## IN THE SUPREME COURT O F TEX AS

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. 12-0657

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### A S H IS H 

### P A T E L 

### , A N V E R A L I 

### S A T A N I 

### , N A Z IR A 

### M O M IN 

### , M IN A Z 

### C H A M A D IA 

### , A N D 

### V IJ A Y 

### L A K S H M I 

### Y O G I 

### , P E T IT IO N E R S 

### /C R O S S


### - R E S P O N D E N T S 

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v . 

### T E X A S 

### D E P A R T M E N T O F 

### L IC E N S IN G A N D 

### R E G U L A T IO N 

### , E T A L


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R E S P O N D E N T S 

### /C R O S S


### - P E T IT IO N E R S

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E T H I R D D I S T R I C T O F T E X A S

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Argued F ebruary 27, 2014

J U S T I C E J O H N S O N delivere d the opini o n o f the Court, in which J U S T I C E G R E E N , J U S T I C E W I L L E T T , J U S T I C E L E H R M A N N , and J U S T I C E D E V I N E joined. J U S T I C E W I L L E T T filed a concur ring opinion, in which J U S T I C E L E H R M A N N and J U S T I C E D E V I N E joined. J U S T I C E B O Y D filed a c oncurr ing opinion. C H I E F J U S T I C E H E C H T filed a dissenting opinion, in which J U S T I C E G U Z M A N an d J U S T I C E B R O W N joined. J U S T I C E G U Z M A N filed a dissenting opinion.

I n this decla

ratory judgme nt action sever al individ u als prac ticing commerc ial ey ebrow threa ding and the salon owner s employing them asser t that, as applied to them, Tex as ’s licensing statutes and re g ulations violate the Texas Constit ution’s due course of law provision. They claimthat most of the 750 hours of training Texas r equire s for a license to pr actice commerc ial ey ebrow

threa ding are not rela ted to health and safe ty or what threa ders actua lly do. The State conce des that

over 40% of the require d hours are unrela ted, but maintains that the lic en s i n g re q uirements are

never theless constitutional. The trial court an d court of appea ls ag ree d with the State. We do not. We reve rse and

rema nd to the trial court f

or fur ther proc eeding s. I. Background Ey ebrow th reading is a g rooming prac tice mainly perf ormed in South Asian and Middle Easter n communities. I t involves the remova l of ey ebrow hair and shaping of ey ebrow s with cotton threa d. “Thre ading ,” as it is most commonly known, is incre asing ly prac ticed i n T exas on a

commerc ial basis. Threa ders tightly wind a single strand of cotton threa d, form a loop in it with their fing ers, tighten the loop, and th en quickly brush the threa d along the skin of the client, trapping unwanted hair in the loop and removing it. Commercial threa ding beca me reg ulated in Texas when the L eg islature cate g orized it as a prac tice of “cosme tology .” See T E X
. O C C
. C O D E § 1602.002(a) (8) (“‘[ C ] o s m et o logy ’ means the prac tice of perf orming or offe ring to perf orm for compensa

tion

. . . [t he] re m o v[al] [of] superf luous hair from a person’ s body using depilatories, prepa rations, or tweezing techniques . . . .” ). That c ateg orization and its effec ts underlie this case

. I n order to leg ally prac tice cosmetolog y in Texas a person must hold either a g ener al
opera tor’s license or, in cer tain instances, a more limit ed but easie r-to-obta in esthetician license. Id. § 1602. 2 5 1 (a). L icensing require ments for g ener al opera tors include completing a minimum of 1,500 hours of instruction in a licensed beauty culture school and passing a state-manda ted test. Id.
2§ 1602.254; 16 T E X
. A D M I N
. C O D E § 83.20(a)

. Requirements for an esthetician license include

completing a minimum of 750 hours of instruction in an appr oved tra ining pr og ram a nd passing a state-mandated test. T E X
. O C C
. C O D E § 1602.257(b); 1 6 T E X
. A D M I N
. C O D E § 83.20(b). Commercial ey ebrow threa ders m u s t h ave at least an esthetician license. See T E X
. O C C
. C O D E §§ 1602.002(a) (8), .257; see also 16 T E X
. A D M I N
. C O D E § 83.10(36). The Texas Depa

rtment of L icensing and R egulation (TDL R or the Depa rtment), which is
g overne d by the Texas Commi ssion of L icensing and Reg ulation (the Commi ssion), is char g ed with

overse eing individuals and businesses that offe r cosmetolog y service s. T E X
. O C C
. C O D E §§ 51.051, .201(a) , 1602.001–.002, 1603.001–.456. The executive direc tor of TDL R is authoriz ed to impose administrative fines of

as much a s $5,000 per violation, per day

. See id. §§ 51.302, 1602.251. I n late 2008 and ear ly 2009, TDL R inspected J u s t ri n gz

— a threa ding business with kiosk locations in mal l s ac ross Texas—and found Nazira Nasruddin Momin and Vijay L akshmi Yog i perf orming ey ebrow threa ding without licenses. TDL R issued No ti c e s o f A ll e g ed Violations to them for the unlicensed prac tice of cosmetolog y . Minaz Chamadia was als o perf orming threa ding at J ustringz without a license, but she was not cited by TDL R. The administrative hear ings and fines pending ag ainst Momin and Yog i have been stay ed pursuant to a Rule 11 Ag ree ment. See T E X
. R. C I V
. P. 11. Ashish Patel and Anver ali Satani own threa ding salons named Perfe ct Br owz. The State has
not taken any administrative action rela ted to Perfe ct Br owz. S at an i i s t he sole owner of another threa ding business, Br owz and Henna

. TDL R inspected and investiga ted Br owz and Henna on the basis of complaints filed ag ainst it. Although Sata ni rec eived two wa

rning s for B rowz and Henna
3employ ing unlicensed threa ders, the Depa rtment did not issue a Notice of Alleg ed Violation. L ike the proce eding s ag ainst Momin and Yog i, prosec ution of Br owz and Henna has been stay ed by
ag ree ment of the pa

rties.
I n Dec ember 2009, Patel, Satani, Momin, Chamadia, and Yog i (collec tively , the Threa ders) broug ht suit ag ainst TDL R, its executive direc tor, the Commi ssion, and the Commi ssion’s members (collec tively , the State) pursuant to the Uniform Dec lara tory J udg ments Act (U DJ A) seeking decla ratory and injunctive relief. See T E X
. C I V
. P R A C
. & R E M
. C O D E §§ 37.001–.004, .006, .010. The Threa ders a ll e g e d that the cosmetolog y statutes and administrative rules issued pursuant to those
statutes (collec tively , the cosmetolog y scheme ) wer e unrea sonable as applied to ey ebrow threa ding and violated their constitutional rig ht “to ear n an honest living in the occupation of one’s choice fre e from unrea sonable g overnme ntal interfe renc e.” They specific ally soug ht decla ratory judgme nt that,

as applied to them, the cosmetolog y statutes and associate d reg ulations vio l at e t h e p ri vileg es and immunit ies and due course g uara ntees of Article I , § 19 of the Texas Constit ution. They also soug ht

a perma nent injunction barr ing the State from enfor cing t h e co s m et ology scheme rela ting to the

commerc ial prac tice of e y ebrowthrea ding a g ainst them. The Threa ders moved for summary jud gm en t , contending that “application of the state’s cosmetolog y laws and administrative ru les to the commerc ial prac tice of ey ebrow threa ding is unconstitutional beca

use it place s senseless burdens on ey ebrow threa ders and threa ding businesses without any

actua l benef

it to publi c hea lth and safe ty .” The motion urg ed that the S tate could not

con s titutionally reg ulate the commerc ial prac tice of ey ebrow threa ding as conventional cosmetolog y unless it could establish a rea l and substantial rela tionship betwee n the statutes and reg ulations and
4the public’s health and safe ty , and the State could not meet this standard. The State filed both a plea

to the j urisdiction and a tradit i onal m otion for summ ary judgme nt. By its plea to the j urisdiction, the State challeng ed the Threa ders’ standing , contending that their claims wer e barr ed by sovere ign imm u n i t y and the redunda nt reme dies doctrine. I n its motion for summary judgme nt, the State

asser ted that the Threa ders fa i l ed t o show that Texas’s reg ulation of the prac tice of ey ebrow threa ding deprived the Threa ders o f an y substantive due process right protected by Article I , § 19 or to plead a

privileg es and immunities claim differ ent from their substantive due proc ess claim. The district court denied the State’s plea to the jurisdiction, g rante d its motion for summary judgme nt, and denied the Threa ders’ motion for summary judgme nt. Both par

ties appea led. The court of appea ls a ffirme d. Patel v. Tex. Dep’ t of Licensing & Regulation , ___ S.W .3d

___ (Tex

. Ap p . — Au s t in 2012). As to the State’s jurisdictional issues, the court held that the Threa ders’ suit was not barr ed by sovere ign immunit y o r t h e redunda nt reme dies doctrine, the Threa ders had standing , and their claims wer e ripe. Id. at ___. As to the merits, the a ppeals court conclude d that under e ither the re al and substantial or r ational basis test, the State established tha t the challeng ed cosmetolog y scheme , as applied to the Threa ders, does not violate Article I , § 19. Id. at ___. I n this Court the Threa ders arg ue that (1) the rea l and substantial test g overns substantive due
proce ss challeng es to statutes and reg ulations aff ecting economic interests when the challeng es are broug ht under Ar

ticle I , § 19 of t he Tex as C onstitut ion; (2) the c osmetology statutes and rule s are unconstitutional as applied to the Threader s beca use t hey have no re al an d substantial connec tion
to a leg itimate g overnme ntal objective; and (3) even if rational basis revie w is the corr ect
5constitutional test, under the appropr iate test, the statutes and reg ulations are u n const itutional as

applied to the Thre ader s. The State contends that (1) it is immune from decla ratory judgme nt claims raising constitutional challeng es to statutes; (2) the Threa ders’ claims lack both justiciabilit y and ripene ss; (3) the claims are barr ed by the redunda nt reme dies doctrine; (4) the business owner s lack standing ; (5) there is no rea l differ ence betwee n the “re al and substantial” and “ra tional rela tionship” tests for due proce ss conce rns ; and (6) threa ding raises public health conce rns, implicating valid
g overnme ntal conce rns, thus the challeng ed licensing statutes and reg ulations that addre ss these

conce rns comport with the substantive due proce ss require ments reg ardle ss of which test is applied. 1
We addre ss the arg uments in t u rn , n ec essarily beg inning with the jurisdictional issues the State raises. See Rusk St ate Hosp. v. Black , 392 S.W .3d 88, 95 (Tex. 2012) (noting that if a c ourt does not have jurisdiction, its opinion addressing any issues other than jurisdiction is advisory ).

A m i c u s c u r i a e b r i e f

s h a v e b e e n s u b m i t t e d b y t h e P a c i f i c L e g a l F o u n d a t i o n ( i n s u p p o r t o f t h e T h r e a d e r s ) ; 1 H o u s t o n B e l t & T e r m i n a l R a i l w a y C o . , B N S F R a i l w a y C o . , a n d U n i o n P a c i f i c R a i l w a y C o . ; a n d S o u t h T e x a s C o l l e g e o f L a w 2 0 1 4 S t a t e C o n s t i t u t i o n a l L a w C l a s s ( n o t s u b m i t t e d i n s u p p o r t o f e i t h e r p a r t y )

. 6II. Jurisd iction A. Sovere ign Imm uni ty Sovereig n immunit y implicates a trial court’s jurisd ic ti o n , a n d , w h e n it a

p plies, prec ludes suit
ag ainst a g overnme ntal entity

. Tex. Dep’ t of P a r ks & W i l d life v. Miranda , 133 S.W .3d 217, 224 (Tex. 2004); Tex. Natural Res. Conservation Comm’n v. IT-Davy , 74 S.W .3d 849, 853 (Tex. 2002). The State acknow ledg es this Court’s decisions to the eff ect that sovere ign immunit y is inapplicable when a suit challeng es the constitutionalit y of a statute and seeks only equitable relief

. See City of Elsa v. M.A.L. , 226 S.W .3d 390, 392 (Tex. 2007) (conc luding “that the appea ls court did not err by ref us i n g t o d i smiss the plaintiffs’ claims [aga inst the city ] for injunctive relief on alleg ed constitutional violations”); City of Beaumont v. Bouillion , 896 S.W .2d 143, 149 (T ex . 1 9 9 5) (dete rmining that a plaintiff whose co n s t i t u t i onal rig hts have been violated may sue the State for equitable relief)

. But refe renc ing Texas Department of Insurance v. Reconve yance Servic es, Inc. , 306 S.W .3d 256, 258-59 (Tex. 2010), and City of El Paso v. He inrich , 284 S.W .3d 366, 370-72 (Tex. 2009), the State arg ues that our more rec ent decisions indicate that we may be depar ting from that rule. We ar e not. I n Heinrich we decided that sovere ign immuni ty does not prohibit suits brought to require
state officia ls to comply with statutory or constitutional provisions. 284 S.W .3d at 372. But, to fall within this “ultra vires exception,” a suit must alleg e that a state officia l acte d without leg al authority or fa iled to pe rfor

m a purely minist eria l act, ra ther than a ttack the of fice r’s e x erc ise of discre tion. Id. The g overnme ntal entities themselves rema in immune from suit, though, beca use unlawful acts of officials are not acts of the S tate. Id. at 372-7 3

. T h us, we concluded that suits complaining of

7ultra vires actions may not be broug ht ag ainst a g overnme ntal unit, but must be broug ht ag ainst the

alleg edly responsible g overnme nt actor in his offic ial capa city

. Id. at 373. W e reconfirmed the point in Rec onvey ance , wher e we held that the trial court l ac k ed jurisdiction to hear a

suit ag ainst the Texas Depa rtment of I nsuranc e. 306 S .W.3d at 258-59. We conclude d that th e cl ai m s wer e substantively ultra vires claims beca use the pleading s alleg ed the Depa rtment of I nsuranc e had acte d bey ond its statutory autho rity

. Id

. That being so, the claims should have be en broug ht ag ainst the appropr iate state of ficials in their off

icial ca pacities. Id.
I n this case , the Threa ders did not plead that the Depa rtment and C o m m i s s i on officia ls exceede d the authority g rante d to them; rathe r, they challeng ed the constitutio nality of the cosmetolog y statutes and reg ulations on which the officia ls based their actions. The State proposes that an off

icial can act ultra vires either by acting inconsistently with a constitutional statute or by acting consistently with an unconstitutional one. I t urg es that the Threa ders’ claims fall within the “ac ting consistently with an unconstitutional statute” cate g ory . But the premise underly ing the ultra vires excep t i o n i s that the State is not responsible for unlawful acts of officia ls. Heinrich , 284 S.W .3d at 372. The State’s proposal would eff ectively immuniz e it from suits claiming a statute is unconstitutional—an illogica l ext ension of that under ly ing pr emise. Con t ra ry t o t he State’s position, Heinrich and Rec onvey ance do not repr esent a depar ture from the rule that so v er ei gn i m m u n ity is inapplicable in a suit ag ainst a g overnme ntal entity that challeng es t he constit utionality of a statute and see ks only equitable r elief. See id. at 373 n.6. To the contrary , in Heinrich we clarified tha t “[f] or cla ims challeng ing the validity of . . . statutes . .

. the Dec lara

tory J udg ment Act require s that the rele vant g overnme ntal entities be made parties, and
8there by waives immunit y .” Id. (citing Tex. Educ. Agenc y v. Leeper , 893 S.W .2d 432, 446 (Tex. 1994)). And we have reiter ated the principle more rec ently

. See Tex. Dep’ t of Transp. v. Sefzik , 355 S.W .3d 618, 621-22 & n.3 (Tex. 2011) (re stating that state entities ca n be—and in some instances such as when the constitutionalit y of a statute is a t issue, must be—parties to cha lleng es under the UDJA); Tex. Lottery C o mm’n v. First State Bank of DeQue en , 325 S.W .3d 628, 634 (Tex. 2010) (holding that alleg ations ag ainst the l ottery commissioner wer e not ultra vi res alleg ations beca use the claim challeng ed a statute and was not one involving a g overnme nt office r’s action or inaction). Acc ording ly , beca

use the Threa ders challeng e the validity of the cosmetolog y statutes and
reg ulations, rathe r than complaining that officia ls illega lly acte d or failed to act, the ultra vires exception does not apply

. The Depa rtment and the Commi ssion are not immune from the Threa ders’ suit. B. Viabi lity Next, the State contends that the officia ls a re immune f

rom suit be cause the Threa ders had
to prove their claims in order to survive a plea to the jurisdiction. See Heinrich , 284 S.W .3d at 372 (“To fall within this ultra vires exception, a suit mu s t n o t co m plain of a g overnme nt office r’s exercise of discretion, but rathe r m u s t al l ege, and ultimately prove, that the office r acte d without leg al authority or failed to perf orm a purely minist eria l act.” ). The State arg ues that beca use the trial
court g rante d summary judgme nt to the State on the merits, th e T h re ad er s did not prove a valid claim, rende ring their pleading s insufficient to g ive the trial court jurisdiction. The State relies on Andrade v. NAACP of Austin , in whi ch we h eld that the S ecr etar y of S tate was immune from sui t beca use the constitutional claims ag ainst her wer e non-viable. 345 S.W .3d 1 , 6 , 1 1 -12, 18 (Tex.
92011). But, our conclusion there simply followed a line of de cisions in which we held that claims

wer e not viable due to basic pleading defe cts. Id. at 13-14. Andrade stands for the unrema rkable principle that claims ag ainst state officials—like all claims—must be proper ly pleade d in order to be maintained, not that such claims must be viable on their merits to neg ate immunit y . Id. Be cause the Thre ader s’ pleading s prese nted a viable claim, they wer e suff

icient. C. Justiciabili ty Next, the State employ s the doctrines of standing , ripene ss, and redunda nt reme dies to arg ue that the cour

ts below, and this Court, lack jurisdiction beca use the c laims of the Thre ader s are not justiciable. We consider e ach doc trine in turn. 1. Stand ing The standing doctrine identifies suits appropr iate for judicial resolution. Brown v. Todd , 53 S.W .3d 297, 305 (Tex. 2001). Standing assure s there is a rea l controve rsy betwee n the parties that will be deter

mined by the j udicial declara tion soug ht. Id. (quoting Tex. W orkers’ Comp. Comm’

n

v. Garcia , 893 S.W .2d 504, 517-18 (Tex. 1995)). “[T] o challeng e a statute, a plaintiff must [bot h] suffe r some actua l or threa tened restric tion under the statute” and “conte nd that the statute unconstitutionally restric ts the plaintiff’s rig hts.” Garcia , 893 S.W .2d at 518. The State arg ues that Patel and Satani—whose claims are based solely on their status as threa d i n g salon owner s—lack standing beca

use they fail both prong s of the standing test. Gene rally , courts must analy ze the standing of eac h individual plaintiff to bring ea ch individual claim he or she alleg es. Hec kman v. W illiamson Cnty. , 369 S.W .3d 137, 152 (Tex. 2012). Howeve r, “whe re there are multipl e plaintiffs in a case , who seek injunctive or decla ratory relief (or
1 0both), who s ue indi vidually , and who all seek the same relief[,] . . . the cour t need not analy

ze the standing of more than one plaintiff—so long as that plaintiff has standing to pursue as much or more relief than any of the other plaintiffs.” Id. at 152 n.64. The rea soning is fairly simple: if one plaintiff
preva ils on the merits, the same prospec tive relief will issue reg ardle ss of the standing of the other
p l aintiffs. Id. ; see also Andrade , 345 S.W .3d at 6 (“B eca use t he voters seek only decla ra t o ry an d injunctive relief

, and beca use eac h voter seeks the same relief , only one p l ai n t i ff wi th standing is require d.”). Her e, Momi n an d Yo g i, the threa ders who rec eived Notices of Alleg ed Violation, have standing , and the State does not contend otherwise. First, they have suffe red some actua l restric tion under the chall en ged s t atut e because TDL R initiated reg ulatory proce eding s ag ainst eac h of t hem pursuant to their alleg ed violations of the Texas cosmetolog y statutes and reg ulations. And second, they are contending that the statute unconstitutionally restric ts their righ t s t o p ra ctice ey ebrow threa ding. Acc ording ly , beca use Momin and Yog i have standing , we need not analy ze the standing of Patel and Sata

ni. The S tate also arg

ues t h at b ec ause the Threader s seek attorney s’ fees, t he relief ult imately

awa rded will not nece ssarily be identical. But standing is deter mined at the beg inning of a case , and whether the relief ultimately g rante d is the same for all parties is not deter minative of the question. Her e, Momin and Yog i have standing to seek relief and that is all we need to deter mine. See Andrade , 345 S.W

. 3 d a

t 6

- 1 1 ; B a r

s h op v. Medina Cnty. Underground W ater Conservation Dist. , 925 S.W .2d 618, 626-27 (Te x . 1996); Garcia , 893 S.W .2d at 518-19.

1 12. Ripeness

The State next arg ues that the claims broug ht by Patel, Satani, and Chamadia are not ripe beca use Patel, Satani, and Chama dia have not fac ed administrative e nforc ement. We disag ree . Under the ripene ss doctrine, courts must “conside r whether , at the time a lawsuit is filed , the fac ts are sufficie ntly develope d ‘so that an injury has occur red or is likely to occur , rathe r than being conting ent or re m o t e. ’” W aco Indep. Sch. Dist. v. Gibson , 22 S.W .3d 849, 851-52 (Tex. 2000) (empha sis in orig inal) (citations omitted). Thus, the ripene ss analy si s focuses on whether a case involves uncer

tain or conting ent future events that may not occur as anticipated or may not occur at all. Id. at 852. Her e, althoug h Patel, Satani, and Chamadia have not y et fac ed administrative enfor ceme nt, the threa t of harm is more than conjec tural, hy pothetical, or remote. Satani’s business, Br owz and Henna , has rec eived two war nings for employ ing unlicensed threa ders, and he has been ref err ed to TDL R’s leg al depar

tment for enfor ceme nt. Patel and Satan i ri sk $5,000 in penalties daily for employ ing unlicensed t h re ader s. T E X
. O C C
. C O D E §§ 51.302(a) , 1602.403(c) (1). And Chamadia works at the same threa ding salon wher e Momin and Yog i wer e cited. Be cause at t h e time the lawsuit was filed Chamadia was perf orming threa ding service s without a cosmetolog y license and Patel and Satani wer e employ ing threa ders who did not have cosmetolog y licenses, these individuals

wer e subject to a rea l threa t of likely civil and criminal proce eding s, as well as admi nistrative
pro ce ed i n g s that could result in penalties and sanctions. See Mitz v. Tex. State Bd. of Veterinary Med. Exa m’ r

s , 2 7 8 S .W.3d 17, 26 (Tex. App.—Austin 2008, pet. dism’d by ag r.) (holding that a

1 2constitutional challeng e to a state-lice nsing law is ripe when enfor ceme nt of the law is “suff iciently likely ” to occ ur). The ref

ore, the ir claims ar e ripe

.

3. Redund ant Rem edies The State also seeks to dismiss the claims of the Threa ders who have rec eived citations based

on the redunda

n t reme dies doctrine. Under the redunda nt reme dies doctrine, courts will not enter tain

an action broug ht under the UDJA w h e n th e s a me c la im could be pursued throug h differ ent channe ls. See, e .g. , Tex. Mun. Power Agenc y v. P ub. Util. Comm’n , 253 S.W .3d 184, 200 (Tex. 2007). The focus of the d o ct ri n e is on the initiation of the case , that is, whether the L eg islature cre ated a statutory waiver of sover eig n immunit y that permits the par

ties to raise their claims throug h some

avenue other than the UDJA. See, e.g. , Aaron Rents, In c. v. T r a vis Cent. Appraisal Dist. , 212 S.W .3d 665, 669 (Tex. App.—Austin 2006, no pet.) (en banc) (“When a statute provides an avenue for attacking an ag ency order , a decla ratory judgme nt ac t i on will not lie to provide redunda nt

reme dies.”); see also Alamo Express, Inc. v. Union City Transfer , 309 S.W .2d 815, 827 (Tex. 1958) (holding “an action for decla ratory judgme nt does not lie” in a suit that asser ts a “dire ct attack upon the [ag ency ’s] order by

appea l”). The State m ai n t ai n s that the L eg islature has provided Momin and Yog i two alterna tive

avenue s under the Administrative Procedur es Act (APA): (1) a suit for judicial revie w alleg ing that the administrative decision was “in violation of a constitutional or statutory provision,” T E X
. G O V ’ T C O D E § 2001.174(2)( A); or (2) a suit for a pre- enfor ceme nt decla ratory judgme nt alleg ing “that the rule or its threa tened application interfe res with or impairs, or threa tens to interfe re with or impair,

a leg al rig ht or privileg e of the plaintiff.” Id. § 2001.038(a)

. The State contends that beca use either
1 3of those APA p ro v i s i o n s permits Yog i and Momin to file suits that would redr ess their alleg ed

injuries, they

may not pursue re lief under

the UDJA. We disa g ree with the State’s asser tion that a favor able decision under Section 2001.174 of the AP A— au thorizi ng courts to revie w admini strative decisions—would obviate the need for the relief the Threa ders seek. See id. § 2001.174 (allowing state courts to reve rse or rema nd ex i s t i n g ag ency order s, but not enjoin future ones). The available reme dies on appea l from an administrative finding are limit ed to reve rsal of the particula r order s at issue. Id. But the Threa ders seek more than

a reve rsal of the citations issued to Momin and Yog i. They seek prospec tive injunctive relief ag ainst fut ure ag ency order s based on the statutes and reg ulations. Acc ording ly , beca use the dec l ar at i o n soug ht g oes bey ond reve rsal of an age ncy order , Section 2001.174 of t he APA does not provide a redunda nt remedy

. The State ’s co n t ention that Section 2001.038 of the APA cre ates an avenue for preenfor ceme nt declar atory

judgme nt that an ag ency

rule is invalid and would redress the T hrea ders’ alleg ed injuries is likewise unavailing

. When a plaintiff files a proce eding that only challeng es the validity of an administrative rule, the parties are bound by the AP A and may not seek re lief under the UDJA be cause such relief would be re dundant. See Lee per , 893 S.W .2d at 443-44. The APA define s a rule a s: (A) . . . a state a g ency statement of g ener al applica bility that: (i) implements, interpre ts, or presc ribes law or policy ; or (ii) desc ribes the pr ocedur e or pr actice require ments of a state ag ency ; (B ) includ[i ng ] t he ame ndment or re peal of a prior r ule; and

1 4(C)

. . . not includ[i ng] a statement reg arding only the internal manag ement or org anization of a state ag ency and not aff ecting private rig hts or proce dures.
T E X
. G O V ’ T C O D E § 2001.003(6). Her e the Threa ders challeng e both r ules as define d by the APA and statutes. Be cause the Threa ders cannot attack the constitutionalit y of the statu tes pursuant to Section 2001.038 of the APA, their UDJA claims are not barr ed by the redunda nt reme dies doctrine. Having conclude d that the lower courts had jur isdiction, we turn to the merits. III. Constitution ality of th e Statute s and Regulations

A. Due Course of L aw Article I , § 19 of the Te x as Constitut ion provides that No citizen of this State shall be deprive d of life, liberty , proper ty , pri v i l ege s or immunit ies, or in any

manner disfranc hised, except by

the due c ourse of

the law of the land.
T E X
. C O N S T . art. I , § 19. We have at least twice noted that Texas courts have not been entirely consistent in the standard of revie w applied when economic leg islation is challeng ed under Section 19’s substantive due course of law protec tions. See Trini ty River Auth. v. URS Consultant s, Inc.—Tex

. , 889 S.W .2d 259, 263 & n.5 (Tex. 1994); Garcia , 893 S.W .2d at 525. The Threa ders g o bey ond those two case s. They asser

t that courts considering as-a pplied substantive due proce ss challeng es under Section 19 have mix ed and matched three differ ent standards of revie w throug h the y ear s. They label those standards as: (1) rea l and substantial, (2) rational basis including consideration of evidenc e, and (3) no-evide nce r ational basis.

1 5The Threa ders arg ue that the first ref ere nced standard—“ rea l and substantia l ”—is exemplified by case s such as State v. Richards , 301 S.W .2d 597 (Tex. 1957); Aladdin’s Castle, Inc.

v. City of Mesquite , 713 F.2d 137, 138 n.2 (5th Cir.1983) (apply ing Texas law); Satterfield v. Crown Cork & Seal Co. , 268 S.W .3d 1 9 0 , 2 15 (Tex. App.—Austin 2008, no pet.); Texas State Board of Pharmacy v. Gibson’s Discount Center, Inc. , 541 S

. W

. 2 d 884, 887-89 (Tex. Civ. App.—Austin 1976, writ ref

’d n.r. e. ); City of Houston v. Johnny Frank’s Auto Parts Co. , 480 S.W .2d 774, 779 (Tex. Civ. App.—Houston [14t h Dist.] 1972, writ ref ’d n.r.e .); Humble Oil & Refining Co. v

. City of George town , 428 S.W .2d 405, 407-08 (Tex. Civ. App.—Austin 1968, no writ); and C i t y of Col em a n v. Rhone , 222 S.W .2d 646, 649 (Tex. Civ. App.—Eastland 1949, writ ref ’d). They interpre t this standard as one in wh i ch t h e revie wing court considers whether (1) the leg islative
purpose for the statute is a proper one, (2) there is a rea l and substantial connec tion betwee n that
purpose and the lang uag e of the statute as the statute functions in prac tice, and (3) the statute works

an excessive or undue burden on the person challeng ing th e s t at u t e i n rela tion to the statutory
purpose. T h ey ar gu e that the di stinguishing char acte ristic of cases employ ing the standard is that the co urts using it consider evidence conce rning both the gover nment’s purpose for a law and the law’s r eal- world impact on the c halleng ing pa rty

. The Threa ders rec og nize that the rea l and substantial test aff ords less defe renc e to leg islative judgme nts than does the fede ral rational basis standard. But they point to In the Interest of J.W .T. , 872 S.W .2d 189, 197-98 & n.23 (Tex. 1994); Dave nport v. Garcia , 834 S.W .2d 4, 10 (Tex. 1992); and LeC r o y v. Ha n l on , 713 S.W .2d 335, 338-41 (Tex. 1986), as examples of case s in which this Court specific ally said or implied that cer tai n l an gu ag e in the Texas Constit ution aff ords more
1 6protec tion than compar able text in the fede ral Constituti on. They also ref ere nce the United States Supreme Court as having noted in City of Mesqu i te v. Aladdin’s Castle, Inc. , 455 U.S. 283, 293 (1982), t h at Article I , § 19 of the Texas Constit ution might aff ord more protec tions than does the Four teenth Amendment. They claim that twenty other states utiliz e the “re al and substantial” test. 2 The Threa ders presen t t h e second standard—“ rational basis including consideration of evidenc e”—a s being exemplified by case s such as City of San Antonio v. TPLP Of f i ce Park

T h e T h r e a d e r s c i t e t h e f o l l o w i n g t o s u p p o r t t h e i r p o s i t i o n : K h a n v
. S t a t e B d

. o f A u c t i o n e e r E x a m ’ r s , 8 4 2 A

. 2 d 2 9 3 6 , 9 4 6

- 4 8 & n . 7 ( P a . 2 0 0 4 ) ( u p h o l d i n g a u c t i o n e e r r e g u l a t i o n s d e s i g n e d t o p r e v e n t f r a u d ) ; O M Y

A , I n c
. v
. T o w n o f M i d d l e b u r

y , 7 5 8 A

. 2 d 7 7 7 , 7 8 0 ( V t

. 2 0 0 0 ) ( u p h o l d i n g c o m m e r c i a l t r a f f i c l i m i t s t h a t r e d u c e d c o n g e s t i o n , p o l l u t i o n , a n d p r o p e r t y d a m a g e ) ; P e

p p i e s C o u r t e s

y C a b C o
. v
. C i t

y o f K e n o s h a , 4 7 5 N

. W

. 2 d 1 5 6 , 1 5 8

- 5 9 ( W i s . 1 9 9 1 ) ( s t r i k i n g d o w n t a x i c a b d r e s s c o d e b e c a u s e i t l a c k e d a s u b s t a n t i a l r e l a t i o n t o i m p r o v i n g c i t y ’ s p u b l i c i m a g e ) ; K a t z v
. S

. D

. S t a t e B d

. o

f M e d

. & O s t e o

p a t h i c E x a m ’ r s , 4 3 2 N

. W

. 2 d 2 7 4 , 2 7 8

- 7 9 & n . 6 ( S

. D

. 1 9 8 8 ) ( u p h o l d i n g m e d i c a l

- p r a c t i c e r e g u l a t i o n s d e s i g n e d t o p r e v e n t m a l p r a c t i c e a n d f r a u d ) ; L o u i s F i n o c c h i a r o , I n c
. v
. N e b

. L i q u o r C o n t r o l C o m m ’ n , 3 5 1 N

. W

. 2 d 7 0 1 , 7 0 4

- 0 6 ( N e b

. 1 9 8 4 ) ( s t r i k i n g d o w n l i q u o r w h o l e s a l e p r i c e c o n t r o l s b e c a u s e t h e y l a c k e d a n y s u b s t a n t i a l r e l a t i o n s h i p t o p u b l i c w e l f

a r e ) ; M y r i c k v
. B d

. o

f P i e r c e C n t

y
. C o m m ’ r s , 6 7 7 P

. 2 d 1 4 0 , 1 4 3

- 4 7 ( W a s h

. 1 9 8 4 ) ( e n b a n c ) , a m e n d e d b y 6 8 7 P

. 2 d 1 1 5 2 ( s t r i k i n g d o w n m o s t p r o v i s i o n s o f m a s s a g e p a r l o r r e g u l a t i o n s ) ; R e d R i v e r C o n s t r
. C o
. v
. C i t y o f N o r m a n , 6 2 4 P

. 2 d 1 0 6 4 , 1 0 6 7 ( O k l a . 1 9 8 1 ) ( s t r i k i n g d o w n m u n i c i p a l o r d i n a n c e p r o h i b i t i n g s a n d t r u c k s f r o m u s i n g c e r t a i n s t r e e t s b e c a u s e t h e o r d i n a n c e a c t u a l l y i n c r e a s e d t r a f f i c a n d t h e r i s k o f a c c i d e n t s ) ; R o c k d a l e C n t y
. v
. M i t c h e l l ’ s U

s e d A u t o P a r t s , I n c
. , 2 5 4 S

. E

. 2 d 8 4 6 , 8 4 7 ( G a . 1 9 7 9 ) ( r e v e r s i n g l o w e r c o u r t r u l i n g t h a t z o n i n g r e q u i r e m e n t s w e r e f a c i a l l y u n c o n s t i t u t i o n a l , b u t r e m a n d i n g t o a l l o w t h e p l a i n t i f f t o s h o w t h a t t h e r e q u i r e m e n t s h a d n o r e a l a n d s u b s t a n t i a l r e l a t i o n s h i p t o p u b l i c h e a l t h a n d s a f e t y ) ; I n r e F l a
. B a r , 3 4 9 S o . 2 d 6 3 0 , 6 3 4

- 3 5 ( F l a . 1 9 7 7 ) ( p e r c u r i a m ) ( r e j e c t i n g m a x i m u m c o n t i n g e n c y - f e e s c h e d u l e t h a t f

a i l e d t o m e a n i n g f

u l l y a d d r e s s p r o b l e m o f e x c e s s i v e f e e s ) ; M c A v o y v
. H

. B

. S h e r m a n C o
. , 2 5 8 N

. W

. 2 d 4 1 4 , 4 2 2 , 4 2 7

- 2 9 ( M i c h

. 1 9 7 7 ) ( u p h o l d i n g l a w r e q u i r i n g e m p l o y e r s t o p a y 7 0 % o f w o r k e r s ’ c o m p e n s a t i o n a w a r d w h i l e a p p e a l o f t h e a w a r d w a s p e n d i n g ) ; D e p ’ t f o r N a t u r a l R e s
. & E n v t l

. P r o t

. v
. N o
. 8 L t d

. o f V a
. , 5 2 8 S

. W

. 2 d 6 8 4 , 6 8 6

- 8 7 ( K y . 1 9 7 5 ) ( s t r i k i n g d o w n l a w t h a t c o n d i t i o n e d t h e g r a n t o f s t r i p - m i n i n g p e r m i t s o n o b t a i n i n g t h e s u r f a c e o w n e r ’ s c o n s e n t b e c a u s e i t w a s i n e f f e c t i v e a s a n e n v i r o n m e n t a l

- p r o t e c t i o n m e a s u r e ) ; H a n d v
. H & R B l o c k

, I n c
. , 5 2 8 S

. W

. 2 d 9 1 6 , 9 2 3 ( A r k

. 1 9 7 5 ) ( s t r i k i n g d o w n m i n i m u m p r i c e f o r f r a n c h i s e a g r e e m e n t s b e c a u s e i t b o r e n o r e l a t i o n t o p u b l i c h e a l t h a n d s a f e t y ) ; L e e t h a m v
. M c G i n n , 5 2 4 P

. 2 d 3 2 3 , 3 2 5 ( U t a h 1 9 7 4 ) ( s t r i k i n g d o w n l a w r e s t r i c t i n g c o s m e t o l o g i s t s t o w o m e n ’ s h a i r ) ; M d

. S t a t e B d

. o f B a r b e r E x a m ’ r s v
. K u h n , 3 1 2 A

. 2 d 2 1 6 , 2 2 4

- 2 5 ( M d

. 1 9 7 3 ) ( s a m e ) ; C o l o e x r e l

. O r c u t t v
. I n s t a n t w h i

p D e n v e r , I

n c
. , 4 9 0 P

. 2 d 9 4 0 , 9 4 3

- 4 5 ( C o l o . 1 9 7 1 ) ( s t r i k i n g d o w n b a n o n s o - c a l l e d

“ f i l l e d m i l k ” p r o d u c t s b e c a u s e t h e b a n b o r e n o r e l a t i o n s h i p t o p r o t e c t i n g p u b l i c s a f e t y o r p r e v e n t i n g f

r a u d ) ; B r e n n a n v
. I l l

. R a c i n g B d

. , 2 4 7 N

. E

. 2 d 8 8 1 , 8 8 2

- 8 4 ( I l l

. 1 9 6 9 ) ( s t r i k i n g d o w n r e g u l a t i o n t h a t c o n d i t i o n e d a h o r s e t r a i n e r ’ s l i c e n s e o n h i s h o r s e s ’ d r u g - t e s t i n g r e s u l t s ) ; C o f f e e - R i c h , I

n c
. v
. C o m m ’ r o

f P u b

. H e a l t h , 2 0 4 N

. E

. 2 d 2 8 1 , 2 8 6

- 8 9 ( M a s s . 1 9 6 5 ) ( s t r i k i n g d o w n l a w b a n n i n g t h e s a l e o f i m i t a t i o n c o f f e e c r e a m b e c a u s e t h e l a w d i d n o t p r e v e n t f r a u d o r m a r k e t c o n f

u s i o n ) ; Z a l e - L a s V

e g a s , I n c
. v
. B u l o v a W

a t c h C o
. , 3 9 6 P

. 2 d 6 8 3 , 6 9 1

- 9 3 ( N e v . 1 9 6 4 ) ( s t r i k i n g d o w n l a w t h a t b o u n d t h i r d p a r t i e s t o n o n - c o m p e t e p r o v i s i o n s i n p r i v a t e c o n t r a c t s b e c a u s e t h e l a w d i d n o t p r o m o t e c o m p e t i t i o n ) ; B e r r y v
. K o e h l e r , 3 6 9 P

. 2 d 1 0 1 0 , 1 0 1 4

- 1 5 ( I d a h o 1 9 6 1 ) ( u p h o l d i n g r e g u l a t i o n o f d e n t a l p r o s t h e t i c s a s l i c e n s e d d e n t i s t r y b e c a u s e l i c e n s u r e m e a n i n g f

u l l y p r o t e c t e d t h e p u b l i c ) ; C h r i s t i a n v
. L a F o r g e , 2 4 2 P

. 2 d 7 9 7 , 8 0 4 ( O r . 1 9 5 2 ) ( e n b a n c ) ( s t r i k i n g d o w n f i x e d b a r b e r i n g p r i c e s b e c a u s e t h e y o n l y b e n e f i t t e d b a r b e r s , n o t t h e p u b l i c )

.

1 7Properties, L.P. , 218 S.W .3d 60, 65-66 (Tex. 2007); Garcia , 893 S.W .2d at 525-26; Limon v. State ,

947 S.W .2d 620, 627-29 (Tex. App.—Austin 1997, no writ); and Martin v. W holesome Dairy, Inc. , 437 S.W .2d 586, 590-600 (Tex. Civ. App.—Austin 1969, writ ref ’d n.r.e.)

. Courts apply ing this test, the Threa ders posit, lean heavily o n t h e fede ral rational basis test and often weig h evidenc e—including expert testimony —to deter

min e the purpose of a law and whether the law

enac ted to eff

ect that pur

pose is rea sonable. The Thr eade rs re fer ence the third standar d as “no evidence rational basis,” which they say is embodied in case s such as Barshop , 925 S.W .2d at 625, 632-33; Garcia v. Kubosh , 377 S.W .3d 89, 98-100 (Tex. App.—Houston [1st Dist.] 2012, no pet.); Lens Express v. Ewald , 907 S.W .2d 64 (Tex. App.—Austin 1995, no writ); and Texas Optometry Board v. Lee Vision Center , In c. , 515 S

. W.2d 380, 385-86 (Tex. Civ. App.—Eastland 1974, writ ref ’d n.r.e.)

. Under the no-evide nce version of the rational basis test, they arg ue, economic reg ulations do not violate Section 19 if they have any conce ivable justification in a leg itimate state interest, reg ardle ss of w h e th e r the justification is advanc ed by the g overnme nt or “invented” by the revie w in g court, and evidenc e “seldom” matters. The Threa ders say both the “re al and substantial” and “ra tional basis including consideration of evidenc e” standards have two prong s, with the first being the primary differ ence betwee n them. The first prong of the rea l and substantial standard, they maintain, is whether the challeng ed statute

or reg ulation has a rea l and substantial connec tion to a leg itimate g overnme nt al o b j ec tive. They

con t ra s t t h at test with the rational basis including consideration of evidenc e standard, which they
arg ue is more lenient and favora b l e t owar d the gover nment beca

use i t asks onl y whether a st atute

or reg ulation arg uably could bear some rational rela tionship to a leg itimate g overnme ntal objective.
1 8They further maintain that for both standards the second prong is whether , on balanc e, the challeng ed

statute or rule imposes an arbitra ry or unduly harsh burden on t h e ch al l en ger in light of the
g overnme nt’s objective.
I n light of the parties’ contentions, we first briefly revie w the history of the due course of law lang uag e in Article I , § 19. B. Developm ent of the Stand ard The Dec lara tion of Rights of the 1836 Republic of Texas Constit ution in c lu d e d th ree separ ate rig hts g uara

n t ee i n g “due course of law” or the “due course of the law of the land”: (1) the six th, which (among other protec tions) preve nted an acc used i n a criminal proce eding from being “depr ived of life, liberty , or prope rty , but by due course of law”; (2) t he eleventh, which provided that an injured person “shall have reme dy by due course of law”; and (3) the seventh, which provided that “[n] o citizen shall be deprive d of privileg es, outlawed, exil ed, or in any manner disenfra nchised, except by due course of the law of the land.” R E P
. O F T E X
. C O N S T
. O F 1836, Dec lara tion of Rights 6-7, 11, reprinted i n 1 H. P

. N. Gammel, The Laws of Texas 1822-1897 , at 1083 (Austin, Gammel Book Co. 1898).
I n 1845, a g roup of deleg ates met to dr aft and propose Texas’s first state constitution. The committee resp o n sible for draf ting the Bill of Rights proposed including two due course of law clause s—not the three clause s in the Dec lara tion of Rights of t h e 1 8 36 Republic of Texas Constit ution. Comm. on Bill of Rights & Gen. Provisions, Journals of the Convention, Assembled
at the City of

Austin on the Fourth of

July, 1845, for the Purpose of Framing a Constit ution for the State of Texas , assembled J uly 11, 1845, at 34 (Austin, Mine & Crug er 1845), availabl e a t
1 9http:// tarlton

. law.utexas.edu/constitutions/ texas1845/j ournals. One of the sug g ested clause s

protec t ed an i n

j u red party ’s rig ht to have “re medy by due course of law.” Id. The other clause incorpora ted the criminal due course of law protec tions from Section 6 of the Republic’s Dec lara tion of Rights into a composite due cour se g uara ntee: “No citizen of this state shall be deprive d of life, liberty , proper

ty , or privil eg es, out lawed, exi led, or in any man n er disenfranc hised, except by due

course of the law of the land.” Id. Thus, the committee’s proposal added “life, liberty , proper ty ” to the exis ting due course of law g uara ntee, while removing the same phrase from the protec tions for the criminally acc used. Id. The proposal also ad d ed “o f t his state” after the word “citizen.” The proposal wa s ratified a s Article I , § 16 of the Te x as Constitut ion of 1845. The lang uag e in the Due Course of L aw Clause was not chang ed in the Texas Constit utions adopted in 1861, 1866, and 1869. See T E X
. C O N S T
. O F 1861, art. I , § 16; T E X
. C O N S T
. O F 1866, art. I , § 16; T E X
. C O N S T
. O F 1869, art. I , § 16. But the Constitutional Convention of 1875 re examined the clause and proposed chang ing it to its curr ent lang uag e. Comm. on Bill of Rights, Journal of the Constit utional Convention of the St ate of Texas, Begun and H

eld at the City of Austin, Septembe r 6th, 1875 , assembled Oct. 2, 1875, at 274 (Ga lveston, Ne ws Of fi ce 1875), available at h tt p :/ /t a r lt o n . la w . utexas.edu/consti tu

ti o n s /t e xa s 1 8 7 6 /j o u

r n a ls

. T h e p r o p o s a ls w e r e a d o p te d , r e s u lt in g in the clause rea ding a s it now does. See T E X
. C O N S T . art. I , § 19. I n 1873, two y ear s befor e the convention t h at proposed the 1875 Texas Constit ution, the United States Supreme Court interpre ted the phrase “privileg es or immunit ies” in the United States Constit ution in the Slaughter-House Cases , 83 U.S. 36 (1873). There , sever al butcher s challeng ed

a L ouisiana statute g ranting a single slaug htering company a monopoly on the butcher ing of animals
2 0i n New Orlea ns. Id. at 38-39. The statute was challeng ed under the Thirteenth and Four teen t h Amendments to the fede ral Constit ution. Id. at 58-59. I n reje cting the butcher s’ claims, the Court discerne d a distinction in the text of the Four teenth Amendment b etwee n the “privileg es and immunit ies of citizens o f t he United States” and those of “citizens of the sever al states,” and conclude d that the Four

teenth Amendment protec ted only privileg es and immunit ies whi ch owed their exis tence to the fede ral g overnme nt. Id. at 74, 78-79. I t was the obliga tion of the states,

acc ording to the Supreme Court, to protec t “privileg es or immunit ies” founded in state citizenship, including even such fundame ntal rig hts as t he ri gh t to acquir e and possess proper ty and to pursue and obtain happiness and safe ty

. Id. at 74-78. Thus, discussions pr ece ding proposal and adoption of the 1875 Texas Constitution we re held ag ainst the backdr op of rec ent Supreme Court ma ndates placing g uardia

nship of non-fe dera l rig hts of individuals square ly in the hands of the states. See D E B A T E S I N T H E T E X A S C O N S T I T U T I O N A L C O N V E N T I O N O F 1875, 292 (Seth S. McKa y ed., Univ. of Tex. 1930). Ratification of the Four

teenth Amendment to the United States Constit ution in 1868 seeme d
to hasten development of substantive due proce ss jurispruden ce . See T H O M A S M. C O O L E Y , A T R E A T I S E O N T H E C O N S T I T U T I O N A L L I M I T A T I O N S W H I C H R E S T U P O N T H E L E G I S L A T I V E P O W E R O F

T H E S T A T E S O F T H E A M E R I C A N U N I O N 354-56 (1868). The view i n T ex as was the same, as exemplified by case s such as Milliken v. City Council of W eatherford , 54 Tex. 388 (1881). There 3 the Court addre ssed a claim by Weatherf ord’s may or that he had been improperly remove d from

A s t o p r o c e d u r a l d u e p r o c e s s r e l a t i o n s h i p s b e t w e e n t h e F o u r t e e n t h A m e n d m e n t a n d A r t i c l e I , § 1 9 , s e e C i t y 3
o f S h e r m a n v
. H e n r

y , 9 2 8 S

. W

. 2 d 4 6 4 , 4 7 2

- 7 3 & n . 5 ( T e x . 1 9 9 6 ) ( c i t i n g U n i v
. o f T e x
. M e d

. S c h

. v
. T

h a n , 9 0 1 S

. W

. 2 d 9 2 6 , 9 2 9 ( T e x . 1 9 9 5 ) ) , a n d M e l l i n g e r v
. C i t y o f H o u s t o n , 3 S

. W

. 2 4 9 , 2 5 2

- 5 3 ( T e x . 1 8 8 7 )

.

2 1office for violating a city ordinanc e that b ar re d re n t ing rooms to prostitutes without respe ct to

whether the rooms wer e used for pr ostitut ion. Id. at 393. The Court c oncluded that the city could not pr ohibit prostitutes as a class from renting rooms beca use such action would be “unre asonable and i n co ntrave ntion of common rig ht.” Id. at 394. Although the Court did not mention “due

course ” or “due proce ss” of law, its su p p o rt i n g ci t ations included Article I , § 19. See id. And in Houston & Texas C en t r a l Railway Co. v. City of Dallas , 84 S.W

. 648 (Tex. 1905), the Court considere d the constitutionalit y of a municipal ordina nce g overning railroa d crossing g rade s. The Court expl ained that it may often become nece ssary for courts, having proper reg ard to the constitutional safe g uard

. . . , to inquire as to the exis tence of the fac ts upon which a g iven exercise of the [pol ice] power rests, and into the manner of its exercise, and if there has been an invasion of proper

ty rig hts under the g uise of this po we r, wi thout justify ing occa sion, or in an unrea sonable, arbitra ry , and oppressive way , to g ive to the injured party that protec tion which the Constitut ion secure s. Id

. at 653. I n acc ord with de cisions from the United States Supreme Court, this Court r ejec ted the city ’s contention that a leg islative judgme nt was conclusive. Id. at 653-54. The Court deter mined that the lower courts err ed by upholding the ordinanc e without providing the railroa d an opportunity to present e vidence reg arding the unre asonable ness of the or dinance

. Id. Texas judicial decisions in th e n in e teenth and ear ly twentieth centur y indicated that the Texas Due Course of L aw Clause and the fe d er al Du e Process Clause wer e near ly , if not exactly , coextensive. Such decisions g ener ally trac ked the thinking expressed by the Court in Mellinger v. City of Houston , 3 S.W

. 249, 252-53 (Tex. 1887), wher e the Court held that Article I , § 19 was not violated under the fac ts of that case beca use of the United States Supreme Court’s interpre tation of

2 2the Four

teenth Amendment in a simil ar case . During this period, Texas courts fre quently addre ssed whether a leg islative enac tment was a proper exercise of the g overnme ntal unit’s police power , examining justifications for the enac tment and ty pically rely

ing on decisions from the United States Supreme Court as g uidance

. See, e.g. , Mabee v. McD onald , 175 S.W

. 676, 680 (Tex. 1915) (“‘ Due
proce ss of law,’ as u s ed i n t h e fourtee nth amendment, and ‘due course of the law of the land,’ as used in A rticle I , § 19, of the Constit ution of Texas, .

. . acc ording to the g rea t w eig ht of authority ,
are , in near ly if not all respe cts, prac tically sy nony mous.”), rev’ d on other grounds , 243 U.S. 90, 92 (1917) (holding t h at fede ral Due Process Clause was violated); St. Louis Sw. Ry. Co. of Tex. v. Griffin , 171 S.W

. 703, 704-07 (Tex. 1914) (holdin g s ta tu te im p a ir ing corpor ation’s rig ht to discharg e employ ees at will violated liberty of contra ct protec ted by both fede ral and state Constit uti o n s); Bruhl v. State , 13 S.W .2d 93, 94-95 (Tex. Crim. App. 1928) (s t atute prohibiting non-optometrist

merc hant from a ssisti ng a customer in purcha se of e y eg lasses violated both Article I , § 19 and the Four teenth Amendme n t ). Occ asionally , Texas courts mentioned that a proper revie w involved examining the ena ctment for a “re al or substantial” r elationship to the g overnme nt’s police powe r interest in public health, morals, or safe ty —a standard consistent with decisions of the United States Supreme Court. See, e.g ., Ex parte Flake , 149 S.W

. 146, 148-50 (Tex. Crim. App. 1911) (quoting Mugler v. Kansas , 123 U.S. 623 (1887)). As to fede ral due proce ss standards, this period befor e 1935 is sometimes ref err ed to as the

“ Lochner period” in ref

ere nce to the United States Supreme Court’s decision in Lochner v. New Y ork , 198 U.S. 45 (1905). There , the Court considere d a statute reg ulating the number of hours that baker s could work, enac ted ostensibly for the purpose of protec ting the health of baker s. Id. at 45-
2 347, 58. The Court deter mined that the leg islatively decla red purpose for an en ac tment could be disreg arde d by

a cour t review ing c halleng es to the statute and tha t [t ]he purpose of a statute must be deter mined from the natura l and leg al eff ect of the lang uag e employ ed; and whe ther it is or is not repug nant t o the C onstitut ion of t he United States must be deter mined from the na tural ef fec t of such statutes whe n put into operation, and not fr om their procla imed purpose. . . .

. . . [T] his section of the statute

. . . has no such direc t rela tion to, and no such substantial effe ct upon, t he health of t he employ ee, as to justi fy us in reg arding the section as r eally

a hea lth law. Id

. at 64. The Court held that the law was intended only “to reg ulate the hours of labor betwee n the
master and his emp l o y ee s ” d espite the leg islature’s stated purpose of conce rn for the health of baker s. Id. Be cause the Four teenth Amendment did not permit such a reg ulation without a leg itimate health and safe ty justification, the Court struck down the law. J ustice Holmes, in dissent, advanc ed a muc h more de fer ential standar d of re view: We [have] said that the power of the courts to revie w leg islative action in respe ct of a matter aff

ecting the g ener al welfa

re exis ts only when that which the leg islature has done com es within the rule that, if a statute purporting to have been enac ted to protec t the public health, the public morals, or the public safe ty h as n o re al or substan tial rela

tion to those objects, or is, bey ond all question, a plain, palpable invasio n o f ri gh t s s ecur ed by the fundamental law .

. . . If there be doubt as to the validity of the statute, that doubt must therefore be resolved in favor of its validity, and t h e courts must kee p their hands off, leaving the legislature to mee t the responsi b i l ity for unwise legislation. If the end which the legislature seek s to accom plish be one to which its power exte nds, and if the means employe d to that end, although not the wisest or best, are yet not plainly and palpably unauthorized by law, then the court c annot interfere. Id. at 68 (Holmes, J., diss enting ) (e mphasis added) (interna l quotation marks omitted). The Court rema ined within the bounds char ted by Lochner for sever al y ear s. See, e.g. , Mey er

v. Nebraska , 262 U.S. 390 (1923); N.Y

. Life Ins. Co. v. Dodge , 246 U.S. 357 (1918); Truax v. Raich ,

2 4239 U.S. 33 (1915); Coppage v. Kansas , 236 U.S. 1 (1 9 1 5 ), o ve rruled in part by Phelps Dodge

Corp. v. Nat’l Labor Relations Bd. , 313 U.S. 177, 187 (1941); Adair v. United States , 208 U.S. 161 (1 9 0 8 ), o ve r ruled in part by Phelps Dodge Corp. , 313 U.S. at 187. Ba sically , then, during th e

“ Lochner era ,” substantive due proce ss was a touchstone by which courts analy zed both the purpose and the eff

ect of g overnme ntal economic reg ulation by scrutinizing them with a somewhat equivoca l defe renc e to the leg islative body ’s pronounce d purpose for a law and its choice of the method embodied in the law to a chieve that purpose. The fede ral landsca

pe chang ed in 1938. I n United States v. Carolene Products Co. , 304 U.S. 144 (1938), the Supre me Court pronounce d that
reg ulatory leg islation aff ecting ordinary commerc ial t ra n s actions is not to be pronounce d unconstitutional unless in the light of the fac ts made known or g ener ally assumed it is of such a char acte r as to prec lude the assumption that it rests upon some rational ba sis. Id. at 152. Ensuing fede ral decisions trac ked Carolene Products ’ g uidance that economic reg ulatory laws were presumed to be constit utional absent evidence or j udicially known fact s d em o n s trating that no rational basis exis ted for the reg ulation. For example, in 1955 in W illiamson v. Lee Optical of Oklahoma, Inc

. , the Supreme Court e x plained that [t ]he day is g one when this Court uses t h e Du e P ro cess Clause of the Four teenth Amendment to strike down state laws, reg ulatory o f business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particula r school of thoug ht. 348 U.S. 483, 488 (1955). Texas courts wer e fac ed with the question of whether , afte r Carolene Products , to stay the

course as to prior decisions interpre ting Article I , § 19’s due course of law provision, or follow the
2 5lead of

the United States S upreme Court as t o the Fourteenth Amendment’s Due Process Clause. That is, Tex as courts had to decide whether “due proce ss of law,” as used in the Four teenth Amendment, and “due course of law of the land,” as used in Article I , § 19 of the Texas Constit ution,

rema ined “in near ly if not all respe cts, prac tically sy nony mous,” or whether the meaning of the Texas Constit ution r e ma in e d the same as it had been ear lier interpre ted beca use the Constit ution’s lang uag e had not bee n amende d throug h the pol itical proce ss. See Mabee , 175 S.W

. at 680. As the par ties
to this case —and numerous Texas courts and commentators—ha ve pointed out, the answe r has not been ma de cle ar a s to substantive due proce ss challeng es to g overnme ntal reg ulation of ec onomic interests. As set out more fully above, the Threa ders arg ue that in some case s this Court as well as 4
courts of appea ls have continued using a less defe rential, heig htened- scrutiny standard of review, while in some ca ses diffe rent one s have be en applied. Following the lead of our prior jurisprudenc e, we conclude that the Texas due course of law protec tions in Article I , § 19, for the most part, align with the protections found i n t h e Four teenth Amendment to the United States Constit ution. But, that having been said, the draf ting, proposing , and adoptin g o f the 1875 Constit ution was acc omplished shortly afte r the United States Supreme Court decision in the Slaughter-House Cases by which the Court put the responsibility for protec ting

a larg e seg ment of individual rig hts direc tly on the states. Given the temporal leg al context, Section 19’s substantive due course provisions undoubtedly wer e intended to bear at least some burden for

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. , T

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. v
. C i t y o f G a r l a n d , 4 3 1 S

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. 2 d 5 1 1 , 5 1 7

- 2 0 ( T e x . 1 9 6 8 ) ( h o l d i n g o r d i n a n c e 4
m u s t b e r e a s o n a b l e e x e r c i s e o f c i t y ’ s p o l i c e p o w e r , m e a n i n g o r d i n a n c e m u s t d i r e c t l y p r o m o t e t h e g e n e r a l h e a l t h , s a f e t y , w e l f a r e , o r m o r a l s , a n d m u s t h a v e a “ r e a l a n d s u b s t a n t i a l ” r e l a t i o n t o s u c h p u r p o s e ) ; S t a t e v
. R i c h a r d s , 3 0 1 S

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. 2 d 5 9 7 , 6 0 2 ( T e x . 1 9 5 7 ) ( e x p l a i n i n g i t i s e s s e n t i a l t h a t t h e p o l i c e p o w e r “ b e u s e d f o r t h e p u r p o s e o f a c c o m p l i s h i n g , a n d i n a m a n n e r a p p r o p r i a t e t o t h e a c c o m p l i s h m e n t o f , t h e p u r p o s e s f

o r w h i c h i t e x i s t s ” )

. 2 6protec ting individual rig hts that the United States Supreme Court deter mined wer e not protec ted by the fede ral Constit ution. That burden has been rec og nized in various decisions of Texas courts for

over one hundred and twenty -five y ear s. We continue to do so today : the standard of revie w for asapplied substantive due course challeng es to econ o mi c r e g ulation statutes includes an acc ompany ing consideration as reflec ted by case s ref ere nced a bove: whethe r the statute’ s eff ect as a whole is so

unrea sonably burdensome that it become s oppressive in rela tion to the underly ing g overnme ntal interest. See, e.g. , Mayhe w v. Town of Sunnyvale , 964 S.W .2d 922, 938 (Tex. 1998) (stating that an ordinanc e “wil l violate substantive due proce ss only if it is clearly arbitra ry and unrea sonable” ) (empha sis in orig inal); Garcia , 893 S.W .2d at 525 (dete rmining statute was “sufficiently r ational and reasonable t o m ee t constitutional due course requirements” ) (emphasis added) ; Trini ty Ri ver Auth. , 889 S.W .2d at 264 (identify ing statute as constitutional beca use it “strikes a fair balance ” betwee n the leg islat i v e p urpose and rig hts of litigants) (empha sis added) ; Hous. & Tex. Cent. Ry. Co. , 84 S.W

. at 653 (noting the constitutional inquiry was whether statute’s eff ect was justified, or opera ted in “an unrea sonable, arbitra ry , and oppressive way ”); Milliken , 54 Tex. at 394 (stating the

c o n s ti tu ti o n a l in q u ir y was whether statute opera ted “unre asonabl[y ] and in contra vention of commo n rig ht”).
I n sum, statutes are presumed to be cons t i t u t ional. To overc ome that presumption, the
p roponent of an as-a

pplied challeng e to an economic reg ulation statute under Section 19’s substantive due course o f l aw re q u irement must demonstrate that either (1) the statute’s purpose could not arg uably be rationally rela ted to a leg itimate g overnme ntal interest; or (2) when considere d

as a whole, t h e s t at u te’s actua l, rea l-world eff ect as applied to the challeng ing party could not
2 7arg uably be rationally rela ted to, or is so burde n s o m e as to be oppressive in light of, the
g overnme ntal interest. To be clea

r, the fore g oing standard includes the presumption that leg islative enac tments are constitutional, e.g. , Smith v. Davis , 426 S.W .2d 827, 831 (Tex. 1968), and place s a high burden on parties claiming a statute is unconstitutional. See, e.g. , Tex. Stat e B d

. o f Barber Exam’ rs v. Beaumont Barber Coll. , In c. , 454 S.W .2d 729, 732 (Tex. 1970). The presumption of constitutionalit y and the high burden to show unconstitutionalit y would apply as well to reg ulations adopted by an ag ency pursuant to sta tutory authority

. See Trapp v. She ll Oil C o. , 198 S.W .2d 424, 428 (Tex. 1946). Although whether a law is unconstitutional is a question of law, the deter mination will in most instances require the revie wing court to consider the entire rec ord, including evidenc e offe red by

the par ties. Garcia , 893 S.W .2d at 520. C. Application: Th e Texas Cosm etology Statute s and Regulations The Thre ad ers do not contend that the State’s licensing of the commerc ial prac tice of cosmetolog y is not rationally rela ted to a leg itimate g overnme ntal interest. But they strong ly urg e 5 that the number of hours of training require d to obtain even an esthetician license has an ar bitrary and unduly burdensome eff ect as applied to them beca use the 750-hour require ment has no rational

connec tion to rea sonable safety and sanitation require ments, which the State say s are the intere sts

T h e S t a t e h a s r e g u l a t e d t h e p r a c t i c e o f c o s m e t o l o g y s i n c e 1 9 3 5

. S e e A c t o f A p r . 2 5 , 1 9 3 5 , 4 4 t h L e g . , R

. S

. , 5
c h

. 1 1 6 , 1 9 3 5 T e x . G e n . L a w s 3 0 4 , 3 0 4

- 1 1 , r e p e a l e d b y A c t o f M a y 1 3 , 1 9 9 9 , 7 6 t h L e g . , R

. S

. , c h

. 3 8 8 , § § 1 , 6 , 1 9 9 9 T e x . G e n . L a w s 1 4 3 1 , 2 1 8 2

- 2 2 0 6 , 2 4 3 9

- 4 0 ( r e p e a l i n g f o r m e r A c t w h i l e a l s o a d o p t i n g t h e O c c u p a t i o n s C o d e )

. T h e s t a t e d i n t e n t o f t h e i n i t i a l l e g i s l a t i o n w a s t o “ p r e v e n t t h e s p r e a d i n g o f c o n t a g i o u s a n d i n f e c t i o u s d i s e a s e s . ” I

d

. a t 3 0 4 , 3 1 1 ( o b s e r v i n g t h a t t h e p u r p o s e o f t h e A c t w a s t o “ p r o t e c t t h e p u b l i c f r o m i n e x p e r i e n c e d a n d u n s c r u p u l o u s b e a u t y p a r l o r s a n d b e a u t y c u l t u r e s c h o o l s ” i n r e s p o n s e t o t h e p u b l i c b e i n g “ d a i l y e x p o s e d t o d i s e a s e d u e t o i n s u f f i c i e n t c a r e a s t o s a n i t a t i o n a n d h y g i e n e ” )

. 2 8underly ing its licensing of threa ders. I n resolving the issue, we consider the entire rec ord. Garcia ,

893 S.W .2d at 520. Severa l statutes addre ss safe ty standards and sanitary conditions rela tin g to c o s me to lo g y . See T E X
. O C C
. C O D E §§ 1602.001, 1603.001. Commi ssion rules also addre ss public safe ty and sanitary conditions. E.g. , 16 T E X
. A D M I N
. C O D E §§ 83.50(a) , .53(a) -(b) , .70(i), .71(b), .100-.115. To addre ss competenc y of cosmetolog ists in Texas, the L egi s l ature and Commi ssion have imposed specific educational and training requireme nts for cosmetologists, estheticians, an d s al on opera tors. T E X
. O C C
. C O D E §§ 1602.001, .254, .255, .257. To become a licensed esthetician, threa ders must take at least 750 hours of instruction in a Commi ssion-approve d training prog ram, id. § 1602.254(b)( 3), and take State-pre scribed prac tical and written examinations. See 16 T E X
. A D M I N
. C O D E §§ 83.20(a) (6), .21(c) , .21(e)

. Th o s e t ra i n i n g prog rams must devote at least 225 hours of instruction to fac ial
trea tments, clea

nsing, masking , and thera py ; 90 hou rs t o anatomy and phy siology ; 75 hours to elec tricity , machines, and rela ted equipment; 75 hours to makeup; 50 hours to orientation, rules, and laws; 50 hours to chemistry ; 50 hours to car e of clients; 40 hours to sanitation, safe ty , and first aid; 35 hours to manag ement; 25 hours to superf luous hair remova l; 15 hours to aroma thera py ; 10 hours
to nutrition; and 10 h o u rs t o color psy cholog y . Id. § 83.120(b). Commi ssion-approve d beauty schools are not require d to teac h threa ding techniques. The schools are require d to provide 25 hours of i n s t ru ction in superf

luous hair remova l, which encompa sses threa ding, but individual schools decide which tec hniques to te ach. The rec ord ref lects that few er than ten of the 389 Commissionapprove d Texas beauty schools teac h threa ding techniques, and only one of those devotes more than

a few hours to them. Fur

ther, threa ding techniques are not require d to be part of the mandated tests.
2 9Both the prac tical and written t ests are administered a nd score d by a thi rd-pa

rty testing firm. The firm’s testing g uidelines show that the prac tical examination is an hour and thirty minutes in leng th and inclu d es s an itation, disinfection and hair remova l, but does not include threa ding, althoug h a test-taker may elec t to remove six hairs from the model’s ey ebrow using threa d instead of tweezer s during part of the exam. Nor does the written examinat i o n i nclude questions as to threa ding techniques, althoug h it includes g lobally rele vant questions about sani ta ti o n , d is in f

e ction, and safe ty

. As shown above, of the 750 hours of require d instruction for an esthetician license, 40 are require d to be direc tly

devoted to sanitation, safe ty , and first aid. Id. But in a ddition, hy g iene and

s an i tation are cover ed as they rela te to four other portions of the curr iculum: fac ial t re at m en t , anatomy , rules and laws, and superf luous ha ir remova l. Hy g iene and sanitation are also addre ssed in the written and p ra ct i ca l licensing exams, along with other topics including disinfection and safe ty

. One arg ument the Threa ders make, which at its core chall e n g es the rationality of any require d training , is tha t the unlicensed prac tice of ey ebrow threa ding is simply not a threa t to public health and saf ety

. I n support of t he arg ument they ref ere nce their expert witness who s ubmitted a report addre ssing all of the available medical literature on ey ebrow threa ding, as well as her own empirica l

an al y s i s of the technique’ s safe ty

. Ba sed on her investiga tion and profe ssional experience wi t h
ey eb ro w threa ding, the expert conclude d that threa ding is safe and, from a medical perspe ctive, require s nothing more than basic sa nitation training. But the Threa ders’ expert also raised public health conce rns during her test i m o n y . S he testified that t h re ad i n g may lead to the sprea d of highly contag ious bacte rial and viral infec tions,
3 0including flat war ts, skin-colore d lesions known as mulluscum contag iosum, pink ey e, ringwor m, impetigo, an d s t aphy lococc us aure us, among others. She also ag ree d that failure to utiliz e appropr iate sanitation prac tices—for example, proper use of disposable materia ls, clea ning of work stations, eff

ective hand-w ashing techniques, and corr ect trea tment of skin irritations and abra sions—can fur

ther e x pose threa ding c lients to infection and disea se. M o v ing bey ond the arg

ument that threa ding does not pose health risks to beg in wi t h , t h e Threa ders contend that as many as 710 of the require d 750 training hours for an esthetician license

are not rela ted to proper ly training threa ders in hy g iene and sanitation, considering the activities they
actua lly perf

orm. The S tate arg ues t hat t he Threade rs gre atly exagg era te t he number of u n re l at ed hours, but conce des that as many as 320 of the curr iculum hours are not rela ted to activities threa ders
actua lly perf orm. Diffe rentiating betwee n ty pes of cosmetolog y prac tices is the prer og ative of the L eg islature and reg ulatory ag encie s to which the L eg islature proper ly delega t es au t h ority

. And it is not for
courts to sec ond-g uess their de cisions as to the necessity for and the ex tent of t raining that should be require d for differ ent ty pes of commerc ial service providers. But we note in passing that persons licensed to apply ey elash extensions—a specia lty involving the use of chemica ls and a high rate of adver se reactions—ar e required to un d er go o n ly 320 hours of training

. See id. We also note t hat when the T hrea ders f

iled suit, hair braide rs wer e require d to unde rg o only 35 hours of training , 16 of which wer e in health an d s af et y . See id. § 83.120(b). Hair braiding , howeve r, has since been dere g ulated by the L eg islature. See Act of May 13, 1999, 76th L eg ., R.S., ch. 388, § 1, sec.

3 11602.002(2), 1999 Tex. Gen. L aws 1431, 2186, repeale d by Act of May 22, 2015, 84th L eg ., R.S.,

H.B . 2717 (to be c odified at T E X
. O C C
. C O D E §§ 1601.003, 1602.003(b)( 8)). The fac t that approximately 58% of the minimum require d training hours are ar gu ab ly rele vant to the activities threa ders perf orm, while 42% of the hours are not, is deter minative of the
aspec t of the second p rong of the as-a pplied standard which asks whether the eff ect of the require ments as a whole could be rationally rela ted to the g overnme ntal interest. They could be. But the per centa g e must also be conside red a long w ith other fac tors, such as the qua ntitative aspec t of the hours repr esente d by

that perc entag e and the costs associate d with them when deter mining the other aspec t of the second prong —whether the licensing require ments as a whole are so burdensome

as to be oppressive to the Threa ders. Where the number of hours require d and the associate d costs

are low, the ratio of require d hours to arg uably rele vant hours is less important as to the burdensome question. But its importance incre ases as the require d hours incre ase. For example, if the statute and Commi ssion’s rules require d ten hours of training for a threa der to be licensed and 58 perc ent, or 5.8 hours, wer e arg

uably rele vant to what threa ders do, the burden of the irrele vant hours would weig h less heavily in deter

mining whether the eff

ect of the require ments as a whole on aspiring threa ders is oppressive. I n the case of the Threa ders, howeve r, the larg e number of hours not arg uably rela ted
to the actua l prac tice of threa ding, the associate d costs of those hours in out-of-poc ket expenses, and the delay ed employ

ment opportunities while taking the hours makes the number highly rele vant to whether the licensing require ments as a whole rea ch the level of being so burdensome that they are oppressive.

3 2The dividing line is not brig ht betwee n the number of require d but irrele vant hours that wo u ld

y ield a h ar s h , but constitutionally acc eptable, require ment and the number that would not. Even

assum ing that 430 hours (a number the Threa ders dispute) of the mandated training are arg uably rele vant to what commerc ial threa ders do in prac tice, that means threa ders are require d to underg o
t h e eq u i v alent of eig ht 40-hour wee ks of training unrela ted to health and safe ty as applied to threa ding. The parties disag ree about the costs of attendin g co smetology training require d for a license to pra ctice threading

. The Thr eade rs point to evidence that the cost ave rag es $9,000. The State say s the $9,000 cost is for private schools while public schools char g e only $3,500. Given the

rec ord as to the number of hours of training require d for subjects unrela ted to threa ding, our decision neither turns on, nor is altere d by , the exact cost. But the admittedly unrela ted 320 require d training hours, combined with the fac t that threa der trainee s have to pay for the training and at the same time lose the opportunity t o make money actively prac ticing their trade , leads us to conclude that the Threa ders h av e m et t heir high burden of proving that, as applied to them, the require ment of 750 hours of training to become licensed is not just unrea sonable or harsh, but it is so oppressive that it violates Article I , § 19 of the Te x as Constitut ion. IV. Response to the D issents The dissenting J ustices say four things that bear responding to. First, they say that measuring the eff ects of the provisions by an “oppre ssive” standard is to measure it by no standard at all. Post at ___ (He cht, C.J ., dissenting) ; post at __ (Guzman, J., di ssenting)

. The actua lity of the matter is that the standard they propose for measuring the eff ects of the provisions is for all prac tical purposes

no standard. The only way an enac tment could fail the test the dissenters advocate is if the purpose
3 3of the enac tment wer e completely mismatched with—that is, it bore no rational rela tionship to—the

provisions enac ted to eff ect it

. For example, assume in this case the rec ord demonstrated conclusively , or the S tate concede d, that the Threader s are rig ht and only 40 hours of the r equire d training are rele vant to safe ty and sanitation in perf orming threa ding. I t would not matter under the C H I E F J U S T I C E ’ S p ro p o s ed s t andar d. For under that standard, so long as at least some part of the require d training could be rationally rela ted to safe ty and sanitation, the entire 750 h o u rs are rationally rela ted beca

use the provisions as a whole “mig ht achie ve the objective.” Post at ___. The logic al re sult of such standar d would be that if the State w ere to require 1,500 or eve n more hours of training , the incre ased require ment would pass constitutional muster. Why is tha t so? Be cause if 40 hours of training might conce ivably eff ect the L eg islature’s purpose and be constitutional, then
any g rea ter number

that included that same 40 hours would also. Second, the C H I E F J U S T I C E ref ere nces a small minority of other states that require threa ders
to be licensed either expli citly or by g ener ally requiring licensing of those who commerc ially remove superf l u o u s hair. Post at ___. But the Threa ders neither contest the rationality of the State’s requiring t h em t o b e l i cense d, nor the require ment that they take training in subjects such as sanitation and hy g iene. What they contest is the excessiveness of the t raining require ments g iven the mag nitude of the irrele vant training

. And whether that excessive require ment violates the Texas Constit ution is not deter

mined by the rela tionship betwee n other states’ statutes and reg ulations and their re spective c onstitut ions. Third, the C H I E F J U S T I C E say s t h at articula ting and weig hing fac tors such as the cost and rele vance of the require d training in considering the constitutionalit y of the provisions is “g ener ally
3 4ref

err ed to as l egi s lating” and should not be done by judge s, post at ___, and J U S T I C E G U Z M A N

asser ts that any line draw ing in this case should be done by the L eg islature, post at __. But providing

s tandar ds for measuring the constitutionalit y of leg islative enac tments is not only a judicial
prer og ative—it is nece ssary in order to make the law predic table and not dependent on the proclivities of whicheve r judge or judge s happen to be considering the case . I ndeed, the dissenting J ustices would rea ch the result they propose by measuring the licensing provi sions ag ainst standards—the standards of “ra tional rela tionship” jurisprudenc e—just differ ent standards. Post at

___. Ex pressing fac tors by which a statute’s co n s t itutionalit y is to be measured and by which we

rea ch our decision is not leg islating; it is judging and providing g uidance for courts to use in future challeng es to statutes or re g ulations, which history tells us will come. Four th, the C H I E F J U S T I C E ref

ers to re discovering and unleashing “the Lochner monster” if leg islative enac tments are measure d ag ainst a standard other than the rational rela tionship standard. Post at ___. But as discussed above, Texas courts, including this Court, have expressed and applied various standards for considering as-a pplied substantive due proce ss claims for over a centur y . And it is those decisions on which the standards we set ou t t o d ay ar e b as ed. Surely if those case s repr esente d a “monster” running amuck in Te x as, this Court would have long ag o decisively dealt with it. Courts must extend g rea t defe renc e to leg islative enac tments, apply a strong presumption in favor of their v al i d i t y , and maintain a high bar for decla ring any of them in violation of the Constit ution. But judicial defe renc e is nece ssarily constraine d wher e constitutional protec tions are implicated.
3 5V. Conclusion

The provisions of the Texas Occ upations Code and Commi ssion rules promulg ated pursuant
to that Code requiring the individual Threa ders to underg o at least 750 hours of training in order to obtain a state lice nse bef

ore pr acticing commerc ial threa ding violate the Texas Constit ution. We reve rse the judgm en t of the court of appea ls and rema nd the case to the trial court for further proce eding s in acc ordanc e with this opinion.

________________________________________ Phil J ohnson J ustice

OP INION DELIVERED: J une 26, 2015

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