Opinion
01-20-00407-CV
01-27-2022
GRAYLIN GANT, JAY HEICHELHEIM, STEPHEN HOLT, SHERIF SAUDI, AND CHARLES BRADEN, Appellants v. BOARD OF PILOT COMMISSIONERS FOR GALVESTON COUNTY PORTS, Appellee
On Appeal from the 212th District Court Galveston County, Texas Trial Court Case No. 19-CV-1318
Panel consists of Chief Justice Radack and Justices Rivas-Molloy and Guerra.
MEMORANDUM OPINION
Amparo Guerra, Justice
Five federally licensed ship pilots-Appellants Graylin Gant, Jay Heichelheim, Stephen Holt, Sherif Saudi, and Charles Braden-applied for state licenses to pilot ships to and from Galveston County ports. When the Board of Pilot Commissioners for Galveston County ports (the Board) declined to consider their applications, Appellants sought declaratory relief in the trial court on the ground that certain provisions of the Board-administered statute regulating pilotage in Galveston County grant an unconstitutional monopoly to the Galveston-Texas City Pilots Association (the Pilot Association), a private association traditionally made up of persons licensed to provide pilot services in Galveston County. The trial court entered a final summary judgment upholding the challenged provisions. Appellants challenge the trial court's summary judgment ruling in two issues on appeal, contending the challenged provisions are unconstitutional (1) on their face and (2) as applied in this case.
The Pilot Association is not a party to this lawsuit.
We affirm.
Background
A statewide regulatory scheme governs pilotage in Texas. See Tex. Transp. Code § 61.001-64.006. In addition, the Texas Legislature has enacted laws governing port-specific pilotage. See, e.g., id. §§ 65.001-70.083. While the statewide act prescribes minimum standards for operating port-specific gubernatorial boards, the various port-specific laws contain more particularized provisions for the operation of such boards and the selection of pilots. See id. §§ 62.025, 62.041-.043, 62.045, 67.017.
A "pilot" includes "a licensed state pilot or certified deputy pilot." Tex. Transp. Code § 61.002(3); see also id. § 67.002(4) (defining "pilot" to mean "a person who is licensed as a branch pilot or certified as a deputy branch pilot").
Pilotage in Galveston County ports is governed by the Galveston County Pilots Licensing and Regulatory Act (the Galveston Act). See id. §§ 67.001-.083. The Galveston Act is administered by the Board, whose five members are appointed by the Governor with the advice and consent of the senate. Id. §§ 67.011, .016. The Board oversees numerous aspects of pilotage specific to Galveston ports, including the process for becoming a pilot. See, e.g., id. § 67.017. Among its enumerated duties, the Board:
(1) "recommend[s] to the [G]overnor the number of pilots necessary to provide adequate pilot services for each Galveston County port";
(2) "accept[s] applications for pilot licenses and certificates and determine[s] whether each applicant meets the qualifications for a pilot";
(3) "provide[s] names of all qualified applicants for certificates to each pilot association office of Galveston County";
(4) "submit[s] to the [G]overnor the names of persons who have qualified under [the Galveston Act] to be appointed as branch pilots"; and
(5) "approve[s] a training program for deputy branch pilots."Id. § 67.017(1)-(4), (13).
Pilots and deputy pilots must meet the qualifications set out in the Galveston Act. See id. §§ 67.033-.034. The qualifications for a pilot license include criteria for age, citizenship, residency, mental and physical health, moral character, and years of service as a deputy pilot, as well as criteria related to skill and experience in navigating, docking, and undocking vessels, that ensure competent and safe performance of a pilot's duties. Id. § 67.033. Although there are fewer qualifications for a deputy pilot, many are the same. See id. § 67.034. These include criteria related to age, citizenship, mental and physical health, moral character, and skill "as a navigator and pilot" to perform a deputy pilot's duties competently and safely. Id. § 67.034(1)-(2), (4)-(6). In addition, a deputy pilot must be appointed by a pilot. Id. § 67.034(3).
Beyond meeting the statutory qualifications, a person seeking a pilot license or deputy pilot certificate must "give to the [B]oard a written application in the form and manner required by board rule." Id. § 67.035. "As part of its consideration of applications for licenses and certificates, the [B]oard may examine and decide on the qualifications of an applicant for [those] position[s]." Id. § 67.036. Applicants selected by the Board for pilot licensure must file a bond and oath, after which the Board "shall certify to the [G]overnor that a person licensed as a branch pilot has qualified." Id. § 67.037(a); see also id. § 67.039 (setting forth requirements for oath and bond). Upon receipt of the Board's certification, "the [G]overnor shall issue to the person . . . a commission to serve as a branch pilot to and from Galveston County ports." Id. § 67.037(b). Deputy pilots are not commissioned by the Governor; as stated, they are appointed by the pilots commissioned for the Galveston County ports. Id. §§ 67.034(3), 67.038.
Appellants hold licenses from the United States Coast Guard. They do not hold-but wish to obtain-state licenses to pilot ships to and from Galveston County ports. In February 2015, Appellants' counsel emailed former Board chairman Vandy Anderson to ask whether the Board had implemented rules for pilot and deputy pilot applications. Counsel stated the inquiry was on behalf of a client who "wish[ed] to make an application" that would be unaffiliated with the Pilot Association. Anderson responded with "very unofficial comments" to the effect that the Board would announce in the maritime media when it was ready to receive applications due to the retirement or resignation of a commissioned pilot, "and then anyone may apply. All under the statute." Subsequent email correspondence from Appellants' counsel suggests that this response-and a lack of further communication as to any specific application requirements-led Appellants to believe the Board had not implemented rules for pilot and deputy pilot applications. And so, Appellants submitted applications to the Board in a form drafted by their counsel.
A subsequent Board chairman, Kenny Koncaba, responded to Appellants' submissions by letter restating the Galveston Act's eligibility requirements for pilots and deputy pilots. The letter advised Appellants that they must submit to the Board (1) a completed "Deputy Pilot Application form for the Ports of Galveston County," along with (2) a "deputy pilot's checklist," (3) a "copy of the applicant's Coast Guard license," and (4) a "merchant marine personnel physical examination report." The letter further advised Appellants to "[k]eep in mind" that the Board "depends upon [the Pilot Association] to keep it advised as to any need for additional pilots and deputy pilots" and, based on that determination of need, "considers applications[ ] and makes recommendations to the Governor in accordance with the [Galveston Act]."
The deputy pilot application form and checklist were provided to Appellants under a cover letter signed by the Board. Despite the Board's signature, however, the application cover letter notes the Pilot Association's appreciation of the applicant's "interest in becoming a deputy branch pilot with this organization." (Emphasis added.) The application cover letter also includes a list of the Pilot Association's requirements for applicants that are in addition to the statutory eligibility requirements, including that:
(1) the applicant must be licensed by the United States Coast Guard;
(2) depending on the type of Coast Guard license, the applicant also may be required to document a certain number of hours of qualifying service;
(3) the applicant must have sailed on the qualifying Coast Guard license for a minimum of 900 days; and
(4) "[n]o candidate may be related to any branch pilot currently serving with [the Pilot Association]."
Although the Galveston Act does not state that applicants must hold a United States Coast Guard license, the statewide act contains this requirement. See Tex. Transp. Code § 61.011(a).
The deputy pilot application form-which applicants are instructed to return to the Board and not to "any other person or entity"-does not reference the Pilot Association. But an attached release authorizes certain actions by the Board and the Pilot Association in exchange for consideration of the application. It is undisputed that the Board and the Pilot Association jointly select deputy pilots.
The release gives both the Board and the Pilot Association, among other things, permission to "investigate the statements made on [the] application"; "conduct a background check"; obtain a credit report, "Marine Index Bureau Report," and Coast Guard records; and contact current and former employers. In addition, it releases the Board, the Pilot Association, and "their agents and investigators . . . from any and all claims . . . related to any investigation conducted by them related to [the] application."
The Board declined to consider Appellants' applications because they were incomplete. In response to the Board's refusal to consider their applications, Appellants petitioned the trial court for declaratory relief, contending that the Act's qualifications and application provisions violate the monopoly clause of the Texas Constitution. See Tex. Const. art. I, § 26 ("[M]onopolies are contrary to the genius of a free government, and shall never be allowed[.]").
This is Appellants' second lawsuit challenging the Galveston Act's constitutionality. Previously, Appellants filed a Travis County lawsuit against Governor Greg Abbott and the individual Board members in their official capacities, seeking relief from the same statutory provisions. See Gant v. Abbott, 574 S.W.3d 625 (Tex. App.-Austin 2019, no pet.). On appeal, the Austin Court of Appeals determined that the courts lacked jurisdiction to address the merits of Appellants' claims because, among other reasons, the Board was not a party to the declaratory judgment action. See id. at 633-34. Appellants subsequently re-filed their declaratory judgment claim in Galveston County, as part of the lawsuit now before us, and included the Board as a defendant.
Specifically, Appellants pleaded that the qualifications for pilots and deputy pilots in Sections 67.033 and 67.034 are unconstitutional on their face. See Tex. Transp. Code §§ 67.033-.034. In relevant part, these provisions require that a person seeking a pilot license (1) must "have at least two years' service as a deputy branch pilot and successfully complete the board-approved training program," and, (2) to be eligible as a deputy pilot, must "be appointed by a branch pilot." Id. §§ 67.033(4), .034(3). According to Appellants, these requirements create a closed, monopolistic system that favors the Pilot Association because "there is no path to becoming either a deputy [pilot] or [a] pilot except as dictated by [the Pilot Association]." That is, "[w]ithout the approval and endorsement of the existing pilots, and deputy service under the existing pilots, nobody can obtain a license to pilot ships in Galveston County regardless of their qualifications[.]" In addition, Appellants pleaded an as-applied challenge to the requirement in Section 67.035 that "a person must give to the [B]oard a written application in the form and manner required by board rule." Id. § 67.035.
The parties filed cross-motions for summary judgment. Without stating its reasons, the trial court entered a final judgment denying Appellants' motion and granting the Board's motion, thereby upholding the challenged statutes.
Constitutionality of the Galveston Act's Qualifications and Application Provisions
In two issues, Appellants contend the barriers to qualification and application for a state pilot's license or deputy pilot's certification in Galveston County are "patently unreasonable and illegal restrictions to market entry," and thus violate the Texas Constitution's prohibition against monopolies. See Tex. Const. art. I, § 26; see also Tex. Transp. Code §§ 67.033-.035. More specifically, in their first issue, Appellants argue that Sections 67.033(4) and 67.034(3) of the Galveston Act are facially unconstitutional because they insulate those who already hold state licenses from competition by requiring applicants to qualify based on the approval of existing license holders. See Tex. Transp. Code §§ 67.033(4), .034(3). And in their second issue, Appellants argue that Section 67.035's application procedure, as applied in this case, sustains an unconstitutional monopoly because the Board refused to consider Appellants' applications because "they did not seek to join [the Pilot Association]." See id. § 67.035. We disagree.
A. Standards of Review
The issues presented in this case require us to consider the propriety of the trial court's summary judgment in tandem with Appellants' challenges to the constitutionality of the Galveston Act's qualifications and application provisions. Accordingly, we detail both the summary-judgment and statutory-construction standards of review.
A summary judgment is reviewed de novo. See, e.g., Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When both sides move for summary judgment and the trial court grants one motion and denies the other, we review both sides' summary judgment evidence and determine all questions presented. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Hudson v. City of Hous., 392 S.W.3d 714, 721 (Tex. App.-Houston [1st Dist.] 2011, pet. denied). If we find error, we will render the judgment the trial court should have rendered. See Comm'rs Court of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997); CenterPoint Energy Hou. Elec., L.L.P. v. Old TJC Co., 177 S.W.3d 425, 430 (Tex. App.-Houston [1st Dist.] 2005, pet. denied). "When a trial court's order granting summary judgment does not specify the grounds relied upon, [we] must affirm summary judgment if any of the summary judgment grounds are meritorious." FM Props. Operating Co., 22 S.W.3d at 872-73.
Matters of statutory construction-including the constitutionality of a statute-are questions of law for the courts to decide. See State v. Hodges, 92 S.W.3d 489, 494 (Tex. 2002); Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989). If possible, we interpret a statute in a manner that renders it constitutional. FM Props. Operating Co., 22 S.W.3d at 873; see also Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003) ("We begin our analysis by presuming the statute is constitutional."). A party may challenge a statute as being unconstitutional on its face or as applied to that party. City of Corpus Christi v. Pub. Util. Comm'n of Tex., 51 S.W.3d 231, 240-41 (Tex. 2001); Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 518 & n.16 (Tex. 1995). "[A] facial challenge to a statute is the most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid." In re D.R.L., No. 01-15-00733-CV, 2016 WL 672664, at *10 (Tex. App.-Houston [1st Dist.] Feb. 18, 2016, no pet.) (mem. op.) (internal quotation omitted); accord United States v. Salerno, 481 U.S. 739, 745 (1987) ("A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."). In reviewing a facial challenge, we consider the statute as written rather than how it operates in practice. FM Props. Operating Co., 22 S.W.3d at 873. In contrast, an as-applied challenge concedes that the statute is generally constitutional but claims that it operates unconstitutionally as to the challenger due to their specific circumstances. City of Corpus Christi, 51 S.W.3d at 240; 8100 N. Freeway, Ltd. v. City of Hous., 363 S.W.3d 849, 855 (Tex. App.-Houston [14th Dist.] 2012, no pet.).
B. The qualifications provisions in Sections 67.033(4) and 67.034(3) are not facially unconstitutional
Appellant argues that certain of the statutory requirements for qualification as a pilot or deputy pilot under the Galveston Act are facially invalid because they violate the Texas Constitution's prohibition against monopolies. See Tex. Const. art. I, § 26. Specifically, Appellants challenge (1) the requirement in Section 67.033(4) that pilots must "have at least two years' service as a deputy branch pilot and successfully complete the board-approved training program" and (2) the requirement in Section 67.034(3) that a deputy pilot must "be appointed by a branch pilot." See Tex. Transp. Code §§ 67.033(4), .034(3). Appellants assert that these qualifications provisions foreclose any route to pilotage in Galveston County "except as dictated by [the Pilot Association], whose directions the Board follows." According to Appellants, a legislative enactment "[r]equiring an existing pilot to approve of an applicant as a condition of [the applicant] being given a license is not rationally related to any interest [Texas] has in protecting health or safety [through occupational licensing, ] and only serves to insulate those already holding licenses from competition."
The Texas Constitution provides that "monopolies are contrary to the genius of a free government, and shall never be allowed[.]" Tex. Const. art. I, § 26. Texas decisions under the monopoly clause are relatively few but generally reflect an understanding that the clause constrains the State from interfering with competition through "[a] grant which gives to one or an association of persons an exclusive right to buy, sell, make, or use a given thing or commodity, or to pursue a given employment." City of Brenham v. Brenham Water Co., 4 S.W. 143, 153 (Tex. 1887); see also Lens Express, Inc. v. Ewald, 907 S.W.2d 64, 70 (Tex. App.-Austin 1995, no writ) (describing unlawful monopoly as "(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historical accident"); Jones v. Carter, 101 S.W. 514, 516 (Tex. Civ. App. 1907) (describing monopoly as "any combination or contract, the tendency of which is to prevent competition," including grant of exclusive right to few entities); City of Brenham v. Becker, No. 1225, 1881 WL 9468, at *1 (Tex. Comm'n App. 1881) ("[I]n short, there is no power in the state that can create a monopoly, for in the emphatic language of the people, speaking through their bill of rights, monopolies 'shall never be allowed.'"). However, a statute does not necessarily create an unconstitutional monopoly simply because it confers rights on some and not on others if the distinction is justified. See Lens Express, 907 S.W.2d at 71; see also City of Brenham, 4 S.W. at 154 ("There are, however, certain classes of exclusive privileges which do not amount to monopolies[.]").
Case law has recognized occupational licensing requirements that protect public health, safety, welfare, and other areas within the legitimate scope of the state's police power as among the class of such justifiable distinctions. See Lens Express, 907 S.W.2d at 71 (statute distinguishing between licensed optometrists and unlicensed contact lens dispensers was supported by reasonable public health rationale); see also Jannin v. State, 51 S.W. 1126, 1127 (Tex. Crim. App. 1899) (law criminalizing sale of railroad tickets by anyone other than railroad agent does not create unconstitutional monopoly because state has validly exercised its police power to protect public from fraud); Favaloro v. Comm'n for Lawyer Discipline, 994 S.W.2d 815, 823 (Tex. App.-Dallas 1999, pet. struck) ("The State Bar is not a monopoly but is the entity charged with regulating the practice of law for the protection of the public."). For example, in Lens Express, our sister court in Austin upheld the Texas Optometry Act against monopoly allegations. See 907 S.W.2d at 70-71. In that case, a company dispensing contact lenses by mail at discount prices alleged that "optometrists and ophthalmologists have a monopoly on the sale of contact lenses in Texas because a complete prescription is required [under the optometry act] in order for any other entity to sell the lenses to consumers." Id. at 70. The appellate court disagreed that the challenged statutory provisions created an unconstitutional monopoly because, among other reasons, "the State provided a reasonable public health rationale for the statute's distinctions between licensed optometrists and unlicensed dispensers." Id. at 71.
Though not under the specific arguments advanced here, the public safety concerns underlying pilotage licensing have been addressed by the courts. More than 120 years ago, an unsuccessful pilot applicant sought mandamus to compel the Board to examine his qualifications to be a branch pilot and report those qualifications to the Governor. See Petterson v. Bd. of Comm'rs of Pilots for the Port of Galveston, 57 S.W. 1002, 1003 (Tex. Civ. App.-Galveston 1900, no writ). The appellate court upheld the statutory framework restricting both the number of and the prerequisites for consideration as new pilots, recognizing it was not "passed for the furtherance or preservation of any individual right" but rather based on the "clear and manifest purpose" of "secur[ing] a high order of service in a calling affecting interests of vast public and private concern." Id. at 1005. In addition, regarding the restriction of pilots to those who had first served successfully as deputy pilots, the Court wrote:
[I]t results in experience in the very waters in which they are afterwards to serve as pilots. The pilot is made responsible for the acts of his deputies, and he cannot appoint one without examination and indorsement by the [B]oard. No better system could be devised for the
securing of able and efficient men to perform the responsible and onerous service imposed.Id. at 1006.
A short time later, an appellate court again considered the then-in-effect Galveston County pilotage statute in Olsen v. Smith, 68 S.W. 320 (Tex. Civ. App. 1902), aff'd 25 S.Ct. 52(1904). There, the "duly commissioned branch pilots of the port of Galveston" sued to collect damages from an unlicensed pilot and to enjoin him from "piloting or attempting to pilot" vessels "in or out of the port of Galveston." Id. at 320. The unlicensed pilot raised constitutional challenges in defense under the privileges and immunities clauses of the federal and state constitutions. Id. at 322. He alleged that the pilotage statute was void to the extent that it provided commissioned pilots are officers, that they may be limited in number based on need, and that the new deputies must be recommended-or in the statute's words, "appointed"-by current pilots. Id. at 322. The court of appeals explained:
Upon this subject much might be written. But in view of the universality of such laws, and their long observance and enforcement in commercial countries, very little need be said. The object of such laws is to protect life and property from the perils incident to navigation. The subject comes fairly within the scope of governmental or police functions.Id. at 322 (internal citation omitted). Furthermore, relying on Petterson, the court rejected the unlicensed pilot's assertion that the function of the Board and Pilot Association in selecting pilots was an illegal monopoly constraining competition, observing:
The entire subject is under the control of the governor and the commissioners. So as long as they see fit to retain defendants in error in office as pilots, plaintiff in error cannot question their right to exercise their functions. The very nature of an office is that it gives a monopoly of exercising official acts pertaining thereto to the incumbent, to the exclusion of others, though equally fit.Id. at 323.
On further appeal, the United States Supreme Court commented on the exclusion of unlicensed pilots from pilot services under this regulatory framework. In rejecting the unlicensed pilot's contention of a right to serve, the Court reasoned:
The contention that (because) the commissioned pilots have a monopoly of the business, and by combination among themselves exclude all others from rendering pilotage services, is also but a denial of the authority of the state to regulate, since, if the state has the power to regulate, and in so doing to appoint and commission those who are to perform pilotage services, it must follow that no monopoly or combination in a legal sense can arise from the fact that the duly authorized agents of the state are alone allowed to perform the duties devolving upon them by law.25 S.Ct. at 55.
Appellants acknowledge that pilot licensing requirements generally serve the state's legitimate interest in protecting public health, safety, and welfare, but based on affiliation with or membership in the Pilot Association does not. To the extent Appellants contend that the qualifications for licensure and certification under the Galveston Act are tied to (or are in some way contingent upon) affiliation with or membership in the Pilot Association, we reject that contention. As stated, we must consider the statute "as written" in a facial challenge. FM Props. Operating Co., 22 S.W.3d at 873. And here, although the summary-judgment evidence supports that licensed pilots traditionally affiliate with the Pilot Association, the Galveston Act itself contains no requirement for affiliation with or membership in the Pilot Association as a prerequisite to either licensure as a pilot or certification as a deputy pilot. See Tex. Transp. Code §§ 67.033, .034. Under the Galveston Act, as written, pilots are approved or not approved by the Board and the Governor-not the Pilot Association. See id. §§ 67.033, .037.
The Board has provided a reasonable public health, safety, or welfare rationale for the provisions challenged by Appellants-the provisions requiring two years' service as a deputy pilot as a perquisite to licensure as a pilot and appointment by a pilot as a prerequisite to certification as a deputy pilot. See Tex. Transp. Code §§ 67.033(4), .034(3). These provisions, in essence, require training through apprenticeship. As suggested by Petterson, an apprenticeship requirement ensures that applicants obtain "experience in the very waters in which they are afterwards to serve as pilots." Petterson, 57 S.W. at 1006; see also Kotch v. Bd. of River Port Pilot Comm'rs for Port of New Orleans, 330 U.S. 552, 558 (1947) ("A pilot does not require a formalized technical education so much as a detailed and extremely intimate, almost intuitive, knowledge of the weather, waterways and conformation of the harbor or river which he serves.").
In sum, although the challenged qualifications provisions have some anticompetitive effect by limiting the number of pilots and deputy pilots in Galveston ports and by creating a distinction between unlicensed and licensed or certified pilots, these are justified distinctions given the reasonable public safety rationale for their existence. See Lens Express, 907 S.W.2d at 71. We conclude that Appellants have not established that the qualifications provisions in Sections 67.033(4) and 67.034(3) of the Galveston Act always have and always will operate unconstitutionally. See Tex. Transp. Code §§ 67.033(4), .034(3). And consequently, we hold that the trial court did not err by granting the summary judgment dismissing Appellants' claim that these provisions are facially unconstitutional.
We overrule Appellants' first issue.
C. The application provision in Section 67.035 is not unconstitutional as applied
Section 67.035 of the Galveston Act provides that prospective pilots and deputy pilots "must give to the [B]oard a written application in the form and manner required by board rule." Tex. Transp. Code § 67.035. Appellants argue that "[a]lthough innocuous enough on its face," this provision is unconstitutional as applied because "the Board has no rule, other than for those wishing to apply to become a member of [the Pilot Association]." Stated differently, Appellants assert that by refusing to consider applicants who do not seek to join the Pilot Association, the Board sustains the Pilot Association monopoly.
We do not find any support in the record for Appellants' assertion that the Board required them to join the Pilot Association before applying for licensure or certification. In their brief on appeal, Appellants identify two items of correspondence from the Board as evidence of their contention: (1) the letter correspondence from Chairman Koncaba responding to Appellants' application materials, and (2) the cover letter that accompanied the deputy pilot application form provided to Appellants.
The language identified from the first letter relied on by Appellants is Chairman Koncaba's advice to "[k]eep in mind" that "the Board depends upon the [Pilot Association] to keep it advised as to any need for additional pilots and deputy pilots" and, "[b]ased upon such need," "considers applications, and makes recommendations to the Governor in accordance with the statute." Although this correspondence establishes the Pilot Association's involvement in determining the number of licensed pilots or certified deputy pilots in Galveston County, it does not indicate that Appellants were required to join the Pilot Association before their applications for licensure or certification would be considered.
The same is true for the second item of correspondence. Appellants correctly point out that the cover letter that accompanied the deputy pilot application opens with a statement that the Pilot Association "appreciate[s] [the applicant's] interest in becoming a deputy branch pilot with this organization," and then lists several things the Pilot Association "further require[s]" of an applicant that are in addition to the statutory qualifications in Section 67.034. But membership in the Pilot Association is not included the listed requirements. Rather, the cover letter instructs applicants who "feel that [they] satisfy the above listed requirements" to "complete and print the application form," have their physician "complete and print the physical examination form," and "[r]eturn the completed application, completed physical, copy of [their] Coast Guard License or MMC Endorsement Pages, and check list" to the Board.
Because Section 67.035 is presumed constitutional, it was Appellants' "high burden" to overcome the presumption and show that Section 67.035's application provision, as applied to them, violated the Texas Constitution's prohibition against monopolies. See Patel v. Tex. Dep't of Licensing & Regul., 469 S.W.3d 69, 87 (Tex. 2015) (observing that parties carry a "high burden" to overcome presumption of statute's constitutionality). In sum, Appellants did not show what they contend- that the application process as applied to them sustains an unconstitutional monopoly because they were not considered for licensure or certification because they did not seek to join the Pilot Association. We therefore hold the trial court's summary judgment dismissing Appellants' as-applied claim was not erroneous.
We overrule Appellants' second issue.
Conclusion
We affirm the judgment of the trial court.