Texas Right to Life and John Seago v. Allison Van Stean; Planned Parenthood of Greater Texas Surgical Health; Planned Parenthood South Texas Surgical Center; Planned Parenthood Center for Choice; Bhavik Kumar, M.D.; North Texas Equal Access Fund; Lilith Fund for Reproductive Equity, Inc.; the Afiya Center; Fund Texas Choice; West Fund; Frontera Fund; Clinic Access Support Network; The Bridge Collective; Monica Faulkner; Michelle Tuegel; Ghazaleh Moayedi, D.O.; And Jane Doe ( 2024 )

Supreme Court of Texas
══════════
No. 23-0468
══════════
Texas Right to Life and John Seago,
Petitioners,
v.
Allison Van Stean; Planned Parenthood of Greater Texas
Surgical Health; Planned Parenthood South Texas Surgical
Center; Planned Parenthood Center for Choice; Bhavik Kumar,
M.D.; North Texas Equal Access Fund; Lilith Fund for
Reproductive Equity, Inc.; The Afiya Center; Fund Texas Choice;
West Fund; Frontera Fund; Clinic Access Support Network; The
Bridge Collective; Monica Faulkner; Michelle Tuegel; Ghazaleh
Moayedi, D.O.; and Jane Doe,
Respondents
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════
PER CURIAM
Although the underlying litigation involves the hotly disputed
issue of abortion, the trial court correctly observed that, at least at this
stage, the “case is not about abortion; it is about civil procedure.” More
specifically, it is about subject-matter jurisdiction, which is always an
antecedent requirement before a court may address the merits. In this
case, Texas Right to Life challenged the plaintiffs’ standing—and thus
the trial court’s subject-matter jurisdiction—in both a plea to the
jurisdiction and a motion to dismiss under the Texas Citizens
Participation Act. An order resolving a TCPA motion constitutes a ruling
on the merits. Any jurisdictional objections must therefore be addressed
first, regardless of the form or label of the pleading in which such
objections were raised, or whether they were raised by a party or by the
court itself, or even whether they were raised before the trial court at all
rather than for the first time on appeal. For that reason, it does not
matter that the denial of the plea to the jurisdiction was not itself
appealable. What matters is that the court of appeals could reach the
merits of the TCPA motion only if the trial court had subject-matter
jurisdiction over the case in the first place. Because the court of appeals
failed to address standing, we grant the petition for review, reverse the
court of appeals’ judgment, and remand to that court for further
proceedings.
I
In 2021, the Legislature enacted Senate Bill 8, also known as the
Texas Heartbeat Act (the “Act”). The Act provides that “a physician may
not knowingly perform or induce an abortion on a pregnant woman if the
physician detected a fetal heartbeat for the unborn child . . . or failed to
perform a test to detect a fetal heartbeat.” TEX. HEALTH & SAFETY CODE
§ 171.204(a). No one may aid or abet such an abortion, either. See id.
§ 171.208(a)(2). Unlike many laws, the Act may be enforced only through
private civil actions, not through actions by government officials. Id.
§§ 171.207(a), .208(a). A successful plaintiff can receive injunctive relief,
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statutory damages, costs, and attorney’s fees. Id. § 171.208(b).
Allison Van Stean and the other plaintiffs in this case allege that
defendants Texas Right to Life and John Seago (collectively, TRTL) have
organized efforts to sue those who may be, or may be perceived to be,
violating the Act. The plaintiffs filed more than a dozen separate suits
challenging the Act’s constitutionality and sought injunctions preventing
TRTL from seeking to enforce the law against them. On TRTL’s motion,
the cases were transferred to a multidistrict litigation court, which we
call “the trial court.” See TEX. R. JUD. ADMIN. 13.3, 13.5.
TRTL filed a plea to the jurisdiction and a motion to dismiss under
the TCPA. Both motions challenged the plaintiffs’ standing to bring
their claims. The trial court denied both motions, thus asserting subject-
matter jurisdiction over the case and holding that it should proceed. The
TCPA authorizes an interlocutory appeal to review the denial of a motion
to dismiss, and TRTL appealed. While the appeal was pending, the U.S.
Supreme Court decided Dobbs v. Jackson Women’s Health Organization,
597 U.S. 215 (2022), in which it overruled Roe v. Wade, 410 U.S. 113(1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992).
Despite TRTL’s contention both at the trial court and on appeal
that the plaintiffs lacked standing, the court of appeals did not address
that question. The court instead affirmed the trial court’s order on the
ground that the TCPA does not apply to the plaintiffs’ claims. ___
S.W.3d ___, 2023 WL 3687408, at *7 (Tex. App.—Austin May 26, 2023).
TRTL petitioned for review.
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II
The court of appeals erred by failing to address standing.
A
“Standing is a prerequisite to subject-matter jurisdiction, and
subject-matter jurisdiction is essential to a court’s power to decide a
case.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000).
“The standing requirement derives from the Texas Constitution’s
provision for separation of powers among the branches of government,
which denies the judiciary authority to decide issues in the abstract, and
from the [Constitution’s] open courts provision, which provides court
access only to a ‘person for an injury done him.’ ” Meyers v.
JDC/Firethorne, Ltd., 548 S.W.3d 477, 484 (Tex. 2018) (quoting TEX.
CONST. art. I, § 13). Because standing is a jurisdictional requirement, the
lack of standing may be raised by the court or parties at any time. See
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex.
1993). Indeed, it would “violate constitutional principles” for “appellate
courts to address the merits of cases without regard to whether the courts
have jurisdiction.” Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex.
2012). That is why “[t]he fundamental rule is that the court may not
reach the merits if it finds a single valid basis to defeat jurisdiction.”
Rattray v. City of Brownsville, 662 S.W.3d 860, 868 (Tex. 2023). “As a
corollary, the court may not move to the merits if even one jurisdictional
argument remains unresolved.” Id. at 869.
Addressing the merits of the TCPA motion to dismiss without
addressing subject-matter jurisdiction violated these principles. Resolving
a dispute before resolving a jurisdictional challenge risks the rendition
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of an unconstitutional advisory opinion. See Tex. Ass’n of Bus., 852
S.W.2d at 444. Going beyond the judicial role, in turn, implicates the
independence of the judiciary, which depends on its resolving only
genuine disputes that are properly justiciable. Any erosion of that
principle makes it easier to prematurely drag the judiciary into highly
contentious and politicized debates that, unless and until they ripen into
concrete disputes fit for judicial resolution, remain only within the
domain of the other branches of government. The underlying subject
matter of this case illustrates the point. But the requirement that courts
must have subject-matter jurisdiction before proceeding to the merits
applies in every case, ranging from the most banal to the most
controversial.
The court of appeals was on notice that the plaintiffs’ standing
was in question, and it should have assured itself of subject-matter
jurisdiction before proceeding. Three circumstances particular to this
case may have led that court to think that the well-established rule of
addressing jurisdiction before the merits did not apply here, but none
absolved the court of its responsibility to decide whether the plaintiffs
had standing to sue before addressing the substantive merits question
of whether their lawsuit was one that implicates the TCPA.
First, the court of appeals may have believed that it was following
its own precedent. In de la Torre v. de la Torre, the Third Court of Appeals
treated “standing” as a “fundamental component of a prima facie case”
under the TCPA. 613 S.W.3d 307, 312 (Tex. App.—Austin 2020, no pet.).
Whether the plaintiff has made out a prima facie case is an inquiry that
is subsequent to whether the TCPA applies at all. See McLane
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Champions, LLC v. Hous. Baseball Partners LLC, 671 S.W.3d 907, 914
(Tex. 2023) (describing the “multi-step analysis” of TCPA motions to
dismiss). The court in de la Torre therefore analyzed “standing” after
determining that the TCPA applied to the plaintiff’s claims. 613 S.W.3d
at 312.
That court’s use of the term “standing,” however, did not refer to
standing in the constitutional sense. While de la Torre was pending, we
decided Pike v. Texas EMC Management, LLC, in which we clarified the
distinction between “standing in the true constitutional sense of that
term” and “statutory or prudential considerations that ‘do[] not implicate
subject-matter jurisdiction’ but determine whether a plaintiff ‘falls within
the class of [persons] . . . authorized to sue’ or otherwise has ‘a valid . . .
cause of action.’ ” 610 S.W.3d 763, 773-74 (Tex. 2020) (alterations in
original) (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118, 128 & n.4 (2014)). We have likewise acknowledged that
“[s]ome of our older opinions use standing as a short-hand reference for a
plaintiff’s ability to fulfill some statutory prerequisite to bringing suit or
recovering on a claim.” Tex. Med. Res., LLP v. Molina Healthcare of Tex.,
Inc., 659 S.W.3d 424, 439 (Tex. 2023). “The phrasing is regrettable,”
however, because it “has tangled the line demarcating issues that truly
implicate a trial court’s subject-matter jurisdiction from those pertaining
to the merits.” Id. at 439-40. The distinction is critical because standing,
as that term is properly used, implicates subject-matter jurisdiction,
while other issues sometimes referred to as standing, including whether
a cause of action exists or whether a given plaintiff has the right to bring
such a cause of action, pertain to the merits and generate judgments on
6
the merits. “The integrity of that line is fundamental to the working of
the civil justice system because a court without subject-matter
jurisdiction cannot decide the case at all.” Id. at 440.
In de la Torre, the court of appeals concluded that the TCPA
respondent could not bring an action under Section 261.107 of the Family
Code because that provision does not create a private right of action. 613
S.W.3d at 312-13. Assuming the accuracy of that holding—a question
on which we offer no view—it would not indicate that the party lacked
constitutional standing. Whether the party had a cause of action under
the statute was instead a merits question. See Molina Healthcare, 659
S.W.3d at 440. Thus, it was because the court of appeals in de la Torre
used “standing” in its merits sense that it could properly analyze the
cause-of-action issue when determining whether the TCPA non-movant
had established clear and specific evidence of the elements of his claim.
But here, TRTL has challenged the plaintiffs’ “standing in the
true constitutional sense of that term.” Pike, 610 S.W.3d at 773. TRTL
specifically invokes the traditional elements of standing and argues that
the plaintiffs have not shown that their injuries are traceable to TRTL
or likely to be redressed by their requested relief. The decision in de la
Torre is thus inapposite.
Second, and perhaps also influenced by de la Torre, TRTL urged
the court of appeals to analyze standing through the lens of the TCPA.
TRTL presented standing as an element of the plaintiffs’ claims and
argued that they needed to produce “ ‘clear and specific evidence’ of
standing” to survive the TCPA motion to dismiss. See TEX. CIV. PRAC. &
REM. CODE § 27.005(c). If that framing had been correct, then the court
7
of appeals’ order of operations would have made sense. Because the
court held that the TCPA did not apply to the plaintiffs’ claims, 2023 WL
3687408, at *4-7, it felt no need to move to the next step in the TCPA
analysis and consider whether the plaintiffs established each element of
their claims by clear and specific evidence.
TRTL’s framing puts the cart before the horse. It delays a
consideration of standing until the second step of a TCPA analysis and
would then subject the standing analysis to the stringent requirements
applicable to the elements of a cause of action. To even reach that step,
however, a court must already have decided that the TCPA movant met
its burden to show that “the TCPA applies to the legal action against it,”
McLane Champions, 671 S.W.3d at 914—a merits determination.
Perhaps the term “merits,” like “jurisdiction,” “is a word of many,
too many, meanings.” In re United Servs. Auto. Ass’n, 307 S.W.3d 299,
305 (Tex. 2010) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 90 (1998)). For example, we have referred to the “merits” of a plea
to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 224 (Tex. 2004). We meant, of course, whether the law required the
court to grant rather than deny the plea. Other “merits” questions are
likewise distinct from the ultimate merits question of whether the
plaintiff’s claims justify rendition of judgment for the plaintiff. Whether
to certify a class action involves merits questions concerning the
applicability of Texas Rule of Civil Procedure 42, not whether the claims
are well-founded; whether the statute of limitations applies is a merits
question, even though the reason to invoke limitations is to avoid
consideration of the merits of the plaintiff’s claim. The applicability of
8
the TCPA is a “merits” determination in the same way. Deciding any
such issue would be an impermissible advisory opinion in the absence of
subject-matter jurisdiction.
By contrast, “[c]ourts always have jurisdiction to determine their
own jurisdiction,” Hous. Mun. Emps. Pension Sys. v. Ferrell, 248 S.W.3d
151, 158 (Tex. 2007), so it is never advisory for a court to resolve an issue
that disposes of a jurisdictional objection. Any issue not necessary to a
jurisdictional determination, therefore, goes only to the merits. A court
may reach such a merits issue only after assuring itself of its subject-
matter jurisdiction.
This Court’s cases have already recognized the TCPA’s applicability
to a non-movant’s claims as a merits question. For that reason, as we
recently explained, the TCPA does not authorize inverting the normal
requirements of establishing jurisdiction first: “Because standing is a
threshold jurisdictional issue that is essential to a court’s power to
decide a case, we address that issue before turning to the substance of
the TCPA motion.” McLane Champions, 671 S.W.3d at 912 (emphasis
added) (quotation marks omitted). The court of appeals should have done
the same here, no matter how the parties framed the issue. And because
standing is a constitutional requirement independent of any particular
cause of action or procedural vehicle, the court should have analyzed
standing in the ordinary way, without putting a thumb on the scales.
Third, the court of appeals may have failed to address standing
because TRTL could not appeal the trial court’s denial of its plea to the
jurisdiction. The court of appeals stated that “this interlocutory appeal
concerns only the [trial] court’s ruling on the TCPA motion to dismiss.”
9
2023 WL 3687408, at *3. And it cited Section 51.014 of the Civil Practice
and Remedies Code, which allows an interlocutory appeal from the denial
of a TCPA motion to dismiss but not from the denial of a plea to the
jurisdiction filed by a non-governmental party. See TEX. CIV. PRAC. &
REM. CODE § 51.014(a)(12). We have explained, however, that because
standing is a prerequisite to subject-matter jurisdiction, the absence of
standing “may be raised by a plea to the jurisdiction, as well as by other
procedural vehicles.” Blue, 34 S.W.3d at 554 (emphasis added) (footnote
omitted). “If an appeal on the merits is properly pending before an
appellate court . . . , that court needs no separate procedural vehicle (like
an appealable denial of a plea to the jurisdiction) before it can and must
first discharge its duty to ensure its own jurisdiction.” Dickson v. Am.
Gen. Life Ins. Co., 698 S.W.3d 234, 235 (Tex. 2024) (Young, J., concurring
in denial of petition for review). What matters is not the title of a pleading
but rather its jurisdictional nature. See, e.g., Oscar Renda Contracting,
Inc. v. Bruce, 689 S.W.3d 305, 311 (Tex. 2024) (noting that “our Court has
consistently held that we examine the substance of a motion or pleading
rather than requiring the formality of a title”); Thomas v. Long, 207
S.W.3d 334, 339 (Tex. 2006) (treating a summary-judgment motion as a
plea to the jurisdiction for purposes of appellate jurisdiction).
TRTL quickly and properly raised its jurisdictional objections in
the trial court, but it would not make a difference if doubts about
standing—or anything else with jurisdictional significance—had not been
raised until after the interlocutory appeal was perfected. True, it is
more than preferable that any jurisdictional issue first be presented to
the trial court, and as soon as possible. Counsel’s duty to the court
10
includes “rais[ing] alleged defects in subject-matter jurisdiction when
they first become apparent, not merely when doing so becomes
strategically expedient.” I.L. v. Alabama, 739 F.3d 1273, 1284 n.6 (11th
Cir. 2014); see also, e.g., Richardson v. Koch Law Firm, P.C., 768 F.3d
732, 734 (7th Cir. 2014) (noting that counsel “had an ethical duty to alert
the court” to a development that “affects subject-matter jurisdiction”).
But “[s]ubject-matter jurisdiction cannot be waived, and can be raised at
any time.” Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008).
It follows that jurisdiction must be addressed in a properly filed
interlocutory appeal, regardless of the order appealed. See Rusk State
Hosp., 392 S.W.3d at 95. Thus, the fact that TRTL could formally appeal
only the order denying its TCPA motion was no bar to the court of appeals’
determining whether the plaintiffs had standing. To the contrary, because
standing was cast in doubt, the court could render no decision on the merits
of the interlocutory appeal until it confirmed the plaintiffs’ standing.
B
As this Court’s cases have already made clear, a pending TCPA
motion does not create jurisdiction when there is no jurisdiction to
entertain the underlying case. We made this point in McLane
Champions, 671 S.W.3d at 913 (first determining standing and then
“turn[ing] to the applicability of the TCPA”), but it was even more clearly
the holding in Diocese of Lubbock v. Guerrero, 624 S.W.3d 563 (Tex. 2021).
There, a Catholic deacon sued the Diocese after it included his
name “on a list of clergy credibly accused of sexual abuse.” Id. at 564.
The Diocese filed a plea to the jurisdiction arguing that the ecclesiastical-
abstention doctrine barred the deacon’s claims and also filed a TCPA
11
motion to dismiss. Id. After the trial court denied both, “[t]he Diocese
appealed the order denying the motion to dismiss and sought mandamus
relief from the order denying its jurisdictional plea.” Id. In an original
proceeding, we held that the ecclesiastical-abstention doctrine applied,
conditionally granted the Diocese’s petition for writ of mandamus,
vacated the trial court’s order denying the plea, and directed the trial
court to dismiss the case for want of jurisdiction. In re Diocese of Lubbock,
624 S.W.3d 506, 519 (Tex. 2021). In the companion appeal, we explained
that, “[i]nasmuch as the trial court lacks jurisdiction to proceed in the
underlying litigation, the collateral matters under the TCPA asserted in
this interlocutory appeal are moot.” Guerrero, 624 S.W.3d at 564. We
reiterated that “[i]f the trial court lacks subject matter jurisdiction, the
appellate court can make no order other than reversing the judgment of
the court below and dismissing the cause.” Id. (quoting City of Garland
v. Louton, 691 S.W.2d 603, 605 (Tex. 1985)). Accordingly, we vacated the
trial court’s order denying the TCPA motion and dismissed the case. Id.To be sure, we have held that a claim for TCPA fees and sanctions
can “breathe[] life” into an otherwise-moot appeal. State ex rel. Best v.
Harper, 562 S.W.3d 1, 8 (Tex. 2018). That happens, however, only “if
the party prevailed before the substantive claim became moot.” Id. at 7
(emphasis added). In Harper, the movant prevailed, and then the claim
became moot, so this Court proceeded to consider the TCPA’s
applicability. Id. at 8.
Here, by contrast, TRTL never prevailed on its motion, either in
the trial court or the court of appeals. More importantly, if TRTL is
correct that the plaintiffs never had standing, then TRTL never could
12
have prevailed on its TCPA motion—at no time did any court have
subject-matter jurisdiction to reach any merits question or to declare
TRTL a prevailing party as to such a question. Cf. id. at 7-8 (noting that
“if the party did not prevail before the substantive claim became moot,
the party’s claim for attorney’s fees is also moot because the party can
never prevail and thus can never be entitled to attorney’s fees”).
Central to this principle is the important distinction between
standing and mootness. A case in which no plaintiff ever had standing is
a case in which a court never had subject-matter jurisdiction, so dismissal
was always the only permissible outcome. By contrast, a case that
becomes moot is one in which the trial court did have subject-matter
jurisdiction at the outset, which means that the court could properly
entertain a TCPA motion and address other merits issues. For that
reason, the subsequent mootness of the underlying claim would not
destroy entitlement to rights that had properly attached under the TCPA
at a point in which the trial court had jurisdiction to reach merits issues.
We are mindful that, at first glance, this rule may sometimes
appear unfair to the TCPA movant. After all, a prevailing movant is
entitled to costs and attorney’s fees and may receive sanctions “sufficient
to deter the party who brought the legal action from bringing similar
actions” in the future. TEX. CIV. PRAC. & REM. CODE § 27.009(a)(2). Some
of the most egregious lawsuits aimed at chilling speech and participation
in government may be brought by those without standing to bring them.
Denying fees and sanctions under the TCPA in this circumstance may
seem strange.
Several circumstances, however, mitigate this concern without
13
requiring a court that lacks subject-matter jurisdiction to opine on merits
issues. For one thing, immediate dismissal for lack of jurisdiction does
advance one key TCPA goal—“to expedite the dismissal of claims brought
to intimidate or to silence a defendant’s exercise of these First
Amendment rights.” ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d
895, 898 (Tex. 2017). In addition, if a plaintiff who lacks standing brings
a truly frivolous or vexatious suit, the court is empowered to impose
sanctions wholly apart from the TCPA. See TEX. R. CIV. P. 13; TEX. CIV.
PRAC. & REM. CODE § 11.054 (permitting a court to find a plaintiff to be a
vexatious litigant). These and other tools allow courts to respond to
abuses of the judicial process but do not depend on the result of the merits
questions underlying a plaintiff’s suit or a defendant’s TCPA motion.
Thus, the court of appeals should apply Guerrero on remand. If the
plaintiffs lack standing, the court should not address the TCPA motion at
all. Instead, it should vacate the trial court’s orders and dismiss the case
without any remand to the trial court. If the court concludes that the case
is justiciable—because the plaintiffs had standing and because there is
no other jurisdictional defect—it should do what it prematurely did last
time: address the merits of the motion to dismiss, beginning with the
applicability of the TCPA to the plaintiffs’ claims. See McLane
Champions, 671 S.W.3d at 913.
III
Accordingly, without hearing oral argument, we grant the petition
for review, reverse the court of appeals’ judgment, and remand the case
to the court of appeals for further proceedings. See TEX. R. APP. P. 59.1.
OPINION DELIVERED: November 22, 2024
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