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

GAMMAGE, Justice,

concurring and dissenting.

Though I would prefer not to write separately, I find I am unable to agree entirely with any single opinion of the court’s other members. I must write this concurring and dissenting opinion because, while I agree with the disposition of this cause, I disagree with substantial portions of the reasoning and language in the majority’s opinion and I agree with part of Justice Doggett’s concurring and dissenting opinion.

I agree with the preliminary portion of Justice Cornyn’s majority opinion, which correctly sets forth the regulatory scheme and basic dispute.

I agree substantially with Part II of Justice Doggett’s opinion and his jury trial discussion. In my view, whether or not a suit is a “cause” for purposes of the right to a jury trial is not controlled by whether it was first determined by an administrative agency. I also agree with Part III of Justice Doggett’s opinion relating to standing, which I will further address below. I agree with Part II of Justice Cornyn’s majority opinion. The statutes may not condition access to the courts on prepayment of a penalty. The principle here is the same as for a supersedeas bond. The statute may condition the right to restrain the prevailing party (the State) from executing (enforcing) its judgment (administrative order) on the posting of a bond for the full amount. It may not, however, condition the right to appeal the judgment on posting of the full penalty imposed. Dillingham v. Putnam, 109 Tex. 1, 5-6 , 14 S.W. 303, 304 (1890). This is true even if that “judgment” takes the form of an administrative agency decision. Administrative agency decisions, for the most part, entitle an appellant to only “substantial evidence” as opposed to de novo review. To further burden those regulated with prepayment of the “judgment” as the only alternative to total loss of even substantial evidence review violates the basic concept of our constitutional open courts in Texas.

As to the issue (or non-issue) of standing, the majority in effect adopts the position of federal courts that standing is a jurisdictional question. Otherwise it cannot be fundamental error to be addressed when no party raises it. Standing was not raised and should not be addressed in this cause.

Even assuming standing is an element of subject matter jurisdiction, the court should not write on the issue in this case. Even though a judgment is void and subject to collateral attack at any point if there is an absence of subject matter jurisdiction, see Mercer v. Phillips Natural Gas Co., *477 746 S.W.2d 933, 936 (Tex.App.—Austin 1988, writ denied), unassigned error of lack of jurisdiction should be addressed only if jurisdiction is in fact lacking. Since the majority concludes there was standing in this case, and since no party raised its existence as an issue, there is no reason to address it at all, even if it would be fundo mental error if lacking.

The basis for the majority’s discussion is its sudden revelation that “[sjtanding is implicit in the concept of subject matter jurisdiction.” 862 S.W.2d at 443. Their opinion then claims this implication comes from the separation of powers doctrine and the open courts provision of the Texas Constitution. It is a curiosity of legal scholarship, however, that in the 156 prior years of its existence, this court never before found standing “implicit” in those constitutional provisions, but in fact wrote that standing could be waived and hence was not fundamental error. Texas Indus. Traffic League v. Railroad Comm’n, 633 S.W.2d 821, 823 (Tex.1982). Justice Doggett’s opinion adequately addresses why there is no implication from those provisions that standing is jurisdictional.

The majority’s struggle to put standing in issue when it is not prompts me to address two statements in its opinion which strike me as either misleading or just plain wrong. The majority asserts, without citation to authority, that “[s]ubject matter jurisdiction is never presumed,” 852 S.W.2d at 443-444, and in a footnote repeats that assertion in urging that “Justice Doggett confuses subject matter jurisdiction with personal jurisdiction. Only the latter can be waived when uncontested. See Tex.R.Civ.P. 120a.” 852 S.W.2d at 444 n. 5. The majority’s claim that subject matter jurisdiction is never presumed is at its very best misleading.

Connected with this discussion is the implicit assertion in another footnote that there is a “jurisdictional standing” that is different from “objections to join a real party in interest or to a party’s capacity to sue rather than jurisdictional standing.” 852 S.W.2d at 445 n. 7. These remarks are made in an attempt to distinguish the eases cited by Justice Doggett from those of other states holding that standing is not jurisdictional. I suppose we should be encouraged to find out that there are some types of “standing” that will not be jurisdictional, but it occurs to me that by using the term “jurisdictional standing” the court is begging the question — if it is jurisdictional, then it must be fundamental. The problem is that the Texas cases, at least as I read them, define “standing” in terms of “the party’s capacity to sue,” 1 which is one example we are given of non-jurisdictional standing. The majority opinion is calculated — no, guaranteed — to cause confusion because apparently this court will henceforth tell litigants on a case-by-case basis whether the standing problems in their cases are “jurisdictional” or merely formal.

There is no need to create this confusion. The majority’s fomenting it, however, requires that I address it to some extent. I will discuss the “subject matter never presumed” proposition first, then weave into the “jurisdictional standing” language.

I agree that subject matter jurisdiction is never presumed in one respect. Subject matter jurisdiction exists when the nature of the case falls within a general category of cases the court is empowered to adjudicate under the applicable constitutional and statutory provisions. See Pope v. Fergu *478 son, 445 S.W.2d 950, 952 (Tex.1969), cert. denied, 397 U.S. 997 , 90 S.Ct. 1138 , 25 L.Ed.2d 405 (1970); Bullock v. Briggs, 623 S.W.2d 508, 511 (Tex.App.—Austin 1981, writ ref’d n.r.e.), cert. denied, 457 U.S. 1135 , 102 S.Ct. 2962 , 73 L.Ed.2d 1352 (1982). In this sense, there is no presumption because if the case is not one over which the court had constitutional and statutory authority to act one does not “presume” subject matter jurisdiction to make it valid. If a justice of the peace grants a divorce, the judgment is void because that is not the type of case the constitution and legislature entrusts to that court, and appellate courts will not “presume” the justice court had jurisdiction in order to make the judgment valid.

But what the majority addresses here under the rubric of “standing” is not a court assuming jurisdiction over a type of dispute for which the statutes do not grant it power. The district court undoubtedly had jurisdiction over the declaratory judgment and injunction action brought there, since district courts may entertain declaratory judgment and injunction actions. The question of standing the majority gratuitously addresses here is related to an incidental party issue.

This court has expressly held that some facts or similar matters relating to party issues are presumed. For example, for many years the subject matter jurisdiction for certain trial courts as set by the statutes has included a jurisdictional amount, sometimes as a minimum amount in controversy and sometimes as both a maximum and minimum. Womble v. Atkins, 160 Tex. 363, 370 , 331 S.W.2d 294, 299 (1960). This court has held that jurisdiction, so far as the amount in controversy is concerned, is determined by the pleadings unless facts disclose that a party fraudulently or in bad faith pleaded claims to make it appear there was jurisdiction over the case where there was not. Brown v. Peters, 127 Tex. 300 , 94 S.W.2d 129, 130 (Tex.Comm’n App. B 1936). Despite the supposed requirement that the pleadings demonstrate jurisdiction, we have also held that unless the pleadings affirmatively show there is no jurisdiction, the court will presume the existence of jurisdiction in the trial court. Peek v. Equipment Serv. Co., 779 S.W.2d 802, 804 (Tex.1989). 2 This is not the only sense in which subject matter jurisdiction is “presumed” as to collateral matters. If a defendant contests jurisdiction and alleges in a verified pleading that plaintiffs fraudulent pleading amount was for the purpose of conferring jurisdiction on the trial court, but the trial judge still renders judgment in the case, on appeal the fact issue of jurisdiction is presumed decided against the defendant. Ellis v. Heidrick, 154 S.W.2d 293, 294 (Tex.Civ.App.—San Antonio 1941, writ ref'd); see also Maddux v. Booth, 108 S.W.2d 329, 331 (Tex.Civ.App.—Amarillo 1937, no writ) (appeal bond from county court to district court did not show file-mark making the appeal timely, held “the absence of such a question being made in the trial court the presumption is that the court had jurisdiction”). Further, if the very power of the judge who sits is in question, that authority too may be presumed. It is presumed that the assignment of a retired judge was properly made pursuant to all statutory requirements absent an express showing to the contrary in the record. Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 855 (Tex.App.—Houston [1st Dist.] 1987, writ ref'd n.r.e.).

There is a type of lack of standing that this court formerly held to be fundamental error. When there was a joint interest in property involved in the litigation, and the joint owner was not joined as a party, this court earlier held that the party defect was jurisdictional fundamental error that could be raised for the first time on appeal. The injustice which that rule caused prompted *479 this court to reduce those “indispensable ” necessary parties to near nonexistence. Petroleum Anchor Equip., Inc. v. Tyra, 406 S.W.2d 891, 893-94 (Tex.1966); see also Cooper v. Texas Gulf Indus., Inc., 513 S.W.2d 200, 203 (Tex.1974). It was no accident that this court listed the case which the majority today overrules, Texas Indus. Traffic League v. Railroad Comm’n, 633 S.W.2d 821 (Tex.1982), as one of the cases showing that “[fundamental or unassigned error is a discredited doctrine” as applied to these collateral defect-in-party type claims. Cox v. Johnson, 638 S.W.2d 867, 868 (Tex.1982). After more than a hundred years of trying to narrow fundamental error exceptions, the majority today takes a quantum leap backward.

In an appeal of or other direct attack on a trial court default judgment, it is service on the defendant and related due process requirements which must affirmatively appear on the record. In such cases personal jurisdiction cannot be presumed. Capitol Brick, Inc. v. Fleming Mfg. Co., 722 S.W.2d 399, 401 (Tex.1986); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985); McKanna v. Edgar, 388 S.W.2d 927, 928 (Tex.1965). Lack of personal jurisdiction can be waived by the party, and personal jurisdiction is presumed in a collateral attack on the judgment, whereas error in assuming constitutional or statutory jurisdiction not conferred upon the court in question can be neither waived nor ignored. See Crawford v. McDonald, 88 Tex. 626, 631-32 , 33 S.W. 325 , 328 (1895). This court has long recognized that there may be party issues, i.e., the matter is “a mere matter of procedure” as opposed to the constitutional or statutory power of a court to render judgment, that may be presumed as to either type of jurisdiction. Id. at 630, 33 S.W. at 327.

The majority should not adopt the federal courts’ position that “standing” is jurisdictional. There is a fundamental difference between federal law and state law that controls here. Federal courts are courts of limited jurisdiction. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178-79 , 2 L.Ed. 60 (1803). The parties asserting a claim must plead and prove (when not obvious) that jurisdiction exists. Fed.R.Civ.P. 8(a). A party suing under a statute must establish his right to claim under that statute — his standing — in order to establish jurisdiction. General Comm., Brotherhood of Locomotive Eng’rs v. Missouri-Kansas-Texas Ry. Co., 320 U.S. 323, 337-38 , 64 S.Ct. 146, 152-53 , 88 L.Ed. 76 (1943). Consequently, standing is a part of jurisdiction under federal procedure, related to the “case” or “controversy” requirement of the federal constitution. Association of Data Proc. Serv. Orgs. v. Camp, 397 U.S. 150, 151 , 90 S.Ct. 827, 829 , 25 L.Ed.2d 184 (1970). But there is no “case” or “controversy” limitation language in the Texas Constitution. In state courts of general jurisdiction, the power to entertain any suit not prohibited by either the federal constitution or federal law is presumed. Cincinnati v. Louisville & N. Ry. Co., 223 U.S. 390 , 32 S.Ct. 267 , 56 L.Ed. 481 (1912). State courts have all residual jurisdiction that federal courts lack. Id.; see generally 2 Chester J. Antieau, Modern Constitutional Law § 10:1 at 4-5 (1969). We should continue to recognize that “standing,” like other procedural issues, may be waived. There is no reason to overrule the Texas Industrial Traffic League case, or its related progeny.

. Before it adopts a federal test and federal gloss, the majority asserts the "general test for standing in Texas” is what it quotes from Board of Water Engineers v. City of San Antonio, 155 Tex. 111, 114 , 283 S.W.2d 722, 724 (1955). The majority overrules the Texas Industrial Traffic League case, which addressed standing in the context of “justiciable interest” discussed in the more recent cases of Coffee v. William Marsh Rice University, 403 S.W.2d 340 (Tex.1966), and Sabine River Authority v. Willis, 369 S.W.2d 348 (Tex.1963). The context of the cases differed from Board of Water Engineers , of course. The precise meaning of "standing” in fact depends on the context. The majority adopts a federal gloss, and the federal courts have stated, "Generalizations about standing to sue are largely worthless as such.” Association of Data Proc. Serv. Orgs. v. Camp, 397 U.S. 150, 151 , 90 S.Ct. 827, 829 , 25 L.Ed.2d 184 (1970). Using "standing” to mean a party’s legal capacity to sue is my best description of the labyrinth of different cases the majority uses interchangeably.

. Richardson v. First Natl Life Ins. Co., 419 S.W.2d 836 (Tex.1967), relied upon by the majority for the proposition that pleadings must “affirmatively show that the court has jurisdiction to hear the cause,” 852 S.W.2d at 446, was expressly distinguished in Peek . This unanimous opinion written for the Court by Chief Justice Phillips explained that Richardson really meant that if the pleadings affirmatively showed there was no jurisdiction, then the case should be dismissed, but otherwise there was a presumption that the amount omitted from the pleading would support jurisdiction. Peek, 779 S.W.2d at 804 .