      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00253-CV



                Texas State Board of Podiatric Medical Examiners, Appellant

                                                 v.

                  Texas Orthopaedic Association, Texas Medical Association
                               and Andrew Kant, Appellees




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
           NO. GN204022, HONORABLE PAUL DAVIS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The Texas State Board of Podiatric Medical Examiners (the Board) appeals the trial

court’s denial of its plea to the jurisdiction. The Board contends that the Texas Orthopaedic

Association, Texas Medical Association, and Dr. Andrew Kant (collectively, the Associations)

lacked standing to challenge one of its rules because their pleadings did not affirmatively

demonstrate that any legal right or privilege of their individual members would be interfered with

or impaired by the rule and that there was no threat that the rule would be applied to their members.

We disagree with the Board and affirm the trial court’s denial of the plea to the jurisdiction.


                                         BACKGROUND

               Although the underlying dispute in this case centers on whether the ankle is part of

the foot, we review here only the standing of the Associations to challenge a rule adopted by the
Board. The Board has statutory authority to regulate the practice of podiatry.1 See Tex. Occ. Code

Ann. § 202.151 (West 2004). The occupation code does not define “foot.” On January 17, 2001,

the Board adopted a rule defining the foot as including part of the ankle.2 The Associations filed suit

seeking a declaration invalidating the Board’s rule and declaring that the statutory scope of the

practice of podiatry is confined to the foot as matter of law.3 In response, the Board filed a plea to

the jurisdiction claiming that the Associations lacked standing to challenge its rule because the legal

rights or privileges of the Associations’ members have not been interfered with or impaired by the

rule and there was no threat that the rule would be applied to their individual members. The trial

court denied the plea to the jurisdiction, and this interlocutory appeal followed.4


                                    STANDARD OF REVIEW

                Standing is a prerequisite to subject-matter jurisdiction, and subject-matter

jurisdiction is essential to a court’s power to hear a case. Texas Ass’n of Bus. v. Texas Air Control




        1
          Podiatry is the treatment of or offer to treat any disease, disorder, physical injury,
deformity, or ailment of the human foot by any system or method. Tex. Occ. Code Ann.
§ 202.001(a)(4) (West 2004).
        2
           The Board defined foot to include, “the tibia and fibula in their articulation with the talus,
and all bones to the toes, inclusive of all soft tissues (muscles, nerves, vascular structures, tendons,
ligaments, and any other anatomical structures) that insert into the tibia and fibula in their
articulation with the talus and all bones to the toes.” 22 Tex. Admin. Code § 375.1 (2001).
        3
          The Associations sought declaratory relief under the Administrative Procedure Act (APA)
and the Uniform Declaratory Judgments Act. See Tex. Gov’t Code Ann. § 2001.038 (West 2000);
Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (West 1997).
        4
            A person may appeal from an interlocutory order of a district court that grants or denies
a plea to the jurisdiction by a governmental unit. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8)
(West Supp. 2004-05).

                                                   2
Bd., 852 S.W.2d 440, 443 (Tex. 1993). The absence of subject-matter jurisdiction may be raised by

a plea to the jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). To

invoke a court’s authority, a plaintiff must allege facts that affirmatively demonstrate that the court

has jurisdiction to hear the cause. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004). When a plea to the jurisdiction challenges jurisdictional facts, we consider relevant

evidence as necessary to resolve the issues raised. Id. at 227. We review the denial of a plea to the

jurisdiction de novo. Id. at 228; Texas Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d

849, 855 (Tex. 2002) (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1988)). We

liberally construe the pleadings and relevant evidence in favor of jurisdiction, looking to the

plaintiff’s intent. Miranda, 133 S.W.3d at 226; City of San Angelo v. Smith, 69 S.W.3d 303, 306

(Tex. App.—Austin 2002, pet. denied).

               The general test for standing in Texas requires that there be (a) a real controversy

between the parties, which (b) will actually be determined by the judicial declaration sought. Texas

Ass’n of Bus., 852 S.W.2d at 446. Texas courts apply the Hunt test when determining whether an

organization has standing to sue on behalf of its members. Id. at 447 (adopting test for associational

standing set forth in Hunt v. Washington State Adver. Comm’n, 432 U.S. 333, 343 (1977)). An

organization has standing to sue on behalf of its members if a review of its pleadings and all

evidence relevant to jurisdiction affirmatively demonstrates that (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. Id.




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                                            DISCUSSION

                In its sole issue on appeal, the Board argues that the Associations lacked standing to

seek a declaratory judgment because they failed to affirmatively demonstrate how the Board’s rule

interfered with or impaired any legal right or privilege of their individual members.5 We now apply

the Hunt test to the facts of this case.

                The first prong of the Hunt test requires that the Associations’ pleadings, in

conjunction with any evidence in the record relevant to jurisdiction, demonstrate that the

Associations’ members have standing to sue in their own behalf. Id. This requirement should not

be interpreted to impose an unreasonable obstacle to associational standing. Id.; see also New York

State Club Ass’n v. City of New York, 487 U.S. 1, 9 (1986) (stating that purpose of first prong of

Hunt test is simply to weed out plaintiffs who try to bring cases that could not otherwise be brought

by manufacturing allegations of standing that lack any real foundation). It does not appear that the

Associations have manufactured this lawsuit, and we conclude that they have demonstrated that the

Board’s rule impairs6 a legal right or privilege possessed by their individual members.

                Physicians and orthopaedists are licensed to practice medicine in this state as long as

they comply with the requirements and regulations of the Texas Medical Practice Act (the Act). See



        5
           To seek declaratory relief under the APA a plaintiff must allege that a rule or its threatened
application interferes with or impairs, or threatens to interfere with or impair, a legal right of the
plaintiff. Tex. Occ. Code. Ann. § 2001.038(a) (West 2000).
        6
          Impair is defined as, “to make or cause to become worse; diminish in ability, value,
excellence.” Random House Dictionary of the English Language (Stuart B. Flexner et al. eds., 2d
ed. 1987). In construing a statute we start with the plain and common meaning of the statute’s
words. Fitzgerald v. Advance Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999); Tex.
Gov’t Code Ann. § 312.002(a) (West 1998).

                                                   4
Tex. Occ. Code Ann. §§ 151.001-165.160 (West 2004). The legislature believes that the practice

of medicine is a privilege and enacted the Act to regulate the granting of that privilege in order to

protect the public’s interest. Id. § 151.003(1). Licensed podiatrists are exempt from complying with

the Act as long as they strictly engage in the practice of podiatry as defined by law. Id.

§ 151.052(a)(5).

               In their original petition the Associations urge that the Board’s expanded definition

of foot extends the practice of podiatry beyond its statutory limits and into the practice of medicine

regulated by the Act. The Associations contend in their petition that individual physicians have

standing to seek a determination of the extent to which podiatrists may engage in the practice of

medicine in light of the Board’s rule. Although the Associations do not explicitly state that the

Board’s definition impairs a legal right or privilege of individual Texas physicians, it is clear from

their original petition and the attached affidavit of Dr. David Teuscher that they believe that

podiatrists have no statutory right to engage in the practice of medicine and that allowing podiatrists

to do so undermines the purpose of the Act. Essentially, they assert in their pleading that if the

Board grants podiatrists the right to perform procedures that would otherwise be considered the

practice of medicine, the privilege of practicing medicine is diminished because podiatrists are

neither licensed nor trained to practice medicine.

               The Associations have sufficiently demonstrated that the Board’s rule may impair a

privilege possessed by their individual members. Therefore, their members would have standing to

sue in their own right. The Associations have satisfied the first prong of the Hunt test.




                                                  5
               The second prong of the Hunt test requires that the Associations’ pleadings and any

evidence in the record relevant to this jurisdictional question demonstrate that the interests the

Associations seek to protect are germane to their organizational purpose. Texas Ass’n of Bus., 852

S.W.2d at 447. Donna Parker, Executive Director of the Texas Orthopaedic Association, stated in

her affidavit that the Orthopaedic Association’s mission of promoting high quality musculoskeletal

healthcare for Texans requires that it be interested in legislation or rulemaking impacting or

regulating the provision of musculoskeletal healthcare in Texas. Similarly, Louis Goodman, Vice

President of the Texas Medical Association, asserted in his affidavit that the Medical Association

achieves its mission of improving the health of all Texans by being an advocate for patients and the

profession of medicine. In this declaratory action, the Associations are seeking to protect the value

of their members’ right to practice medicine. The question of who has the right to practice medicine

is directly related to the quality of the care provided. Therefore, we hold that the Associations have

met the second prong of the Hunt test.

               The final prong of the Hunt test requires that the Associations’ pleadings and any

evidence in the record relevant to this jurisdictional question demonstrate that neither the claim

asserted nor the relief requested necessitated the participation of the individual members in the

lawsuit. Id. The Associations claim that the Board’s rule defining foot is invalid. The Associations

seek a declaration invalidating the rule and declaring that the practice of podiatry is confined to the

foot as a matter of law. The Associations’ claim is a question of law that does not require the

participation of individual members; the relief sought is a declaratory ruling that would be uniformly




                                                  6
applied to physicians and podiatrists. We hold that the Associations have satisfied the final prong

of Hunt.

                The Associations’ pleadings in conjunction with all relevant jurisdictional evidence

affirmatively demonstrate that they have standing to challenge the Board’s rule. Therefore, we

overrule the Board’s only issue on appeal.


                                           CONCLUSION

                We hold that the trial court correctly denied the plea to the jurisdiction and affirm the

trial court’s ruling.




                                                __________________________________________

                                                Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: November 12, 2004




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