Texas Ass'n of Business v. Texas Air Control Board

852 S.W.2d 440, 1993 WL 54269

• Court: Texas Supreme Court
• Decided: May 5, 1993
• Docket: C-9556
• Status: Published

Opinions

OPINION

CORNYN, Justice.

The Texas Association of Business (TAB), on behalf of its members, brought this declaratory judgment action seeking a ruling that statutes empowering two state administrative agencies to levy civil penalties for violations of their regulations conflict with the open courts and jury trial provisions of the Texas Constitution. The administrative agencies denied TAB’s claims, and along with two Intervenors,¹ filed counterclaims seeking a declaration that the same statutes and regulations comport with those constitutional provisions.

Following a bench trial, the trial court denied the relief sought by TAB, and as requested by the State and Intervenors, declared that section 4.041 of the Texas Clean Air Act, sections 26.136 and 27.1015 of the Texas Water Code, and section 8b of the Texas Solid Waste Disposal Act, as well as the rules and regulations promulgated under those statutes, are constitutional with regard to the open courts and jury trial provisions. We affirm the trial court’s judgment as it relates to TAB’s jury trial challenge and reverse its judgment as to TAB’s open courts challenge.

An overview of the regulatory scheme enacted by the legislature and these agencies is essential to an understanding of this case. In 1967, the Texas Legislature enacted the Clean Air Act of Texas. Clean Air Act of Texas, 60th Leg., R.S., ch. 727, 1967 Tex.Gen.Laws 1941. The Clean Air Act was designed to safeguard the state’s air resources without compromising the economic development of the state. Id. at § 1. The Act created the Texas Air Control Board and granted it the authority to promulgate regulations to accomplish the Act’s goals. Id. at § 4(A)(2)(a). In the event the Air Control Board determined that a violation of its regulations had occurred, it was authorized to enforce those regulations in district court. Upon a judicial determination that a violation of the Air Control Board’s regulations had occurred, two cumulative remedies were available, injunctive relief to prohibit further violations and assessment of a fine ranging from $50 to $1,000 for each day the violations persisted. Id. at § 12(B).

In 1969, the Texas Legislature enacted the Solid Waste Disposal Act. Solid Waste Disposal Act, 61st Leg., R.S., ch. 405, 1969 Tex.Gen.Laws 1320. The express purpose for this legislation was to protect public health and welfare by regulating the “collection, handling, storage, and disposal of solid waste.” Id. at § 1. The Texas Water Quality Board was designated the primary agency to effectuate the Disposal Act’s purpose. Id. at § 4(f). Like the Air Control Board, the Water Quality Board was authorized to enforce its rules and regulations in state district court. The Solid Waste Disposal Act provided the same remedies as the Clean Air Act. See id. at § 8(c).

In the last of the relevant statutory enactments, in 1969, the Texas Legislature promulgated a revised version of the Water Quality Act. Water Quality Act — Revision, 61st Leg., R.S., ch. 760,1969 Tex.Gen.Laws 2229. By that Act, the Water Quality Board was given the power to develop a statewide water quality plan, to perform research and investigations, and to adopt rules and issue orders necessary to effectuate the Act’s purposes. Id. at § 3.01-3.10. The Water Quality Act provided the same remedies as the Solid Waste Management Act and the Clean Air Act. See id. at § 4.02.

Originally, neither the Water Quality Board nor the Air Control Board had the power to levy civil penalties directly in the event it determined that its regulations or orders had been violated. Instead, each board was required first to file suit against the violator in district court. Only the district court had the power to assess civil penalties.

The legislature substantially changed this enforcement scheme in 1985. That year the Air Control Board and the Water Commission (formerly the Water Control Board) were granted the power to assess civil penalties directly of up to $10,000 per day per violation.² Both administrative bodies also retained the option to pursue civil penalties in district court. Tex.Health & Safety Code §§ 361.224, 382.081; Tex.WateR Code § 26.123. This was the regulatory scheme in effect when the district court rendered judgment in this case.³

After the Air Control Board or Water Commission assesses a penalty, the offender must either timely pay the penalty or file suit in district court. However, a su-persedeas bond or cash deposit paid into an escrow account, in the full amount of the penalty, is a prerequisite to judicial review. Tex.Health & Safety Code §§ 382.089(a), (b), 361.252(k), (l); Tex.Water Code § 26.-136(j). A party who fails to make a cash deposit or file a bond forfeits all rights to judicial review. Tex.Health & Safety Code §§ 361.252(m), 382.089(c); Tex.Water Code § 26.136(k).

TAB alleges that it is a Texas not-for-profit corporation, that its members do business throughout Texas, and that it is authorized to represent its members on any matter that may have an impact on their businesses.

TAB filed this suit under the Uniform Declaratory Judgments Act, Tex.Civ.PRAC. & Rem.Code §§ 37.001-37.011, alleging that some of its members had been subjected to civil penalties assessed by either the Air Control Board or the Water Commission. TAB further alleged that all of its other members that operate their businesses pursuant to the pertinent provisions of the Texas Clean Air Act, the Texas Water Code, or the Texas Solid Waste Disposal Act or any rules or orders issued pursuant to those provisions were put at “substantial risk (if not certainty)” of being assessed civil penalties by the Air Control Board or the Water Commission. Thus this suit does not challenge specific instances of the Air Control Board’s or the Water Commission’s exercise, or threatened exercise, of the civil penalty power. Instead, TAB’s suit is a facial challenge to the constitutionality of this administrative enforcement scheme under the Texas Constitution.

The Defendants and Intervenors counterclaimed seeking a declaratory judgment that the statutes, rules, and regulations challenged by TAB do not, on their face, conflict with the open courts and jury trial provisions of our constitution. The trial court granted the Defendants’ and Interve-nors’ requested declaratory judgment and denied TAB’s request for a declaratory judgment. The court also denied TAB’s request for injunctive relief.

TAB appealed directly to this court. See Tex.Gov’t Code § 22.001(c);⁴ Tex.R.App.P. 140. In this court, TAB has limited its challenges to claims of unconstitutional denial of a jury trial and violation of our constitution’s open courts provision.

I. Standing

Before we reach the merits of this case, we first consider the matter of the trial court’s jurisdiction, as well as our own; specifically we determine whether TAB has standing to challenge the statutes and regulations in question. Because TAB’s standing to bring this action is not readily apparent, and because our jurisdiction as well as that of the trial court depends on this issue, we requested supplemental briefing on standing at the oral argument of this case. In response, the parties insist that any question of standing has been waived in the trial court and cannot be raised by the court for the first time on appeal. We disagree.

Subject matter jurisdiction is essential to the authority of a court to decide a case. Standing is implicit in the concept of subject matter jurisdiction. The standing requirement stems from two limitations on subject matter jurisdiction: the separation of powers doctrine and, in Texas, the open courts provision. Subject matter jurisdiction is never presumed and cannot be waived.⁵

One limit on courts’ jurisdiction under both the state and federal constitutions is the separation of powers doctrine. See Tex.Const. art. II, § 1; Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471-74, 102 S.Ct. 752, 757-60, 70 L.Ed.2d 700 (1982); Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975); see also, Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 18 Suffolk U.L.Rev. 881, 889 n. 69 (1983) (noting that the dicta of Flast v. Cohen, 392 U.S. 83, 100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968), suggesting that standing is unrelated to the separation of powers doctrine has since been disavowed). Under this doctrine, governmental authority vested in one department of government cannot be exercised by another department unless expressly permitted by the constitution. Thus we have construed our separation of powers article to prohibit courts from issuing advisory opinions because such is the function of the executive rather than the judicial department.⁶ Firemen’s Ins. Co. v. Burch, 442 S.W.2d 331, 333 (Tex.1969); Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 644 (Tex.1933). Accordingly, we have interpreted the Uniform Declaratory Judgments Act, Tex.Civ.Prac. & Rem.Code §§ 37.001-.011, to be merely a procedural device for deciding cases already within a court’s jurisdiction rather than a legislative enlargement of a court’s power, permitting the rendition of advisory opinions. Firemen’s Ins. Co., 442 S.W.2d at 333; United Serv. Life Ins. Co. v. Delaney, 396 S.W.2d 855, 863 (Tex.1965); California Prods., Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960).

The distinctive feature of an advisory opinion is that it decides an abstract question of law without binding the parties. Alabama State Fed’n of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 1389, 89 L.Ed. 1725 (1945); Firemen’s Ins. Co., 442 S.W.2d at 333; Puretex Lemon Juice, Inc., 160 Tex. at 591, 334 S.W.2d at 783. An opinion issued in a case brought by a party without standing is advisory because rather than remedying an actual or imminent harm, the judgment addresses only a hypothetical injury. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Texas courts, like federal courts, have no jurisdiction to render such opinions.

The separation of powers doctrine is not the only constitutional basis for standing. Under federal law, standing is also an aspect of the Article III limitation of the judicial power to “cases” and “controversies.” Sierra Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972). To comport with Article III, a federal court may hear a case only when the litigant has been threatened with or has sustained an injury. Valley Forge Christian College, 454 U.S. at 471, 102 S.Ct. at 758. Under the Texas Constitution, standing is implicit in the open courts provision, which contemplates access to the courts only for those litigants suffering an injury. Specifically, the open courts provision provides:

All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

Tex. Const. art. I, § 13 (emphasis added). Because standing is a constitutional prerequisite to maintaining a suit under both federal and Texas law, we look to the more extensive jurisprudential experience of the federal courts on this subject for any guidance it may yield.

Under federal law, a lack of standing deprives a court of subject matter jurisdiction because standing is an element of such jurisdiction. Carr v. Alta Verde Indus., 931 F.2d 1055, 1061 (5th Cir.1991); Simmons v. Interstate Commerce Comm’n, 900 F.2d 1023, 1026 (7th Cir.1990); M.A.I.N. v. Commissioner, Maine Dept. of Human Serv., 876 F.2d 1051, 1053 (1st Cir.1989); Haase v. Sessions, 835 F.2d 902, 908 (D.C.Cir.1987); Page v. Schweiker, 786 F.2d 150, 153 (3d Cir.1986); see also Lujan v. Defenders of Wildlife, - U.S. -, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Heckler v. Mathews, 465 U.S. 728, 737, 104 S.Ct. 1387, 1394, 79 L.Ed.2d 646 (1984); Warth, 422 U.S. at 511, 95 S.Ct. at 2211. Other states have followed this analysis in construing their own constitutions.⁷ See e.g., Prudential-Bache Sec., Inc. v. Commissioner of Revenue, 412 Mass. 243, 588 N.E.2d 639, 642 (1992); Bennett v. Board of Trustees for Univ. of N. Colorado, 782 P.2d 1214, 1216 (Colo.App.1989), cert. denied, 797 P.2d 748 (Colo.1990); Pace Constr. Co. v. Missouri Highway and Transp. Comm’n, 759 S.W.2d 272, 274 (Mo.App.1988); Terracor v. Utah Bd. of State Lands & Forestry, 716 P.2d 796, 798-99 (Utah 1986); State by McClure v. Sports and Health Club, Inc., 370 N.W.2d 844, 850 (Minn.1985), appeal dism’d, 478 U.S. 1015, 106 S.Ct. 3315, 92 L.Ed.2d 730 (1986); Smith v. Allstate Ins. Co., 483 A.2d 344, 346 (Me.1984); Ardmare Constr. Co. v. Freedman, 191 Conn. 497, 467 A.2d 674, 675 n. 4, 676-77 (1983); Horn v. County of Ventura, 24 Cal.3d 605, 156 Cal.Rptr. 718, 726, 596 P.2d 1134, 1142 (1979); Stewart v. Board of County Comm’rs of Big Horn County, 175 Mont. 197, 573 P.2d 184, 186, 188 (1977); State ex rel. Albritton v. Moore, 238 La. 728, 116 So.2d 502, 504 (1959).

Subject matter jurisdiction is an issue that may be raised for the first time on appeal; it may not be waived by the parties. Texas Employment Comm’n v. International Union of Elec., Radio and Mach. Workers, Local Union No. 782, 163 Tex. 135, 352 S.W.2d 252, 253 (1961); Restatement (Second) of Judgments § 11, comment c (1982). This court recently reiterated that axiom in Gorman v. Life Insurance Co., 811 S.W.2d 542, 547 (Tex.), cert. denied, - U.S. -, 112 S.Ct. 88, 116 L.Ed.2d 60 (1991). Because we conclude that standing is a component of subject matter jurisdiction, it cannot be waived and may be raised for the first time on appeal.⁸

If we were to conclude that standing is unreviewable on appeal at least three undesirable consequences could result. First and foremost, appellate courts would be impotent to prevent lower courts from exceeding their constitutional and statutory limits of authority. Second, appellate courts could not arrest collusive suits. Third, by operation of the doctrines of res judicata and collateral estoppel, judgments rendered in suits addressing only hypothetical injuries could bar relitigation of issues by a litigant who eventually suffers an actual injury. We therefore hold that standing, as a component of subject matter jurisdiction, cannot be waived in this or any other case and may be raised for the first time on appeal by the parties or by the court.

We are aware that this holding conflicts with Texas Industrial Traffic League v. Railroad Commission, 633 S.W.2d 821, 823 (Tex.1982) (per curiam).⁹ The analysis that leads us to the conclusion we reach here, however, compels us to overrule Texas Industrial Traffic League and disapprove of all cases relying on it to the extent that they conflict with this opinion.¹⁰ Although our concern for the rule of stare decisis makes us hesitant to overrule any case, when constitutional principles are at issue this court as a practical matter is the only government institution with the power and duty to correct such errors. See Payne v. Tennessee, - U.S. -, - - -, 111 S.Ct. 2597, 2609-11, 115 L.Ed.2d 720 (1991) (observing that reexamination of constitutional decisions is appropriate when “correction through legislative action is practically impossible”).

Consequently, we proceed to determine here, on our own motion, whether TAB has standing to bring this suit.

Because standing is a component of subject matter jurisdiction, we consider TAB’s standing under the same standard by which we review subject matter jurisdiction generally. That standard requires the pleader to allege facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. Richardson v. First Nat’l Life Ins. Co., 419 S.W.2d 836, 839 (Tex.1967). When reviewing a trial court order dismissing a cause for want of jurisdiction, Texas appellate courts “construe the pleadings in favor of the plaintiff and look to the pleader’s intent.” Huston v. Federal Deposit Ins. Corp., 663 S.W.2d 126, 129 (Tex.App.—Eastland 1983, writ ref’d n.r.e. 1984); see also W. Wendell Hall, Standards of Appellate Review in Civil Appeals, 21 St. Mary’s L.J. 865, 870 (1990).

Here, however, we are not reviewing a trial court order of dismissal for want of jurisdiction, we are considering standing for the first time on appeal. A review of only the pleadings to determine subject matter jurisdiction is sufficient in the trial court because a litigant has a right to amend to attempt to cure pleading defects if jurisdictional facts are not alleged. See Tex.R.Civ.P. 80. Failing that, the suit is dismissed. When an appellate court questions jurisdiction on appeal for the first time, however, there is no opportunity to cure the defect. Therefore, when a Texas appellate court reviews the standing of a party sua sponte, it must construe the petition in favor of the party, and if necessary, review the entire record to determine if any evidence supports standing.

TAB asserts standing on behalf of its members. The general test for standing in Texas requires that there “(a) shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought.” Board of Water Engineers v. City of San Antonio, 155 Tex. 111, 114, 283 S.W.2d 722, 724 (1955). Texas, however, has no particular test for determining the standing of an organization, such as TAB. See e.g., Touchy v. Houston Legal Found., 432 S.W.2d 690, 694 (Tex.1968); Texas Highway Comm’n v. Texas Ass’n of Steel Importers, Inc., 372 S.W.2d 525, 530-31 (Tex.1963). While we agree with the statement of the general test for standing set out in Board of Water Engineers, we foresee difficulties in relying on it alone to determine the standing of an organization like TAB. For instance, when members of an organization have individual standing, but the organization was not established for the purpose of protecting the particular interest at issue, it is not necessarily in the members’ best interest to allow such a disinterested organization to sue on their behalf. Furthermore, an organization should not be allowed to sue on behalf of its members when the claim asserted requires the participation of the members individually rather than as an association, such as when the members seek to recover money damages and the amount of damages varies with each member.

The United States Supreme Court has articulated a standard for associational standing that lends itself to our use. We adopt that test today. In Hunt v. Washington State Apple Advertising Commission, the Court held that an association has standing to sue on behalf of its members when “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977); see also New York State Club Ass’n v. City of New York, 487 U.S. 1, 9, 108 S.Ct. 2225, 2231, 101 L.Ed.2d 1 (1988); International Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 282, 106 S.Ct. 2523, 2528, 91 L.Ed.2d 228 (1986). This standard incorporates the standing analysis we adopted in Board of Water Engineers, yet addresses the additional concerns we have noted.

We now apply the Hunt standard to the case before us. Reviewing the record in its entirety for evidence supporting subject matter jurisdiction, and resolving any doubt in TAB’s favor, we conclude that TAB has standing to pursue the relief it seeks in this case.

The first prong of the Hunt test requires that TAB’s pleadings and the rest of the record demonstrate that TAB’s members have standing to sue in their own behalf. This requirement should not be interpreted to impose unreasonable obstacles to associational representation. In this regard the United States Supreme Court stated that “the purpose of the first part of the Hunt test is simply to weed out plaintiffs who try to bring cases, which could not otherwise be brought, by manufacturing allegations of standing that lack any real foundation.” New York State Club Ass’n, 487 U.S. at 9, 108 S.Ct. at 2232. We are satisfied that TAB has not manufactured this lawsuit. A comparison of the association’s membership roster with the list of businesses subjected to state penalties indicates individual TAB members have been assessed administrative penalties pursuant to the challenged enactments. Additionally, TAB has alleged that other of its members remain at substantial risk of penalty. A substantial risk of injury is sufficient under Hunt. See e.g., Pennell v. City of San Jose, 485 U.S. 1, 7 n. 3, 108 S.Ct. 849, 855 n. 3, 99 L.Ed.2d 1 (1988) (concluding that association of landlords had standing based on pleadings that individual members would likely be harmed by rent ordinance). Thus TAB satisfies the first prong of the Hunt test.

The second prong of Hunt requires that TAB’s pleadings and the rest of the record demonstrate that the interests TAB seeks to protect are germane to the organization’s purpose. TAB was chartered to “represent the interests of its members on issues which may impact upon its members’ businesses.” Considering a very similar question in New York State Club Association, the United States Supreme Court held that: “[T]he associational interests that the consortium seeks to protect are germane to its purpose: appellant’s certificate of incorporation states that its purpose is ‘to promote the common business interests of its [member clubs].’ ” 487 U.S. at 10 n. 4, 108 S.Ct. at 2232, n. 4 (bracketed language in original). Likewise, the interests TAB desires to protect are germane to the organization’s purpose, and thus the second prong is met.

Under the third and final prong of the Hunt test, TAB’s pleadings and the record must demonstrate that neither the claim asserted nor the relief requested require the participation of individual members in the lawsuit. The Supreme Court has interpreted this prong as follows:

[W]hether an association has standing to invoke the court’s remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured.

Hunt, 432 U.S. at 343, 97 S.Ct. at 2441 (quoting Warth, 422 U.S. at 515, 95 S.Ct. at 2213).

By seeking damages on behalf of its members, necessitating that each individual prove lost profits particular to its operations, the organization in Warth lacked standing to sue; rather, each individual member had to be a party to the suit. These facts are distinguishable from Brock, in which the union challenged an administrative interpretation of statutory provisions relating to unemployment compensation. 477 U.S. 274, 106 S.Ct. 2523. Recognizing that the suit raised “a pure question of law,” and that “the individual circumstances” of any aggrieved member were not in issue, the Court held that the UAW had standing to challenge the government’s actions. Id. at 287-88, 290, 106 S.Ct. at 2531-32, 2533; see also Pennell, 485 U.S. at 7 n. 3, 108 S.Ct. at 855 n. 3 (facial challenge to rent ordinance does not require participation of individual landlords). Here, TAB seeks only prospective relief, raises only issues of law, and need not prove the individual circumstances of its members to obtain that relief, thus meeting the third prong of Hunt.

Having found that TAB meets all three prongs of the Hunt test, we conclude that TAB has standing to pursue the relief it seeks in this case.

II. Open Courts

TAB contends that the forfeiture provisions of the statutes and regulations in question violate the open courts provision of the Texas Constitution by unreasonably restricting access to the courts. After the agency has found a party to be in violation of any of these statutes and regulations, the offender must either tender a cash deposit or post a supersedeas bond in the full amount of the penalties assessed, or forfeit the right to judicial review.¹¹

Historically, we have recognized at least three separate constitutional guarantees emanating from our open courts provision. First, courts must actually be open and operating, so that, for example, the legislature must place every county within a judicial district. Runge & Co. v. Wyatt, 25 Tex.Supp. 294 (1860). Second, citizens must have access to those courts unimpeded by unreasonable financial barriers, so that the legislature cannot impose a litigation tax in the form of increased filing fees to enhance the state’s general revenue, LeCroy v. Hanlon, 713 S.W.2d 335, 342 (Tex.1986). Finally, meaningful legal remedies must be afforded to our citizens, so that the legislature may not abrogate the right to assert a well-established common law cause of action unless the reason for its action outweighs the litigants’ constitutional right of redress. Sax v. Votteler, 648 S.W.2d 661, 665-66 (Tex.1983).

Here the second guarantee is applicable. This is not a question of the abrogation of any well-established common law cause of action,¹² just as it is not a question of the physical absence of a court to which a complaint may be brought. The issue before us is access to the courts. In previous cases involving this issue, we did not predicate our decision on whether the party whose access had been restricted was attempting to assert a common law cause of action. In LeCroy, for example, the court did not permit increased filing fees for statutory causes of action while denying them for common law claims. 713 S.W.2d 335. Likewise in Dillingham v. Putnam, when the court struck down a statute requiring a supersedeas bond as a condition of appeal, the court did not concern itself with whether the particular appeal being restricted involved a common law or statutory claim. 109 Tex. 1, 14 S.W. 303 (1890). Similarly, in the present case, the issue is simply whether the prepayment requirement is an unreasonable financial barrier to access to the courts in light of the state interest involved.

The stated purpose of the regulatory statutes at issue here is to protect our state’s natural resources.¹³ There is no question that this is an important state interest.¹⁴ The state argues that the prepayment provisions further this interest by increasing the deterrent effect of the penalties and by aiding in their collection. The state maintains that a violator will be less deterred by an administrative penalty if it can delay payment without bond while appealing the case in the courts. The state also argues that delay may render the penalty uncollectible, as the violator may become insolvent.

In considering these rationales, we note that the prepayment provisions actually consist of two elements. First, the assessed penalty must be paid, or financial security provided, within thirty days; enforcement is not stayed pending any period of judicial review.¹⁵ Second, if payment is not made or financial security provided within the thirty-day period, the right to judicial review is forfeited. We agree that the rationales advanced by the state justify the first of these elements. Requiring expeditious payment of the administrative penalties increases their effectiveness. The legislature, however, could have imposed the first element without the second. It could have provided the agency with the right to collection of assessed penalties unless a supersedeas bond is posted, yet provided for judicial review. The requirement of immediate payment, without the corresponding forfeiture provision, would not have implicated the open courts provision, as the charged party could have obtained judicial review regardless of payment. This approach would have been in accordance with the usual procedure governing appeals of trial court judgments. See Tex. R.App.P. 40. Any litigant may appeal without superseding the trial court’s judgment, but the mere pendency of an appeal does not stay enforcement of the judgment.¹⁶ Our specific focus for purposes of our open courts analysis, therefore, is not whether the requirement of immediate payment is reasonable, but whether the forfeiture of the right of judicial review, if the penalties are not superseded, is reasonable.

We conclude that the forfeiture provision is an unreasonable restriction on access to the courts. While the requirement of prepayment or the posting of a bond to stay enforcement furthers the state’s important environmental interests by creating a strong incentive for timely payment of the assessed penalties, the forfeiture provision serves no additional interest.¹⁷ The state may accomplish its goals by enforcing the prepayment requirements without infringing on a party’s right to its day in court. Accordingly, we hold that forfeiture sections of the statutes and regulations at issue facially violate our open courts provision.¹⁸

III. Jury Trial

TAB also claims that the statutes empowering these agencies to assess civil penalties violate the right to a jury trial guaranteed by the Texas Constitution.¹⁹ We disagree.

Artiele I, section 15 of our constitution²⁰ preserves a right to trial by jury for those actions, or analogous actions, tried to a jury at the time the constitution of 1876 was adopted. E.g., State v. Credit Bureau of Laredo, 530 S.W.2d 288, 291 (Tex.1975); White v. White, 108 Tex. 570, 196 S.W. 508 (1917); Hatten v. City of Houston, 373 S.W.2d 525 (Tex.Civ.App.—Houston 1963, writ ref’d n.r.e.); Hickman v. Smith, 238 S.W.2d 838 (Tex.Civ.App.—Austin 1951, writ ref’d). A jury trial is not mandated by this provision for any other judicial proceeding. Id.

In Credit Bureau, we concluded that a suit for civil penalties for violation of an injunction issued pursuant to the Texas Deceptive Trade Practices Act was analogous to the common law action for debt, tried to a jury at the time our constitution was adopted. 530 S.W.2d at 293. Thus, we held that the right to a jury trial for that action remained inviolate. Id. We observed in Credit Bureau, however, that in certain types of adversary proceedings the constitutional right to a jury trial does not attach. Among the proceedings we referred to are appeals from administrative decisions.²¹ Id. (citing State v. De Silva, 105 Tex. 95, 145 S.W. 330 (1912), and Texas Liquor Control Bd. v. Jones, 112 S.W.2d 227 (Tex.Civ.App.—Houston 1937, writ ref’d n.r.e.)). Consistent with this noted exception in Credit Bureau, we conclude that these agencies’ assessments of environmental penalties are not actions, or analogous actions, to those tried to a jury at the time the constitution of 1876 was adopted. To hold that these environmental statutes and regulations promulgated in the late 1960s merely parrot common law and statutory rights triable to a jury in 1876 would turn a blind eye to the emergence of the modern administrative state and its profound impact on our legal and social order. In the late 19th century, ours was primarily a sparsely-populated agrarian society. See generally, T.R. Fehrenbach, Lone Star: A History of Texas and the Texans, 279-324 (1983). By contrast, concentrated industrial activity and its byproducts, including the wide-spread emission of pollutants, with their resulting potential for significant damage to our natural resources are phenomena of relatively recent origin. In response to such phenomena, regulatory schemes, such as those challenged here, were designed to balance mounting environmental concerns with our state’s economic vitality. In 1876 no governmental schemes akin to these existed.²² Thus, we conclude that the contested proceedings are not analogous to any action tried to a jury in 1876. Accordingly, we hold that no right to a jury trial attaches to appeals from administrative adjudications under the environmental statutes and regulations at issue here.²³

We should not be misunderstood to say that the legislature may abrogate the right to trial by jury in any case by delegating duties to an administrative agency. Here, we simply reaffirm what this court held almost a half century ago, in Corzelius v. Harrell, 143 Tex. 509, 186 S.W.2d 961 (1945). In Corzelius, we concluded that certain judicial functions, including fact finding, may be delegated constitutionally by the legislature to administrative agencies in furtherance of the preservation and conservation of the state’s natural resources. The decision in Corzelius was based on article XVI, section 59(a) of our constitution, which provides in relevant part: “The conservation and development of all the natural resources of this State ... and the preservation and conservation of all such natural resources ... are each and all ... public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto.” Tex. Const. art. XVI, § 59(a). “By the use of the broad language used in Article XVI, Section 59(a),” the court stated, “the Legislature is authorized to enact such laws as are necessary to carry out the purposes for which such constitutional amendment was adopted.” Corzelius, 186 S.W.2d at 964.²⁴

There is no doubt that the legislature delegated the power to assess these civil penalties to the Air Control Board and the Water Commission as a manifestation of the public’s interest in preserving and conserving the state’s air and water resources. That intent is apparent from the policy statements of the relevant statutes.²⁵ We conclude, therefore, that the delegation of the fact-finding function by the legislature to the Air Control Board and the Water Commission under this statutory scheme was within the legislature’s constitutional authority.

Of course, the fact that no jury trial is provided by the legislature to an alleged violator of these environmental protection laws does not mean that the agencies’ power to assess penalties is unbridled.²⁶ The Air Control Board and the Water Commission may act only within constitutional and statutory parameters.

For the reasons set out above, we reverse that portion of the trial court’s judgment declaring that section 4.041 of the Texas Clean Air Act, sections 26.136 and 27.1015 of the Texas Water Code, and section 8b of the Texas Solid Waste Disposal Act and the rules and regulations promulgated under those statutes comport with the open courts provision of our constitution, article I, section 13. We declare that the requirement of a supersedeas bond or cash deposit paid into an escrow account as a prerequisite to judicial review under Tex. Health & Safety Code §§ 361.252(m) (first clause), 382.089(c) (first sentence), and Tex.WateR Code § 26.136(k) (first sentence) is unconstitutional. We affirm that portion of the trial court’s judgment declaring that the listed statutes, rules, and regulations do not violate the jury trial provision of our constitution, article I, section 15.

Concurring and dissenting opinions by DOGGETT, GAMMAGE and SPECTOR, JJ. HIGHTOWER, J., not sitting.

1 . The League of Women Voters and the Lone Star Chapter of the Sierra Club intervened in the suit and were aligned as defendants with the Texas Air Control Board and the Texas Water Commission. Justice Doggett contends that the standing of the Intervenors should be addressed along with TAB’S. We disagree. Standing concerns a party's faculty to invoke the court’s subject matter jurisdiction. Once it has been invoked by a plaintiff, a court’s subject matter jurisdiction is not affected by the status of defendants or intervenors aligned in interest with defendants.

2 . Act of June 14, 1985, 69th Leg., R.S., ch. 637, § 33, 1985 Tex.Gen.Laws 2350, 2359 (amending Texas Clean Air Act codified at Tex.Rev.Civ.Stat. Ann. art. 4.041 (Vernon 1976), currently codified as amended at Tex.Health & Safety Code § 382.-088; Act of June 15, 1985, 69th Leg., R.S., ch. 795, § 6.001, 1985 Tex.Gen.Laws 2719, 2813 (amending Solid Waste Disposal Act codified at Tex.Rev.Civ.Stat.Ann. art. 4477-7 (Vernon 1976), currently codified as amended at Tex.Health & Safety Code § 361.252; Act of June 15, 1985, 69th Leg., R.S., ch. 795, § 5.007, 1985 Tex.Gen. Laws 2719, 2806 (amending Tex.Water Code § 26.136).

3 . Although some amendments have been adopted since, they are not relevant to the issue presented in this case. See Diana C. Dutton, Environmental, 45 Sw. L.J. 389 (1991) (summarizing statutory developments).

4 . "An appeal may be taken directly to the supreme court from an order of a trial court granting or denying an interlocutory or permanent injunction on the ground of the constitutionality of a statute of this state.” Tex.Gov’t Code § 22.001(c).

5 . Justice Doggett confuses subject matter jurisdiction with personal jurisdiction. Only the latter can be waived when uncontested. See TEX. R.CIV.P. 120a.

6 . The analysis is the same under the federal constitution. See e.g. Correspondence of the Justices, Letter from Chief Justice John Jay and the Associate Justices to President George Washington, August 8, 1793 in Laurence H. Tribe, American Constitutional Law 73 n. 3 (2nd ed. 1988).

7 . Of the states listed by Justice Doggett, only Illinois, Iowa, Kentucky, New York, South Dakota, and perhaps Ohio, Pennsylvania and Washington actually treat jurisdictional standing as waivable. See 852 S.W.2d at 469. The other state cases cited deal with the waiver of objections to join a real party in interest or to a party’s capacity to sue rather than to jurisdictional standing. See International Depository, Inc. v. State, 603 A.2d 1119, 1122 (R.I.1992) (addressing real party in interest objection); Princess Anne Hills Civ. League, Inc. v. Susan Constant Real Estate Trust, 243 Va. 53, 413 S.E.2d 599, 603 n. 1 (1992) (addressing real party in interest objection); Sanford v. Jackson Mall Shopping Ctr. Co., 516 So.2d 227, 230 (Miss.1987) (addressing real party in interest objection); Jackson v. Nangle, 677 P.2d 242, 250 n. 10 (Alaska 1984) (addressing real party in interest objection); Poling v. Wisconsin Physicians Serv., 120 Wis.2d 603, 357 N.W.2d 293, 297-98 (App.1984) (addressing real party in interest objection); Torrez v. State Farm Mut. Auto. Ins. Co., 130 Ariz. 223, 635 P.2d 511, 513 n. 2 (App.1981) (addressing real party in interest objection); Brown v. Robinson, 354 So.2d 272, 273 (Ala.1977); Cowart v. City of West Palm Beach, 255 So.2d 673, 675 (Fla.1971) (addressing capacity objection).

8 . Justice Doggett disagrees that standing is a component of subject matter jurisdiction, yet he declines to explain what role standing plays in our jurisprudence. From his harsh critique of the doctrine, it seems that he not only objects to the conclusion that standing cannot be waived but also to the conclusion that standing is a requirement to initiate a lawsuit.

9 . Texas Industrial Traffic League relied on two cases to support its holding that standing cannot be raised for the first time on appeal: Coffee v. William Marsh Rice University, 403 S.W.2d 340, 341 (Tex.1966), and Sabine River Authority v. Willis, 369 S.W.2d 348, 350 (Tex.1963). We need not overrule these two cases, however, because unlike Texas Industrial Traffic League, we believe that standing was present in the trial court in these cases. Our concern is with a party’s right to initiate a lawsuit and the trial court’s corresponding power to hear the case ab initio. Standing is determined at the time suit is filed in the trial court, and subsequent events do not deprive the court of subject matter jurisdiction. Carr, 931 F.2d at 1061.

10 . Justice Doggett claims that we overrule three additional decisions of this court. See Central Educ. Agency v. Burke, 711 S.W.2d 7 (Tex.1986) (per curiam); American Gen. Fire & Casualty Co. v. Weinberg, 639 S.W.2d 688 (Tex.1982); Cox v. Johnson, 638 S.W.2d 867 (Tex.1982) (per curiam). We disagree. These cases hold that matters not raised in the trial court are waived. One exception noted by these decisions, however, is a lack of jurisdiction which may be raised by a party, or the court, for the first time on appeal. Justice Doggett does not believe that standing falls within that exception because he contends that standing is not jurisdictional.

11 . In most other jurisdictions, such prepayment provisions are required only to stay execution of judgments and are not prerequisites to the right to appeal itself. See Gary Stein, Expanding the Due Process Rights of Indigent Litigants: Will Texaco Trickle Down?, 61 N.Y.U.L.Rev. 463, 469 (1986).

12 . Thus, contrary to Justice Doggett’s reading of our opinion, the Sax test is inapplicable.

13 . The Clean Air Act was implemented to "safeguard the state’s air resources from pollution by controlling or abating air pollution and emissions of air contaminants_” TEX.HEALTH & SAFETY CODE § 382.002(a). The Texas Water Code was implemented to “maintain the quality of water in the state consistent with the public health and enjoyment ...” Tex.Water Code § 26.003.

14 . The importance is evidenced by article XVI, section 59(a) of our constitution, which provides in relevant part that: "The conservation and development of all the natural resources of this State ... and the preservation and conservation of all such natural resources ... are each and all ... public rights and duties.” TEX. CONST. art. XVI, § 59(a).

15 . If the person charged does not make payment or post bond within thirty days, the agency may forward the matter to the attorney general for enforcement. TEX.HEALTH & SAFETY CODE § 382.089(c), § 361.252(m); TEX.WATER CODE § 26.136(k).

16 . It has been argued that our procedure of allowing immediate enforcement of trial court judgments violates federal due process when the judgment debtor is financially unable to post a supersedeas bond and immediate enforcement will cause irreparable injury. Texaco, Inc. v. Pennzoil Co., 784 F.2d 1133 (2d Cir.1986), rev’d on other grounds, 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987). A similar argument could be fashioned under the Texas open courts provision, but TAB does not assert that argument here. TAB’s open courts challenge centers not on the requirement of immediate payment, but on the forfeiture of judicial review if payment is not made.

17 . Thus, contrary to Justice Doggett’s assertion, we do not strike down the penalties themselves. Nothing in this opinion prohibits the state's collection of assessed penalties. We hold as viola-tive of our open courts provision only the requirement that the penalties be paid as a condition to judicial review. Furthermore, nothing in our opinion requires that penalties already paid be refunded.

18 . That the affected parties may be able to afford prepayment is irrelevant. The guarantee of constitutional rights should not depend on the balance in one’s bank account.

19 . TAB claims that the lack of a jury trial before the agency as well as the lack of a trial de novo violate article I, section 15. We limit our inquiry to the absence of a trial de novo because, as this court has said: "Trial by jury cannot be claimed in an inquiry that is non-judicial in its character, or with respect to proceedings before an administrative board.” Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556, 561-62 (1916). Even if the right to a jury is denied before an administrative agency, the dis-positive question is whether a trial de novo and the corresponding right to a jury trial is constitutionally required upon judicial review of the agency’s decision. See Cockrill v. Cox, 65 Tex. 669, 674 (1886) (“The right of jury trial remains inviolate, though denied in the court of first instance [in civil cases], if the right to appeal and the jury trial on appeal are secured.”) (bracketed language in original).

20 . Article I, section 15, provides, in pertinent part:

The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. * * *.

TAB has not presented in this court, as it did below, its complaint that the statutes and regulations also violate the right to jury trial under article V, section 10 of the Texas Constitution.

21 . While the Credit Bureau court specifically referred to the broader jury trial provision in article V, section 10 when it discussed the administrative proceeding exception, that exception necessarily also applies to the narrower provision found in article I, section 15.

22 . We do not consider nineteenth century criminal nuisance laws comparable to modern environmental regulations. See 852 S.W.2d at 461.

23 . Despite Justice Doggett’s trumpeting of our constitution's guarantee of trial by jury, he agrees that the right does not attach under the circumstances of this case.

24 . Justice Doggett contends that the basis for our jury trial holding is overbroad. Instead, he would have us adopt the "imperfectly employed” federal test first enunciated in Atlas Roofing Co. v. Occupational Safety & Health Review Comm'n, 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977). Infra, 852 S.W.2d at 464. The basis for our decision is more limited, arising as it does out of Tex. Const. article XVI, section 59(a) and our decision in Corzelius.

25 .The Clean Air Act proclaims:

The policy of this state and the purpose of this chapter to safeguard the air resources of the state from pollution by controlling or abating air pollution and emissions of air contaminants, consistent with the protection of public health, general welfare, and physical property of the people, including the aesthetic enjoyment of air resources by the public and the maintenance of adequate visibility.

TEX.HEALTH & SAFETY CODE § 382.002. The Texas Water Code proclaims in relevant part:

It is the policy of this state and the purpose of the subchapter to maintain the quality of water in the state consistent with the public health and enjoyment

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TEX.WATER CODE § 26.003.

26 . The actions of the agencies involved in this proceeding are subject to the Administrative Procedure and Texas Register Act (APTRA), which specifically affords a "full panoply of procedural safeguards” to a party to contested case before those agencies. Southwestern Bell Tel. Co. v. Public Util. Comm'n of Tex., 571 S.W.2d 503, 507 (Tex.1978). These procedural safeguards include the right to notice, the making of a full record of the proceeding before the agency, the taking of depositions, the right to subpoena witnesses, the application of the rules of evidence, the preparation of proposal for decision and the filing of exceptions and briefs, as well as separately stated findings of fact and conclusions of law. Tex.Civ.Stat.Ann. art. 6252-13a § 19 (Vernon Supp.1993). Judicial review is provided by section 19(e) under the substantial evidence rule, which directs a reviewing court to reverse and remand the agency adjudication if the agency decision is:

1)in violation of constitutional or statutory provisions;

2) in excess of the statutory authority of the agency;

3) made upon unlawful procedure;

4) affected by other error of law;

5) not reasonably supported by substantial evidence in view of the reliable and probative evidence in the record as a whole; or

6) arbitrary and capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Id.

We have held that judicial review under AP-TRA based on the record developed before the agency “furnishes more assurance of due process and a surer means of determining whether an agency acted arbitrarily, capriciously and without due regard for the evidence." Imperial Am. Resources Fund, Inc. v. Railroad Comm’n of Tex., 557 S.W.2d 280, 285 (Tex.1977); see also, Southwestern Bell Tel. Co., 571 S.W.2d at 509.