Legal Memorandum: Equitable Remedies in TX

Issue: Under Texas law, when may the equitable powers of the court be invoked to protect a right that is not currently in existence?

           Simply stated, in order to be justiciable, a controversy must have a subject matter upon which the plaintiff grounds his or her right.   When there is no current, existing, res to be protected by an equitable remedy, there is no justiciable cause of action.  See e.g., Elmo v. James, 282 S.W. 835, 838 (Tex. Civ. App.—Fort Worth 1926), writ dism’d w.o.j. 

Texas case law adheres to the universal principle that equity will not intervene to protect a right not threatened.  This is a jurisdictional issue that may not be waived.  As the court stated in Overton v. Houston, 564 S.W.2d 400 (Tex. Civ. App.—Houston [1st Dist.] 1978), writ ref’d n.r.e., “[t]he district court lacks power to pass upon hypothetical or contingent situations, or determine questions not essential to the decision of an actual controversy, although such questions may, in the future, require adjudication.”  Id. at 402 (citing Fireman’s Ins. Co. v. Burch, 442 S.W.2d 331 (Tex. 1968)).

Or, as the court stated in Fort Worth Lloyds v. Garza, 527 S.W.2d 195 (Tex. Civ. App.—Corpus Christi 1975), writ ref’d n.r.e., “[t]he courts do not make mere hypothetical adjudication where there is no justiciable controversy presently before the court, or where the existence of a controversy is dependent upon the happening of future events.”  Id. at 200.  In Garza, the “two questions posed . . . presented no justiciable controversy because the existence of a controversy was dependent on the happening of a future […]