The brief is available for download from a Civil Procedure blog hosted by two (other) Baylor law professors.
The general thrust of Professor Beal’s argument is that the common-law doctrine of claim preclusion does not apply when the forum that heard the first case had limited jurisdiction that would not have included the supposedly barred claim — that, if you couldn’t raise it in the first forum, you can’t be penalized for not having done so.
The professor then weaves that point into a broader argument that common-law causes of action should not be extinguished by agency decisions that were outside the scope of the agency’s subject-matter jurisdiction, unless the Legislature so states:
This Court acknowledged that the legislature did not intend to abolish the common law debt action and it did not intend to vest the TEC/TWC with exclusive, original jurisdiction to force the petitioner to first exhaust his administrative remedies before seeking relief in the district court. (Opinion at page 2-3)….[At least as of the date of this posting, the online docket sheet does not yet show that the parties themselves have filed a motion for rehearing in Igal.]
This writer humbly requests this Court to clarify how a common law cause of action can be merged in an executive agency order when such agency did not have the constitutional or statutory subject matter jurisdiction to hear and resolve such common law claim. Further, this writer humbly requests this Court to clarify how such an executive agency order may thereby bar the right of a Texas citizen to assert a common law cause of action in a constitutional district court when this Court admits that the legislature demonstrated no express or implied intent to abolish the common law cause of action.
Updated 12/19/2007: According to this article in Texas Lawyer, counsel for Igal does indeed plan to file a motion for rehearing.
Updated 12/21/2007: I understand that counsel for Igal has just filed an unopposed motion to extend his time to seek rehearing until January 17th. The Court routinely grants such motions, and there is no reason to think that it will not in this case.