Court of Appeals of Texas, Second District, Fort Worth
THE 17TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
WALKER, MEIER, and GABRIEL, JJ.
law requires any person who has committed certain sexual
offenses to register as a sex offender. See Tex.
Code. Crim. Proc. Ann. arts. 62.001(5), 62.051 (West Supp.
2016). In 2007, Appellant City of Westworth Village, Texas,
adopted an ordinance prohibiting any person required to
register as a sex offender because of an offense involving a
victim who was younger than seventeen from establishing a
residence within 1, 000 feet of any location where children
commonly gather. See Westworth Vill., Tex., Code of
Ordinances ch. 8, art. 8.07, § 8.07.032(a) (2016). A
violation of the ordinance constitutes a misdemeanor and
subjects violators to a fine not exceeding $500 for each day
a violation occurs. See id. ch. 8, art. 8.07, §
8.07.036. Appellee Texas Voices for Reason and Justice, Inc.
(TVRJ), a Texas nonprofit corporation, sued the City on
behalf of its members, claiming the ordinance violates the
state constitution. The City filed a plea to the
jurisdiction, arguing that TVRJ lacks standing to sue on
behalf of its members. The trial court denied the plea,
prompting the City to bring this accelerated interlocutory
appeal. See Tex. R. App. P. 28.1(a); Tex. Civ. Prac.
& Rem. Code Ann. § 51.014(a)(8) (West Supp. 2016)
(authorizing appeal of an interlocutory order granting or
denying a municipality's plea to the jurisdiction).
appeal, the City contends that TVRJ lacks standing for two
reasons. First, the City asserts that the individuals on
whose behalf TVRJ has filed suit are not members of, nor do
they possess indicia of membership in, TVRJ. And second, even
if TVRJ has members, the City maintains that TVRJ
nevertheless has failed to demonstrate that any of its
members would have individual standing to challenge the
ordinance. We conclude that TVRJ lacks standing because the
individuals on whose behalf it has filed suit are not members
of it and they do not possess sufficient indicia of
membership in it. We therefore reverse the trial court's
order denying the City's plea to the jurisdiction and
render judgment dismissing TVRJ's claims against the City
for lack of subject-matter jurisdiction.
STANDARD OF REVIEW
to sue is an element of subject-matter jurisdiction, and a
court that lacks subject-matter jurisdiction has no power to
decide a case. See Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547, 554 (Tex. 2000). Standing is determined at the
time suit is filed; if a plaintiff lacks standing at the time
suit is filed, the case must be dismissed, even if the
plaintiff later acquires an interest sufficient to support
standing. Martin v. Clinical Pathology Labs, Inc.,
343 S.W.3d 885, 888 (Tex. App.-Dallas 2011, pet. denied);
see also Tex. Ass'n of Bus. v. Tex. Air. Control
Bd., 852 S.W.2d 440, 446 n.9 (Tex. 1993) ("Standing
is determined at the time suit is filed in the trial court,
and subsequent events do not deprive the court of subject
matter jurisdiction."). A defendant may contest a
plaintiff's standing to sue by filing a plea to the
jurisdiction. See, e.g., Tex. Dept. of Parks and
Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004)
(recognizing that a challenge to a trial court's
subject-matter jurisdiction "is properly asserted in a
plea to the jurisdiction"). We review a trial
court's ruling on a plea to the jurisdiction de novo.
Houston Belt & Terminal Ry. Co. v. City of
Houston, 487 S.W.3d 154, 160 (Tex. 2016).
to the jurisdiction can contest a trial court's
subject-matter jurisdiction on two separate grounds: it can
challenge the plaintiff's pleadings or it can challenge
the existence of jurisdictional facts. See Miranda,
133 S.W.3d at 226-27; Univ. of Tex. at Arlington v.
Williams, 455 S.W.3d 640, 643-44 (Tex. App.-Fort Worth
2013), aff'd, 459 S.W.3d 48 (Tex. 2015).
plea to the jurisdiction challenges the pleadings, our task
is to determine whether the pleader has met his burden to
allege facts that affirmatively demonstrate the court's
jurisdiction to hear the cause. Miranda, 133 S.W.3d
at 226. We answer that inquiry by looking to the
plaintiff's pleadings, construing them liberally in favor
of the plaintiff and looking to the pleader's intent.
Id. Viewed through that lens, if the pleadings
contain facts that affirmatively demonstrate the court's
jurisdiction to hear the cause, the plea to the jurisdiction
should be denied. See id.; Kirby Lake Dev. v.
Clear Lake City Water, 321 S.W.3d 1, 3-4 (Tex.
App.-Houston [14th Dist.] 2008), aff'd, 320
S.W.3d 829 (Tex. 2010). If, however, the pleadings do not
affirmatively demonstrate the court's jurisdiction but
also do not affirmatively demonstrate incurable defects in
jurisdiction, the issue is one of pleading sufficiency, and
the plaintiff should be given an opportunity to amend.
Miranda, 133 S.W.3d. at 226-27. But if the
pleadings affirmatively negate the existence of jurisdiction,
a plea to the jurisdiction may be granted without allowing
the plaintiff an opportunity to amend. Id. at 227.
plea to the jurisdiction challenges the existence of
jurisdictional facts, we will consider evidence submitted by
the parties when necessary to resolve the jurisdictional
issues raised. Id. (citing Bland, 34 S.W.3d
at 555). In such cases, we will only consider evidence
relevant to the issue of jurisdiction. Bland, 34
S.W.3d at 555; see Miranda, 133 S.W.3d at 227. In
considering that evidence, we take as true all evidence
favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts in the nonmovant's
favor. Miranda, 133 S.W.3d at 228. If the evidence
creates a fact question on the issue of jurisdiction, the
trial court cannot grant the plea to the jurisdiction, and
the fact issue will be resolved by the fact finder.
Id. at 227-28. But if the evidence is undisputed or
fails to raise a fact question on the jurisdictional issue,
the trial court should rule on the plea to the jurisdiction
as a matter of law. Id. at 228.
our standard of review in mind, we turn now to the law of
THE LAW OF ASSOCIATIONAL STANDING
law provides that in certain circumstances, an association
may have standing to sue on behalf of its members. See
Tex. Ass'n of Bus., 852 S.W.2d at 446-47. To
determine whether an association has standing to sue on
behalf of its members under the Texas constitution, our
supreme court has adopted the three-pronged test the United
States Supreme Court articulated in Hunt v. Washington
State Apple Advertising Commission, 432 U.S. 333, 343,
97 S.Ct. 2434, 2441 (1977), that the federal courts apply to
analyze the issue of associational standing under the federal
Constitution. See Tex. Ass'n of Bus., 852 S.W.2d
at 447. Under that test, an association has standing to sue
on behalf of its members when "(a) its members would
otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the
organization's purpose; and (c) neither the claim
asserted nor the relief requested requires the participation
of individual members in the lawsuit." Id. at
447 (quoting Hunt, 432 U.S. at 343, 97 S.Ct. at
MEMBERSHIP AND ...