The State of Texas v. City of McAllen

Supreme Court of Texas
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No. 24-1060
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The State of Texas,
Petitioner,

v.

City of McAllen, et al.,
Respondents

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On Petition for Review from the
Court of Appeals for the Third District of Texas
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Argued March 5, 2026

CHIEF JUSTICE BLACKLOCK delivered the opinion of the Court.

Justice Hawkins did not participate in the decision.

In 2017 and 2019, the Legislature reduced the amount of money
cities can charge telecommunications companies to run their equipment
on public property alongside city streets. 1 Displeased with the lost

1 Act of May 25, 2017, 85th Leg., R.S., ch. 591, 2017 Tex. Gen. Laws

1598 (codified at TEX. LOC. GOV’T CODE §§ 284.001–.304); Act of May 21, 2019,
86th Leg., R.S., ch. 980, 2019 Tex. Gen. Laws 2819 (codified at TEX. LOC. GOV’T
CODE § 283.051(d)–(f) and TEX. UTIL. CODE § 66.005(d)–(f)).
revenue, a group of cities banded together to ask the courts to block the
Legislature’s action. The cities claimed that charging less than market
rates for the use of public property amounted to an unconstitutional gift
to the telecom companies, even in this heavily regulated industry. They
sought to vindicate this theory by suing a lone defendant, the State of
Texas. Their lawsuit, which began in 2017, asks for a declaration that
the statutorily reduced rates violate the Texas Constitution’s Gift
Clauses. See TEX. CONST. art. III, § 52(a); id. art. XI, § 3. The district
court issued the requested declaration in part. The court of appeals
went further, essentially agreeing with the cities about the Gift Clauses.
706 S.W.3d 503 (Tex. App.—Austin 2024).
We vacate the lower courts’ judgments as well as the court of
appeals’ opinion, which will have no continuing precedential effect with
respect to the Gift Clauses. We do so without addressing the Gift
Clauses at all, however, because this lawsuit suffers from a basic defect
that has deprived the courts of jurisdiction from the beginning: The
cities sued the wrong defendant.
Naming the correct defendant is essential when invoking the
courts’ jurisdiction because the judicial power is the power to issue
judgments redressing injuries traceable to the defendant. See Heckman
v. Williamson County, 369 S.W.3d 137, 150, 154 (Tex. 2012). As we have
said before, “the State is not automatically a proper defendant in a suit
challenging the constitutionality of a statute merely because the
Legislature enacted it.” Abbott v. Mexican Am. Legis. Caucus, 647
S.W.3d 681, 697 (Tex. 2022) (MALC). That is because the presence of
the challenged law on the books is not a legally cognizable injury

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inflicted on the affected plaintiff by the Legislature or by the
disembodied “State of Texas.” Id. at 698. Nor does a judgment against
the State of Texas necessarily redress any real-world injury to the
plaintiff caused by the statute. For these reasons, among others, a
plaintiff in constitutional litigation who seeks a “global injunction by
naming the State generally . . . . finds no support in Texas law.” State
v. Zurawski, 690 S.W.3d 644, 659 (Tex. 2024).
Instead, a plaintiff seeking to sue the state government over an
allegedly unconstitutional law must at least “identify and name the
officer or agency with authority to enforce the challenged law” so that a
court may direct its judgment at the person or entity whose actions or
threatened actions have caused the complained-of injury. Id. at
659–60. 2 In constitutional litigation, as in all litigation, the “required
showing of a causal connection between the plaintiff’s injury and the
defendant’s conduct serves as a means of identifying the proper
defendants.” Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 485 (Tex.
2018).
“Suits against the State do not sweep in every officer operating
under the State’s authority . . . .” Zurawski, 690 S.W.3d at 659. If it
were otherwise, there would never be a need to analyze the
proper-defendant question in constitutional litigation because any

2 See also Robbins v. Limestone County, 268 S.W. 915, 917 (Tex. 1925)

(finding “no fault with the parties defendant” because a plaintiff sued
“members of the state highway department” and did “not allege an action
against the state”); MALC, 647 S.W.3d at 698 (“Declaratory-judgment claims
challenging the validity of a statute may be brought against the relevant
governmental entity.”).

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plaintiff complaining that a statute is unconstitutional could just sue
the State itself. But we have often analyzed that question, and for good
reason. 3 Naming the “State of Texas” as an all-purpose defendant is not
a cheat code for bypassing the requirement, incumbent on any plaintiff
in any context, to seek a judgment against the party whose actions are
the cause of the alleged injury. Injury arises from the law’s application
to, or enforcement against, the plaintiff by someone—not from the mere
existence or enactment of the law. The State of Texas can act only
through people and agencies, who may be sued when their actual or
threatened application of the law causes injury, subject of course to
limits such as sovereign immunity. MALC, 647 S.W.3d at 696–98.
The first problem, therefore, with the cities’ choice of defendant is
their failure to even attempt to identify the state officer or agency
responsible for the injury they attribute to the State. An additional
problem is that it is unclear, in this case, whether anyone associated
with the State of Texas is the source of the cities’ injury. It is therefore
unclear whether any state officer or agency fits the proper-defendant
bill. As far as we know, no officer or agency has taken or threatened any
adverse action against the cities in connection with the challenged
statutes. Nor do the cities allege that anyone in state government is
likely to do so. It is nevertheless possible that the Public Utility
Commission or its officers could be proper defendants in a suit by the

3 See, e.g., Zurawski, 690 S.W.3d at 657–60; Abbott v. Harris County,

672 S.W.3d 1, 8–9 (Tex. 2023); In re State, 682 S.W.3d 890, 893 n.2 (Tex. 2023);
MALC, 647 S.W.3d at 696–98; Whole Woman’s Health v. Jackson, 642 S.W.3d
569, 575–83 (Tex. 2022); In re Abbott, 601 S.W.3d 802, 812 (Tex. 2020);
Robbins, 268 S.W. at 917.

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cities alleging the unconstitutionality of these statutes. That is not the
question before us, and we express no view on it.
The absence of a proper state defendant in a dispute about the
constitutionality of a statute would not be unusual. Statutes frequently
govern the behavior of non-state actors without any mechanism for
enforcement by an officer or agency of the government. See, e.g.,
California v. Texas, 593 U.S. 659, 669 (2021) (a statute without means
of governmental enforcement had “no possible Government action that
[could be] causally connected to the plaintiffs’ injury”). The
constitutionality of such statutes is often questioned in litigation
between the non-state parties affected. The State has a statutory right
to participate in that litigation if it chooses to do so, TEX. GOV’T CODE
§ 402.010; TEX. CIV. PRAC. & REM. CODE § 37.006(b), but it may often be
the case that neither the State nor any of its officers or agencies is a
proper defendant even though a plaintiff claims that a statute affecting
its rights is unconstitutional. 4

4 The cities rely heavily on our decision in Nootsie, Ltd. v. Williamson

Cnty. Appraisal Dist., 925 S.W.2d 659 (Tex. 1996). It offers little help. Nootsie
sued the Appraisal District for over-appraising its property in violation of a tax
statute, and the District responded that the statute was unconstitutional. Id.
at 661. We observed that the District “is charged with implementing a statute
that it believes violates the Texas Constitution,” and we held that this “interest
provide[d] the district with a sufficient stake in the controversy to assure the
presence of an actual controversy that the declaration sought will resolve.” Id.
at 662. We thus held that the District was a proper party to raise a
constitutional challenge to the statute. Id. at 663. The same is no doubt true
of the cities here, but that fact cannot support the weight the cities ask it to
bear. There is little question the cities are proper plaintiffs because their
financial interest in the disputed payments gives them “a sufficient stake in
the controversy.” Id. at 662. But the question at hand is not about the proper

5
As always, the proper defendant is the party with whom the
plaintiff has a concrete, real-world dispute. See MALC, 647 S.W.3d at
690. In this case, the dispute is over how much a city will charge a
telecom company to use a public right of way. This is an eminently
justiciable monetary dispute between the city and the company. The
cities want the telecom companies to pay a higher rate than the rate set
by the Legislature, an outcome the cities believe to be compelled by the
Gift Clauses. The telecom companies presumably believe the lower rate
is not a Gift Clause problem. They would surely rely on the statute and
refuse to pay the higher rate desired by the cities. In other words, the
parties to a real-estate transaction disagree about the law governing the
transaction. Courts are well-acquainted with such cases. The nature of
so familiar a dispute—and therefore the proper alignment of the parties

plaintiff. The question is about the proper defendant, a question about which
Nootsie says very little.
We described the Attorney General’s participation in Nootsie, perhaps
somewhat imprecisely, as having been joined by the District as a third-party
defendant. Id. at 661. What actually happened in Nootsie was that the State
chose to get involved in response to the statutorily required notice of a
constitutional challenge—just as the State could choose to get involved in
litigation between the cities and the telecom companies over how much money
one owes the other. See Williamson Cnty. Appraisal Dist. v. Nootsie, Ltd., 905
S.W.2d 289, 290 (Tex. App.—Austin 1995) (“After proper service of notice
[pursuant to TEX. CIV. PRAC. & REM. CODE § 37.006(b)], the attorney general
of Texas intervened and defended the constitutionality of section 23.51(1).”).
Nootsie holds that the Appraisal District’s constitutional challenge was
properly raised within a case between the District and Nootsie about Nootsie’s
taxes. 925 S.W.2d at 662. Nootsie comes nowhere close to saying that the
Appraisal District could have sued the State of Texas directly, bypassing
Nootsie and all other taxpayers, to establish its right, in every taxpayer’s case,
to disregard a statute as unconstitutional. That proposition, for which the
cities argue, finds no support in this Court’s precedent.

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to it if they must pursue litigation—does not change because one party’s
view of the law is that a statute conflicts with the constitution. 5
Insisting on the proper defendant is not an academic exercise.
Any judgment obtained will bind only the parties. Blankenship v.
Wartelsky, 6 S.W. 140, 142 (Tex. 1887) (“None but parties or privies are
bound by judgments.”); TEX. CIV. PRAC. & REM. CODE § 37.006(a)
(declaratory judgments do “not prejudice the rights of a person not a
party to the proceeding”). If the wrong parties are before the court, the
judgment’s binding force will not resolve the dispute in the real world.
Here, if the cities want the courts to bind the telecom companies to pay
the higher rates, they may consider seeking a judgment against the
companies. A judgment against the “State of Texas” declaring the lower
rates to be unconstitutional gifts would not require the non-party
companies to do or refrain from doing anything at all. It might suggest
to the companies that continuing to ask the cities to follow the statutes
is unlikely to be worth the trouble because the courts will probably side
with the cities. But the companies would be well within their rights to
ignore a sweeping declaration against the “State of Texas” in a lawsuit
to which they were not parties and to insist on a judgment binding on
them before they assent to the higher rates sought by the cities.

5 Whatever the Public Utility Commission’s role, we do not hesitate to

observe that a dispute about how much money the telecom companies must
pay the cities may be litigated with the telecom companies and the cities on
opposite sides of the “v.” Unsurprisingly, litigation between cities and telecom
providers over various rates and fees is not uncommon. See, e.g., AT&T
Commc’ns of Sw., Inc. v. City of Austin, 235 F.3d 241, 243 (5th Cir. 2000); City
of Houston v. Zayo Grp., LLC, No. 4:23-CV-2169, 2025 WL 3050174 (S.D. Tex.
July 24, 2025); Comcast Cable of Plano, Inc. v. City of Plano, 315 S.W.3d 673,
675 (Tex. App.—Dallas 2010, no pet.).

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The judgment sought in this lawsuit would therefore not redress
the cities’ injury or resolve the real-world dispute animating this
litigation. It would merely declare the position of the judiciary on the
legal question the cities raise. The cities would no doubt like to have
such a judgment, assuming it goes their way. But that is not what courts
are for. The cities’ desire for a judicial precedent vindicating their view
of the constitution does not give the courts jurisdiction to issue
declaratory judgments against the “State of Texas” opining on the
meaning of the constitution.
Nor can the Uniform Declaratory Judgments Act “license
litigants to fish in judicial ponds for legal advice.” Cal. Prods., Inc. v.
Puretex Lemon Juice, Inc., 334 S.W.2d 780, 781 (Tex. 1960) (citation
modified). Courts do not exist to make precedent. Courts exist to resolve
concrete, real-world disputes. Thus, our declaratory-judgment power
extends only to a “real controversy between the parties, which will be
actually determined by the judicial declaration sought.” Tex. Ass’n of
Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) (citation
modified). Like any other judgment, a declaratory judgment must
redress concrete injuries traceable to the defendant. See Heckman, 369
S.W.3d at 154. Otherwise, it is outside the courts’ jurisdiction.
Whatever indirect effect our precedent-setting opinions may have
on the behavior of non-parties, our jurisdiction—the judicial power
entrusted to us by the Texas Constitution—is to issue judgments that
resolve concrete disputes by binding the parties. See TEX. CONST. art. V,
§ 1. Because this case presents no opportunity to issue such a judgment,
it lies beyond our jurisdiction.

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***
For the foregoing reasons, this case must be dismissed for lack of
jurisdiction. Perhaps, if the case is revived in a justiciable posture, some
of the time and effort expended over the last nine years will not have
gone entirely to waste. Wasteful or not, courts must always dismiss a
case to which the judicial power does not extend, no matter the stage of
the litigation at which the defect is discovered. 6 See, e.g., Rattray v. City
of Brownsville, 662 S.W.3d 860, 868–69 (Tex. 2023); Fin. Comm’n of Tex.
v. Norwood, 418 S.W.3d 566, 578 (Tex. 2013).
The judgments of the lower courts are vacated, and the case is
dismissed for lack of jurisdiction.

James D. Blacklock
Chief Justice

OPINION DELIVERED: June 5, 2026

6 The cities argue that the State judicially admitted it is a proper
defendant, thus waiving any jurisdictional defect. While such admissions may
make for poor practice, they have no effect on a court’s jurisdiction, which the
court is obligated to consider sua sponte no matter what the parties say. Clint
Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 558 (Tex. 2016) (parties cannot
confer subject-matter jurisdiction through judicial admission or waiver).

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