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Click here for the full text of this decision FACTS:Atmos Energy Corp. transports, delivers and sells natural gas to agricultural businesses and individual farmers in West Texas. Several of these businesses and farmers sued Atmos for violations under Utilities Code �123.023, the Ceiling Price Statute. Atmos then filed a declaratory judgment action against the Texas Attorney General. Atmos asked the court to determine whether the company was subject to the Ceiling Price Statute, whether they fit within one of the statute’s exceptions if it did apply, and whether the statute itself was void and unenforceable as a violation of due process. The AG filed a plea to the jurisdiction based on ripeness, saying it had no plans to enforce the statute against Atmos, sovereign immunity and improper timing, as the civil suit against Atmos was pending. The trial court granted the plea without stating the reasons why. HOLDING: Affirmed. Despite Atmos’ assertion that “traditional ripeness considerations do not apply to legal questions of statutory construction and facial unconstitutionality,” the court nonetheless notes that Atmos relies on traditional ripeness considerations to insist that its case is ready for adjudication. The court acknowledges that a pre-enforcement suit � in anticipation of a law’s enforcement against the party � may satisfy the ripeness requirement, but that these suits require proof that enforcement is imminent of sufficiently likely. Facial challenges to statutes may also satisfy the ripeness requirement, but only in cases where the facts show the statute always operates unconstitutionally. The court rejects Atmos’ notion that when a facial challenge is raised, a court need not await the timely development of facts, but can, instead, address the statute’s constitutionality without the facts. “[T]he necessity for the timely development of the facts underlying the dispute is especially important where a party is challenging the constitutionality of a statute. A court cannot pass on the constitutionality of a statute unless the facts have matured, forming the concrete basis against which the statute may be applied.” Ripeness is both a question of timing � when someone may sue � and a question of discretion � whether a court should hear a suit. Supporting these doctrinal underpinnings, are the following considerations: “(1) the fitness of the issues for judicial decision; and (2) the hardship occasioned to a party by the court’s denying judicial review.” Atmos showed neither. The court reviews KVUE Inc. v. Austin Broadcast Corp., 708 F.2d 922 (5th Cir. 1983), where a television station challenged the constitutionality of an advertising rate statute. That decision’s analysis of ripeness found that hypothetical or abstract questions differ from definite and concrete ones only by degree, dependent on the “imminence of the harm, the adversariness of the parties’ positions, and the reality of injury to the plaintiff.” These are principles consistent with the above two considerations of fitness and hardship. “First, the issues raised by [Atmos] were not fit for judicial review because whether appellants are subject to the Ceiling Price Statute is dependent on many facts not before the trial court. . . . And before the trial court could reach the constitutionality of the statute, appellants would have had to establish they were in fact subject to it � a question of standing.” The only way a trial court could decide whether Atmos violated the statute would be to collect all of the contracts it held with the agricultural businesses and farmers to compare prices with Atmos’ commercial users. Furthermore, unlike the statute at issue in KVUE, violation of the Ceiling Price Statute does not carry with it any sanction or penalty. Atmos is not faced with the dilemma of whether to comply with a potentially unconstitutional statute or to be sanctioned. OPINION:Puryear, J.; Kidd, B. A. Smith and Puryear, JJ.

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