Advisory Opinions and Texas Courts

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Advisory Opinions

Under Article II, section 1 of the Texas Constitution, Texas courts lack jurisdiction to issue advisory opinions.  The state’s Constitution bars courts from rendering advisory opinions and limits access to the courts to those individuals who have suffered an actual, concrete injury.  The prohibition on advisory opinions also precludes courts from deciding moot controversies.

What is an Advisory Opinion?

An advisory opinion decides an abstract question of law without binding the parties, and a judgment based on an advisory opinion addresses only a hypothetical injury rather than remedying an actual or imminent harm.  It states the court’s legal opinion on a question.

The Separation-of-Powers Doctrine and Advisory Opinions

Justiciability doctrines such as ripeness and standing find their constitutional roots in the prohibition on advisory opinions, which in turn stems from the separation-of-powers doctrine.  The separation-of-powers doctrine prohibits courts from issuing advisory opinions.  Advisory opinions are prohibited because they infringe on the duties and powers of the legislative and executive branches.

The Open Courts Provision

The Texas Constitution’s open courts provision likewise provides a textual basis for the prohibition on advisory opinions.  The open courts section provides that:

All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

TEX. CONST. art. I, § 13 (emphasis added).

Given its emphasis on injury, the open courts provision contemplates access to courts only for persons who have suffered an injury or harm.

Declaratory Judgments and Advisory Opinions

When seeking a declaratory judgment, a plaintiff must allege facts that demonstrate a real dispute involving an immediate, concrete outcome—that is, there must be a justiciable controversy as to the rights and status of the parties and the controversy must be resolved by the declaration that the plaintiff seeks.

That is, the Declaratory Judgment Act does not empower a court to render an advisory opinion or to rule on a hypothetical fact situation. There are two prerequisites for a declaratory judgment action: (1) there must be a real controversy between the parties and (2) the controversy must be one that will actually be determined by the judicial declaration sought.

The Uniform Declaratory Judgments Act (UDJA) provides, among other things, the right to have determined any question of construction or validity arising under a contract and to “obtain a declaration of rights, status, or other legal relations thereunder.”  Broad as this right is, the Act does not create or enlarge a trial court’s subject matter jurisdiction; it is “merely a procedural device for deciding cases already within a court’s jurisdiction.

Thus, a declaratory judgment will lie only if a justiciable controversy exists as to the rights and status of the parties and the declaration will resolve the controversy.  For example, a court may refuse to render or enter a declaratory judgment or decree if the judgment or decree would not terminate the uncertainty or controversy giving rise to the proceeding.  In other words, a declaratory judgment cannot be utilized as a vehicle to obtain an advisory opinion.


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