Justice Evan Young

The Texas Supreme Court has declined to review a case challenging a South Padre Island city ordinance that requires a new food truck vendor to secure the signature of an owner of an existing free-standing food unit on the island in order to be eligible for a permit.

In Surfvive, Anubis Avalos, and Adonai Ramses Avalos v. City of South Padre Island (No. 22-0499; filed November 3, 2023), plaintiffs sought a permit to operate a food truck on South Padre Island without obtaining the required support of a local restaurant. When the city denied the permit, they filed suit challenging the ordinance on the theory that it violated their economic liberty rights under the Texas Constitution’s “due-course” clause, Article I, § 19. The city filed a plea to the jurisdiction and motion for summary judgment, arguing that the ordinance protects public health and promotes economic development. The trial court agreed with plaintiffs, denied the city’s plea, and granted plaintiffs’ motion for summary judgment.

The court of appeals reversed and rendered judgment for the city. First, the court determined that plaintiffs had standing to assert their restaurant permission claim because they demonstrated concrete harm that could be remedied by the court. Turning to the substantive due course claim, the court looked to SCOTX’s decision in Patel v. Texas Department of Licensing & Regulation, 469 S.W.3d 69 (Tex. 2015) for the appropriate standard of review for as-applied challenges, which requires the court to determine “whether the statute’s effect as a whole is so unreasonably burdensome that it becomes oppressive in relation to the underlying governmental interest.” This standard presumes the constitutionality of a statute and “places a high burden on parties claiming a statute violates substantive due course of law.” Of course, plaintiffs contended that the purpose of the ordinance is to protect local brick and mortar restaurants from competition and utterly lacked a rational connection to public health and safety or to economic development, as the city argued. The court concluded, however, that plaintiffs failed to carry their burden because they presented no evidence of “oppression.” They never asked a local restaurant owner to sign off on the permit, as other permitted food truck owners did, and they admitted that they could comply if they had to.

SCOTX declined review, with Justice Young penning a concurring opinion. Though he expressed (with good reason, we think) serious doubts about the constitutionality of the ordinance, he agreed with the Court that this was not the best test case. In addition to wondering whether the case presented a “clean due-course problem” in the first place, Justice Young pointed out that even if it did, taking it would not advance the state’s jurisprudence, especially since plaintiffs made no attempt to comply with the ordinance before challenging it (not to mention that a local restauranteur offered to sign off on the permit after the case was filed). As Justice Young put it, “even when we are troubled by a lower-court decision, we should exercise our discretion to deny review when we conclude that taking up a case is as likely to harm muddy the law as to benefit or clarify it.” That sounds like an exceptionally sound principle, especially when it comes to constitutional questions.

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