Texas State Board of Podiatric Medical Examiners v. Texas Orthopaedic Association, Texas Medical Association and Andrew Kant ( 2004 )


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  •       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-04-00253-CV
    Texas State Board of Podiatric Medical Examiners, Appellant
    v.
    Texas Orthopaedic Association, Texas Medical Association
    and Andrew Kant, Appellees
    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
    NO. GN204022, HONORABLE PAUL DAVIS, JUDGE PRESIDING
    MEMORANDUM OPINION
    The Texas State Board of Podiatric Medical Examiners (the Board) appeals the trial
    court’s denial of its plea to the jurisdiction. The Board contends that the Texas Orthopaedic
    Association, Texas Medical Association, and Dr. Andrew Kant (collectively, the Associations)
    lacked standing to challenge one of its rules because their pleadings did not affirmatively
    demonstrate that any legal right or privilege of their individual members would be interfered with
    or impaired by the rule and that there was no threat that the rule would be applied to their members.
    We disagree with the Board and affirm the trial court’s denial of the plea to the jurisdiction.
    BACKGROUND
    Although the underlying dispute in this case centers on whether the ankle is part of
    the foot, we review here only the standing of the Associations to challenge a rule adopted by the
    Board. The Board has statutory authority to regulate the practice of podiatry.1 See Tex. Occ. Code
    Ann. § 202.151 (West 2004). The occupation code does not define “foot.” On January 17, 2001,
    the Board adopted a rule defining the foot as including part of the ankle.2 The Associations filed suit
    seeking a declaration invalidating the Board’s rule and declaring that the statutory scope of the
    practice of podiatry is confined to the foot as matter of law.3 In response, the Board filed a plea to
    the jurisdiction claiming that the Associations lacked standing to challenge its rule because the legal
    rights or privileges of the Associations’ members have not been interfered with or impaired by the
    rule and there was no threat that the rule would be applied to their individual members. The trial
    court denied the plea to the jurisdiction, and this interlocutory appeal followed.4
    STANDARD OF REVIEW
    Standing is a prerequisite to subject-matter jurisdiction, and subject-matter
    jurisdiction is essential to a court’s power to hear a case. Texas Ass’n of Bus. v. Texas Air Control
    1
    Podiatry is the treatment of or offer to treat any disease, disorder, physical injury,
    deformity, or ailment of the human foot by any system or method. Tex. Occ. Code Ann.
    § 202.001(a)(4) (West 2004).
    2
    The Board defined foot to include, “the tibia and fibula in their articulation with the talus,
    and all bones to the toes, inclusive of all soft tissues (muscles, nerves, vascular structures, tendons,
    ligaments, and any other anatomical structures) that insert into the tibia and fibula in their
    articulation with the talus and all bones to the toes.” 22 Tex. Admin. Code § 375.1 (2001).
    3
    The Associations sought declaratory relief under the Administrative Procedure Act (APA)
    and the Uniform Declaratory Judgments Act. See Tex. Gov’t Code Ann. § 2001.038 (West 2000);
    Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (West 1997).
    4
    A person may appeal from an interlocutory order of a district court that grants or denies
    a plea to the jurisdiction by a governmental unit. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8)
    (West Supp. 2004-05).
    2
    Bd., 
    852 S.W.2d 440
    , 443 (Tex. 1993). The absence of subject-matter jurisdiction may be raised by
    a plea to the jurisdiction. Bland Indep. Sch. Dist. v. Blue, 
    34 S.W.3d 547
    , 554 (Tex. 2000). To
    invoke a court’s authority, a plaintiff must allege facts that affirmatively demonstrate that the court
    has jurisdiction to hear the cause. Texas Dep’t of Parks & Wildlife v. Miranda, 
    133 S.W.3d 217
    , 226
    (Tex. 2004). When a plea to the jurisdiction challenges jurisdictional facts, we consider relevant
    evidence as necessary to resolve the issues raised. 
    Id. at 227.
    We review the denial of a plea to the
    jurisdiction de novo. 
    Id. at 228;
    Texas Natural Res. Conservation Comm’n v. IT-Davy, 
    74 S.W.3d 849
    , 855 (Tex. 2002) (citing Mayhew v. Town of Sunnyvale, 
    964 S.W.2d 922
    , 928 (Tex. 1988)). We
    liberally construe the pleadings and relevant evidence in favor of jurisdiction, looking to the
    plaintiff’s intent. 
    Miranda, 133 S.W.3d at 226
    ; City of San Angelo v. Smith, 
    69 S.W.3d 303
    , 306
    (Tex. App.—Austin 2002, pet. denied).
    The general test for standing in Texas requires that there be (a) a real controversy
    between the parties, which (b) will actually be determined by the judicial declaration sought. Texas
    Ass’n of 
    Bus., 852 S.W.2d at 446
    . Texas courts apply the Hunt test when determining whether an
    organization has standing to sue on behalf of its members. 
    Id. at 447
    (adopting test for associational
    standing set forth in Hunt v. Washington State Adver. Comm’n, 
    432 U.S. 333
    , 343 (1977)). An
    organization has standing to sue on behalf of its members if a review of its pleadings and all
    evidence relevant to jurisdiction affirmatively demonstrates that (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. 3 DISCUSSION
    In its sole issue on appeal, the Board argues that the Associations lacked standing to
    seek a declaratory judgment because they failed to affirmatively demonstrate how the Board’s rule
    interfered with or impaired any legal right or privilege of their individual members.5 We now apply
    the Hunt test to the facts of this case.
    The first prong of the Hunt test requires that the Associations’ pleadings, in
    conjunction with any evidence in the record relevant to jurisdiction, demonstrate that the
    Associations’ members have standing to sue in their own behalf. 
    Id. This requirement
    should not
    be interpreted to impose an unreasonable obstacle to associational standing. Id.; see also New York
    State Club Ass’n v. City of New York, 
    487 U.S. 1
    , 9 (1986) (stating that purpose of first prong of
    Hunt test is simply to weed out plaintiffs who try to bring cases that could not otherwise be brought
    by manufacturing allegations of standing that lack any real foundation). It does not appear that the
    Associations have manufactured this lawsuit, and we conclude that they have demonstrated that the
    Board’s rule impairs6 a legal right or privilege possessed by their individual members.
    Physicians and orthopaedists are licensed to practice medicine in this state as long as
    they comply with the requirements and regulations of the Texas Medical Practice Act (the Act). See
    5
    To seek declaratory relief under the APA a plaintiff must allege that a rule or its threatened
    application interferes with or impairs, or threatens to interfere with or impair, a legal right of the
    plaintiff. Tex. Occ. Code. Ann. § 2001.038(a) (West 2000).
    6
    Impair is defined as, “to make or cause to become worse; diminish in ability, value,
    excellence.” Random House Dictionary of the English Language (Stuart B. Flexner et al. eds., 2d
    ed. 1987). In construing a statute we start with the plain and common meaning of the statute’s
    words. Fitzgerald v. Advance Spine Fixation Sys., Inc., 
    996 S.W.2d 864
    , 865 (Tex. 1999); Tex.
    Gov’t Code Ann. § 312.002(a) (West 1998).
    4
    Tex. Occ. Code Ann. §§ 151.001-165.160 (West 2004). The legislature believes that the practice
    of medicine is a privilege and enacted the Act to regulate the granting of that privilege in order to
    protect the public’s interest. 
    Id. § 151.003(1).
    Licensed podiatrists are exempt from complying with
    the Act as long as they strictly engage in the practice of podiatry as defined by law. 
    Id. § 151.052(a)(5).
    In their original petition the Associations urge that the Board’s expanded definition
    of foot extends the practice of podiatry beyond its statutory limits and into the practice of medicine
    regulated by the Act. The Associations contend in their petition that individual physicians have
    standing to seek a determination of the extent to which podiatrists may engage in the practice of
    medicine in light of the Board’s rule. Although the Associations do not explicitly state that the
    Board’s definition impairs a legal right or privilege of individual Texas physicians, it is clear from
    their original petition and the attached affidavit of Dr. David Teuscher that they believe that
    podiatrists have no statutory right to engage in the practice of medicine and that allowing podiatrists
    to do so undermines the purpose of the Act. Essentially, they assert in their pleading that if the
    Board grants podiatrists the right to perform procedures that would otherwise be considered the
    practice of medicine, the privilege of practicing medicine is diminished because podiatrists are
    neither licensed nor trained to practice medicine.
    The Associations have sufficiently demonstrated that the Board’s rule may impair a
    privilege possessed by their individual members. Therefore, their members would have standing to
    sue in their own right. The Associations have satisfied the first prong of the Hunt test.
    5
    The second prong of the Hunt test requires that the Associations’ pleadings and any
    evidence in the record relevant to this jurisdictional question demonstrate that the interests the
    Associations seek to protect are germane to their organizational purpose. Texas Ass’n of 
    Bus., 852 S.W.2d at 447
    . Donna Parker, Executive Director of the Texas Orthopaedic Association, stated in
    her affidavit that the Orthopaedic Association’s mission of promoting high quality musculoskeletal
    healthcare for Texans requires that it be interested in legislation or rulemaking impacting or
    regulating the provision of musculoskeletal healthcare in Texas. Similarly, Louis Goodman, Vice
    President of the Texas Medical Association, asserted in his affidavit that the Medical Association
    achieves its mission of improving the health of all Texans by being an advocate for patients and the
    profession of medicine. In this declaratory action, the Associations are seeking to protect the value
    of their members’ right to practice medicine. The question of who has the right to practice medicine
    is directly related to the quality of the care provided. Therefore, we hold that the Associations have
    met the second prong of the Hunt test.
    The final prong of the Hunt test requires that the Associations’ pleadings and any
    evidence in the record relevant to this jurisdictional question demonstrate that neither the claim
    asserted nor the relief requested necessitated the participation of the individual members in the
    lawsuit. 
    Id. The Associations
    claim that the Board’s rule defining foot is invalid. The Associations
    seek a declaration invalidating the rule and declaring that the practice of podiatry is confined to the
    foot as a matter of law. The Associations’ claim is a question of law that does not require the
    participation of individual members; the relief sought is a declaratory ruling that would be uniformly
    6
    applied to physicians and podiatrists. We hold that the Associations have satisfied the final prong
    of Hunt.
    The Associations’ pleadings in conjunction with all relevant jurisdictional evidence
    affirmatively demonstrate that they have standing to challenge the Board’s rule. Therefore, we
    overrule the Board’s only issue on appeal.
    CONCLUSION
    We hold that the trial court correctly denied the plea to the jurisdiction and affirm the
    trial court’s ruling.
    __________________________________________
    Bea Ann Smith, Justice
    Before Chief Justice Law, Justices B. A. Smith and Pemberton
    Affirmed
    Filed: November 12, 2004
    7