Surfvive, Anubis Avalos, and Adonai Ramses Avalos v. City of South Padre Island

Supreme Court of Texas
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No. 22-0499
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Surfvive, Anubis Avalos, and Adonai Ramses Avalos,
Petitioners,

v.

City of South Padre Island,
Respondents

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On Petition for Review from the
Court of Appeals for the Thirteenth District of Texas
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JUSTICE YOUNG, concurring in the denial of the petition for
review.

The Code of Ordinances of South Padre Island contains several
limitations on food-truck licensing. Surfvive (a nonprofit entity) and the
Avalos brothers wish to operate food trucks on the Island but claim that
two provisions of an ordinance unconstitutionally block them from doing
so. One of the provisions purports to deny a food truck the right to operate
unless an existing restaurant—a competitor—grants approval to the
newcomer by signing the food truck’s permit application. The validity of
that part of the ordinance, at least, raises serious and important legal
questions. I nonetheless agree with the Court’s decision to await a more
suitable case for addressing them and write separately to explain why.

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Petitioners Surfvive and the Avalos brothers operate food trucks
outside South Padre Island and want to begin operations on the Island.
A city ordinance, however, conditions eligibility for a food-truck permit on
approval from a local restaurant: “Applicant[s] must be supported locally
and have the signature of an owner or designee of a licensed, free-
standing food unit on South Padre Island before being eligible for a
permit.” South Padre Island, Tex., Code of Ordinances § 10-31(C)(3). In
other words, the government purports to forbid a food truck from entering
the market unless an existing business “support[s]” the newcomer and
grants permission to enter the market by signing the permit application.*
Petitioners more than plausibly argue that requiring permission
from a competitor to run a food truck violates their economic-liberty
rights under the Texas Constitution’s “due-course clause,” which 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

* Petitioners also challenge a second provision of the same enactment,

which caps new monthly food-truck permits at eighteen: “No more than eighteen
(18) mobile food unit permits may be issued per month on the Island.” South
Padre Island, Tex., Code of Ordinances § 10-31(C)(2). This monthly cap—which
started at six, increased to twelve, and then to eighteen—still allows over 200
new food trucks to come into operation annually. This limit does not materially
diminish access yet allows for orderly and timely health-and-safety inspections
of new food-vending sources. I doubt that the challenge to this cap “presents a
question of law that is important to the jurisprudence of the state.” Tex. Gov’t
Code § 22.001(a). I therefore confine myself to the provision requiring a
competitor’s permission and do not further address the permit cap.

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due course of the law of the land.” Tex. Const. art. I, § 19.
The City defends its ordinance with two main theories: (1) public
health and (2) economic development. Obtaining a competitor’s
permission advances public health, the City argues, because it
implements a state regulation requiring that food trucks “shall operate
from a central preparation facility or other fixed food establishment and
shall report to such location daily for supplies, cleaning, and servicing
operations.” See 25 Tex. Admin. Code § 228.221(b)(1). But how does
requiring a local restaurateur to sign off on a new food truck effectuate
that state regulation? The ordinance’s text in no way addresses that
supposed goal. It simply expresses a policy that newcomers “must be
supported locally,” without any link either to the state regulation or
public health more generally.
Faced with this objection, the City’s brief in this Court contends
that the competitor-permission ordinance is actually an “alternative” to
the State’s requirement. This argument is no more convincing. If state
law truly requires a physical facility, the City certainly cannot exempt
anyone from that mandate. And if the City lawfully can impose its own
“alternative” regulation, the one that it has adopted does not have any
apparent rational link to protecting public health. Nothing in the
ordinance requires a private business to sign off on food trucks with the
finest health standards or to refuse their signatures for food trucks at the
other end of the scale. The local restaurateur’s approval is not
conditioned on anything related to public health.
The City’s second rationale—fostering economic development—is
perhaps more candid but, in my view, is equally problematic. The court

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of appeals held that the competitor-permission requirement is rationally
related to economic development because it “was created to promote
economic development” by “retaining current businesses and preventing
economic decline.” 2022 WL 2069216, at *8 (Tex. App.—Corpus Christi–
Edinburg June 9, 2022).
Assuming for argument’s sake that the law authorizes government
mandates that rationally advance this goal, would the competitor-
permission requirement survive rational-basis scrutiny? I have my
doubts. The most competitive new market entrant, one would assume,
would be the least likely for an existing business to welcome. Or a
business may welcome a new food truck because it thinks that the
newcomer would be a thorn in the side of an existing competitor. Other
than randomly (at best), it is not at all clear that the wholly unguided
power vested in existing businesses would advance any coherent concept
of economic development. Economic protectionism might be closer to the
mark than economic development; the only thing that the competitor-
permission requirement can guarantee, after all, is that some new
businesses will be thwarted.
As far as I know, however, this Court has never held that raw
economic protectionism of some citizens is a legitimate justification for
governmental action in derogation of the rights of others. At the very
least, constitutional concerns would be raised by a theory that picks
winners and losers in such a naked way. See, e.g., Tex. Const. art. I, § 3
(“All freemen, when they form a social compact, have equal rights, and no
man, or set of men, is entitled to exclusive separate public emoluments,
or privileges, but in consideration of public services.”). Assuming, again

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for argument’s sake, that the government may not directly rely on
protecting existing businesses to block new entrants, it hardly seems
likely that the government could delegate that power to private
individuals, especially when the delegation lacks any guiding standards
as to how individuals vested with that power should wield it.
All of this makes me think that the ordinance may actually suffer
more from a nondelegation than a due-course problem. In a seminal case,
Chief Justice Phillips explained for the Court that delegations of
government power to private individuals or groups “raise . . . troubling
constitutional issues,” obligating courts to “subject private delegations to
a more searching scrutiny than their public counterparts.” Tex. Boll
Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 469 (Tex.
1997). Such scrutiny includes an inquiry into whether the delegation
contains limits on a private delegate’s power, whether the lawmaker has
“provided sufficient standards to guide the private delegate in its work,”
and whether “the private delegate [has] a pecuniary or other personal
interest that may conflict with his or her public function.” Id. at 472.
The challenged provision seems to me unlikely to survive any of
these standards. Far from limiting existing restaurateurs’ power, it
grants them unfettered discretion to give or withhold approval, which is
neither required for the most sterling food truck nor forbidden for the
filthiest. Correspondingly, the ordinance provides no criteria for judging
applicants who seek an existing restaurateur’s signature. Unsurprisingly,
there is no way to challenge the grant or denial of a signature. And
existing businesses obviously have personal and financial interests in
protecting their own turf (or harming their chief competitors).

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II
On the other hand, I doubt that this case is a good one for us to
address any of the legal issues that I have described. With respect to
nondelegation, the parties have not argued it, even though the grant of
governmental authority to private actors is among the chief reasons that
the ordinance might be problematic. We accordingly have no developed
record or arguments focusing on this problem. For the same reason, the
court of appeals has been unable to opine on it.
The due-course arguments are problematic for this Court’s review
for quite different reasons. On the one hand, if the real problem is
actually nondelegation, which we cannot address, then attempting to
resolve the case under the due-course clause might distort our analysis.
On the other hand, if the case does present a clean due-course problem,
then it seems so glaring a problem that the Court would have little ability
to develop the law. In other words, if the ordinance would fail even the
most basic rational-basis test, then the stated aim of the litigation—
developing any distinct meaning of the Texas due-course clause—would,
at best, be foiled. At worst it would be impaired, given the risk that we
might conflate the standards necessary to resolve this case and the
standards that the clause actually imposes (or the opposing risk that we
might announce new and more demanding due-course standards despite
lacking a record that actually tests them).
These risks are heightened because our precedents have yet to
resolve what the due-course clause protects and how it does so. As I have
written previously, the scope of this provision is a matter of monumental
importance to Texans and something that must be determined only after

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careful thought and consideration in cases that unquestionably implicate
it. See Tex. Dep’t of State Health Servs. v. Crown Distrib. LLC, 647 S.W.3d
648, 664 (Tex. 2022) (Young, J., concurring).
Every decision of this Court is precedential and must be followed
by every Texas court in every other case. Accordingly, it is not primarily
the parties or facts in a single dispute that determine the propriety of
granting review. Rather, 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 or muddy the law as
to benefit or clarify it. The very importance of the due-course clause
means that we should neither delay addressing this provision of our
Constitution nor rush into doing so if waiting is necessary to be sure that
we do it well.
Of course, we could in theory still take up this case—even in a per
curiam opinion—just to vindicate existing law. But other problems with
this case lead me to doubt that taking even such a comparatively modest
step (much less a full grant of review) would be wise.
For instance, the courts typically do not become involved in
disputes about permitting until the local permitting process has been
exhausted. I do not fault petitioners for believing that an ordinance like
this one is fatally flawed. But neither petitioner let the process play out
to prove it—to show that they could not obtain permits without recourse
to the courts. The Avalos brothers, for example, never submitted an
application to the City. Surfvive submitted one, but it was incomplete
because of several important omissions apart from the competitor-
permission requirement. For the approved location address, for example,

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it listed an area of operation that was not zoned for food trucks. The City
therefore had multiple grounds for an initial denial. Rather than
correcting its application, Surfvive withdrew it.
All of that, one might think, is small beer compared to the
competitor-permission requirement. Likely true—and all the more
reason to dot every i and cross every t, so that petitioners could prove that
the City would not budge on its problematic requirement and that a
denial could be explained by nothing other than that requirement.
But even if we set aside the other application defects, I would still
be doubtful. Nothing suggests that petitioners made any effort to obtain
a signature from a restaurateur on the Island. Perhaps they should not
be required to do so; after all, their contention is that the requirement is
wholly invalid. Yet if the real goal was to operate food trucks, and not
just to obtain judicial precedents, one would expect a modicum of effort to
comply with what might turn out to be a minimal burden—or, at the least
(in Surfvive’s case), to accept a signature when one was offered. In her
deposition, Surfvive’s co-founder and designated representative
confirmed that when a local restaurant owner “saw something on
Facebook” about Surfvive’s problem, “he just reached out to me in an
email and said, ‘Hey, how can I help?’ And I never responded to that.”
(Emphasis added.) She confirmed that she understood his offer to be one
of “willing[ness] to sign off on” the application. She also agreed that she
“would be able to find a restaurant owner willing to work with” her, but
stated “I don’t think I should have to” and that the offer of help came
“after we had already filed the lawsuit.”
Fair enough. But if petitioners’ true desire was to operate food

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trucks, and if that desire may well have been easily accommodated, this
case seems less than ideal as a basis for this Court to take up the solemn
constitutional duty of giving scope and meaning to our due-course clause.
Judicial review should be a last resort, not a first impulse. Especially at
this Court, it is not necessary to conclude that the features I have
described rise to a jurisdictional bar—e.g., that there was a lack of
ripeness (for not exhausting the application process) or of standing (for
not truly being injured, given the refusal to take “yes” for an answer)—to
think that those features counsel against granting review. My reluctant
conclusion is that these concerns do not deprive us of jurisdiction but help
show why we would be imprudent to exercise it.

* * *
For the foregoing reasons, I concur in the Court’s denial of the
petition for review.

Evan A. Young
Justice

OPINION FILED: November 3, 2023

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