dissenting.
I respectfully dissent. I would affirm on the basis of the district court opinion. United Home Rentals v. Texas Real Estate Commission, 548 F.Supp. 566 (N.D.Tex. 1982).
The Texas statute, if enforced as consistently interpreted and applied by the Texas *335administrative agency, in my view infringes on the plaintiffs’ first amendment rights. The plaintiffs are clearly aggrieved by that interpretation and enforcement in their own instances. Neither the Attorney General of Texas in his brief and argument in this court, nor the plaintiffs, argue that the statute is ambiguous, as the panel majority holds, and in my opinion no grounds exist for Pullman abstention — neither party raises the issue that the statute is not applied in accordance with its terms, see also district court, 548 F.Supp. at 570 (“No ambiguity in statute.”). Thus interpreted and applied by the agency authoritatively entrusted with its administration, the statute is, it seems to me, unconstitutional on first amendment commercial free speech grounds. See 548 F.Supp. at 571-75.
Insofar as the parties are concerned, the panel opinion mostly deals with non-issues. The res judicata-collateral estoppel issue, not even raised by the State, seems to me to involve ultra-technical concerns that, upon full reflection, would not justify application of res judicata or collateral estoppel without fundamental disregard of the functional purposes of those principles and of the principles that underlie the Federal Rules of Civil Procedure.
Application here of the Pullman principle, expressly eschewed by the appellant State, serves only to delay and fragment decision of the central issue squarely raised by this litigation: Are the plaintiffs aggrieved by the requirement that they or their employees obtain real estate licenses to engage in commercial free speech protected against governmental restriction by the first amendment of the federal constitution? Texas argues that they are not — that it is entitled to exact licenses from employees before permitting them to exercise the free speech rights here at issue, under the unambiguous terms of the statute as authoritatively construed and consistently applied by the Texas agency entrusted with its administration. That the licenses to the employees were granted by the state agency does not moot the plaintiffs’ claims, nor does it cast into doubt the still-asserted claim of Texas that licenses are unambiguously required by the Texas statute — unconstitutionally, the plaintiffs urge.
No grounds for Pullman abstention exist, in my opinion, and the panel is in error in not deciding on the merits the constitutional issue squarely posed to us.