury I, trial lations also violate the under inqui- section 15. We limit our violate article V, because, ry article section of the Texas Constitution. absence of a trial de novo jury court has said: "Trial cannot specifically While the Credit court Bureau inquiry non-judicial in its claimed in an that is provision jury character, referred to the broader respect proceedings before or with V, section 10 it discussed the ad- article when board.” v. Texas administrative Middleton Co., proceeding exception, excep- Light ministrative S.W. Power & necessarily applies also to the narrower Even if to a tion I, agency, provision denied before an the dis- found article section 15. Jones, say should not be misunderstood Liquor S.W.2d We Control Bd. right legislature may abrogate the that the (Tex.Civ.App. writ — Houston any by delegating n.r.e.)). by jury to trial case noted ref’d Consistent with this Here, agency. Bureau, duties to an administrative exception in conclude Credit we held simply reaffirm this court we what agencies’ these assessments of envi century ago, a half in Corzelius actions, almost penalties are not or ronmental Harrell, 186 S.W.2d 961 143 Tex. actions, analogous jury tried to a those Corzelius, (1945). In we concluded the constitution of 1876 was at the time functions, including fact certain adopted. To hold that these environmental delegated constitutionally finding, may be regulations promulgated in statutes and agen- legislature to administrative by the merely parrot common the late 1960s law preservation and cies in furtherance of the statutory rights jury to a and triable natural re- conservation of the state’s eye turn a to the emer 1876 would blind The decision in was sources. Corzelius gence of the modern administrative state XVI, 59(a) on article section of our based profound impact legal its on our and and constitution, provides in relevant century, social order. In the late 19th ours development part: “The conservation and primarily agrari sparsely-populated was the natural resources of this State all society. generally, T.R. Fehren preservation and conservation ... and bach, History A Lone Star: Texas and are each of all such natural resources ... Texans, contrast, By duties; rights public and all and and ... activity by concentrated industrial and its Legislature pass shall all such laws as products, including wide-spread emis appropriate thereto.” Tex. Const. pollutants, resulting po sion with their XVI, 59(a). “By art. the use of the broad § significant damage tential for to our natu XVI, language in Article Section used phenomena relatively ral resources are stated, 59(a),” Legislature is the court “the origin. response phenom recent to such to enact such laws as are neces- authorized ena, schemes, regulatory such as those sary carry purposes out the for which here, challenged designed were to balance amendment was such mounting environmental concerns our Corzelius, 964.24 adopted.” 186 S.W.2d at vitality. gov state’s economic In 1876 no ernmental schemes akin legisla to these existed.22 is no that the There doubt Thus, pro conclude power we that the contested these delegated ture to assess ceedings analogous are not action penalties Air Board and civil Control jury Accordingly, tried to a a manifestation the Water Commission as preserving hold no jury public’s to a trial attaches to of the interest re appeals conserving air and water adjudications the state’s apparent from the regu under the environmental statutes and sources. That intent is statutes.25 policy lations at issue here.23 statements of the relevant XVI, century article 22. We do not consider nineteenth crimi- as it does out of Tex. Const. 59(a) and our decision in comparable section nal nuisance laws to modern envi- Corzelius. regulations. ronmental See 852 S.W.2d at 461. proclaims: Air 25.The Clean Act policy purpose of of this state and the Doggett’s Despite trumpeting Justice of our safeguard chapter air resources guarantee by jury, he constitution's of trial by controlling pollution the state from agrees that the does not attach under abating contaminants, pollution emissions of air air circumstances of this case. protection with the consistent welfare, health, public general physical Doggett 24. Justice contends that the basis for including people, property of the the aesthetic Instead, holding is overbroad. he public enjoyment of air resources adopt "imperfectly would have us em- visibility. adequate the maintenance ployed” federal test first enunciated in Atlas TEX.HEALTH & SAFETY CODE 382.002. Roofing Occupational Safety Co. v. & Health proclaims in relevant The Texas Water Code part: Comm'n, Review 430 U.S. 97 S.Ct. (1977). Infra, policy purpose L.Ed.2d 464 852 S.W.2d at 464. of this state and the It is the limited, subchapter quality The basis for our decision is more aris- to maintain the conclude, therefore, portion delegation that the is We affirm We unconstitutional. by legisla- declaring the fact-finding judgment of function the the trial of court’s Board statutes, rules, regulations ture to the Air Control and the Wa- listed and the statutory ter under this Commission of jury provision not violate trial do the legislature’s the consti- scheme was within constitution, I, article section authority. tutional Concurring dissenting opinions by and course, Of fact that no trial is the DOGGETT, SPECTOR, and GAMMAGE provided legislature alleged by the an JJ. protection environmental violator of these agencies’ pow-

laws that the does not mean HIGHTOWER, J., sitting. not is penalties er assess unbridled.26 The Air and the Water Control Board Commis- DOGGETT, Justice, concurring and sion act within constitutional and dissenting. statutory parameters. Texas” “Don’t Mess With above, For reasons set out we re- the spirit. Texas captures —A motto that the judg- trial portion verse that court’s Texans the directive “Don’t understand declaring ment that section 4.041 of the does Texas”; the not. Mess With Act, Texas Air sections 26.136 and Clean enough, if the stench is big If the mess is Code, the Texas Water and sec- 27.1015 of enough, great strong matter how the no Disposal Texas tion 8b of the Solid Waste an danger public safety, and in- health regulations promul-

Act and and the rules dustrial litterer can “mess” with Texas gated comport statutes under those punishment or without fear of immediate of provision our constitu- action. legally effective citizen tion, I, section 13. We declare that article pol- permitting And what an occasion for supersedeas requirement of a or bond Texas air and water. luters to “mess” with deposit paid cash into an escrow account as in total toxic tops state nation Our judicial review prerequisite to under among Safety last 361.252(m)(first emissions and ranks dead Code §§ Health & of 382.089(c) (first sentence), fifty important states in measures envi- clause), Although 26.136(k)(first sentence) last air quality.1 ronmental Tex.WateR Code § 2) authority statutory of public in excess of the water in the state consistent with the agency; enjoyment health and 3) upon procedure; made unlawful law; 4) by error of affected other 26.003. TEX.WATER CODE 5) reasonably supported substantial agencies 26. The actions of the involved probative reliable and evidence view of the proceeding subject to the Administrative whole; or record as a evidence (APTRA), Register Procedure and Texas Act 6) arbitrary capricious or characterized specifically panoply a "full of affords clearly of unwarranted abuse discretion or procedural safeguards” party to a contested exercise discretion. agencies. case Bell before those Southwestern Id. Tex., Comm'n Tel. Co. v. Public Util. review under AP- We have held that (Tex.1978). procedural These S.W.2d safeguards developed before the TRA based on the record agency notice, right the mak- include pro- of due more assurance “furnishes proceeding of a full record of before determining whether and a means of cess surer taking depositions, agency, capriciously agency arbitrarily, acted witnesses, subpoena application the rules Imperial regard due for the evidence." without evidence, preparation proposal Fund, Comm’n Inc. v. Railroad Am. Resources briefs, filing exceptions and the decision also, Tex., (Tex.1977); see findings separately fact and stated well as Co., S.W.2d at Southwestern Bell Tel. art. 6252- conclusions of law. Tex.Civ.Stat.Ann. (Vernon Supp.1993). review 13a Judicial compa- § 19 sent compiled from data 1. Statistics 19(e) provided by under the substan- Agency section Protection nies Environmental rule, reviewing tial which directs a pounds evidence of toxic show that in 535.7 million agency adjudi- reverse and remand court to Texas into the environ- chemicals were released agency ment, is: decision cation if Texas other state. also more than in 1)in chemicals statutory ranked first the release of known violation of defects. provisions; and birth to cause both cancer to our environment major blow cleanliness, today This be- and water system threat to our only by the matched down the the first state to strike comes language of lurking in the arcane justice penalties by administrative imposition of lengthy Hidden within its today’s opinion. protecting the enforce statutes agencies to unprecedented is an legal mumbo-jumbo today’s ma- I dissent environment. constitution- jury system. The to our blow paralyze anti-pollu- law to nipulation of the suffering already by jury, al efforts, tragically announced at a time tion longer is no majority, of this at the hands quality of the air the we protecting when inviolate; abrogated at time. it is so we drink criti- and the water breathe courthouse, walking into a Instead cal. may be guaranteed, citizens jury a is where a double wham- opinion delivers Today’s agency, to an administrative detoured of our natural resources. my protection problems to bureaucrats explain their pun- first shielded from swift Polluters are community. directly answerable environment, and harming our ishment for have been Today precedent and tradition door is slammed shut then the courthouse long-standing trampled majority’s the organize in the face of Texans who ordinary legal system in our people fear of Incredibly, punch this second was object. of our taken firm hold. The drafters has organiza- sought by corporate the not even something that Texas Constitution realized brought challenge; it tion that was long appreci- ceased to the has designed by majority during the wholly the make an extraor- ordinary Texans can lingered in years three this cause has ate — system jus- dinary to our contribution easily today this court. Announced is an ex- The more their collective voice tice. in, manipulable “friends foes out” rule to disregarded, the pressed verdict is a orga- prevent further actions those who shut are contrived to more new barriers taxpayers, or the protect nize to consumers justice, less system the them out of environment. justice system will offer. Through writing designed its broad eviscerate administrative enforcement Open I. Courts laws, majori- our state’s environmental agencies to enforce ability of state ty significant has also created uncer- new through assess- environmental laws range govern- of state tainties a wide penalties is declared ment of administrative activity imperiled, mental collection is —tax majority as contra- by the unconstitutional protect nursing laws to home residents are open guarantee of courts. dicting our state voided, leading effectively and even a certainly TAB has a concluding that While weapon drugs in the on threatened. war its right review behalf budgetary At a time of crisis exacerbated members, statutory re- disagree I majority’s great misadventure challenges unreasonably re- it strictions finance,2 public today’s opinion rais- school access to the courts. strict question a of whether es substantial unquestionably the courts is required to return to those Access to State will be and common despoil Texas millions of dollars fundamental who section 13 of the Tex- I, Article penalties during right. collected law of this forms the nucleus eight years this case has wan- as Constitution almost through judicial system. protection: dered Action, and 1991. See American Neighbor- ered between 1989

Texas Citizen Poisons in Our 1; Texas, Sept. Ass’n, hoods, Toxic Pollution in Re- Public Health America’s Public Health Sharp, Comptroller of see also John Pub- State-by-State Report port A on the Health Card: Accounts, lic Texas at Risk: Environmental Haz- Public Air, Land, Water, Fis- ards Threaten State’s Aug. (noting about cal Notes the release of Indep. Sch. Carrollton-Farmers Branch 1989). pounds million of toxic substances in Dist., Edgewood Indep. Dist. Sch. Additionally, only ranked below Tex- two states J., (Tex. 1992) dissenting). (Doggett, as in the American Public Health Association’s Index, gath- Pollution Standard based on data at 449. As provision specifically interest involved.” 852 S.W.2d courts in LeCroy: we held guarantees litigants right to re- all grievances popular dress their use—to involved, right substantial Because a phrase, day their and correct legislature arbitrarily cannot or un- in court. This is a substantial litigant’s reasonably interfere with right. state constitutional Thus, the right of access to the courts. general open provision test bal- Hanlon, 713 S.W.2d LeCroy v. legislature’s purpose actual ances omitted). (citations (Tex.1986) This court enacting against the law that law’s inter- history assuring that long has right of ac- ference with the individual’s guaranteed to Tex- right of access remains government cess to the courts. The as citizens.3 legislative burden to show that the (Tex. Votteler, 648 S.W.2d 661 Sax v. outweighs purpose interference 1983), litigant alleging required a right with the individual’s access. denial of access to the unconstitutional (citations omitted; em- 713 S.W.2d at 341 (1) cognizable that: com courts to show phasis supplied). being mon cause of action is restricted law test, permitted Applying this we have (2) the limitation is unreasonable courts, certain restrictions on access against pur arbitrary balanced when Le disallowing Compare others. while majori The pose and basis of statute. (court filing fee Croy, 713 S.W.2d at 341 appropriately eliminates the first ty today judicial unreasonably restricts access to in In some circum showing certain cases. Putnam, 109 v. system), Dillingham common stances the distinction between (1890) (supersedeas Tex. 14 S.W. 303 clearly statutory causes of action law re prerequisite appeal, to without bond as not affect access to the does whether unconstitutional), ability pay, to gard to courts has been denied. Clark, 639 v. S.W.2d with Clanton test, part of the howev- The second Sax (Tex.1982) (court may constitutionally dis er, open in applied continues to be all timely file cost for failure to miss suit Thus, determining in wheth- courts cases.4 bond), and Federal Crude Oil Co. provision open er courts Co., 122 Tex. 52 S.W.2d Yount-Lee Oil requirement Constitution violated (1932) franchise taxes (requirement that paid penalties administrative be as a that upheld under paid prior filing to suit be review, prerequisite judicial we must to I, 13); compare Lucas v. United article right competing two interests: balance (Tex.1988) (limita States, 757 S.W.2d 687 courts of TAB’Smembers to access to the malpractice damages for medical tions on effective and and the state’s concern with unconstitutional), Rose v. Doctors protecting of its laws timely (Tex.1990) (same enforcement Hosp., majority today The re- provi the environment. upheld open under courts limitations cases). vague in rather terms this second I wrongful states in death favor sion open prepayment require- predictable courts prong: complete “whether the more discourage such ano analysis designed financial barrier to ment is an unreasonable light of the state malous results. access to the courts minor); LeCroy, See, barring Runge Wyatt, action of e.g., 25 Tex. tions S.W.2d 335 H. & Co. (Tex.1986) (holding unconstitutional (1860) (placement Supp. of counties within designed generate filing state increased fees Putnam, districts); judicial Dillingham v. revenues). (1890) (striking requirement 14 S.W. 303 prerequisite appeal); supersedeas bond as a Oddly, that “the Sax test is asserts Arthur, City Port 121 Tex. Hanks v. decision, today’s open inapplicable" to (1932) city (requirement S.W.2d 944 explicitly as it at 449 n. even twenty-four defect within notified of street LeCroy, analysis used in relies on the majori- restriction on accident unreasonable applied hours of Nor does the turn ty attempt the Sax test. Votteler, courts); analysis today right explain how its Sax v. of access LeCroy. 1983) employed Sax and (Tex. (striking of limita differs from statute S.W.2d 661 balancing required by Sax mandates Today’s implementation of the second The rights being its prong of the test demonstrates consideration of the Sax careful malleability. perfunctorily reciting After significant right affected. The more purpose penalties, the asserts, of administrative litigant the more onerous the analysis, con- majority, any further without TAB has government’s burden becomes. provision cludes that: “the forfeiture is an penal- review of asserted unreasonable restriction on access to imposed against its This ties members. courts,” 852 S.W.2d at and “the forfei- encompassed interest is within provision ture serves no additional [state] courts, declared a access to the which we Leg- interest.” Id. at 450. Enacted right.” “substantial state constitutional important islature as an means of enforc- at 341. LeCroy, 713 S.W.2d laws, these our state’s environmental has met its burden demon- State penalties today judicially extinguished. employing strating compelling interest determines that these lauda- penalties reflected consti- legislative objectives are not sufficient- ble tutionally-guaranteed protection of our ly “important” justify possibility Although state’s natural resources. penalties may perhaps the use of overcoming critical in courts chal- someday impose slight some financial lenge, predicate a constitutional for the hypothetical polluter. strain on some persuasive highly state’s interest is a fac- Whether examined under either balancing process. tor in the As declared vague employed today my test or more XVI, 59(a)5: in article section exacting formulation, majority’s the conclu- preservation and conservation of [T]he sory analysis suffers from at least three all of ... natural resources the State (1) major recognize flaws: a failure to the public rights each and all declared and interest, compelling grounded in our state duties; Legislature pass the shall all and constitution, pen- served administrative may appropriate thereto. laws as be alties, including (2) prepayment provisions; very people, This mandate of the as well as disregard statutory of the extensive con- protection public safety of the health and penalty usage represents straints on Act,6 in the Air the was effectuated Clean the least restrictive means to achieve this Code,7 (3) purpose; Texas Water and the Solid Waste assumption and the Act,8 prepayment Disposal including right the to assess provision interferes with indi- penalties. vidual access to Protection of unsupported by the courts single air, specific undeniably even a land is instance of such a Texas’ water and restrictive effect. compelling interest. provision people

5. This natural resources the and receives con- ment of the air resources flicting today’s opinion, amply visibility. adequate treatment the maintenance of demonstrating malleability both the of the Sax 26.003, applied by majori- provides test as ty’s the the that: § and 7. Tex.Water Code by jury. disdain for the to trial While policy purpose It is the of this state and the of XVI, declaring 59(a) per- that article § will not quality subchapter to maintain the payment penalties mit of even the most modest public the water in this state consistent with open provision, under our courts the enjoyment, propagation health and the and inexplicably finds that it forms an insurmounta- life, protection aquatic the terrestrial and majori- ble barrier to the ty trial. The industries, existing operation of and the eco- attempt makes no to reconcile its inconsistent development nomic of the state.... analysis guarantees. of these constitutional 361.002, Safety 8. Tex.Health & Code declares § 382.002, Safety provides 6. Tex.Health & Code § that: that: policy purpose It is the of this state and the policy purpose It is the of this state and the health, welfare, safeguard and safeguard this Act to the this Act to the air of the resources physical property people, protect pollution by controlling abating of the and to state from or environment, through controlling pollution air nants, and emissions of air contami- wastes, management including protection consistent with the hazardous health, welfare, general physical property accounting generat- for hazardous wastes people, including enjoy- of the the aesthetic ed. purpose of Showing of the particular administra- no awareness The form of these penalties, the penalties certainly been fashioned need for administrative tive payment” important “expeditious state interest majority to serve this finds that through guaranteed by ability Penal- adequately the least restrictive is means. ty usage substantially attorney general, limited and can in agency, through arbitrarily imposed. way no be said to be action to collect to initiate an enforcement that, require issue All three statutes at at 449 & amount assessed. 852 S.W.2d established, agency words, once a violation is purpose of n. 15. In other assessing penalty must consider such fac- immediate deterrence of violation envi- violation, tors as seriousness filing of a is ensured ronmental laws nature, including but not limited to the years to many take as lawsuit that extent, circumstance, gravity of the agencies has. These resolve as this case acts; potential prohibited the hazard protecting our natural re- charged public health or safe- hazard created to the ability bring long sources had the have previous ty public; history an enforcement action state court. See violation; necessary the amount to deter 26.123; & Tex.Health Tex.Water Code § violations; efforts to correct the future 382.081; 361.224. The Safety Code id. § statutory is thus assur- violation.9 There improve Legislature to of the Texas effort resulting pen- ance that the amount through of enforcement the effectiveness directly related to the con- alties will be penalties today the use of administrative duct. nullity. rendered a Requiring penalties assessed must be expense the time and Given same amount be paid, or a bond action pursuing an enforcement devoted challenging agency ac- posted, prior to court, capability have the the State will under tion in court is not unreasonable egregious against only the most proceed filing Unlike the fee these circumstances. majority of administra- wrongs. The vast provision held violative of the relatively penalties to date have been tive legislative purpose is not to LeCroy, in important small, reflecting yet technical expensive money by making it more raise of an In the absence statutory violations.10 rights. legal for citizens to enforce their most of penalty power, administrative Instead, legislative objective is to deter gone unpunished, even have these would pose punish violations of the law im- though collectively the environmental an environmental threat. pro- more pact violations could be of small Relieving catastrophe. major grind slowly, found than a justice

The wheels of sanctions disman- reaching. polluters from immediate years in often final resolution protect- of laws Indeed, hardly tles the effectiveness they in this court sometimes resources; means has no lesser willing profit ing natural grind Clearly those at all. provides prompt identified that will been polluting our natural resources the state I hold that in enforcement. would employ delays not hesitate to in compelling interest advantage. A dec- has demonstrated system to their judicial im- has been protection that perhaps delib- environmental bankruptcy by of laration means, restrictive during plemented by the least undercapitalized corporation erately impediment overriding any modest thus likely suit is to relieve pendency of a im- penalties may prepayment of remedy that the polluter any responsibility the courts. pose on access to damage it has caused. 382.088(c)(1-5) good the violation and any effort to correct Safety faith Code § Tex.Health & 361.251(c)(1-5) (Solid (Clean Act), gained Waste any as a result Air economic benefit 26.136(c). Act); Disposal 26.136(c). Code § Tex.Water illegal Code § Tex.Water conduct. imposes Code additional con The Texas Water siderations, impact including viola “the Appellees Appendices Texas to Brief 10. See underground receiving wa tion on a stream Texas Water Commis- Control Board and Air reservoir, property and on on the owners ... ter water sion. users,” previous as well as the extent involved, violations, degree culpability largest our state’s busi slightest ty would accord Not even the evidence has been suggest indigents provided any this court to actual treatment as in nesses same effect. No avoiding responsibility restrictive affidavit for court financial the Texas Association of Busi- member of litigation other costs. stating the record that an appears ness in restrained Nor pay penalty an inability to validating require similar decisional law judicial review. to most of has barred As against long ago upheld ments. We assessed, $5,000 penalties in or less challenge type same the condition that a amount, it is doubtful that such conten- corporation pay franchise taxes order its could made. The tion be necessar- to file a action. Federal Crude court Oil imposing $2,000 ily concludes that fines Co., 122 Tex. Co. v. Yount-Lee Oil against Company, Exxon Chemical Shell (1932); S.W.2d accord Rimco Enter Company Corpora- Oil and Union Carbide Co., prises, Inc. Elec. v. Texas Svc. financially tion has left those entities un- (Tex.Civ.App. Worth S.W.2d 362 — Fort appeal.11 pursue an While the enor- able n.r.e.). statutory writ ref’d Various penalty mity of some future could fact taxes, requirements penalties and in access, unconstitutionally bar paid contesting prior terest be them not the case certainly here. See Jensen court have sustained likewise Comm’n, Tax v. State P.2d challenge. Filmstrips (Utah 1992) (payment taxes, of assessed Slides, Appraisal Inc. v. Dallas Central penalties precondition and interest as Dist., (Tex.App. 806 S.W.2d 289 — Dallas cases,” suit “not unconstitutional all but 1991, writ) taxes); (property no Robinson taxpayer financially those in which Bullock, (Tex.Civ.App.— S.W.2d prosecuting appeal); barred from see also n.r.e.), denied, Austin ref’d cert. writ Chan,

Morrison v. 436 U.S. 56 L.Ed.2d 759 98 S.Ct. (Tex.1985) (medical malpractice statute of (sales (1978) taxes). applied limitations not unconstitutional as case). to facts of ignores certainty majority also that far three statutes im- more than Eliminating prove the need to re actual range A pacted today’s decision. broad effect, majority strictive “irrel declares programs regulatory enforcement vital parties that “the affected evant” be protection public health and safe- prepayment.” able to afford timely stripped their most ty will be Unexplained 450 n. 18. is how this state effective to deter harmful con- sanctions ment can reconciled with Dillingham, designed protect duct. to the old— Laws impor which this court found of critical nursing young— in residents homes12—the tance the failure to fi accommodate those camp13 sick post away our children at and nancially supersedeas unable to —the injured,14 lost15 prerequisite judicial and those we have will bond as a to review. Others, Opining guarantee substantially that “the ensur- of constitu be weakened. food, rights depend drugs tional should not on the bal the sanitariness of and account,” cosmetics,16 id., slaughter majori ance one’s as the and bank as well Appendices Appellees requiring posting payment 11. See to Brief of or the their review). prior judicial and Texas Air Control Board Water Commission bond to 27, 44, at 55. Safety Code 773.065-.067 Tex.Health §§ & (administrative (ad- Emergency Safety penalties enforce Tex.Health & to 12. See Code 242.066 § Act). penalty Medical statutory Services ministrative violations "threaten[ing] safety the health and of a resi- home); nursing 4582b, (Ver- dent” of a convalescent or id. 6G § 15. Tex.Rev.Civ.Stat.Ann. art. (penalty prepaid (administrative 242.069 must be or a bond Supp.1992) penalties § non for vi- review). judicial posted prior to governing directing olation of statutes funeral embalming). and Safety Code 13. Tex.Health & 141.016-141.- §§ (providing penalties Safety for administrative & Code 431.054-.056 Tex.Health §§ (Texas Food, Act); regulating youth camps Drug § violation of laws and & Cosmetic id. 466.- animals,17 Today’s writing poses potentially crip disposition of dead will be simi- pling effect for collection of taxes. All of larly rendered less effective.18 Even where require our state statutes this area penalties frequently such have not been taxes, penalty pre interest assessed be enforced, potential may promote their use challenging paid before a suit them be law enforcement. generally filed. Tex.Tax Code 112.- §§ however, widespread damage, The most requirements un 112.101. If such today’s in the enforce- decision will be constitutionally void to fulfill a consti even environment, protecting our ment of laws protec tutional mandate of environmental Legislature has determined where tion, validity their for tax collection is cer penalties again again that such are the See R Commu tainly subject question. assuring compli- means of most effective nications, Sharp, Inc. v. 839 S.W.2d 947 air, pollution preventing ance and granted). (Tex.App. writ — Austin water and land.19 The ensures majority sought Nor has the to consider pollute brought those who will major for a consequences of its decision justice very slowly or not at all. weapon against drugs, forfeiting in the war impose statutes administra- Other prior review money, vehicles penalties permit filing of an affida- tive property alleged to have been and other inability pay prepayment in lieu of vit violating laws. Tex. used our criminal posting Because the or the bond.20 fre Crim.Proc.Code art. 59.02-.11. Most reasoning majority’s strikes down adminis- drug quently to seize assets from invoked penalties reference to finan- dealers, trative without money and cars that could such defense, ability, provides these stat- cial finance their this statute property prior to trial similarly enforced. for the return of utes cannot be (vio safety”); (regulation drug pro- public id. 131.2661-2663 § of narcotic treatment Mining grams). Recla Uranium Surface lations of "result[ing] pollution of the air or mation Act §§ 17. Tex.Health & Safety posfing] Code 433.094-.096 a threat to the water of this state or (Texas Act); Poultry Inspection (violation Meat & id. safety”); public id. 141.013-.015 § (Texas Licensing Renderers’ §§ 144.081-.083 regulations "pertainfing] geothermal resources Act). pollu safety prevention or the or control tion”); (regulation Tex.Water Code 13.4151 id. 18. See also Tex.Rev.Civ.Stat.Ann.art. 5069-51.17 utilities); § id. 27.1013- of water sewer (administrative (Vernon Supp.1992) pen- 1987 & Act); (regula (Injection Well id. 28.067 § .1015 Act). Pawnshop alties for violation of the Texas shafts); id. 29.- § and mine tion of water wells Act); (reg (Salt §id. 33.009 Water Haulers 19. Tex.Rev.Civ.Stat.Ann. art. 1446c, (Ver 73A§ installers); pump well ulation of water Supp.1992) (permitting assessment of civil non (water saving Safety Code 372.004 § Health & Utility Regulato penalty for violation of Public standards); (Texas performance id. 401.389 § ry "result[ing] pollution Act of the air or Act). Radiation Control posting] water of this state or a threat to the safety”); public 3a, art. 4477- Tex.Rev.Civ.Stat.Ann. 12.020(1) (violation § agricul 20.Tex.Ag.Code (Vernon (Texas Supp.1992) Asbestos 16§ statutes); (failure comply id. 76.1555 tural Act); Health Protection Tex.Rev.Civ.Stat.Ann. regulations); pesticide Tex.Water Code 5920-11, (Texas (Vernon Supp.1992) art. 30§ (irrigation regulation); Tex.Rev.Civ. 34.011 § Act); Mining Coal and Surface Reclamation 41a-1, 21D(f) (Vernon Supp. § art. Stat.Ann. (Vernon Supp. art. 6053-2 Tex.Rev.Civ.Stat.Ann. 1992) accounting); (public Tex.Rev.Civ.Stat. 1992) gas (safety transportation of standards 135b-6, 10B(k) (Vernon Supp.1992) art. § Ann. facilities); gas pipeline and for Tex.Rev.Civ.Stat. Act); (Structural Tex.Rev.Civ.Stat. Pest Control (Vernon (Water Supp.1992) Ann. art. 9§ (la 5(h) (Vernon Supp.1992) art. § Ann. Act); Pump Installers Tex.Nat.Res.Code Well laws); wage art. Tex.Rev.Civ.Stat.Ann. bor (Oil Spill Response and 40.252 Prevention § 5282c, 23A(k) (Vernon (Profes Supp.1992) § (assessment Act); penal of §id. 81.0531-0533 Act); Surveying Tex.Rev. Land Practices sional Railroad Commission stat ties for violation of 6573a, 19A(k) (Vernon § art. Civ.Stat.Ann. safety pertain to or the utes and rules “which Act); (Real Supp.1992) Estate License 9100, Tex.Rev. prevention pollution”); or control of id. 116.- § 17(m) (Vernon Supp. (violation Civ.Stat.Ann. art. relating to com 143-.145 of laws 1992) (Texas Licensing Reg Department and “result[ing] of pressed gas pollution in of natural ulation). posting] a threat the air or water of this state or by Jury II. Trial the full value. posting on the of a bond for 59.02(b). Id. art. by our environment The harm caused only by the se- writing equalled today’s judicial system our are Procedures within fundamental against our struck vere blow Why require- is not the also threatened. holding that TAB right by jury. trial of organiza- corporations that and other ment jury right no members have and its only through appear in court counsel tions analysis trial, majority employs an that the open provision, violation I far-reaching ramifications. While retaining attorney in the cost of since the to accommodate the recognize need average administra- cases exceeds most state, evolution the administrative here? penalty tive considered important guarantee man- history of this only exceptions narrowest of dates that by majori Inadequately considered permitted. ty’s opinion effect the millions of is its penalties that dollars ability each to have a individual the com- already paid the statutes heard other members of under case have been heritage Yet, munity part is a vital our now declared unconstitutional. under Long ago, emphasized Texans law. apply general rule that our decisions paramount guarantee, importance this retroactively, past violators of environmen against the stating grievances in their Mex- may to reap tal laws stand a substantial government: ican grasp major windfall.21 In firm this secure, on a It has failed and refused to ity, “open courts” have been rewritten basis, by jury, of trial that firm claiming to mean coffers. While palladium liberty, of civil safe nothing today’s writing suggests life, liberty, and guarantee prop- required, apparently refund erty of the citizen. again once concludes monies extracted Independence of the The Declaration of by the state under the coercion of an un (1836), Republic reprinted of Texas in Tex. system may be retained. 1955). (Vernon Const.app. A Indep. See Carrollton-Farmers Sch. strong guarantee of this had been Dist., (holding 826 S.W.2d at 515-23 tax unsuccessfully sought in an 1833 draft con- unconstitutional, requiring taxpayers but stitution,22 submitted to Mexico which was payment years). to continue for two by Stephen F. later incor- Austin23 was majority today large throws a Independence porated in the 1836 Texas workings important wrench into the Constitution.24 administrative mechanism of our Texas jury as a demo- The central role of government. By limiting severely enforce- recognized, firmly in- cratic institution was powers, ment leaves en- law celebrated, jurisprudence early in our deed forego prosecu- forcers little choice but to Republic Supreme Court designed tion of law violators. Our laws Texas:

protect and conserve natural resources has, perhaps, The institution of substantially weakened at the time fully appreciated. seldom never been strength eulogized sounding is most often their needed. It has been (1833), highly writings reprinted Under de- Texas Histo- recent erratic Documents of course, ed., termining retroactivity, (Ernest 1963). anything ry, can Wallace See, happen. e.g., Indep. Carrollton-Farmers Barker, Austin, Dist., 515-23; Eugene Stephen F. C. Sch. Elbaor Smith, (Walter (Tex.1992) (creating Prescott un- The Handbook Texas 84 ed., 1952). certainty disapproval type pre-trial Webb of a court). agreements upheld by previously Texas, Republic 24. Decla Constitution of the (1836), right privilege Rights, reprinted jury, 22. "The of trial and the ration of Section (Vernon 1955), Corpus app. provid the Writ of Habeas shall Const. be estab- Tex. law, right by jury shall shall remain lished and remain inviolable.” ed that "the Proposed art. Constitution the State inviolate." phrase, and often decried and derided. of this nature in the hands twelve men, biased, corrupt, silly An or than to confide it to the breast of occasional or condemnation; one? enough verdict is not

and it is said the institution inter- when Weeks, William F. Debates the Texas poses justice chances of and checks (1846). opposed He Convention was against venality oppression, and the mea- by Hemphill, John later the first Chief Jus- just praise sure of is not filled. im- Its court, actually “preferred tice of this who benefits, perennial measurable like the 271-73, system, the civil law” id. at earth, springs of the flow from the fact County delegate Jefferson James Arm- portions that considerable of the commu- strong, who insisted the new section would periods nities at stated are called into the “operate very injuriously.” at 270. He Id. facts, judges courts to sit as of contested declared: ministry and under the of the courts to better, my opinion, It would be apply preserve Let laws.... us then legislature apply leave it to the these only and transmit this mode of trial not things; enough say it is for us to in the inviolate, possible purified per- if but by jury constitution that the trial shall be fected. preserved If intend inviolate. jury every thing, to determine it would (Tex. Bailey Haddy, Dallam dispense judge be better to alto- 1841).25 gether, appendage as a useless of the 1845, expanding scope right In of this court. subject spirited was debate in the Today juries, Id. it is this same fear of deliberations over the new constitution for fortunately rejected in that now un- previous statehood. In addition to the fortunately prevails. guarantee, which was in a carried forward original language providing The for trial Rights,26 protection Bill new further was by jury Judiciary in the Article of 1845was Judiciary included in the Article. Tex. constitutions, retained in later Tex. Const. IV, (1845). Const. art. While under § IV, IV, (1861), art. Tex. Const. art. § our national al Constitution those of (1866), thereafter extended to but was by jury § most all of our sister states trial equity.” “all cases law Const. available for those actions that could V, art. It took its final form in law, brought § have been at common present our Constitution of pre Texas Constitution since 1845 has also continues to afford not one but two assur right historically served that in cases that subject: ances on this vital Thus, brought equity. would have been trial of all in the District causes private party injunctive even when a seeks shall, Courts, plaintiff or defendant benefit, public’s relief that will inure to the court, upon application made derogation right to a none by jury.... right have the to trial theless violates the Texas Constitution. V, Tex. Const. art. § Urging support of the additional Judicia- right by jury shall remain of trial ry guarantee, Article Convention President inviolate. Thomas Rusk declared: I, dangerous principle keep art. 15. Rather than

It is a to trust too Tex. Const. § “inviolate,” se power majority today much in the hands of one man. it power verely right. it not better to trust a violates this Would Ass'n, great principle In our time this Steenland v. Texas Commerce Bank Nat'l (Tex.App. Tyler continues to be reaffirmed: writ — n.r.e.); Lopez Lopez, system justice ref'd 95, see also It is fundamental writ) ("trial (Tex.App. no policy permit the intention and of the law to — Austin zealously by persons by jury disputed by jury granted a trial should be all the all to have state”). fact a determination of issues essential for courts of this rights]. by jury of trial is a [their I, (1845) (retaining guarded jeal- iden 26. Tex. Const. art. valuable which should be . language provision) ously by all state courts. tical from 1836

461 sewer, or contin- pond, marsh or common heritage rejected by the ma- Our is now pollution or so as deliberately ue such obstruction jority in of a overbroad favor offen- unwholesome or mere render same writing jury trial as a that treats neigh- county, city, or to the town sive This is consistent with anachronism. thereabouts, any act or shall do increasing of decision- borhood majority’s disfavor held and thing be deemed as a or that would making by ordinary composed citizens law, shall be at common our to be a nuisance Today’s opinion insists that jury.27 exceeding five any sum not jury fined in trial ... constitutional assurance of dollars... .29 legislative hundred protection against not offer does factfinding delegation an administra- considering whether early decision In an essence, bureaucracy. In tive posed by á tallow was criminal nuisance pow- engages in a massive redistribution at cattle factory near Galveston arm people er from bureaucratic and slaughtered their carcasses were posi- government. state extreme This accumulate, this were allowed offal totally unjustified tion is in view stated: court underpinnings legal and historical staunch law to requires no aid of common It of our commitment to afford constitutional air, pure any one accustomed to convince peers. jury Texans a of their brought or by accident and who has been one Today’s opinion accurately describes malar- necessity sickening within protec- dual tal- element of the of our modern ious influence of one liberty: factories, tion for this fundamental dis- it is a low and beef nuisance, even I, gusting and nauseous 15 of constitution Article section offending miles it so preserves by jury around ... [those] actions, punished actions, analogous should be indicted those or tried law. to a at the time the constitution of extent adopted. 1876 was 230, (1871). State, 34 Tex. 233-34 Allen v. (footnote omitted). vig- Then once significantly 852 S.W.2d at 450 court’s How majority grossly anti-pollution laws misconstrues this orous enforcement making and mis- standard while selective waned.

leading jurisprudence developed un- use of the environment was Defilement of guarantee Y. der further of article crime, punishable also only made as but hangnail history its sketch

With of Texas law for nui- subject to a common action very generalized Wood, limited to one historian’s Horace generally sance. description Texas in the era “between 501-21, 576-692 Law of Nuisances Wood’s 1861”,28 450, 1835 and 852 1883) recovery S.W.2d (discussing (2d nuisance ed. longstanding ignores our concerns of air and for various forms at common law regarding to our resources. threats natural regu- pollution). actions were Such water 1860, early Legislature As acted to brought 1876 to halt larly in Texas before penalize polluters, providing that: harmful to our air and water. activities 1856, pol- recognized that any person anywise If ... shall in this court “[w]hat course,

lute, lake, is well or a nuisance defined.” obstruct water constitutes See, Services, a later e.g., May Tex.Gen Laws 27. v. United 844 S.W.2d 29. Act Feb. J., referenced this court (Tex.1992) (Doggett, dissenting); version of which was Reed, Ry. Gulf, Tex. Colo. & Fe Kerr, Santa (Tex.1992) (Dog Boyles v. WL (1891). 15 S.W. J., gett, dissenting); Leleaux v. Hamshire-Fan Dist., Indep. nett Sch. means, The court stated: "The word further J., (Tex.1992) dissenting); Reagan (Doggett, law, literally, signifies, annoyance; it accord- (Tex.1991) (Dog Vaughn, S.W.2d hurt, Blackstone, 'anything ing to that worketh J., gett, concurring dissenting); Greater inconvenience, closely damage.’_ ‘So Transp. Phillips, Houston Co. v. Blackstone) England (says the law en- does J., (Tex.1990) (Doggett, dissenting). morality, Gospel rule force doing excellent they do as we would should others ” Fehrenbach, History T.R. Lone A Miller v. Star: Id. at 492. Accord unto ourselves.’ Burch, (1869). Texans 279 and the (1856). Swenson, of Burditt v. 17 Tex. 489 common use the common law of nui- Considering operation enjoin an action to of soiling fight sance to of the air and water. livery Congress stable on in Aus- Avenue ongoing With the construction of the rail- already tin because “manure and filth roads, mining sulphur, of coal and extent, accumulated to such an that it now industry emergence of and the nascence of unhealthy disagreeable causes an and ef- industry, our gas oil and state’s natural fluvia, exceedingly prejudi- offensive and by no pure resources were means and un- cial,” id. at this such court concluded Cobb, 1876. threatened in See James C. “noisome smells” a nuisance. constituted and Society Industrialization Southern City at 502-03. In Id. Fort Worth (1984) 1877-1984, (describing pollution Crawford, 74 Tex. S.W. relating usage, lumbering to increased rail that, (1889),an because individual asserted sewage); and urban see also Robert A. dumping garbage, of the filth and bodies Leon, History Amoldo De The Calvert & land, city of dead animals on (1990)(discussing Texas 186-191 the devel- his home was uninhabit- rendered almost opment industry of Texas in the late able; family kept his and himself were 1800’s, including lumbering, process- beef health; was, language and bad he in the mining); Wortham, Louis and J. 5 A witness, walking “a skeleton.” (1924) History (examining of Texas indus- court This further observed that development in the nineteenth centu- The stench was so he had offensive that ry). scope Only depth prob- and of the sleep.... shut the doors to eat and changed. fouling lem has But even if the testimony The the filth on shows that of the were a recent environment techno- place deposit was so indescriba- logical past century, “innovation” ble, and was so as to make offensive recently irrelevant. As I that would be sick, persons perceived and could be context, wrote in another away. mile irretrievably locked in the The law is not Affirming judgment declaring Id. days before televisions and videocamer- dump nuisance, a common this court law as, operators telegraphs nor limited declared: carriages. and horse-drawn every person There is also no doubt that (Tex.1992) J., (Doggett, dis- Boyles v. Kerr diffused has a to have the air over nothing senting). There is about techno- premises vapors his free from noxious logical change by jury that has made trial noisome and smells.... any less vital.32 Id.31 But there was no modern bu- because majority’s suggestion “pollu- 1876, the reaucracy insists: “no phenomena relatively are re- tants ... governmental akin schemes to these exist- origin,” 852 is contra- cent S.W.2d at legislative While our laws and soci- by the nineteenth ed.” Id. at 451. century dicted complicated, criminalizing pollution ety grown and the more the man- response have Whitehead, Although allege juries critics See also Rhodes v. 27 Tex. some complex competent to deal with (1863) scientific (remanding complaint for trial a issues, empirical technological and data demon- river, against a dam across the San Antonio strates otherwise. recognizing stag- pools creation "of opportunity ... that the ex- Research shows putrid "tendency nant and water” or meaningful [juror] participation in a ists for family plaintiffs] sickness in or im- [the cause range adjudicatory regulatory wide neighborhood,” mediate was sufficient consti- juries proceedings_ To the extent that en- nuisance); Neraz, Jung 71 Tex. tute difficulties, these difficulties counter often vex (1888) (nuisance properly 344-45 al- S.W. potential lay judges full as well.... leged claim that “interment of dead bodies adjudication participation in has not been re- infect, cemetery] poison, [proposed would alized. wells, injure [plaintiffs’] use of low Hans, Cecil, Wiggins, Joe Valerie Elizabeth grounds, injure plaintiffs’ and further health Comprehension Issues: Les- Citizen of Difficult Trials, decomposition of the foul odors from the said Jury 40 Am.U.L.Rev. sons From Civil bodies.”). not on whether admin- they not. As we existed constitution has date of our bring then to agencies existed Credit Bureau istrative concluded State v. of (Tex. Laredo, Inc., 292 some That the creation of S.W.2d such actions. 1975): right by jury contemplat- is not “The to a trial not agency was administrative precise any of action ... at type to the form of limited not mean that ed in 1876 does analogous If common law.” there was in agency factfinding transferred to right jury to in with a trial cause of action purview of beyond is the hereafter or guarantee jury trial then our article I majori- approach, the its jury. a With new requires today. majority ignores it Yet the steady clearing way for a ty is the pollution of even earliest the fact that the expansion factfinding and decisionmak- designed punish statutes was to deter expense trial bureaucracy the ing by at harm environment. Our those who by jury. depen as jury article thus decreed trial Concluding action that no common law substance; form, analogy, not dent on the administra- analogous to assessment majority’s anal but Under the exactitude. 1876, majority in penalties tive existed wrongly ysis, decided Bureau was Credit holding its superficial limit on professes a against de regulatory prohibition since a XVI, 59(a) Texas tied to article § ceptive ambiguous non-disclosure or lan Constitution, in interpreted as Corzelius guage capacity to deceive was with Harrell, 143 Tex. beyond “deceptive law acts” of common Nothing (1945). 451 n. 852 S.W.2d at fraud as in or deceit it existed the determination provision in affects Seizing upon proposi- the rather obvious pollution a nuisance action whether tion state had not administrative analogous to an enforcement action in yet con- been created Clearly, majority’s conduct. same right by jury there is no to trial cludes that the fact that no reasoning solely rests on pro- in review an administrative charged agency was ceeding. But under I it is na- article Nor resources. protecting state’s controls, ture of the cause of action that any way address does Corzelius procedures not the which it is en- under majority's right jury trial. Under forced. Each of three statutes consid- right tri- holding, the “narrow” asserted air, today “pollution” ered defines water immediately abrogated byal can be jury incorporate early or land to nuisance con- resources are any in which natural case cepts. Safety Tex. Health Code 382.- & involved, including private remotely even 003(3)(contaminants may that “are or tend has held are sub- disputes that this court adversely injurious to be affect or to involving trial, as those ject such welfare, life, vege- human health or animal rights, min- ownership, or mineral contract property tation or interferes with the [or] See, e.g., eral terms. Amarillo Oil lease life, and enjoyment normal use of animal Prod., Inc., 794 Energy-Agri S.W.2d Co. v. vegetation, 361.003(44) property”); or id. § (Tex.1990). (“contamination land or land surface legisla- limitation on or state subsurface water that ren- away people’s delegate power tive harmful, or ders the land water detrimen- amply demon- by jury was tal, life, humans, injurious to animal or writing of this court by the strated 26.001(13) vegetation”); Tex. Water Code § White, S.W. White v. (contamination that “renders the water wife, his who a had There husband harmful, deterimental, injurious to hu- apparently did not contest she was life, mans, vegetation, or proper- animal “lunatic,” asylum. a state committed to ty”). fails to examine these proceedings had been statuto- Commitment provisions attempt and makes no to distin- appoint- rily to “commission” guish transferred their substance from nuisance ac- comprised county judge of six tions ed the time the constitution was members, be adopted. many The focus “as shall must be on the nature [whom] physicians possible.” Act civil and criminal nuisance actions as 8, 1913, April Leg., rowly recognized 33rd art. that no ch. “cause of action” Although 1913 Tex.Gen.Laws 342. a re- The court in Bradley was involved. of decisions and of view of other states Bd., Liquor Texas Control practice sup- federal indicated substantial (Tex.Civ.App. writ ref’d — Austin appeared quite port for what to be a rea- n.r.e.), ruling specifically excluded from its legislative attempt sonable to entrust upon cases “based civil indi [an competency of mental determination compensation.” Relying vidual] expertise profession, of the medical Liquor court in Bradley,34 the Con 514-15, rightly S.W. at this Court conclud- Jones, trol Bd. v. that ed there writ), (Tex.Civ.App. no — Texarkana by jury means more something trial than pro noted that unlike other administrative hearing a before a commission.... ceedings might rights that involve of the hearing 196 S.W. at 511. Such be- Id. “a action,” same as a “cause of character the commission, fore a lieu of the time-hon- liquor proceed cancellation license is a by jury, ored trial is 196 S.W. invalid.” Id. ing brought by pursuant the state to its Moreover, at 515. “welfare, protect police power to the [contrary] reasoning jurisdic- other [in health, peace safety people ... and of the right as legislature to the to the tions] of Texas.” dispense jury applicable with trials is not for safety peo- This concern “the laws, judicial system to our and it is ple rights Texas”—the needs of the to our Constitu- obnoxious [Texas] id., public, not dissimilar from is the doc- tion....” “public rights” imperfectly trine of rather I maintain Id. that the wholesale transfer employed by the federal courts. State can- authority factfinding juries for from liquor rep- essentially cellation of a license bureaucracy the announced here no less right.” “public Roofing resents a In Atlas rights offensive to the our Constitution Safety Re- Occupational Co. v. & Health guarantees. Comm’n, view U.S. S.Ct. Beginning amend- with the constitutional (1977), the court distin- 51 L.Ed.2d 464 ment that led to the creation of the Rail- guished involving govern- cases between Commission,33 road the use of administra- protect public mental action health agencies steadily in- tive Texas has involving safety only private and those Today creased. government this arm of rights: implements legislative regulat- broad plans ing many public concern, including areas of “public rights” At least in which cases utilities, public develop-

the conduct of being litigated e.g., cases in — resources, energy ment and conservation government sovereign sues in its ca- protection and the of the environment. public pacity rights created to enforce gov preserve workings To of modern right to a statutes ... [the administrative, ernment, exception some prohibit jury as- does ... trial] proceedings may necessary, be but it signment factfinding function of] narrowly be drawn not to should so as forum an administrative with which every encompass action that conceivable incompatible. jury be would arguably assigned could to some exist Id. at 97 S.Ct. at 1266. body. ing future And or administrative Jones are also consistent Bradley and what, precisely today, that is our Tex until strictly writings jurisdictions in other usually as have done. In two deci courts excluding public administrative concerning cancella sions permit liquor, rights exception invoking private nar actions tion of sell Silva, X, interp. v. De 33. See Tex. Const. art. 2 and com 34. See also State 105 Tex. (Vernon 1955) mentary (noting provi (also (1912) holding that cancellation S.W. 330 Legislature added to authorize the "cause”). sion was liquor is not a license regulate people railroads after the had issued complaints against them). strong cases expressly disapproved of earlier mandates we rights for which the Constitution treating provisions “mistakenly” two by jury: right trial is, pro- meaning, as as identical compen- general Although award of trial as tecting right by jury satory damages may substantive have law statutes common it existed at effect, in it deters violation adoption time of in effect at the dam- regulatory ... when scheme the Constitution. pri- ages awarded advance substantial (citing Hickman v. at 292 530 S.W.2d that is dis- in remuneration vate interest (Tex.Civ.App Smith, public . —Aus proportionate concept ref’d), assign improperly writ tin relief, jury implicat- to a trial is meaning). equivalent provisions the two required. jury ed and a Judiciary affords a Article held that the We Monica Control McHugh v. Rent Santa even unique 318, Bd., Cal.Rptr. Cal.3d time of unknown at the causes of action (1989)(Panelli, J., concur- P.2d adoption. Id.36 the Constitution’s Salyers, 181 ring); Bishop Co. v. Coal ma heeding holding, Instead (sub- (1989) 380 S.E.2d W.Va. a commen upon a citation to jority seizes con- damages of are determinations jective rewrite writing as an excuse to tary in that juries); stitutionally to Broward entrusted of the In the discussion the Constitution. Rosa, 505 County v. La So.2d guarantee in Credit juryV trial article (constitutional pre- (Fla.1987) jury right to Bureau, which involved no administrative unliquidat- cludes administrative awards of action, proceed we noted a few “isolated” damages). ed that ings that do not constitute a “cause” rights of are Fortunately the Texans not de “case-by-case aon have been identified jury the by right constrained whether short at 293. We made termination.” Id. preserved analogous in actions in trial was brief to a commentator’s hand reference clearly quite We that 1876. have written the other carved from exceptions list of right by jury even is broader by jury. right to trial Id. inviolate wise V, than afforded under article section 10 Harris, Trial (citing Whitney Jury R. in I, under article section 15.35 v. Cred State Problem in Constitution Civil Cases — A Laredo, Inc., it Bureau 530 S.W.2d (1953) Interpretation, Sw.L.J. al (Tex.1975). Relying v. on Walsh by corpus and (listing custody habeas child (Tex.Civ. Spencer, 275 S.W.2d contests, proceedings, adoption election writ), App. Antonio no Har Additionally, contempt proceedings)). — San guarantee” described the “much broader propo upon for the ris relied broader Jones Article, Tolle, Judiciary brought originally Tolle proceedings that sition (1907), agencies except 104 S.W. administrative before provision, “[ljanguage jury rights. 7 Sw. which said of the ed this,” comprehensive than L.J. at 12-13.37 cannot be more opinion authored for commentary The Bureau was for article 36. Credit 35.In recommended by former Justice Jack V, the court now Chief 14(e) proposed Constitu- section previously, strug- Pope, who written ‘‘[t]he had tion, significance holdings regarding this call gle we for survival institution expansive language noted: more was also Pope, truly epic jury of our law.” Jack right by jury guaranteed in Arti- of trial [T]he (1961). strug- Jury, That 39 Tex.L.Rev. 426 V, 10 of the Constitution is cle Section today. gle continues right dependent on the existence of the unnecessarily global Though wrote in he adopted in 1876. the time the Constitution was exception, regarding even Harris rec- this terms guarantee "cause” institut- extends ognized that A is defined ed in the district court. "cause" Judiciary plain language of the section [t]he concerning any question, a suit as or action by jury conferring right in all of trial criminal, or contested before a court of civil would seem to causes in the district courts justice. irrespective parties trials entitle Commission, See Texas Constitutional Revision right time of the existed at the whether adoption Text, Explana- New Texas: A Constitution of the Constitution. Harris, tion, supra, Commentary at 6-7. Today this ex- overexpands writing Roofing, in Atlas such erosion ception considering pre- before it the rule begun already at the level.40 federal exception In fers swallow. Credit limited, however, Properly “public meaning Bureau attributed “broad [to] rights” exception to the ” the word ‘cause.’ 530 S.W.2d at 292. right jury is both to trial constitutional- it, defining meaning we did not limit its easy ly apply. perhaps sound and While past, relatively but turned to a contem- contexts, far-reaching “public other dictionary as porary well as older authori- rights” right conflict each with the Clearly ty. adapt this term Id. must public member of the to have dis- factual developments; understanding modern our putes public jury resolved must of a “cause” not frozen in 1876. See I narrowly permit construed. would not Garcia, Davenport 834 S.W.2d “public per- concept rights” to be (Tex.1992). Both the text of Constitu- deny right. such a verted to fundamental tion its historical demand backdrop circumstance, In this I limited would define by jury that the to trial “invio- remain involving proceedings “public rights” as When, here, however, changing late.” government, real those which as a require circumstances reexamination interest, party regulatory scope enforces a preserve order to workings government, we must evolved Contrary majori- statutory scheme. any exception destroy ensure that does not ty, suggest I its do not that we follow guarantee.38 We should instead follow preference copying standard “federal light the command our Constitution in test,” Rather, at 451 I n. contemporary situation, by limiting any our recommend a narrow and clear Texas stan- in exception possible the most way narrow predating dard to Texas looks law completely undermining without admin- the the Roofing, and which learns from Atlas state. istrative of this misapplication doctrine the feder- accordingly clarify existing I would any al courts. exception proceedings to administrative to Here TAB’Smembers are not entitled preserve right by jury the in all trial enforcing jury the state a trial because is except suits those in which state is the by public regulations imposing administra- enforcing regulation protecting statute Although penalties. tive this action is anal- public. broadly,

the If construed too how- claim, ogous common law to a nuisance ever, “public this exception even limited to protecting public’s here the state rights” destroy could our traditional reli- Indeed, jury system.39 despite right ance on to clean environment rather than an majority rights" recently "public concept 38. The notes the of other has been existence 40.The by statutory procedural muddled the federal courts. protections, as those such Granfinanci era, Nordberg, U.S. S.A. v. 109 S.Ct. in the contained Administrative Procedure and court, (1989), up although L.Ed.2d Act, Register art. Texas Tex.Rev.Civ.Stat. 6252- right jury holding to a trial for defendants 13a, 19(e). 852 S.W.2d at n. 26. While conveyance by sued for fraudulent a trustee important, certainly these measures not do con- bankruptcy, scope "public of its broadened complete jury If stitute a substitute for a trial. "involving rights" exception to include all cases guarantees right the Texas Constitution to trial rights integral parts pub statutory that are of a by jury, protection no lesser will suffice. regulatory adjudication lic scheme and whose Congress assigned to an administrative every legislatively some extent en- To action agency.” 55 n. n. 10. Id. at 109 S.Ct. at 2797 agency to an involves a trusted Agric. v. Union Carbide Prod. also Thomas right. by public At the same time even actions Co., 568, 586, 473 U.S. 105 S.Ct. parties may regulatory private have incidental (1985) (rejecting L.Ed.2d government the view that unquestionably and effects invested with a bring litiga suit in order for must News, Morning public interest. See The Dallas “public rights”). I tion to involve believe Appeals, Inc. v. Court reading "public rights” expansive such an Fifth J., (Tex.1992, orig. (Doggett, proceeding) consistent with the state would not be broad dissenting overruling protection right of motion leave to trial mandamus). jury petition to file for writ of in Texas. capacity lacked to chal- private of Business enjoyment tion individual’s use government. lenge actions of state property. litigants all the occasion How rare when right jury The trial is a critical issue, of an proper on the resolution agree guarantee. Denigrat- state constitutional truly extraordinary is such una- but how my protecting liberty, ing concern with this regu- nimity parties are two state when my writing as dismisses Association of latory agencies, the Texas “trumpeting.” 852 S.W.2d at 451 n. 23. League Business, the Sierra Club and the trumpet The has sounded from the call nonetheless, This, of Women Voters. very days Republic, earliest our herald- exceptional circumstance which we right jury, to trial a clarion to today as diverse find ourselves all of these preserve our citizens shout out their urged parties the court to decide have against It heritage attack. demands that adopted. Ad- matter the manner this right intrusion on this be narrow solely dressing question scope, clearly-announced thoughtfully all majority, insistence of the the belated de- majority’s refusal to considered. not in parties that this issue was asserted right certainty fine with its erosion of the that, precedent, under recent dispute; shaky by jury to trial sounds a weak and waived;42 and, alterna- had been chord, reflecting a lack of commitment to tively, adequately the record demon- guarantee. Attempting this fundamental the Texas Association strated the weak, strong let note drown the of Business under law initiate equivocation by seeks to hide its Why majority in- litigation. then does the my reference to conclusion that a writing? pass Because it dare not sist required anti-pollution is not under these up opportunity to access to our close id., statutes, by criticizing narrow, who to chal- those citizens choose thoughtful exception clear I have degradation, neighbor- lenge environmental today. drawn Id. abuse. hood destruction and consumer inviolate nature of the to trial test, Through narrowly crafted the ma- by jury guarantee demands that this vital come jority to TAB to extends invitation be circumscribed in the most extraor- telling public into the courts while other dinary any excep- circumstances that groups stay interest out. clearly narrowly tion to it be con- Although disagree I strued. do not devoting opin- today’s of While over half majority, the result announced the the litigation, the ion to a nonissue in this ma- analysis designed employed destroy jority inquiry only one of oddly limits its precious one of our most freedoms as Tex- organizations asserting standing the three permit ans. The alternative I offer would League Nothing said as to the here. implement our administrative bodies to ef- Club, the Sierra both of Women Voters and ficiently regulations, ensuring their while in trial intervened the court efficiency envelop that concerns do aligned as with the State. were defendants liberty.41 fundamental civil in Asserting the interests of its members quality, air as as its involve- water and well Standing

III. in the re- protecting ment state’s natural sources, stranger standing League The issue of is a of Women Voters the challenged litigation. standing the party No before this court claimed to defend Similarly, regulations. asserted the the Sierra Club ever Texas Associa- Institution, Charting 41. In view of recent Brookings a Future attacks nationwide on The for jury system, study Jury System recent determined that the Civil jury Our central is that conclusion the civil 42. As the recognizes, parties "the insist system is valuable and works well.... It is "broken," any question standing has been waived and therefore need not be [not] it system proven, and cannot be raised "fixed.” The tive, is a in trial court effec- resolving important appeal.” means of court the first time on 852 S.W.2d civil disputes. at 443-444. standing based its purpose (Emphasis supplied). its envi- sole pre issue ronmental enhancement and conservation in sented v. Marsh William Rice Coffee By ignor- natural resources. completely (Tex.1966), University, 403 S.W.2d 340 was ing groups proper par- whether these were whether the court appeals erred in dis by embracing ties and standing a federal case, motion, missing a on its own want participation, major- test hostile to their standing. that, This court held because ity erects new Texans deny barriers standing challenged had not been in the access to Texas courts. court, that deprive issue could not appeals court of of subject jurisdic matter result, To achieve this must Assuming tion. Id. 347-48. that stand what, recently, overcome until was viewed lacking was Authority Sabine River considerable obstacle—Texas law. Willis, 348, v. 369 S.W.2d 349-50 This repeatedly court has held that (Tex.1963),43this court nonetheless held standing may issue of not be raised for the erroneous, that dismissal was because the first time on appeal, parties either justiciable absence aof interest was not byor the court. In Texas Industrial Traf- first raised the trial court. We have League Texas, v. Railroad Comm’n fic cited repeatedly ap these decisions with 821, (Tex.1982), 633 S.W.2d con- proval. Agency See Central Educ. v. cluded: 7, Burke, (Tex.1986)(per 711 S.W.2d cu A party’s justiciable lack of must interest riam); American General Fire & Casual pointed out the trial in a court ... (Tex. ty Weinberg, Co. v. 639 S.W.2d 688 plea abatement, ruling written and a 1982); Johnson, 867, v.Cox 638 S.W.2d thereon must be obtained or the matter (Tex.1982) (per curiam). is waived. plea challenging standing again, ap- No Time and time courts of party] peals also was filed the district court. have refused to consider chal- [the lenges issue raised in was not first therefore waived, appeals and the court today, erred trial court.44 Until criticism in writing holdings on the issue at prior all. of our to this effect has 907, 1988, Despite (Tex.App. clear statement River Sabine S.W.2d Worth no — Fort deciding State, writ); assume "[w]e without that Sabine Barron v. 746 S.W.2d interest,” justiciable has no writ); 369 S.W.2d at (Tex.App. Reynolds no v. — Austin majority today “standing asserts that was Charbeneau, (Tex.App.— 744 S.W.2d present" in trial court in that case. denied); Champion Beaumont writ S.W.2d at 446 n. 9. Wright, (Tex.App.—San 740 S.W.2d to An denied); nio writ Texas Low-Level Ra See, e.g., Espiricueta Vargas, Authority Disposal dioactive Waste v. El Paso denied); (Tex.App. In writ — Austin County, (Tex.App. Paso — El tegrated Systems Dulaney, Title Data v. 800 1987, w.o.j.); Property dism’d Owners’ writ S.I. 1990, writ); (Tex.App. S.W.2d 336 Paso no — El 358, (Tex. Corp., Ass’n v. Pabst 714 S.W.2d 360 296, Euresti, (Tex.App.— State v. 797 S.W.2d 299 1986, n.r.e.); App. Corpus Christi ref'd writ — 1990, Corpus writ); Christi no Cissne v. Robert 293, Lancaster, City v. 675 S.W.2d Gonzales of son, 912, (Tex.App. 782 S.W.2d 917 — Dallas 1984, writ); (Tex.App. no 294-95 Mabe — Dallas 1989, Ashworth, denied); Broyles writ v. 782 769, Galveston, (Tex. City v. 687 S.W.2d 771 of 31, 1989, (Tex.App. S.W.2d 34 Worth no — Fort 1985, dism’d); App. writ [1st Dist.] — Houston writ); Robinson, 260, Horton v. 776 S.W.2d 263 Galveston, Develo-cepts, City Inc. v. 668 1989, State, of writ); (Tex.App. no Paso L.G. v. — El 790, (Tex.App. S.W.2d 793 [14th Dist.] 758, 1989, — Houston (Tex.App. 775 S.W.2d 760 Paso — El 1984, writ); no Pecan Plantation v. writ); Griffith no United Wilson v. Farm Workers of Ass’n, Inc., 626, (Tex. Owners 667 S.W.2d 628 760, America, (Tex.App 774 764 S.W.2d . —Cor 1984, writ); App. City Worth no Hous 1989, writ); Johnson, pus Smiley Christi — Fort of no v. Texas, Utility ton v. Public Comm’n 656 1, 1988, (Tex.App. 763 S.W.2d 4 writ of — Dallas 107, 1983, (Tex.App. S.W.2d 110 n. 1 McClain, 238, denied); Ex Parte 762 242 S.W.2d — Austin n.r.e.); Utility 1988, writ Comm’n v. ref'd Public J.M. writ); (Tex.App. no Goeke v. — Beaumont 951, (Tex. Corp., Co., 835, Huber 650 S.W.2d 955-56 Lighting Houston & Power 761 S.W.2d n.r.e.); App. Vaughn 1988), writ ref'd (Tex.App. 837 n. 1 other rev'd on — Austin — Austin Co., (Tex. (Tex. Bldg. grounds, 1990); Corp. v. S.W.2d Austin 620 678 Group 797 12 S.W.2d Medi Service, 1981), Surgical Civ.App. aff’d, Leong, cal 643 S.W.2d 113 Inc. v. 750 1988, — Dallas War-Pak, Rice, (Tex.1982); (Tex.App. S.W.2d 604 794-95 Paso Inc. v. S.W.2d — El denied); Groves, n.r.e.). City (Tex.Civ.App. writ Fort Worth v. writ ref'd of — Waco ma- (1983). The current by folk writings U.L.Rev. of authored primarily

consisted in the nation the first jority be appellate judge.45 one theo- standing this constitutional on anchor way to deal simple has a majority The ry- body of law—overrule with this venerable abrupt case, today’s making only one addressing prohibi- The authorities drastic, appear less while change in the law of support advisory opinions cited tion on fact, Texas Su- ignoring six the rest. course, way impli- in no of proposition, this preme Court cases must be overruled prece- standing. This question of cate the twenty-five no decisions less than opinions advisory dent-setting concern disapproved appeals of must be eagerness to markedly with the contrasts concept reli- today’s of reach result. very type writing within issue this prior decisions of Texas courts ance on the Dist. Indep. Sch. year. Edgewood last long slightest ceased to offer the has since (Tex.1991) 491, Kirby, 804 S.W.2d majority.46 on this restraint J., concurring); (Doggett, Carrollton- juris- Bulldozing path through new Indep. Sch. Dist. Branch Farmers forest, majority prudential vaults Dist., Indep. 826 S.W.2d Edgewood Sch. promi- standing and remarkable new J., dissenting) (Tex.1992)(Doggett, discovering that it suddenly nence as issued and retracted (advisory opinions just but two constitutional bases. one satisfy necessary to thwart efforts pillars constitutional And what unusual equity and effi- command of First, represents. finds each of these new schools). Writing on public ciency separation pow- proscription of the party, by any not raised issue advisory against ers doctrine issuance the law out revise reaches requires rigorous judicial opinions allegedly very es- standing today, me the seems to par- standing enforcement of even when no “advisory” opinion. sence of an ty link debates its existence. This between newly-announced constitu The second powers separation is not equally ironic—our state’s tional basis is predicated directly prior relevant courts shall guarantee that vital decision,47 “[a]ll entirely instead is court but I, 13, in some open,” Const. art. premised antagonistic openly on an article they be way, mandates that inexplicable groups. for environmental requires judi continual closed to some 444, citing Scalia, Atonin S.W.2d at to enter. monitoring attempt who cial of all Standing Ele- Doctrine as an Essential for this Powers, any type is cited Separation authority No ment 17 Suf- Dist., Indep. Dep’t Sch. Petty, Branch 45. Texas Mental Health v. ton-Farmers J., (Tex.1992) (Doggett, dissent (Tex.App. 1989, S.W.2d at 539 writ dism’d — Powers, J.); (discussing Utility ing) rejection of its own w.o.j.) (opinion by Public year previously); Corp., less than one J.M. decision issued Comm'n v. Huber 650 S.W.2d n.r.e.) Sterling, (Tex.App. Co. v. 822 S.W.2d Stewart Title Guar. writ ref'd — Austin J., Powers, dissenting) (majority J.); (Tex.1991) (Doggett, (opinion by Dep’t Hooks v. Texas Resources, looking in disregards precedent, (Tex.App.— own recent its Water 645 S.W.2d 874 case); Hosp., n.r.e.) Rose v. Doctors (opinion Pow stead to overruled Austin ers, J.); writ ref'd J., (Tex.1990) London, (Doggett, 801 S.W.2d see also Kircus v. 1983, rejection 869, writ) of dissenting) (disapproving of recent (Tex.App. no 872 n. 3 — Austin C.J.). controlling precedent). by Phillips, (opinion clearly Supreme See, (Tex.1992) Boyles (Doggett, Court has e.g., 47.The United States v. Kerr separa J., standing implicate dissenting) (objecting majority’s overruling does not stated that to Cohen, powers v. Supreme per See Flast of concerns. Texas Court decision tion of landmark 1953, 100, 1942, 83, resulting 20 L.Ed.2d mitting recovery negligence S.Ct. for in 392 U.S. 88 Packer, distress); (1968) ("The particular question whether v. 827 947 emotional Walker 833, (Tex.1992, party proceeding) person proper the action orig. is to maintain S.W.2d 835 not, force, J., separation of (Doggett, dissenting) (noting majority’s raise its own “mass does judicial problems improper precedent,” powers to encompassing related of "a dozen execution in other Supreme areas committed or more Texas Court cases and count interference Government.”). appeals”); of Carroll branches of ... less decisions of the courts 470

proposition “open” quirement that really presentation courts of complaints means “closed” Nothing courts. the his coupled preservation lower court with tory provision or text justifies this briefing reviewing court. See reading nor any previously has Texas court 52; 74(d), 131(e). Tex.R.App.P. Appellate attempted interpretation. such converse courts face de- considerable difficulties in guarantee This today is used ciding presented an not issue to the trial two-edged as a sword: in court; ordinarily, necessary facts will provision vokes the courts bar envi not fully developed. be The ef- unstated groups ronmental seeking judicial as opinion fect of today’s require tois trial enforcing laws, sistance in while develop to undisputed facts as very opinion misinterpreting same pro subsequent appellate issues or risk rever- vision to allow continued violation of stat sal. This not an is effective use our utes protecting precious our natural res limited resources. ources.48

Then, flourish, with The standing requirement a final pre- is that issues first be conveniently classified as a nonwaivable sented to the trial court serves another component subject jurisdiction. matter preventing parties from “laying function— today, rule, Until Texas followed log”: behind the adopted by many of sister states con- for requirement reason that sidering issue, objections to par- litigant preserve predicate a trial for ty’s standing are if waived not first raised complaint appeal on is that one should trial court.49 No Texas case is cited waive, permitted to, consent proposition standing part neglect complain about error at subject jurisdiction nonwaivable matter be- surprise opponent and then his cause, until today, repeated- this court had appeal by stating complaint his for the ly precisely very stated opposite —that first time. jurisdictional.50 is not Gregory, 919, Pirtle v. 629 920 S.W.2d good reason determined (Tex.1982). While this court has con excepted is not from tradi- by ambush,” tional rules of appellate procedure. demned “trial v. Our Gutierrez appellate system predicated Dist., on the re- Indep. Dallas School 729 S.W.2d I, 53, 599, supra. (1992); 48. See section Tyler Pipe 413 S.E.2d 603 n. 1 Industries, Revenue, Dep’t v. Inc. State 105 See, Robinson, e.g., 272, Brown v. So.2d 354 318, 123, (1986); Poling Wash.2d P.2d 715 128 v. (Ala.1977); 242, Nangle, 273 Jackson v. 677 P.2d Serv., 603, Physicians Wisconsin 120 Wis.2d 357 (Alaska 1984); 250 n. 10 v. State Farm Torrez 293, (App.1984). majority’s N.W.2d Co., 223, 511, Mut. Auto Ins. 130 Ariz. P.2d 635 cases, attempt distinguish odd some these (App.1981); City 2 513 n. Cowart v. West predicated standing, all of which are terms of Beach, 673, (Fla.1971); Palm 255 So.2d 675 involving solely question of whether the Lyons King, (Fla.App.1981); v. So.2d 397 964 litigant proper party was a "real in interest” has Housing Auth., Development v. Illinois Greer 122 previously published never been drawn in the 462, 531, 552, 561, 120 Ill.2d Ill.Dec. 524 N.E.2d addressing (1988); Rothrock, decisions of Texas court 582 Trust Matter 403, (Iowa 1990); question standing. cited N.W.2d v. See cases at notes Tabor Council Inc., Tobacco, Burley supra, infra. (Ky.App.1980); Shop v. Jackson Mall Sanford Co., (Miss.1987); ping Ctr. 516 So.2d League, 50.See Texas Industrial Traffic Dinkins, Fossella v. 352, 1019, 66 N.Y.2d 495 N.Y.S.2d 822-23; Agency S.W.2d at Educ. Central (1985); 485 N.E.2d Public Burke, 8; 711 S.W.2d at American Fire General Square Cuyahoga County Tower One v. Bd. of 688; Casualty Weinberg, & Co. Revision, App.3d 34 Ohio 516 N.E.2d Johnson, Cox v. 638 S.W.2d at 868. To avoid (1986); Pozsonyi, 2 n. Federman v. these, overruling claims all three (1987); Pa.Super. A.2d McMul recognized subject jurisdic- that lack of matter Zoning Township, len v. Harris Board initially True, appeal. tion can be raised on but 119, (1985); Pa.Cmwlth. A.2d 502 494 Interna ignored subject is the conclusion of each that State, Depository, tional v. Inc. 603 A.2d jurisdiction matter be waived cannot while (R.I.1992); Miller, 1122 v. State 248 N.W.2d standing can be. (S.D.1976); League, Princess Anne Hills Civ. Trust, Susan Inc. v. Real Estate Constant 243 Va. (Tex.1987),today majority pro Agricultural Implement Workers of Brock, 274, 290, on appeal.”

motes “ambush America v. U.S. repre- If 91 L.Ed.2d 228 S.Ct. Three purported policy justifications for inadequate, a of sentation is conflict offered, majority’s not actions are with exists, judg- interest between members single supporting authority. a The first preclusive ment will have minimal effect. standing concern a is is that strict rule completely barring access Id. Instead of prevent litigation. necessary to collusive courts, safeguards procedural can law, filing Under fictitious Texas a any potentially ef- ameliorate overbroad counsel, by contempt suit constitutes Tex. Wright, generally fects. See Charles A. 13, and as for R.Civ.P. serve the basis H. Cooper, Arthur Miller & Edward R. sanctions, including a host of dismissal 4456 at Federal Practice & Procedure § 2b(5). prejudice. Tex.R.Civ.P. 215 (1981 Supp.1991). & Nor Texas judiciary does our lack the abili ty to reject litigation. majori- collusive The manufactured nature Felderhoff (Tex. Felderhoff, ty’s 473 S.W.2d concerns becomes all the more evident 1971) (“We judi our experience believe that laws and when the real world of Texas is system adequate point cial are to ferret out and The is considered. unable to prevent collusion....”); single example during Whitworth v. to a of collusion cf. Bynum, (Tex.1985) rule, 699 S.W.2d three our decades Texas which allows uphold waived, (refusing to standing Texas Guest Statute the issue of to be has collusion). danger Adhering because of place. During period there been this precedent today way examples in no under would have likewise been no of lower power mine making grab extrajurisdiction- dismiss fraudulent suits. courts power, oppressed litigants al nor of shack- today’s proclaimed second virtue by judicata led the res effect contrived holding guarantee is the that the lower litigation. exceeding courts will be restrained from jurisdictional their powers. 852 In defining requirements state for stand 445. This solely ing, way concern is derived no are in bound federal the federal law jurisprudence upon juris mandate that a federal founded converse appellate court duty-bound verify not principles dictional from our own. Texas jurisdiction its own but of the courts can afford their citizens access to courts, lower as courts well. Federal how justice they circumstances where would ever, jurisdiction; have limited Texas have been unable establish courts not. Our do cre City Ange Constitution the federal courts. See Los general 95, 113, ates courts of jurisdiction, Lyons, invest les v. 461 U.S. 103 S.Ct. (“state all “judicial (1983) them with power 75 L.Ed.2d 675 V, impose State.” Const. art. 1. The not the same courts need requirements differences are in our procedural govern evident ... federal-court rules. While a federal court proceedings”); must affirma Doremus v. Board Edu tively cation, 429, 434, 394, 397, jurisdiction parties ap ascertain over 342 U.S. 72 S.Ct. it, pearing (1952) (state jurisdic before a Texas court’s L.Ed. not re lacking tion is presumed proven controversy” until “case or limita strained Constitution); contesting party. 120a. Tex.R.Civ.P. tions of Federal Greer Auth., 122 Housing Development Illinois Lastly, majority expresses concern as Ill.2d 120 Ill.Dec. N.E.2d judicata potential to the res effect other (“We not, course, (1988) required litigants judgment in the rendered justicia- follow Federal on issues of law genuine standing. absence standing.”). bility and concern, at 445-446. Aware of this very judiciary federal that this differences between Texas Con eager so to emulate failed it perceive stitution and the Federal Constitution problem significance. only justify, require, citizen Internation- but also Union, Automobile, Aerospace al groups United accorded a of ac broader cess to our state courts. The Texas Consti relations are a statute” affected express tution contains no limitation of rights. seek a declaration of those jurisdiction courts’ to “cases” or “contro Civ.Prac. & (emphasis Rem.Code 37.004 § versies,” provided by the federal char supplied). III, Instead, ter. U.S. Const. art. it § This previously court has extended its affirmatively protects rights of liti “open approach groups repre- courts” to gants gain access judicial system: to our senting the interests of their members.52 All open, courts shall be every per- In Highway Texas Comm’n v. Texas Ass’n him, lands, son injury for an done in his Importers, Steel 372 S.W.2d of (Tex.1963), goods, person reputation, shall have permitted a business associ- remedy by due course of law. challenge ation to an administrative order. Tex. Const. art. 13. As this court has Although the order addressed im- recognized, port foreign products of highway con- provision’s wording history The struction, recognized standing this court of importance right demonstrate the of the organization foreign an whose interest of right access to the courts.... of imports was not so limited: access to the courts has been at the respondents] Some of are owners of [the foundation of the American democratic imported foreign products manufactured experiment. highway suitable for pur- construction Hanlon, LeCroy 713 S.W.2d poses. All actively engaged of them are (Tex.1986). imported the sale and use of manufac- products_ parties tured

This clear- constitutional mandate is reflected [S]uch ly right litigable adopting decisions of this have the interest to “open court approach standing general challenged courts” have the ... Order declared standing particular. associational null and void. occasions, recognized On several we have Similarly, in Touchy Id. at 531. v. Hous- power Legislature of exempt Foundation, Legal ton 432 S.W.2d 690 litigants proof “special injury.” (Tex.1968),the court considered whether an Adjustment, Scott v. Board 405 S.W.2d organization attorneys had (Tex.1966) (standing may be shown against corpo- maintain a suit a charitable even in the particular damage); absence of ration to restrain violations of ethical can- Spence Fenchler, 107 Tex. 180 S.W. governing practice ons of law. Based (under (1915) statute, “any citizen” solely special attorneys on “the interest able to injunction, showing seek without profession,” have in their held court particular personal damage).51 interest or standing was established. enacting Declaratory Judg- the Uniform Act, Legislature “open approach53 Touchy ments courts” granted standing: quite a broad Highway and Texas Commission is person rights, “whose legal status or other TAB sufficient to allow access to the Texas past acknowledgement legislative 51. Our City 53. See Water Foundation Texas v. Safe power expand access to Texas Houston, courts is incon- (Tex.App . —Hous todays sistent conclusion that we must n.r.e.) (recogniz ton writ ref'd [1st Dist.] Tushnet, narrowly limit access. See Mark V. ing precedent according of this court as broad Standing: The New Law A Plea Abandon- dism’d, standing), app. 469 U.S. ment, (1977) (because 62 Corn.L.Rev. 663 court (1984); S.Ct. 83 L.Ed.2d Texas Industrial question legislative power decisions do not Texas, League v. Railroad Comm’n Traffic statute, standing by they suggest confer (discussing (Tex.App. Austin) S.W.2d 187 Su — standing ed). constitutionally ground- rules are not preme expansive approach Court’s courts), rev’d, to allow access to Texas Despite participation of associational liti- (Tex.1982) curiam), (per S.W.2d 821 overruled court, gants before this we have never before Bd., by Tex. Ass’n Bus. v. Tex. Air Control questioned See, standing on our own motion. (Tex. 1993). S.W.2d 440 e.g., Club, Indep. Austin Sch. Dist. v. Sierra (Tex.1973). S.W.2d 878

473 courts.54 an standing organization is often to create effective These two associational they ignored vindicating for interests that today, cases are all but brushed vehicle particular setting economy aside forth “no test.” as share with others.” Judicial can, 852 at 446. in litigant single S.W.2d a promoted when one lawsuit, many represent mem adequately in merits of Yet in these cases which the interests, avoiding thus bers with similar standing preserved appellate are court repetitive costly actions. wider review, applied the Texas test been range for asso of resources often available complicated. simply We look a to whether effectiveness in liti ciations enhances their in party has a stake the action sufficient to gation: presentation is ensure adversarial judgment to sues and whether court’s features, advantageous Special both to will have effect on those before it. See represented and to the the individuals Engineers v. City Board Water San whole, judicial ... distin- system as Antonio, 155 Tex. 283 724 S.W.2d guish by associations on behalf of suits (1955) (“there controversy a real shall be suing An their members.... association parties, actu between the which ... will be pre-existing draw upon can reservoir ally determined declaration expertise capital. “Besides financial sought.”). Because both of consider these resources, organizations spe- often have case, met in the instant refer ations are expertise cialized and research resources wholly unnecessary. federal law is ence to relating subject to the matter the law- however, justify meddling Today, to plaintiffs lack.” suit that individual ... law, standing Texas declares These assist both courts and resources that “we foresee difficulties” not here with plaintiffs. TAB, organi in future involving but cases 289-90, Id. at 106 S.Ct. at 2532-33. standing. zational 852 S.W.2d at 446. To cases, injury some that is substantial as an perceived yet totally cure these but un many may to have an individual financial woes, majority imposes realized a diffi challenge impact too eco- small to make meet, cult easy manipulate standard represen- nomically Associational feasible. drawn from federal law “that lends itself redressing means of tation be the needing our use.” Id. at 447. Never an in degree is limited conduct when the harm impose more require invitation to federal society segments but substantial are af- citizens, ments on Texas challenging Additionally, poli- fected. our Texas writes into law books the con government, organizations gen- cies of are troubling standing fused and federal limita erally less susceptible than individuals surprisingly, tions. Not that law has taken they chal- retaliation the bureaucrats turn, a regressive denying standing pub lenge. associations, lic including interest those seeking protect the environment. See ignored majori- These as the benefits are Nichol, Jr., Abusing Standing: Gene R. A ty henceforth the declares that Wright, Comment on Allen v. 133 U.Pa. in Texas bring suit associations to (“One (1985) perhaps L.Rev. could three-part will be constricted federal forgiven confusing standing’s agen Washington test set forth in Hunt v. State Right.”). da of the New with that Comm’n, Apple Advertising U.S. 2434, 2441, permitting S.Ct. L.Ed.2d an benefits association (1977), “(a) its requiring the concerns of members represent its members standing to recognized are would have sue manifest. As otherwise United Workers, 290, 106 (b) it right; 477 U.S. at their own the interests seeks to Auto S.Ct. organization’s primary people join protect germane reason “[T]he Bass, ton, (Tex.App. Hunt v. Accord S.W.2d 190 [1st — Houston (Tex. 1984) n.r.e.), dism'd, (recognizing statutorily-granted app. ref'd Dist.] writ (1984) litigants to seek U.S. L.Ed.2d 6 mandamus to re 105 S.Ct. delays (drinking group operations); had duce substantial court water consumer water). city City Foundation Water Hous to contest fluoridation of Safe purpose; (c) neither the claim asserted in the outcome of the controversy’ as to nor requested requires the relief partic- warrant his invocation of the court’s reme- ipation of individual members the law- powers dial Warth, on his behalf.” suit.” 498, 2205, U.S. at 95 S.Ct. at quoting Bak- Carr, 186, 204, er v. 369 U.S. 82 S.Ct. Yet the Hunt test won’t hunt in Texas. (1962). fact, 7 L.Ed.2d 663 adopted It is purportedly because of the closely bare-bones ap- test resembles the similarities between the state and federal proach that Texas courts long constitutional have chosen underpinnings of the stand- ing doctrine. To Two critical follow. the extent ig- factors are Hunt constructs (1) significant nored: differences be- additional barriers to judicial access to our tween the Texas and United States system, they Consti- wholly are court-created.56 (2) tutions and the fact that much of feder- justification No adoption for their is con- standing al doctrine is not mandated tained in the majority opinion. charter, federal imposed solely but is on Moreover, turning to the federal law grounds judicial “prudence.” Warth standing, majority invokes a doctrine Seldin, 490, 498, v. 422 U.S. 95 S.Ct. that has been heavily criticized more (1975) (“This 45 L.Ed.2d 343 [stand- See, justifiably perhaps any than other. ing] inquiry involves both constitutional Nichol, e.g., Jr., Gene R. Rethinking limitations on jurisdiction federal-court Standing, (1984); 72 Cal.L.Rev. prudential exercise.”). limitations on its Tushnet, Mark V. The “Case or Controver The majority grave works a disservice to sy” Controversy, 93 Harv.L.Rev. our Texas by equating Constitution our (1980). Even the United States provision, affirmatively guar- Supreme recognized Court has that federal anteeing all Texans access to our standing requirements “iceberg have an system, express with an federal constitu- quality,” Cohen, 83, 94, Flast v. 392 U.S. tional limitation on the to seek re- 1942, 1949, (1968); 88 S.Ct. 20 L.Ed.2d 947 dress in Despite court. the fact that the yet course, navigate fails to provisions two vastly are different in lan- captain Titanic, not unlike the guage, history purpose, away would steer Texas well from this nonetheless determines to “look to the potential disaster. more jurisprudential extensive experience of the federal courts” to determine stand- concept “employed ing. clearly This is an erroneous course. legal refuse to decide the merits of a Davenport Garcia, Wright, claim.” Charles A. Arthur R. Mil- (Tex.1992, orig. (in proceeding) blindly Cooper, ler & Edward H. Federal Practice adhering law, to federal “based on differ- & Procedure at 338. Critics of the § language, ent history different and differ- complexity uncertainty doctrine’s have cases, ent our treasured state heri- “[f]rom recognized subject manipu- how it is to tage, law and institutions ... derive [we] “standing lation: ... is no more than a nothing_”). convenient tool to avoid uncomfortable is-

Even the disguise federal constitutional sues or surreptitious ruling constraint one, simple is a looking to (citing whether “the the merits.” at Id. commenta- plaintiff ‘alleged ries).57 personal Important such a rights unpro- stake can be left also, requirements allegedly necessary e.g., Forge These Valley College 57. See Christian protect “the members’ best interest.” Separation Americans United Church and Perhaps organization’s State, 752, 768, S.W.2d at 447. an mem- 454 U.S. 102 S.Ct. position bers are J., in a better (1982) (Brennan, than this court to dissenting): L.Ed.2d 700 determine what is in their best interest. Court, Chayes, Supreme Abram Litigation Term — Foreword: Public Law and the Court, (1982) (Hav Burger Wright, A. 96 Harv.L.Rev. Charles Arthur R. Miller & Ed- formula, Procedure, ing ritually Cooper, ward H. recited the “the Federal Practice & 3531.3, (“The up problems standing] § at Court then chooses sides and decides the [of Wolff, enough case.’’); compounding Standing are difficult without the Michael A. to Sue: Ca attribution.’’). Standard, effect of pricious Application Injury Direct 3531.3, permitting citizens judicial opinions as a result. 416-17 cal of

tected Id. upon our nat complain harm inflicted (“Standing present decisions courts with 443-444, citing of un- Ato opportunity to avoid the vindication resources. Id. at ural disguise Scalia, popular rights, Standing worse to as an even nin The Doctrine of opaque Separation decision on the merits in stand- ... Element Essential ing terminology_ and ar- Powers, Unarticulated 17 Suffolk U.L.Rev. bitrary predilection, standing, de- cast as Rather than a careful consideration rights judicial protec- feats deserve unique Texas precedent and our tion.”). Constitution, yet today Texans are handed during years Even the three unthinking embrace of federal law. another here, particular pending cause has been prece “guidance” from federal Claiming hard at work to federal courts have been dent, majority over S.W.2d manipulate standing requirements to bar treating standing as a Texas cases rules all seeking judicial public groups interest from issue, unnecessarily then modi procedural rights mem- vindication of common to their precedent addressing the fies all Texas Lujan In Fed- bers. v. National Wildlife standing. explanation, merits of Without eration, 497 U.S. S.Ct. opinion simply photocopies into our today’s (1990), nationally-recognized L.Ed.2d 695 Texas law the federal law of stand books group challenged a de- environmental new complexi with all of its much-criticized velopment classification for certain federal again majority chooses ties. Once allegedly wilderness areas that violated Washington for Texas more wisdom when several federal statutes. The suit was dis- thinking in what we need is more Texas standing missed upon for lack of based a Washington. County See Bexar Sheriff's rigid requirement construction of the Davis, 802 Civ. Service Comm’n v. injury to the association’s members. This 659, (Tex.1990) J., (Doggett, dissent widely sig- decision has been criticized as ing). impairing nificantly ability public corporate today While members groups interest represent their mem- per- the Texas Association of Business are bers, particularly protect those that seek to challenge bureaucracy, to- mitted to this nation’s environment and natural re- reasoning this same will be em- morrow Today sources.58 the majority eagerly po- interest, ployed public neighborhood, to bar give sitions itself to the same treatment to groups and consumer environmental petition those Texans who would our state vindicating rights of their protect members. public interest. The Today’s opinion only repudiates not our majority conspicuously relies on approach to access to Lujan, past “open courts” S.W.2d at but also em- judicial system eliminates the braces the extremist but also anti-environmental propounded openly long-recognized appellate requirement stance in an article criti- (standing lenge 20 St.L.U.L.J. barrier Actions Under the Land With "raised Government to, degree hostility Program, or lowered based on the drawal Review the Use Lands in for, or favoritism consideration of the issues on Adversely Vicinity the Order Lands Affected Broderick, merits”); Op their Albert The Warth Management the Bureau Land Does Not Standing tional Doctrine: Return to Judicial Su Injury Lujan Direct v. National Constitute — 467, 504, premacy? 25 Cath.U.L.Rev. 516-17 Federation, 2 Seton Hall L.J. Wildlife Const. (1976). Shinn, Note, (1991); Misusing Michael J. Proce Law dural Devices to Dismiss an Environmental Juni, 58. See Katherine B. Steuer and Robin L. suit, (1991); Lynn 904-12 66 Wash.L.Rev. Access Court Environmental Plaintiffs: O’Donnell, Note, Robinson New Restrictions Standing Lujan Doctrine in v. National Wildlife Litigation: Standing and Final Environmental Federation, 15 Harv.Envtl.L.Rev. 232-33 Lujan Agency Wildlife Robichaud, Note, Action v. National (1991); Lujan Sarah A. v. Na After Federation, (1991); 2 Vill.Envtl.L.J. Supreme tional Wildlife Federation: The Court Comment, Hays, Standing Tightens Bill J. and Environ Standing the Reins on Environmen (1991); Policy Impact Groups, mental Judicial and the tal 40 Cath.U.L.Rev. Law: 470-74 Cristiano, Note, Federation, Lujan Determining Kan. V. Maria v. National Wildlife Organization's Standing Environmental to Chal- L.Rev. preserved. error majority agree I with the preliminary portion of charged beyond well traditional constraints Cornyn’s opinion, Justice writing. in its correctly regulatory sets forth the scheme dispute. and basic To the extent standing, this case is about still, it is closing about about agree I substantially with Part II of door, standing open. courthouse once For Doggett’s opinion jury Justice and his today extends a invi- view, my discussion. In whether or not a tation to those who would harm our envi- purposes suit is a “cause” for ronment to act fear of citizen without chal- to a trial is not controlled whether lenge in the Texas courts. it was first determined an administra agree agency. tive I also III with Part IV. Conclusion Doggett’s opinion Justice relating to stand Today the environment is the immediate ing, I which will further I address below. pollute rivers, victim. Those who our re- agree with Part II Cornyn’s of Justice ma air, lease damage toxins into our jority opinion. The statutes not condi promptly penalized. land cannot be In- prepayment tion access to the courts on stead, only very after the slow wheels of penalty. principle here is the same judicial system stop have creaked to a supersedeas as for a bond. The statute will protection violators of environmental may right pre condition the the to restrain laws be held accountable. vailing (the State) party executing from Yet the environment is not the whole (administrative (enforcing) judgment its or story. may pure Much as a river seem and der) posting on the of a bond for the full clear place illegal even at the where sew- not, however, amount. It condition age it, being pumped is danger into appeal judgment post to from opinion may a court’s not be immedi- imposed. of the penalty Dilling full ately apparent Only on its surface. after Putnam, 1, 5-6, ham v. 109 Tex. 14 S.W. reasoning applied is in other cases is This is true even if that severity resulting of the harm to our “judgment” takes the form of an adminis system justice of Today’s impair- revealed. agency trative decision. Administrative ment of ability of concerned citizens to decisions, agency part, for the most entitle rights vindicate the many of in our courts appellant only an “substantial evidence” majority’s punch and the knockout opposed To further de novo review. by jury of trial in will unfold future regulated prepayment burden those with participation ordinary cases to bar citi- “judgment” only as the alternative zens in Texas courts. total loss of even substantial evidence re The mess Texas is not with our concept con view violates the basic of our misinterpretation environment but with the open stitutional in Texas. courts of the law. (or non-issue) standing, As issue adopts position in effect Justice, GAMMAGE, concurring and jurisdic- federal courts that is a dissenting. question. it cannot tional Otherwise be Though I prefer sepa- would not to write fundamental error to addressed no when rately, I I agree entirely find am unable to party Standing raises it. was not raised any single opinion with of the court’s other and should not be addressed this cause. concurring members. I must write this because, dissenting opinion assuming standing and I an element of while Even is agree cause, disposition subject with the I jurisdiction, this matter the court disagree portions with substantial of the should not in this case. write on the issue reasoning language majority’s though judgment Even is void and sub- opinion agree part I ject any point of Justice to collateral attack at if there Doggett’s concurring dissenting opin- jurisdiction, subject is an absence of matter Co., ion. Phillips see Mercer v. Natural Gas very presumed is at its jurisdiction is never (Tex.App. — Austin misleading. denied), unassigned error of lack best writ only if jurisdiction should be addressed the im- this discussion is Connected with jurisdiction lacking. is in fact Since that in another footnote plicit assertion standing in majority concludes there was standing” that is “jurisdictional there is a case, party no raised its this and since join a real “objections different issue, there is no reason to existence as party’s capacity to party in interest or to a all, if address it at even it would be fundo standing.” jurisdictional than sue rather lacking. error if mental n. 7. These remarks are 852 S.W.2d at 445 attempt distinguish the eases made in an majority’s for the discussion is The basis Doggett from those of cited Justice “[sjtanding its that sudden revelation holding is not other states implicit concept subject matter en- jurisdictional. suppose I we should be Their jurisdiction.” 862 S.W.2d at 443. that there are some couraged to find out implication comes opinion then claims this “standing” juris- not be types of that will powers separation from the doctrine using dictional, but it occurs to me provision Texas Con standing” the court “jurisdictional the term curiosity legal stitution. It is a scholar jurisdic- begging question it is however, ship, prior years —if the 156 tional, then it must be fundamental. existence, court its never before cases, at least as problem is that the Texas standing “implicit” found in those constitu them, “standing” in terms of I read define provisions, tional but in fact wrote that sue,”1 is one party’s capacity “the standing could be waived and hence was given non-jurisdictional example we are not fundamental error. Texas Indus. Traf opinion standing. majority The is calculat- Comm’n, League v. Railroad 633 fic no, guaranteed cause confusion be- 821, (Tex.1982). ed— cause Dog S.W.2d 823 —to Justice henceforth apparently this court will gett’s opinion adequately why addresses litigants case-by-case a basis wheth- tell on implication provi there is no from those in standing problems er their cases standing jurisdictional. sions that is merely formal. “jurisdictional” or majority’s struggle standing The put create this confusion. There is no need to prompts in issue when it is me not however, it, re- fomenting majority’s The opinion address two statements in its which extent. I quires I address it to some that plain strike me as misleading just either pre- “subject matter never will discuss the wrong. asserts, majority The without cita first, into proposition then weave sumed” authority, tion “[s]ubject that matter standing” language. “jurisdictional jurisdiction presumed,” 852 never S.W.2d 443-444, jurisdiction is repeats agree subject and in a I that matter footnote that respect. Subject in urging Doggett presumed assertion in “Justice one that never subject exists the nature jurisdiction jurisdiction confuses matter with matter when category personal jurisdiction. Only general the latter can of the case falls within empowered adjudi- be waived uncontested. Tex. of cases the court is when See applicable constitutional and R.Civ.P. 120a.” 852 S.W.2d at 444 n. 5. cate under the majority’s subject statutory provisions. Pope Fergu- The claim v. matter adopts Engineers, of course. The Before it a federal test and federal from Board Water gloss, majority "general asserts the test for meaning "standing” depends precise in fact standing quotes in Texas” is what it from Board majority adopts federal the context. The on Antonio, Engineers City Water v. San 155 stated, gloss, have "Gen and the federal courts 111, 114, 722, (1955). 283 S.W.2d 724 The largely standing about to sue are eralizations majority overrules the Texas Industrial Traffic Data Proc. worthless as such.” Association of case, League which addressed in the in the 150, 151, Orgs. Camp, S.Ct. v. 397 U.S. 90 Serv. “justiciable context of interest” discussed 827, 829, (1970). Using "stand 25 L.Ed.2d 184 more recent cases of v. William Marsh Coffee ing” party’s legal capacity to sue is to mean (Tex. 1966), University, Rice 403 S.W.2d my description labyrinth of the of different Willis, best Authority Sabine River 369 S.W.2d 348 (Tex.1963). interchangeably. majority of the differed uses context cases cases 950, (Tex.1969), Peters, son, there not. Brown 127 Tex. 445 S.W.2d cert. was 129, (Tex.Comm’n denied, App. S.W.2d 397 U.S. 90 S.Ct. 1936). Despite supposed require- B (1970); Briggs, L.Ed.2d 405 Bullock v. pleadings juris- 1981, ment that demonstrate (Tex.App. S.W.2d — Austin diction, have also held that unless the n.r.e.), denied, ref’d 457 U.S. writ cert. pleadings affirmatively show there is no 1135, 102 S.Ct. 73 L.Ed.2d 1352 presume the ex- jurisdiction, the court will sense, presump In this there is no jurisdiction in the trial court. istence tion because if the case is not one over Co., Equipment 779 S.W.2d Peek v. Serv. which the court had constitutional and stat (Tex.1989).2 This is not the “pre not utory authority to act one does subject jurisdiction sense which matter subject jurisdiction to make sume” matter matters. If a “presumed” as to collateral justice peace grants If a it valid. alleges jurisdiction and defendant contests divorce, judgment is void because pleading plaintiffs fraud- a verified type is not the of case the constitution and pleading purpose for the ulent amount was court, ap legislature entrusts to that court, conferring jurisdiction on the trial “presume” jus pellate courts will judge judgment still renders but jurisdiction had order to make tice court case, juris appeal the fact issue judgment valid. presumed against decided diction is addresses here But what Heidrick, defendant. Ellis v. “standing” is not a under the rubric of (Tex.Civ.App. Antonio — San type assuming jurisdiction court over a Booth, 'd); ref also Maddux v. writ see dispute grant the statutes do not (Tex.Civ.App. — Amarillo undoubtedly power. it The district court writ) county (appeal no bond declaratory judg- jurisdiction had over the court did not show file- court to district there, injunction brought ment and action making appeal timely, held “the mark may entertain declara- since district question being made in of such a absence tory judgment injunction actions. presumption is that the the trial court the gratu- question Further, if the jurisdiction”). court had itously to an inci- addresses here is related judge sits is very power of the who party dental issue. pre authority too question, that assign presumed is that sumed. It expressly This court has held that some judge properly was made ment of a retired party relating facts or similar matters statutory requirements pursuant to all ab presumed. example, For issues are contrary in express showing to the sent an jurisdiction many years subject matter Co., Texaco, Inc. v. Pennzoil the record. by the stat- for certain trial courts as set 768, (Tex.App. 855 729 S.W.2d amount, — Houston jurisdictional utes included a n.r.e.). 1987, writ ref 'd [1st Dist.] sometimes as a minimum amount in contro- maximum versy and sometimes as both a standing that type of lack of There is a Atkins, 160 and minimum. v. fundamental formerly Womble held to be this court (1960). 363, 370, 294, 331 299 interest in joint S.W.2d there was a error. When jurisdiction, litigation, so far and the This court has held that in the property involved concerned, controversy joined party, is as a joint as the amount owner was not pleadings party unless facts that the defect was by is determined court earlier held error that could fraudulently or in bad fundamental party jurisdictional disclose that a appeal. time on appear to make it raised for the first pleaded faith claims be prompted rule caused injustice which that jurisdiction there over the case where was really Co., Phillips explained Richardson that 419 Justice 2. Richardson v. First Natl Ins. Life affirmatively pleadings (Tex.1967), upon by if ma- meant that relied S.W.2d 836 jurisdiction, then the case pleadings was no jority proposition must showed there for the dismissed, otherwise there was “affirmatively jurisdic- but court has should be show that the 446, cause,” presumption omitted from the that the amount S.W.2d at was tion to hear the expressly distinguished 852 Peek, support jurisdiction. 779 pleading would in Peek. This unani- opinion S.W.2d at 804. written for the Court Chief mous

479 ” ous) jurisdiction “indispensable this court to those exists. reduce Fed.R.Civ.P. 8(a). necessary parties suing to near nonexistence. a statute must party A under Equip., Tyra, Inc. Petroleum Anchor v. under that stat- establish his to claim 891, (Tex.1966); 406 S.W.2d see also order to ute—his establish standing —in Indus., Inc., Cooper 513 v. Texas Comm., jurisdiction. Brother- General Gulf 200, (Tex.1974). S.W.2d It was no acci- Eng’rs v. Missouri- hood Locomotive dent that listed the this court case which 323, Co., 320 U.S. 337- Ry. Kansas-Texas overrules, majority today Texas Indus. 152-53, 38, 146, (1943). 88 L.Ed. 76 64 S.Ct. Comm’n, League Railroad v. part jurisdic- Consequently, standing is a Traffic (Tex.1982), S.W.2d 821 as one of the cases procedure, related to the tion under federal showing unassigned or “[fundamental requirement “controversy” “case” or applied error is a doctrine” discredited federal constitution. Association Data to these defect-in-party type collateral 150, Camp, Proc. 397 U.S. Orgs. Serv. Johnson, 867, claims. Cox v. S.W.2d 90 S.Ct. L.Ed.2d 184 (Tex.1982). more After than a hundred (1970). But there is no “case” or “contro- years trying er- to narrow fundamental versy” in the language limitation exceptions, majority today ror takes a general Constitution. In state quantum leap backward. jurisdiction, power entertain suit In appeal of or other direct attack on prohibited by either federal consti- judgment, a trial court default it is service presumed. tution or federal law Cin- on the process defendant and related due Co., Ry. cinnati v. & N. Louisville requirements must affirmatively ap (1912). U.S. 32 S.Ct. 56 L.Ed. 481 pear on person the record. such cases jurisdiction State courts have all residual jurisdiction al presumed. cannot be Capi Id.; general- that federal courts lack. see Brick, Co., tol Fleming Mfg. Inc. v. ly 2 Antieau, J. Modern Chester Constitu- (Tex.1986); S.W.2d Uvalde Coun (1969). 10:1 at 4-5 We tional Law try Co., Supply Club v. Martin Linen recognize should that “stand- continue to (Tex.1985); McKanna v. issues, ing,” procedural like other Edgar, (Tex.1965). waived. There is no reason to overrule the personal Lack of jurisdiction can be waived case, League Texas Industrial Traffic party, personal jurisdiction progeny. its related presumed in a collateral attack on the judgment, error in assuming whereas con SPECTOR, Justice, concurring and statutory jurisdiction stitutional or not con dissenting. upon ferred in question the court can be I agree with the of the concur- substance ignored. neither waived nor See Crawford ring Dog- dissenting opinion Justice McDonald, 631-32, 88 Tex. 33 S.W. however, gett. I ex- separately, write long This court has recog plain why uphold statutory I would may issues, i.e., nized party that there be requirement who run afoul of that those procedure” matter is “a mere matter of timely payment environmental make laws opposed as to the constitutional or statuto seeking penalties before administrative ry power of judgment, a court render judicial review. presumed type be as to either jurisdiction. Id. at 33 S.W. at 327. today, two other causes decided court has considered courts chal adopt The not should the feder- lenges statutory requirement al position “standing” juris- courts’ prepay state mineral lessees administrative dictional. There is fundamental differ- deficiency seeking judi before ence assessments between law and federal state law cial review of those v. that controls here. Federal assessments. State courts are Flag-Redfern courts of and State v. Ruther jurisdiction. Marbury limited Oil Co. v. Cranch) (Tex.1993) Madison, (1 178-79, Corp., 5 U.S. Oil 852 S.W.2d ford 52.137). parties (considering L.Ed. 60 The asserting a Tex.Nat.Res.Code § (when plead prove claim must analysis not Our focused on the obvi- those cases requirement. I prepayment favor public interest at stake: State’s requirement, dissent. prepayment therefore interest in the noted, in immedi financial interest was its royalty payments. disputed access to

ate Thus, we concluded that

Id. at 485. 52.137 requirement of section

prepayment terms, different, in constitutional

was no disapproved in litigation tax Le

from the (Tex. Hanlon, 713

Croy v.

1986). Id. case, contrast, does not present The the General of Texas and STATE Act, Air litigation tax. The Clean involve a of the State Land Office Act, Disposal the Wa- Texas, Petitioners, the Solid Waste embody this state’s commit- Quality Act ter environment; protect ment to COMPANY, FLAG-REDFERN OIL to- requirements struck down prepayment Respondent. give to that day intended to force were commitment, to raise revenue. With- Texas, Land the General STATE pen- prepay out the need to Texas, of the State Office if alties, left with little polluters will be Petitioners, Mauro, Garry comply environ- timely incentive to regulations. mental laws and decision, though, today’s The effects of CORPORATION, OIL RUTHERFORD at issue in beyond far the statutes extend Conoco, Inc., Petroleum and Ladd prepayment By rejecting these

this case. Respondents. Corporation, regard the state requirements, without D-0872, D-0874. Nos. involved, has struck interest ability to enforce to this state’s severe blow Texas. Supreme Court regulations public in the range of a broad 19, 1993. May statutory provisions The similar interest. Doggett, opinion by Justice identified filed Justice Concurring Opinion cannot be dismissed 3, 1993. March Gonzalez technicalities; carefully- they are minor legislature con- measures that the crafted public from protect

sidered vital to Casting those lawbreakers.

recalcitrant disrupt seriously

provisions aside will govern- operation of our state

effective

ment. con- cannot be

The Texas Constitution right of The basic

strued in absolutes. must balanced the courts

access to public’s protect

against the need the restriction at safety. While

health and substantial, I may be

issue in this case public’s interest hold that

would water, due with the combined

clean air TAB’s members afforded to

process tips the process, balance

Case Details

Case Name: Texas Ass'n of Business v. Texas Air Control Board

Court Name: Texas Supreme Court

Date Published: May 5, 1993

Citation: 852 S.W.2d 440

Docket Number: C-9556

Court Abbreviation: Tex.