STATE v. MORALES

CORNYN, Justice, delivered the opinion of the Court, in which GONZALEZ, HIGHTOWER, HECHT and ENOCH, Justices join.

Equity jurisdiction does not flow merely from the alleged inadequacy of a remedy at law, nor can it originate solely from a court's good intentions to do what seems "just" or "right;" the jurisdiction of Texas courts—the very authority to decide cases—is conferred solely by the constitution and the statutes of the state.1

In this state's bifurcated system of civil and criminal jurisdiction, a civil court has jurisdiction to declare constitutionally invalid and enjoin the enforcement of a criminal statute only when (1) there is evidence that the statute at issue is unconstitutionally applied by a rule, policy, or other noncriminal means subject to a civil court's equity powers and irreparable injury to property or personal rights is threatened, or (2) the enforcement of an unconstitutional statute threatens irreparable injury to property rights. A naked declaration as to the constitutionality of a criminal statute alone, without a valid request for injunctive relief, is clearly not within the jurisdiction of a Texas court sitting in equity.2

This is a constitutional challenge to TEX.PENAL CODE ANN. § 21.06 (Vernon 1989) ("21.06"),3 Texas' sodomy statute. The trial court declared this criminal statute to be unconstitutional and enjoined its enforcement.4 The court of appeals affirmed solely on the basis that the statute violates the plaintiffs' constitutional right of privacy under the Texas Constitution. We conclude, however, that neither this court, nor the courts below, have jurisdiction to enjoin the enforcement of, or issue a declaratory judgment determining the constitutionality of, 21.06.5 Therefore, we reverse the judgment of the court of appeals and remand this case to the trial court with instructions to dismiss.

Linda Morales, Tom Doyal, Patricia Cramer, Charlotte Taft, and John Thomas ("plaintiffs"), filed this suit challenging the constitutionality of 21.06, which they claim, by its very existence, stigmatizes them as criminals for engaging in conduct protected by their privacy rights under the Texas Constitution. They also allege that 21.06 limits homosexuals' career and employment opportunities and encourages hate crimes. Although they do not dispute the Attorney General's contention that 21.06 has not been, and in all probability will not be, enforced against private consensual conduct between adults, the plaintiffs also claim to fear prosecution.

The Attorney General denies the statute is unconstitutional; but he also contends that civil courts under these circumstances have no power to grant either injunctive or declaratory relief based on the unconstitutionality of a criminal statute. See, e.g., Crouch v. Craik, 369 S.W.2d 311, 315 (Tex.1963) ("It is only where a criminal statute is void and vested property rights are being impinged as the result of an attempt to enforce such void statutes that the jurisdiction of the courts of equity can be invoked.").

Furthermore, the Attorney General argues that the plaintiffs seek adjudication of a hypothetical controversy: there is no record of even a single instance in which the sodomy statute has been prosecuted against conduct that the plaintiffs claim is constitutionally protected; none of the plaintiffs claims a specific instance of career or employment opportunities having been restricted by the existence of the statute;6 none of the plaintiffs alleges having been the victim of a hate crime, or a fear of becoming the victim of any specific threatened future event.

The court of appeals acknowledged the general validity of the State's argument: civil equity courts have no jurisdiction to enjoin the enforcement of criminal statutes in the absence of irreparable harm to vested property rights. However, the court of appeals held that this court had enlarged a civil court's equity jurisdiction to protect personal rights in Passel v. Fort Worth Indep. Sch. Dist., 440 S.W.2d 61 (Tex.1969), on appeal after remand, 453 S.W.2d 888 (Tex.Civ. App.—Fort Worth 1970, writ ref'd n.r.e.), cert. denied, 402 U.S. 968, 91 S.Ct. 1667, 29 L.Ed.2d 133 (1971). The court of appeals, therefore, proceeded to the merits of the case and affirmed the judgment of the trial court, declaring the sodomy statute unconstitutional and enjoining its enforcement. 826 S.W.2d 201, 202-03.

I.

Equity jurisdiction is limited. Justice Joseph Story has explained the historical reasons for this limitation, as follows:

JOSEPH STORY, 1 STORY'S EQUITY JURISPRUDENCE 18 (Melville M. Bigelow ed., 13th ed. 1886) (quoting 3 WILLIAM BLACKSTONE, COMMENTARIES *433) (emphasis added). Such unlimited authority, over time, became circumscribed by rules of procedure and limitations on jurisdiction. If an equity court's jurisdiction was limited only by its reach, experience demonstrated that the arbitrary exercise of that power was certain to result. And if we endeavored:

HENRY HOME, PRINCIPLES OF EQUITY 46 (2d ed. 1767). See also THE FEDERALIST No. 51, at 337 (Alexander Hamilton or James Madison) (Sherman F. Mittell ed., 1937) ("If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.").

The long-standing limitation on equity jurisdiction that controls this case relates to the narrow circumstances under which an equity court can construe a criminal statute. See JOHN NORTON POMEROY, 1 POMEROY'S EQUITY JURISPRUDENCE 509-10 (Spencer W. Symons ed., 5th ed. 1941) ("[E]quity will not ordinarily interfere with criminal prosecutions under unconstitutional statutes or ordinances unless the prevention of such prosecutions is essential to the safeguarding of rights of property.").7

II.

There are four types of cases in which a party might seek relief from an equity court based on the alleged unconstitutionality of a criminal statute: (1) the statute is enforced and the party is being prosecuted, (2) the statute is enforced and the threat of prosecution is imminent, although the party has yet to be prosecuted, (3) there is no actual or threatened enforcement of the statute and the party does not seek an injunction against its enforcement, but the statute is nonetheless integrally related to conduct subject to the court's equity jurisdiction, or (4) there is no actual or threatened enforcement of the statute and no complaint of specific conduct remediable by injunction.

Most cases fall in either of the first two categories. In those contexts:

Passel, 440 S.W.2d at 63 (citations omitted). The holdings of our courts are legion that intervention by an equity court is inappropriate under these circumstances, unless the statute is unconstitutional and there is the threat of irreparable injury to vested property rights.8

The third scenario is Passel. In Passel, the minor plaintiffs sought a declaration that a penal statute unconstitutionally denied rights of free association, and an injunction to prevent school officials from denying them admission to public schools because of membership in certain student clubs. Passel, 440 S.W.2d at 62. No injunctive relief was sought against the statute itself, Article 301d,9 which prohibited certain clubs in all public schools of the state below college level. Passel, 440 S.W.2d at 64. Rather, injunctive relief was sought solely to "prevent administrative enforcement of an administrative regulation adopted for the purpose of implementing the statute." Id. Under those facts, we explained that an injunction may be granted to protect personal as well as property rights.10

The crucial distinction in Passel is that the plaintiffs did not seek a naked declaration of the penal statute's unconstitutionality. Rather, they sought a declaration of the invalidity of the statute and an injunction against enforcement of the school district rule that effectively suspended a student until the student's parents signed a form certifying that their child was not a member of a prohibited club. Id. at 62-63. In other words, even though "no prosecution [under the relevant criminal statute was] threatened or even contemplated," the plaintiffs' immediate complaint was about the rule, a matter within the court's equity jurisdiction and remediable by the court's injunction, if otherwise appropriate. Id. at 64.

We did not hold in Passel that a personal right can be uniformly substituted for a property right and that a civil court's equity jurisdiction over criminal statutes was thereby expanded.11 Rather, in Passel we held that an injunction directed at the offending school district rule was potentially available as a remedy, and that the protection of personal rights would be a sufficient justification.12 To the extent that the court of appeals read Passel more broadly, it was in error.13

The fourth posited scenario describes this case. In this most abstract of contexts from which to decipher constitutional mandates, equity jurisdiction is plainly lacking.

An injunction will not issue unless it is shown that the respondent will engage in the activity enjoined.14 See Frey v. DeCordova Bend Estates Owners Ass'n, 647 S.W.2d 246, 248 (Tex.1983) (holding that the fear or apprehension of the possibility of injury is not a basis for injunctive relief); Camp v. Shannon, 348 S.W.2d 517, 519 (Tex.1961) (explaining that injunction should not issue on mere surmise of injury); Transport Co. v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 552 (1953) (requiring showing of a "probable injury" if respondent not restrained). As we have already noted, there is no allegation that absent an injunction prohibiting enforcement of 21.06 that the statute will be enforced. While we are sympathetic to plaintiffs' argument that nonenforcement deprives them of an adequate remedy at law, as they are deprived of a forum in which to adjudicate their constitutional objections if there are no criminal proceedings in which to raise them, equity jurisdiction does not rise or fall solely on the basis of the adequacy of their remedy at law. Otherwise, a denial of an injunction on the merits because of an adequate remedy at law would be tantamount to a dismissal for want of jurisdiction. That is not the case, however, and neither is it true that a civil court necessarily has equity jurisdiction to pass on a criminal statute simply because the statute is not enforced.

Ex Parte Hughes, 133 Tex. 505, 129 S.W.2d 270, 273 (1939) (quoting Messner v. Giddings, 65 Tex. 301, 309 (1886)) (citations omitted).

Just as an injunction is a remedial writ that depends in the first instance on the existence of the issuing court's equity jurisdiction, we have held that the Uniform Declaratory Judgments Act, Tex.Civ.Prac. & Rem.Code §§ 37.001-.011 (Vernon 1986 & Supp.1994), is merely a procedural device for deciding cases already within a court's jurisdiction. Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). A litigant's request for declaratory relief cannot confer jurisdiction on the court, nor can it change the basic character of a suit.

For the same reasons that equity courts are precluded from enjoining the enforcement of penal statutes, neither this court, nor the courts below, have jurisdiction to render a declaratory judgment regarding the constitutionality of 21.06. The legislature did not intend to enlarge such jurisdiction when it promulgated the Declaratory Judgments Act. Stecher v. City of Houston, 272 S.W.2d 925, 928 (Tex.Civ.App.—Galveston 1954, writ ref'd n.r.e.). A civil court simply has no jurisdiction to render naked declarations of "rights, status or other legal relationships arising under a penal statute." Malone v. City of Houston, 278 S.W.2d 204, 206 (Tex.Civ.App.—Galveston 1955, writ ref'd n.r.e.); see also State v. Margolis, 439 S.W.2d 695, 699 (Tex.Civ.App.—Austin 1969, writ ref'd n.r.e.) (holding that suit for declaratory judgment will not lie unless proof made of bona fide threat of prosecution).

Finally, the limitation on equity jurisdiction that we affirm today has a pragmatic justification, especially in Texas, where we have separate and distinct jurisdiction allocated by the Texas Constitution to our civil and criminal courts, including two courts of last resort: this court in civil cases and the court of criminal appeals in criminal cases. As was noted in Roberts v. Gossett, the prospect of both civil and criminal courts construing criminal statutes

88 S.W.2d 507, 509 (Tex.Civ.App.—Amarillo 1935, no writ).

It was because of this concern in Dearing v. Wright, 653 S.W.2d 288 (Tex.1983), that this court declined to intervene in a prosecution for possession of marijuana based on the alleged unconstitutionality of Texas' marijuana possession statute. The court observed that if civil courts were to accept jurisdiction, a potential for conflicting decisions, between our civil and criminal courts of last resort on the validity of such statutes, was a very real danger. Id. at 290.15 Indeed, to demonstrate how close the supreme court and the court of criminal appeals have come to conflicting decisions on this very issue, one need only consider the latter court's recent rejection of a criminal defendant's state constitutional challenge, albeit under a different provision of our constitution than that relied upon by the court of appeals to affirm the trial court's judgment. See Boutwell v. State, 719 S.W.2d 164, 169 (Tex.Crim.App. 1985) (rejecting an Equal Rights Amendment attack).16

The dissent urges adoption of a Morales exception to the jurisdictional limitations that bind this court. 869 S.W.2d at 949 (Gammage, J., dissenting). The dissent's exception is triggered only when: (1) there is irreparable injury to property or personal rights, and (2) "where the inadequacy of the remedy at law is clearly demonstrated by evidence of lack of prior enforcement and by a stipulation by the State that enforcement in the near future is unlikely." 869 S.W.2d at 952. The dissent's proposed Morales exception, however, is flawed. First, under item (1), the dissent's harm test is exactly the same as the test derived from a misreading of Passel, rejected today by the court. As we have already explained, this test implodes upon itself, for any unconstitutional statute will necessarily impact upon personal rights. See supra note 13. Second, under item (2), even the dissent recognizes the unavoidable imprecision in determining at what point a criminal statute can be declared to be "unenforced." Yet the dissent is satisfied that a mere stipulation by the State that "enforcement in the near future is unlikely" is sufficient. Without commenting on whether the Attorney General has either the power or the requisite knowledge to make such a stipulation, such a stipulation cannot be the linchpin of the jurisdiction of this court. Cf. Poe v. Ullman, 367 U.S. 497, 501, 81 S.Ct. 1752, 1754, 6 L.Ed.2d 989 (1961) ("Formal agreement between parties that collides with plausibility is too fragile a foundation for indulging in constitutional adjudication.").

Our decision today does not, despite the protestations of the dissent, exalt property rights over personal rights. The personal rights of the citizens of this state are protected from infringement by criminal statutes by the criminal courts of Texas. If the harm alleged by a citizen flows not from enforcement of the statute, but rather, from some other cause susceptible to the equity powers of a civil court, then personal rights can serve as a sufficient justification for the granting of such equitable relief. Passel, 440 S.W.2d at 63 (holding that the granting of an injunction against enforcement of the school district's rule could be justified with a protection of personal rights). To note that there are also situations in which a party might allege irreparable injury to her property rights justifying equitable relief, does not exalt one right over another, but simply recognizes that many different rights are afforded protection by Texas courts.

The very balance of state governmental power imposed by the framers of the Texas Constitution depends on each branch, and particularly the judiciary, operating within its jurisdictional bounds. The power of government emanates from the people's delegation of power to government. The checks and balances inherent in our form of government depend upon the judiciary's equanimity and particularly upon our self-restraint. When a court lacks jurisdiction, its only legitimate choice is to dismiss. Accordingly, we reverse the judgment of the court of appeals and remand this case to the district court with instructions to dismiss for want of jurisdiction.

GAMMAGE, Justice, joined by PHILLIPS, Chief Justice, DOGGETT and SPECTOR, Justices, dissenting.

Today this court declares that a court in equity cannot address the constitutional merits of the plaintiffs' claims because vested property rights are not affected. The court also holds that equity jurisdiction does not turn on the inadequacy of a remedy at law. Such reasoning ignores the rule that an equity court's primary concern in enjoining a criminal statute is whether there is irreparable harm. That issue—not whether property is involved—is and should be the overriding question. State v. Logue, 376 S.W.2d 567, 570 & 572 (Tex.1964) ("It is the adequacy of the remedy at law that marks off the limitations as well as the jurisdiction of equitable relief.... [T]he requirement of property rights being affected is related to adequacy of remedy at law...."); City of Dallas v. England, 846 S.W.2d 957, 959 (Tex.App.— Austin 1993, writ dism'd w.o.j.). The power of a court to assume jurisdiction of a cause on the ground of irreparable injury is the fundamental characteristic of equity jurisdiction. Sisco v. Hereford, 694 S.W.2d 3, 7 (Tex.App.—San Antonio 1984, writ ref'd n.r.e.) ("It has long been established that the inadequacies of the remedy at law is both the foundation of and conversely the limitation on equity jurisdiction."); Burford v. Sun Oil Co., 186 S.W.2d 306, 314 (Tex.Civ.App.—Austin 1944, writ ref'd w.o.m.) ("[T]he inadequacy of the remedy at law is both the foundation of, and conversely a limitation on, equity jurisdiction."); Joseph R. Long, Equitable Jurisdiction to Protect Personal Rights, 33 Yale L.J. 115, 116 (1921) ("[T]he jurisdiction of equity does not properly depend on the nature of the right involved, whether a right of person or of property; the true test of equity jurisdiction is the existence of a justiciable right for which there is not a full, adequate, and complete remedy at law."); 27 Am.Jur.2d Equity § 21 (1966).

Nearly a century ago, this court recognized that the proposition that a court of equity will not enjoin a criminal prosecution is subordinate to the general principle that equity will grant relief when there is not a plain, adequate, and complete remedy at law. City of Austin v. Austin City Cemetery Ass'n, 87 Tex. 330, 336, 28 S.W. 528, 529 (1894). In City of Austin, we concluded that if a statute criminalizes conduct, a party typically has a remedy because that individual can continue to engage in the conduct and assert the statute's unconstitutionality in courts with jurisdiction over criminal matters. Id. at 336, 28 S.W. at 530. More importantly, we recognized that there are cases in which there is no pending nor anticipated prosecution but the statute nonetheless injures the party regulated. Accordingly, we determined that in such cases there is no adequate remedy through criminal courts and a court of equity can enjoin enforcement of the statute. To hold otherwise would disregard the fundamental principle upon which such courts are established. Id. at 337, 28 S.W. at 530.

Although the injury in City of Austin involved a property interest, the decision turned not on that property interest, but on the inability of the party to obtain judicial review of an alleged unconstitutional statute.1 See State v. Logue, 376 S.W.2d at 570 (noting that City of Austin rested on the premise that unless the courts of equity took jurisdiction, there would be no way ever to test the constitutionality of the ordinance); Air Curtain Destructor Corp. v. City of Austin, 675 S.W.2d 615, 618 (Tex.App.—Tyler 1984, writ ref'd n.r.e.) (noting that City of Austin applies in cases in which it is highly unlikely that an ordinance may be tested); City of Dallas v. Dallas County Housemovers Ass'n, 555 S.W.2d 212, 214 (Tex.Civ.App.—Dallas 1977, no writ) (noting that the threshold requirement to invoke equity jurisdiction of irreparable harm is related to the adequacy of the remedy at law and stating the rule under City of Austin that the remedy at law is inadequate where a party is effectively prevented from ever challenging the validity of the statute in a criminal prosecution). A number of cases involving property subsequently came before Texas courts,2 and City of Austin was cited as authority for a court in equity to enjoin criminal prosecution in cases in which an unconstitutional statute irreparably harms a property right.3 Some courts continued to recognize that property or civil rights could be at issue and that the ultimate issue was irreparable harm.4 Other courts, perhaps because property injuries were alleged, relied strictly on the property exception.

In 1969, we returned to the issue of the jurisdiction of a court sitting in equity, stating:

Passel v. Fort Worth Indep. Sch. Dist., 440 S.W.2d 61, 63-64 (Tex.1969).5 This court analyzed the State's argument that courts of equity will not interfere with the ordinary enforcement of a criminal statute unless it is unconstitutional and its enforcement will result in irreparable injury to vested property rights. We concluded the rationale for such a rule is that the meaning and validity of a penal statute or ordinance should ordinarily be determined by courts exercising criminal jurisdiction. Id. at 63. We expanded the exception to personal rights, however, and reversed the trial court's dismissal for lack of jurisdiction because the plaintiffs had no way to test the penal statute because no prosecutions were threatened or even contemplated. Id. at 64.

Passel was part of a larger trend in which courts discarded the property/personal rights distinction. The notion this court resurrects today—that equity will intervene only when property is at stake—has long fallen into disuse.6 As another Texas court, cited with approval for that point by Justice Walker writing for this court in Passel, observed:

Hawks v. Yancey, 265 S.W. 233, 237 (Tex. Civ.App.—Dallas 1924, no writ) (citations omitted) (concluding that Texas courts are not required to search for rights of property on which to base jurisdiction to grant injunctions to protect personal rights).7 The court correctly notes that the cases cited in Passel as support for "the modern view," such as Hawks, did not involve challenges to criminal statutes. But protection of personal and civil rights is also the modern trend in our nation's jurisprudence on the narrower issue of equity jurisdiction over criminal law.8

Today the court not only rewrites Passel;9 it also overturns the driving principle announced in 1894 in City of Austin. The court inflicts this damage to its own precedent because, it says, it fears the court will be confronted with untold cases challenging criminal statutes. But the City of Austin/Passel remedy applies only in exceptional situations such as the present case—where the statute is alleged to be unconstitutional, where there is irreparable harm to property or personal rights, and where the inadequacy of the remedy at law is clearly demonstrated by evidence of lack of prior enforcement and by a stipulation by the State that enforcement in the near future is unlikely. The paucity of cases meeting this requirement of nearly complete lack of enforcement is reflected by the fact that only twice in the last century have we had occasion to consider this issue of equity jurisdiction over challenges to criminal statutes in the context of a plaintiff who is effectively prevented from asserting the challenge in criminal court. See City of Austin, 87 Tex. at 336-37, 28 S.W. at 530; Passel, 440 S.W.2d at 64. The court states that the real danger of our assuming jurisdiction here is the prospect that the Court of Criminal Appeals will decide to exercise its jurisdiction in the future and issue an opinion conflicting with ours. But such a prospect exists any time an equity court assumes jurisdiction of a challenge to a criminal statute, even when it does so on the traditional ground of preventing irreparable injury to property rights. The court does not explain why it is not bothered by this same prospect when property rights or administrative rules are involved.10

The rationale for such a rule is readily apparent. Equity courts usually decline to interfere with a criminal prosecution because an individual can assert the unconstitutionality of the statute as a defense in a criminal prosecution. See City of Austin, 87 Tex. at 336, 28 S.W. at 530. Sometimes additional harms flow from prosecution. But we require injury to reputation, for example, to be remedied through the criminal courts during prosecution because to allow equity to intervene would prevent prosecution under every criminal statute. Under these circumstances, we say that a party who is prosecuted and can defend and gain an acquittal has an adequate remedy at law. If property rights may irreparably be harmed during some prosecutions, we say we will protect those property rights when the statute is clearly unconstitutional. See Bielecki v. City of Port Arthur, 12 S.W.2d at 978. City of Austin and Passel recognize that sometimes damages accrue even when there is and will be no prosecution, and that these damages can include harm to personal as well as property rights. That is the situation Morales presents us with today. In these infrequent and unusual cases, the fact that there will be no prosecution evidences the lack of an adequate remedy at law because the complaining party is denied an opportunity to argue the unconstitutionality of the statute in the criminal court system. Such were the circumstances in City of Austin and Passel, creating the unique situation which gives rise to an equity court's jurisdiction. As Justice Cardozo in 1937 quoted from even earlier cases, "`Where equity can give relief plaintiff ought not to be compelled to speculate upon the chance of obtaining relief at law.' ... `The remedy at law cannot be adequate if its adequacy depends upon the will of the opposing party.'" American Life Ins. Co. v. Stewart, 300 U.S. 203, 214-15, 57 S.Ct. 377, 379-80, 81 L.Ed. 605 (1937) (respectively quoting Davis v. Wakelee, 156 U.S. 680, 688, 15 S.Ct. 555, 558, 39 L.Ed. 578 (1895), and Bank of Kentucky v. Stone, 88 F. 383, 391 (D.Ky. 1898)).

The court confuses harm with prosecution by asserting there is no harm when it means there is no actual or threatened prosecution. Whether prosecution is imminent rather than a mere possibility matters only if the allegations are of anticipated harm rather than already accrued injury. See Frey v. DeCordova Band Estates Owners Ass'n, 647 S.W.2d 246, 248 (Tex.1983). Here plaintiffs alleged actual harm beyond the threat of criminal prosecution, as expressly acknowledged by the court of appeals opinion.11 This court also offers a confusing discussion of lack of jurisdiction because reaching the merits would be an advisory opinion, which is somehow linked to this absence of harm. If there is any need for more than an allegation of harm, it was satisfied in this case. The State stipulated12 that plaintiffs' job choices are limited, that they face discrimination in housing, family, and criminal justice matters, and that they suffer psychological harm to their relationships because they are labeled criminals by the very existence of the statute. Without in any way reaching the merits (i.e., the constitutionality of the statute), the court must concede the plaintiffs here have established that stipulated harm. Instead of making that admission, the court attempts to impose a threat of prosecution requirement as a predicate to recognizing actual harm.

Other jurisdictions expanding their equity jurisdiction over criminal statutes to encompass the protection of personal rights have not been unduly hampered by the prospect of equity overstepping its bounds.13 Many of this court's cases clinging to the property rights limitation on equity jurisdiction over criminal statutes do not even state a rationale. See, e.g., Texas Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 894 (Tex.1970); City of Fort Worth v. Craik, 411 S.W.2d 541, 542 (Tex.1967); Crouch v. Craik, 369 S.W.2d 311, 315 (Tex.1963). Those that do state a rationale—prevention of conflicts between the two high courts—are not applicable to cases such as this involving a clear lack of enforcement, as noted above. See, e.g., Logue, 376 S.W.2d 567, 569 (Tex. 1964). To quote Justice Holmes: "It is revolting to have no better reason for a rule of law than that so it was laid down in the reign of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." O.W. Holmes, The Path of the Law, 10 Harv. L.Rev. 457, 469 (1897).

Shirking its equitable duty to provide a remedy for a wrong,14 the court allows the State to insulate its laws from judicial scrutiny. Under the court's analysis, the State may adopt all manner of criminal laws affecting the civil or personal rights of any number of citizens, and by declining to prosecute under them, ensure that no court ever reviews them.

Declining to even consider the merits of the pleas for equitable relief before us today could have an impact far beyond the class of citizens immediately affected. By its holding the court effectively denies standing in Texas courts to any individual or group of citizens who seek equitable relief under the Texas Constitution, because of an unenforced Texas criminal statute, for the alleged deprivation of any personal liberty or civil right which does not also involve what the court may perceive as an adequate vested property interest.

The plaintiffs here are among over a quarter of a million Texas citizens who identify themselves as harmed by the existence of this statute.15 Today, this court tells these plaintiffs that it will not contemplate granting them a remedy even though the State agreed there is harm to their personal rights, absent their also showing harm to a vested property right. Because I believe this is wrong, I dissent.