Tri County Citizens Rights Organization v. Johnson

• Decision Date: 18 July 1973
• Docket Number: No. 12041,12041
• Parties: TRI COUNTY CITIZENS RIGHTS ORGANIZATION Through its President, Joe W. Gutierrez and also acting Individually as a Taxpayer and Citizen, Appellants, v. Pearce JOHNSON, Individually and as Chairman of Texas Parks and Wildlife Commission, and Harry Jergis et al., Individually and as Members of Texas Parks and Wildlife Commission, Appellees.
• Court: Texas Court of Appeals

Page 227

498 S.W.2d 227

TRI COUNTY CITIZENS RIGHTS ORGANIZATION Through its President, Joe W. Gutierrez and also acting Individually as a Taxpayer and Citizen, Appellants, v. Pearce JOHNSON, Individually and as Chairman of Texas Parks and Wildlife Commission, and Harry Jergis et al Individually and as Members of Texas Parks and Wildlife Commission Appellees.

No. 12041.

Court of Civil Appeals of Texas Austin.

July 18, 1973.

Rehearing Denied Aug. 8, 1973.

Phillip D. Hardberger, San Antonio, for appellants.

John L. Hill, Atty. Gen., Austin, Randall S. Boyd, Sp. Asst. Atty. Gen., Dallas, for appellees.

O'QUINN, Justice.

Appellants brought this lawsuit in district court of Travis County seeking to prevent the Texas Parks and Wildlife Commission from enforcing provisions of its proclamation published in September of 1971 declaring no open season on game animals and birds within river beds owned by the State in the counties of Uvalde, Dimmit, and Zavala.

Joe W. Guiterrez, acting individually as a taxpayer and in behalf of Tri County Citizens Rights Organization as its president, filed suit naming as defendants Pearce Johnson, individually and as chairman of the Parks and Wildlife Commission, members of the Commission and its executive director, individually and in their official capacities. Plaintiffs' petition described the Tri County Citizens Rights Organization as a Texas corporation organized for the purpose of operating a nonprofit institution composed of sportsmen dedicated to the preservation of hunting and fishing rights.

The proclamation under attack by Guiterrez and the Tri County organization was adopted by the Commission pursuant to section 18 of Article 978j--1, Vernon's Anno. Penal Code, designated Uniform Wildlife Regulatory Act, which became effective September 1, 1967.

The target of plaintiffs' action was section 1.07 of the proclamation, the relevant portion being as follows:

'1.07. Open Seasons--General Rules. Open seasons are given by their opening and closing dates and include all days between such opening and closing dates. There is no open season on game animals, game birds or fur-bearing animals on State game preserves, statutory wildlife sanctuaries, United States wildlife sanctuaries, within the corporate limits of any city, on public roads and highways or rights-of-way of such public roads and highways, and In State-owned river beds in Uvalde, Dimmit and Zavala Counties including, but not limited to, the Nueces and Frio Rivers . . ..' (Emphasis supplied)

Plaintiffs prayed that the proclamation be declared null and void and for 'a permanent injunction . . . prohibiting enforcement' of the proclamation by state and local authorities.

The Attorney General, for the Commission and the individual defendants in their official capacities, answered with pleas to the jurisdiction, pleas in abatement, and by general denial. The trial court overruled all pleas in bar and abatement, including pleas that the court was without jurisdiction because (1) the suit was in fact against the State, for which permission to sue had not been obtained, and (2) the suit failed to present a justiciable controversy.

Trial was before the court in November of 1972, and the court entered judgment on November 29 that plaintiffs take nothing by their suit. The court found that the Commission acted within the scope of its authority in issuing the proclamation, that section 1.07 'is constitutional,' that the proclamation was based 'upon substantial evidence,' and that the Commission in promulgating the proclamation 'did not act unreasonably, arbitrarily, unjustly, capriciously, nor illegally.'

Plaintiffs perfected their appeal and bring two points of error. In substance appellants' points are that (1) the trial court improperly applied the substantial evidence rule and that (2) as a matter of law there was no substantial evidence to support the court's decision.

Appellees reply to these points and bring two cross points of error. The cross points are (1) the trial court erred in holding that the doctrine of governmental immunity did not prevent this suit from being maintained and (2) it was error to hold that there was a justiciable controversy involved.

We have concluded that the trial court was without jurisdiction and the cause should have been dismissed. We will reverse the judgment of the trial court and render judgment dismissing the case.

It is an established rule, ably stated by McDonald, that '. . . sufficiency of a plaintiff's interest (to maintain a lawsuit) comes into question when he intervenes in public affairs. When the plaintiff, as a private citizen, asserts a public, as distinguished from a private, right, and his complaint fails to show that the matters in dispute affect him differently from other citizens, he does not establish a justiciable interest.' McDonald: Texas Civil Practice, vol. 1, sec. 3.03.3, p. 229 (1965 rev. vol.).

Appellants concede that the Parks and Wildlife Commission in promulgating the proclamation '. . . enacted a rule of conduct or law for the entire Citizenry of this State which must be followed under penalty of prosecution for violation thereof.' (Emphasis by appellants)...