H. Tebbs, Inc. v. Silver Eagle Distributors, Inc.

POWERS, Justice,

dissenting.

I dissent.

The two other opinions concur on only one ground in reaching their judgment: that the district court lacked jurisdiction to issue its permanent injunction because Silver Eagle Distributors, Inc., the plaintiff, failed to exhaust its administrative remedies before bringing suit for such relief.

In view of the very narrow basis for the majority’s judgment, I will limit my remarks accordingly. I shall even assume the correctness of their theory that the district court lacked subject-matter jurisdiction for the reason stated. I do not agree with that theory, but assuming its validity permits me to state simply the controlling issue: assuming the district-court order to be voidable, for the reason given, may we hold it void in an appeal by Tebbs, the sole appellant here? I would hold the district court properly denied Tebbs’s intervention and, in consequence, Tebbs lacks standing to assail that court’s order on appeal.

THE AGENCY PROCEEDING

Southwestern Distributing Company held certain licenses and permits, issued by the Alcoholic Beverage Commission, authorizing Southwestern to conduct business as a beer distributor in an area near Houston. At a proper time, Southwestern applied to the Commission for renewal of its licenses and permits. Questioning the lawfulness of Southwestern’s capital-stock ownership structure, the Commission set the renewal applications as a “contested case” under the Texas Administrative Procedure and Texas Register Act (APTRA), Tex.Rev.Civ. Stat.Ann. art. 6252-13a, § 3(2)-(4), § 18 (Supp.1990). By virtue of these statutory provisions, “the legal rights, duties, or privileges” evidenced by Southwestern’s licenses and permits were in issue; conversely, *88“the legal rights, duties, or privileges” of no other person were in issue. APTRA § 3(2).

In the course of the agency proceeding, the Commission allowed Tebbs, Inc. to intervene in opposition to the renewal of Southwestern’s licenses and permits. Tebbs sells competing brands of beer in the same geographical area as that covered by Southwestern’s licenses and permits. By its intervention, Tebbs became a “party” in the contested case, but its own licenses and permits were not in issue. APTRA § 3(5).

Before reaching the stage of an “adjudicative hearing,” the Commission made an agreement with Southwestern to settle the controversy without a formal adjudication. Under the agreement, Silver Eagle Distributors, Inc., a new corporation, was formed with a capital-stock structure satisfactory to the Commission, and succeeded to Southwestern’s business, including its claim for renewal of its licenses and permits. Silver Eagle became a party to the agreement as well. As part of the agreed settlement of the controversy, the Commission issued a final order disposing of the case by issuing the renewal permits and licenses to Silver Eagle. The terms of APTRA § 13(e) specifically authorize the “informal disposition” of a “contested case by stipulation, agreed settlement, consent order, or default.” (Emphasis added.)

Tebbs did not consent to the informal disposition of the contested case. On learning of the agreed order, Tebbs moved for rehearing on various grounds, contending among other things that the order was invalid because it lacked Tebbs’s agreement. The Commission granted the motion for rehearing, then scheduled the case for a formal adjudicative hearing. Silver Eagle thereupon sued the Commission in district court, in the present cause, to enjoin permanently the Commission’s abrogating the agreement after its consummation.

THE LAWSUIT IN DISTRICT COURT

Silver Eagle and the Commission eventually agreed to the issuance of the permanent injunction by the district court. Before this was done, however, Tebbs filed in the lawsuit a petition in intervention. In that petition, Tebbs alleged two theories upon which Tebbs claimed an interest in the controversy: (1) Tebbs’s status as a “party” in the contested case in the agency; and (2) Tebbs’s status as a business competitor of Silver Eagle, in which interest Tebbs was “adversely affected by [Silver Eagle’s] operations under licenses and permits to which it is not lawfully entitled.”

Silver Eagle moved the district court to strike Tebbs's intervention on the ground that neither of the two asserted interests amounted to an interest sufficient for Tebbs to invoke the jurisdiction of the district court. Finding that to be true, the district court ordered that Tebbs’s petition in intervention be stricken. See 1 R. McDonald, Texas Civil Practice in District and County Courts § 3.47, at 314 (rev. 1981). From that ruling, Tebbs appealed after the district court issued its permanent injunction with the agreement of the Commission and Silver Eagle. The result of the district-court injunction is, of course, to revive the Commission’s agreed order issuing the licenses and permits to Silver Eagle. Neither Silver Eagle nor the Commission has appealed to this Court.

THE APPEAL TO THIS COURT

Tebbs and Silver Eagle join issue in this Court on the issue made by Silver Eagle's motion to dismiss the appeal: whether Tebbs lacks “standing,” or a personal interest in the controversy between Silver Eagle and the Commission, sufficient to invoke the judicial power of this Court. Silver Eagle contends Tebbs lacks standing in this Court, just as it did in district court where the lack of standing resulted in the striking of Tebbs’s petition in intervention.

Tebbs was not, of course, a party in the district-court lawsuit and the judgment rendered therein. Only a party may appeal to contend the district-court injunction is erroneous or voidable and therefore should be reversed. But no party has appealed. Tebbs was entitled to appeal on the point that the district court erred in striking Tebbs’s intervention, but Tebbs cannot assign error in the injunction order itself, or *89obtain its reversal for any reason, if Tebbs had no personal interest in the subject matter of the litigation or its petition in intervention was properly stricken for another reason. Gibson v. Richter, 97 S.W.2d 351 (Tex.Civ.App.1936, no writ); Southwell v. Church, 51 Tex.Civ.App. 547, 111 S.W. 969 (1908, writ dism’d).

The question of Tebbs’s standing is squarely raised by Silver Eagle’s motion to dismiss the appeal. One of the other opinions omits entirely to mention the issue; the other opinion declares, almost as an aside, that Tebbs’s status as a party in the agency proceeding gave Tebbs standing to sue in district court, citing King v. Olds, 71 Tex. 729, 12 S.W. 65 (1888) (intervention by purchaser under trustee’s sale, in trespass-to-try title action brought by one who purchased at sheriff’s sale, properly demurra-ble where former purchaser failed to show that latter purchaser had notice of lien foreclosed by trustee’s sale). The cited opinion is obviously not applicable in the present case. It is settled law, moreover, that one’s status as a party in an administrative proceeding does not, by virtue of that fact alone, confer upon him standing to sue in district court to reverse an agency action taken in that administrative proceeding.

THE ISSUE OF STANDING

It is fundamental that the separation-of-powers doctrine forbids any court to entertain complaints regarding the actions taken by an administrative agency except in two instances only: (1) where the power of review lies within the constitutional power given the courts in Article V of the Constitution of the State of Texas; and (2) where the legislature has, in a valid statute, authorized a party to invoke the judicial power of Article V in the form of a statutory cause of action brought to decide whether the agency action conformed to the statute under which it was purportedly taken. The first may properly be termed “constitutional judicial review,” the latter “statutory judicial review.”

To invoke the power of constitutional judicial review, the complainant must allege and show that the agency action violates his constitutional right or adversely affects his vested property right. Stone v. Texas Liquor Control Bd., 417 S.W.2d 385 (Tex.1967); City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788 (1951). Tebbs has not attempted to plead or show a violation of any constitutionally protected interest of that character. As a matter of law, no such interest of Tebbs’s is affected in this case because the record shows that only Silver Eagle’s licenses and permits are in issue, and the regulatory statute does not authorize the Commission to regulate directly the business competition engaged in by its licensees and permittees.

While the Alcoholic Beverage Code authorizes the Commission to refuse renewal or issuance of a license or permit on any one of 17 specific grounds, none of them purport to authorize such action on a ground that involves the regulation of any competitive aspects of the commerce conducted under the Commission’s licenses and permits, as some regulatory statutes do. Tex.Alco.Bev.Code Ann. § 11.46 (Supp. 1990); c.f Texas Motor Carrier Act, Tex. Rev.Civ.Stat.Ann. art. 911b, §§ 4, 5 (1964 & Supp.1990). Put quite simply, even the agency’s license-suspension proceedings do not put at risk an interest that comes within the doctrine of constitutional judicial review; consequently the license holder may not obtain from district court an injunction that restrains such a proceeding in the agency. Texas Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891 (Tex.1970). As a- matter of law, Tebbs’s petition in intervention did not come within the doctrine of constitutional judicial review.

To invoke the power of statutory judicial review, the complainant must bring his claim within the terms of the statute that creates the right and power of judicial review. City of Strawn v. Board of Water Engineers, 134 S.W.2d 397, 398 (Tex.Civ.App.1939, writ ref’d). Tebbs concedes in its brief that the right and power of statutory judicial review exist only with respect to the Commission’s action denying an application for a permit or license, or their *90renewal. Tex.Alco.Bev.Code Ann. §§ 11.-67, 61.81 (1978 & Supp.1990). Because an interest under a license or permit is not a vested property right, however, the Legislature was not obliged to provide for judicial review even in the case of such denials. Canyon Creek Land Corp., 456 S.W.2d at 895. It is undisputed in the present case that the Commission has not denied any application for a permit or license, or their renewal; consequently, the doctrine of statutory judicial review is not applicable in the case as a matter of law.

Tebbs contends purely and simply that its status as a party in the administrative proceeding, which status Tebbs acquired when allowed to intervene in that proceeding, is a sufficient interest in and of itself to require the district court to entertain and determine Tebbs’s complaints regarding the Commission’s actions. Under Tebbs’s theory, its party status alone gave it a right, enforceable in court, to have the agency proceeding brought to a regular and proper termination under the applicable statutes and Commission rules. Apparently, Tebbs views this theory as an exception to the general rule stated above that a court has no power to review agency proceedings except on the complaint of one who brings his claim within the doctrines of constitutional and statutory judicial review set out above. One of the other opinions in this appeal expressly adopts Tebbs’s theory; the other does so by necessary implication. The theory is legally untenable.

Tebbs’s view of such an “exception” renders absolutely meaningless the two constitutional doctrines, both of which are designed to maintain the required separation of government powers under the Constitution of the State of Texas. They are designed, that is to say, to preserve the autonomy and powers of the various organs in the executive, judicial, and legislative departments. If any person may have judicial review simply because he was admitted as a party to an executive-department proceeding, irrespective of whether he has any other interest in the controversy, then there can be no such doctrines as the two longstanding doctrines I have described.

It is sufficient, however, merely to point out that Tebbs’s theory was expressly rejected in Stone, 417 S.W.2d at 386. There, an individual intervened in a Commission proceeding under authority of a statute giving him the right to do so, provided he furnished security for costs. This statutory right to intervene gave him a status superior to that occupied by Tebbs whose intervention in the Commission proceeding was not by virtue of a right of any kind, but simply for the purpose of furthering the public interest by securing additional viewpoints or perhaps additional evidence to assist in the Commission’s adjudication of the controversy between Silver Eagle and Southwestern, on the one hand, and the State on the other. See Southwestern Bell Tel. Co. v. Public Util. Comm’n, 615 S.W.2d 947 (Tex.Civ.App.), writ ref’d n.r.e., 622 S.W.2d 82 (Tex.1981); 1 F. Cooper, State Administrative Law 325-328 (1965).

The intervenor in Stone opposed the issuance of a license to the applicant. After the administrative proceeding was determined in favor of granting the license, the intervenor sued for judicial review of the resulting agency order, making precisely Tebbs’s argument “that the statutory authorization to participate in the [administrative] hearing ... carries with it the right of appeal to the courts.” 417 S.W.2d at 386. The court rejected this theory explicitly, stating that the Alcoholic Beverage Code did not give a statutory right to judicial review to anyone in cases where licenses were granted; and “[t]he case is thus governed by the general rule mentioned above,” which was “that there is no right of appeal from an administrative order unless the statute provides for the same or unless the order violates a constitutional right or adversely affects a vested property right.” 417 S.W.2d at 385-86. The court’s holding is not remarkable; the rule it applies is well-settled and uniform.1

*91THE MEANING OF THE TERM “JUDICIAL REVIEW”

In an apparent reply to my dissenting on the basis of the familiar doctrines of constitutional and statutory “judicial review,” one of the other opinions has added the following:

This case was not brought to district court as a judicial review of agency action; rather, Silver Eagle went to district court seeking an injunction to restrain the Commission from further administrative proceedings instead of waiting for those proceedings to become final and then seeking judicial review of the final administrative proceedings.

The quotation indicates quite clearly that my understanding of the term “judicial review” is not shared by all the panel giving judgment in this appeal. This is, of course, quite unusual. Appeals proceed ordinarily under an assumed and agreed understanding that the applicable usages, terms, and expressions mean the same thing to all participants. Because that is not true respecting the term “judicial review,” and because the difference is apparently the only reason for rejecting my reliance upon the doctrines of constitutional and statutory “judicial review,” I must encumber this opinion by an explanation of my understanding of that term.

The term “judicial review” refers basically to the action of a court, an organ in the judicial department of government, when the court inquires into and possibly corrects the actions taken by a body or official in the legislative or executive departments. The separation-of-powers requirement of a constitutional instrument may or may not permit such action by the court, depending on the case. “The term ‘judicial review’ is commonly used to describe all forms of judicial scrutiny.” L. Jaffe, Judicial Control of Administrative Action, at 153 (1965).

In one context, the term “judicial review” refers, of course, to a court’s examining and determining the constitutionality of legislative enactments. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) (federal statutes); Ware v. Hylton, 3 U.S. (Dall.) 199, 1 L.Ed. 568 (1796) (state statutes). In the present context, the term “judicial review” refers to a court’s examining and determining whether the actions taken by an administrative agency, in the executive department of State government, comply with the constitutional, statutory, and rule-based provisions that governed the agency’s actions.

The cause of action in which a litigant requests “judicial review” and the timing of his action have nothing to do with the meaning of the expression, although they may have everything to do with whether “judicial review” is statutorily or constitutionally available to the litigant, just as his interest may bear on such availability. The quotation given above states the contrary — that this cannot be a case of “judicial review” because (1) Silver Eagle sued in district court for injunctive relief and (2) Silver Eagle sued before a final decision was reached in the Commission. This theory is offered as being self-validating; it is, however, quite novel.

“Judicial review” of the actions taken by government officials has always been available through application for such common-law writs as writs of injunction, mandamus, or certiorari. See, e.g., Westheimer Indep. School Dist. v. Brockett, 567 S.W.2d 780 (1978); Chemical Bank & *92Trust Co. v. Falkner, 369 S.W.2d 427 (Tex.1963); City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67 (1945); Arberry v. Beavers, 6 Tex. 457 (1851); Glascock v. The Comm’r of the General Land Office, 3 Tex. 51 (1848). These are, of course, the familiar causes of action employed to invoke the court’s power of constitutional “judicial review.” In addition, however, a litigant may request “judicial review” in a cause of action unknown to the common law — the Legislature may have provided for “judicial review” in the form of a statutory cause of action maintainable by one who has been adversely affected by an agency decision in a particular controversy. An example of this cause of action may be found in Tex.Alco.Bev. Code Ann. § 11.67 (1978 & Supp.1990). Another kind of statutory cause of action is that provided in the Texas Administrative Procedure and Texas Register Act (AP-TRA), Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 12 (Supp.1990). Section 12 of that statute authorizes “judicial review” of agency rules in a declaratory-judgment action brought in a district court of Travis County to determine the validity or applicability of such rules. There are a wide variety of statutes creating such statutory causes of action. They are customarily included by the Legislature in almost all the constitutive statutes creating and empowering State administrative agencies. These statutory causes of action are the means by which litigants invoke a court’s power of statutory “judicial review.”

Concerning the timing of suits for “judicial review,” the common-law doctrines of ripeness, exhaustion of remedies, and primary jurisdiction may preclude any premature suit for “judicial review;” or such review may be unavailable because the provisions creating a statutory cause of action limit such actions to suits that challenge the final decisions taken by the agency. The terms of APTRA § 19(a) so limit most such statutory causes of action. See generally Browning-Ferris, Inc. v. Brazoria County, 742 S.W.2d 43 (Tex.App.1987, no writ); see also Sun Oil Co. v. Railroad Comm’n, 158 Tex. 292, 311 S.W.2d 235 (1958) (“ripeness”); Sproles Motor Freight Line, Inc. v. Smith, 130 S.W.2d 1087 (Tex.Civ.App.1939, writ ref’d (“exhaustion”)). But the timing of a suit for “judicial review” does not determine whether the plaintiff’s allegations request the court to examine and correct an agency action. Indeed, the timing doctrines assume that he does.

I believe it indisputable that both Silver Eagle, by its suit for injunctive relief, and Tebbs, by its petition in intervention, requested “judicial review” of the Commission’s actions. Only Tebbs continues to request “judicial review” in this Court. Thus, we are called upon to determine only whether the power of “judicial review” exists with respect to Tebbs’s claim in light of the interest he asserts in making that claim.

In my view, the district court properly struck Tebbs’s petition in intervention because Tebbs lacked a personal stake in the controversy. Therefore, even if the district-court injunction order is voidable or erroneous, we may not hold it to be so on the complaint of Tebbs, the only person who assails the order in this Court.

. See, e.g., Sprunt & Son, Inc. v. United States, 281 U.S. 249, 255, 50 S.Ct. 315, 317-18, 74 L.Ed. 832 (1930) (the economic advantage enjoyed by shippers under existing rates charged by rail carriers justified the shippers’ intervention in an agency proceeding to change such rates, “[b]ut *91that interest alone did not give them the right to maintain an independent suit" in court to challenge the agency order because "[s]uch a suit can be brought by a shipper only where a right of his own is alleged to have been violated by the order [and] his independent right to relief is no greater where by intervention or otherwise he has become a party to the proceeding before the Commission or to a suit brought by a carrier.”); Pittsburg & West Virginia Ry. Co. v. United States, 281 U.S. 479, 486, 50 S.Ct. 378, 380, 74 L.Ed. 980 (1930) ("The mere fact that appellant was permitted to intervene before the Commission does not entitle it to institute an independent suit to set aside the Commission’s order, in the absence of resulting actual or threatened legal injury to it.”); see also Independent Investor Protective League v. S.E.C., 495 F.2d 311, 313 (2d Cir.1974); Kansas-Nebraska Natural Gas Co. v. State Corp. Comm’n, 205 Kan. 838, 473 P.2d 27, 30-31 (1970); Hartford Distrib., Inc. v. Liquor Control Comm’n, 177 Conn. 616, 419 A.2d 346, 348 (1979).