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City of New Braunfels v. Stop the Ordinances Please

Court of Appeals of Texas, Third District, Austin

May 18, 2017

City of New Braunfels, Texas, Appellant
v.
Stop The Ordinances Please; W.W. GAF, Inc., d/b/a Rockin "R" River Rides; Texas Tubes; Tourist Associated Businesses of Comal County; Union River, LLC, d/b/a Landa River Trips; Chuck's Tubes; Waterpark Management, Inc.; Tri-City Distributors, LP; and Stone Randall Williams, Appellees

         FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT NO. C2007-0387B, HONORABLE DON R. BURGESS, JUDGE PRESIDING

          Before Justices Puryear, Pemberton, and Bourland.

          OPINION

          Bob Pemberton, Justice.

         The City of New Braunfels appeals a final judgment from the district court striking down, as unconstitutional, the so-called "Disposable Container Ordinance" (a/k/a "Can Ban") and a portion of the "Cooler and Container Ordinance." The City argues chiefly that the district court lacked subject-matter jurisdiction to decide the legal challenges that have been brought against the ordinances. Although this Court previously rejected jurisdictional arguments raised by the City at earlier junctures in this case, the City's arguments now-which emphasize historical limitations on the power of civil courts to decide challenges to penal laws-differ from those that were the primary focus of the earlier appeals. Based on the Texas Supreme Court's most recent binding precedents regarding limitations on civil court jurisdiction to decide challenges to penal laws, we must reverse and render judgment dismissing the challenges for want of subject-matter jurisdiction.

         BACKGROUND

         This appeal arises from the continuation of the underlying disputes and litigation that gave rise to the interlocutory appeals addressed in Stop The Ordinances Please v. City of New Braunfels, 306 S.W.3d 919 (Tex. App.-Austin 2010, no pet.) (STOP I), and City of New Braunfels v. Stop The Ordinances Please, No. 03-12-00528-CV, 2013 WL 692446 (Tex. App.-Austin Feb. 21, 2013, no pet.) (mem. op.) (STOP II). As detailed in those opinions, intense public debate regarding the perceived detriment versus benefit attributed to "tubers" on the Guadalupe and Comal Rivers has prompted the New Braunfels City Council to enact a succession of ordinances addressed to those issues in recent years.[1] These ordinances have included what is termed the "Cooler and Container Ordinance, " which in relevant part prohibits the possession of "coolers" with a capacity exceeding sixteen quarts "on or in the public waters of the portions of the Guadalupe River and Comal River that lie within the city limits."[2] Most recently, the City Council enacted, and the citizenry later approved by referendum, an ordinance that prohibits the possession of food or beverages in, or use of, a "disposable container" on or in the public waters of the Guadalupe River or Comal River (the "Disposable Container Ordinance, " but also popularly known as the "Can Ban").[3] Both ordinances (and others directed to tuber-related issues) have been met with lawsuits in district court alleging principally that the enactments are beyond the City's constitutional and statutory authority. The City challenged the constitutional standing of the plaintiffs to prosecute their claims, and the district court's rulings on these challenges were in turn the primary subject of the interlocutory appeals.

         In STOP I, the appeal was from a district-court order granting the City's plea challenging the standing of the plaintiffs in regard to ordinances that included the Cooler & Container Ordinance but not the Disposable Container Ordinance, which had not yet been enacted. The plaintiffs at that time included the current appellees-Stop the Ordinances Please (STOP), "'an unincorporated association of business owners and other parties interested in the use and enjoyment of the Comal and Guadalupe Rivers which flow within the corporate city limits of the City of New Braunfels'";[4] Rockin "R" River Rides and Texas Tubes, members of STOP that were outfitters engaged in the business of renting tubes and ice chests for use on the Comal and Guadalupe Rivers; and Stone Randall Williams, an individual who alleged that he had received a citation for violation of the Cooler & Container Ordinance while tubing on the Comal within the City limits.[5] At that juncture, the City had challenged only the sufficiency of the plaintiffs' pleading allegations and did not present evidence in an attempt to negate the facts alleged.[6] We held that the outfitters had sufficiently pleaded particularized injury from the Cooler & Container Ordinance distinct from that incurred by the general public to establish their constitutional standing to bring their claims challenging the cooler-size restriction.[7] In turn, we held that STOP had sufficiently pleaded its associational standing.[8] Accordingly, we held that the district court had jurisdiction to adjudicate the challenge by STOP and the outfitters to the cooler-size restriction in the Cooler & Container Ordinance, and we reversed and remanded the case as to that claim. However, we affirmed the district court's judgment in all other respects, including the dismissal of all of Williams's claims for want of subject-matter jurisdiction.[9]

         After the case was remanded to district court, the surviving plaintiffs filed an amended petition that incorporated their claims challenging the cooler-size restriction in the Cooler & Container Ordinance, added largely parallel claims challenging the Disposable Container Ordinance (which had been enacted in the meantime), and attempted to plead an alternative standing theory whereby the plaintiffs purported to restrain the City from "illegally expending taxpayer funds to exert its police powers to enforce city ordinances that violated the Constitution of the State of Texas."[10] A petition in intervention was also filed by the remaining appellees in the present case- Union River LLC d/b/a Landa River Trips; Chuck's Tubes; Waterpark Management, Inc.; Tri-City Distributors, L.P.; Tourist Associated Businesses of Comal County; and (again) Stone Randall Williams-who alleged claims and jurisdictional theories similar to those asserted by the remaining plaintiffs.[11] In response, the City interposed pleas to the jurisdiction challenging the constitutional standing of all plaintiffs to assert their claims concerning the Disposable Container Ordinance and challenging the intervenors' standing to assert any of their claims.[12] As in STOP I, the City challenged only the sufficiency of the pleading allegations and did not present evidence to negate the facts alleged, although the claimants filed evidence in response to the plea.[13] Following a hearing, the district court overruled the City's pleas to the jurisdiction in their entirety, and this Court in STOP II affirmed this ruling except as to the claims asserted by Williams. As to Williams, we reversed and remanded to provide him with an opportunity to replead.[14]

         After the case was remanded to district court, the parties conducted discovery and then presented competing motions for summary judgment with evidence that included affidavits and deposition excerpts. The City's summary-judgment grounds included both new challenges to jurisdiction and challenges on the merits. After a hearing, the district court signed an order granting appellees' motion for summary judgment, denying the City's motion for summary judgment, granting a permanent injunction, and rendering judgment awarding declaratory relief and attorney's fees, expenses, and costs against the City. In its judgment, the district court declared:

• The "Disposable Container Ordinance" and that part of the "Cooler Ordinance" "that limits the size of coolers" "unconstitutional and void"; and
• The City "is illegally expending taxpayer funds to enforce the Ordinances."

         The district court also permanently enjoined the City from enforcing, spending public funds, or collecting fines or any other penalties as to the Disposable Container Ordinance and the cooler-size restriction in the Cooler & Container Ordinance. This appeal followed.

         ANALYSIS

         In the City's first issue, it again challenges-albeit while emphasizing limitations different than the standing issues addressed in Stop I and Stop II-whether the district court possessed subject-matter jurisdiction over appellees' claims challenging the validity of the Disposable Container Ordinance and the cooler-size restriction in the Cooler & Container Ordinance. Whether a court has subject-matter jurisdiction is a question of law that we review de novo, [15] and "[t]he burden is on the plaintiff to affirmatively demonstrate the trial court's jurisdiction."[16] In the procedural posture of this appeal from a final summary judgment, we consider the parties' evidence to the extent necessary to resolve the challenged jurisdictional facts, [17] taking as true all evidence favorable to appellees and indulging every reasonable inference and resolving any doubts in their favor.[18]

         The jurisdictional challenge that the City now emphasizes is based on longstanding principles that generally permit Texas courts to adjudicate challenges to the validity of penal enactments only in the context of criminal proceedings.[19] This limitation derives historically from the traditional constraints on the power of courts of equity relative to courts of law, and more specifically from limits on equity jurisdiction to enjoin enforcement of the criminal law.[20] The underlying concept is that the opportunity to raise challenges to the validity of a penal statute as a defense to prosecution after committing a violation is ordinarily considered an "adequate" remedy at law, to the exclusion of equitable remedies and jurisdiction.[21] The Texas Supreme Court has also justified the limitation as a means of avoiding conflicting decisions by the two high courts in Texas's bifurcated judicial system.[22] And while historically rooted in the limitations on equity jurisdiction, the same principle has been held to limit jurisdiction over challenges to penal enactments brought under the Uniform Declaratory Judgments Act (UDJA), as the UDJA does not confer or alter the trial court's subject-matter jurisdiction except with respect to sovereign immunity, a distinct and independent jurisdictional limitation.[23]

         There is no dispute that both the Disposable Container and Cooler & Container ordinances are considered to be "penal" in nature-any person who violates the challenged prohibitions in the ordinances commits a misdemeanor offense and is subject to a fine.[24] Nor is there any question that appellees' challenges to the ordinances, which seek equitable and declaratory relief, would be subject to the aforementioned limitations on equity jurisdiction. But while acknowledging the general rule that would displace equity jurisdiction over their challenges, appellees bring their claims under color of a long-recognized exception that permits equitable relief (and by extension declaratory relief under the UDJA) where a penal enactment is (1) unconstitutional; and (2) said to threaten "irreparable injury to vested property rights."[25] We focus initially on the second requirement.

          "Property rights are created and defined by state law, "[26] and "include actual ownership of real estate, chattels, and money."[27] "A right is 'vested' when it 'has some definitive, rather than merely potential existence.'"[28] Thus, appellees would unquestionably possess a "vested property right" in the lawful possession of any disposable containers or coolers subject to the ordinances that they might own, either personally or (in the case of the businesses who are appellees) as inventory.[29]But this right does not automatically translate to a "vested property right" to use said property a particular way or in a particular location, [30] although these activities may be aspects of broader personal rights or liberties.[31]

         This Court recognized as much in both STOP I and STOP II. Although the primary focus of the parties' arguments and our opinions was the constitutional standing of the claimants, [32]we were also called upon to decide whether the district court had equity jurisdiction to decide Williams's claims, in light of the general rule prohibiting equitable challenges to penal laws, where he had allegedly been cited for violating each ordinance and faced prosecution.[33] We held in each case that Williams had failed to invoke the exception to the general rule because he had not alleged or proven irreparable injury to any vested property right from the City's enforcement of the ordinances' criminal penalties against him.[34] While Williams might have possessed a vested property right in the items themselves, the decisive consideration was that "Williams [had] no vested property right in carrying a cooler of a particular size into the Comal River or committing any of the other acts prohibited by the ordinance, " nor any "vested property right in transporting a 'disposable container' into the rivers."[35]

         Moreover, applying similar reasoning, this Court has also held that a fireworks vendor had no "vested property right" in the sale of its wares, so as to permit it to bring a declaratory-judgment action challenging a countywide burn ban (in Comal County, it happens) that had criminalized the vendor's sale, distribution, or use of fireworks.[36] In that case, Mr. W. Fireworks, Inc. v. Comal County, the Court relied on authorities that included our sister court's opinion in Morrow v. Truckload Fireworks, Inc.[37] In Morrow, the Eastland Court of Appeals addressed a fireworks company's suit for injunctive relief challenging a county's ban on the outdoor use of fireworks.[38] The company argued that it had a "vested property right in the operation of its fireworks business, " so as to support the trial court's jurisdiction over its claims.[39] The company's allegations included that the ban would destroy its business and cause an unrecoverable loss of income, and the evidence showed that the company had spent over $300, 000 on inventory, over $25, 000 for advertising, and over $25, 000 for leases and associated costs for locations within the county.[40]Although our sister court recognized that the company had a property right in the physical items that it owned such as its inventory, it determined that the trial court did not have jurisdiction over the claims challenging the validity of the ban. In reaching its conclusion, our sister court distinguished personal rights from property rights, noting that the "concept of personal rights is broader and includes the right to conduct a specific activity" and that the "right to conduct an activity, such as using property for a specific purpose, does not equate that personal right with a vested property right."[41] The court concluded that "tremendous financial loss, " even though tangible and significant, was "insufficient to constitute a vested property right because it represents losses due to restrictions on personal rights."[42] The court also noted that the fireworks ban did not prohibit the company from selling fireworks nor require it to surrender its inventory.[43]

         Although Williams remains a party, appellees do not contend at this juncture that he has suffered any irreparable injury to his vested property rights, so as to come within the exception. They rely instead on asserted injury to the "vested property rights" of the appellees that are engaged in the business of selling "disposable containers, " selling or renting coolers, or otherwise providing goods or services to river-bound customers. Their theory is not that they possess a "vested property right" to sell their wares, per se, that has been infringed by the ordinances, but that the ordinances inflict a broader range of economic harm to the value of their inventory and other business assets. Appellees emphasize evidence to the effect that the value of the businesses, real property, and inventory are tied to their locations near the rivers and the level of consumer demand from river-bound customers. They point to proof of lost sales of the coolers or disposable containers that the ordinances restrict, "loss of a customer base that diminishes their ability to sell or rent those items that are not otherwise restricted by the ordinance, " and "diminish[ed] value of the real property in that the restrictions are effective in driving away tourists, the mainstay of [appellees]' trade."

         Appellees' arguments emphasize a historical relationship between the requirement that a penal enactment threaten "irreparable injury to vested property rights" and the perceived "adequacy" of the alternative remedy of violating the enactment and raising invalidity as a defense in the criminal prosecution that follows.[44] For example, threatened injury from the prosecution in itself, such as the temporary interruption of one's use of property, has been considered remediable by a successful defense, so as to not meet the requirement.[45] In contrast, the requirement has been deemed met in situations where the government's enforcement of the penal law in question entails irremediable physical destruction or damage to real or personal property that would occur before the challenge could be litigated in a criminal proceeding.[46] Appellees, again, do not complain of this sort of physical destruction or damage to their property incident to the City's enforcement of the ordinances, nor of any direct limitations imposed on their sales of that property. Their arguments rest, rather, on a line of cases holding the requirement to be met based on various forms of economic harm to a business that are attributed to a penal law, coupled with a perceived inability of the business to challenge the law.

         This line of cases originated with an 1894 decision of the Texas Supreme Court, City of Austin v. Austin City Cemetery Association.[47] That case involved a suit for injunction brought by a cemetery to challenge the validity of a penal ordinance that had restricted permissible locations of burials in a manner that had excluded the cemetery's property.[48] While acknowledging that "as a general rule the aid of a court of equity can not be invoked to enjoin criminal prosecutions, " the supreme court observed that "[t]his rule is . . . subordinate to the general principle that equity will grant relief when there is not a plain, adequate, and complete remedy at law, and when it is necessary to prevent an irreparable injury."[49]

         The supreme court determined that the ordinance caused the cemetery "irreparable injury" because "the effect of the ordinance is such that if its enforcement be not restrained it may result in a total destruction of the value of [the cemetery's] property for the purpose for which it was acquired."[50] It further held that the remedy of violating the ordinance and raising invalidity as a defense was inadequate under the circumstances because the ordinance effectively made that remedy unavailable. While suggesting that this would have been the cemetery's remedy had the ordinance proscribed only the cemetery's burying of a body on its property, the court emphasized that the ordinance went further to sanction any person who "cause[d] to be buried, or in any manner aid or assist in the burial, " thereby deterring the customers whose participation would be essential to the cemetery's violation of the ordinance.[51] "[T]o deny a remedy in a court of equity" under such circumstances, the supreme court held, "would be . . . to disregard the fundamental principle upon which such courts are established."[52]

         Subsequently, in a 1958 case, Smith v. Decker, the Texas Supreme Court reached a similar holding with respect to an injunctive claim challenging a penal law requiring bail bondsmen practicing in certain geographic areas to obtain a license from the State.[53] The law had the effect, even in the absence of a pending prosecution, of preventing the plaintiffs (unlicensed bail bondsmen in a geographic area subject to the law) from conducting their business, as local authorities would no longer approve the bonds they signed as sureties.[54] Citing the Slaughter House cases, the supreme court observed "[t]hat a right to earn a living is a property right within the meaning of our Constitution was early established by the United States Supreme Court . . . and a person cannot be deprived of it by simple mandate of the legislature."[55] It then equated the circumstances created by the law to those in Austin City Cemetery Association, citing that case for the proposition that "if a city ordinance be void, and even though the city was not immediately seeking to enforce [the ordinance] through criminal proceedings, when the facts in the record show that the right and privilege of using their property for cemetery purposes was destroyed or impaired by virtue of the existence of the ordinance, " an injunction would issue.[56] It went on to hold that the suit came within the rule that "courts of equity may be resorted to for the purpose of enjoining the enforcement of a criminal statute or ordinance when same is void and when its enforcement invades a vested property right of the complainant."[57] The court reasoned that "[a]ppellants having a vested property right in making a living, subject only to valid and subsisting regulatory statutes, and being prevented from performing their business otherwise lawful but for the statute in question, we believe that we are permitted under the rule . . . to order the issuance of the injunction."[58]

         Relying on Austin City Cemetery Association, some of our sister courts have since held that courts have jurisdiction to entertain equitable or declaratory claims challenging the constitutionality of penal laws when predicated on somewhat lesser economic harms to a business, such as the inability to sell a particular product or at a particular location, at least where the law (as in Austin City Cemetery Association) proscribes conduct of both the business and its customers. These cases have included a challenge brought by the owner of a sexually oriented business to local penal regulations that effectively banned possession or consumption of alcoholic beverages in his establishment, [59] a challenge brought by "owners of tobacco accessory and novelty shops" against a penal ordinance banning sale or use of "illegal smoking paraphernalia" that criminalized ordinary pipes used to smoke tobacco, [60] a challenge brought by a company that manufactured, sold, and operated "trench burners" against a City of Austin penal ordinance that banned the devices' construction, operation, or use within city limits, [61] and a milk vendor's challenge to a municipal penal ordinance that specified minimum fat content for "Grade A" milk in a manner making it uneconomical for the business to sell that product there.[62]

         In appellees' view, this line of cases "demonstrate[s] that, for the past 100 years, Texas courts have found that an adverse economic impact on a business constitutes harm to a vested property right, " at least in circumstances where the business lacks an adequate remedy through criminal proceedings due to the deterrent effect on customers. In this regard, they suggest that the key consideration in Austin City Cemetery Association was not the existence of a "property right" or "vested property right" on the part of the cemetery, per se, but the cemetery's inability to obtain remedy for its economic injury except through its suit. They point to a subsequent Texas Supreme Court explanation of the case as having "rested on the premise that unless the courts of equity took cognizance of the cemetery's rights, there would be no way to ever test the constitutionality of the ordinance."[63] And the businesses find themselves in a parallel situation here, appellees insist, because they are suffering economic harm from the ordinances-including having "all of [their] inventory in disposable containers . . . rendered worthless, " which they equate to the cemetery property-yet cannot unilaterally violate the ordinances through their business activities in order to test their validity, and it is unlikely that their customers (or anyone else) will do so due to the deterrent effects of the criminal penalties. Appellees add that this deterrent effect on the businesses' customers and resultant unlikelihood of a challenge distinguishes this case from this Court's decision in Mr. W. Fireworks, emphasizing this Court's conclusion that the burn ban there imposed penalties only against the fireworks vendors and not its customers.[64] And while appellees acknowledge that the Morrow decision on which this Court relied had involved a penal burn ban that applied solely to the fireworks companies' customers, [65] similar to the ordinances here, appellees insist that the case was a wrongly decided outlier.

         But as the City urges, appellees must also grapple with the implications of the Texas Supreme Court's intervening decision in State v. Morales. That case concerned a 1990s-era suit for injunctive and declaratory relief seeking to invalidate, on constitutional grounds, Texas's criminal law proscribing sodomy.[66] The plaintiffs, who alleged they engaged in conduct prohibited by the statute, claimed injury in the form of stigmatization as well as harm to employment prospects due to the statute's existence, [67] and the State apparently stipulated generally that the statute resulted in limited job choices, discrimination, and psychological harm for the plaintiffs.[68] However, it was undisputed that the statute had never been enforced, nor likely would be, and thus there was no possibility that the plaintiffs could bring their challenge as a defense to a criminal prosecution following violation.[69] Thus, the key issues related to whether the character of the plaintiffs' alleged injuries and the absence of a remedy at law sufficed to establish jurisdiction over their claims in the face of the traditional principles limiting equity jurisdiction over penal statutes.

         The Morales court began by emphasizing "[t]he long-standing limitation on equity jurisdiction" that constrains power to construe a criminal statute only to "narrow circumstances."[70]The court posited that "[t]here are four types of cases in which a party might seek relief from an equity court based on the alleged unconstitutionality of a criminal statute:"

(1) the statute is enforced and the party is being prosecuted;
(2) the statute is enforced and the threat of prosecution is imminent, although the party has yet to be prosecuted;
(3) there is no actual or threatened enforcement of the statute and the party does not seek an injunction against its enforcement, but the statute is nonetheless integrally related to conduct subject to the court's equity jurisdiction; or
(4) there is no actual or threatened enforcement of the statute and no complaint of specific conduct remediable by injunction.[71]

         In the first two categories of cases, according to the Morales court, it was "well settled" that equity courts could intervene only if "the statute is unconstitutional and its enforcement will result in irreparable injury to vested property rights"; otherwise, a person's remedy is to "continue his activities until he is arrested and then procure his release by showing that the law is void."[72] It further asserted that the requisite "irreparable harm to property rights must flow from attempted enforcement of the statute."[73] In this connection, the court also characterized Austin City Cemetery Association as turning on the "potential enforcement" of the ordinance there against the cemetery owner, as opposed to the customers.[74]

         The supreme court also rejected any notion that injury to personal rights, as opposed to "vested property rights, " sufficed as a basis for a civil court's equity jurisdiction over criminal statutes.[75] Personal rights could suffice, the court explained, only in the third category of cases, where the validity of a criminal statute is litigated indirectly in the context of a civil proceeding having some independent jurisdictional basis, such as a challenge to an administrative rule or decision that implements the enactment.[76]

         The Morales court classified the plaintiffs' claims there as falling within the fourth category, where it concluded "equity jurisdiction is plainly lacking."[77] It dismissed any concern that the claimants lacked any remedy at law due to the unavailability of criminal proceedings, asserting that "equity jurisdiction does not rise or fall solely on the basis of the adequacy of their remedy at law."[78] In fact, the court made that concept a primary theme of the entire opinion, beginning with its first sentence: "Equity jurisdiction does not flow merely from the alleged inadequacy of a remedy at law, nor can it originate solely from a court's good intentions to do what seems 'just' or 'right;' the jurisdiction of Texas courts-the very authority to decide cases-is conferred solely by the constitution and the statutes of the state."[79]

         Morales represents the Texas Supreme Court's most recent substantive pronouncement regarding the limitations on equity jurisdiction to adjudicate challenges to penal enactments. And while Morales did not explicitly overrule any of the supreme court's prior precedents in that area, such as Austin City Cemetery Association, those authorities must now be viewed in light of the characterizations and analyses the Morales court has given them-and these serve to undermine appellees' proposed applications of those precedents.[80]

         Given Morales's apparent insistence that the relevant "irreparable injury to vested property rights" must flow from the actual or imminent enforcement of the penal statute against the claimant, [81] it is questionable whether the appellee businesses could ever meet the requirement, considering that the ordinances do not directly criminalize their trade in coolers or disposable containers. Relying on the same aspect of Morales, the Morrow court held that the fireworks company there could not, under color of Austin City Cemetery Association, challenge a county burn ban impacting only its customers.[82] But leaving aside this potential barrier to appellees, the upshot of Morales is that (1) the appellee businesses would have to demonstrate that the ordinances' enforcement against their customers has irreparably injured the businesses' vested property rights; (2) injury to any personal rights does not suffice; and (3) any perceived inability of the businesses to obtain remedy through criminal proceedings does not change that analysis. The appellee businesses cannot meet this standard for substantially the same reasons this Court identified in Mr. W. Fireworks.[83]

         Nor have appellees even shown the degree of economic injury deemed significant by the Texas Supreme Court in Austin City Cemetery Association and Decker. Although appellees presented evidence that supported some of their pleading allegations, including evidence of economic loss, reduced sales, lost profits, reduced tourism on the rivers, and lost business opportunity, [84] the evidence was undisputed that the ordinances do not prohibit, in the manner seen in those cases, any of appellees from operating their businesses, including selling disposable containers or renting coolers.[85] While the evidence showed that some of appellees have decided to change the product mix that they offer, the ordinances do not prohibit-and do not have the practical effect of prohibiting-the operation of any of their businesses.[86] Rather, the ordinances are directed to others' personal rights: they are limited to prohibiting any person from taking certain items on the Comal and Guadalupe Rivers within the city limits, regardless of whether the items were purchased or rented from appellees.

         While we recognize the businesses' frustration with the ordinances' economic impact upon them and the City's persistence in raising jurisdictional barriers to a merits-based resolution of their constitutional complaints, it remains that Morales is the law and that "[a]s an intermediate appellate court, we are not free to mold Texas law as we see fit but must instead follow the precedents of the Texas Supreme Court unless and until the high court overrules them or the Texas Legislature supersedes them by statute."[87] Until then, we are compelled to hold that the district court lacked jurisdiction to entertain appellees' claims.

         As an alternative basis to support the district court's subject-matter jurisdiction, appellees argue that their taxpayer standing supported the trial court's jurisdiction over their claims and that the City waived any challenge to the district court's jurisdiction on this basis by not raising or briefing the issue. Jurisdiction, however, cannot be waived.[88] Further, taxpayer standing represents an exception to the "general rule of Texas law" that a plaintiff show a particularized injury to establish his or her constitutional standing[89]-a jurisdictional requirement that is distinct and independent from the aforementioned jurisdictional limits on civil court's equity jurisdiction to address penal enactments.[90]

         Because we conclude that the summary-judgment evidence conclusively established that the district court did not have subject-matter jurisdiction over appellees' claims, we must sustain the ...


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