Patel v. Tex. Dep't of Licensing & Regulation
| Decision Date | 25 July 2012 |
| Docket Number | No. 03–11–00057–CV.,03–11–00057–CV. |
| Citation | 464 S.W.3d 369 |
| Parties | Ashish PATEL, Anverali Satani, Nazira Momin, Tahereh Rokhti, Minaz Chamadia, and Vijay Lakshmi Yogi, Appellants, Texas Department of Licensing and Regulation ; William H. Kuntz, Jr., in his official capacity, et. al., Cross Appellants, v. TEXAS DEPARTMENT OF LICENSING AND REGULATION ; William H. Kuntz, Jr., in his official capacity, et al., Appellees, Ashish Patel, Anverali Satani, Nazira Momin, Tahereh Rokhti, Minaz Chamadia, and Vijay Lakshmi Yogi, Cross Appellees. |
| Court | Texas Court of Appeals |
Matthew R. Miller, Institute for Justice Texas Chapter, Wesley Hottot, Institute for Justice Texas Center, Austin, TX, Michael E. Bindas, Institute for Justice Washington Chapter, Seattle, WA, for Appellants.
Nancy K. Juren, Amanda J. Cochran–McCall, Assistant Attorney General, General Litigation Division, Austin, TX, for Appellees.
Before Justices PURYEAR, HENSON and GOODWIN.
These cross-appeals concern the constitutionality of cosmetology statutes and administrative rules as they apply to eyebrow threading. See Tex. Occ.Code Ann. §§ 1601.002, 1601.251, 1602.002, 1602.251, 1602.403 (West 2004 & Supp.2011); 16 Tex. Admin. Code §§ 83.1 –83.120 (2011) (Tex. Dep't of Licensing and Regulation, Cosmetologists). Appellants Ashish Patel, Anverali Satani, Nazira Momin, Tahereh Rokhti, Minaz Chamadia, and Vijay Lakshmi Yogi, who are in the business of eyebrow threading, urge that eyebrow threading regulations unreasonably interfere with their constitutional right to economic liberty under article I, section 19 of the Texas Constitution. See id.; Tex. Const. art. I, § 19.1
Facing competing motions for summary judgment, the district court granted summary judgment in favor of appellees the Texas Department of Licensing and Regulation (the Department), the Department's executive director, the Texas Commission on Licensing and Regulation (the Commission), and the Commission's members. On appeal, appellants contend that the district court erred in its summary judgment rulings and that it abused its discretion by admitting portions of an affidavit. The state defendants cross appeal, challenging the denial of their plea to the jurisdiction and motion to strike expert testimony. For the reasons that follow, we affirm the district court's judgment.
Eyebrow threading is a facial hair removal technique using a single strand of cotton thread.2 Appellants Patel and Satani have ownership interests in eyebrow threading businesses, and the remaining appellants are individuals who are or were employed as eyebrow threaders. None of the appellants has a state cosmetology license.
The Department is the state agency charged with regulating cosmetology. Tex. Occ.Code Ann. §§ 51.051, 1602.001 –.002, 1603.001–.002 (West 2004 & Supp.2011). The Commission governs the Department and is statutorily authorized to appoint the Department's executive director, oversee the director's administration, formulate policy, and adopt administrative rules. Id. §§ 51.051, 51.101, 51.201, 1603.101 (West 2004 & Supp.2011). The Department's executive director is responsible for administering the Department's programs. Id. § 51.103(a)(2) (West 2004).
The Department initiated administrative actions against appellants Momin, Rokhti, and Yogi, seeking to impose penalties against them for practicing eyebrow threading without a license.3 See id. §§ 51.301–.302 (West 2004) (), § 1602.251(a) (West Supp.2011) (). The Department also investigated complaints against an eyebrow threading business owned by Satani concerning the employment of unlicensed eyebrow threaders, but no notice of alleged violation has been issued against the business.4 See id. § 1602.403 (West Supp.2011) ().
Appellants thereafter brought this suit in December 2009, seeking declaratory and injunctive relief pursuant to the Uniform Declaratory Judgements Act (UDJA). See Tex. Civ. Prac. & Rem.Code Ann. §§ 37.001 –.011 (West 2008). In their pleadings, appellants alleged that “[w]ithout any changes in state law or administrative rules, Defendants have abruptly taken the position that threading is the practice of cosmetology, requiring government-issued licenses for both threading business owners and their employees.”
Appellants, however, did not seek a declaration that the practice of eyebrow threading was outside the statutory definition of cosmetology. See Tex. Occ.Code Ann. § 1602.002 (West Supp.2011) (definition of cosmetology).5 Rather, they contended that the challenged cosmetology statutes and rules 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,” that the state defendants do not have an “important, legitimate, or rational reason for applying Texas' cosmetology laws and rules to the commercial practice of eyebrow threading,” that “[t]he state's police power does not extend to the regulation of harmless commercial practices such as eyebrow threading,” and that the state defendants are “presently and unconstitutionally requiring or attempting to require Plaintiffs to obtain licenses that are not reasonably related to their chosen occupation.”
As to their pleaded claims for relief, appellants sought declaratory judgment that the state defendants “violate the privileges and immunities guarantee of the Texas Constitution by unreasonably interfering with Plaintiffs' right to pursue eyebrow threading” and “violate the due process guarantee of the Texas Constitution by unreasonably interfering with Plaintiffs' right to pursue eyebrow threading.” They also sought “a permanent injunction barring Defendants from enforcing Texas' cosmetology laws—specifically Sections 1601.002, 1601.251, 1602.002, 1602.251, and 1602.403 of the Texas Occupations Code and Title 16, Sections 83.1 through 83.120 of the Texas Administrative Code —against Plaintiffs based on the commercial practice of eyebrow threading.”6
Appellants filed a motion for summary judgment in October 2010. Appellants sought summary judgment on the ground that the state defendants' application of cosmetology laws and rules to the commercial practice of eyebrow threading was unconstitutional “because it places senseless burdens on eyebrow threaders and threading businesses without any actual benefit to public health and safety.” They urged that the state defendants could not “constitutionally regulate the commercial practice of eyebrow threading as conventional cosmetology unless they can establish a real and substantial relationship between their regulations and the public's health and safety” and that the state defendants could not meet this standard. Their arguments included that “state cosmetology licensing [was] not necessary for safe eyebrow threading,” that the state defendants “credentialing program [was] doing nothing to promote public health or competent threading in Texas,” and that the statutes and rules were “grossly out of proportion to any legitimate health and safety objections the government may have.”
Appellants attached evidence to support their motion, including affidavits of appellants, discovery responses by the state defendants, deposition excerpts, and an affidavit by their expert with attachments. Appellants presented evidence to support their positions that eyebrow threading is safe, that the beauty schools do not teach eyebrow threading, and that eyebrow threading is not tested as a condition of licensure. The evidence included costs to attend a state-licensed beauty school and to take the examinations and the required number of hours of instruction and curriculum. See Tex. Occ.Code Ann. §§ 1602.251, .254, .257 (West Supp.2011) (license and certificate requirements for individuals); 16 Tex. Admin. Code §§ 83.20 –.21 ().
Around the same time, the state defendants filed a plea to the jurisdiction and motion for summary judgment, as well as a motion to strike appellants' expert testimony. In their plea and motion for summary judgment, the state defendants challenged appellants' standing and contended that appellants' claims were barred by sovereign immunity. As to the merits of appellants' claims, the state defendants argued, among other grounds, that the uncontested facts showed that appellants failed as a matter of law to articulate a privileges and immunities violation different from their substantive due process claim or to show that Texas cosmetology laws and implementing rules deprived appellants of any substantive due process right or interest protected by article I, section 19 of the Texas Constitution. See Tex. Const. art. I, § 19. The State defendants attached evidence to support their plea and motion, including discovery responses by appellants and affidavits and deposition excerpts with attachments.
After a hearing, the district court denied the state defendants' plea to the jurisdiction and motion to strike expert testimony but granted their motion for summary judgment and denied appellants' motion for summary judgment. The district court thereafter signed a final judgment. These cross appeals followed.
We begin with the threshold jurisdictional issues raised by the state defendants on cross appeal. In their first three issues, the state defendants challenge the district court's denial of their plea to the jurisdiction.7 They contend that appellants' UDJA suit is barred by sovereign immunity, urging that appellants failed to allege a viable ultra...
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