Food Truck Lawsuit: Does the Government Have Interest in Protecting Current Businesses?

Institute of Justice Petitions to the Supreme Court of Texas

Plaintiffs SurfVive and the Avalos Brothers won their food truck lawsuit after Cameron County District Court Judge Arturo Cisneros Nelson declared South Padre Island's food truck permit cap and need for a restaurant's permission unconstitutional. This year, the 13th Court of Appeals reversed Judge Arturo Nelson's decision and granted the City of SPI immunity.

On August 24, the Institute for Justice (IOJ) filed a petition to be reviewed by the Supreme Court of Texas (SCOTX) to reverse the court of appeals.

The issue presented to the SCOTX by IOJ is the scope of the Due Course of Law Clause, the 14thAmendment, which grants equal civil and legal rights to "all persons born or naturalized in the United States" and an individual's right to pursue a common occupation. 

Pictured: Stephen Macauley, Erica Lerma de Macauley, and their children Eva, Damian, and Ariela. (Courtesy of SurfVive)

In defense of the City's argument that the appellee's lacked standing, they wrote, "If a Texan cannot obtain a permit because no permits are left, does standing to challenge that provision to require anything more than showing that no permits exist?"

(Photo: Institute of Justice)

In the opinion written by Justice Nora L. Longoria, the Thirteenth Court of Appeals held the City's argument of government interest in retaining current businesses and preventing economic decline. However, they rejected the justification that the restaurant permission requirement 'protects the general health and safety of the public.'

In the Statement of Facts, the IOJ wrote the Thirteenth Court of Appeals, "Destroyed the due-course right to practice a common occupation by upholding naked economic protectionism."

By holding that private economic protectionism, the lower court effectively nullifies many other due process law cases over the right to pursue a common occupation. The IOJ argued that the holding swallow's economic rights whole, and it metaphorically wrecks many cases that would have been wrongly decided if the Thirteenth Court is right.

[Island Matters is following this case]

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