The opinion
SEERDEN, Chief Justice,
dissenting.
I respectfully dissent.
Appellants seek recovery in the form of declaratory and injunctive relief for past-violations of their constitutional rights. In my opinion, the facts of this case do not present a justiciable controversy. Therefore, neither we nor the district court have jurisdiction to grant the requested relief. 1
Courts are created solely for “judicial determination of presently existing disputes between parties in which effective judgment can be rendered.” Brownsville Indep. Sch. Dist. Bd. Of Trustees v. Brownsville Herald, 831 S.W.2d 537, 538-39 (Tex.App. — Corpus Christi 1992, no writ). As a general proposition, before a court may address the merits of any case, the court must have jurisdiction over the party or the property subject to the suit, jurisdiction over the subject matter, jurisdiction to enter the particular judgment, and capacity to act as a court. State Bar of Texas v. Gomez, 891 S.W.2d 243, 245 (Tex.1994). For a controversy to be justiciable, there must be a real controversy between the parties that will be actually resolved by the judicial relief sought. Id. (citing Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993)).
Appellants bring their claims for relief under 42 U.S.C. § 1983 and the Texas Constitution. It is clear that declaratory and injunc-tive relief are proper remedies under both § 1983 and the Texas Constitution. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex.1995). However, neither the Texas Constitution nor § 1983 expressly authorize any specific form of equitable relief. See id.; see also 42 U.S.C. § 1983 . Rather, the prerequisites for the issuance of declaratory or injunctive relief are the same as in other civil litigation. See Randall v. Wyrick, 642 F.2d 304, 307-08 (8th Cir.1981); Moreno v. Henckel, 431 F.2d 1299, 1309 (5th Cir.1970). In Texas, declaratory relief is controlled by the Uniform Declaratory Judgments Act, see Tex. Civ. PRAC. & Rem.Code Ann. §§ 37.001 et seq. (Vernon 1986 & Supp.1997), and injunc-tive relief is governed by general principles of equity. See Tex. Civ. Püac. & Rem.Code Ann. §§ 65.001, 65.011 (Vernon 1986).
The Uniform Declaratory Judgments Act provides that “a court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” Tex. Civ. Püac. & Rem.Code Ann. § 37.003(a) (Vernon 1986)(emphasis added). This act is a procedural device for deciding cases already within a court’s jurisdiction rather than a legislative enlargement of a court’s power permitting the rendition of advisory opinions. State v. Morales, 869 S.W.2d 941, 947 (Tex.1994); Texas Ass’n of Business, 852 S.W.2d at 444 ; Boorhem-Fields, Inc. v. Burlington N. R.R. Co., 884 S.W.2d 530, 539 (Tex.App.— Texarkana 1994, no writ); see also Housing Auth. of Harlingen v. Valdez, 841 S.W.2d 860, 864 (Tex.App. — Corpus Christi 1992, writ denied). Declaratory relief is appropriate only to resolve justiciable controversies between parties; the Act gives the court no power to pass upon hypothetical or contingent situations, or to determine questions not then essential to the decision of an actual controversy, although such questions may in the future require adjudication. Bonham State Bank v. Beadle, 907 S.W.2d 465 (Tex.1995); Firemen’s Ins. Co. of Newark, N.J. v. Burch, 442 S.W.2d 331, 333 (Tex.1968); California Prod., Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586 , 334 S.W.2d 780, 781-83 *665 (I960) (in granting the district courts jurisdiction to adjudicate controversies under the Declaratory Judgments Act, the legislature did not intend to authorize the exercise of that jurisdiction in violation of the constitutional jurisdictional requirement of justiciable controversy); Housing Auth. of Harlingen, 841 S.W.2d at 867 (not a sufficient case in controversy set forth in the petition which would give either the court below or this court the discretion to entertain a declaratory judgment); Lubbock Professional Firefighters v. City of Lubbock, 742 S.W.2d 418 , 419 (Tex.App. — Amarillo 1987, writ refd n.r.e.)(deelaratory judgment is unavailable unless there is a justiciable controversy between the parties); Public Util. Com’n of Texas v. J.M. Huber Carp., 650 S.W.2d 951, 954 (Tex.App. — Austin 1983, writ refd n.r.e.). The basic purpose of the remedy is to provide parties with an early adjudication of rights before they have suffered irreparable damage. See Harkins v. Crews, 907 S.W.2d 51, 56 (Tex.App. — San Antonio 1995, writ denied) (quoting McCart v. Cain, 416 S.W.2d 463, 466 (Tex.Civ.App. — Fort Worth 1967, writ refd n.r.e.)).
In this case, appellants allege that they have been injured by appellees’ past conduct. However, there is currently no “controversy” between the parties. In fact, there are no charges pending against any of the three appellants. The remote possibility that a future injury may happen is not sufficient to satisfy the actual controversy requirement for declaratory judgments. City of Los Angeles v. Lyons, 461 U.S. 95, 103 , 103 S.Ct. 1660, 1665 , 75 L.Ed.2d 675 (1983); see also Camarena v. Texas Employment Com’n, 754 S.W.2d 149, 151 (Tex.1988) (district courts, under our Constitution, do not give advice or decide cases upon speculative, hypothetical or contingent situations). At this point, a declaration that appellees’ past conduct violated appellants’ constitutional rights would be nothing more than a “gratuitous comment without any force or effect.” Emory v. Peeler, 756 F.2d 1547, 1552 (11th Cir.1985); see also Harkins, 907 S.W.2d at 56 (Texas courts have powers to render declaratory judgment when judgment would serve a useful purpose).
I would reach a similar holding regarding appellants’ claims for injunctive relief. The injury underlying a claim for injunctive relief must be actual and substantial, or a real, affirmative prospect of an actual and substantial injury. Brazoria County Appraisal Dist. v. Notlef Inc., 721 S.W.2d 391, 393 (Tex.App. — Corpus Christi 1986, no writ); Parkem Indus. Serv., Inc. v. Garton, 619 S.W.2d 428, 430 (Tex.Civ.App. — Amarillo 1981, no writ). An injunction will not issue to prevent merely speculative harm. See, e.g., Lyons, 461 U.S. at 112 , 103 S.Ct. at 1670 ; Camarena, 754 S.W.2d at 151 . Again, the remote possibility that appellants may at some time in the future be charged with a Class C Misdemeanor and be subject to ap-pellees’ alleged unconstitutional conduct is not sufficient to justify injunctive relief. See Morales, 869 S.W.2d at 947 (an injunction will not issue unless it is shown that the respondent will engage in the activity enjoined); see also Frey v. DeCordova Bend Estates Owners Ass’n, 647 S.W.2d 246, 248 (Tex.1983) (holding that the fear or apprehension of the possibility of injury is not a basis for injunctive relief); Camp v. Shannon, 162 Tex. 515 , 348 S.W.2d 517, 519 (1961) (explaining that injunction should not issue on mere surmise of injury); Transport Co. v. Robertson Transports, Inc., 152 Tex. 551 , 261 S.W.2d 549, 552 (1953) (requiring showing of a “probable injury” if respondent not restrained).
Accordingly, because there is currently no justiciable controversy between the parties involved, neither this Court nor the trial court has jurisdiction to render the relief sought. Therefore, I would affirm the summary judgment as granted by the trial court.
. Subject matter jurisdiction is an issue that may be raised for the first time on appeal by either party or by the court. See Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 445 (Tex.1993).