Texas Appellate Lawyer & Attorney : D. Todd Smith Law Firm : Appeals, Sanctions, Summary Judgment : Austin, Texas

The Texas Supreme Court issued four decisions—two of which were among the older cases on its docket—with this week's regular orders.

In Pleasant Glade Assembly of God v. Schubert (No. 05-0916), the Court held that a church was not estopped from asserting its constitutional rights, reversed a money judgment against the church, and rendered judgment of dismissal because the case represented an ecclesiastical dispute over religious conduct.  Chief Justice Jefferson, Justice Green, and Justice Johnson each filed separate dissenting opinions.

In JCW Electronics, Inc. v. Garza (No. 05-1042), the Court held that the proportionate responsibility statute (Chapter 33 of the Civil Practice and Remedies Code) applies to personal injury claims brought under a breach of implied warranty theory.  Applying that rule to the jury's finding that the decedent was 60 percent responsible, the Court determined that the plaintiff's claims were barred and rendered a take-nothing judgment.  Chief Justice Jefferson (joined by Justice O'Neill) concurred.

In In re Chambless (No. 07-0767) (per curiam) the Court concluded that the trial court abused its discretion by ordering temporary grandparental visitation without allowing the custodial parent an opportunity to be heard.

In In re Office of the Attorney General (No. 08-0165) (per curiam), the Court determined that the trial court's temporary restraining order and related orders violated Texas Rules of Civil Procedure 680 and 684 in various ways and were therefore void.  Because TROs are not appealable, the Attorney General had no adequate remedy at law, and the Court granted mandamus relief.

Unless the Court issues a special set of orders next week, it appears that the last regular orders until late August may come on Friday, July 11.

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The following guest post comes from Dylan Drummond of Godwin Pappas Ronquillo LLP in Dallas:

Today, the sole SCOTX opinion issued on this morning's orders happens to be the third authored opinion in the case of F.F.P. Operating Partners, L.P. v. Duenez, making the opinion in this case perhaps the most revised in the history of the Court.  The distinction between this line of cases and the four Edgewood school finance opinions is that the Edgewood plaintiffs brought separate suits challenging successive Legislative solutions to Texas system of school finance, while Duenez has been revised three times on the same underlying facts.  The latest entry in the Duenez saga appears to merely make more precise some of the language from the Nov. 3, 2006 iteration, without altering the substantive holding of the original (or intermediate, as it were) opinion.  The main thrust of the revision appears to be this passage:

Dram shops are liable if they provide alcoholic beverages to an individual that is obviously intoxicated to the extent that he presents a clear danger to himself and others, and the intoxication of the patron was a proximate cause of the injuries.  Tex. Alco. Bev. Code 2.02(b). These requirements were promulgated by the passage of the Act in 1987. In this case, we hold that dram shops are responsible for the proportion of damages they cause or contribute to cause, as set forth in the Proportionate Responsibility Act. Tex. Civ. Prac. & Rem. Code § 33.003.

It is interesting to speculate, however, what briefing prompted the Court to take such a drastic measure as to re-issue an opinion it had already disposed of twice (holding differently both times).  The Court's docket shows that the Motion for Rehearing and an Amicus letter were the only documents filed between the Court's Nov. 3 intermediate opinion and today's revision.  Judging by the Court's action today, either or both documents must have been particularly persuasive.

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