With today’s orders list, the Texas Supreme Court decided four pending cases and chose two new cases for oral argument this fall.

Four decisions

  • TGS-NOPEC Geophysical Co. v. Combs, No. 08-1056 (Medina, J.) (DB). The Court held that information sold under a “license” should be treated as intangible property under the Texas franchise system and not as revenue attributable to “use of a license.” The distinction is subtle but, in a nutshell, turns on whether the buyer “uses a license” (i.e., repackages the covered item for sale, as one might do if using a copyright or using a patent) or is instead just “using the information” conveyed to them through a license.

  • In re Coy Reece, No. 09-0520 (DB). The Court held that perjury in a deposition was not enough, by itself, to support a trial court’s imposition of criminal contempt (which, here, led to incarceration). The Court held that criminal contempt required misconduct that impeded the court in its operation and that this particular perjured testimony did not, because the adversary system was capable of testing its truth. Justice Guzman wrote for the majority. All the Justices agreed that the Court lacked power to issue a true “habeas corpus” to order Reece’s release. They split 7-2, however, over whether they could issue a “mandamus” to accomplish the same result.

    Justice Willett wrote a dissent (joined in part by Justice Johnson) concluding that the Court could not extend its mandamus power to overstep the bounds of its sister court (the Court of Criminal Appeals). The opinion, in its own inimitable way, calls on the Texas Legislature to address the fragmented design of the Texas judiciary:

    Intrepidity at the Alamo; entering the United States as the Republic of Texas; fifty-eight Texas-born recipients of the Medal of Honor; Bob Wills and George Strait; Nolan Ryan and Babe Didrikson Zaharias; five Super Bowl titles (sadly none this millennium); Dr Pepper and the “little creamery” in Brenham; deep-fried anything at the State Fair; a spirit of daring and rugged independence — the sources of Lone Star pride are innumerable.


    Unfortunately, the juris-imprudent design of the Texas judiciary does not make the list.

  • Patrick O. Ojo, on behalf of himself and all others similarly situated v. Farmers Group, Inc., et al., No. 10-0245 (DB). This case is covered in a separate post.

  • CMH Homes, Inc., et al. v. Adam Perez, No. 10-0688 (Wainwright, J.) (DB). This case is also covered in a separate post.

Two cases chosen for argument this fall

  • Kerry Heckman, et al. v. Williamson County, et al., No. 10-0671 (DB). This is a class action challenging how Williamson County handled misdemeanor prosecutions. The court of appeals dismissed for reasons of standing and mootness. The petition asks the Court to consider whether, in a case such as this, each named class representative needs standing for each class claim.

  • In re Frank Kent Motor Co. d/b/a Frank Kent Cadillac, No. 10-0687 (DB). The petition asks the Court to enforce a clause in an employment contract that waived a jury trial.