Lens Exp., Inc. v. Ewald

• Decision Date: 16 August 1995
• Docket Number: No. 03-94-00435-CV,03-94-00435-CV
• Citation: 907 S.W.2d 64
• Parties: LENS EXPRESS, INC. and Managed Vision, Inc., Appellants v. Lois EWALD, as Executive Director of Texas Optometry Board, Dan Morales, Individually and as Attorney General of the State of Texas, and Texas Optometric Association, Inc., Appellees.
• Court: Texas Court of Appeals

Page 64

907 S.W.2d 64

LENS EXPRESS, INC. and Managed Vision, Inc., Appellants v. Lois EWALD, as Executive Director of Texas Optometry Board Dan Morales, Individually and as Attorney General of the State of Texas, and Texas Optometric Association, Inc., Appellees.

No. 03-94-00435-CV.

Court of Appeals of Texas Austin.

Aug. 16, 1995.

Julie A. Springer, Scott, Douglass & Luton, L.L.P., Austin, for appellants.

Dan Morales, Attorney General, Ann Hartley, Assistant Attorney General, Elder Law & Public Health Division, Austin, for Lois Ewald.

Joe R. Greenhill, Jr., Wright & Greenhill, Austin, for Texas Optemetric Association.

Before POWERS, KIDD and B.A. SMITH, JJ.

BEA ANN SMITH, Justice.

This appeal ensues from a summary judgment granted in favor of appellees Lois Ewald, as Executive Director of the Texas Optometry Board, Dan Morales, as Attorney General of the State of Texas, and the Texas Optometric Association, Inc. (collectively the "State"). Appellants Lens Express, Inc. and its subsidiary, Managed Vision, Inc., ("Lens Express") raise three arguments in five points of error. We will affirm the trial court's judgment.

BACKGROUND

The Texas Optometry Act (the "Act") as interpreted by the Texas Optometry Board (the "Board") authorizes, but does not require, optometrists licensed in Texas to release contact lens prescriptions to patients who request them. Texas Optometry Act, Tex.Rev.Civ.Stat.Ann. art. 4552, §§ 1.02(3)(A), 5.18(e) (West Supp.1995); see 22 Tex.Admin.Code §§ 279.1, .2 (1995). Additionally, the Act requires an unlicensed "dispensing optician" or "ophthalmic dispenser" to obtain a complete physical copy of the patient's prescription before dispensing lenses. Tex.Rev.Civ.Stat.Ann. art. 4552, §§ 1.02(3)(A), 5.18(e) (West Supp.1995); see 22 Tex.Admin.Code §§ 279.1, .2 (1995). ¹ Lens Express is a Florida corporation that dispenses contact lenses by mail at discount prices and is designated as a "dispensing optician" or "ophthalmic dispenser" under the Act.

On October 2, 1992, the State filed suit against Lens Express seeking injunctive relief and civil penalties for alleged violations of the Act. On December 17, 1993, Lens Express settled with the State by signing an Agreed Final Judgment with Permanent Injunction, in which Lens Express agreed to comply with Article 4552 section 1.02(3)(A) of the Act and with Board Rules sections 279.1 and 279.2, and agreed to refrain from selling contact lenses to Texas consumers without a proper prescription. The parties further stipulated that: (1) Lens Express did not waive its right to challenge the constitutionality of the Act or Board Rules, and (2) the agreement would be rendered null and void if either the statute or the board rules were held unconstitutional.

In order to penetrate the Texas market, Lens Express had also entered into "preferred provider" contracts with optometrists who were willing to charge a discounted rate for their services. The Board, however, claimed that these agreements violated certain articles of the Act that prohibit manufacturers, wholesalers, and retailers of ophthalmic goods from controlling a professional optometrist and require that the practices of optometry and therapeutic optometry remain separate from the business of dispensing ophthalmic goods. Tex.Rev.Civ.Stat.Ann.

art. 4552, §§ 5.11(a)(1), (2), (b)(1), (3); 5.15(a) (West Supp.1995). In response, Lens Express formed a separate corporation, Managed Vision, Inc., to enter into the agreements. Managed Vision does not manufacture, wholesale, or retail ophthalmic products.

On the same day that Lens Express agreed to the final judgment and permanent injunction, it filed this suit for declaratory and injunctive relief, requesting the following: (1) a judgment declaring that certain parts of the Act and the Board Rules create a monopoly and violate the due process clauses of both the United States and Texas constitutions; (2) a judgment declaring that the contracts between Managed Vision and Texas optometrists do not violate the provisions of the Act that prohibit dispensing opticians from controlling professional optometrists or the provisions which require that the practices of optometry and therapeutic optometry be completely separate from the business of selling ophthalmic goods; and (3) injunctions against the State, preventing it from enforcing the Act and Rules provisions requiring the dispensing optician to have a complete, physical copy of the contact lens prescription and preventing it from curtailing the agreements between Managed Vision and Texas optometrists through the enforcement of the Act.

The State subsequently moved for summary judgment, arguing that: (1) the Act does not create a monopoly in Texas; (2) the fact that the Act may be inefficient does not mean that it is unconstitutional; and (3) the Board, which has primary jurisdiction over the agreements between Texas opticians and Managed Vision, had not yet ruled on their validity, precluding the trial court's exercise of jurisdiction over the agreements. The State presented two uncontroverted facts in support of its motion: (1) in March 1994 there were over twenty-six hundred optometrists licensed to practice in Texas, and (2) over eighteen hundred of those licensed optometrists actually do practice in Texas. In its response, Lens Express relied generally on all of the pleadings and papers on file and on six depositions. The trial court granted the State's motion for summary judgment.

By five points of error, Lens Express argues the trial court erred by: (1) granting summary judgment for the State on Lens Express's substantive due process claim; (2) granting summary judgment against Lens Express's request for a declaratory judgment that the State's rules create a monopoly; and (3) dismissing Lens Express's request for a declaratory judgment that certain agreements between Managed Vision and Texas eye doctors do not violate the State's relevant rules.

DISCUSSION

I. Summary Judgment

The standards for reviewing a motion for summary judgment are well established: (1) The movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

A. Substantive Due Process & Equal Protection

We review economic and social welfare statutes challenged on substantive due process or equal protection grounds ² under the "rational-relationship" standard. John E. Nowak, Ronald D. Rotunda, & J. Nelson Young, Constitutional Law § 11.4 (3d ed. 1986). To survive these constitutional challenges, the statute need only be "rationally related to a legitimate end." Massachusetts Indem. & Life Ins. Co. v. Texas State Bd. of Ins., 685 S.W.2d 104, 114 (Tex.App.--Austin 1985, no writ). Our standard of review is elevated to "strict scrutiny" only if the statute (1) limits a fundamental, constitutionally secured right, or (2) implicates a suspect class. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-41, 105 S.Ct. 3249, 3254-55, 87 L.Ed.2d 313 (1985); Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556, 559 (Tex.1985); R Communications, Inc. v. Sharp, 839 S.W.2d 947, 951 (Tex.App.--Austin 1992), rev'd on other grounds, 875 S.W.2d 314 (Tex.1994).

Relying on our decision in Toungate v. Bastrop Independent School District, 842 S.W.2d 823 (Tex.App.--Austin 1992, no writ), Lens Express argues in its first three points of error that the trial court erred in granting the State's motion for summary judgment because the trial court can only assess the rationality or reasonableness of the legislation called into question by the opinions of its experts after a full evidentiary trial. We disagree. In Toungate, the plaintiff claimed that a rule regulating male students' hair length was unconstitutional under the Texas Equal Rights Amendment. Id. at 825; see Tex. Const. art. I, § 3a. The Equal Rights Amendment elevates sex to a suspect class, thereby invoking strict scrutiny review when a law differentiates on the basis of gender. Id. at 826. Under strict scrutiny, legislation is accorded no presumption of validity, and therefore summary judgment may not be appropriate. Id. at 826-27.

In this case, however, the appropriate standard of review is not strict scrutiny, but rational relationship. The right to sell contact lenses in Texas is not a fundamental right, and unlicensed optometrists are not a suspect class. Under the rational-relationship test, the law "must be upheld ... if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Federal Communications Comm'n v. Beach Communications, Inc., 508 U.S. 307, ----, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1992) (emphasis added); see also Massachusetts Indem., 685 S.W.2d at 110. As the Supreme Court has succinctly stated:

A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. A legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data. A statute is presumed constitutional ... and the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in...