Patel v. Tex. Dep't of Licensing
| Decision Date | 26 June 2015 |
| Docket Number | No. 12-0657,12-0657 |
| Court | Supreme Court of Texas |
| Parties | ASHISH PATEL, ANVERALI SATANI, NAZIRA MOMIN, MINAZ CHAMADIA, AND VIJAY LAKSHMI YOGI, PETITIONERS/CROSS-RESPONDENTS, v. TEXAS DEPARTMENT OF LICENSING AND REGULATION, ET AL., RESPONDENTS/CROSS-PETITIONERS |
ASHISH PATEL, ANVERALI SATANI, NAZIRA MOMIN, MINAZ CHAMADIA,
AND VIJAY LAKSHMI YOGI, PETITIONERS/CROSS-RESPONDENTS,
v.
TEXAS DEPARTMENT OF LICENSING
AND REGULATION, ET AL., RESPONDENTS/CROSS-PETITIONERS
No. 12-0657
SUPREME COURT OF TEXAS
Argued February 27, 2014
June 26, 2015
ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
JUSTICE JOHNSON delivered the opinion of the Court, in which JUSTICE GREEN, JUSTICE WILLETT, JUSTICE LEHRMANN, and JUSTICE DEVINE joined.
JUSTICE WILLETT filed a concurring opinion, in which JUSTICE LEHRMANN and JUSTICE DEVINE joined.
JUSTICE BOYD filed a concurring opinion.
CHIEF JUSTICE HECHT filed a dissenting opinion, in which JUSTICE GUZMAN and JUSTICE BROWN joined.
JUSTICE GUZMAN filed a dissenting opinion.
In this declaratory judgment action several individuals practicing commercial eyebrow threading and the salon owners employing them assert that, as applied to them, Texas's licensing statutes and regulations violate the Texas Constitution's due course of law provision. They claim
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that most of the 750 hours of training Texas requires for a license to practice commercial eyebrow threading are not related to health and safety or what threaders actually do. The State concedes that over 40% of the required hours are unrelated, but maintains that the licensing requirements are nevertheless constitutional.
The trial court and court of appeals agreed with the State. We do not. We reverse and remand to the trial court for further proceedings.
Eyebrow threading is a grooming practice mainly performed in South Asian and Middle Eastern communities. It involves the removal of eyebrow hair and shaping of eyebrows with cotton thread. "Threading," as it is most commonly known, is increasingly practiced in Texas on a commercial basis. Threaders tightly wind a single strand of cotton thread, form a loop in it with their fingers, tighten the loop, and then quickly brush the thread along the skin of the client, trapping unwanted hair in the loop and removing it. In 2011, commercial threading became regulated in Texas when the Legislature categorized it as a practice of "cosmetology." See TEX. OCC. CODE § 1602.002(a)(8) ("'[C]osmetology' means the practice of performing or offering to perform for compensation . . . [the] remov[al] [of] superfluous hair from a person's body using depilatories, preparations, or tweezing techniques . . . ."). That categorization and its effects underlie this case.
In order to legally practice cosmetology in Texas a person must hold either a general operator's license or, in certain instances, a more limited but easier-to-obtain esthetician license. Id. § 1602.251(a). Licensing requirements for general operators include completing a minimum of 1,500 hours of instruction in a licensed beauty culture school and passing a state-mandated test. Id.
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§ 1602.254; 16 TEX. ADMIN. CODE § 83.20(a). Requirements for an esthetician license include completing a minimum of 750 hours of instruction in an approved training program and passing a state-mandated test. TEX. OCC. CODE § 1602.257(b); 16 TEX. ADMIN. CODE § 83.20(b). Commercial eyebrow threaders must have at least an esthetician license. See TEX. OCC. CODE §§ 1602.002(a)(8), .257; see also 16 TEX. ADMIN. CODE § 83.10(36).
The Texas Department of Licensing and Regulation (TDLR or the Department), which is governed by the Texas Commission of Licensing and Regulation (the Commission), is charged with overseeing individuals and businesses that offer cosmetology services. TEX. OCC. CODE §§ 51.051, .201(a), 1602.001-.002, 1603.001-.456. The executive director of TDLR is authorized to impose administrative fines of as much as $5,000 per violation, per day. See id. §§ 51.302, 1602.251.
In late 2008 and early 2009, TDLR inspected Justringz—a threading business with kiosk locations in malls across Texas—and found Nazira Nasruddin Momin and Vijay Lakshmi Yogi performing eyebrow threading without licenses. TDLR issued Notices of Alleged Violations to them for the unlicensed practice of cosmetology. Minaz Chamadia was also performing threading at Justringz without a license, but she was not cited by TDLR. The administrative hearings and fines pending against Momin and Yogi have been stayed pursuant to a Rule 11 Agreement. See TEX. R. CIV. P. 11.
Ashish Patel and Anverali Satani own threading salons named Perfect Browz. The State has not taken any administrative action related to Perfect Browz. Satani is the sole owner of another threading business, Browz and Henna. TDLR inspected and investigated Browz and Henna on the basis of complaints filed against it. Although Satani received two warnings for Browz and Henna
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employing unlicensed threaders, the Department did not issue a Notice of Alleged Violation. Like the proceedings against Momin and Yogi, prosecution of Browz and Henna has been stayed by agreement of the parties.
In December 2009, Patel, Satani, Momin, Chamadia, and Yogi (collectively, the Threaders) brought suit against TDLR, its executive director, the Commission, and the Commission's members (collectively, the State) pursuant to the Uniform Declaratory Judgments Act (UDJA) seeking declaratory and injunctive relief. See TEX. CIV. PRAC. & REM. CODE §§ 37.001-.004, .006, .010. The Threaders alleged that the cosmetology statutes and administrative rules issued pursuant to those statutes (collectively, the cosmetology scheme) were unreasonable as applied to eyebrow threading and violated their constitutional right "to earn an honest living in the occupation of one's choice free from unreasonable governmental interference." They specifically sought declaratory judgment that, as applied to them, the cosmetology statutes and associated regulations violate the privileges and immunities and due course guarantees of Article I, § 19 of the Texas Constitution. They also sought a permanent injunction barring the State from enforcing the cosmetology scheme relating to the commercial practice of eyebrow threading against them.
The Threaders moved for summary judgment, contending that "application of the state's cosmetology laws and administrative rules to the commercial practice of eyebrow threading is unconstitutional because it places senseless burdens on eyebrow threaders and threading businesses without any actual benefit to public health and safety." The motion urged that the State could not constitutionally regulate the commercial practice of eyebrow threading as conventional cosmetology unless it could establish a real and substantial relationship between the statutes and regulations and
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the public's health and safety, and the State could not meet this standard. The State filed both a plea to the jurisdiction and a traditional motion for summary judgment. By its plea to the jurisdiction, the State challenged the Threaders' standing, contending that their claims were barred by sovereign immunity and the redundant remedies doctrine. In its motion for summary judgment, the State asserted that the Threaders failed to show that Texas's regulation of the practice of eyebrow threading deprived the Threaders of any substantive due process right protected by Article I, § 19 or to plead a privileges and immunities claim different from their substantive due process claim.
The district court denied the State's plea to the jurisdiction, granted its motion for summary judgment, and denied the Threaders' motion for summary judgment. Both parties appealed.
The court of appeals affirmed. Patel v. Tex. Dep't of Licensing & Regulation, ___ S.W.3d ___ (Tex. App.—Austin 2012). As to the State's jurisdictional issues, the court held that the Threaders' suit was not barred by sovereign immunity or the redundant remedies doctrine, the Threaders had standing, and their claims were ripe. Id. at ___. As to the merits, the appeals court concluded that under either the real and substantial or rational basis test, the State established that the challenged cosmetology scheme, as applied to the Threaders, does not violate Article I, § 19. Id. at ___.
In this Court the Threaders argue that (1) the real and substantial test governs substantive due process challenges to statutes and regulations affecting economic interests when the challenges are brought under Article I, § 19 of the Texas Constitution; (2) the cosmetology statutes and rules are unconstitutional as applied to the Threaders because they have no real and substantial connection to a legitimate governmental objective; and (3) even if rational basis review is the correct
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constitutional test, under the appropriate test, the statutes and regulations are unconstitutional as applied to the Threaders.
The State contends that (1) it is immune from declaratory judgment claims raising constitutional challenges to statutes; (2) the Threaders' claims lack both justiciability and ripeness; (3) the claims are barred by the redundant remedies doctrine; (4) the business owners lack standing; (5) there is no real difference between the "real and substantial" and "rational relationship" tests for due process concerns; and (6) threading raises public health concerns, implicating valid governmental concerns, thus the challenged licensing statutes and regulations that address these concerns comport with the substantive due process requirements regardless of which test is applied.1
We address the arguments in turn, necessarily beginning with the jurisdictional issues the State raises. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (noting that if a court does not have jurisdiction, its opinion addressing any issues other than jurisdiction is advisory).
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Sovereign immunity implicates a trial court's jurisdiction, and, when it applies, precludes suit against a governmental entity. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); Tex. Natural Res. Conservation Comm'n v. IT-Davy,...
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