Opinion

Lone Starr Multi Theatres, Inc. v. State

922 S.W.2d 295
1996 WL 228781

Court: Texas Court of Appeals, 3rd District (Austin)
Filed: May 8, 1996
Status: Published
Author: Powers
On the bench: Powers, Jones, Smith
Cited by: 40 cases
Authority: More cited than 86.1%

holding fact that the Attorney General must be given notice of a suit to declare a statute unconstitutional does not suggest that the Attorney General is the proper party to sue in an action for declaratory or injunctive relief

How later courts described this case

holding fact that the Attorney General must be given notice of a suit to declare a statute unconstitutional does not suggest that the Attorney General is the proper party to sue in an action for declaratory or injunctive relief
finding that Texas Civil Practice and Remedies Code § 37.006(b) requires that the attorney general be given notice of a suit to declare a statute unconstitutional, not that he actually be sued as a party in such an action
concluding “the party responsible for enforcement of the allegedly unconstitutional statute, either by prosecution or promulgation of a rule adopted for the purpose of implementing such statute, must be the defendant against whom suit for declaratory or injunctive relief is brought” (emphasis in original)
stating that under Texas law all parties against whom an injunction must run should be named in a suit for injunctive relief

Written by the judges who cited it.

The opinion

POWERS, Justice.

Lone Starr Multi Theatres, Inc. appeals from a trial-court judgment that dismissed for want of jurisdiction Lone Starr’s suit for declaratory and injunctive relief against the State of Texas and the Attorney General, Dan Morales. We will affirm the trial-court judgment.

THE CONTROVERSY

Lone Starr sued for a declaratory judgment that the obscenity statutes, found in sections 43.21-43.26 of the Texas Penal Code, are unconstitutional.

See

Tex.Penal Code Ann. §§ 43.21-26 (West 1994); Uniform Declaratory Judgment Act, Tex.Civ.Prac. & Rem.Code Ann. §§ 37.001-.011 (West 1986) (the “UDJA”). In addition, Lone Starr prayed to enjoin enforcement of the statutes.

See

Tex.Civ.Prae. & Rem.Code Ann. § 65.011 (West 1986 & Supp.1996). Appellees challenged the jurisdiction of the district court on two grounds: (1) Lone Starr’s pleadings did not meet the jurisdictional requirements laid down in

State v. Morales,

869 S.W.2d 941 (Tex.1994); and (2) a declaratory judgment would not terminate the controversy between the parties as required by section 37.008 of the UDJA. The trial court denied the plea on the first ground, finding subject matter jurisdiction under

Morales ,

but sustained the plea on the second ground and dismissed the cause of action.

Lone Starr contends on appeal that the trial court abused its discretion in determining that no justiciable controversy existed under the UDJA. The Attorney General contends in a cross-point that the trial court erred in determining that it had jurisdiction under

Morales .

DISCUSSION AND HOLDINGS

A civil court, sitting in equity, does not have jurisdiction to declare a criminal statute unconstitutional and enjoin its enforcement unless:

(1) there is evidence that the statute at issue is unconstitutionally applied by a rule, policy or other noncriminal means subject to a court’s equity powers and irreparable injury to property or personal rights is threatened;

(2) the enforcement of an unconstitutional statute threatens irreparable injury to property rights.

Morales,

869 S.W.2d at 942 (emphasis in original);

see also Passel v. Fort Worth Indep. Sch. Dist.,

440 S.W.2d 61, 63-64 (Tex.1969), ce

rt. denied,

402 U.S. 968 , 91 S.Ct. 1667 , 29 L.Ed.2d 133 (1971). We believe this jurisdictional rule necessarily, albeit implicitly, imposes a requirement that the party responsible for

enforcement

of the allegedly unconstitutional statute, either by prosecution or by promulgation of a rule adopted for the purpose of implementing such statute, must be the defendant against whom suit for declaratory or injunctive relief is brought.

See Passel,

440 S.W.2d at 64 (finding jurisdiction in suit to enjoin school board from enforcing administrative regulation it adopted for purpose of implementing criminal statute);

City of San Antonio v. Rankin,

905 S.W.2d 427, 429 (Tex.App.—San Antonio 1995, no writ) (finding jurisdiction in suit against City of San Antonio for declaratory and injunctive relief against enforcement of city’s ethics ordinance);

cf. Crouch v. Craik,

369 S.W.2d 311, 315 (Tex.1963) (holding trial judge could not enjoin district attorney from prosecuting violations of a penal statute that was not unconstitutional).

A requirement that a party with authority to enforce a particular statute be named in a suit to declare the statute unconstitutional is essential to effectuate the well-settled principle that courts are without jurisdiction to render advisory opinions. In a declaratory judgment action, there must exist

between the parties

a justiciable controversy that will be determined by the judgment; otherwise the judgment amounts to no more than an advisory opinion, which a court does not have the power to give.

Southwest Airlines v. Texas High-Speed Rail Auth.,

863 S.W.2d 123, 125 (Tex.App.—Austin 1993, writ denied);