concurring and dissenting.
I agree with my colleagues’ decision overruling Postive’s first and second points of error. I believe, however, that the third point should also be overruled and the judgment affirmed. Therefore, I respectfully dissent.
The majority opinion states that Guth-mann’s motion did not address Postive’s challenge to the constitutionality of the statute. The majority concludes the trial court erred in dismissing the case without ruling expressly in that issue. I respectfully disagree.
Guthmann addressed Postive’s challenge to the constitutionally of the statute. He did so by asking for and winning a judgment based on the statute. That is an assertion by Guthmann, and a ruling by the trial judge, that the statute is constitutional.
Under both statutory law and common law, all statutes, including this one, are presumed constitutional, and the burden to show otherwise is on the challenger, i.e., Postive. Tex. Gov’t Code Ann. § 311.021(1) (Vernon 1998); Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 715 (Tex. 1990); Texas Nat’l Guard Armory Board v. McCraw, 126 S.W.2d 627, 634 (Tex. 1939). Thus, Guthmánn had no burden to prove the statute was constitutional. Positive had the burden to prove it was unconstitutional. Postive had the burden to prove it was unconstitutional. See Robinson v. Hill, 507 S.W.2d 521, 524 (Tex. 1974) (In suit to declare statute unconstitutional, plaintiff asserting statute’s unconstitutionality bears burden to prove that); Blair v. Razis, 926 S.W.2d 784, 788 (Tex. App.—Tyler 1996, no writ) (In declaratory judgment action, defendant asserting statute’s unconstitutionally bears burden to prove that.).
Moreover, Postive’s claim of unconstitutionality is in the nature of an affirmative defense, on which it would have the burden of proof under Tex. R. Civ. P. 94. Although Postive brought this lawsuit, Guth-mann asserted section 207.007 as a complete defense, and Postive’s defense to that statutory bar is unconstitutionality, which is “... any other matter constituting an avoidance or affirmative defense.” See Tex. R. Civ. P. 94. Unconstitutionality is the doctrine offered by Postive to avoid the effect of labor Code section 207.007. Thus, Postive had the burden of proof on the issue of unconstitutionality under rule 94, as well under the statutory and common law.
The majority remands “for further proceedings concerning Postive’s claim for declaratory relief challenging the constitutionality of [art. 207.007].” I think that is a mistake because Postive’s request for a declaratory judgment that the statute is unconstitutional is not a cause of action, but, rather, is a mere procedural remedy.
It is well settled that the declaratory judgment act is merely a procedural vehicle for presenting grievances for decision. Kadish v. Pennington Assoc., 948 S.W.2d 301, 303 (Tex. App.-Houston [1st Dist.] 1995, no writ). The declaratory judgment *884act does not confer any substantive rights; it is remedial only. Id. Thus, it seems inescapable to me that, by granting a judgment based on section 207.007, the judge denied the remedy of declaring the very same statute unconstitutional. Thus, no “claim for declaratory relief” remains pending.