No. 03-14-00340-CV

IN THE THIRD COURT OF APPEALS

AUSTIN, TEXAS

APPELLANTS, CPS ENERGY, TIME WARNER CABLE TEXAS 

LLC, AND SOUTHWESTERN BELL TELEPHONE COMPANY 

D/B/A AT&T// CROSS-APPELLANT, PUBLIC UTILITY 

COMMISSION OF TEXAS 

V.

APPELLEE, PUBLIC UTILITY COMMISSION OF TEXAS// CROSSAPPELLEE, CPS ENERGY, TIME WARNER CABLE TEXAS LLC 

AND SOUTHWESTERN BELL TELEPHONE COMPANY D/B/A 

AT&T

On appeal from D-1-GN-13-001238 (Consolidated)

in the 250th Judicial District Court, Travis County, Texas

POST SUBMISSION BRIEF OF APPELLANT CPS ENERGY

CPS ENERGY

Gabriel Garcia

ggarcia@cpsenergy.com 

Carolyn Shellman

cshellman@cpsenergy.com 

CPS Energy

145 Navarro

P.O. Box 1771

San Antonio, Texas 78296

(210) 353-5689 (Voice)

(210) 353-6832 (Facsimile)

HERRERA & BOYLE, PLLC 

Alfred R. Herrera 

State Bar No. 09529600

aherrera@herreraboylelaw.com

816 Congress Avenue, Suite 1250

Austin, Texas 78701 

(512) 474-1492 (Voice) 

(512) 474-2507 (Facsimile) 

May 8, 2015

ACCEPTED

03-14-00340-CV

5210597

THIRD COURT OF APPEALS

AUSTIN, TEXAS

5/8/2015 12:32:17 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 5/8/2015 12:32:17 PM JEFFREY D. KYLE Clerk
IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties to the trial court’s judgment, 

and the names and addresses of all trial and appellate counsel:

Counsel for Public Utility Commission 

of Texas:

Douglas Fraser

Megan Neal

Office of the Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711-02548

Phone: (512) 463-2012

Fax: (512) 457-4610

douglas.fraser@texasattorneygeneral.gov

megan.neal@texasattorneygeneral.gov

Counsel for CPS Energy:

Alfred R. Herrera 

HERRERA & BOYLE, PLLC

816 Congress Avenue, Suite 1250

Austin, TX 78701

Phone: (512) 474-1492

Fax: (512) 474-2507

aherrera@herreraboylelaw.com

Counsel for AT&T Texas:

Paul A. Drummond

Natalie L. Hall

AT&T Legal Department

1010 N. St. Mary’s, 14th Floor

San Antonio, Texas 78215

Phone: (210) 351-4830

Fax: (210) 886-2127

paul.drummond@att.com

natalie.hall@att.com

Counsel for CPS Energy:

Gabriel Garcia

Carolyn Shellman

CPS Energy

145 Navarro

P.O. Box 1771

San Antonio, TX 78296

Phone: (210) 353-5689

Fax: (210) 353-6832

ggarcia@cpsenergy.com

cshellman@cpsenergy.com

No. 03-14-00340-CV

APPELLANT CPS ENERGY’S POST SUBMISSION BRIEF i
Counsel for AT&T Texas:

Michael T. Sullivan

Mayer Brown LLP

71 S. Wacker Drive

Chicago, IL 60606

Phone: (312) 782-0600

Fax: (312) 706-8689

msullivan@mayerbrown.com

Counsel for AT&T Texas:

J. David Tate

Katherine C. Swaller

Thomas Ballo

AT&T Legal Department

816 Congress Avenue, Suite 1100

Austin, Texas 78701

Phone: (512) 457-2304

Fax: (512) 870-3420

jon.david.tate@att.com

katherine.swaller@att.com

thomas.ballo@att.com

Counsel for Time Warner Cable Texas 

LLC:

Valerie P. Kirk

Melissa Lorber

Enoch Kever PLLC

600 Congress Avenue, Suite 2800

Austin, Texas 78701

Phone: (512) 615-1200

Fax: (512) 615-1198

vkirk@enochkever.com

mlorber@enochkever.com

Counsel for Time Warner Cable 

Texas LLC:

J.D. Thomas

J. Aaron George

Sheppard Mullin Richter & 

Hampton LLP

1300 I Street, N.W.

11th Floor East

Washington DC 20005

Phone: (202) 218-0000

Fax: (202) w218-0020

dthomas@sheppardmullin.com

ageorge@sheppardmullin.com

No. 03-14-00340-CV

APPELLANT CPS ENERGY’S POST SUBMISSION BRIEF ii
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL.................................................. i

TABLE OF CONTENTS............................................................................... iii

INDEX OF AUTHORITIES ......................................................................... iv

STATEMENT OF FACTS..............................................................................1

SUMMARY OF ARGUMENT.......................................................................2

ARGUMENT...................................................................................................3

Findings of Fact 84-87 and Conclusions of Law 26 and 27 are 

Improper Advisory Opinions .......................................................................3

The Uniform Declaratory Judgment Act does not Apply to this Case ........7

Findings of Fact 84-87 and Conclusions of Law 26 and 27 Result in 

an Unconstitutional Delegation of Power ....................................................9

CONCLUSION................................................................................................9

CERTIFICATE OF SERVICE..................................................................... 11

CERTIFICATE OF COMPLIANCE............................................................ 12

No. 03-14-00340-CV

APPELLANT CPS ENERGY’S POST SUBMISSION BRIEF iii
INDEX OF AUTHORITIES

Cases

Brinkley v. Texas Lottery Comm'n, 986 S.W.2d 767 (Tex. App.—

Austin 1999, no pet.) ........................................................................ 4, 5

Central Power & Light Co. v. Public Util. Comm'n, 36 S.W.3d 547 

(Tex.App.-Austin 2000, pet. denied).................................................... 7

City of Waco v. Tex. Nat. Res. Conservation Comm'n, 83 S.W.3d 169 

(Tex. App.—Austin 2002, pet. denied)............................................ 5, 8

Firemen's Ins. Co. v. Burch, 442 S.W.2d 331 (Tex. 1969)............................ 8

Railroad Comm'n v. CenterPoint Energy Res. Corp., 03–13–00533–

CV, 2014 WL 4058727, at *2-3 (Tex. App.—Austin, no pet.) ........... 5

Robinson v. Parker, 353 S.W.3d 753 (Tex. 2011) ..................................... 5, 7

Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 

(Tex. 1993) ....................................................................................... 5, 8

Trinity Settlement Servs., LLC v. Texas State Secs. Bd., 417 S.W.3d 

494 (Tex. App.—Austin 2013, pet. denied)......................................... 5

TXU Electric v. Public Utility Commission, 51 S.W.3d 275 

(Tex. 2001) ........................................................................................... 5

Statutes and Rules

47 C.F.R. §1.1409(e) .......................................................................... 1, 3, 4, 6

TEX. CIV. PRAC. & REM. CODE §§ 37.001–.011 ............................................. 8

TEX. GOV'T CODE ANN. § 2001.174................................................................ 7

TEX. UTIL. CODE ANN. § 54.204................................................................. 3, 7

TEX. UTIL. CODE ANN. § 54.204(c)......................................................... 2, 4, 9

TEX. UTIL. CODE ANN. § 54.205..................................................................... 3

No. 03-14-00340-CV

APPELLANT CPS ENERGY’S POST SUBMISSION BRIEF iv
STATEMENT OF FACTS

The Court entertained oral argument in this case on April 22, 2015. 

On April 20, 2015, the Public Utility Commission (“Commission”), through 

its attorney, the Attorney General of Texas (“Attorney General”), filed a 

letter in which the Commission asserted that the Court does not have 

jurisdiction to decide whether the Commission’s ruling regarding the 

applicability of amendments the Federal Communications Commission 

(“FCC”) adopted with an effective date of June 8, 2011 was correct. As the 

Attorney General’s Letter states, “[t]hose amendments [to 47 C.F.R. 

1.1409(e)] became effective on June 8, 2011 — several months after the 

time period for which the Commission determined the maximum allowable 

pole-attachment rate.”1

 

Thus, the Commission’s Findings of Fact 84-87 and Conclusions of 

Law 26 and 27 purported to address rights and facts which have not arisen 

and thus the Commission adjudicated matters which are contingent, 

uncertain, or rest in the future, thereby comprising an advisory opinion. As 

stated in the Attorney General’s Letter, “we determined the Court does not 

1 See Letter from Megan Neal, Assistant Attorney General to Honorable Jeffrey D. 

Kyle, Clerk, Court of Appeals, Third District of Texas (April 20, 2015) 

(“Attorney General’s Letter”) (addressing CPS Energy’s Appellant’s Point of 

Error No. 2, Findings of Fact 84-87, and Conclusion of Law 27).

No. 03-14-00340-CV

APPELLANT CPS ENERGY’S POST SUBMISSION BRIEF 1

 
have jurisdiction to decide one of the issues ... [t]his Court and the Texas 

Supreme Court have held that statements about the future are advisory2 ... .”

SUMMARY OF ARGUMENT

CPS Energy agrees with the Attorney General that the Commission 

issued an advisory opinion regarding the applicability of the June 8, 2011 

amendments to the FCC’s rules. As CPS Energy explained at oral 

arguments, in this proceeding the Commission has consistently over-reached 

in applying its limited authority to CPS Energy, a municipally owned utility 

(“MOU”). This issue is yet another example of the Commission exceeding 

its jurisdiction in reviewing the disputes in this case. 

CPS Energy respectfully urges the Court to reverse the Commission’s

Order on Rehearing with regard to Findings of Fact 84-87 and Conclusions

of Law 26 and 27 because those determinations are improper advisory 

opinions.

Should the Court conclude that the Commission’s decision regarding 

the applicability of the FCC’s amended rules is not an advisory opinion, 

nonetheless the Court should reverse the Commission’s ruling because the 

2 The Attorney General’s Letter does not refer to Conclusion of Law 26, but that 

conclusion of law suffers from the same flaws as Conclusion of Law 27.

No. 03-14-00340-CV

APPELLANT CPS ENERGY’S POST SUBMISSION BRIEF 2

 
Commission’s interpretation of Utilities Code § 54.204(c) would result in an 

unconstitutional delegation of power to a federal agency.

3

ARGUMENT

Findings of Fact 84-87 and Conclusions of Law 26 and 27 are Improper 

Advisory Opinions

The Commission limited its review in this proceeding to the billing 

years 2005 through 2010, which also matched the evidence in the record. 

See Conclusion of Law 24 (“[t]he inputs set out in the findings of fact are 

reasonable for use in the Maximum rate formula for test years 2004 through 

2009 (billing years 2005 through 2010)”); Conclusion of Law 25 (“[t]he 

maximum allowable pole-attachment rates set forth in the findings of fact for 

test years 2004 through 2009 (billing years 2005 through 2010) comply with 

PURA §§ 54.204 and 54.205”); Findings of Fact 42-83A (all limited to 

billing years 2005 though 2010).

However, the Commission then went outside the record before it and 

unnecessarily concluded that the June 8, 2011 amendments to 47 C.F.R. 

1.1409(e) applied prospectively to the parties. See Conclusions of Law 26 

and 27 (Conclusion of Law 26: “Changes in 47 U.S.C. § 224(e) are 

3 See Brief of Appellant, CPS Energy at 16-21 (September 5, 2014) (“CPS Brief”) 

(addressing delegation issue in Point of Error No. 2).

No. 03-14-00340-CV

APPELLANT CPS ENERGY’S POST SUBMISSION BRIEF 3

 
incorporated into PURA § 54.204 without legislative action;” and 

Conclusion of Law 27: “[t]he FCC’s June 8, 2011 amendment to 47 C.F.R. 

1.1409(e) applies to CPS Energy under PURA § 54.204(c)”); Findings of 

Fact 84-87 (describing the “Methodology Going Forward”).4

 Further, the 

Commission made the sweeping conclusion that not only did the June 8, 

2011 amendment affecting the Telecom Formula apply to the parties, but 

that any future changes to FCC regulations that govern pole attachment rates 

are incorporated into PURA § 54.204 without action by the Texas 

Legislature. 

As conceded by the Attorney General’s Letter, these conclusions were 

advisory only. See Attorney General’s Letter at 1 (“we determined the Court 

does not have jurisdiction to decide one of the issues ... [t]his Court and the 

Texas Supreme Court have held that statements about the future are advisory 

... .”) 

“The separation-of-powers doctrine prohibits courts from issuing 

advisory opinions.” Brinkley v. Texas Lottery Comm'n, 986 S.W.2d 767, 

770 (Tex. App.—Austin 1999, no pet.) “The distinctive feature of an 

advisory opinion is that it decides an abstract question of law without 

4 The Commission in its Order on Rehearing made similar statements. See,

Commission’s Order on Rehearing at 6 and 22.

No. 03-14-00340-CV

APPELLANT CPS ENERGY’S POST SUBMISSION BRIEF 4

 
binding the parties.” Brinkley, 986 S.W.2d at 767; citing Tex. Ass'n of Bus. 

v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). “The court will 

not declare rights on facts which have not arisen or adjudicate matters which 

are contingent, uncertain, or rest in the future.” Brinkley at 768. “An 

opinion issued in a case that is not ripe would address only a hypothetical 

injury rather than remedying actual or imminent harm.” City of Waco v. 

Tex. Nat. Res. Conservation Comm'n, 83 S.W.3d 169, 175 (Tex. App.—

Austin 2002, pet. denied). “Ripeness ‘is a threshold issue that implicates 

subject matter jurisdiction ... [and] emphasizes the need for a concrete injury 

for a justiciable claim to be presented.’” Robinson v. Parker, 353 S.W.3d 

753, 755 (Tex. 2011). 

A decision by a state agency that is advisory or unripe is similarly

invalid. See TXU Electric v. Public Utility Commission, 51 S.W.3d 275, 287 

(Tex. 2001) (holding that the Commission’s prospective adjustment for 

acquired debt was advisory and thus premature); R.R. Comm'n v. 

CenterPoint Energy Res. Corp., 03–13–00533–CV, 2014 WL 4058727 at 

*2-3 (Tex. App.—Austin, no pet.); citing Trinity Settlement Servs., LLC v. 

Texas State Secs. Bd., 417 S.W.3d 494, 506 (Tex. App.—Austin 2013, pet. 

denied) (“[i]n the administrative-law context, moreover, avoiding premature 

litigation over administrative determinations prevents courts from 

No. 03-14-00340-CV

APPELLANT CPS ENERGY’S POST SUBMISSION BRIEF 5
‘entangling themselves in abstract disagreements over administrative 

policies ...’”).

In this case the parties provided evidence for the 2005-2010 billing 

years and the Commission made findings based on that evidence. The 

Commission’s analysis of the June 8, 2011 amendments to 47 C.F.R. 

1.1409(e), which was incorporated into the case as a result of the Conclusion 

of Law 26, had no bearing on the evidence before it. As the Attorney 

General’s Letter concedes, “those amendments [to 47 C.F.R. 1.1409(e)] 

became effective on June 8, 2011 — several months after the time period for 

which the Commission determined the maximum allowable pole-attachment 

rate.” The Commission’s Findings of Fact 84-87 and Conclusions of Law

26 and 27, therefore, “declare[d] rights on facts which have not arisen or 

adjudicate[d] matters which are contingent, uncertain, or rest in the future,” 

in violation of the Court’s ruling in Brinkley and similar cases. Brinkley,

986 S.W.2d at 768.

CPS Energy respectfully urges the Court to adopt the Commission’s 

concession that Findings of Fact 84-87 and Conclusions of Law 26 and 27 

were advisory opinions. As CPS Energy discusses above, the Commission

made determinations of facts and law unripe for decision. The effect of such 

findings is to remove the Commission’s subject matter jurisdiction to issue 

No. 03-14-00340-CV

APPELLANT CPS ENERGY’S POST SUBMISSION BRIEF 6
those findings and conclusions. See Robinson, 353 S.W.3d at 755 

(“[r]ipeness ‘is a threshold issue that implicates subject matter 

jurisdiction’...”). CPS Energy thus respectfully urges the Court to find that 

the Commission’s determinations have no legal effect and to reverse the 

Commission’s Order on Rehearing regarding Findings of Fact 84-87 and 

Conclusions of Law 26 and 27.5

 

The Uniform Declaratory Judgment Act does not Apply to this Case

At the oral argument, AT&T argued that the Commission’s findings 

were not advisory opinions because the case was brought as a declaratory 

judgment action. AT&T’s argument lacks merit for two reasons. 

First, CPS Energy did not file the case under the Uniform Declaratory 

Judgment Act (“UDJA”). CPS Energy instead filed the case as a petition for 

enforcement under Utilities Code § 54.204. Indeed, the style of the case is 

“Petition of CPS Energy for Enforcement Against AT&T Texas and Time 

Warner Cable Regarding Pole Attachments” and CPS Energy’s petition was 

5 It is appropriate for the Court to reverse the Commission’s decision in this case if 

the decision prejudices substantial rights of CPS Energy. TEX. GOV'T CODE ANN.

§ 2001.174 (West 2000); Central Power & Light Co. v. Public Util. Comm'n, 36 

S.W.3d 547, 561-562 (Tex.App.—Austin 2000, pet. denied). In this case, Time 

Warner Cable Texas LLC (“Time Warner”) is seeking damages against CPS 

Energy in a related case in Bexar County District Court. If the Commission’s 

advisory opinion about the FCC’s June 8, 2011 amendments stands untouched, 

Time Warner will undoubtedly use that opinion to seek damages against CPS 

Energy in the Bexar County litigation. Therefore, CPS Energy’s substantial rights 

will be prejudiced and it is appropriate to reverse the Commission’s decision. 

No. 03-14-00340-CV

APPELLANT CPS ENERGY’S POST SUBMISSION BRIEF 7

 
titled “Petition and Request for Enforcement of CPS Energy.” Order on 

Rehearing at 1. Therefore, any case law interpreting the UDJA is 

inapplicable to this case. See, e.g., City of Waco, 83 S.W.3d at 177

(analyzing ripeness requirements for UDJA actions). 

Second, even if considered to be a declaratory judgment action, Texas 

courts have consistently held that a declaratory judgment action does not 

expand a tribunal’s subject matter jurisdiction. “[W]e have interpreted the 

Uniform Declaratory Judgments Act, TEX. CIV. PRAC. & REM. CODE §§ 

37.001–.011, to be merely 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.” Tex. Ass'n of Bus.,

852 S.W.2d at 444; see also Firemen's Ins. Co. v. Burch, 442 S.W.2d 331, 

333 (Tex. 1969) (“the Legislature could not and has not by the passage of 

the Uniform Declaratory Judgments Act, empowered the district courts to 

render advisory opinions”). Consequently, even had the parties filed a 

declaratory judgment action, which they did not, the Commission would 

have lacked subject matter jurisdiction to issue Findings of Fact 84-87 and 

Conclusions of Law 26 and 27 since those determinations were advisory and 

unripe.

No. 03-14-00340-CV

APPELLANT CPS ENERGY’S POST SUBMISSION BRIEF 8
Findings of Fact 84-87 and Conclusions of Law 26 and 27 Result in an 

Unconstitutional Delegation of Power

If the Court concludes that the Commission’s decision regarding the 

applicability of the FCC’s June 8 2011 amendments to its rules were not an 

advisory opinion, then as CPS Energy explained in its Point of Error No. 2,

the Commission’s interpretation of Utilities Code § 54.204(c) results in an 

unconstitutional delegation of power to a federal agency. See CPS Brief at 

16-21. CPS Energy respectfully refers the Court to its briefs for its 

arguments on that issue. Id. 

Conclusion

The Commission exceeded its jurisdiction on several occasions and 

Findings of Fact 84-87 and Conclusions of Law 26 and 27 are examples of 

this overstepping of jurisdictional authority. See CPS Brief at 16-47 (Points 

of Error Nos. 2-5). As the Attorney General recognized, the Commission 

issued an advisory opinion about the applicability of the June 8, 2011 

amendments to the FCC’s rules. The record only addressed billing years 

2005-2010 and thus the dispute upon which the Commission issued its

opinion was unripe. The Commission’s opinion was also an 

unconstitutional delegation of power. 

No. 03-14-00340-CV

APPELLANT CPS ENERGY’S POST SUBMISSION BRIEF 9
For all of these reasons, CPS Energy respectfully urges the Court to 

find that Findings of Fact 84-87 and Conclusions of Law 26 and 27 have no 

legal effect and remand the case to the Commission with instructions to 

issue an order consistent with the Court’s opinion. 

Respectfully submitted,

CPS Energy

Gabriel Garcia

ggarcia@cpsenergy.com

Carolyn Shellman

cshellman@cpsenergy.com

CPS Energy

145 Navarro

P.O. Box 1771

San Antonio, Texas 78296

(210) 353-5689 (Voice)

(210) 353-6832 (Facsimile)

HERRERA & BOYLE, PLLC 

Alfred R. Herrera 

State Bar No. 09529600

aherrera@herreraboylelaw.com

816 Congress Avenue, Suite 1250

Austin, Texas 78701 

(512) 474-1492 (Voice) 

(512) 474-2507 (Facsimile) 

By: /s/ Alfred R. Herrera

Alfred R. Herrera 

ATTORNEYS FOR CPS ENERGY

No. 03-14-00340-CV

APPELLANT CPS ENERGY’S POST SUBMISSION BRIEF 10
CERTIFICATE OF SERVICE

I hereby certify that on this the 8th of May, 2015, a true and correct 

copy of Appellant CPS Energy’s Post Submission Brief was served upon 

all parties listed below by certified mail, return receipt requested, or hand 

delivered.

By: /s/ Alfred R. Herrera

Alfred R. Herrera

Counsel for Public Utility Commission 

of Texas:

Douglas Fraser

Megan Neal

Office of the Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711-02548

Phone: (512) 463-2012

Fax: (512) 457-4610

douglas.fraser@texasattorneygeneral.gov

megan.neal@texasattorneygeneral.gov

Counsel for CPS Energy:

Alfred R. Herrera 

HERRERA & BOYLE, PLLC

816 Congress Avenue, Suite 1250

Austin, TX 78701

Phone: (512) 474-1492

Fax: (512) 474-2507

aherrera@herreraboylelaw.com

Counsel for AT&T Texas:

Paul A. Drummond

Natalie L. Hall

AT&T Legal Department

1010 N. St. Mary’s, 14th Floor

San Antonio, Texas 78215

Phone: (210) 351-4830

Fax: (210) 886-2127

paul.drummond@att.com

natalie.hall@att.com

Counsel for CPS Energy:

Carolyn Shellman

Gabriel Garcia

CPS Energy

145 Navarro

P.O. Box 1771

San Antonio, TX 78296

Phone: (210) 353-5689

Fax: (210) 353-6832

cshellman@cpsenergy.com

ggarcia@cpsenergy.com

No. 03-14-00340-CV

APPELLANT CPS ENERGY’S POST SUBMISSION BRIEF 11
CERTIFICATE OF COMPLIANCE

The Word document properties feature states there are 1,961 words in this

document.

By: /s/Alfred R. Herrera

Alfred R. Herrera

Counsel for AT&T Texas:

Michael T. Sullivan

Mayer Brown LLP

71 S. Wacker Drive

Chicago, IL 60606

Phone: (312) 782-0600

Fax: (312) 706-8689

msullivan@mayerbrown.com

Counsel for AT&T Texas:

J. David Tate

Katherine C. Swaller

Thomas Ballo

AT&T Legal Department

816 Congress Avenue, Suite 1100

Austin, Texas 78701

Phone: (512) 457-2304

Fax: (512) 870-3420

jon.david.tate@att.com

katherine.swaller@att.com

thomas.ballo@att.com

Counsel for Time Warner Cable Texas 

LLC:

Valerie P. Kirk

Melissa Lorber

Enoch Kever PLLC

600 Congress Avenue, Suite 2800

Austin, Texas 78701

Phone: (512) 615-1200

Fax: (512) 615-1198

vkirk@enochkever.com

mlorber@enochkever.com

Counsel for Time Warner Cable 

Texas LLC:

J.D. Thomas

J. Aaron George

Sheppard Mullin Richter & 

Hampton LLP

1300 I Street, N.W.

11th Floor East

Washington DC 20005

Phone: (202) 218-0000

Fax: (202) w218-0020

dthomas@sheppardmullin.com

ageorge@sheppardmullin.com

No. 03-14-00340-CV

APPELLANT CPS ENERGY’S POST SUBMISSION BRIEF 12
APPENDIX I:

Referenced Case Law and Statutes

(Excludes Items Provided with CPS Energy’s 

Previous Briefs)
No. 03-14-00340-CV

APPENDIX I:

Referenced Case Law and Statutes

(Excludes Items Provided with CPS Energy’s Previous Briefs)

Cases

1. Brinkley v. Texas Lottery Comm'n, 986 S.W.2d 767 (Tex. App.—

Austin 1999, no pet.)

2. City of Waco v. Tex. Nat. Res. Conservation Comm'n, 83 S.W.3d 169

(Tex. App.—Austin 2002, pet. denied)

3. Firemen's Ins. Co. v. Burch, 442 S.W.2d 331 (Tex. 1969)

4. Railroad Comm'n v. CenterPoint Energy Res. Corp., 03–13–00533–

CV, 2014 WL 4058727, at *2-3 (Tex. App.—Austin, no pet.)

5. Robinson v. Parker, 353 S.W.3d 753 (Tex. 2011)

6. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440

(Tex. 1993)

7. Trinity Settlement Servs., LLC v. Texas State Secs. Bd., 417 S.W.3d

494 (Tex. App.—Austin 2013, pet. denied)

8. TXU Electric v. Public Utility Commission, 51 S.W.3d 275

(Tex. 2001)

Statutes and Rules

9. 47 C.F.R. §1.1409(e)

10. TEX. CIV. PRAC. & REM. CODE §§ 37.001–.011

11. TEX. UTIL. CODE ANN. § 54.205
Brinkley v. Texas Lottery Com’n, 986 S.W.2d 764 (1999)

986 S.W.2d 764

Court of Appeals of Texas,

Austin.

Shannon BRINKLEY, d/b/a Krane–Ko Vending, 

Appellant,

v.

TEXAS LOTTERY COMMISSION, Appellee.

No. 03–97–00252–CV | Feb. 4, 1999.

Owner of electronic machines similar to slot machines 

filed action seeking, in part, declaratory judgment that his 

machines were not gambling devices. The District Court, 

Travis County, 250th Judicial District, John K. Dietz, J.P., 

dismissed his causes of action for want of jurisdiction. 

Owner appealed. The Court of Appeals, John Powers, J. 

(Retired), held that: (1) cause of action seeking 

declaratory judgment that machines were not gambling 

devices sought improper advisory opinion; (2) trial court 

lacked jurisdiction to grant requested injunctive relief in 

absence of allegations of probable injury; (3) 

Commission’s advisory letters were not “rules” within 

meaning of provision of Administrative Procedure Act 

(APA) authorizing declaratory judgments to determine 

validity of rules; and (4) Commission was not subject to 

suit under § 1983 or federal civil rights conspiracy statute.

Affirmed.

Attorneys and Law Firms

*766 Ira E. Tobolowsky, Tobolowsky & Burk, P.C., 

Dallas, for Appellant.

John Cornyn, Atty. Gen., Matthew L. Rienstra, Asst. Atty. 

Gen., Admistrative Law Division, Austin, for Appellee.

Before Chief Justice ABOUSSIE, Justices B.A. SMITH

and POWERS.*

* Before John Powers, Senior Justice (retired), Third 

Court of Appeals, sitting by assignment. See Tex. Gov’t 

Code Ann. § 74.003(b) (West 1998).

Opinion

JOHN POWERS, Justice (Retired).

Shannon Brinkley sued the Texas Lottery Commission to 

obtain a declaratory judgment that certain machines, 

denominated “eight-liners,” are not “gambling devices” as 

defined by the Texas Penal Code. See Tex. Penal Code 

Ann. § 47.01(B)(4) (West Supp.1998). He applied for an 

injunction against enforcement of any criminal or 

administrative penalties for operating “eight-liners,” and 

in a civil-rights action prayed for compensatory damages. 

The trial court dismissed his causes of action for want of 

jurisdiction. Brinkley appeals. We will affirm the 

judgment.

THE CONTROVERSY

The Bingo Enabling Act, administered and enforced by 

the Texas Lottery Commission, provides as follows:

A game of chance other than bingo 

... may not be conducted or allowed 

during an occasion when bingo is 

played.... This subsection does not 

prohibit the exhibition and play of 

an amusement machine that is not a 

gambling device as defined by 

Section 47.01, Penal Code.

Tex.Rev.Civ. Stat. Ann. art. 179d, § 11(k) (West 

Supp.1998). Section 47.01 of the Penal Code defines 

“gambling device.”1

1 “Gambling device” means any electronic, 

electromechanical, or mechanical contrivance not 

excluded under Paragraph (B) that for a consideration 

affords the player an opportunity to obtain anything of 

value, the award of which is determined solely or 

partially by chance, even though accompanied by some 

skill, whether or not the prize is automatically paid by 

the contrivance. The term:

* * *

(B) does not include any electronic, 

electromechanical, or mechanical contrivance 

designed, made, and adapted solely for bona 

fide amusement purposes if the contrivance 

rewards the player exclusively with noncash 

merchandise prizes, toys, or novelties, or a 

representation of value redeemable for those 

items, that have a wholesale value available 

from a single play of the game or device of not 

more than 10 times the amount charged to play 

the game or device once or $5, whichever is 

less.

Texas Penal Code Ann. § 47.01(4)(B) (West 

Supp.1998).

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Brinkley v. Texas Lottery Com’n, 986 S.W.2d 764 (1999)

The Commission licenses and regulates some 2,500 

bingo-parlors. Many licensees allow the operation of 

“eight-liners” in their parlors. Eight-liners are electronic 

machines (similar to “slot machines”) that dispense gift 

certificates redeemable for prizes. The machines do not 

all operate in the same manner; their operation and payout 

can be configured in a variety of ways.

*767 The Commission received numerous complaints and 

inquiries from licensees who were uncertain about 

whether the particular machines in their parlors were set 

up to operate legally. In response, the Commission sent to 

its licensees letters setting forth criteria by which the 

licensees might ascertain the legal status of machines in 

their parlors. The letters included a warning that illegally 

operated machines exposed licensees to administrative 

and criminal penalties.2 The Commission noted in the 

letters that application of the stated criteria would not 

necessarily determine the legality of the machines and 

“the agency cannot guarantee that the use of the 

eight-liners is necessarily legal.” The letters concluded: 

“we hope this helps answer questions you may have in 

regard to this issue.”

2 The Commission may impose administrative penalties 

for violations of the Bingo Enabling Act. 

Law-enforcement authorities enforce the Texas Penal 

Code.

Brinkley does not hold a Commission license to operate a 

bingo parlor. He owns several eight-liners that he 

formerly operated in a space he leases within a licensed 

bingo parlor. When Brinkley’s lessor received the 

Commission’s letters, he refused to allow Brinkley to 

continue the operation of his eight-liners in the bingo 

parlor.

Brinkley pleaded against the Commission the following 

causes of action:

(1) An action under the Uniform Declaratory Judgments 

Act for a judicial determination that eight-liners are not 

gambling devices under section 47.01(4)(B) of the Texas 

Penal Code, and that the Commission’s interpretation of 

section 47.01 is unconstitutional;

(2) an action for declaratory judgment under section 

2001.038 of the Texas Government Code that the 

Commission’s letters constitute “rules,” as defined by 

section 2001.003(6) of the Administrative Procedure Act, 

and that the “rules” are invalid because they were not 

formulated or adopted in compliance with the rulemaking 

provisions of Texas Government Code sections 

2001.021–.037;3

3 See Tex. Gov’t Code Ann. §§ 2001.021–.037 (West 

1998).

(3) an application for injunction restraining the 

Commission and “all others” from interfering with the 

operation of Brinkley’s eight-liners in bingo parlors, 

whether by raids, harassment, criminal prosecution, 

forfeiture and seizure of Brinkley’s eight-liners, or any 

other way; and

(4) actions for injunctive relief and compensatory 

damages, under 42 United States Code sections 1983 and 

1985, for violation of Brinkley’s civil rights under color 

of state law.4

4 See 42 U.S.C. §§ 1983, 1985 (1994).

The Commission filed pleas to the jurisdiction, 

contending the trial court lacked subject-matter 

jurisdiction because (1) the actions were barred by the 

doctrine of sovereign immunity; (2) Brinkley lacked 

standing to assert the actions alleged; (3) the trial court 

lacked jurisdiction to determine legal relationships under 

a penal statute; and (4) there existed no justiciable 

controversy. The trial court denied the plea of sovereign 

immunity but sustained the pleas on the other grounds 

claimed and dismissed the actions. Brinkley contends the 

trial court possessed jurisdiction on the grounds discussed 

below.

UNIFORM DECLARATORY JUDGMENTS ACT

[1] [2] [3] [4] The separation-of-powers doctrine prohibits 

courts from issuing advisory opinions. Texas Ass’n of 

Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 

(Tex.1993); Firemen’s Ins. Co. v. Burch, 442 S.W.2d 331, 

333 (Tex.1969); Morrow v. Corbin, 122 Tex. 553, 62 

S.W.2d 641, 647 (1933). The distinctive feature of an 

advisory opinion is that it decides an abstract question of 

law without binding the parties. Alabama State Fed’n of 

Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 89 

L.Ed. 1725 (1945); Texas Ass’n of Bus., 852 S.W.2d at 

444; Firemen’s Ins. Co., 442 S.W.2d at 333; California 

Prods. Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 

334 S.W.2d 780, 783 (1960). An opinion is advisory 

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Brinkley v. Texas Lottery Com’n, 986 S.W.2d 764 (1999)

when the judgment sought would not constitute specific 

relief to a litigant or affect legal relations. Reuter v. *768

Cordes–Hendreks Coiffures, 422 S.W.2d 193, 196 

(Tex.Civ.App.—Houston [14th Dist.] 1967, no writ). 

“The court will not declare rights on facts which have not 

arisen or adjudicate matters which are contingent, 

uncertain, or rest in the future.” 26 C.J.S. Declaratory 

Judgments, § 28 (1956).

[5] [6] Brinkley alleged that he sustained “irreparable injury 

to vested property rights with no adequate remedy at law”

because his lessor, “as a result” of the Commission’s 

letters, demanded that Brinkley remove his machines. 

Elsewhere in his petition, Brinkley’s allegations are 

susceptible of a construction that the letters prevent his 

operating his machines in other bingo parlors. We believe 

Brinkley’s cause of action under the UDJA requires an 

advisory opinion. Brinkley and the Commission are the 

only parties to the lawsuit and Brinkley is not a licensee 

subject to the Commission’s regulation.5 Brinkley 

necessarily speculates that a declaratory judgment, 

holding that eight-liners are not gambling devices, may 

induce his lessor or other bingo-parlor licensees to allow 

him to operate his machines, however configured, in their 

parlors. This is a contingency, an uncertainty, a 

hypothesis upon which a court may not decide the legal 

issues raised in Brinkley’s petition. See Coalson v. City 

Council of Victoria, 610 S.W.2d 744, 747 (Tex.1980)

(suit to declare invalid city charter-amendment initiative 

requires advisory opinion because voters might 

disapprove proposed amendment); Central Sur. & Ins. 

Corp. v. Anderson, 445 S.W.2d 514, 515 (Tex.1969) (suit 

for declaratory judgment that insurer liable to pay 

judgment, in advance of judgment against tort defendant, 

requires advisory opinion); see generally Texas Ass’n of 

Bus., 852 S.W.2d at 444.6

5 The Commission regulates amusement machines 

pursuant to article 179d of the Texas Revised Civil 

Statutes (Bingo Enabling Act) which is concerned only 

with those amusement machines located in bingo halls. 

See Tex.Rev.Civ. Stat. art. 179d (West 1998). Outside 

of bingo halls, law enforcement personnel are charged 

with the enforcement of Texas Penal Code section 

47.01 which prohibits the use of “gambling devices.”

Tex. Penal Code § 47.01 (West 1994 & Supp.1998).

6 The Uniform Declaratory Judgments Act, found in the 

Texas Civil Practice & Remedies Code, is a procedural 

device for deciding cases already within a court’s 

jurisdiction; the statute does not enlarge a court’s 

jurisdiction so as to authorize the rendition of advisory 

opinions. See Tex. Civ. Prac. & Rem.Code Ann. §§ 

37.001–.011 (West 1997); Texas Ass’n of Bus. v. Texas 

Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993).

INJUNCTIVE RELIEF

[7] [8] The trial court also lacked jurisdiction to grant the 

injunctive relief requested.7 Injunctions may not issue 

unless it is shown that the respondent will engage in or is 

engaging in the activity to be enjoined. See State v. 

Morales, 869 S.W.2d 941, 946–47 (Tex.1994). Brinkley 

seeks to enjoin the Commission and “all others” from 

interfering with the operation of his eight-liners in bingo 

parlors in any way, including the prohibition of raids, 

harassment, criminal prosecution, and forfeiture and 

seizure of his machines. Brinkley alleged only that the 

Commission sent the advisory letters to about 2,500 

licensees. He has not alleged that the Commission 

threatens to impose upon him (he is not a licensee) 

administrative penalties nor that law enforcement 

authorities (not parties here) threaten to prosecute him 

under the criminal law. He has not alleged that the 

Commission, unless restrained, will enforce against him 

any sanction within its power to enforce. We decline to 

hold as a matter of law that the Commission’s sending of 

the advisory letters to a large number of its licensees 

constituted a showing of “probable injury” to Brinkley. 

See id. at 946–47; Transport Co. v. Robertson Transports, 

Inc., 152 Tex. 551, 261 S.W.2d 549, 552 (1953)

(requiring showing of “probable injury” if respondent not 

restrained). Absent allegations of fact showing a probable 

injury, a court is without jurisdiction to grant the 

injunctive relief requested. See Morales, 869 S.W.2d at 

942, 946–47; see also *769 Texas Employment Comm’n 

v. Martinez, 545 S.W.2d 876, 877–78 (Tex.Civ.App.—El 

Paso 1976, no writ).

7 Brinkley requested injunctive relief pursuant to section 

65.011 of the Texas Civil Practice & Remedies Code

and section 16.29 of the Texas Business & Commerce 

Code (Injury to Business Reputation or Trade Name or 

Mark); Tex. Civ. Prac. & Rem.Code Ann. § 65.011 

(West 1997); Tex. Bus. & Com.Code Ann. § 16.29

(West Supp.1998).

ADMINISTRATIVE PROCEDURE 

ACT—DECLARATORY JUDGMENT

Section 2001.038 of the Administrative Procedure Act 

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Brinkley v. Texas Lottery Com’n, 986 S.W.2d 764 (1999)

(APA) creates a cause of action for declaratory judgment 

to determine the validity or applicability of an agency rule 

when it “is alleged that the rule or its threatened 

application interferes with or impairs, or threatens to 

interfere with or impair, a legal right or privilege of the 

plaintiff.” Tex. Gov’t Code Ann. § 2001.038 (West 1998). 

For purposes of section 2001.038 and all other sections in 

Chapter 2001 of the Texas Government Code, the word 

“rule”

(A) means a state agency statement of general 

applicability that:

(i) implements, interprets, or prescribes law or 

policy; or

(ii) describes the procedure or practice requirements

of a state agency;

(B) includes the amendment or repeal of a prior rule; 

and

(C) does not include a statement regarding only the 

internal management or organization of a state 

agency and not affecting private rights or 

procedures.

Tex. Gov’t Code Ann. § 2001.003(6) (West 1998) 

(emphasis added).

[9] Brinkley contends the trial court had jurisdiction of his 

cause of action for declaratory judgment, under section 

2001.038 of the APA, because the Commission letters 

amounted to a “rule” as defined in section 2001.003(6). 

We disagree.

[10] “Not every statement by an administrative agency is a 

rule for which the APA prescribes procedures for 

adoption and for judicial review.” Texas Educ. Agency v. 

Leeper, 893 S.W.2d 432, 443 (Tex.1994). This 

observation refers to the fact that administrative agencies 

routinely issue letters, guidelines, and reports, and 

occasionally file briefs in court proceedings, any of which 

might contain statements that intrinsically implement, 

interpret, or prescribe law, policy, or procedure or 

practice requirements. Are all such statements therefore 

“rules” within the meaning of APA section 2001.003(6)

and 2001.038? They are not for several reasons.

It does not appear that the legislature has delegated to the 

Commission a power to bind others by ukase—a naked 

proclamation contained, for example, in a letter, a set of 

guidelines, or a report, or by a statement in a brief filed in 

a court proceeding. It appears instead that the 

Commission may bind others generally only by a rule

promulgated through the notice-and-comment procedures 

of APA sections 2001.022–.037, or bind particular 

litigants by the Commission’s order adjudicating a 

contested case conducted under the procedures set forth in 

APA sections 2001.051–.147. The same is true in general 

of most constitutive statutes and enabling acts delegating 

power to administrative agencies.

The legislature intends that administrative agencies 

exercise effectively the powers delegated to them. See 

Sexton v. Mount Olivet Cemetery Ass’n, 720 S.W.2d 129, 

137 (Tex.App.—Austin 1986, writ ref’d n.r.e.). Agencies 

would be reduced to impotence, however, if bound to 

express their views as to “law,” “policy,” and procedural 

“requirements” through contested-case decisions or 

formal rules exclusively; and they could not under such a 

theory exercise powers explicitly delegated to them by the 

legislature. How, under such a theory, could an agency 

practically express its views to an informal conference or 

advisory committee, or state its reasons for denying a 

petition to adopt a rule, or file a brief in a court or agency 

proceeding? See Tex. Gov’t Code Ann. §§ 2001.021, 

.031, .058 (West 1998).

The foregoing are only examples derived from the APA 

itself. If every expression by the agency as to “law,”

“policy,” and procedural “requirements” requires the 

promulgation of a formal rule, the agency could no longer 

exercise its “informed discretion” to choose adjudication 

as a means of making law and policy, rather than 

rulemaking, a choice we have repeatedly said an agency 

has when it possesses both adjudicatory and rulemaking 

powers. See, e.g., Madden v. Texas Bd. of Chiropractic 

Exmr’s, 663 S.W.2d 622, 626 (Tex.App.—Austin 1984, 

writ ref’d n.r.e.); *770 State Bd. of Ins. v. Deffebach,

631 S.W.2d 794, 799 (Tex.App.—Austin 1982, writ ref’d 

n.r.e.). If the agencies were so restricted, they would be 

deprived, as a practical matter, of the power to adjudicate; 

an agency could make valid “law” or “policy” only 

through the straight-jacket of rulemaking, even though the 

agency might be quite unable to do so for any number of 

reasons as noted in El Paso v. Public Util. Comm’n, 883 

S.W.2d 179, 188–89 (Tex.1994).

8

8 The legislature may, by statute, require an agency to 

make formal rules with regard to particular matters. See 

Railroad Comm’n v. Shell Oil Co., 146 Tex. 286, 206 

S.W.2d 235, 241 (1947). The agency would be bound, 

of course, to enact rules in compliance with the 

legislative mandate. It may also be that a constitutional 

provision requires, in particular circumstances, that the 

agency promulgate a formal rule before attempting to 

bind private persons by the agency’s view of “law,”

“policy,” or procedural “requirements.” See, e.g., 

Madden v. Texas Bd. of Chiropractic Exmr’s, 663 

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Brinkley v. Texas Lottery Com’n, 986 S.W.2d 764 (1999)

S.W.2d 622, 626–27 (Tex.App.—Austin 1984, writ 

ref’d n.r.e.). Such matters are not involved in the 

present controversy.

The very text of the APA rejects the theory that every 

agency pronouncement regarding “law,” “policy,” and 

procedural “requirements” requires the promulgation of a 

formal rule. That theory would destroy, for example, the 

distinction between “rules” and “policies” found in 

section 2001.058(b), (c), and (e); the word “policies” is 

rendered meaningless because under that theory 

“policies” could only exist in the form of “rules.”

We need not belabor the point. The definition in section 

2001.003(6) is sufficiently flexible to allow agencies to 

perform their functions without unnecessary procedural 

obstacles; the definition expressly excludes from the 

definition of a “rule” any agency statements regarding 

only the internal management or organization of an 

agency that do not affect private rights or procedures. See

Tex. Gov’t Code Ann. § 2001.003(6)(C) (West 1998). 

This statutory exclusion encompasses any agency 

statement regarding “law,” “policy,” or procedural

“requirements” made outside the rulemaking and 

contested-case context; such statements have no legal 

effect on private persons absent a statute that so provides 

or some attempt by the agency to enforce its statement 

against a private person, as in Madden where the agency 

attempted to enforce, in the course of adjudicating a 

contested case, its policy of what constituted a “bona fide 

reputable chiropractic” school. See Madden, 663 S.W.2d 

at 626–27. At that point, an affected person may 

challenge, if he wishes, the validity or applicability of the 

agency statement on whatever grounds may be applicable. 

Until then, the agency’s pronouncements regarding “law,”

“policy,” and procedural “requirements” remain merely 

informal views, effective only upon and within the 

agency’s internal management and organization.9 See 

Leeper, 893 S.W.2d at 443 (state board of education 

resolution stating guidelines for school districts pending 

statutory revision); United Parcel Serv., Inc. v. Oregon 

Transp. Comm’n, 27 Or.App. 147, 555 P.2d 778, 780 

(1976) (commission statement consenting to city’s 

designation of truck route); Reynolds Sch. Dist. v. Oregon 

Sch. Employees, 58 Or.App. 609, 650 P.2d 119, 123 

(1982) (agency statement made in adjudication of 

previous contested case); United States v. Fitch Oil Co.,

676 F.2d 673, 678 (Temp.Emer.Ct.App.U.S.1982)

(statement of Secretary of Energy); Durnin v. Allentown 

Fed. Sav. and Loan Ass’n, 218 F.Supp. 716, 721 

(E.D.Pa.1963) (letter from supervisory agent of Federal 

Home Loan Bank Board); 1 Davis and Pierce, 

Administrative *771 Law Treatise § 3.5 at 120 (3d 

ed.1994).10

9 The letters sent by the Commission in this instance 

were, on their face, simply advisory guidelines; they 

did not purport to express a final opinion on the legality 

of eight-liners of any particular kind. We have 

previously noted the valuable role such advisory 

opinions serve in administration. See Texas Comm’n of 

Licensing and Regulation v. Model Search America, 

Inc., 953 S.W.2d 289 (Tex.App.—Austin 1997, no 

writ). As we stated in that opinion,

[T]o permit suits for declaratory judgments upon 

mere informal, advisory, administrative opinions 

might well discourage the practice of giving such 

opinions, with a net loss of far greater proportions 

than any possible gain.

Id. at 293 quoting, Helco Prods. Co. v. McNutt, 137 

F.2d 681, 684 (D.C.Cir.1943). Considering the 

number of bingo-parlor licensees and the variety of 

ways in which eight-liners can be configured, the 

practical value of the letters is obvious. Nothing in 

the letters purports to foreclose an individual licensee 

from seeking, if he wishes, a formal opinion from the 

Commission regarding particular eight-liners. While 

private parties may voluntarily comply with such 

guidelines, they are not legally bound to do so.

10 The first Commission letter stated:

TO ALL BINGO LICENSEES:

The Texas Lottery Commission has received 

complaints regarding the use of gambling devices 

at locations where bingo is being conducted. The 

specific complaints concern the operation of 

devices popularly known as “Eight Liners.”

The Texas Lottery Commission considers these 

devices to be gambling devices as defined by 

Section 47.01(4) of the Texas Penal Code, as a 

result of the method of operation and payoff of 

these devices.

Please be aware that Section (11(k)) of the Bingo 

Enabling Act, Texas Revised Civil Statutes Article 

179d, provides the following: “A game of chance 

other than bingo may not be conducted or allowed 

during an occasion when bingo is played. This 

subsection does not prohibit the exhibition and 

play of an amusement machine that is not a 

gambling device as defined by Section 47.01, 

Penal Code.”

Therefore, effective September 1, 1996, the 

Commission will refer any incident of use by a 

licensee of the aforementioned device(s) in an 

illegal manner which is detected after September 

1, 1996 to the appropriate law enforcement agency 

for criminal prosecution and will initiate an 

appropriate administrative disciplinary action.

This notice is intended to make licensees aware of 

the agency’s position and to afford an opportunity

to licensees for voluntary compliance.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5
City of Waco v. Texas Natural Resource Conservation Com’n, 83 S.W.3d 169 (2002)

83 S.W.3d 169

Court of Appeals of Texas,

Austin.

CITY OF WACO, Appellant,

v.

TEXAS NATURAL RESOURCE CONSERVATION 

COMMISSION; and Jeffrey A. Saitas, as Executive 

Director, Appellees.

No. 03–01–00217–CV. | May 9, 2002. | As Modified 

on Overruling of RehearingJune 21, 2002.

City and dairy producers’ association filed action seeking 

declaratory judgment that Texas Natural Resources 

Conservation Commission (TNRCC) order regulating 

future permits for confined animal feeding operations 

(CAFOs) was invalid, TNRCC withdrew order and filed 

motion to dismiss action as moot and not ripe, and city 

amended petition to seek declaratory relief that TNRCC’s 

interim policy of continuing to issue any permits violated 

state regulation. The 353rd Judicial District Court, Travis 

County, Paul Davis, J., dismissed actions. City appealed. 

The Court of Appeals, Bea Ann Smith, J., held that: (1) 

dispute had to be evaluated in terms of ripeness, not 

mootness; (2) question of whether federal regulation, as 

adopted by state law, operated to prohibit TNRCC from 

approving any new CAFO permits until TNRCC adopted 

necessary pollution-reduction measures presented purely 

legal inquiry, which would not benefit from development 

of additional facts in connection with specific permit 

application; and (3) facts underlying dispute were 

sufficiently developed to make dispute ripe for review; 

and on rehearing, Smith, J., held that: (4) sovereign 

immunity did not bar city’s suit; and (5) city was not 

seeking advisory opinion, and thus suit was not 

hypothetical and presented real controversy that would be 

resolved by declaratory relief sought.

Reversed and remanded.

Attorneys and Law Firms

*172 Jackson B. Battle, Brown McCarroll L.L.P., Austin, 

for appellant.

Anthony C. Grigsby, Linda B. Secord, Assistant 

Attorneys General, Natural Resources Division, Austin, 

for appellees.

Before Chief Justice ABOUSSIE, Justices B.A. SMITH

and PURYEAR.

BEA ANN SMITH, Justice.

This appeal concerns whether a dispute about the Texas 

Natural Resource Conservation Commission’s (the 

TNRCC’s) permit-issuing process is ripe for judicial 

review by the district court. The Bosque River, a tributary 

of the Brazos River, is located northwest of the city of 

Waco. Segments 1226 and 1255 of the North Bosque 

River have been listed as having impaired water quality 

due to high levels of nutrients. See 30 Tex. Admin. Code 

§§ 307.1–.10 (2001) (Tex. Natural Res. Conservation 

Comm’n, Tex. Surface Water Quality Standards). Near its 

point of confluence with the Brazos River, the Bosque 

River forms Lake Waco, which provides the sole source 

of drinking water for approximately 150,000 people in 

and around Waco; the lake is also used extensively for 

recreational activities. The water quality of Lake Waco, 

which is a “sink” for any dissolved pollutants in the 

Bosque River, has been affected. Numerous dairy 

operations are located northwest of Waco in Erath County 

in the Bosque River watershed. The dairies must seek 

confined animal feeding operation (CAFO) permits from 

the TNRCC because the agricultural waste from their 

operations, which becomes dissolved in runoff or is 

otherwise discharged, ultimately discharges into the river.

[1] This dispute arose when the TNRCC promulgated an 

order in February 2000 regulating future permits for 

CAFOs. Both the City of Waco (the City) and the Texas 

Association of Dairymen (the Dairymen) filed actions for 

declaratory judgments attacking the order. The TNRCC 

responded by withdrawing the order and moving to 

dismiss both actions as moot and not ripe. The City 

amended its petition to seek declaratory relief that the 

TNRCC’s interim policy of continuing to issue any 

permits violates state regulations. The district court 

dismissed the actions. Both the Dairymen and the City 

appealed the dismissal of their suits for declaratory relief. 

However, following oral argument, the Dairymen 

voluntarily dismissed their appeal.1 The only remaining 

issue before us is the ripeness of the City’s suit for 

declaratory relief.2

1 The TNRCC filed a motion to dismiss the Dairymen’s 

appeal on the ground that legislative action had mooted 

the association’s appeal. Because the Dairymen 

voluntarily dismissed their appeal, we overrule the 

TNRCC’s motion.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
City of Waco v. Texas Natural Resource Conservation Com’n, 83 S.W.3d 169 (2002)

2 The TNRCC’s motion to dismiss the Dairymen’s and 

the City’s claims asserted mootness and ripeness 

grounds. After a hearing, the trial court granted the 

motion. The order states that “[a]fter considering the 

motion, the responses, and the evidence filed in support 

of the motion and responses, the court: GRANTS the 

motion and DISMISSES [the consolidated causes].” In 

its brief, the TNRCC asserts that the City’s claims is 

moot and not ripe. While the City’s original claims may 

have been rendered moot by the TNRCC’s action 

revoking its order, it amended its petition to state a 

different claim based on the TNRCC’s policy. We 

conclude therefore that the issue should be analyzed in 

terms of ripeness.

Specifically, the City seeks a declaration that the TNRCC 

may not grant any additional *173 permits for CAFOs in 

the Bosque River watershed until it complies with certain 

federal regulations that have been incorporated into state 

law. See 30 Tex. Admin. Code § 305.538 (1999) (Tex. 

Natural Res. Conservation Comm’n, Prohibitions for 

TPDES Permits) (“no permit may be issued under the 

conditions prohibited in 40 Code of Federal Regulations § 

122.4, as amended”). The City maintains that it seeks 

resolution of a pure question of law: whether section 

122.4(i) operates to bar all new permits until the TNRCC 

has developed an implementation scheme to reduce 

pollution in the two impaired segments of the Bosque 

River. The TNRCC contends that its compliance with the 

regulations can only be determined in the context of a 

permit application on the facts presented by a particular 

application. Because we agree with the City that its 

request for declaratory relief presents a determination of 

law, we reverse the district court’s order of dismissal and 

remand this cause for consideration on the merits.

FACTUAL AND PROCEDURAL BACKGROUND

During the 1980s, the dairy industry expanded greatly in 

the North Bosque River watershed. Erath County became 

the leading county in the state for milk production. This 

reflects a trend in the dairy industry away from small, 

geographically scattered dairies toward large-scale, 

clustered dairy operations. In early 2001, the TNRCC 

estimated that there were 41,000 milk cows concentrated 

along the Bosque River watershed. The waste produced 

by these concentrated operations has impaired the water 

quality of the adjacent stretches of the North Bosque 

River. The TNRCC has identified the primary source of 

the pollution to be phosphorus, which is a nutrient found 

in animal waste. The large amounts of phosphorus in the 

water have caused excessive growth of algae and other 

aquatic plants, which in turn potentially cause distaste and 

odor in drinking water and, under certain circumstances, 

contribute to the depletion of dissolved oxygen.

Under the federal Clean Water Act, a state is required to 

“identify those waters within its boundaries for which the 

effluent limitations required by [the Act] are not stringent 

enough to implement any water quality standard 

applicable to such waters.” 33 U.S.C. § 1313(d)(1)(A)

(2001). In 1998, the TNRCC listed two segments of the 

Bosque River as “impaired under narrative water quality 

standards related to nutrients and aquatic plant growth.”

Once the TNRCC identified the water segments as 

impaired, it was required to develop a Total Maximum 

Daily Load (TMDL), which is a plan for assimilation of 

the pollutants that are present in the water. See id. § 

1313(d)(1)(C).

3 The TNRCC describes a TMDL as

3 Under the Clean Water Act, the TNRCC is also 

required to develop a “continuing planning process” for 

reducing the pollution and bringing the water segments 

up to state water quality standards for nutrients and 

pathogens. See 33 U.S.C. § 1313(e) (2001). This 

process must include, in part, plans for “effluent 

limitations and schedules of compliance at least as 

stringent as those [required under provisions of the 

Clean Water Act],” “the incorporation of all elements 

of any applicable area-wide waste management plans,”

total maximum daily loads for pollutants in accordance 

with subsection (d), and “adequate implementation, 

including schedules of compliance, for revised or new 

water quality standards.” Id.

a quantitative plan that determines the amount of a 

particular pollutant that a water body can receive and 

still meet its applicable water quality standards. In 

other words, TMDLs are the best possible estimates of 

the assimilative capacity of the water body for a 

pollutant under *174 consideration. A TMDL is 

commonly expressed as a load, with units of mass per 

time period, but may be expressed in other ways also. 

TMDLs must also estimate how much the pollutant 

load needs to be reduced from current levels in order to 

achieve water quality standards.

More than three years after the TNRCC identified the 

watershed as impaired, the TNRCC had still not 

established a TMDL plan. Although the agency 

“anticipated” in late 1999 that it would be able to 

submit a proposed TMDL to the Environmental 

Protection Agency (EPA) by the spring of 2000, the 

TNRCC did not complete a TMDL until early 2001. 

The TNRCC has now sent a TMDL to the EPA for 

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
City of Waco v. Texas Natural Resource Conservation Com’n, 83 S.W.3d 169 (2002)

approval; at the time the parties submitted their briefs 

in this cause, however, the TMDL had not been 

approved by that agency.

The TMDL confirms that a major controllable source of 

the phosphorus in the water comes from the dairy farms 

concentrated in the watershed. It recommends that forty to 

sixty percent reductions in phosphorus loadings in some 

areas and fifty percent overall will be needed to reduce 

the potential for problematic algae growth. The City notes 

various problems with the proposed TMDL. The City 

argues that its recommendations are based on now 

outdated information; the number of permits currently 

pending with the TNRCC, if approved, would increase the 

number of authorized cows by 20,000, so the previously 

recommended levels of the TMDL will not achieve 

attainment of water quality standards.4 In addition, the 

TMDL does not establish the amount of phosphorus 

loadings, allocated among the dairies and other 

dischargers, that could be tolerated without violating 

water quality standards for pathogens and nutrients. Nor 

does it implement compliance schedules for the dairies 

and other dischargers to reduce the pathogens in the two 

impaired water segments.

4 The TMDLs are based on data that was collected 

during the mid–1990s. The TNRCC has noted similar 

concerns with the reliability of the data. An interagency 

memo states that the TMDL’s “demonstration of 

feasibility is based in large part on computer model 

simulations that estimated the amount of dairy waste to 

be applied and otherwise disposed of based on the 

number of dairy cows existing or permitted in the 

watershed. If the waste projection changes significantly 

due [to] increasing number of animals, the model 

numbers are less useful for supporting TMDL 

approval.”

Compounding these failures with respect to existing 

dischargers, the City asserts that the TNRCC has 

worsened the situation by approving new applications for 

additional discharges of waste into the already polluted 

river. With the exception of certain small operations, the 

dairies in the watershed are required to obtain CAFO 

permits from the TNRCC that allow them to discharge 

waste from their operations. The City asserts that since 

declaring the segments impaired, the TNRCC has 

continued to grant permits for new and expanded uses 

under an evolving “interim policy.” Although this interim 

policy has taken slightly different forms in recent years, 

the City asserts that every phase of the policy grants the 

agency the discretion to issue new permits, contrary to the 

regulations prohibiting additional CAFOs until the 

TNRCC implements measures that will improve the water 

quality to meet state standards.

The Executive Director of the TNRCC testified that the 

agency will exercise its discretion to grant new permits as 

long as the additional discharge will not worsen the 

“environmental status quo” of the impaired river. The 

agency also points to a rule that it says embodies this 

policy. See 30 Tex. Admin. Code § 321.33 (2001) *175

(Tex. Natural Res. Conservation Comm’n, Confined 

Animal Feeding Operations, Applicability).5 The City 

argues that the TNRCC’s current discretionary policy is at 

odds with state law which requires that a sufficient 

allocation be available for the water to receive the 

additional loading and still meet state water quality 

standards. See id. § 305.538 (1999) (prohibiting permit 

that would violate 40 C.F.R. § 122.4). The City sought a 

declaration that

5 The current administrative code is cited for 

convenience.

until the TNRCC promulgates legally binding 

regulations to implement TMDLs for nutrients and 

pathogens in the two Bosque Segments that contain 

load allocations and other measures that will assure 

compliance with the state water quality standards, no 

permit may be issued to construct or operate a new 

CAFO ... within the watershed.

The TNRCC argues that the City’s suit would not be 

ripe until the TNRCC issued a specific permit. The 

district court agreed with TNRCC and dismissed the 

suit. The City now appeals from that judgment.

DISCUSSION

[2] [3] [4] [5] Ripeness implicates subject-matter jurisdiction 

and emphasizes the requirement of a concrete injury in 

order to present a justiciable claim. Waco Indep. Sch. 

Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex.2000); 

Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 

(Tex.1998). Ripeness is concerned with when an action 

can be brought and seeks to conserve judicial time and 

resources for real and current controversies rather than 

hypothetical or remote disputes. Gibson, 22 S.W.3d at 

851; Patterson, 971 S.W.2d at 442–43. Courts of this 

state may not issue advisory opinions. Patterson, 971 

S.W.2d at 443; Texas Ass’n of Bus. v. Texas Air Control 

Bd., 852 S.W.2d 440, 444 (Tex.1993). An opinion issued 

in a case that is not ripe would address only a hypothetical 

injury rather than remedying actual or imminent harm. 

See Texas Ass’n of Bus., 852 S.W.2d at 444.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
City of Waco v. Texas Natural Resource Conservation Com’n, 83 S.W.3d 169 (2002)

[6] [7] [8] In determining whether a cause is ripe for judicial 

consideration, we look to see whether the facts have 

sufficiently developed to show that an injury has 

occurred, or is likely to occur. Patterson, 971 S.W.2d at 

442. A claimant is not required to show that the injury has 

already occurred, provided the injury is imminent or 

sufficiently likely. Gibson, 22 S.W.3d at 852; Patterson,

971 S.W.2d at 442. Likewise, a person seeking a 

declaratory judgment need not have incurred actual 

injury; a declaratory judgment action will lie if the facts 

show the presence of “ripening seeds of a controversy.”

Texas Dep’t of Banking v. Mount Olivet Cemetery Ass’n,

27 S.W.3d 276, 282 (Tex.App.-Austin 2000, pet. denied)

(quoting Texas Dep’t of Pub. Safety v. Moore, 985 

S.W.2d 149, 153–54 (Tex.App.-Austin 1998, no pet.)).

[9] The City contends that its claim that section 122.4(i) of 

the Code of Federal Regulations, which has been 

incorporated into state law, prohibits the TNRCC from 

issuing permits for new6 CAFOs in the watershed until the 

TNRCC develops compliance schedules and pollutant 

load allocations is ripe. Section 122.4(i) reads:

6 A CAFO that currently operates under a permit may 

also seek a permit for additional or expanded uses. 

Section 122.4(i) applies only to a permit for a new 

source or discharger. See 40 C.F.R. § 122.4(i) (2001). 

Therefore, the City has stipulated that its appeal is 

limited to permits for new CAFOs.

No permit may be issued [t]o a new source or a new 

discharger, if the discharge from its construction or 

operation *176 will cause or contribute to the violation 

of water quality standards. The owner or operator of a 

new source or new discharger proposing to discharge 

into a water segment which does not meet applicable 

water quality standards or is not expected to meet those 

standards even after the application of the effluent 

limitations required by sections 301(b)(1)(A) and 

301(b)(1)(B) of CWA, and for which the State or 

interstate agency has performed a pollutants load 

allocation for the pollutant to be discharged, must 

demonstrate, before the close of the public comment 

period, that:

(1) There are sufficient remaining pollutant load 

allocations to allow for the discharge; and

(2) The existing dischargers into that segment are 

subject to compliance schedules designed to bring 

the segment into compliance with applicable water 

quality standards. The Director may waive the 

submission of information by the new source or 

new discharger required by paragraph (i) of this 

section if the Director determines that the Director 

already has adequate information to evaluate the 

request. An explanation of the development of 

limitations to meet the criteria of this paragraph 

(i)(2) is to be included in the fact sheet to the 

permit under § 124.56(b)(1) of this chapter.

40 C.F.R. § 122.4(i) (2001) (Envtl. Prot. Agency, Nat’l 

Pollutant Discharge Elimination Sys., Prohibitions) 

(emphasis added). The City interprets section 122.4(i)

to mean that “no discharge permit may be issued to a 

new CAFO within the impaired watershed until the 

TNRCC promulgates regulations to implement TMDLs 

for phosphorous and pathogens in the two Bosque 

Segments that contain load allocations and compliance 

schedules.”

Under the TNRCC’s interpretation, section 122.4(i) does 

not obligate the agency to develop load allocations and 

compliance schedules before it issues a new discharge 

permit; rather, it merely limits the TNRCC’s ability to 

issue permits that would “cause or contribute to the 

violation of water quality standards.” Whether a new 

permit will cause or contribute to the violation of water 

quality standards, the agency continues, depends on the 

specific conditions and terms of a given permit. The 

TNRCC argues that the City’s claim does not present a 

pure question of law because the agency’s compliance 

with section 122.4(i) can only be determined in the 

context of an application for a permit. Thus, according to 

the TNRCC, the City’s claim is not ripe until the agency 

approves a permit, because only at that point can one 

determine whether the permit will cause or contribute to a 

violation of water standards. The agency also emphasizes 

that variations between state and federal law affect 

whether a particular permit violates section 122.4(i).

The City responds that the particular conditions of any 

permit are irrelevant because under the agency’s rules and 

policy, every new permit to discharge into impaired 

waters violates section 122.4(i). The City points to the 

rules governing CAFOs,7 which specifically authorize 

discharges in “chronic or catastrophic rainfall events.” See

30 Tex. Admin. Code §§ 321.31(b), .32(8), .34, 

.39(f)(19)(E) (2001) (Tex. Natural Res. Conservation 

Comm’n, Concentrated Animal Feeding Operations). 

*177 The City also maintains that the TNRCC’s own 

evidence indicates that only about half of the waste 

produced by CAFOs is ever “collectible.” Even if all of 

the “collectible waste” is prevented from entering the 

watershed, other uncollectible waste is not. Therefore, 

issuing an additional permit without pollutant load 

allocations and compliance schedules will violate section 

122.4(i), regardless of the conditions that are imposed. 

Furthermore, according to the City, differences between 

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4
City of Waco v. Texas Natural Resource Conservation Com’n, 83 S.W.3d 169 (2002)

state and federal law are not relevant to its declaratory 

judgment suit, which is premised solely on the basis of 

state law. The City notes that section 122.4(i) has been 

incorporated into and become part of state law, and that 

its claim is based on the TNRCC’s failure to implement 

standards to comply with state, not federal, water quality 

standards.

7 These are the rules that currently govern the CAFO 

permit process. See Tex. Water Code Ann. § 

26.503(b)(1) (West Supp.2002) (stating that an 

individual permit must “provide for management and 

disposal of waste in accordance with Subchapter B, 

Chapter 321, Title 30, Texas Administrative Code”).

[10] We conclude that the question of whether section 

122.4(i) operates to prohibit the TNRCC from approving 

any new discharge permits until it adopts the necessary 

pollution-reduction measures presents a purely legal 

inquiry. In determining ripeness, courts should examine 

(1) the fitness of the issues for judicial decision, and (2) 

the hardship occasioned to a party by the court’s denying 

judicial review. Office of Pub. Util. Counsel v. Public 

Util. Comm’n, 843 S.W.2d 718, 724 (Tex.App.-Austin 

1992, writ denied). The City’s claim poses a purely legal 

question-the interpretation of section 122.4(i)-which will

not benefit from the development of additional facts in 

connection with a specific permit application. The 

TNRCC asserts that the issues are not fit for decision 

because the City has failed to challenge a final agency 

action. Citing provisions in the Water Code and the 

Administrative Procedure Act (APA), the TNRCC 

emphasizes that judicial review is limited to agency 

rulings, orders, decisions, or other acts, or the validity or 

applicability of a rule. See Tex. Water Code Ann. § 5.351 

(West 2000); Tex. Gov’t Code Ann. § 2001.038 (West 

2000).

[11] [12] The City, however, has asserted a different basis 

for its lawsuit, specifically, sections 37.002–.004 of the 

Uniform Declaratory Judgments Act (UDJA). See Tex. 

Civ. Prac. & Rem.Code Ann. §§ 37.002–.004 (West 

1997). Under that Act, a claimant’s access to judicial 

review is not limited to review of agency rules; instead, 

the Act provides a basis by which a claimant can obtain a 

declaration of rights, status, or other legal relations under 

a writing or a statute. See id. § 37.004. A suit under the 

UDJA is not confined to cases in which the parties have a 

cause of action apart from the Act itself. Texas Dep’t of 

Pub. Safety v. Moore, 985 S.W.2d 149, 153 

(Tex.App.-Austin 1998, no pet.). The legislature intended 

the UDJA to be remedial, to settle and afford relief from 

uncertainty and insecurity with respect to rights, and to be 

liberally construed. Tex. Civ. Prac. & Rem.Code Ann. § 

37.002; Moore, 985 S.W.2d at 153.

[13] The TNRCC also questions the fitness of the issues for 

decision, asserting that the City’s request will affect 

additional parties who are not present to defend their 

interests. The City responds that it is questionable that any 

such additional parties would have adequate standing to 

participate in a challenge to an individual permit. 

Furthermore, the TNRCC’s assertion does not go directly 

to the ripeness inquiry, which determines when an action 

may be brought, that is, “whether the facts have 

developed sufficiently so that an injury has occurred or is 

likely to occur, rather than being contingent or remote.”

See Patterson, 971 S.W.2d at 442. The facts have 

sufficiently developed as between the TNRCC and the 

City such that the dispute is not hypothetical. In addition, 

an interested *178 party may intervene in the proceedings 

on remand. See Tex.R. Civ. P. 60.

Moreover, the denial of judicial review will result in 

hardship to the City. Under the APA, a permit issued in a 

contested case is final, even while an appeal is pending. 

See Tex. Gov’t Code Ann. § 2001.144. The effect of 

forcing the City to wait until the TNRCC has granted 

another permit means, in effect, that Lake Waco could 

become more polluted with the additional discharge while 

the parties litigate their dispute. Moreover, the City could 

suffer multiple harms from multiple additional CAFOs, 

and be forced to make this same legal argument in 

numerous appeals. Thus, the City’s claim satisfies both 

prongs of the ripeness inquiry.

Furthermore, the City’s claim is appropriately brought 

pursuant to the Declaratory Judgment Act. Under that act, 

a claimant must show that (1) a justiciable controversy 

exists as to the rights and status of the parties; and (2) the 

controversy will be resolved by the declaration sought. 

Moore, 985 S.W.2d at 153. There is a justiciable 

controversy between the parties regarding the effect of 

section 122.4(i) on the agency’s permitting process. The 

City asserts that the TNRCC has a duty to improve the 

water quality of the impaired river segments without 

further delay, and that the agency has no discretion to 

issue new CAFO permits until it takes these affirmative 

steps. The TNRCC responds that it has the discretion to 

grant additional permits that do not worsen the 

environmental status quo. A declaration regarding the 

effect of section 122.4(i) on the agency’s authority to 

issue new CAFO permits will resolve this controversy. 

Therefore, we hold that the trial court had jurisdiction to 

hear the City’s claim under the UDJA and that the issue is 

ripe for adjudication.8

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5
Firemen’s Ins. Co. of Newark, N. J. v. Burch, 442 S.W.2d 331 (1968)

442 S.W.2d 331

Supreme Court of Texas.

FIREMEN’S INSURANCE COMPANY OF 

NEWARK, NEW JERSEY, Petitioner,

v.

Jesse L. BURCH et ux., Respondents.

No. B—914. | Oct. 9, 1968. | Rehearing Denied Oct. 

30, 1968. | Second Rehearing Denied and Dissenting 

Opinion Jan. 22, 1969.

Suit for declaratory judgment to determine liability of 

insurer of automobile. The 53rd District Court, Travis 

County, Jones, J., rendered judgment that insurer was 

obligated to defend defendant husband of driver and since 

husband was responsible for torts of wife was obligated to 

pay any judgment rendered against him, and insurer 

appealed. The Austin Court of Appeals, Third Supreme 

Judicial District, 426 S.W.2d 306, affirmed District Court 

judgment and insurer brought error. The Supreme Court, 

Norvell, J., held that whether insurer had duty to defend 

defendant husband of driver was justiciable issue but that 

District Court had no power to render advisory opinion on 

hypothetical question of whether insured was liable for 

wife’s torts before it had been established that she was 

liable to plaintiff.

Affirmed in part and reversed in part.

Smith, J., dissented on Motion for Rehearing.

Attorneys and Law Firms

*332 Small, Herring, Craig, Werkenthin & Shannon, C. 

C. Small, Jr., Charles Herring and Bob E. Shannon, 

Austin, for petitioner.

Garey, Colbert & Kidd, Joe Colbert, Austin, for 

respondents.

Opinion

NORVELL, Justice.

On December 1, 1965, Dorothy Burch was injured in a 

collision between the car in which she was riding and an 

automobile driven by Sarah Buttler, the wife of Larry 

Buttler. Dorothy Burch and her husband, Jesse L. Burch, 

sued Sarah and Larry Buttler for damages and this action 

has not been determined. On December 7, 1966, Jesse L. 

and Dorothy Burch filed this suit in the form of a 

declaratory judgment against Firemen’s Insurance 

Company of Newark, New Jersey. The insurance 

company filed a cross-action and the trial court entered a 

declaratory judgment decreeing that:

‘(T)he defendant Firemen’s Insurance 

Company of Newark, New Jersey, is 

obligated by virtue of its Policy No. 

AFT 322361 to defend Larry J. 

Buttler in Cause No. 152,097 styled 

Dorothy M. Burch, et vir v. Sarah C. 

Buttler, et vir, in the 53rd Judicial 

District Court of Travis County, 

Texas, and that since Larry J. Buttler 

is liable for the torts of his wife, Sarah 

C. Buttler, committed during their 

marriage, the defendant, Firemen’s 

Insurance Company of Newark, New 

Jersey, is obligated by virtue of Policy 

No. AFT 322361 to pay on behalf of 

Larry J. Buttler any judgment 

rendered against him in said Cause 

No. 152,097 to the full extent of its 

policy coverage, * * *.’

The court also declared that the insurance company was 

not obligated to defend Sarah C. Buttler1 and was ‘not 

obligated to pay any judgment rendered against her’ in the 

case of Burch v. Buttler. This declaratory judgment was 

affirmed by the Court of Civil Appeals. 426 S.W.2d 306.

1 Larry Buttler and Sarah Buttler have been divorced and 

at the time of the rendition of judgment in this cause, 

May 10, 1967, Sarah was the wife of Hilton Cromier. 

She will, however, be referred to herein as Sarah 

Buttler.

[1] The question of the insurance company’s duty to 

defend presented a justiciable issue. No complaint is 

made of the trial court’s disposition of this issue and that 

portion of the trial court’s judgment relating thereto will 

not be disturbed. However, that portion of the decree 

which attempts to declare the liability of the insurance 

company upon any judgment *333 which may hereafter 

be rendered in the case of Burch v. Buttler is purely 

advisory in nature and beyond the power and jurisdiction 

of the district court to render. Accordingly, such portion 

of the trial court’s judgment is vacated.

[2] [3] [4] This court has repeatedly held that under our 

Constitution, the judicial power does not embrace the 

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Firemen’s Ins. Co. of Newark, N. J. v. Burch, 442 S.W.2d 331 (1968)

giving of advisory opinions. Morrow v. Corbin, 122 tex. 

553, 62 S.W.2d 641 (1933); California Products, Inc. v. 

Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 

(1960); United Services Life Insurance Co. v. Delaney, 

396 S.W.2d 855 (Tex.Sup.1965), and authorities therein 

cited. Article 5, s 8 of the Texas Constitution, Vernon’s 

Ann.St. does not empower the district courts to render 

such opinions and as jurisdiction is a matter of 

constitutional delineation, the Legislature could not and 

has not by the passage of the Uniform Declaratory 

Judgments Act, empowered the district courts to render 

advisory opinions. In 1960, this court again reiterated the 

principle that the giving of such opinions is not a judicial 

function, but that in governmental affairs, the duty to 

render advisory opinions is vested in the executive branch 

of government and that in private business, the giving of 

legal advice is the function of the legal profession. 

California Products, Inc. v. Puretex Lemon Juice, Inc., 

160 Tex. 586, 334 S.W.2d 780 (1960). Also in the 

Puretex case, this court cited and quoted from Ladner v. 

Siegel, 294 Pa. 368, 144 A. 274 (1928), as correctly 

laying down the proposition that the Declaratory 

Judgments Act gives the court no power to pass upon 

hypothetical or contingent situations, or determine 

questions not then essential to the decision of an actual 

controversy, although such questions may in the future 

require adjudication.

Puretex controls this case. The parties have posed a 

problem which is hypothetical, ‘iffy’ and contingent. 

Firemen’s Insurance Company, as petitioner here, 

presents the following points of error:

‘The Court of Civil Appeals erred in holding that Larry 

Buttler was legally obligated within the terms of the 

insurance policy here involved to pay damages 

occasioned by the tort of his wife (Sarah Buttler) even 

though he in no way participated therein.’

‘The Court of Civil Appeals erred in failing to hold that in 

any event Larry Buttler’s legal obligation for a tort of his 

wife, not participated in nor aided or abetted by him, 

should be the amount of his interest in the community 

estate of the marriage subject to execution and 

consequently petitioner’s liability under its policy would 

be limited to such amount.’

[5] The contentions raised by these points present 

interesting questions of law as is demonstrated by the 

opinion of the Court of Civil Appeals. The question posed 

is whether or not under the facts of this case, Larry Buttler 

is liable for the torts of his wife, Sarah Buttler. But, no 

court has yet decided whether Mrs. Buttler has committed 

a tort which would render her liable in damages to Mrs. 

Burch. That is the issue involved in the untried cause of 

Burch v. Buttler. At present, the question is 

hypothetical—‘If Mrs. Buttler be held liable to Mrs. 

Burch for damages in tort, is Larry Buttler to be held 

liable also although he did not aid or abet in the conduct 

of his wife, which is alleged to be tortious.’ Should this 

question be answered, then the following ‘iffy’ question 

arises. If Larry Buttler be held liable for his wife’s tort, 

should the liability of the petitioner insurance company be 

limited to the amount of his interest in the community 

estate of the marriage subject to execution?

Of course, If Mrs. Burch should fail to establish her case 

against Mrs. Buttler, the questions raised by petitioner’s 

points would be purely academic and we would have had 

a considerable amount of judicial wheel spinning for 

nothing.

*334 We can well appreciate that the parties would prefer 

a definite answer by this court to the questions posed by 

petitioner’s points rather than to take an ‘educated guess’ 

based upon a study of our prior decided cases and 

authoritative materials as to what we would hold,—as, if 

and when the questions are presented in justiciable form. 

However, the giving of advice as to proposed or possible 

settlements is not a judicial function. As a practical matter 

if for no other reason, this must be left to the profession.

In Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404 (1949), 

cited with approval in the Puretex case, the North 

Carolina Supreme Court said:

‘There is much misunderstanding as 

to the object and scope of this 

legislation (Uniform Declaratory 

Judgment Act). Despite some notions 

to the contrary, it does not undertake 

to convert judicial tribunals into 

counsellors and impose upon them the 

duty of giving advisory opinions to 

any parties who may come into court 

and ask for either academic 

enlightenment or practical guidance 

concerning their legal affairs. Town 

of Tryon v. Duke Power Co., 222 

N.C. 200, 22 S.E.2d 450; Allison v. 

Sharp, 209 N.C. 477, 184 S.E. 27;

Poore v. Poore, 201 N.C. 791, 161 

S.E. 532; Anderson on Declaratory 

Judgments, section 13. This 

observation may be stated in the 

vernacular in this wise: The Uniform 

Declaratory Judgment Act does not 

license litigants to fish in judicial 

ponds for legal advice.’

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Railroad Com’n of Texas v. CenterPoint Energy Resources..., Not Reported in...

2014 WL 4058727

2014 WL 4058727

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR DESIGNATION 

AND SIGNING OF OPINIONS.

MEMORANDUM OPINION

Court of Appeals of Texas,

Austin.

The RAILROAD COMMISSION OF TEXAS, 

Appellant

v.

CENTERPOINT ENERGY RESOURCES CORP. 

d/b/a CenterPoint Energy Entex and CenterPoint 

Energy Texas Gas, Appellee.

The Railroad Commission of Texas, Appellant

v.

Texas Gas Service Company, a Division of 

ONEOK, Inc., Appellee.

The Railroad Commission of Texas, Appellant

v.

CenterPoint Energy Resources Corp. d/b/a 

CenterPoint Energy Entex and CenterPoint Energy 

Texas Gas, Appellee.

Nos. 03–13–00533–CV, 03–13–00534–CV, 

03–13–00535–CV. | Aug. 14, 2014.

From the District Court of Travis County, 98th Judicial 

District, No. D–1–GN–10–003981, Stephen Yelenosky, 

Judge Presiding.

From the District Court of Travis County, 200th Judicial 

District, No. D–1–GN–10–003983, Stephen Yelenosky, 

Judge Presiding.

From the District Court of Travis County, 126th Judicial 

District, No. D–1–GN–10–003982, Stephen Yelenosky, 

Judge Presiding.

Attorneys and Law Firms

Douglas Fraser, Assistant Attorney General, 

Environmental Protection Division, Kellie E. Billings, 

Assistant Attorney General, Environmental Protection & 

Admin. Law Division, Austin, TX, for Appellant.

Dane McKaughan, Greenberg Traurig, LLP, Austin, TX, 

for Appellee.

Before Justices PURYEAR, GOODWIN, and FIELD.

MEMORANDUM OPINION

MELISSA GOODWIN, Justice.

*1 The Texas Railroad Commission (the Commission) 

appeals the trial court’s reversal in part of its final orders 

in three annual review proceedings under cost-of-service 

adjustment (COSA) tariffs involving essentially identical 

issues. CenterPoint Energy Resources Corp. d/b/a 

CenterPoint Energy Entex and CenterPoint Energy Texas 

Gas (CenterPoint) and Texas Gas Service Company, a 

Division of ONEOK, Inc. (Texas Gas) (the Utilities) sued 

for judicial review of final orders issued by the 

Commission denying the Utilities’ recovery of certain 

expenses for meals, lodging, and other items and ordering 

certain guidelines for recovery of similar expenses in 

future COSA reviews. Because we conclude that the 

Utilities’ claims are not ripe, we reverse the trial court’s 

judgment and dismiss the Utilities’ claims.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2010, the Utilities applied for cost-of-service 

adjustments to their rates pursuant to annual reviews 

authorized under their respective COSA tariffs for certain 

service areas. Rates for the affected customers were 

initially determined in contested case hearings that 

resulted in the adoption of tariffs with COSA clauses. A 

COSA clause is a formula included in a utility’s tariff that 

allows adjustments to customer charges without the 

necessity of a full-blown “Statement of Intent” rate case. 

See Texas Coast Utils. Coal. v. Railroad Comm’n, 423 

S.W.3d 355, 357, 374 (Tex.2014) (upholding authority of 

Commission to adopt gas utility rate schedule providing 

for automatic annual adjustments based on increases or 

decreases in utility’s cost of service, i.e., COSA clause). 

The terms of a COSA clause vary depending on what is 

approved as part of the tariff in the rate case. The tariffs in 

these cases provide that the annual rate adjustment is to be 

determined by a calculation based on calendar year 

operating expenses, return investment, and certain taxes. 

If the resulting change is positive, the amount charged 

goes up; if it is negative, the amount charged goes down. 

The adjustment is capped at 5% of the customer charge 

that was in effect at the end of the preceding calendar year 

in CenterPoint’s tariffs and at the percentage change in 

the Consumer Price Index for All Urban Consumers in 

Texas Gas’s tariff. These were the first COSA filings 

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made by the Utilities under their respective tariffs.

A COSA tariff annual review is a streamlined procedure 

that does not include a hearing; instead, the adjustment is 

determined following staff review of the evidence filed by 

the utility. In each of the present cases, the Commission 

questioned and ultimately disallowed certain expenses for 

meals, travel, and other items for which the Utilities could 

not produce itemized receipts.1 In its final orders, the 

Commission made certain findings of fact and 

conclusions of law concerning the disallowed expenses 

and included two “ordering paragraphs” requiring the 

Utilities to meet certain evidentiary criteria for recovery 

of similar expenses in the future.2

The two ordering 

paragraphs provided:

1 The removal of the disputed expenses did not result in 

any change to the Utilities’ proposed adjustments, and 

the record reflects that the Utilities withdrew their 

requests for the questioned expenses.

2 In each case, calculation errors not relevant to this 

appeal were corrected and a nunc pro tunc order issued.

*2 IT IS FURTHER ORDERED that [the Utilities] 

shall not include any employee or contractor expenses 

from employee or contractor expense reports 

reimbursement in future COSA filings that cannot be 

supported by a detailed itemized receipt which shows 

the specific amounts and line item charges.

IT IS FURTHER ORDERED that [the Utilities] 

shall identify and justify each meal expense that 

exceeds $25.00 per person and any lodging expense 

over $150.00 per person per night that [the Utilities] 

propose[ ] to include in future COSAs.

The Utilities filed motions for rehearing complaining that 

the findings of fact, conclusions of law, and ordering 

paragraphs concerning the disallowed expenses were 

statements of new policy, not backed by any rule or 

guideline, and were therefore made through unlawful 

procedure, arbitrary and capricious, and not supported by 

substantial evidence. The Commission denied the motions 

for rehearing, and the Utilities filed suits for judicial 

review asserting the same claims. See Tex. Util.Code §

105.001(a) (any party to proceeding before Commission 

entitled to judicial review under substantial evidence 

rule). The Commission filed motions to dismiss based, in 

part, on its contention that the Utilities were requesting 

advisory opinions because their claims are not ripe. The 

trial court denied the Commission’s motions to dismiss 

and reversed the final orders, finding that the Commission 

acted arbitrarily and capriciously by imposing a new 

policy in the orders and that the policy was made through 

unlawful procedure and was not supported by substantial 

evidence. These appeals followed.

DISCUSSION

In its first issue, the Commission argues that the Utilities’ 

claims are not ripe and they therefore seek an 

impermissible advisory opinion.3

The Commission 

contends that the Utilities request a predetermination of a 

hypothetical matter that could arise in the future, which is 

not a matter fit for judicial consideration. The Utilities 

argue that the orders “expressly appl [y] ... to future 

COSA proceedings,”“mandate the manner in which all 

future rate adjustments filed pursuant to the applicable 

COSA tariff will be resolved,” and “fundamentally 

change the way in which COSA adjustments are 

calculated in future COSA proceedings.”They further 

contend that the orders place “obligations and burdens on 

[them] now, and that failure to abide by these new 

obligations and burdens could bar recovery in a future 

COSA proceeding.”Thus, the Utilities contend, they seek 

real relief and an opinion that will affect “all COSA cases 

[they] will file in the future,” not an advisory opinion.

3 The Commission also contends that the Utilities lack 

standing because in their motions for rehearing, they 

did not challenge the Commission’s final decisions on 

rate adjustments and instead attacked only the 

underlying findings of fact and conclusions of law. This 

Court has held that to have standing to seek judicial 

review, one must be aggrieved by the final order and 

not merely by an underlying finding or conclusion, see 

GTE Sw. Inc. v. Public Util. Comm’n of Tex., 37 

S.W.3d 546, 548 (Tex.App.-Austin 2001, no 

pet.)(citing Champlin Exploration, Inc. v. Railroad 

Comm’n, 627 S.W.2d 250, 252 (Tex.App.-Austin 1982, 

writ ref’d n.r.e.)). However, the Utilities’ motions for 

rehearing expressly challenged the ordering paragraphs 

as well as the findings and conclusions. We overrule 

the Commission’s first issue as to this argument.

“The courts of this state are not empowered to give 

advisory opinions[, and] [t]his prohibition extends to 

cases that are not yet ripe.”Patterson v. Planned 

Parenthood of Hous. & Se. Tex., Inc., 971 S.W.2d 439, 

443 (Tex.1998) (citations omitted). The ripeness doctrine 

“serves to avoid premature adjudication” and “focuses on 

whether the case involves ‘uncertain or contingent future 

events that may not occur as anticipated, or indeed may 

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2014 WL 4058727

not occur at all.’ “ Perry v. Del Rio, 66 S.W.3d 239, 250 

(Tex.2001) (citations omitted). “A case is not ripe when 

its resolution depends on contingent or hypothetical facts, 

or upon events that have not yet come to pass.” Patterson,

971 S.W.2d at 443. “Ripeness is both a question of 

timing, that is, when one may sue, a question of 

discretion, or whether the court should hear the suit, and 

not whether it can hear the suit.” Atmos Energy Corp. v. 

Abbott, 127 S.W.3d 852, 858 (Tex.App.-Austin 2004, no 

pet.)(internal citations omitted) (citing Perry, 66 S.W.3d 

at 249–50; Patterson, 971 S.W.2d at 442; City of Waco v. 

Texas Natural Res. Conserv. Comm’n, 83 S.W.3d 169, 

177 (Tex.App.-Austin 2002, pet. denied)). “In the 

administrative-law context, moreover, avoiding premature 

litigation over administrative determinations prevents 

courts from ‘entangling themselves in abstract 

disagreements over administrative policies’ while 

simultaneously allowing the agency to perform its 

functions unimpeded.” Trinity Settlement Servs., LLC v. 

Texas State Secs. Bd., 417 S.W.3d 494, 506 

(Tex.App.-Austin 2013, pet. denied) (quoting Patterson,

971 S.W.2d at 443). The determination of ripeness 

depends on “(1) the fitness of the issues for judicial 

decision; and (2) the hardship occasioned to the party by 

the court’s denying judicial review.” Atmos Energy, 127 

S.W.3d at 858 (citing Perry, 66 S.W.3d at 250 (citing 

Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 

1507, 18 L.Ed.2d 681 (1967); City of Waco, 83 S.W.3d at 

177)). Ripeness should be decided on the basis of all the 

information available to the court, and we may consider 

intervening events that occur after the decision in the 

lower court. Perry, 66 S.W.3d at 250; 13 Charles Alan 

Wright, Arthur R. Miller, & Edward H. Cooper, Federal 

Practice & Procedure § 3532.1, at 136–37 (2d ed.1984).

*3 We do not believe the Utilities have affirmatively 

established that the issues they presented were fit for 

review and that the failure to address those issues would 

constitute a hardship on the Utilities. See Perry, 66 

S.W.3d at 250; Atmos Energy, 127 S.W.3d at 858. 

Whether there may be an actual controversy between the 

Utilities and the Commission is too uncertain and 

speculative to support the Utilities’ contention that their 

claims are ripe. Because the Utilities complain of future 

enforcement, they must show that enforcement is 

“imminent or sufficiently likely.” See Trinity Settlement,

417 S.W.3d at 506; Rea v. State, 297 S.W.3d 379, 383 

(Tex.App.-Austin 2009, no pet.)(to establish ripeness, 

plaintiffs must demonstrate injury is imminent, direct, and 

immediate, not merely remote, conjectural, or 

hypothetical); Atmos Energy, 127 S.W.3d at 856; City of 

Waco, 83 S.W.3d at 175. A perceived threat of 

enforcement does not create a justiciable controversy. 

Compare Mitz v. Texas State Bd. of Veterinary Med. 

Exam’rs, 278 S.W.3d 17, 25 (Tex.App.-Austin 2008, pet. 

dism’d), with Beacon Nat’l Ins. Co. v. Montemayor, 86 

S.W.3d 260, 267–68 (Tex.App.-Austin 2002, no pet.).

The Utilities attempt to characterize their claims as ripe 

by arguing that the language of the ordering paragraphs 

will require them to meet evidentiary requirements in all 

future annually required COSA filings and that the orders 

place “obligations and burdens” on them now. Tellingly, 

however, the Utilities argue that their failure to meet these 

obligations and burdens could bar recovery in a future

COSA proceeding. This perceived threat as to future 

COSA filings does not rise to the level of imminent or 

likely injury so as to present a justiciable claim. See Mitz,

278 S.W.3d at 25 (contrasting actual initiation of 

administrative action suggesting imminent proceeding in 

that case with mere perceived threat in Beacon Nat’l, 86 

S.W.3d at 267–68). And while we may consider 

intervening events that occur after a decision in the lower 

court, see Perry, 66 S.W.3d at 250, the Utilities have not 

presented any evidence that the Commission has taken 

any steps to impose the requirements on them since 

issuing the final orders or that there is any existing or 

continuing threat of liability or penalty. Cf. Mitz, 278 

S.W.3d at 25–26 (constitutional claim ripe for review 

considering continuing threat of civil and criminal 

liability against practitioners and direct effect act had on 

business enterprise); Patel v. Texas Dep’t of Licensing & 

Regulation, No. 03–11–00057–CV, 2012 Tex.App. 

LEXIS 6187, at *23,2012 WL 3055479 (Tex.App.-Austin 

July 25, 2012, pet. granted) (constitutional claims ripe 

where appellants subject to continuing threat of civil and 

criminal liability, as well as administrative penalties and 

sanctions). Thus, the Utilities have not established that 

enforcement is imminent or sufficiently likely, see Trinity 

Settlement, 417 S.W.3d at 506; Atmos Energy, 127 

S.W.3d at 856; City of Waco, 83 S.W.3d at 175, and we 

conclude that the Utilities’ issues are not fit for judicial 

review, see Perry, 66 S.W.3d at 250; Atmos Energy, 127 

S.W.3d at 858.

*4 To prevail, the Utilities must show that they would 

suffer hardship if judicial review is withheld until 

enforcement of the requirements in the ordering 

paragraphs. See Perry, 66 S.W.3d at 250; Atmos Energy,

127 S.W.3d at 858. Hardship is shown when the statute, 

rule, or policy at issue “ ‘requires an immediate and 

significant change in the plaintiffs’ conduct of their affairs 

with serious penalties attached to noncompliance.’ “ Mitz,

278 S.W.3d at 26 (quoting Abbott Labs. v. Gardner, 387 

U.S. 136, 153, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). 

When the requirement at issue has a direct and immediate 

impact on the party’s business and places it in jeopardy of 

sanction or penalty, that is sufficient to show a hardship. 

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
Robinson v. Parker, 353 S.W.3d 753 (2011)

54 Tex. Sup. Ct. J. 1640

353 S.W.3d 753

Supreme Court of Texas.

Carroll G. ROBINSON, Bruce R. Hotze, and 

Jeffrey N. Daily, Petitioners,

v.

Annise D. PARKER, Mayor; City of Houston; 

Houston City Council, et al., Respondents.

No. 08–0658. | Argued Nov. 18, 2009. | Decided 

Aug. 26, 2011. | Rehearing Denied Oct. 21, 2011.

Synopsis

Background: Citizens, who were sponsors of 

citizen-initiated referendum proposition, brought action 

against city, mayor, and city council, seeking declaratory 

judgment that the proposition was valid and must be 

enforced. The 333rd District Court, Harris County, Joseph 

J. Halbach, J., granted citizens motion for summary 

judgment. Defendants appealed. The Houston Court of 

Appeals, 260 S.W.3d 463, reversed, concluding that 

citizens lacked standing. Citizens filed petition for review.

[Holding:] The Supreme Court, Paul W. Green, J., held 

that citizens’ declaratory claims were not ripe.

Judgments of Court of Appeals and District Court 

vacated; case dismissed.

Attorneys and Law Firms

*753 William A. ‘Andy’ Taylor, Amanda Eileen Staine 

Peterson, Andy Taylor & Associates, P.C., Houston, TX, 

for Carroll G. Robinson.

Scott J. Atlas, Bill White for Texas, Patrick W. Mizell, 

Stacey Neumann Vu, Vinson & Elkins LLP, Stephen 

Douglas Pritchett Jr., David M. Gunn, Beck Redden & 

Secrest, L.L.P. Arturo G. Michel, City Attorney, City of 

Houston Legal Dept., Patrick Zummo, Law Offices of 

Patrick Zummo, John Berchmans Daily, Weil Gotshal & 

Manges LLP, Houston, TX, *754 Melanie Plowman 

Sarwal, Weil Gothshal & Manges LLP, Austin, TX, for 

Bill White.

Jonathan Day, Andrews Kurth LLP, Warren W. Harris, 

Bracewell & Giuliani, LLP, Houston, TX, for Amicus 

Curiae Continental Airlines, Inc.

David A. Furlow, Thompson & Knight, L.L.P., Levi 

James Benton, Benton Massey PLLC, Houston, TX, for 

Amicus Curiae Francis M. Kubosh.

Opinion

Justice GREEN delivered the opinion of the Court.

In this case, we are asked to decide (1) whether citizens 

who signed a petition proposing a local ballot initiative 

have standing to assert their declaratory judgment claims 

that the voter-approved initiative is valid and must be 

enforced; and (2) the validity of the voter-approved 

initiative. Because the citizens’ claims are not ripe, 

however, we cannot reach those issues.

I

Petitioners Carroll G. Robinson, Bruce R. Hotze, and 

Jeffrey N. Daily are citizens of Houston who participated 

to varying degrees in efforts to place a proposition 

regarding city revenues and spending on the ballot for 

public referendum. Hotze and Daily organized the petition 

drive and helped draft the final language of the proposal. 

All three Petitioners signed the petition, donated time and 

money to campaigns promoting the passage of the 

proposition, and voted in favor of it.

On November 2, 2004, Houston voters passed the 

proposition, called Proposition 2, as well as Proposition 1, 

which the Houston City Council had placed on the ballot 

by its own act in response to Prop. 2.1 Prop. 1 garnered 

more votes, with 280,596 favorable votes, or 64% of the 

total, as opposed to 242,697 favorable votes for Prop. 2, 

or 56% of the total. However, the City of Houston 

determined that, because Prop. 1 and Prop. 2 conflict, 

Prop. 2 was ineffective and unenforceable. The City based 

that determination both on what Petitioners refer to as 

Prop. 1’s “poison pill provision,”2 and on the 

conflicting-ordinance provision in the Houston City 

Charter. See Hous., Tex., Code Ordinances, City Charter 

art. IX, § 19 (2006) (“[A]t any election for the adoption of 

amendments if the provisions of two or more proposed 

amendments approved at said election are inconsistent the 

amendment receiving the highest number of votes shall 

prevail.”). The mayor therefore *755 did not certify the 

results of the passage of Prop. 2 to the secretary of state, 

and the city council did not enter an order in the city 

records declaring that Prop. 2 had been adopted. See
Robinson v. Parker, 353 S.W.3d 753 (2011)

54 Tex. Sup. Ct. J. 1640

LOC. GOV’T CODEE §§ 9.005(b) (requiring city council 

to pass an ordinance declaring the adoption of an 

initiative that receives a majority of the vote), 9.007 

(requiring mayor to certify results of an election that 

passes a charter amendment to the secretary of state).

1 Prop. 2 was described on the ballot as:

The City Charter of the City of Houston shall be 

amended to require voter approval before the City 

may increase total revenues from all sources by 

more than the combined rates of inflation and 

population, without requiring any limit of any 

specific revenue source, including water and sewer 

revenues, property taxes, sales taxes, fees paid by 

utilities and developers, user fees, or any other 

sources of revenues.

Prop. 1 was described on the ballot as:

The Charter of the City of Houston shall be 

amended to require voter approval before property 

tax revenues may be increased in any future fiscal 

year above a limit measured by the lesser of 4.5% 

or the cumulative combined rates of inflation and 

population growth. Water and sewer rates would 

not increase more than the cumulative combined 

rates of inflation and population growth without 

prior voter approval. The Charter Amendment also 

requires minimum annual increases of 10% in the 

senior and disabled homestead property tax 

exemptions through the 2008 tax year.

2 Prop. 1 provides:

If another proposition for a Charter amendment 

relating to limitations on increases in City 

revenues is approved at the same election at which 

this proposition is also approved, and if this 

proposition receives the higher number of 

favorable votes, then this proposition shall prevail 

and the other shall not become effective.

Petitioners sought relief from the court of appeals, which 

granted their petition for writ of mandamus, holding that 

the City had failed to perform the ministerial duties of 

certifying the results to the secretary of state and entering 

an order declaring the charter amendments to have been 

adopted. In re Robinson, 175 S.W.3d 824, 826–32 

(Tex.App.-Houston [1st Dist.] 2005, orig. proceeding). 

On the same day that they petitioned for mandamus relief, 

Petitioners filed the underlying suit seeking a declaratory 

judgment that Prop. 2 is effective and must be enforced. 

While that case was pending, the city council passed an 

ordinance recognizing that both Prop. 1 and Prop. 2 had 

passed but also declaring that Prop. 1 had received the 

higher number of votes. As a result, both propositions 

became part of the Houston City Charter. See Hous., Tex., 

Code Ordinances, City Charter art. III, § 1; art. VI-a, § 7; 

art. IX, § 20 (2006). The trial court ultimately granted 

summary judgment in favor of Petitioners. The court of 

appeals, however, ruled that Petitioners lacked standing to 

assert their claims, relying on our holding in Brown v. 

Todd, 53 S.W.3d 297, 305 (Tex.2001). 260 S.W.3d 463, 

470–72 (Tex.App.-Houston [14th Dist.] 2008, pet. filed). 

The court remanded the case to the trial court to allow

Petitioners to amend their pleadings and establish 

standing. Id. at 466.

Robinson, Hotze, and Daily petition for review on two 

grounds.3 First, they assert that the court of appeals erred 

when it determined that Petitioners lack standing. Second, 

they ask us to consider the merits of their claim that Prop. 

2 should be enforced.

3 The current Houston mayor has been substituted for her 

predecessor. See TEX.R.APP. P. 7.2(a) (automatic 

substitution when public officer is party in official 

capacity).

II

[1] [2] [3] [4] Ripeness “is a threshold issue that implicates 

subject matter jurisdiction ... [and] emphasizes the need 

for a concrete injury for a justiciable claim to be 

presented.” Patterson v. Planned Parenthood of Hous. & 

Se. Tex., 971 S.W.2d 439, 442 (Tex.1998). In evaluating 

ripeness, we consider “whether, at the time a lawsuit is 

filed, the facts are sufficiently developed ‘so that an injury 

has occurred or is likely to occur, rather than being 

contingent or remote.’ ” Waco Indep. Sch. Dist. v. Gibson,

22 S.W.3d 849, 851–52 (Tex.2000) (emphasis in original) 

(quoting Patterson, 971 S.W.2d at 442). Although a claim 

is not required to be ripe at the time of filing, if a party 

cannot demonstrate a reasonable likelihood that the claim 

will soon ripen, the case must be dismissed. See Perry v. 

Del Rio, 66 S.W.3d 239, 251 (Tex.2001).

[5] The record is silent as to whether the City has, in fact, 

failed to comply with the Prop. 2 spending caps. As the 

parties acknowledged at oral argument, the record in this 

case indicates that then-mayor Bill White, in response to 

Prop. 2’s inclusion in the City Charter, stated his intention 

to comply with the caps Prop. 2 imposed. In an attempt to 

show noncompliance, Petitioners presented several 

documents with their post-submission brief. Petitioners 

point to a May 2009 letter from then- *756 controller 

Annise Parker, who is now mayor of Houston, stating that 

the controller’s office is “no longer responsible for 

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440 (1993)

852 S.W.2d 440

Supreme Court of Texas.

TEXAS ASSOCIATION OF BUSINESS, Appellant,

v.

TEXAS AIR CONTROL BOARD and Texas Water 

Commission, Appellees.

No. C–9556. | March 3, 1993. | Rehearing Overruled 

May 5, 1993.

Business association sought declaratory judgment that 

statutes authorizing administrative agencies to assess fines 

for violation of environmental laws are unconstitutional. 

The 250th District Court, Travis County, upheld statutes, 

and direct appeal was taken. The Supreme Court, Cornyn, 

J., held that: (1) statutes authorizing Air Control Board 

and Water Commission to assess fines prior to judicial 

review violate open courts guarantee of Texas 

Constitution, but (2) statutes do not violate constitutional 

right to jury trial.

Affirmed in part and reversed in part.

Doggett, Gammage, and Spector, JJ., concurred, 

dissented, and filed opinions.

Attorneys and Law Firms

*441 R. Kinnan Golemon, James W. Checkley, Jr., Albert 

R. Axe, Jr., Scott R. Kidd and Douglas W. Alexander, 

Austin, for appellant.

Douglas G. Caroom, Mary E. Kelly, Dan Morales, Nancy 

N. Lynch, William D. Dugat, III and Amy R. Johnson, 

Austin, for appellees.

OPINION

CORNYN, Justice.

The Texas Association of Business (TAB), on behalf of 

its members, brought this declaratory judgment action 

seeking a ruling that statutes empowering two state 

administrative agencies to levy civil penalties for 

violations of their regulations conflict with the open 

courts and jury trial provisions of the Texas Constitution. 

The administrative agencies denied TAB’s claims, and 

along with two Intervenors,1 filed counterclaims seeking a 

declaration *442 that the same statutes and regulations 

comport with those constitutional provisions.

1 The League of Women Voters and the Lone Star 

Chapter of the Sierra Club intervened in the suit and 

were aligned as defendants with the Texas Air Control 

Board and the Texas Water Commission. Justice 

Doggett contends that the standing of the Intervenors 

should be addressed along with TAB’s. We disagree. 

Standing concerns a party’s faculty to invoke the 

court’s subject matter jurisdiction. Once it has been 

invoked by a plaintiff, a court’s subject matter 

jurisdiction is not affected by the status of defendants 

or intervenors aligned in interest with defendants.

Following a bench trial, the trial court denied the relief 

sought by TAB, and as requested by the State and 

Intervenors, declared that section 4.041 of the Texas 

Clean Air Act, sections 26.136 and 27.1015 of the Texas 

Water Code, and section 8b of the Texas Solid Waste 

Disposal Act, as well as the rules and regulations 

promulgated under those statutes, are constitutional with 

regard to the open courts and jury trial provisions. We 

affirm the trial court’s judgment as it relates to TAB’s 

jury trial challenge and reverse its judgment as to TAB’s 

open courts challenge.

An overview of the regulatory scheme enacted by the 

legislature and these agencies is essential to an 

understanding of this case. In 1967, the Texas Legislature 

enacted the Clean Air Act of Texas. Clean Air Act of 

Texas, 60th Leg., R.S., ch. 727, 1967 Tex.Gen.Laws 

1941. The Clean Air Act was designed to safeguard the 

state’s air resources without compromising the economic 

development of the state. Id. at § 1. The Act created the 

Texas Air Control Board and granted it the authority to 

promulgate regulations to accomplish the Act’s goals. Id.

at § 4(A)(2)(a). In the event the Air Control Board 

determined that a violation of its regulations had 

occurred, it was authorized to enforce those regulations in 

district court. Upon a judicial determination that a 

violation of the Air Control Board’s regulations had 

occurred, two cumulative remedies were available, 

injunctive relief to prohibit further violations and 

assessment of a fine ranging from $50 to $1,000 for each 

day the violations persisted. Id. at § 12(B).

In 1969, the Texas Legislature enacted the Solid Waste 

Disposal Act. Solid Waste Disposal Act, 61st Leg., R.S., 

ch. 405, 1969 Tex.Gen.Laws 1320. The express purpose 

for this legislation was to protect public health and 

welfare by regulating the “collection, handling, storage, 

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440 (1993)

unconstitutional denial of a jury trial and violation of our 

constitution’s open courts provision.

4 “An appeal may be taken directly to the supreme court 

from an order of a trial court granting or denying an 

interlocutory or permanent injunction on the ground of 

the constitutionality of a statute of this state.”

TEX.GOV’T CODE § 22.001(c).

I. Standing

Before we reach the merits of this case, we first consider 

the matter of the trial court’s jurisdiction, as well as our 

own; specifically we determine whether TAB has 

standing to challenge the statutes and regulations in 

question. Because TAB’s standing to bring this action is 

not readily apparent, and because our jurisdiction as well 

as that of the trial court depends on this issue, we 

requested supplemental briefing on standing at the oral 

argument of this case. In response, the parties insist that 

any question of standing has been waived in the trial court 

and cannot be raised by the court for the first time on 

appeal. We disagree.

[1] Subject matter jurisdiction is essential to the authority 

of a court to decide a case. Standing is implicit in the 

concept of subject matter jurisdiction. The standing 

requirement stems from two limitations on subject matter 

jurisdiction: the separation of powers doctrine and, in 

Texas, the open courts provision. Subject matter 

jurisdiction *444 is never presumed and cannot be 

waived.5

5 Justice Doggett confuses subject matter jurisdiction 

with personal jurisdiction. Only the latter can be 

waived when uncontested. See TEX.R.CIV.P. 120a.

[2] [3] One limit on courts’ jurisdiction under both the state 

and federal constitutions is the separation of powers 

doctrine. See TEX.CONST. art. II, § 1; Valley Forge 

Christian College v. Americans United for Separation of 

Church and State, 454 U.S. 464, 471–74, 102 S.Ct. 752, 

757–60, 70 L.Ed.2d 700 (1982); Warth v. Seldin, 422 U.S. 

490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975); 

see also, Antonin Scalia, The Doctrine of Standing as an 

Essential Element of the Separation of Powers, 18 

SUFFOLK U.L.Rev. 881, 889 n. 69 (1983) (noting that 

the dicta of Flast v. Cohen, 392 U.S. 83, 100, 88 S.Ct. 

1942, 1952, 20 L.Ed.2d 947 (1968), suggesting that 

standing is unrelated to the separation of powers doctrine 

has since been disavowed). Under this doctrine, 

governmental authority vested in one department of 

government cannot be exercised by another department 

unless expressly permitted by the constitution. Thus we 

have construed our separation of powers article to prohibit 

courts from issuing advisory opinions because such is the 

function of the executive rather than the judicial 

department.6 Firemen’s Ins. Co. v. Burch, 442 S.W.2d 

331, 333 (Tex.1969); Morrow v. Corbin, 122 Tex. 553, 62 

S.W.2d 641, 644 (Tex.1933). Accordingly, we have 

interpreted the Uniform Declaratory Judgments Act, 

TEX.CIV.PRAC. & REM.CODE §§ 37.001–.011, to be

merely 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. Firemen’s Ins. Co., 442 S.W.2d at 

333; United Serv. Life Ins. Co. v. Delaney, 396 S.W.2d 

855, 863 (Tex.1965); California Prods., Inc. v. Puretex 

Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960).

6 The analysis is the same under the federal constitution. 

See e.g. Correspondence of the Justices, Letter from 

Chief Justice John Jay and the Associate Justices to 

President George Washington, August 8, 1793 in 

Laurence H. Tribe, American Constitutional Law 73 n. 

3 (2nd ed. 1988).

[4] [5] The distinctive feature of an advisory opinion is that 

it decides an abstract question of law without binding the 

parties. Alabama State Fed’n of Labor v. McAdory, 325 

U.S. 450, 461, 65 S.Ct. 1384, 1389, 89 L.Ed. 1725 

(1945); Firemen’s Ins. Co., 442 S.W.2d at 333; Puretex 

Lemon Juice, Inc., 160 Tex. at 591, 334 S.W.2d at 783.

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. See Allen v. Wright, 468 U.S. 737, 

751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Texas 

courts, like federal courts, have no jurisdiction to render 

such opinions.

[6] The separation of powers doctrine is not the only 

constitutional basis for standing. Under federal law, 

standing is also an aspect of the Article III limitation of 

the judicial power to “cases” and “controversies.” Sierra 

Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 1364, 

31 L.Ed.2d 636 (1972). To comport with Article III, a 

federal court may hear a case only when the litigant has 

been threatened with or has sustained an injury. Valley 

Forge Christian College, 454 U.S. at 471, 102 S.Ct. at 

758. Under the Texas Constitution, standing is implicit in 

the open courts provision, which contemplates access to 

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440 (1993)

the courts only for those litigants suffering an injury. 

Specifically, the open courts provision provides:

All courts shall be open, and every 

person for an injury done him, in 

his lands, goods, person or 

reputation, shall have remedy by 

due course of law.

TEX. CONST. art. I, § 13 (emphasis added). Because 

standing is a constitutional prerequisite to maintaining a 

suit under both federal and Texas law, we look to the 

more extensive jurisprudential experience of the federal 

courts on this subject for any guidance it may yield.

Under federal law, a lack of standing deprives a court of 

subject matter jurisdiction because standing is an element 

of such *445 jurisdiction. Carr v. Alta Verde Indus., 931 

F.2d 1055, 1061 (5th Cir.1991); Simmons v. Interstate 

Commerce Comm’n, 900 F.2d 1023, 1026 (7th Cir.1990); 

M.A.I.N. v. Commissioner, Maine Dept. of Human Serv.,

876 F.2d 1051, 1053 (1st Cir.1989); Haase v. Sessions,

835 F.2d 902, 908 (D.C.Cir.1987); Page v. Schweiker,

786 F.2d 150, 153 (3d Cir.1986); see also Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 

L.Ed.2d 351 (1992); Heckler v. Mathews, 465 U.S. 728, 

737, 104 S.Ct. 1387, 1394, 79 L.Ed.2d 646 (1984); 

Warth, 422 U.S. at 511, 95 S.Ct. at 2211. Other states 

have followed this analysis in construing their own 

constitutions.7 See e.g., Prudential–Bache Sec., Inc. v. 

Commissioner of Revenue, 412 Mass. 243, 588 N.E.2d 

639, 642 (1992); Bennett v. Board of Trustees for Univ. of 

N. Colorado, 782 P.2d 1214, 1216 (Colo.App.1989), cert. 

denied, 797 P.2d 748 (Colo.1990); Pace Constr. Co. v. 

Missouri Highway and Transp. Comm’n, 759 S.W.2d 

272, 274 (Mo.App.1988); Terracor v. Utah Bd. of State 

Lands & Forestry, 716 P.2d 796, 798–99 (Utah 1986); 

State by McClure v. Sports and Health Club, Inc., 370 

N.W.2d 844, 850 (Minn.1985), appeal dism’d, 478 U.S. 

1015, 106 S.Ct. 3315, 92 L.Ed.2d 730 (1986); Smith v. 

Allstate Ins. Co., 483 A.2d 344, 346 (Me.1984); Ardmare 

Constr. Co. v. Freedman, 191 Conn. 497, 467 A.2d 674, 

675 n. 4, 676–77 (1983); Horn v. County of Ventura, 24 

Cal.3d 605, 156 Cal.Rptr. 718, 726, 596 P.2d 1134, 1142 

(1979); Stewart v. Board of County Comm’rs of Big Horn 

County, 175 Mont. 197, 573 P.2d 184, 186, 188 (1977);

State ex rel. Albritton v. Moore, 238 La. 728, 116 So.2d 

502, 504 (1959).

7 Of the states listed by Justice Doggett, only Illinois, 

Iowa, Kentucky, New York, South Dakota, and perhaps 

Ohio, Pennsylvania and Washington actually treat 

jurisdictional standing as waivable. See 852 S.W.2d at 

469. The other state cases cited deal with the waiver of 

objections to join a real party in interest or to a party’s 

capacity to sue rather than to jurisdictional standing. 

See International Depository, Inc. v. State, 603 A.2d 

1119, 1122 (R.I.1992) (addressing real party in interest 

objection); Princess Anne Hills Civ. League, Inc. v. 

Susan Constant Real Estate Trust, 243 Va. 53, 413 

S.E.2d 599, 603 n. 1 (1992) (addressing real party in 

interest objection); Sanford v. Jackson Mall Shopping 

Ctr. Co., 516 So.2d 227, 230 (Miss.1987) (addressing 

real party in interest objection); Jackson v. Nangle, 677 

P.2d 242, 250 n. 10 (Alaska 1984) (addressing real 

party in interest objection); Poling v. Wisconsin 

Physicians Serv., 120 Wis.2d 603, 357 N.W.2d 293, 

297–98 (App.1984) (addressing real party in interest 

objection); Torrez v. State Farm Mut. Auto. Ins. Co.,

130 Ariz. 223, 635 P.2d 511, 513 n. 2 (App.1981)

(addressing real party in interest objection); Brown v. 

Robinson, 354 So.2d 272, 273 (Ala.1977); Cowart v. 

City of West Palm Beach, 255 So.2d 673, 675 

(Fla.1971) (addressing capacity objection).

[7] Subject matter jurisdiction is an issue that may be 

raised for the first time on appeal; it may not be waived 

by the parties. Texas Employment Comm’n v. 

International Union of Elec., Radio and Mach. Workers, 

Local Union No. 782, 163 Tex. 135, 352 S.W.2d 252, 253 

(1961); RESTATEMENT (SECOND) OF JUDGMENTS 

§ 11, comment c (1982). This court recently reiterated 

that axiom in Gorman v. Life Insurance Co., 811 S.W.2d 

542, 547 (Tex.), cert. denied, 502 U.S. 824, 112 S.Ct. 88, 

116 L.Ed.2d 60 (1991). Because we conclude that 

standing is a component of subject matter jurisdiction, it 

cannot be waived and may be raised for the first time on 

appeal.8

8 Justice Doggett disagrees that standing is a component 

of subject matter jurisdiction, yet he declines to explain 

what role standing plays in our jurisprudence. From his 

harsh critique of the doctrine, it seems that he not only 

objects to the conclusion that standing cannot be 

waived but also to the conclusion that standing is a 

requirement to initiate a lawsuit.

[8] If we were to conclude that standing is unreviewable on 

appeal at least three undesirable consequences could 

result. First and foremost, appellate courts would be 

impotent to prevent lower courts from exceeding their 

constitutional and statutory limits of authority. Second, 

appellate courts could not arrest collusive suits. Third, by 

operation of the doctrines of res judicata and collateral 

estoppel, judgments rendered in suits addressing only 

hypothetical injuries could bar relitigation of issues by a 

litigant who eventually suffers an actual injury. We 

therefore hold that standing, as a component of subject 

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4
Trinity Settlement Services, LLC v. Texas State Securities Bd., 417 S.W.3d 494 (2013)

Blue Sky L. Rep. P 75,042

417 S.W.3d 494

Court of Appeals of Texas,

Austin.

TRINITY SETTLEMENT SERVICES, LLC, 

Appellant

v.

The TEXAS STATE SECURITIES BOARD and 

John Morgan, in his Official Capacity as 

Commissioner of the Texas State Securities 

Board1, Appellees.

1 The notice of appeal and prior filings in the district 

court reference the TSSB’s former commissioner, 

Denise Voigt Crawford, who has since retired. 

Accordingly, the TSSB’s current commissioner, 

John Morgan, has been substituted. See

Tex.R.App. P. 7.2(a).

No. 03–10–00639–CV. | Aug. 1, 2013. | Rehearing 

Overruled Oct. 2, 2013.

Synopsis

Background: Viatical settlement company sued Texas 

State Securities Board (TSSB) to obtain declaratory 

judgment that TSSB acted without statutory authority in 

prior enforcement action against another viatical 

settlement company, and that certain investments plaintiff 

proposed to sell were not “securities” as defined by Texas 

Securities Act (TSA). The 53rd Judicial District Court, 

Travis County, Lora Livingston, J., granted TSSB’s plea 

to the jurisdiction. Plaintiff appealed.

Holdings: The Court of Appeals, David Puryear, J., held 

that:

[1] TSSB’s statements in prior action did not constitute 

rule under Administrative Procedure Act (APA) subject to 

challenge through declaratory judgment action;

[2] in seeking declaration that TSSB acted without 

statutory authority, plaintiff sought impermissible 

advisory opinion; and

[3] plaintiff’s requested declaration of its rights and status 

was not ripe for review.

Affirmed.

Attorneys and Law Firms

*497 Hector De Leon, Benjamin S. De Leon, Thomas P. 

Washburn, George B. Ward, De Leon & Washburn, P.C., 

Austin, TX, for Appellant.

Lesli Gattis Ginn, Assistant Attorney General, Financial 

Litigation, Tax, and Charitable Trusts Division, Austin, 

TX, for Appellee.

Before Justices PURYEAR, PEMBERTON, and ROSE.

OPINION

DAVID PURYEAR, Judge.

This is an appeal from a grant of a plea to the jurisdiction 

stemming from a dispute regarding the Texas State 

Securities Board’s regulation of the sale of viatical 

settlements. Appellant Trinity Settlement *498 Services, 

LLC (Trinity), an entity proposing to engage in the sale of 

viatical settlements, sued appellees the Texas State 

Securities Board (TSSB) and John Morgan, in his official 

capacity as Commissioner of the TSSB, to obtain a 

declaratory judgment (1) that the TSSB and Morgan acted 

without statutory authority in an enforcement action 

against another viatical-settlement provider, Retirement 

Value, LLC (RV) and (2) that certain investments Trinity 

itself proposes to sell, denominated “specified 

percentages of participations in the proceeds of life 

insurance policies,” are not “securities” as defined by the 

Texas Securities Act (TSA). We affirm the trial court’s 

order granting the plea to the jurisdiction, concluding 

Trinity failed to invoke the jurisdiction of the trial court 

under either (1) the Administrative Procedure Act (APA) 

section 2001.038 because it failed to challenge a rule of 

the TSSB, as defined by the APA, or (2) the Uniform 

Declaratory Judgments Act (UDJA) because it failed to 

plead a justiciable controversy.

BACKGROUND

A. Viatical Settlements

A “viatical settlement” is a transaction in which an 

insured sells the benefits of his or her life insurance policy 

to a third party in return for a lump-sum cash payment 

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Trinity Settlement Services, LLC v. Texas State Securities Bd., 417 S.W.3d 494 (2013)

Blue Sky L. Rep. P 75,042

its own rights and status under the TSA. The UDJA grants 

any litigant whose rights are affected by a statute the 

opportunity to obtain a declaration of those rights under 

the statute. Tex. Civ. Prac. & Rem.Code § 37.004; see 

also Texas Mun. Power Agency v. Public Util. Comm’n.,

100 S.W.3d 510, 515 (Tex.App.-Austin 2003, pet denied). 

A declaratory-judgment action does not, however, give a 

court “jurisdiction to pass upon hypothetical or contingent 

situations, or to determine questions not then essential to 

the decision of an actual controversy, although such 

actions may in the future require adjudication.” Bexar 

Metro. Water Dist. v. City of Bulverde, 234 S.W.3d 126, 

130–31 (Tex.App.-Austin 2007, no pet.). After careful 

review of the record, we conclude any controversy 

between the TSSB and Trinity at this time is based upon 

hypothetical facts that have not yet matured to a ripe 

controversy sufficient to confer jurisdiction on the trial 

court. While the TSSB raises several challenges to the 

trial court’s jurisdiction, the ripeness issue is dispositive. 

See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 

(Tex.2000).

[25] [26] [27] Ripeness implicates subject-matter jurisdiction 

and asks whether—at the time a lawsuit is filed—the facts 

have developed sufficiently so that an injury has occurred 

or is likely to occur, rather than being contingent or 

remote. Rea v. State, 297 S.W.3d 379, 383 

(Tex.App.-Austin 2009, no pet.). A case is not ripe when 

its resolution depends on contingent or hypothetical facts, 

or upon events that have not yet come to pass. *506

Patterson v. Planned Parenthood of Houston, 971 S.W.2d 

439, 442 (Tex.1998). A justiciable controversy, however, 

does not necessarily equate with a fully ripened cause of 

action. Moore, 985 S.W.2d at 153–54. Rather, an action 

for declaratory judgment will “lie when the fact situation 

manifests the presence of ripening seeds of a 

controversy,” such that “the claims of several parties are 

present and indicative of threatened litigation in the 

immediate future which seems unavoidable, even though 

the differences between the parties as to their legal rights 

have not reached the state of an actual controversy.” Id.;

see Save our Springs Alliance v. City of Austin, 149 

S.W.3d 674, 683 (Tex.App.-Austin 2004, no pet.) The 

constitutional prohibition against issuing advisory 

opinions also has a pragmatic, prudential aspect that aims 

to conserve “judicial time and resources for real and 

current controversies, rather than abstract, hypothetical, or 

remote disputes.” Patterson, 971 S.W.2d at 443 (quoting 

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 

(Tex.1998)). In the administrative-law context, moreover, 

avoiding premature litigation over administrative 

determinations prevents courts from “entangling 

themselves in abstract disagreements over administrative 

policies” while simultaneously allowing the agency to 

perform its functions unimpeded. Id.

[28] [29] In determining whether a cause is ripe for judicial 

consideration, we look to whether the facts have 

sufficiently developed to show that an injury has 

occurred, or is likely to occur. City of Waco, 83 S.W.3d at 

175. When a business—like Trinity—files a 

“pre-enforcement” suit seeking a declaration of its rights 

prior to an agency enforcement action, we have concluded 

the controversy is ripe for review only if “an enforcement 

action is imminent or sufficiently likely.” Atmos Energy 

Corp. v. Abbott, 127 S.W.3d 852, 856 (Tex.App.-Austin 

2004, no pet.); see also Rea, 297 S.W.3d at 383 (“To 

establish that a claim is ripe based on an injury that is 

likely to occur, the plaintiff must demonstrate that the 

injury is imminent, direct, and immediate, and not merely 

remote, conjectural, or hypothetical.”). In this case, the 

pleadings and evidence indicate the TSSB has taken no 

action against Trinity.3 Although the TSSB has brought an 

enforcement action against other viatical settlement 

providers, we cannot conclude that an enforcement action 

against Trinity is also imminent or sufficiently likely to 

occur at this time.

3 Trinity pleads the TSSB sent its manager, Michael 

McDermott, correspondence in connection with the RV 

suit “alleging Mr. McDermott may have offered for 

sale and/or sold investments on behalf of RV.”

According to Trinity’s pleadings, the TSSB letter was 

sent to Mr. McDermott because of his potential 

connection with the RV suit and not because of any 

action by Trinity or action by McDermott on Trinity’s 

behalf.

Rather, whether the TSSB will bring an enforcement 

action against Trinity depends on many factual 

contingencies that have not yet come to pass and are not 

before the court, including whether Trinity chooses to 

begin selling viatical settlements, how Trinity ultimately 

structures its investments, the managerial efforts Trinity 

exerts in such sales, what type of investors purchase the 

viatical settlements, and whether the TSSB elects to bring 

an enforcement action against Trinity based on these 

future actions. Trinity’s claim does not pose a pure 

question of law but instead asks the trial court to engage 

in a fact-based determination based upon contingent, 

hypothetical facts. See Beacon Nat’l. Ins. Co. v. 

Montemayor, 86 S.W.3d 260, 268 (Tex.App.-Austin 

2002, no pet.) (concluding appellant’s premature attempt 

to arrest the administrative process before the agency had 

taken an adverse action against it was not ripe when claim 

did not *507 present pure question of law but required the 

determination of several factual matters that had not 

sufficiently developed); see also Atmos, 127 S.W.3d at 

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7
TXU Elec. Co. v. Public Utility Com’n of Texas, 51 S.W.3d 275 (2001)

Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

51 S.W.3d 275

Supreme Court of Texas.

TXU ELECTRIC COMPANY, et al., Appellants,

v.

PUBLIC UTILITY COMMISSION OF TEXAS, et 

al., Appellees.

No. 00–0936. | Argued Jan. 31, 2001. | Decided 

June 6, 2001. | Rehearing Overruled Aug. 30, 2001.

Incumbent electric utility and intervenors appealed 

decision by the Public Utility Commission (PUC) on 

financing for recovery of utility’s regulatory assets and 

stranded costs during deregulation to competitive market. 

The 250th District Court, Travis County, reversed and 

remanded in part. Appeal was taken. The Supreme Court, 

Owen, J., held that: (1) the PUC could employ a second 

present value test to determine whether tangible and 

quantifiable benefits to ratepayers were provided by 

securitization through bonds secured by transition 

charges; (2) the PUC was required to assume that, absent 

securitization, regulatory assets and stranded costs would 

be recovered through competition transition charges in 

less than forty years; (3) it was not required to use the 

weighted average life of six years over which utility’s 

transition bonds would be outstanding; (4) it lacked the 

discretion to consider utility’s regulatory assets on an 

asset-by-asset basis; (5) it may apply the rate design 

methodology established in an utility’s last rate design 

case to the data in that rate case, rather than to more 

current data; and (6) in an opinion by Hecht, J., the PUC 

was not required to reallocate overpayments or 

underpayments of transition charges by any one class 

among all customers.

Affirmed in part, reversed in part, and remanded.

Owen, J., dissented in part and filed opinion joined by 

Enoch and Baker, JJ.

*275 Opinion by Justice Owen

Attorneys and Law Firms

*276 Roy Q. Minton, Minton Burton Foster & Collins, 

Robert J. Hearon, Jr., Mary A. Keeney, Graves Dougherty 

Hearon & Moody, Austin, Robert A. Wooldridge, Robert 

M. Fillmore, Howard V. Fisher, Worsham Forsythe 

Wooldridge, Dallas, for Appellant.

*277 Thomas K. Anson, Sheinfeld Maley & Kay, 

Geoffrey M. Gay, Lloyd Gosselink Blevins Rochelle, 

Austin, Alan W. Harris, Dallas, Marianne Carroll, David 

B. Gross, Carroll & Gross, Andrew Kever, Bickerstaff 

Heath Smiley Pollan Kever & McDaniel, Mark C. Davis, 

Brickfield Burchette & Ritts, James K. Rourke, Thomas 

Lane Brocato, Suzi Ray McClellan, Office of Public 

Utility Counsel, Steven Baron, Office of Attorney 

General of Texas, John Cornyn, Attorney General of the 

State of Texas, Jeffrey S. Boyd, Karen Watson Kornell, 

Douglas Fraser, Bryan L. Baker, Office of the Attorney 

General, Jonathan Day, Lino Mendiola, Mayor Day 

Caldwell & Keeton, Diane Barlow–Sparkman, Mark W. 

Smith, J. Kay Trostle, Elizabeth H. Drews, James G. 

Boyle, Law Office of Jim Boyle, Austin, for Appellee.

PER CURIAM.

In 1999, the Legislature amended the Public Utility 

Regulatory Act (PURA) to usher in deregulation of retail 

electric utility rates in Texas.1 As part of that plan, the 

Legislature concluded that, subject to certain restrictions, 

an existing utility like TXU Electric Company may 

recover amounts that the PURA defines as “regulatory 

assets” by using securitization financing. Securitization is 

accomplished through a financing order issued by the 

Commission that authorizes a utility to issue transition 

bonds. The transition bonds are repaid or secured by 

transition charges to ratepayers in a utility’s service area. 

TXU requested the Commission to issue a financing order 

securitizing certain of its regulatory assets. The 

Commission authorized securitization of some but not all 

of those assets. A district court reversed the 

Commission’s order in part and remanded the case for 

further proceedings. TXU and others bring this direct 

appeal to our Court.2

1 Act of May 27, 1999, 76th Leg., R.S., ch. 405, 1999 

Tex. Gen. Laws 2543.

2 TEX. UTIL.CODE § 39.303(f) (providing that review 

of financing orders under the PURA are to be directly 

appealed from the district court to this Court).

We hold that: 1) in order to ensure that securitization 

provides tangible and quantifiable benefits to ratepayers 

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
TXU Elec. Co. v. Public Utility Com’n of Texas, 51 S.W.3d 275 (2001)

Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

V

Several parties who are also parties in Corpus Christi

raise many of the same issues in both cases.37 Our 

decision in CP & L resolves each of these issues, and we 

will not lengthen this opinion by reiterating all the reasons 

for our holdings. We instead briefly summarize each issue 

and our disposition.

37 Those parties include the Office of Public Utility 

Counsel, Texas Industrial Consumers, and Nucor Steel, 

who filed an amicus brief with this Court in Corpus 

Christi.

Certain of TXU’s customers assert that the Commission 

failed to follow section 39.253 in allocating transition 

costs to the *287 non-firm industrial customer classes. 

They contend that the Commission erred in applying the 

150 percent demand allocator required by section 

39.253(d)38 to all the transition costs rather than first 

subtracting the transition costs allocated to residential 

customers. We hold in this case, as we do in Corpus 

Christi, that section 39.253 is ambiguous in this regard 

and that the Commission’s construction is a reasonable 

one and should be accorded deference.

38 TEX. UTIL.CODE § 39.253(d) (requiring that 

“[n]on-firm industrial customers shall be allocated 

stranded costs equal to 150 percent of the amount 

allocated to that class”).

TIEC says that in determining how much of the transition 

costs should be allocated to the industrial classes, the 

Commission should have excluded load lost when 

customers switched to sources of power that exempt them 

from paying transition charges.39 Again, for the reasons 

we consider in Corpus Christi, we reject that argument.40

39 See id. § 39.262(k).

40 51 S.W.3d at 259 – 261.

VI

[5] Several parties to this appeal, including the 

Commission, contend that the district court erred when it 

held that the Commission’s Finding of Fact 113 and 

references to that finding in Conclusion of Law 41 and 

Ordering Paragraph 37 were “advisory and superfluous to 

the Order and therefore [have] no res judicata effect.”

The finding of the Commission that is at issue concerned 

loss on reacquired debt.

TXU reacquired preferred stock and high-cost debt before 

the maturity date of that debt by paying a premium. The 

loss TXU sustained in those transactions is included in the 

definition of regulatory assets under the PURA, and the 

Commission allowed TXU to include loss on reacquired 

debt as part of the amount securitized in the financing 

order. This same loss on reacquired debt is also reflected 

as an increase in TXU’s cost of capital, and that in turn 

increases TXU’s rate of return. The Commission and 

others were concerned that TXU would enjoy a double 

recovery of its losses. Responding to that concern, the 

Commission concluded that loss on reacquired debt 

“should not be removed from [TXU’s] cost-of-capital 

calculation for purposes of the annual report submitted 

pursuant to PURA § 39.257,” but that instead an 

adjustment should be made in future proceedings.41 In the 

Financing Order, Finding of Fact 113, the Commission 

said that:

41 Tex. Pub. Util. Comm’n, Application of TXU Electric 

Company for Financing Order to Securitize Regulatory 

Assets and Other Qualified Costs, Docket No. 21527 

(May 2, 2000).

[A]n adjustment should be made in the true up 

proceeding under PURA § 39.262 to account for the 

effect of securitizing the loss on reacquired debt on 

[TXU’s] cost of capital. This treatment is necessary to 

comply with the Legislature’s mandate in PURA § 

39.262(a) that a utility and its affiliates “may not be 

permitted to overrecover stranded costs” by using any 

of the methods provided in Chapter 39 [§ 39.262(a) ]. 

In addition, any determinations regarding the effect of 

securitizing loss on reacquired debt on the calculation 

of stranded costs should not be made in this docket but 

should be made in [TXU’s] cost unbundling case under 

PURA § 39.201.

42

42 Id. (footnote omitted).

We agree with the district court that this was an advisory 

and premature finding. *288 Whether an adjustment is 

required in a true-up or other future proceeding should 

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10
§ 1.1409 Commission consideration of the complaint., 47 C.F.R. § 1.1409

Code of Federal Regulations 

Title 47. Telecommunication

Chapter I. Federal Communications Commission (Refs & Annos)

Subchapter A. General

Part 1. Practice and Procedure (Refs & Annos)

Subpart J. Pole Attachment Complaint Procedures (Refs & Annos)

47 C.F.R. § 1.1409

§ 1.1409 Commission consideration of the complaint.

Effective: June 8, 2011

Currentness

(a) In its consideration of the complaint, response, and reply, the Commission may take notice of any information contained 

in publicly available filings made by the parties and may accept, subject to rebuttal, studies that have been conducted. The 

Commission may also request that one or more of the parties make additional filings or provide additional information. 

Where one of the parties has failed to provide information required to be provided by these rules or requested by the 

Commission, or where costs, values or amounts are disputed, the Commission may estimate such costs, values or amounts it 

considers reasonable, or may decide adversely to a party who has failed to supply requested information which is readily 

available to it, or both.

(b) The complainant shall have the burden of establishing a prima facie case that the rate, term, or condition is not just and 

reasonable or that the denial of access violates 47 U.S.C. § 224(f). If, however, a utility argues that the proposed rate is lower 

than its incremental costs, the utility has the burden of establishing that such rate is below the statutory minimum just and

reasonable rate. In a case involving a denial of access, the utility shall have the burden of proving that the denial was lawful, 

once a prima facie case is established by the complainant.

(c) The Commission shall determine whether the rate, term or condition complained of is just and reasonable. For the 

purposes of this paragraph, a rate is just and reasonable if it assures a utility the recovery of not less than the additional costs 

of providing pole attachments, nor more than an amount determined by multiplying the percentage of the total usable space, 

or the percentage of the total duct or conduit capacity, which is occupied by the pole attachment by the sum of the operating 

expenses and actual capital costs of the utility attributable to the entire pole, duct, conduit, or right-of-way.

(d) The Commission shall deny the complaint if it determines that the complainant has not established a prima facie case, or 

that the rate, term or condition is just and reasonable, or that the denial of access was lawful.

(e) When parties fail to resolve a dispute regarding charges for pole attachments and the Commission’s complaint procedures 

under Section 1.1404 are invoked, the Commission will apply the following formulas for determining a maximum just and 

reasonable rate:

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 1.1409 Commission consideration of the complaint., 47 C.F.R. § 1.1409

(1) The following formula shall apply to attachments to poles by cable operators providing cable services. This formula 

shall also apply to attachments to poles by any telecommunications carrier (to the extent such carrier is not a party to a 

pole attachment agreement) or cable operator providing telecommunications services until February 8, 2001:

(2) With respect to attachments to poles by any telecommunications carrier or cable operator providing 

telecommunications services, the maximum just and reasonable rate shall be the higher of the rate yielded by paragraphs 

(e)(2)(i) or (e)(2)(ii) of this section.

(i) The following formula applies to the extent that it yields a rate higher than that yielded by the applicable formula in 

paragraph 1.1409(e)(2)(ii) of this section:

Rate = Space Factor x Cost

Where Cost

in Urbanized Service Areas = 0.66 x (Net Cost of a Bare Pole x Carrying Charge Rate)

in Non–Urbanized Service Areas = 0.44 x (Net Cost of a Bare Pole x Carrying Charge Rate).

(ii) The following formula applies to the extent that it yields a rate higher than that yielded by the applicable formula in 

paragraph 1.1409(e)(2)(i) of this section:

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 1.1409 Commission consideration of the complaint., 47 C.F.R. § 1.1409

(3) The following formula shall apply to attachments to conduit by cable operators and telecommunications carriers:

simplified as:

If no inner-duct is installed the fraction, “1 Duct divided by the No. of Inner–Ducts” is presumed to be 1⁄2.

(f) Paragraph (e)(2) of this section shall become effective February 8, 2001 (i.e., five years after the effective date of the 

Telecommunications Act of 1996). Any increase in the rates for pole attachments that results from the adoption of such 

regulations shall be phased in over a period of five years beginning on the effective date of such regulations in equal annual 

increments. The five-year phase-in is to apply to rate increases only. Rate reductions are to be implemented immediately. The 

determination of any rate increase shall be based on data currently available at the time of the calculation of the rate increase.

Credits

[52 FR 31770, Aug. 24, 1987; 61 FR 43025, Aug. 20, 1996; 61 FR 45619, Aug. 29, 1996; 63 FR 12025, March 12, 1998; 65 

FR 31282, May 17, 2000; 66 FR 34580, June 29, 2001; 76 FR 26639, May 9, 2011]

SOURCE: 43 FR 36094, Aug. 15, 1978; 56 FR 57598, Nov. 13, 1991; 57 FR 187, Jan. 3, 1992; 58 FR 27473, May 10, 1993; 

59 FR 22985, May 4, 1994; 61 FR 45618, Aug. 29, 1996; 61 FR 46561, Sept. 4, 1996; 61 FR 52899, Oct. 9, 1996; 62 FR 

37422, July 11, 1997; 63 FR 67429, Dec. 7, 1998; 63 FR 71036, Dec. 23, 1998; 64 FR 63251, Nov. 19, 1999; 65 FR 10720, 

Feb. 29, 2000; 65 FR 19684, April 12, 2000; 65 FR 31281, May 17, 2000; 69 FR 77938, Dec. 29, 2004; 71 FR 26251, May 4, 

2006; 74 FR 39227, Aug. 6, 2009; 75 FR 9797, March 4, 2010; 76 FR 43203, July 20, 2011; 77 FR 71137, Nov. 29, 2012; 78 

FR 10100, Feb. 13, 2013; 78 FR 15622, March 12, 2013; 78 FR 41321, July 10, 2013; 78 FR 50254, Aug. 16, 2013; 
§ 1.1409 Commission consideration of the complaint., 47 C.F.R. § 1.1409

48528, Aug. 15, 2014; 80 FR 1268, Jan. 8, 2015, unless otherwise noted.

AUTHORITY: 15 U.S.C. 79, et seq.; 47 U.S.C. 151, 154(i), 154(j), 155, 157, 160, 201, 225, 227, 303, 309, 332, 1403, 1404, 

1451, 1452, and 1455.

Notes of Decisions (23)

Current through April 30, 2015; 80 FR 24774.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4
§ 37.001. Definition, TX CIV PRAC & REM § 37.001

Vernon’s Texas Statutes and Codes Annotated 

Civil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and Appeal

Subtitle C. Judgments

Chapter 37. Declaratory Judgments (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 37.001

§ 37.001. Definition

Currentness

In this chapter, “person” means an individual, partnership, joint-stock company, unincorporated association or society, or 

municipal or other corporation of any character.

Credits

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

Notes of Decisions (56)

V. T. C. A., Civil Practice & Remedies Code § 37.001, TX CIV PRAC & REM § 37.001

Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 37.002. Short Title, Construction, Interpretation, TX CIV PRAC & REM § 37.002

Vernon’s Texas Statutes and Codes Annotated 

Civil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and Appeal

Subtitle C. Judgments

Chapter 37. Declaratory Judgments (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 37.002

§ 37.002. Short Title, Construction, Interpretation

Currentness

(a) This chapter may be cited as the Uniform Declaratory Judgments Act.

(b) This chapter is remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, 

status, and other legal relations; and it is to be liberally construed and administered.

(c) This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those 

states that enact it and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory 

judgments and decrees.

Credits

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

Notes of Decisions (238)

V. T. C. A., Civil Practice & Remedies Code § 37.002, TX CIV PRAC & REM § 37.002

Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 37.003. Power of Courts to Render Judgment; Form and Effect, TX CIV PRAC & REM...

Vernon’s Texas Statutes and Codes Annotated 

Civil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and Appeal

Subtitle C. Judgments

Chapter 37. Declaratory Judgments (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 37.003

§ 37.003. Power of Courts to Render Judgment; Form and Effect

Currentness

(a) 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. An action or proceeding is not open to objection on the ground that a declaratory judgment or 

decree is prayed for.

(b) The declaration may be either affirmative or negative in form and effect, and the declaration has the force and effect of a 

final judgment or decree.

(c) The enumerations in Sections 37.004 and 37.005 do not limit or restrict the exercise of the general powers conferred in 

this section in any proceeding in which declaratory relief is sought and a judgment or decree will terminate the controversy or 

remove an uncertainty.

Credits

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

Notes of Decisions (284)

V. T. C. A., Civil Practice & Remedies Code § 37.003, TX CIV PRAC & REM § 37.003

Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 37.004. Subject Matter of Relief, TX CIV PRAC & REM § 37.004

Vernon’s Texas Statutes and Codes Annotated 

Civil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and Appeal

Subtitle C. Judgments

Chapter 37. Declaratory Judgments (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 37.004

§ 37.004. Subject Matter of Relief

Effective: June 15, 2007

Currentness

(a) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or 

other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question 

of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of 

rights, status, or other legal relations thereunder.

(b) A contract may be construed either before or after there has been a breach.

(c) Notwithstanding Section 22.001, Property Code, a person described by Subsection (a) may obtain a determination under 

this chapter when the sole issue concerning title to real property is the determination of the proper boundary line between 

adjoining properties.

Credits

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 2007, 80th Leg., ch. 305, § 1, eff. June 15, 2007.

Notes of Decisions (469)

V. T. C. A., Civil Practice & Remedies Code § 37.004, TX CIV PRAC & REM § 37.004

Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 37.005. Declarations Relating to Trust or Estate, TX CIV PRAC & REM § 37.005

Vernon’s Texas Statutes and Codes Annotated 

Civil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and Appeal

Subtitle C. Judgments

Chapter 37. Declaratory Judgments (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 37.005

§ 37.005. Declarations Relating to Trust or Estate

Currentness

A person interested as or through an executor or administrator, including an independent executor or administrator, a trustee, 

guardian, other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust in the administration of a trust or of 

the estate of a decedent, an infant, mentally incapacitated person, or insolvent may have a declaration of rights or legal 

relations in respect to the trust or estate:

(1) to ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others;

(2) to direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary 

capacity;

(3) to determine any question arising in the administration of the trust or estate, including questions of construction of wills 

and other writings; or

(4) to determine rights or legal relations of an independent executor or independent administrator regarding fiduciary fees 

and the settling of accounts.

Credits

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 167, § 3.08(a), eff. Sept. 1, 

1987; Acts 1999, 76th Leg., ch. 855, § 10, eff. Sept. 1, 1999.

Notes of Decisions (50)

V. T. C. A., Civil Practice & Remedies Code § 37.005, TX CIV PRAC & REM § 37.005

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 37.005. Declarations Relating to Trust or Estate, TX CIV PRAC & REM § 37.005

Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 37.0055. Declarations Relating to Liability for Sales and..., TX CIV PRAC & REM...

Vernon’s Texas Statutes and Codes Annotated 

Civil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and Appeal

Subtitle C. Judgments

Chapter 37. Declaratory Judgments (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 37.0055

§ 37.0055. Declarations Relating to Liability for Sales and Use Taxes of Another State

Effective: September 1, 2007

Currentness

(a) In this section, “state” includes any political subdivision of that state.

(b) A district court has original jurisdiction of a proceeding seeking a declaratory judgment that involves:

(1) a party seeking declaratory relief that is a business that is:

(A) organized under the laws of this state or is otherwise owned by a resident of this state; or

(B) a retailer registered with the comptroller under Section 151.106, Tax Code; and

(2) a responding party that:

(A) is an official of another state; and

(B) asserts a claim that the party seeking declaratory relief is required to collect sales or use taxes for that state based on 

conduct of the business that occurs in whole or in part within this state.

(c) A business described by Subsection (b)(1) is entitled to declaratory relief on the issue of whether the requirement of 

another state that the business collect and remit sales or use taxes to that state constitutes an undue burden on interstate 

commerce under Section 8, Article I, United States Constitution.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 37.0055. Declarations Relating to Liability for Sales and..., TX CIV PRAC & REM...

(d) In determining whether to grant declaratory relief to a business under this section, a court shall consider:

(1) the factual circumstances of the business’s operations that give rise to the demand by the other state; and

(2) the decisions of other courts interpreting Section 8, Article I, United States Constitution.

Credits

Added by Acts 2007, 80th Leg., ch. 699, § 1, eff. Sept. 1, 2007.

V. T. C. A., Civil Practice & Remedies Code § 37.0055, TX CIV PRAC & REM § 37.0055

Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 37.006. Parties, TX CIV PRAC & REM § 37.006

Vernon’s Texas Statutes and Codes Annotated 

Civil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and Appeal

Subtitle C. Judgments

Chapter 37. Declaratory Judgments (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 37.006

§ 37.006. Parties

Currentness

(a) When declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration 

must be made parties. A declaration does not prejudice the rights of a person not a party to the proceeding.

(b) 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.

Credits

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

Notes of Decisions (188)

V. T. C. A., Civil Practice & Remedies Code § 37.006, TX CIV PRAC & REM § 37.006

Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 37.007. Jury Trial, TX CIV PRAC & REM § 37.007

Vernon’s Texas Statutes and Codes Annotated 

Civil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and Appeal

Subtitle C. Judgments

Chapter 37. Declaratory Judgments (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 37.007

§ 37.007. Jury Trial

Currentness

If a proceeding under this chapter involves the determination of an issue of fact, the issue may be tried and determined in the 

same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.

Credits

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

Notes of Decisions (11)

V. T. C. A., Civil Practice & Remedies Code § 37.007, TX CIV PRAC & REM § 37.007

Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 37.008. Court Refusal to Render, TX CIV PRAC & REM § 37.008

Vernon’s Texas Statutes and Codes Annotated 

Civil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and Appeal

Subtitle C. Judgments

Chapter 37. Declaratory Judgments (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 37.008

§ 37.008. Court Refusal to Render

Currentness

The court may refuse to render or enter a declaratory judgment or decree if the judgment or decree would not terminate the 

uncertainty or controversy giving rise to the proceeding.

Credits

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

Notes of Decisions (25)

V. T. C. A., Civil Practice & Remedies Code § 37.008, TX CIV PRAC & REM § 37.008

Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 37.009. Costs, TX CIV PRAC & REM § 37.009

Vernon’s Texas Statutes and Codes Annotated 

Civil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and Appeal

Subtitle C. Judgments

Chapter 37. Declaratory Judgments (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 37.009

§ 37.009. Costs

Currentness

In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney’s fees as are equitable

and just.

Credits

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

Notes of Decisions (703)

V. T. C. A., Civil Practice & Remedies Code § 37.009, TX CIV PRAC & REM § 37.009

Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 37.010. Review, TX CIV PRAC & REM § 37.010

Vernon’s Texas Statutes and Codes Annotated 

Civil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and Appeal

Subtitle C. Judgments

Chapter 37. Declaratory Judgments (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 37.010

§ 37.010. Review

Currentness

All orders, judgments, and decrees under this chapter may be reviewed as other orders, judgments, and decrees.

Credits

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

Notes of Decisions (64)

V. T. C. A., Civil Practice & Remedies Code § 37.010, TX CIV PRAC & REM § 37.010

Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 37.011. Supplemental Relief, TX CIV PRAC & REM § 37.011

Vernon’s Texas Statutes and Codes Annotated 

Civil Practice and Remedies Code (Refs & Annos)

Title 2. Trial, Judgment, and Appeal

Subtitle C. Judgments

Chapter 37. Declaratory Judgments (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 37.011

§ 37.011. Supplemental Relief

Currentness

Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application must 

be by petition to a court having jurisdiction to grant the relief. If the application is deemed sufficient, the court shall, on 

reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree to 

show cause why further relief should not be granted forthwith.

Credits

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

Notes of Decisions (23)

V. T. C. A., Civil Practice & Remedies Code § 37.011, TX CIV PRAC & REM § 37.011

Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 54.205. Municipality’s Right to Control Access, TX UTIL § 54.205

Vernon’s Texas Statutes and Codes Annotated 

Utilities Code (Refs & Annos)

Title 2. Public Utility Regulatory Act

Subtitle C. Telecommunications Utilities

Chapter 54. Certificates (Refs & Annos)

Subchapter E. Municipalities

V.T.C.A., Utilities Code § 54.205

§ 54.205. Municipality’s Right to Control Access

Currentness

This title does not restrict a municipality’s historical right to control and receive reasonable compensation for access to the 

municipality’s public streets, alleys, or rights-of-way or to other public property.

Credits

Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.

Editors’ Notes

REVISOR’S NOTE

2007 Main Volume

Section 3.2555(f), V.A.C.S. Article 1446c-0, provides that the law does not “restrict or limit” certain municipal 

rights. The revised law omits the term “limit” because “limit” is included within the meaning of the term 

“restrict.”

Notes of Decisions (3)

V. T. C. A., Utilities Code § 54.205, TX UTIL § 54.205

Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1