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

This morning's release of the U.S. Supreme Court's 5-4 decision in Caperton v. A.T. Massey Coal Co. (No. 08-22) could open the door to more recusal motions in Texas appellate courts (and possibly trial courts).

In Caperton, the Court held that due process required a West Virginia Supreme Court of Appeals justice to recuse himself from a case in which his largest single campaign contributor was a party.  The story reads much like John Grisham's The Appeal (discussed here and here) in which a litigant set out to purchase a state supreme court seat to swing the necessary votes its way.

Texas also elects its judiciary, and the issue of judicial campaign finance is an ongoing source of controversy.  I'll leave more detailed analysis of Caperton to the SCOTUS pundits, but it is difficult to imagine that this decision won't have a significant trickle-down effect.

Update:  Don Cruse has reviewed the case in more detail over at The Supreme Court of Texas Blog.

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The Texas Supreme Court issued no new opinions with this week's regular orders.

The upcoming week is Spring Break in and around Austin.  The Court next meets in conference on March 23 & 24.

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The Texas Supreme Court released no new opinions with this week's regular orders.  What struck me about these orders is the unusually high number of cases abated in light of bankruptcy proceedings.  I suppose that's a sign of the times.

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The Texas Supreme Court issued five new opinions and one supplemental opinion on rehearing with this week's regular orders, its last set for 2008.  The next regular orders will be released on Friday, January 9, 2009.

Osler McCarthy's opinion summaries are available here.

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Hat tip to the Supreme Court of Texas Blog for pointing out that the Court has enabled RSS feeds via its home page.  As the following screenshot shows, the subscribe button is located just above the Court's photo.

The feeds include news and updates, as well as information from the Court's calendar.  This is yet another effort to make Court's workings more transparent and accessible to the public.

For a plain-English explanation of RSS, watch the following video.

 

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Texas Attorney General Greg Abbott has named my friend Andrew Weber (pictured) First Assistant Attorney General.  He replaces Kent Sullivan, who Governor Perry recently appointed to the Fourteenth Court of Appeals.

Aside from his legal skills, Andrew is a heck of a nice guy.  He is well known to appellate lawyers throughout the state because of the three years he spent as Clerk of the Texas Supreme Court. 

Congratulations, Andrew!  Well done.

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The Texas Supreme Court decided seven new cases with this week's orders.  For details, please see Osler McCarthy's case summaries, which I have made available here.

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Despite speculation that Democrats might pick up at least one spot, no Texas Supreme Court seats changed hands yesterday.  Chief Justice Jefferson and Justices Wainwright and Johnson each handily defeated their opponents, so the Court will remain all-Republican a while longer.  The Court of Criminal Appeals remained all-Republican as well.

The big news around these parts is former Justice Woodie Jones's (pictured) defeat of incumbent Third Court of Appeals Chief Justice Ken Law.  The media has covered this race thoroughly, so I'll just say that the Third Court will now be evenly divided, with three justices from each party.  (But rumor has it that one of the sitting justices might be leaving; I'll report on that when confirmed.)

With one exception (Eighth Court incumbent Kenn Carr), other intermediate court justices on the ballot kept their jobs, including recent Fourteenth Court appointees Jeff Brown and Bill Boyce.  Many of these races were very, very close.

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The Texas Supreme Court issued no opinions with this week's orders.  Of interest, the Court issued stays in three mandamus cases, a subject on which I happen to be speaking today (mandamuses, not stays).

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The Texas Supreme Court issued no new opinions with this week's short set of orders.  The Court will be in conference on Monday and Tuesday of next week, so next Friday's orders may be livelier.

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For the third straight week, the Texas Supreme Court released no opinions with today's regular orders.  This means the Court has technically issued no decisions this fiscal year.  Rest assured, that will change soon.

Aside from its regular business, the Court has responded to Hurricane Ike much like it did with previous disasters—by issuing an order providing for extended filing deadlines because of courthouse closures and other after-effects.  The Court also issued a separate order allowing displaced Louisiana attorneys to work from Texas temporarily.

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At the recent Advanced Appellate Seminar, Texas Supreme Court watcher and appellate practitioner Pam Baron presented a paper summarizing her analysis of the Court's docket as of September 1, 2008.  With Pam's permission, I am making her paper available here.

The paper answers a number of questions we appellate practitioners get from clients.  Here are some of her observations:

• For the first time in eight years, the Court ended the term with fewer cases than were left at the end of the prior term.
   
• With the number of overall filings down, the statistical chances of getting a petition granted have risen to about 15 percent.  The grant rate nearly doubles in cases in which the Court requests full briefing.
   
• The average time for a decision on a petition for review is 166 days.  Mandamus petitions average 123 days.
   
• In argued cases, the average time from initial filing to issuance of opinion is 28 months, ranging from a low of 11 months to a high of 54 months.

Pam also takes a detailed look at the Court's docket by subject matter.  She further identifies the cases on what she calls the "shadow docket"—those pending for more than 12 months without a decision to grant or deny.

Texas Lawyer mentioned Pam's paper in today's issue.

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The Texas Supreme Court issued no opinions with this week's orders.

All eyes between here and the Gulf Coast are on Hurricane Ike.  You know things are serious when high school and college football games are rescheduled.

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Following up on this post, the Texas Supreme Court has quietly issued orders formally amending the Texas Rules of Appellate Procedure and making technical corrections to the amendments.  

The amendments went into effect today.  A redline comparison of the proposed changes and the final version is available here.

The most significant change from the proposed amendments announced in March appears to be a newly restructured Rule 28, which governs accelerated appeals.  Rather than trump statutory perfection deadlines, the revision clarifies (through the comment to the 2008 changes) that any statutory deadlines will control.

Special thanks to Lisa Hobbs for bringing these orders to my attention.

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As predicted, the Texas Supreme Court issued a monster set of orders today, releasing opinions in 22 cases (two of which were merely corrected or supplemental opinons in previously decided cases).  As has been the trend recently, the Court moved some of its older pending matters, including two with "04" docket numbers.

Time is short as we head into Labor Day weekend, so I will not be able to blurb all of these cases today.  Click here to review Osler McCarthy's detailed summaries.

In case you're wondering, today's output but does not set a record.  Officially, the Court issued 35 written opinions (including non-majority writings) in 20 cases today.  According to Osler, the record is 36 writings in 24 cases, set July 9, 1997—coincidentally, the last regular set of orders issued before I completed my clerkship with the Court.

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As the Texas Supreme Court returns from its summer break, the Court has posted its calendar in a new format on its official website.  The new version is vastly improved from the old Word and PDF documents previously available, as it is much easier on the eyes and provides more detailed information about the events listed.  For example, clicking on an "Oral Arguments" entry brings up a list of cases being argued that day.  This upgrade will be an even better resource for Court watchers (you know who you are), casual observers, and everyone in-between.

Source:  Blake Hawthorne, Clerk, Supreme Court of Texas.
 

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This is the first installment of my series entitled "20 Questions About Texas Appellate Practice."  The question answered here is:  "How is the Texas appellate court system structured?"  Visit the original post (linked above) for the list of questions updated with links to their respective answers.

Texas has 14 intermediate courts of appeals, each of which hears both civil and criminal cases.  The intermediate courts are located in Houston (1st and 14th Districts), Fort Worth (2nd District), Austin (3rd), San Antonio (4th), Dallas (5th), Texarkana (6th), Amarillo (7th), El Paso (8th), Beaumont (9th), Waco (10th), Eastland (11th), Tyler (12th), and Corpus Christi (13th).  Generally, each court draws cases from its assigned geographic region, although transfers sometimes occur through a process known as "docket equalization."  There are some other jurisdictional quirks, as a handful of the state's 254 counties fall into more than one appellate district, and the state's most densely populated region is served by two intermediate appellate courts (1st and 14th).

A court of appeals has appellate jurisdiction in all civil cases over which the district or county courts have jurisdiction when the amount in controversy or the judgment exceeds $100, exclusive of interest and costs.  The court of appeals has final authority on all factual issues—applying standards of review, it can “unfind” facts the jury found and review the jury’s failure to find certain facts, but it cannot simply substitute its judgment for the jury’s.

Texas is one of only two states with a dual high-court system.  (Oklahoma is the other.)  The Texas Supreme Court has jurisdiction over civil cases as described below.  The Texas Court of Criminal Appeals is the criminal-law equivalent to the supreme court.

The supreme court's jurisdiction is limited to questions of law.  Among the statutory jurisdictional grounds, the following are most common:

• the justices of a court of appeals disagree on a question of law material to the decision (“dissent jurisdiction”);
  
  
• the decision conflicts with a prior decision from another court of appeals or of the supreme court on a question of law material to the case (“conflicts jurisdiction”);
  
  
• the case involves the construction or validity of a statute; or
  
  
• it appears that the court of appeals has committed an error of law, and that the error is of such importance to state jurisprudence that it requires correction.

Although the supreme court cannot decide fact issues of fact, it is the ultimate arbiter of the law. The supreme court may review the court of appeals’ decision to make sure it applied the correct legal standards.

Members of the Texas appellate judiciary run in partisan elections and fill six-year terms.  When a justice leaves office during his or her term, the Governor appoints a replacement.  An appointee must run in the next general election to retain the position for the rest of an unexpired term.

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As expected, the Texas Supreme Court issued no opinions with today's regular Friday orders.  I foresee two more sets like this one, but the orders expected on August 29 will be the last for the fiscal year.  Keep an eye out for several opinions, particularly in some of the Court's older cases, to be released that Friday.

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Between vacations and a very full workload, I haven’t been blogging all that much over the summer. Nevertheless, I got a call last week from a reporter at law360.com who saw my posts on webcasting court proceedings and wanted to interview me for an article she was writing.  The article, quoting yours truly, appears here.

The article discusses live webcasting as a trend among state supreme courts, naming "Kentucky, Ohio, Illinois, Massachusetts, Texas, West Virginia, New Jersey, North Dakota, Maryland and Florida are among the states that webcast oral arguments, sometimes teaming up with a local law school to do it."  Federal courts—um, not so much.

While I like to think of the Texas Supreme Court (with help from St. Mary's Law School) as a pioneer in this area, it apparently doesn't get the "I was here first" award.  According to the law360.com article, the Florida Supreme Court "has been webcasting its oral arguments, and even broadcasting them on cable TV, since 1997."

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Even before the Texas Supreme Court began live webcasting oral arguments and archiving recent arguments last year (previously discussed here and here), the Court had ditched its old system of recording oral argument on audio cassette tapes.  Digital audio files from oral arguments dating back to 2004 are available through the Oral Argument Audio link on the Court's website.  Now, two new projects are continuing the Court's transition into the digital age.

First, the clerk's office is in the process of converting all the old oral argument cassettes to digital .mp3 files and making them available via the same link.  The Court used to charge for copies of oral argument tapes, but decided to preserve the arguments by converting them into digital files and to make them available to the public for free.  Audio of all oral arguments going back to 1989 will be available soon, and when complete, the project is expected to reach back to at least 1985.

Clerk Blake Hawthorne does not believe that any other state supreme court has made oral argument recordings dating back that far available on the web.  The Court's total expenditure on this project has been minimal (about $400) thanks to a cooperative agreement with Thomson West, who loaned the equipment necessary to convert the audio cassettes to digital files.  

Thomson West is also involved in the second project.  In exchange for providing transcripts of oral arguments dating back to January 2000—which will be available for free on the Court's website—Thomson West will be able to use video from the Court's oral arguments in a new service that will allow subscribers to search oral argument transcripts just as they do any other document.  The transcript search results will be linked to the oral argument video, so subscribers will effectively be able to search the oral argument video for words or phrases.

Anyone who reads this blog knows I'm a big proponent of technology, and digitization is an important way of preserving information that otherwise could be lost to history.  The Court and the clerk's office should be commended for these efforts.

Source:  Blake Hawthorne, Clerk, Supreme Court of Texas.  The Supreme Court of Texas Blog has also commented on these developments.

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In keeping with the start of summer recess, today's Texas Supreme Court orders were something of a non-event to anyone other than folks with a direct interest in the listed cases.  I, for one, will enjoy the quiet while it lasts.

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While I was out on vacation, I received the sad news that former Texas Supreme Court Justice James Baker had passed away.  Aside from numerous media reports summarizing his many accomplishments, the Court has issued this tribute, which captures the essence of the man. 

I was working for former Justice Raul Gonzalez when then-Governor Bush appointed Justice Baker to fill an open seat on the Court.  His chambers were across the hall, and he often poked his head in to say hello or to drop off his latest revisions to a draft opinion.  "Shorter!  Simpler!" were the most frequent comments.  He thought the Court's opinions should be easy to read and understand, and he had no difficulty expressing himself—always politely and respectfully—if he thought a draft wasn't true to the law.

After he "retired" to become a partner at Hughes & Luce (now K&L Gates), Justice Baker remained a mainstay in the appellate bar.  When he wasn't speaking at CLE functions, you could count on him sitting near the front row, listening attentively.  The seriousness of his illness was obvious when he missed the UT Appellate Seminar and related functions late last month.

Justice Baker set the bar high for appellate judges and practitioners alike.  We should all strive to meet his standards.

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The Texas Supreme Court issued two opinions with this week's regular orders.

In Guitar Holding Co., L.P. v. Hudspeth County Underground Water Conservation District No. 1 (No. 06-0904), the Court concluded that the district exceeded its rule-making authority, reversed the court of appeals' judgment, and rendered judgment declaring the permitting scheme at issue invalid.

In In re Zandi (No. 07-0919) (orig. proceeding) (per curiam), a habeas corpus proceeding, the Court held that the relator/contemnor did not receive sufficient notice of the allegations against him and set the trial court's order revoking suspension of its commitment order aside.

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I'm a little late to this party—I just happened to be at a conference today and another function this evening with some of the lawyers involved—but the Texas Supreme Court denied the State's mandamus petitions in the FLDS cases this afternoon.  The Supreme Court of Texas Blog discusses the per curiam decision in the lead case and Justice O'Neill's concurring and dissenting opinion (joined by Justices Johnson and Willett) here.

5/30/08 Update:  Texas Lawyer has this follow-up story, which unfortunately fails to credit my friend Amy Warr, of Alexander, Dubose, Jones & Townsend, for the result she obtained on the mothers' behalf.

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In In re Steed (No. 03-08-00235-CV) (orig. proceeding) (per curiam), the Third Court of Appeals has conditionally granted the petition for writ of mandamus and vacated the district court's order placing more than 400 FLDS children in state custody.  The Supreme Court of Texas Blog, the ABA Journal, and other media outlets are reporting additional details.

Chief Justice Law, Justice Pemberton, and Justice Waldrop made the decision, but we don't know who wrote the opinion.  It's difficult to criticize deciding this case per curiam, given its  highly politicized and controversial subject matter and the national publicity it has received.

Update:  On closer examination, the Third Court's ruling in In re Steed does not purport to return all the FLDS children in CPS custody, only those belonging to the 38 relators in that proceeding.  The court reached the same result in a related case, In re Bradshaw (No. 03-08-00298-CV), also issued per curiam, which involved three additional relators.

After these orders, however, CPS would presumably change course on all the affected children.

A third case involving three more relators, In re Jessop (No. 03-08-00236-CV), remains pending.

5/23/08 Update:  Per coverage at CNN.com and the Salt Lake Tribune, the State is taking the matter up to the Texas Supreme Court.  The Deseret News posted unsigned PDFs of the mandamus petition and motion for emergency relief apparently filed today.

5/24/08 Update:  Per the Supreme Court of Texas Blog, the response to the State’s motion, the Court’s docket sheet, and a page with the electronic versions of the briefs (which should be updated when any further briefs are filed) are now available through the Texas Supreme Court's web site.

Given the present uncertainty, I have added a question mark to the title of this post.

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On the heels of a hotly debated study declaring that California has the top state high court (see discussion here, here, and here), another paper has reached the same conclusion.  At least this time the authors are from other states.

Neither the Texas Supreme Court  nor the Texas Court of Criminal Appeals fared particularly well.  The paper contains several different categories of data, the foundations of which are not always clear.  In a composite of all the categories, ranking a total of 52 courts (Texas and Oklahoma each have separate high courts for civil and criminal matters), SCOTX came in 39th, and the CCA came in 43rd.

Thanks to the Legal Theory Blog, via How Appealing.

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The Texas Supreme Court issued no opinions with this week's short set of regular Friday orders.  The Court has been quite productive lately, as a number of the justices have mentioned at various bar functions, though several cases have been decided per curiam and merely follow a signed opinion on a particular issue.  The word remains that some long-pending cases will be resolved soon.

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The Texas Supreme Court recently announced changes to several Texas Rules of Appellate Procedure and the adoption of Texas Rule of Judicial Administration 15 .  The rules highlighted below will have the broadest effect in civil cases.  My comments appear in italics.

• TRAP 9.3 reduces the number of copies of certain documents a party must file with the Supreme Court and Court of Criminal Appeals.  Great.  Now please give us e-filing.
  
  
• TRAP 9.8 allows appellate courts to use fictitious names or initials in certain family law cases to protect the privacy of minor children.  A sensible move.
  
  
• TRAP 10.1(a)(5) eliminates the certificate-of-conference requirement for motions for rehearing and motions for en banc reconsideration of panel decisions.  It's about time.  Why did it take more than 10 years after the new TRAPs were adopted to fix this quirk?
  
  
• TRAPs 28.1 and 28.2 establish a more uniform appellate timetable for accelerated appeals and add new procedures governing agreed interlocutory appeals.
  
  
• TRAP 38.1 allows parties to include optional written statements regarding oral argument in their briefs.  A lot of us were doing this anyway.
  
  
• TRAP 39  provides the grounds on which the intermediate appellate courts may determine that oral argument is unnecessary.  While well intentioned, this change is meaningless as a practical matter because the court of appeals doesn't have to give the parties a reason for denying oral argument.
  
  
• TRAP 41.3 addresses the precedent that applies in cases transferred from one court of appeals to another for docket-equalization or other purposes.  The transferee court is to apply the law of the transferor.  I always thought that the courts of appeals were to apply the law of Texas, not their own version of it.  This could get interesting if the transferee and transferor courts are split on a given issue.
  
  
• TRAP 49 governs panel rehearing and en banc reconsideration, including new provisions clarifying the procedures for seeking en banc review.
  
  
• TRAP 52 re-focuses the verification requirement in original proceedings from factual statements in the petition to a certification that the filer has reviewed the petition and concluded that factual statements are supported by record evidence.  This change should allow counsel to do the verifying, which will help speed the process of preparing and filing the petition.
  
  
• RJA 15 addresses appeals from trial courts in counties falling in more than one appellate district (Texarkana and Tyler, and Texarkana and Dallas).  When separate appeals are properly filed in more than one court of appeals and the parties cannot agree to consolidate, the trial-court clerk is to randomly select one of the appellate courts for consolidation.  This rule wouldn't be necessary if the legislature would revamp the appellate districts and eliminate the dual-jurisdiction counties. 

The Court is accepting public comments on the proposed changes through June 30, 2008.  The amendments, with any changes, will take effect September 1.

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After last week's barrage (from which I'm not the only one still recovering), the Texas Supreme Court issued just two decisions with this week's orders.

In Ansell Healthcare Products, Inc. v. Owens & Minor, Inc. (06-0386) (per curiam), the Court followed last week's decision involving the same parties and issues, Owens & Minor, Inc. v. Ansell Healthcare Products, Inc. (No. 06-0322).  There, the Court held that, under Section 82.002 of the Civil Practice and Remedies Code, manufacturers must indemnify an "innocent seller" only for the portion of the defense associated with the seller's own products.  Because the court of appeals' decision conflicted with that rule, the Court reversed and remanded to the trial court for further proceedings.

In Texas Mutual Insurance Co. v. Ledbetter (No. 06-0814), the Court concluded that an insurance carrier should have been allowed to intervene and assert its statutory subrogation claim to the "first money" paid out in a court-approved wrongful-death settlement.  Although the plaintiffs had an absolute right to nonsuit their own claims, the carrier's intervention was a pending claim for affirmative relief that could not be prejudiced by a nonsuit.  The Court affirmed the court of appeals' judgment reinstating the intervention, but otherwise reversed and remanded the case to the trial court to sort out the details.

In other noteworthy developments, the Court granted rehearing in Entergy Gulf States, Inc. v. Summers (No. 05-0272), a controversial decision publicly rebuked by legislators.  No date has been set for oral argument.

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The Texas Supreme Court made up for what had been a slow March by issuing an incredible 20 decisions with this week's orders.  Timely posting links for each opinion—much less any meaningful analysis—would be unwieldy given my current schedule.  PDFs of the opinions are available here.

Update:  Click on this link for Osler McCarthy's summaries.

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Last night, the web version of the San Antonio Express-News ran a commentary by Osler McCarthy, the Texas Supreme Court's Staff Attorney for Public Information, addressing watchdog groups' recent claims regarding alleged ethics violations and docket backlog.  McCarthy gives another view based primarily on official Court statistics, and he makes some interesting points.  Those following these stories should take into account what he says.

3/28/08 Update:  Sophisitic Miltonian Serbonian Blog and The Supreme Court of Texas Blog  provide further analysis.

3/30/08 Update:  Texas Watch spokesman Alex Winslow responds to McCarthy here.

This debate seems to have hit a dead end.  I'll follow up again only if there's something new.

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A blog associated with The Dallas Morning News and KVUE-TV here in Austin have both run new stories on the Texas Supreme Court's "backlog problem."  As near as I can tell, neither has unearthed any previously unreported information, so the timing is something of a mystery.  Yesterday's blog entry refers to a Texas Watch report issued February 20, and this evening's KVUE broadcast shows some of the same footage used in the WFAA-TV story (discussed here) from February 27.  Political rehash, anyone?

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The Appellate Sections of the State Bar of Texas and the Austin Bar Association are sponsoring a program entitled “An Evening with the Texas Supreme Court” on Thursday, March 27, 2008, from 4:30 to 7:00 p.m. at the InterContinental Stephen F. Austin Hotel here in Austin.  CLE credit (1.5 hours, .33 ethics) has been requested.

The event will feature a panel discussion with Chief Justice Jefferson and Justices Brister, Johnson, and Willet.  A reception with the justices will follow.

Register by mailing a $25 check payable to “State Bar of Texas Appellate Section” to Anne Johnson at Haynes and Boone, 901 Main Street, Suite 3100, Dallas, Texas 75202.  You may also reserve a space by calling Anne at (214) 340-7974 or by e-mailing her at anne.johnson@haynesboone.com, with $30 payable at the door.

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The Texas Supreme Court issued one opinion with this week's orders.  In El Paso Hospital District v. Texas Health & Human Services Commission (No. 05-0372), the Court granted the District's motion for rehearing, withdrew the opinion issued on August 31, 2007, and substituted another in its place.

In both instances, the Court held that HHSC's February 28 cutoff for gathering data for Medicaid patients was an agency rule and, because HHSC did not follow proper rule-making procedures, declared the rule invalid.  Originally, the Court "remanded the rule to [HHSC ] for further action."  But the Court acted more decisively in the opinion on rehearing,"revers[ing] the court of appeals' judgment and render[ing] judgment declaring the rule invalid and enjoining its enforcement."

In light of its new disposition, the Court remanded the case to the trial court for further proceedings, specifically a review of individual claims data excluded by the February 28 cutoff.

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Of all the Texas Supreme Court decisions issued last week, Fairfield Insurance Co. v. Stephens Martin Paving, LP (04-0728) is arguably the most significant.  In that case, the Court answered "no"—sort of—to the Fifth Circuit's certified question, "Does Texas public policy prohibit a liability insurance provider from indemnifying an award for punitive damages imposed on its insured because of gross negligence?"

More accurately, the Court reframed the question narrowly and answered it this way:  "Pursuant to article V, section 3-c of the Texas Constitution and rule 58.1 of the Texas Rules of Appellate Procedure, we answer that Texas public policy does not prohibit coverage under the type of workers' compensation and employer's liability insurance policy at issue in this case."

That answer begs the question, "How about other types of insurance policies?"  More on that in a minute.

Citing three out-of-state cases, the Court first described a two-step analysis for determining whether exemplary damages are insurable.  The Court decides (1) whether the policy's plain language covers the exemplary damages sought in the underlying suit against the insured; and (2) if so, whether Texas public policy allows or prohibits coverage under the circumstances, considering any express statutory provisions regarding the insurability of exemplary damages.

The Court skipped the first part of its newly announced analytical standard and proceeded to the second step.  After reviewing the relevant statutes, the Court concluded that "[t]he Legislature's expressed intent is that Texas public policy does not prohibit insurance coverage for claims of gross negligence in this context."

That's it.  Certified question answered.  Opinion over at page 10, right?

Wrong.  This is where it gets interesting—so much so as to spark concurring opinions from Justice Hecht and Justice Johnson.

Recognizing "the import of this issue," the Court went on to discuss the "considerations relevant to determining whether Texas public policy prohibits insurance coverage of exemplary damages in other contexts in the absence of a clear legislative policy decision."  What follows over the next 17 pages is an impressively researched explication of how every other state has treated the issue, as well as a discussion of key cases outlining both sides of the debate and the critical policy concerns:  freedom of contract and whether, based on the specific circumstances, the purpose of imposing exemplary damages is served.

Folks who were hoping for ultimate resolution of whether punitive damages are insurable in Texas are undoubtedly disappointed.  Although the Court said more than was needed to answer the Fifth Circuit's certified question, it stopped well short of adopting a bright-line rule.  Indeed, just about everything other than worker's compensation coverage remains open for further debate under the framework announced in this case.

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The following chart from the Houston Chronicle depicts how long argued cases have been pending before the Texas Supreme Court and the number of deciding opinions each of the justices wrote in Fiscal Year 2007.  Though intended to expand on recent controversies, it provides some perspective nonetheless.

 

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The Texas Supreme Court has been productive despite all the recent controversy (WSJ Law Blog coverage here and here), churning out eight decisions with this week's orders.  The cases involved fraud claims, annexation, land titles, improper jury argument, apex depositions, governmental immunity, potential waiver of the right to appeal, and election law.  Osler McCarthy's excellent summaries are available via this link.

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Austin appellate lawyer Don Cruse recently launched the Supreme Court of Texas Blog, which is definitely worth checking out if you haven't seen it yet.  Don covers some of the same ground I do, but his focus is narrower and deeper.  I have added a link to his blog under the "Texas Law Blogs" section of my blogroll.  Welcome to the blogosphere, Don.  There's room here for both of us.

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The Texas Supreme Court issued no opinions with this week's orders.  In other Court news, however, Chief Justice Jefferson has issued a statement expressing the Court's dismay concerning Justice Medina's indictment in Harris County in connection with the fire that destroyed his Houston-area home last summer.  Several news outlets have reported that Harris County District Attorney Chuck Rosenthal (Justice Medina's fellow Republican, who is having his own well publicized troubles these days) will move to dismiss the indictment.  The political firestorm (no pun intended) has begun.

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The Texas Supreme Court issued its first decision of 2008 with today's orders.  In In re Brookshire Grocery Co. (No. 05-0300), the Court held that a motion for new trial filed within 30 days of judgment, but after a preceding motion for new trial had been overruled, did not extend the trial court's plenary power under TRCP 329b.  The Court based its decision on language in the rule allowing an amended motion to be filed without leave of court when no preceding motion for new trial has been overruled and the amended motion is filed within 30 days of the judgment.  Chief Justice Jefferson's majority opinion (in which Justices O'Neill, Medina, Johnson, and Willett joined) also relies on the rule's history and purpose.

The trial court denied Brookshire's first motion for new trial and signed a judgment conforming to the jury's verdict.  More than 30 days after signing the judgment, the trial courtattempted to grant Brookshire's second motion for new trial, which was filed within 30 days of the judgment but after the first motion was overruled.  Under these facts, the supreme court concluded that the trial court lacked jurisdiction to grant a new trial and agreed with the court of appeals' decision to order mandamus relief.

Justice Hecht (joined by Justices Wainwright, Brister, and Green) dissented.  The dissenting justices would have held that the second motion extended the plenary period, and thus would have allowed the trial court to rescind its judgment in favor of a new trial.

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I spoke at the Austin Bar Association's monthly members-only CLE luncheon this past Friday.  My topic was "Texas Supreme Court Update:  Developments Since Summer Recess."  With permission, I used a paper Dylan Drummond wrote and added other recent developments by inserting relevant posts from this blog at the end.  If anyone is interested, a copy of the paper is available here.

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Following up on this post, about 300 Texas lawyers have petitioned the Court of Criminal Appeals to adopt a rule permitting the e-filing of petitions, motions, and other documents in death penalty cases.  (UPDATE:  Per this news report, the CCA has agreed to allow e-mail filingfor emergency motions in death penalty cases and other "extraordinary matters.")

As mentioned here, the Texas Supreme Court allows parties to e-mail documents in emergency situations, although it doesn't consider them filed until it receives paper copies.  Change is on the horizon, however, as the state legislature appropriated $2.3 million in the current budget cycle for the State Office of Court Administration to start working on the Texas Appeals Management and E-Filing System.  As with anything government-related, it won't happen quickly, but it will happen.

(Hat tip to the Tex Parte Blog.)

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The Texas Supreme Court issued one opinion with today's orders.  In Yancy v. United Surgical Partners Inc. (05-0925), a summary judgment case, the Court held that the two-year statute of limitations in the former Medical Liability Act did not violate the Texas Constitution's open courts guarantee on the record presented.  Although the Court concluded that the court of appeals erred because the record contained some evidence of continuous mental incapacity, it nevertheless affirmed after concluding that the petitioner failed to raise a "fact issue establishing that [petitioner] did not have a reasonable opportunity to discover the alleged wrong and bring suit within the limitations period or that she sued within a reasonable time after discovering the alleged wrong.  Thus, the open courts provision does not save [petitioner's] time-barred negligence claims."

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I don't practice criminal appellate law, and I don't ordinarily follow the the Texas Court of Criminal Appeals, but even I notice when the CCA makes front-page news for the wrong reasons.

In case you haven't heard, the media is lambasting the CCA (more specifically, Presiding Judge Sharon Keller) for refusing to keep the clerk's office open past 5:00 to accept a last-minute filing in a death penalty appeal.  Earlier the same day, the U.S. Supreme Court granted certiorari in a Kentucky case challenging lethal injections as cruel and unusual punishment, and Texas death row inmate Michael Richard was scheduled to die by lethal injection that evening.  The media coverage provides the details, but because of Presiding Judge Keller's decision, the Richard execution went forward without the possibility of court intervention on potentially meritorious grounds.

The Texas Supreme Court doesn't make life-or-death decisions, and it is receiving its share of negative press these days.  But one of the things that court does right is allow electronic or after-hours submissions (with an advance call to the clerk's office, as apparently occurred in the Richard case) to get emergencies in front of the Court when its decisions can still make a difference.  One would think that if a civil court can accommodate litigants when money is the only thing at stake, a criminal court could do the same in matters of life and death.

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Within the past couple of weeks, I have been contacted by two different lawyers about their clients' respective appeals, both of which appear to be on a collision course with the Texas Supreme Court.  Sounds promising, right?  Not so fast.

Rather than calling to discuss hiring me to handle their matters, both lawyers wanted me to recommend someone "politically connected" (i.e., someone with a firm that is a big financial contributor to the individual justices' electoral campaigns) to take over the proceedings.

I don't blame these folks for calling.  They are merely doing what they think is in their clients' best interest.  But what does this say about lawyers' confidence—not to mention the public's—in our elected judiciary?  It's more important to hire someone who has given large sums to political campaigns than someone qualified to do the job (and, in my case, as a sole practitioner with much lower overhead than the "politically connected" firms, do it at a considerably more favorable rate).

Chief Justice Jefferson has tried to pick up the mantle of judicial selection reform and carry on the fight started by his immediate predecessors.  The legislature keeps saying no.  Don't give up, Chief.  Don't give up.

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The Texas Supreme Court issued four opinions with today's orders.

In National Plan Administrators, Inc. v. National Health Insurance Co. (No. 05-0006), the Court held that a third-party administrator did not owe a general fiduciary duty to an insurer in light of the parties' agreement and certain provisions in the Insurance Code.  The Court therefore reversed the court of appeals' judgment affirming a monetary awardand rendered judgment that the insurer take nothing.

In Texas Parks & Wildlife Department v. E.E. Lowrey Realty, Ltd. (No. 05-0157) (per curiam), the Court applied its recent decision in Texas A&M University System v. Koseoglu, 233 S.W.3d 835 (Tex. 2007) and held that Government Code § 51.014(a)(8) provided the court of appeals with jurisdiction to consider the appeal of Department employees named as codefendants in the suit.  Reversing the court of appeals' judgment, the Court dismissed the plaintiff's claims against the employees and the Department after concluding that they were incurably defective and therefore should not be remanded.

In A.G. Edwards & Sons Inc. v. Beyer (No. 05-0580), the Court rejected the contention that Probate Code § 439(a) barred the plaintiff's breach of contract claim against A.G. Edwards and affirmed the court of appeals' judgment affirming a $791,200 jury verdict.  However, the Court reversed and remanded for a new trial on attorney's fees because the plaintiff failed to segregate fees between her breach of contract and tort causes of action.

In Lamesa Independent School District v. Booe (No. 05-0959) (per curiam), the Court reiterated its holding in Satterfield & Pontikes Construction, Inc. v. Irving Independent School District, 197 S.W.3d 390 (Tex. 2006) that Education Code § 11.151(a) is not a clear and ambiguous waiver of sovereign immunity.  Because the court of appeals determined otherwise, the supreme court reversed and remanded the case to the court of appeals to consider issues it did not reach.

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The Texas Supreme Court issued no opinions with today's orders.  Interestingly, the Court denied the motion to recuse filed in In re Columbia Medical Center, Subsidiary, L.P. (No. 06-0416) (previously discussed here and  here), which reportedly had been set for oral argument with the mandamus petition next Thursday.

UPDATE: The Court's spokesman, Osler McCarthy, has confirmed that reports of a hearing on the Columbia motion were mere rumors.  Accordingly, I have taken down today's earlier post on that subject.  Ugh!

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The Texas Supreme Court issued no opinions with this week's orders.  Hmmmm.  Maybe I'll start the weekend early . . . .

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Appellate geeks like me are already interested in In re Columbia Medical Center, Subsidiary, L.P.  (No. 06-0416), a case in which the Texas Supreme Court will re-examine whether a trial court's decision to grant a new trial is reviewable by mandamus.  (Oral argument is set for September 27.)  But the real parties in interest have filed a recusal motion that will lift more than a few eyebrows.  Texas Lawyer provides the details here.

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The Texas Supreme Court has added links to its calendar (in Microsoft Word and PDF form) as a new feature on the Court's web site.  Advocates and others now have ready access to the Court's schedule through August 2008, including dates for oral argument, conference, orders, and holidays.

Thanks to Elana Einhorn for the tip.

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After a very busy couple of weeks, the Texas Supreme Court released one opinion with today's orders.  In Texas A&M University System v. Koseoglu, the Court held that a plaintiff who, due to pleading defects, loses a plea to the jurisdiction based on sovereign immunity is not entitled to a remand when amending the pleading could not cure the defects.  The Court also determined that Civil Practice and Remedies Code § 51.014(a)(8) vests appellate courts with jurisdiction to decide a government official's appeal from the denial of a plea to the jurisdiction based on immunity.

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Well, the long weekend and resulting short week caught up to me, and it turns out that I won't be able to post summaries of the most recent Texas Supreme Court decisions as intended.  The fact that I am attending the Advanced Appellate Seminar here in Austin tomorrow and Friday hasn't helped that cause.  If things slow down, I may write about some of the individual cases.  In any event, Osler McCarthy's excellent summaries are available here.

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The Texas Supreme Court has released a slew of 13 opinions with today's orders, exceeding last week's unexpectedly large total by five.  These will take some time to review and digest.  In the meantime, PDFs of all the new opinions are available here.

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The Texas Supreme Court ended its summer recess with a bang by issuing seven opinions today.

In In re H&R Block Financial Advisors, Inc., the per curiam Court conditionally granted mandamus relief from a trial court's order refusing to stay the plaintiffs' lawsuit in light of an arbitration clause.  The Court rejected the plaintiffs' attempts to avoid arbitration with their investment advisor and his firm over Enron-related losses because the firm had changed its name and because the advisor did not sign the investment agreements in his personal capacity.

In In re Merrill Lynch Trust Co., the Court conditionally granted mandamus relief and compelled arbitration against employees of the entity with whom plaintiffs agreed to arbitrate, but not affiliates of that entity.  With respect to the employee, the Court reasoned that the substance of plaintiffs' lawsuit was against the signatory, even though it was not named as a party, and that the signatory would be liable for the employee's torts.  Regarding the affiliates, the Court rejected "an estoppel theory based on substantially interdependent and concerted misconduct" as a basis for imposing an obligation to arbitrate upon a nonsignatory, even though the case was governed by the Federal Arbitration Act and the Fifth Circuit has recognized such a theory.  Justice Hecht (joined by Justice Medina and in part by Justice O'Neill) and Justice Johnson (joined by Justice Wainwright) each issued opinions concurring and dissenting.

In Energy Service Co. v. Superior Snubbing Services, Inc., the Court held that a Worker's Compensation-subscribing employer's agreement to indemnify a person and that person's contractors was an agreement with the contractors for purposes of the Worker's Compensation Act, as amended in 1989.  Justice Johnson (joined by Justices Wainwright, Green, and Willet) dissented.

In Fort Worth Independent School District v. Service Employment Redevelopment, the per curiam Court continued the trend of remanding breach-of-contract cases against governmental entities to allow plaintiffs to argue that the legislature waived sovereign immunity under new Sections 271.151-.160 of the Local Government Code.

In Gaines v. Kelly, a no-evidence summary judgment case, the Court held that the borrower/plaintiff presented no evidence that a mortgage broker had apparent authority to bind a lender and therefore rendered judgment that the plaintiff take nothing on the borrower's claim against the lender based on the mortgage broker's alleged misrepresentations.

In In re Kaplan Higher Education Corp., the per curiam Court conditionally granted mandamus relief from a trial court's order refusing to compel arbitration under an agreement between a vocational college and 45 of its students, even though the students had dropped their direct claims against the college and were asserting claims against only the president and admissions director, because the substance of the action was fraudulent inducement and because the college would have been liable for the judgment under the Education Code and common law.

The following statement from Elledge v. Friberg-Cooper Water Supply Corp. (per curiam) says it all:  "We reject the court of appeals' 'obiter dictum' label.  Our statements that the two-year statute [of limitations, rather than the four-year statute] applies to unjust enrichment claims, though not essential to the outcomes in HECI [Exploration Co. v. Neel, 982 S.W.2d 881 (Tex. 1998)] and Wagner & Brown, [Ltd. v. Horwood, 58 S.W.3d 732 (Tex. 2001)], should have been followed."

Ouch!

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The Texas Supreme Court issued no opinions with this week's orders, signaling the beginning of the Court's "summer recess."  From what I understand, the Court will not issue regular orders again until late August.

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The Texas Supreme Court appears to be racing to push opinions out before taking its summer break.  The Court issued seven decisions with last week's orders, including one mandamus and two per curiam opinions.  In the interest of time, I am posting a link to Osler McCarthy's thorough summaries here.

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The Texas Supreme Court issued a single per curiam decision with today's orders.

In Schaub v. Sanchez, the Court held that a patient's mere lack of consent to a medical procedure did not support a cause of action for lack of informed consent under the former Medical Liability Act (now codified at Chapter 74 of the Civil Practice and Remedies Code) because that statute applies only if a doctor negligently fails to disclose the procedure's risks or hazards to the patient.  Here, the plaintiff did not complain that she was unaware of the risks or hazards; indeed, she had undergone the same procedure twice before.  The plaintiff might have had a battery or negligence claim, but those claims were dismissed by agreed order and were not before the Court.  Accordingly, the Court rendered judgment that the plaintiff take nothing.

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I am recovering from working on a major case that has taken nearly all my time for the past two months, but will be getting back into the swing soon.  In the meantime, here is a PDF of Osler McCarthy's summaries of the opinions issued with last week's Texas Supreme Court orders.  If the past few weeks are any indication, we can expect a number of new decisions between now and when "summer recess" begins (typically around July 4).

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The Texas Supreme Court issued several opinions with this week's orders.  For details, check out Osler McCarthy's excellent summaries, which I am posting in PDF here.

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At the risk of sounding like a broken record, the Texas Supreme Court issued no opinions with today's orders.

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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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I'm going to have to crib from Osler McCarthy's notes for a few more weeks, especially if the Texas Supreme Court continues pushing opinions out at the rate in this week's orders.  His summaries are posted here.

Contact Osler directly if you'd like to get on his e-mail list.  He provides a great service to appellate practitioners and others who follow the Court.

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The Texas Supreme Court issued four opinions with this week's orders.  I am still tied up on a large matter, but Osler McCarthy, the Court's staff attorney for public information, has granted me permission to "borrow" his detailed summaries.  I am posting them here.

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Judging from today's orders, it's been a very busy week at theTexas Supreme Court.  Having just returned from out of town, I'm not sure I'll be able to provide the usual links and synopses, at least not right away.  I'm glad to be busy, but my blogging is suffering for it.

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The Texas Supreme Court issued no opinions with this week's orders.

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The Texas Supreme Court denied one petition for review and issued one per curiam opinion this week with what must be close to the shortest set of orders ever issued.  The Court issued the orders on Thursday, instead of the usual Friday, because of the Good Friday holiday.

In State of Texas v. Precision Solar Controls Inc., another in a long series of soveriegn immunity cases, the Court held that the plaintiff should have an opportunity to establish waiver in light of the "new" opinion in Reata Construction Corp. v. City of Dallas.  In its one-paragraph analysis, the Court stated:

The court of appeals relied on our first opinion in Reata Construction Corp. v. City of Dallas, which we have since withdrawn and replaced.  197 S.W.3d 371 (Tex. 2006).  We held that a governmental entity that brings an action waives immunity from suit for claims that are germane to, connected with, and properly defensive to its action, to the extent of an offset.  Id. at 373.  The State argues that it has not by its action waived immunity for an intentional tort claim like Precision's.  Such arguments should be further considered by the lower court in light of Reata.

The supreme court vacated the court of appeals' judgment and remanded the case to the trial court for further proceedings.

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In its occasional efforts to "ride the circuit," the Texas Supreme Court will hear arguments tomorrowApril 12 at Austin College in Sherman, Texas.  The arguments are part of the fourth annual Austin College Law Symposium.  No video webcast will be available.

Source: Osler McCarthy, Staff Attorney for Public Information.

UPDATE:  Thanks to Osler for pointing out my mistake on the date, which is corrected above.

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In In re AXA Financial, Inc., the Third Court of Appeals has consolidated a mandamus with an interlocutory appeal from an order denying the defendants' motion to compel arbitration.  To be honest, this event is not terribly noteworthy, but with the legislature in session, it seems timely to mention the procedural gaffe that triggers such parallel proceedings.

Basically, while the legislature has authorized an interlocutory appeal from an order denying arbitration under the Texas statute, our courts have uniformly held that no corresponding statutory remedy exists when the Federal Arbitration Act is in play.  Lawyers attempting to enforce an arbitration clause most often seek relief under both statutes for fear they will pick the wrong one.  When denying relief, trial courts usually don't explain their reasoning, leaving the movant's counsel no choice but to pursue both an appeal and a mandamus, with the Texas Supreme Court's blessing.  At the supreme court's behest, the intermediate appellate courts routinely consolidate the parallel actions.

As others have written before me, this is a silly rule that ought to be corrected.  (Some, most notably Heidi Bloch, say it already has been; the courts just don't recognize the change.)  The legislature could prevent the waste of having to bring two separate actions, only to have them consolidated, by tweaking the appellate provisions of the Texas General Arbitration Act.  Unfortunately, with the time for filing new bills passed, it will be at least 2009 before common sense can prevail.

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Haynes & Boone's Mark Trachtenberg has an editorial in today's Houston Chronicle praising the Texas Supreme Court webcasts previously covered here and here.  Mark thinks the move to webcasting was wise because it makes the Court's business more transparent and will help educate folks about how our court system works. 

Here's hoping Mark's piece gets picked up in other media markets.  Its message is worth passing around.

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The Texas Supreme Court issued no opinions with today's orders.  Could it be that the Court is distracted by the SB 1204 debate?

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With this morning's live webcast of arguments before the Texas Supreme Court, a new era in Texas appellate practice has begun.  I was able to access the webcast and view the arguments without any problem.  The video feed—which has a certain "Court TV" look—appears on the left side of the screen, flanked by a brief summary of the case being argued.  A schedule of upcoming arguments, along with links to electronic briefs and summaries for each, appears on the main webcast page.

Bravo!

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The Texas Supreme Court released no opinions with today's relatively short set of orders.  Courts around Austin have been slow this week, which just happens to be the local school districts' Spring Break.

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In a joint project, the Supreme Court of Texas and St. Mary's University School of Law will begin live Internet video streaming of the Court's oral arguments March 20.

"This represents not only a great service to lawyers around Texas, but an educational opportunity for law students, colleges, high schools and the public at large," said Chief Justice Wallace B. Jefferson.  "Broadcasting these arguments over the Web will enable anyone, anywhere to see how an appellate court grapples with some of the toughest legal issues our state confronts."

"We will shed light about how the Supreme Court decides its cases, whether to counter the misimpression that an appellate argument is like Perry Mason in front of nine judges or to dispel myths about how justices on the Court decide cases."

Internet broadcast of oral arguments will be available through either the Court's Web site or the St. Mary's law school site.  The video arguments will be available in archives at the law school Web site.

Webcasting oral arguments represents a partnership between St. Mary's and the Court working through the Office of Court Administration, which provides technological support for courts across Texas.  The Supreme Court courtroom has been equipped with five remote cameras, updated audio equipment and improved lighting.

Bill Piatt, the dean of St. Mary's law school, suggested the collaboration last year in a meeting with Justice Paul W. Green, a St. Mary's law alumnus.  "We are honored that the Court is allowing us to assist in making these important proceedings accessible to the public over the Internet," Dean Piatt said.

"The Court's initiative in bringing oral arguments to the people will greatly improve the understanding of the Court's work, thereby enhancing the administration of justice in this state."  Justice Green added that the webcasts also offer a benefit to lawyers who might be preparing for their first argument before the Court, enabling them to watch the Court in action before actually appearing for arguments, and to learn about its procedures and traditions.

Bruce Hermes, technology director for the Office of Court Administration who managed the project implementation, said initial webcasts will be monitored to determine the demand.  "We are set up for 300 simultaneous viewers," Hermes said.  "After the first couple of months, we will review it to see if that meets demand."

Chief Justice Jefferson said that, with the Legislature's additional financial support, which he is seeking this session, the St. Mary's webcasting project will rival the best in the nation.  "Together, with St. Mary's on this venture and with the Legislature's support on other initiatives, we hope to bring the justice system closer to people."

The Court has issued a policy, pending revision of Texas Rule of Appellate Procedure 14, allowing attorneys by motion to the Court to opt out of webcasting a particular argument.

Source for post:  Osler McCarthy, Texas Supreme Court Staff Attorney for Public Information.

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More than once, I heard the 78th Legislature's now-infamous House Bill 4 described as "the Full Employment Act for appellate lawyers."  Considering how inaccurate that forecast was, I am approaching Senate Bill 1204, the latest proposed overhaul to the civil justice system (originally mentioned here), with some trepidation.

SB 1204 focuses largely on reforming our state's judicial structure and practice at the trial-court level, primarily by converting Texas's statutory county courts into more than 40 new district courts.  This change would take effect on January 1, 2011, with most of these offices standing for election in 2010.  Another major change would be the creation of a "complex case" judicial panel that would operate much like the multidistrict litigation panels created in 2003.

From an appellate lawyer's perspective, other provisions are potentially significant.  For example, the bill would allow mandamus to the supreme court to challenge a complex case panel's determination that a matter is not in fact "complex."  The bill would also authorize permissive appeals from certain interlocutory orders in complex and multidistrict cases.

Of broader interest, the bill would significantly alter Texas Government Code § 22.001, the statute defining the supreme court's jurisdiction, by deleting all references to specific types of cases (i.e., "dissent" or "conflict" jurisdiction) and recognizing what is now subpart (6) (jurisprudential importance) as defining the supreme court's jurisdictional reach.  This amendment would settle the debate about whether the supreme court must accept certain types of cases by providing true discretionary jurisdiction subject to one exception:  the supreme court "shall grant a petition for review in a case in which a court of appeals has declared void a statute of the state."

Another noteworthy feature of SB 1204 is that it would expressly grant "the supreme court [power to] act on a petition for review when the court deems it expedient."  This provision's purpose is not apparent.  Except for motions for rehearing of causes, the supreme court already works on its own timetable.

We will be hearing and reading a lot about SB 1204 over the next couple of months.  Some of the folks who participated in drafting this bill think it stands a fairly good chance of passage.  From what I understand, an initial hearing on the bill has been set for March19, 2006.  No doubt, this is the beginning of an interesting debate.

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This morning's Austin American-Statesman reports that "the Legislature is considering two bills [House Bill 2725 and Senate Bill 1301] that would erase a $340,000 legal debt owed by Texas Supreme Court Justice Nathan Hecht" because "he challenged an ethics rebuke that stemmed from his support of friend Harriet Miers' 2005 nomination to the U.S. Supreme Court."

In fairness, the bills would allow all judges who successfully challenge ethics charges from the State Commission on Judicial Conduct to recover legal fees from the State.  However, the legislation would apply to successful challenges launched since January 2006, including Justice Hecht's.

Update:  The Fort Worth Star-Telegram has some very interesting coverage here.

Another Update:  Through the Associated Press, Law.com has picked up the story here.

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Yesterday's post from Stephen Gardner at the Consumer Law and Policy Blog began like this:

Last [Friday], the Texas Supreme Court drove another nail in the class action coffin.  Justifiably, Texas is now considered by most class action lawyers (on both sides of the aisle) to be the state most hostile to class actions.  One judge commented to the author, I dont know why anyone would bring a class action in state court in Texas because as far as I can tell, the Texas Supreme Court has abolished class actions—it just hasn't said so.  In Citizens Insurance Company of America v. Daccach[], Texas's High Court tightened the class action noose a bit further. . . .

After recounting the recent history of class action jurisprudence in Texas and criticizing what he considers to be inconsistencies in the Court's opinion, Gardner ends the post with this thought:

Since the phrase Judicial Hellholes has been appropriated by defenders of the defense industry, I nominate Texas for a preeminent position in a new list of Dens of Iniquity.

Wow.

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Blawgletter bills itself as "Business trial law with a sense of humor."  Anyone doubting this description should take a look at author Barry Barnett's two most recent posts.

In the first, Barry reviews Friday's Texas Supreme Court decision in Citizens Insurance Co. v. Daccach in light of Chief Justice John Marshall's immortal observation from McColloch v. Maryland, 17 U.S. 316 (1819):  "That the power to tax involves the power to destroy [and] that the power to destroy may defeat and render useless the power to create . . . are propositions not to be denied." In Barry's view, by sending the class plaintiffs back to square one after eight years in the court system, with another interlocutory appeal likely, the supreme court has "taxed" the Daccach class into oblivion.

In the second post, Barry simply observes that the defendants won every case handed down with last week's orders. Something is left unstated; Barry leaves it to the reader to figure out what that is.

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The Supreme Court of Texas issued three per curiam opinions with today's orders:

In Hood v. Wal-Mart Stores Inc., the Court held that the court of appeals erred by dismissing the appeal without providing an opportunity to cure when the plaintiff filed an indigence affidavit within the time the appeals court gave him to pay the filing fee or face dismissal.

In In re Bank One, N.A., the Court held that an arbitration clause incorporated by reference on a bank signature card was enforceable and that the bank did not waive its right to arbitrate by moving to set aside a default judgment and seeking a new trial.

In City of Houston v. Williams, the Court rejected a declaratory judgment action complaining about deductions from payments retired firefighters received upon termination as a claim for money damages for which governmental immunity had not been waived.

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Chief Justice Jefferson's State of the Judiciary address has been posted at the Texas Supreme Court's web site.

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I can't wait to see what Texas Lawyer has to say about Chief Justice Jefferson's State of the Judiciary address.  I'm sure there will be some interesting quotes about how the Chief has gone over to the dark side or has seen the light, depending on where the interviewee stands on what now passes for tort reform.

I am skeptical of any cause advanced by Texans for Lawsuit Reform, the same happy people who brought you House Bill 4 two sessions ago.  The face of civil litigation has changed tremendously since then.  Most litigators I know would say that the change has not been for the better.

As I read Chief Justice Jefferson's comments, however, they make a lot of sense.  Our multi-level, overlapping court system is confusing, even to practicing lawyers.  If the legislature can streamline the system and make it more efficient, should we fear that result, just become TLR advocates it?

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The online version of The Austin American-Statesman has this report on Chief Justice Jefferson's State of the Judiciary address to the Texas Legislature today.  According to the article, the Chief called upon lawmakers to review the state's judicial structure and "the growing use of private dispute resolution to settle legal disputes outside the public courts."  In keeping with his platform from last session, the Chief also urged the legislature to establish a commission to review judicial salaries.  The article suggests a connection between the Chief's agenda and changes "being pushed by Texans for Lawsuit Reform, a lobby group with considerable political clout, through Jefferson said his were unrelated."

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The Texas Supreme Court issued a short set of orders today that included opinions in two cases against Dallas County consolidated for oral argument.

In Dallas County v. Wiland, the Court held that deputy constables who had been dismissed without a hearing were protected by civil service rules and could not be fired without cause, were denied procedural due process, were entitled to damages unless cause existed to fire them, and were not entitled to substantive due process.  Justice Brister, joined by three others, concurred and dissented in part.

The Court reached the same result in the companion case, Dallas County v. Walton, even though the deputy constable had signed a statement that his service was at-will and would terminate when the constable's term expired.  The same group of justices concurred.

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Over at Blawgletter, Barry Barnett has an interesting post about Friday's Norris v. Thomas decision from the Texas Supreme Court:

Blawgletter can't help but wonder whether Gilligan—he of Gilligan's Island (1964-67) fame—could have earned homestead protection for S.S. Minnow, the tiny ship that a storm wrecked 40-plus years ago on a desert island nowhere near Texas.  Unlike the Norris's vessel, The Minnow lacked electricity, running water, and other amenities of modern life.  Plus nobody lived in it; Gilligan, the Professor, et al., dwelled in grass huts.  But S.S. Minnow never got off of dry land (except perhaps for that one episode when the castaways tried to patch and sail it).

Barry "despairs at the court's homestead decision," not because of the outcome, but because neither the majority nor the dissent identified the "craft-and-domicile" by name.  After digging around on PACER, Barry determined that the boat was a 1975 Chris Craft Roamer, which the Norrises had christened Cricket.

Somewhere, I can hear the Skipper shouting, "Gill-i-gan!!!"

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Today's Texas Supreme Court orders show that last week's prediction of at least four opinions wasn't totally off base.

In Norris v. Thomas, on a certified question from the Fifth Circuit, the Court determined that a houseboat did not qualify for the Texas Constitution's homestead exemption because it is a moveable chattel that does not rest "on the land," as the exemption requires.  Justice O'Neill dissented, along with Justices Wainwright, Brister, and Medina.

In Wachovia Bank v. Gilliam, a restricted appeal, the Court vacated a default judgment because the court of appeals erroneously presumed that substituted service complied with statutes requiring suit papers to be forwarded to the defendant's "home office" or "principal office."

In State Farm Life Insurance Co. v. Martinez, the Court held that statutory penalties for failing to timely pay policy proceeds were properly imposed before the insurer sought interpleader, but were improper after that.  The Court further held that allowing the beneficiary to recover prejudgment interest as well as interest accrued while the proceeds were in the trial court's registry would be an imermissible double recovery.

In Jack in the Box, Inc. v. Skiles, the Court held the an employer had no duty to warn its employee, a truck driver injured when he fell into a trailer after using a ladder to climb over an inoperable lift gate, because the employee had been trained to handle situations when the lift would not operate and because the danger was common and obvious.

In City of San Antonio v. TPLP Office Park Properties, the Court held that the City's decision to close a driveway from a residential street to an office development accessible from other points was a valid exercise of its police powers, that the City could not be estopped from closing the driveway (which it had previously approved), and that that the City did not "take" from the development by diverting traffic from other driveways into the office park.

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Today's State Bar Friday Update reports that the chief justices of all Texas appellate courts presented their budgets to the Senate Finance Committee yesterday.

The report also mentions that Chief Justice Jefferson will give the State of the Judiciary address at 11:00 a.m. on February 20, 2007.  This event will take place in the House Chamber and is open to the public.  A live audio link is available here.

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Yesterday's prediction was way off, although the Texas Supreme Court did release its first opinion of 2007 with today's orders.  In United Services Automobile Association v. Brite, the Court held that a claim for front pay must be included when determining whether a case meets the amount-in-controversy requirement for a limited jurisdiction court.  Because a divided panel of court of appeals concluded otherwise, the supreme court reversed and dismissed the case for want of jurisdiction.

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I'm going to go out on a limb here and predict that the Texas Supreme Court will issue at least four opinions tomorrow.  (The last ones came out on December 29, 2006.)  Tune in to find out whether my prediction has come true.

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Pasted below is a nugget collected by Pamela Stanton Baron, a leading Texas Supreme Court watcher/practitioner who either attends or listens to all of the Court's oral arguments.  More "outtakes" will follow periodically.  Thanks to Pam for allowing me to post them here.

From Reliance National Indemnity Co. v. Advanced Temporaries, Inc., argued on October 18, 2006:

Counsel:  And I want to commend the Court on City of Keller, which I think is a phenomenal opinion.  I think its the kind of comprehensive contribution to our jurisprudence that's uniquely within the province of this Court versus the Legislature.

Justice ONeill:  Oh, come on.

[laughter]

Justice ONeill:  He's going to be insufferable [presumably referring to Justice Brister, Keller's author].

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The Texas Supreme Court's web site has been updated to mirror the new court of appeals sites, which received facelifts last fall.  The Court's new home page includes a tasteful photograph of the justices in the courtroom and too many helpful links to mention.  Give it a look!

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