As a general rule, Texas law traditionally has required a claimant to possess a common law or a statutory right of action, or in public rights cases, to have a personal interest in die enforcement of the public right distinct from and more palpable than me general public's interest before commencing a civil action.1 Beginning witii the Texas Supreme Court's decision in Texas Ass' ? of Business v. Texas Air Control Board, a majority of die Texas Supreme Court appears to have replaced these traditional ideas with federal standing doctrine and to have elevated the law of standing to jurisdictional status.2 The court's new approach to standing complicates Texas procedural law by embracing a complex body of federal constitutional law3 without clearly explaining whether a claimant must possess a legal injury resulting from the breach of a legal duty, or whether some other type of interest or injury is sufficient to satisfy Texas's standing requirements.4
Another troublesome byproduct of the court's 1993 decision in Texas Ass'n of Business involves Texas's capacity defenses.5 Texas Supreme Court decisions prior to Texas Ass'n of Business treated the concepts of capacity and standing as essentially synonymous.6 This is no longer possible after Texas Ass 'n of Business. The elevation of standing to a jurisdictional doctrine requires a clear line of demarcation between the doctrines of capacity and standing. No such line has been established; instead, Texas appellate decisions exhibit incoherence and confusion.
This Article examines federal and Texas standing doctrine and makes recommendations for the principled application of the traditional nonjurisdictional approach of the procedural defense of standing under Texas law for common law claims and statutory rights of action and for the concomitant restriction of the jurisdictional aspects of standing to litigation brought by private persons and governmental units to enforce public rights or compel the performance of public duties. This Article also explains how the concepts of standing and capacity can be reconciled and harmonized.
II. FEDERAL JURISPRUDENCE
Article III of the Constitution limits the judicial power of the federal courts to the resolution of "Cases" and "Controversies."7 Those two words currently impose a number of limits on the exercise of judicial power by eliminating some important disputes from the federal judicial sphere. Thus, as the Supreme Court recently summarized in Massachusetts v. Environmental Protection Agency:
[N]o justiciable "controversy" exists when parties seek adjudication of a political question, when they ask for an advisory opinion, or when the question sought to be adjudicated has been mooted by subsequent developments.8
In addition, "[t]he rules of standing ... are threshold determinants of the propriety of judicial intervention. It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers."9
In other words, the rules of standing determine whether a litigant has the right type of interest to maintain an action in federal court. Constitutional standing is "one of the controlling elements in the definition of a case or controversy under Article III."10 Under federal law, a lack of Article III standing deprives a court of subject matter jurisdiction.11
The fundamental requirement that claimants must have standing is not a mere pleading rule. As Justice Scalia' s majority opinion in Lujan v. Defenders of Wildlife explains:
[The elements of standing] are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff has the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. …