               IN THE SUPREME COURT OF TEXAS
                                      ════════════
                                        NO. 12-0657
                                      ════════════


       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
           ══════════════════════════════════════════
                       ON PETITION FOR REVIEW FROM THE
                COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
           ══════════════════════════════════════════


       JUSTICE BOYD, concurring in judgment.

       I concur in the Court’s judgment but do not fully agree with its reasoning. Specifically, I

do not agree with the Court’s adoption of a new alternative test under which the Texas

Constitution’s “due course of law” provision invalidates any law that is “so unreasonably

burdensome that it becomes oppressive in relation to the underlying governmental interest.” Ante

at ___. Nevertheless, I conclude that the Texas statute requiring the petitioners—who merely

remove superfluous hair using tweezing techniques—to obtain an esthetician’s license is arbitrary

and unreasonable, and therefore oppressive, because it has no rational relationship to a legitimate

government interest.

       The Texas Constitution provides that “[n]o citizen of this State shall be deprived of life,

liberty, property, privileges or immunities, or in any manner disfranchised, except by the due

course of the law of the land.” TEX. CONST. art. I, § 19. Under our precedent, this guarantee

“contains both a procedural component and a substantive component.” Barshop v. Medina Cnty.
Underground Water Conservation Dist., 925 S.W.2d 618, 632 (Tex. 1996). The issue here is

whether requiring the petitioners to obtain an esthetician’s license as a condition for practicing

their trade of eyebrow threading violates their substantive rights to liberty, property, privileges, or

immunities without due course of law.

       As the Court notes, this Court has “not been entirely consistent” in its articulation of the

standard by which we review the constitutionality of economic regulations under the due course

of law provision. Ante at ___. Through the years, for example, we have variously said that laws

are presumed to be constitutional and a law is invalid only if:

      it is “unreasonable and in contravention of common right,” Milliken v. City Council of
       Weatherford, 54 Tex. 388, 394 (1881);

      it invades rights “without justifying occasion, or in an unreasonable, arbitrary, and
       oppressive way,” Hous. & Tex. Cent. Ry. Co. v. City of Dall., 84 S.W. 648, 653 (Tex.
       1905);

      it is not “sufficiently rational and reasonable,” Tex. Workers’ Comp. Comm’n v. Garcia,
       893 S.W.2d 504, 525 (Tex. 1995);

      it has “no foundation in reason and is a mere arbitrary or irrational exercise of power having
       no substantial relation to the public health, the public morals, the public safety or the public
       welfare in its proper sense,” Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 938 (Tex.
       1998) (quoting Nectow v. City of Cambridge, 277 U.S. 183, 187–88 (1928));

      it is not “designed to accomplish an objective within the government’s police power and
       [no] rational relationship exists between the ordinance and its purpose, id.;

      the “enacting body could [not] have rationally believed at the time of enactment that the
       ordinance would promote its objective,” id.;

      it is not “at least fairly debatable that the [Legislature’s] decision was rationally related to
       legitimate government interests,” id.; or

      it is “clearly arbitrary and unreasonable,” id.

       These precedents illustrate the difficulty the Court has had articulating the appropriate

standard. I would read our prior descriptions together, to provide that a law violates the substantive

due course of law provision only if it is arbitrary and unreasonable, and therefore oppressive,

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because it has no rational relationship to a legitimate government interest. The Court, by contrast,

holds that a law is invalid if its “purpose could not arguably be rationally related to a legitimate

governmental interest” or “when considered as a whole, [its] actual, real-world effect as applied

to the challenging party could not arguably be rationally related to, or is so burdensome as to be

oppressive in light of, the governmental interest.” Ante at ___ (emphasis added). In other words,

the Court holds that a law is invalid if it is “burdensome” and “oppressive in light of” the legitimate

governmental interest, even if it is rationally related to that interest. As the CHIEF JUSTICE notes in

his dissent, “[n]either this Court nor any other the Court can find has ever used ‘oppressive’ as a

test for substantive due process.” Post at ___; see Hous. & Tex. Cent. Ry. Co., 84 S.W. at 653

(holding Constitution prohibits laws that invade substantive rights “without justifying occasion, or

in an unreasonable, arbitrary, and oppressive way,” not “or oppressive way”).

       I agree that the Court’s new burdensome/oppressive standard is “loose”—too “loose,” in

fact, to be useful in our analysis of these types of constitutional challenges. See post at __ (Hecht,

C.J., dissenting). Determining what “burdensome” or “oppressive” means in this context will be

nigh impossible, unless we use those terms, as we have in our prior opinions, to refer to the burdens

that result from a law that is not rationally related to a legitimate government interest. Like JUSTICE

GUZMAN, “I have significant doubts that this standard is workable in practice.” Post at ___. And

like both dissenting Justices, I believe the burdensome/oppressive standard makes it too easy for

courts to invalidate regulations for their own personal policy reasons. See post at __ (Hecht, C.J.,

dissenting); post at __ (Guzman, J., dissenting). Because, as JUSTICE GUZMAN notes, courts cannot

and should not “legislate from the bench,” post at ___, the bar should be set very high, to ensure

that it is indeed the Constitution, and not merely a court, that invalidates a law.




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       But the bar cannot be insurmountable, and if the application of any regulatory licensing

scheme were ever constitutionally invalid, this one is. I need not repeat my colleagues’

descriptions, because everyone (including the State and both dissenting Justices) agrees that

requiring eyebrow threaders to complete the current requirements necessary to obtain an

esthetician’s license “is obviously too much.” Post at ___ (Hecht, C.J., dissenting); post at ___

(Guzman, J., dissenting). Certainly, “[i]f there is room for a fair difference of opinion as to the

necessity and reasonableness of a legislative enactment on a subject which lies within the domain

of the police power, the courts will not hold it void.” State v. Richards, 301 S.W.2d 597, 602 (Tex.

1957). But there is no difference of opinion here: requiring eyebrow threaders to obtain an

esthetician’s license is neither necessary nor reasonable. Requiring them to obtain training in

sanitation and safety is rational, but requiring them to get an esthetician’s license is not.

       The CHIEF JUSTICE suggests that “there is . . . evidence from which the Legislature could

reasonably conclude that the required instruction and testing would further its goal of protecting

public health and safety through the regulation of cosmetology.” Post at ___. I agree that protecting

public health and safety is a legitimate government interest, but I do not agree that requiring

eyebrow threaders to meet the current requirements for obtaining an esthetician’s license is

rationally related to achieving that interest. Under the dissenting Justices’ approach, if the

Legislature decided to require eyebrow threaders to obtain a medical license, we would have to

uphold that decision because that licensing scheme also “instruct[s] in general sanitation and safety

practices.” Post at ___ (Hecht, C.J., dissenting).

       It may be convenient to impose the existing esthetician licensing scheme on eyebrow

threaders, but in my view it is also arbitrary and unreasonable, and therefore oppressive, because

doing so is not rationally related to the legitimate government interest in promoting public health



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and safety. Courts should not second-guess the Legislature, but in the end, as the CHIEF JUSTICE

agrees, “the final authority to interpret and apply the Constitution belongs to the Judiciary[.]” Post

at ___. Although that authority is “not lightly to be exercised,” post at ___ (Hecht, C.J., dissenting),

the Court is right to exercise it here.

        I therefore concur in the judgment.




                                                        _____________________
                                                        Jeffrey S. Boyd
                                                        Justice

Opinion delivered: June 26, 2015




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