Supreme Court of Texas Blog: Legal Issues Before the Texas Supreme Court

Category: 'Case Notes'

The Fifth Circuit asks whether Texas’s civil penalty statutes are covered by its limits on exemplary damages

February 23rd, 2015 · Comments Off on The Fifth Circuit asks whether Texas’s civil penalty statutes are covered by its limits on exemplary damages

A federal court has asked the Texas Supreme Court to clarify whether Texas’s statute restricting exemplary damages also limits statutory civil penalties.The federal case is Forrte v. Wal-Mart Stores, Inc., No 12-40854 (5th Cir.). That panel has now withdrawn its prior opinion — which held that Texas’s general statute about exemplary damages (Chapter 41 of the Civil Practice and Remedies Code) barred the recovery of specific statutory penalties under the Texas Optometry Act. The conduct that led to the penalty was Wal-Mart signing optometrists to leases that specified certain hours of operation, in violation of Texas law. The maximum statutory civil penalty for this is $1000 per day, which led to the multimillion-dollar penalty awarded here.1

The panel has issued a new opinion further explaining the tension it sees in this area of Texas law. The panel’s original opinion had concluded that these statutory civil penalties could not be imposed unless a plaintiff also met the more general requirements of Chapter 41 covering exemplary damages. Here, the plaintiffs did not attempt to show damages flowing from specific injuries but, instead, focused only on civil penalties. The panel originally held that this was barred under Chapter 41, which bars “exemplary damages” disconnected from at least some actual damages.That opinion has now been withdrawn. In its new opinion certifying this question to the Texas Supreme Court, the panel suggests two paths that might lead to the opposite result. First, it speculates that a plaintiff’s claim for civil penalties alone might not be a claim for “damages” that would fit within Chapter 41. Second, it speculates that perhaps statutory civil penalties are not “exemplary damages” within the meaning of Chapter 41.I would expect the Texas Supreme Court to accept the certified questions and hear oral argument this fall.H/T: David Coale’s 600 Camp blog, which also covered the earlier opinion in this case in August: “Civil penalties capped at — zero”.

  1. In a strange symmetry, the lease contract also had a “per day” penalty. An optometrist who failed to adhere to the agreed hours might be subjected, under the lease terms, to $200 per day in liquidated damages. []

Tags: Case Notes

School finance litigation returns to the Texas Supreme Court

October 5th, 2014 · Comments Off on School finance litigation returns to the Texas Supreme Court

It’s now up to the Texas Supreme Court to decide whether to give its own guidance to the Texas Legislature about funding local school districts or to leave in place the district court’s judgment striking the system down.

School finance litigation returns to SCOTX
The most current summary describes this event:

The AG's office filed its notice of appeal in the latest round of school-finance litigation. As expected, this notice was filed as a direct appeal to the Texas Supreme Court, bypassing the intermediate level of review. A group of school districts has also filed its own notice of appeal.

This kind of direct appeal is permitted in certain narrow circumstances, a process I've written about before. The previous round of litigation in 2005, West Orange Cove II was also a direct appeal. West Orange Cove I, however, took the more usual route through the intermediate courts.

The next step is for the parties to formally ask the Texas Supreme Court to accept jurisdiction. Mirroring the process for direct appeals in the U.S. Supreme Court, this is done through filing a Jurisdictional Statement that stands in place of a petition for review. If the Court wishes to review the case, it will do so by 'noting jurisdiction' and setting the case for full briefing and future argument.

Tags: Case Notes

Does an employee’s awareness of a premises defect eliminate the employer’s duty to maintain a safe workplace? [Apr. 4, 2014]

April 4th, 2014 · Comments Off on Does an employee’s awareness of a premises defect eliminate the employer’s duty to maintain a safe workplace? [Apr. 4, 2014]

With today’s orders list, the Texas Supreme Court agreed to answer the Fifth Circuit’s certified question about a fuzzy intersection between Texas employer-employee law and Texas premises liability law. The Court will now receive merits briefs, with oral argument likely to be held in the fall.

Certified question about what duty an employer owes to an employee over a premises defect


Set to be argued on December 9, 2014

This is a slip-and-fall case with a twist: The injured person was an employee who was cleaning up the spill:

Kroger’s Safety Handbook provided that store management should “make certain that the Spill Magic Spill Response Stations [were] adequately supplied at all times” and available in numerous places throughout the store. Spill Magic allows an employee to clean a liquid spill with a broom and dustpan, and — according to Kroger’s Safety Handbook — reduces the likelihood of a slip-and-fall by 25 percent. Because there was no Spill Magic on premises that day, Austin cleaned the spill with a dry mop instead. When Austin moved on to the men’s restroom, he saw that the same substance covered about 80 percent of the floor. Austin placed “Wet Floor” signs inside and outside of the room, and proceeded to mop the spill for about thirty to thirty-five minutes. Austin took “baby steps” in and out of the restroom to change out the mop head numerous times, and successfully removed about thirty to forty percent of the liquid.

At about 10:30 a.m., while continuing to remedy the spill, Austin fell. He sustained a left femur fracture and severely dislocated his hip. He spent nine months in the hospital and underwent six surgeries, and his left leg is now two inches shorter than his right.

The employer did not subscribe to the Texas Workers Compensation system, so the claim falls through to common law.

The federal court decided that at least part of the case — a conventional negligence theory based on failure to provide the employee with “a necessary instrumentality” (the Spill Magic) — should be remanded to the federal district court for further proceedings. What it did not know was whether the premises liability theory was also viable — or whether that theory is precluded under Texas law.

So, it has certified the question:

Pursuant to Texas law, including §406.033(a)(1)–(3) of the Texas Labor Code, can an employee recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy? Put differently, does the employee’s awareness of the defect eliminate the employer’s duty to maintain a safe workplace?

The Fifth Circuit detailed its analysis of the underlying “tension” within these branches of Texas tort law in its opinion certifying the questions.

Tags: Case Notes · Order Lists

Texas Supreme Court halts disclosure of identity of pharmacies supplying execution drugs

March 30th, 2014 · Comments Off on Texas Supreme Court halts disclosure of identity of pharmacies supplying execution drugs

The Texas Supreme Court does not often touch issues relating to the death penalty. Criminal appeals and habeas questions go, instead, to the Court of Criminal Appeals.

But the latest hot-button aspect of the death penalty — the supply of the execution drugs — did make an appearance on the docket.

On Thursday, a district court in Austin ruled that officials had to reveal the identity of its supplier. The Public Information Act suit was pursued on behalf of two prisoners currently scheduled to be executed in early April. Previous suppliers in Texas and other states have been sued or faced public pressure, leading them to stop providing lethal-injection drugs.

The Austin Court denied a stay on Friday. That very brief opinion conveys the court’s impression that the release of information would be limited: “The order compels disclosure of the requested information to a limited group of attorneys, with further limitations on their use or disclosure of the information.”

Later on Friday, the Texas Supreme Court was persuaded to issue a stay stopping the release: IN RE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, No. 14-0243 .

The Court has set a merits briefing schedule with dates falling in mid- and late April. (The Texas Supreme Court has no power to alter the execution dates, a question which will be handled by courts with criminal jurisdiction.)

Coverage: AP/Dallas Morning News

Tags: Case Notes · News and Links

Can the Legislature prevent a court from striking down a statute on constitutional grounds until 45 days after the AG has been notified?

March 25th, 2014 · Comments Off on Can the Legislature prevent a court from striking down a statute on constitutional grounds until 45 days after the AG has been notified?

That’s the question that the Texas Court of Criminal Appeals, which has the final say on state criminal matters, answered last week.

After the criminal court struck down on First Amendment grounds the Texas criminal statute that had been applied to “sexting” with an underage participant, the AG sought rehearing. One reason offered by the AG’s office is that it had not been formally notified of a constitutional challenge under Texas Government Code 402.010. In denying that rehearing, the Court of Criminal Appeals addressed why it viewed that notice provision as unconstitutional.

The core reason is separation of powers. Section 402.010 provides that a court must forward notice to the attorney general when a party has raised a constitutional challenge, and that “[a] court may not enter a final judgment holding a statute of this state unconstitutional before the 45th day after” such notice is given.

The CCA refused to abide this limitation on its authority to act as a court:

… the potential length of the delay is not so much the problem as the fact of the attempted interference at all. Entering a final judgment is a core judicial power; it falls within that realm of judicial proceedings “so vital to the efficient functioning of a court as to be beyond legislative power.” Thus, the 45-day time frame provided for in subsection (b) is a constitutionally intolerable imposition on a court’s power to enter a final judgment and a violation of separation of powers.

Rehearing Opinion at 6.

In a concurrence, Presiding Judge Keller made two further points. First, that in one year, the CCA disposed of “well over nine thousand matters” in which many made such a claim. Second, that the CCA website makes available “a list of the issues upon which discretionary review has been granted.” Concurrence at 2-3

What does this mean for civil cases?

The statute applies to both civil and criminal cases. The CCA has made plain that it does not think criminal courts and, presumably, courts of appeals hearing criminal dockets need not comply. But the CCA does not have jurisdiction over civil cases.

The question becomes: What does SCOTX think of this notice requirement?

The Context in Which It May Be Answered: The Same-Sex Divorce Cases

The notice statute, it turns out, was passed by the Texas Legislature in 2011 — in the wake of the AG complaining that its office had not been notified about a constitutional challenge lurking in a divorce decree to a gay marriage. There, the AG sought to intervene after the fact, asserting an interest in defending the state’s laws.

The trial court and Austin Court denied that request; that case is now pending before the Texas Supreme Court as IN RE STATE OF TEXAS, No. 11-0222 .

At oral argument, there was substantial discussion about the source and nature of the Attorney General’s interest to intervene in private lawsuits. Oral Argument Tr. at 14-18 Although Section 402.010 could not be the source of that authority in In re State — because it was enacted after-the-fact — it was discussed as reflecting the same concerns.

It’s conceivable that the Texas Supreme Court will decide the narrow issue in IN RE STATE OF TEXAS, No. 11-0222 without ever mentioning Section 402.010 — certainly, it would not strictly need to discuss a statute enacted after the fact. But not mentioning the statute would be curious, given its provenance and role at oral argument. And it seems unlikely that the Court could mention the statute without acknowledging that its sister court of last resort had held that to violate the separation of powers.

The Texas Supreme Court has not taken warmly to legislative attempts to cut short its consideration of constitutional issues. Whether it embraces legislative attempts to slow down judicial resolution of constitutional issues remains to be seen.

Tags: Case Notes · News and Links

SCOTX takes the Deepwater Horizon case [Sep. 6, 2013]

September 6th, 2013 · Comments Off on SCOTX takes the Deepwater Horizon case [Sep. 6, 2013]

With today’s orders, the Texas Supreme Court formally accepted review of IN RE DEEPWATER HORIZON, No. 13-0670 , the case that it received from the Fifth Circuit last week. The issues covered by the certified questions will now be briefed, and the Court will most likely set the case for argument in January or February.

The Court did not grant any other petitions for review. Among the denials, there was only one case that had reached the merits-briefing stage: TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER v. MARGARITA HERNANDEZ VILLAGRAN, ET AL., No. 12-0531 . Because petitions that reach full briefing are usually handed down after conference weeks (which this week was not), I decided to look a little more closely.

The Texas Tech petition raised immunity issues under §101.106 and had been fully briefed for about six months. It was apparently waiting on the outcome of TEXAS ADJUTANT GENERAL'S OFFICE v. MICHELE NGAKOUE, No. 11-0686 . That decision was handed down last week, and marked a 5-4 rejection of the state’s strict view of §101.106 — which was also at the heart of the petition denied today.

Next week: The first oral arguments of the new term will be held Monday, Tuesday, and Wednesday. The Court’s calendar shows both Thursday and Friday blocked out for the State Bar appellate CLE in Austin, at which several Justices and members of the Court staff will be speaking.

I’m working on a kind of “StatPack” about the Court’s term. I hope to finish that next week. If you’d like numbers sooner, you can peek at the updated authorship tables and voting charts. These tables are integrated with my case database, so you can drill down to see exactly which opinions are being counted.

Tags: Case Notes · Order Lists

The fight over the BP/Deepwater Horizon oil spill reaches the Texas Supreme Court

August 29th, 2013 · Comments Off on The fight over the BP/Deepwater Horizon oil spill reaches the Texas Supreme Court

The Fifth Circuit has asked the Texas Supreme Court to weigh in on the litigation surrounding the April 2010 explosion and oil spill at the Deepwater Horizon offshore oil rig. The Texas Supreme Court has docketed the case as IN RE DEEPWATER HORIZON, No. 13-0670 .

The issue is whether the insurance policies that were purchased by Transocean also cover BP for its losses as an “additional insured.”

The two sides disagreed about how to read a previous Texas Supreme Court decision on the subject, Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., 256 S.W.3d 660 (Tex. 2008).

With that disagreement about a controlling question of state law, the Fifth Circuit chose to certify the question to the Texas Supreme Court and await an answer. (This is the third such certified question that the Texas Supreme Court has received in the past two weeks.)

In its certification order, the Fifth Circuit has asked the Texas Supreme Court to provide the definitive answer under Texas law about two legal questions, before returning the case to the Fifth Circuit for final disposition.

The first question asks about how to apply ATOFINA to these facts:

  1. Whether Evanston Ins. Co. v. ATOFINA Petrochems., Inc., 256 S.W.3d 660 (Tex. 2008), compels a finding that BP is covered for the damages at issue, because the language of the umbrella policies alone determines the extent of BP’s coverage as an additional insured if, and so long as, the additional insured and indemnity provisions of the Drilling Contract are “separate and independent”?

The second question asks whether the general principle that ambiguous contract language is construed against the person who drafted it (contra proferentum) applies in this context:

  1. Whether the doctrine of contra proferentem applies to the interpretation of the insurance coverage provision of the Drilling Contract under the ATOFINA case, 256 S.W.3d at 668, given the facts of this case?

The Texas Supreme Court will most likely accept these certified questions and set a briefing schedule for the parties, with an oral argument to follow late this fall or early next year.

Tags: Case Notes

The Texas Supreme Court accepts two “gay divorce” cases for argument this fall

August 23rd, 2013 · Comments Off on The Texas Supreme Court accepts two “gay divorce” cases for argument this fall

Today, the Texas Supreme Court formally accepted two cases about same-sex divorce for argument this November.1

In both cases, a gay couple married in another state tried to get a divorce in Texas. In both cases, the state Attorney General intervened in the case, arguing that Texas law did not permit a court to grant a divorce — not because the state wants to preserve gay marriages, but because the state does not recognize their validity to begin with.

One of the cases, IN THE MATTER OF THE MARRIAGE OF J.B. AND H.B., No. 11-0024 , went through the Dallas Court of Appeals, which agreed with the Attorney General’s position.

A case originating in Austin proceeded differently. In that case, STATE OF TEXAS v. ANGELIQUE NAYLOR AND SABINA DALY, No. 11-0114 , the Attorney General’s attempt to intervene was made after the divorce decree was issued, and the Austin Court of Appeals held that attempt was untimely. The Austin Court upheld the divorce.

The petitions were filed in the Texas Supreme Court in 2011, but they were effectively “on hold” while the U.S. Supreme Court considered its own set of gay-marriage cases last term.

The U.S. Supreme Court handed down its decisions in June. In one of those cases, U.S. v. Windsor, the Court held that the part of the federal Defense of Marriage Act that prohibited same-sex couples from receiving federal benefits was unconstitutional.

Now that the U.S. Supreme Court has spoken, the Texas Supreme Court has a better sense of how federal law may bear on the question whether Texas courts can or must recognize a same-sex marriage to grant a divorce.

One of the lurking issues may involve the part of the Defense of Marriage Act that was not struck down by U.S. v. Windsor — the part that modifies the Full Faith and Credit Clause of the U.S. Constitution to permit states to take the unusual step of refusing to recognize marriages issued in sister states. In striking down the federal-benefits part of DOMA, Windsor reasoned from equal-protection principles and the historic role of states in deciding what constitutes marriage to conclude that federal law could not refuse to recognize a marriage recognized by state law. How those principles apply when one state refuses to recognize a marriage issued by another state remains an open question.

The Texas Supreme Court has consolidated both cases for oral argument on November 5, 2013. The oral argument will be webcast live, as is the Texas Supreme Court’s normal practice.

  1. The Court also granted a third petition, filed by the Attorney General, preserving its argument that it should have been allowed to intervene in one of these cases in the trial court. []

Tags: Case Notes