Standing “To Sue” and Standing “To Be Heard” — On the Texas Association of Business v. City of Austin Standing Analysis

While everyone focuses on the merits of the plaintiffs’ claims in Texas Association of Business v. City of Austin and argue over the constitutionality of the City of Austin’s paid-sick-leave ordinance and the scope of the preemption doctrine, the headline issue should be whether the State of Texas has standing as a plaintiff intervenor to sue the City of Austin. (I’ll explain why in a moment. *hint: It has something to do with the advisory-opinion prohibition.) The Austin Court of Appeals held the state did, in fact, have standing to intervene as a plaintiff and seek affirmative relief against the City of Austin. But the court’s opinion on the standing issue lacks adequate legal analysis and raises serious separation of powers concerns.

Texas Association of Business v. City of Austin—The Court’s Standing Analysis

In City of Austin, the plaintiffs sued the City of Austin and its manager, seeking injunctive relief against enforcement of and an order holding unconstitutional the City’s paid-sick-leave ordinance. The State intervened as a plaintiff in the suit. The trial court denied the plaintiffs’ application for a temporary restraining order against the defendants and denied the defendants’ pleas to the jurisdiction and their motion to strike the state’s intervenor petition.

The plaintiffs and defendants raised various points of error on interlocutory appeal, but this blog focuses on one. The City argued on appeal that the state lacked standing to intervene as a party plaintiff in the suit. Since the state relied on Texas Civil Practice & Remedies Code § 37.006(b) as its jurisdictional basis to pursue a legal remedy against the defendants, the appellate court focused its analysis on that specific statutory provision.

To reach its conclusion, the appellate court first drew a distinction between general “standing” analysis and “statutory-standing” analysis. According to the court, standing generally “focuses on the question who may bring an action.” In “statutory-standing cases,” the court simply conducts “a straight statutory construction of the relevant statute to determine upon whom the Texas Legislature conferred standing.” The “judge-made criteria” ordinarily applied to assess standing do not apply.

The court then looked to the specific statutory provision at issue:

In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must be made a party and is entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state must also be served with a copy of the proceeding and is entitled to be heard.

Tex. Civ. Prac. & Rem. Code § 37.006(b) (emphasis added).

The question raised by the defendants was whether “entitled to be heard” conferred on the state a right to sue as a party under the circumstances in the underlying suit. The court rejected the City of Austin’s position that “entitled to be heard” only allowed the state to file an amicus brief, reasoning that the phrase would be rendered meaningless under such a construction, since any person “who follows the applicable procedural rules” may file an amicus brief.

Entitled to be heard,” according to the court, “suggests the ability to appear in court and present evidence and argument.” From this suggestion, the court suggested that it followed “entitled to be heard” means “to be a party” (note the i.e. in the opinion). The court added, “consistent with this notion,” other courts have not questioned the state’s “right to intervene in the litigation as a party” under section 37.006(b). Since section 37.006(b) entitles the state to be heard when the constitutionality of an ordinance is challenged, the court held the state had standing to intervene as a party plaintiff.

Expostulation and Reply

“Statutory Standing” And “Constitutional Standing” Are Not Synonymous

The court’s claim that “judge-made criteria” do not apply to “statutory-standing cases” may be overstated. Texas aligns its standing jurisprudence with federal law. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). Just as the federal Constitution’s separation of powers doctrine prohibits courts from issuing advisory opinions, which is the function of the executive rather than the judicial branch, the Texas constitution prohibits the judicial department from issuing advisory opinions. See id. (citing Tex. Const. art II, § 1). “An opinion issued in a case brought by a party without standing is advisory because rather than remedying an actual or imminent harm, the judgment addresses only a hypothetical injury.” Id.

Likewise, just as Article III of the U.S. Constitution limits judicial power to resolve “cases” and “controversies,” requiring  a litigant to demonstrate standing, the open courts provision in the Texas Constitution has been interpreted by the Texas Supreme Court to require a litigant to demonstrate standing. Id. Central to constitutional standing is a requirement that the litigant allege an “injury in fact.” See id.; see also Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 103-04 (1998) (“The ‘irreducible constitutional minimum of standing’ contains three requirements. . . . First and foremost, there must be alleged (and ultimately proved) an ‘injury in fact’—a harm suffered by the plaintiff that is ‘concrete’ and ‘actual or imminent, not conjectural or hypothetical.’”). In short, the legislature cannot by statute require the judiciary to do what the constitution prohibits—issue an advisory opinion.

So, what led the Austin Court of Appeals to make such a strong-claim regarding “statutory standing cases”? The answer lies in the case the Court cited to in support of its strong claim. The court cited to In re Sullivan, 157 S.W.3d 911, 915 (Tex. App.—Houston [14th Dist.] 2005, orig. proceeding), a case interpreting the “standing” provision in the Texas Family Code, which identifies the proper party to bring a suit adjudicating parentage. But the “statutory standing” label is not a substitute for constitutional standing, as the Fourteenth District Court of Appeals recognized after its In re Sullivan opinion. In In Interest of K.S., the court made clear:

Although courts sometimes refer to the question whether a party has a cause of action under a statute as one of ‘statutory standing,’ that label can be misleading because the absence of a valid cause of action does not implicate subject-matter jurisdiction. . . . Because the Family Code uses the word ‘standing’ in describing its restrictions on who may bring suit, however, we use the term statutory standing here to distinguish the Family Code’s requirements from the constitutional standing requirements necessary to subject-matter jurisdiction.

492 S.W.3d 419, 422-23 & n.5 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).

A Litigant Must Demonstrate Constitutional Standing to Bring an Action Under the Uniform Declaratory Judgment Act.

The law is well-settled in Texas that the Uniform Declaratory Judgment Act is “merely a procedural device for deciding cases already within the court’s jurisdiction rather than a legislative enlargement of a court’s power, permitting the rendition of advisory opinions.” See e.g., Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (emphasis added); Texas Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 846 (Tex. App.—Austin 2002, pet. denied). Thus, as recognized by the Austin Court of Appeals prior to its City of Austin decision, a plaintiff bringing a declaratory-relief action must still establish the court’s subject-matter jurisdiction, which requires “that the party bringing the suit must have standing, that there be a live controversy between the parties, and the case must be justiciable.” Trinity Settlement Services, LLC v. Texas State Securities Bd., 417 S.W.3d 494, 504 (Tex. App.—Austin 2013, pet. denied); see also OHBA Corp. v. City of Carrollton, 203 S.W.3d 1, 4-5 (Tex. App.—Dallas 2006, pet. denied) (“Under Texas law, standing limits subject-matter jurisdiction to cases involving a distinct injury to the plaintiff and ‘a real controversy between the parties, which . . . will be actually determined by the judicial declaration sought.’”) (quoting Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001)). Contrary to the City of Austin court’s assertion, then, judge-made criteria regarding standing apply to actions—like the state’s action against the City of Austin—under the UDJA.

The court assumed that section 37.006(b) operates as a “standing” statutory provision without addressing the well-settled law that constitutional standing analysis applies to declaratory relief actions. But, even without considering this well-settled law, section 37.006(b) does not, at least not clearly or obviously, vest anyone with standing to sue. Section 37.006(b) provides that a municipality “must be made a party” to a declaratory relief action that challenges the validity of a municipal ordinance. Notice that this provision says nothing about the municipality’s right to bring a suit of its own against anyone; it simply requires a plaintiff to add to its suit the municipality whose ordinance the plaintiff challenges. Likewise, section 37.006(b) does not vest the state with standing to sue anyone. In fact, this section leaves out altogether any mention of making the state a party to an action challenging the constitutionality of an ordinance or statute.

To support its assumption, the City of Austin court pointed to three other cases which referenced section 37.006(b) as the predicate to the state’s “standing” to intervene; the cases, however, do not support the court’s assumption. The court first cited to dicta in Texas Department of Transportation v. Sefzik, 355 S.W.3d 618, 622 (Tex. 2011), where the Texas Supreme Court provided an example of when the UDJA may waive sovereign immunity—“For example, the state may be a proper party to a declaratory judgment action that challenges the validity of a statute.” (citing Tex. Civ. Prac. & Rem. Code § 37.006(b)). Sovereign immunity is different than “standing” in many respects, not the least of which is the fact that the former deals with whether a plaintiff may sue the state, while the latter, under the circumstances in City of Austin, deals with whether the state may sue a defendant for affirmative relief.

The City of Austin court also cited to City of Austin v. Travis Central Appraisal District, 506 S.W.3d 607, 612 n.3 (Tex. App.—Austin 2016, no pet.), and Texas Board of Chiropractic Examiners v. Texas Medical Association, 375 S.W.3d 464, 473 (Tex. App.—Austin 2012, pet. denied). Both cases involved challenges to a state statute, not a municipal ordinance. And, in both cases the state intervened to defend the challenged statutes, not to challenge the statutes as a plaintiff. Moreover, neither case dealt with any issue related to the state’s intervention.

          A “Straight[er] Statutory Construction” of Section 37.006(b)

Even if the standing analysis were reduced to a “straight statutory construction” of section 37.006(b), the City of Austin court’s statutory construction analysis likely misses the mark. The court looked solely to subsection (b). Notice that subsection (b) distinguishes between who must be made a party and who is entitled to be heard. If someone challenges the validity of a municipal ordinance, subsection (b) makes clear that the municipality “must be made a party and is entitled to be heard.” If someone challenges the constitutionality of an ordinance, the statute states that the “attorney general of the state must also be served with a copy of the proceeding and is entitled to be heard.” Why would subsection (b) draw a distinction between being a “party” and being “entitled to be heard” if, as the City of Austin court reasoned, being entitled to be heard means or includes being a party? ***For interested readers, section 37.006(a) may provide some insight***

The court also overstated its “meaningless” analysis. The court rejected the defendants’ claim that section 37.006(b) only allowed the state attorney general to file an amicus brief. The court reasoned that such a construction would render “entitled to be heard” meaningless, because anyone who satisfies Texas Rule of Appellate Procedure 11 may file an amicus brief. However, under TRAP 11, an appellate court for good cause may “refuse to consider” an amicus brief and order the brief returned, even if a party complies with the rule. If anything would be rendered meaningless by the City’s construction, it would be an appellate court’s “good cause” discretion under TRAP 11, as well as the procedural hurdles listed in TRAP 11, when the state attorney general invokes its “entitlement to be heard” pursuant to section 37.006(b).

Final Thoughts

Section 37.006(b) is not a “standing” statute. If the state wishes to intervene as a plaintiff, seeking affirmative relief, it must do more than simply point to section 37.006(b) as its jurisdictional predicate to seek such relief. Otherwise, section 37.006(b) will become an advisory-opinion vehicle for the enforcement branch of government.

When considering that the state attorney general’s “entitlement to be heard” takes place at every level in the litigation, the City of Austin court reasoned that “being heard” must include making argument and putting on evidence. Maybe “being heard” does include these, but it does not follow that “being heard” includes being made a party for all purposes, including to seek affirmative relief. If the state lacks standing or a justiciable claim to seek its own affirmative relief, but is “entitled to be heard,” what does that mean at the trial level? Is it, as the City of Austin suggested, the right of the attorney general to file some briefing at the trial level? Or does it include something more?

Daniel Correa