Supreme Court of Texas Blog: Legal Issues Before the Texas Supreme Court
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Category: 'Case Notes'

Texas’s same-sex divorce cases result in a deep divide — over the power of the Attorney General [Jun. 19, 2015]

June 19th, 2015 · Comments Off on Texas’s same-sex divorce cases result in a deep divide — over the power of the Attorney General [Jun. 19, 2015]

With today’s orders, the Texas Supreme Court issued opinions in four cases. It granted one petition for review and accepted a certified question from the Fifth Circuit.

Today’s same-sex divorce cases

The Texas Supreme Court had seemingly been waiting for the U.S. Supreme Court to speak clearly about same-sex marriage before resolving some cases about whether Texas courts could grant a divorce to a same-sex couple married in another state.

But with today’s orders, the Texas Supreme Court decided to speak first. That choice of timing is readily explained by the actual substance of the ruling. The Court split 5-3 on procedural questions about the proper role of the attorney general under Texas law, a question that would not be resolved by the U.S. Supreme Court’s decision. The Court held that the Attorney General could not wait until after judgment to intervene and that it was improper, in this case, to file a mandamus petition directly in the Texas Supreme Court. (There was a majority opinion, a concurrence, and two dissents, which are also linked under the “Opinions” heading below.)

You may recall that the Texas Supreme Court originally was considering two same-sex divorces, not one. There was another parallel case out of Dallas, in which the Attorney General had filed an intervention in the trial court before judgment. See IN THE MATTER OF THE MARRIAGE OF J.B. AND H.B., No. 11-0024 That case thus avoided some of the procedural problems that the Court grappled with in today’s opinions. Unfortunately, however, one of the spouses in the Dallas case passed away this April. The surviving spouse then asked the Court to dismiss the petition as moot. The Court, with today’s orders list, granted that dismissal.

Still, today’s opinions may not be the last word, either on the substance or the role of the AG. The Court’s docket includes two other same-sex marriage petitions, which revolve around the Attorney General’s challenge to a same-sex marriage license granted earlier this year in Travis County, which followed a probate judge’s declaration that the law was invalid:

At a broad level, both of those involve questions about the Attorney General’s role. At a narrower level, both are framed as mandamus petitions directly to the Texas Supreme Court, skipping the intermediate court of appeals, a procedural device frowned upon in today’s opinions.

Even beyond those procedural overlaps, Justice Willett’s dissent today makes explicit mention (at page 10) of the situation in Travis County that forms the basis of those still-pending petitions. Speaking for three Justices, he argues for the importance of the statute requiring notice to the Attorney General prior to declaring a state law invalid (Government Code §402.010). The majority today does not discuss that statute; the Court of Criminal Appeals has, as I wrote about last year, held this provision to be an unconstitutional infringment on judicial power.

These petitions have not been chosen for argument, or even for full merits briefing. Most likely, the Court is waiting to see what the U.S. Supreme Court does on the larger question. But at some point, we are likely to find out whether Government Code 402.010 is a limit on judicial power in civil cases.

Update on the Docket

By my count, the Court has decided nearly all of the cases that have been argued, with just eight argued cases remaining overall — five of which were just argued in late March. The Court appears well within range of meeting the Chief’s stated goal of having no cases remaining by the end of its term in August.

Programming Note

You may have noticed that parts of the blog are under construction. This includes a new format to the case summaries (below), which are wired very differently behind the scenes. This has some immediate advantages (the case status is now updated on old posts and you can access links to related news articles easily). I have some larger plans for these summaries that are, as you might guess, still under construction.

In the meantime, I apologize for the dust.

Opinions

The AG lacked standing, on this record, to challenge a same-sex divorce issued before he intervened in the case

Let's start with the questions this case does not reach. There is no holding here about the constitutional status of same-sex marriage. Nor does the Court reach the question whether a Texas court can as a general matter grant a same-sex divorce to a couple that was married in another state. A district court that grants such a divorce (or, as happened in Travis County in February 2015, a marriage license) is on no different legal footing after these opinions than it was before.

The Texas Supreme Court's analysis may not have longlasting implications for same-sex marriage or divorce, but it could be crucial to how the next hot-button political issue is litigated by the State.

This challenge was brought by the Attorney General, who was not (obviously) a party to this marriage or (less obviously) a party to the underlying lawsuit. The same-sex couple sought a divorce and, after some disputes being aired at a hearing, eventually agreed on terms. The judge, recognizing that it was unusual to grant a same-sex divorce, nonetheless entered judgment on the divorce decree reflecting the parties' agreed terms. As it turns out, members of the attorney general's office were observing this proceeding. But the office did not seek to formally intervene in the case until after the judgment (divorce decree) was announced. The trial court did not reopen the case to permit that intervention.

The threshold question is whether the Attorney General, although a stranger to this divorce, can pursue appellate remedies to challenge its validity. The Court, divided 5-3, held that at least on the particular circumstances presented here, he could not.

The Attorney General used two different procedural tools to raise the issue: (1) trying to intervene in the divorce case itself, a request that was denied by the trial court, and (2) eventually seeking a writ of mandamus directly from the Texas Supreme Court. Matters of timing became crucial. The AG had not asked to intervene until after the decree was granted. When the trial court did not reopen the case so the AG could participate, the AG filed an appeal to the intermediate court of appeals. When the court of appeals ruled against the AG, he then sought review in the Texas Supreme Court, adding a second basis for jurisdiction—a request for a writ of mandamus arguing that the trial judge exceeded his jurisdiction.

Whether the AG was a proper party to the appeal turned out to be dispositive.

The Court divided 5-3 on this question, ultimately deciding against the AG. The Court held that the AG was not a party to the appeal, either by virtue of Texas statute or a common-law doctrine of virtual representation. The Court observed that the AG had actual notice of the divorce proceedings, with at least one member of the office attending, but chose not to intervene before judgment. It held that, given those circumstances, the trial court was within its discretion not to reopen the divorce decree it had already granted. 1

The AG argued that, even if it did not successfully intervene as a party in the trial court, it should be considered a virtual party for purposes of appeal. The AG's office conceded that it did not meet the usual test for "virtual representation," which would let one party step into the shoes of another. Instead, the office argued that it should be afforded that same status for reasons of equity based on the importance of the issue and the AG's unique role in defending state law. The Court rejected that argument, reasoning that equity could not be used to create standing where none existed.

As for the writ of mandamus, the Court held that it simply came too late. The AG had conducted the full appeal in the court of appeals without bringing the mandamus issue to its attention. In effect, the Court held that this theory was waived by not presenting it to the court of appeals below.

Although the Court ruled 5-3 that it lacked jurisdiction to decide the merits of the case, several of the opinions spoke to the question—and to the lack of precedent that the Court meant to set with today's case. The majority opinion, for example, said that "even if the State could establish standing," the abbreviated way the case was litigated "would have [left the Court] little choice but to remand" the substantive issues to be more fully developed below. Justice Boyd wrote a separate concurrence underscoring that, precisely because the AG was not a party, any legal issues implicit in this divorce decree were not binding on the State so as to set precedent for any future cases. For that reason, Justice Boyd explained, the only appellate opinion speaking to the issue was that of the Dallas Court of Appeals in another case, an opinion holding that any same-sex divorce would violate Texas law. Justice Devine wrote his own separate dissent, delving into the substance of the same point.

Justice Willett's dissent spoke to the procedural question, concluding that "[i]ntervention is an equitable doctrine, and I simply balance the equities differently." He noted that, if the State's position about the substance turns out to be correct (that the courts actually lack subject-matter jurisdiction to issue a divorce, in this situation), there may still be uncertainty about the validity of this divorce. Those complications are left for another day, if they are not swept aside by changes in federal law.


  1. Future cases may turn on whether the AG's office has a similar opportunity to intervene or whether, in the view of an appellate court, the trial court was attempting to evade its involvement. There is a hint of this in how Justice Willett's dissent discusses another, still-pending case challenging the issuance of a same-sex marriage license time-stamped one minute after the action was filed. 

The opinions above were consolidated with IN RE STATE OF TEXAS, No. 11-0222 , the State’s unsuccessful mandamus petition.

Who can object to release of business-sensitive contract details under the Texas public-information act?

The question was whether a business can object to the government releasing information under the Public Information Act “that, if released, would give advantage to a competitor or bidder.” Tex. Gov't Code §552.104.

Here, the business was Boeing, which had a government contract related to Kelly Air Force Base. That contract, in turn, contained some terms reflecting details of Boeing's internal cost structure. When a former government employee filed an open-records request for the contract, the Attorney General agreed to release it. Boeing filed suit to stop the release, arguing that certain specific financial terms should be redacted so they would not aid its competitors in bidding for other aerospace projects.

The Court divided 7-1 on the judgment, but agreed 8-0 that Boeing was a proper party to raise this sort of objection.

The Attorney General had argued that this "competitor or bidder" exception only inured to the benefit of the government, thus permitting the government to waive objections to the release. Boeing argued that the statute was also meant to protect third parties whose private information might be disclosed. All of the Justices agreed with Boeing on this point.1

The majority held that, not only was Boeing a proper party to raise this sort of objection, but that it had conclusively established its right to block the release of this information. "No reasonable trier of fact could conclude that Boeing has no competitors, that the Defense Department won’t re-bid its contracts, or that the physical plant is not the biggest variable cost in such bids. The undisputed evidence allows only a single logical inference—that the information at issue 'if released would give advantage to a competitor or bidder.'" The Court thus held that the information was exempt from disclosure and should not be released.

Justice Boyd's dissent would have held that Boeing, although a proper party to raise this objection, had failed to present conclusive proof that the release of the information "would give advantage to a competitor or bidder," not merely that it was theoretically possible. More specifically, the dissent would have required that a party seeking to invoke this exception "must at least establish the existence of a specific competitor with whom the party is currently or will soon be engaged in a particular competition, and how the information would, in fact, give the competitor an advantage in that particular competition." Finding that evidence of harm lacking, Justice Boyd would have ordered the information released.


  1. Both the majority and concurrence also shared another feature: express reliance on the concurring opinion that Justice Pemberton filed in the court of appeals. That concurrence was quoted multiple times in Justice Devine's majority, which adopted its statutory analysis. And Justice Boyd's dissent opens by saying, "Essentially for the reasons expressed in the court of appeals’ concurring opinion, ... I dissent." 

Evidence needed to show gross negligence under the Recreational Use Statute

This is a suit against a city by the family of two girls and their father who were killed by rip currents near the Texas City Dike while swimming. The plaintiffs argue that the City should have posted more warnings or even closed the area to swimming because of the risk. The City lost its plea to the jurisdiction, but the court of appeals ruled in its favor, dismissing the claims. The petition argues that the claim should be allowed to move forward because, in part, warning signs that had previously been present signaled awareness of the problem — or at least would permit a fact-finder to draw such an inference.

The beach in question was damaged extensively by Hurricane Ike. When it reopened, after two years of repairs, the City did not replace all the warning signs that had previously been present. Those hsigns warned of the risks of swimming and diving.

The Texas Supreme Court granted the petition but ultimately affirmed the court of appeals, concluding that the evidence fell short of what would be required to show gross negligence: "[T]here is no evidence that the municipality had knowledge of concealed conditions at the beach creating an extreme risk of harm."

The Supreme Court noted that the case involved a recreational use of property and, thus, any claim against the landowner (the City) would have to prove gross negligence as defined in the statute, which requires both that the action involved objectively "involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others" and that the defendant "has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others." Tex. Civ. Prac. & Rem. Code §41.001(11).

The opinion focused primarily on the signage and, particularly, whether it represented prior knowledge of the particular risks involved. The Court held that it would be improper for a fact-finder to draw such an inference. The opinion invoked the equal-inference rule, concluding that generic signs about the risks of swimming were "equally consistent with mere knowledge of risks inherently associated with open-water swimming" and thus did not show "subjective awareness of and conscious indifference" to the specific types of marine hazards involved in this accident. As such, the Court concluded, they are not evidnece that the City was aware of risks beyond those that would already be known to a recreational swimmer.

Finding no evidence of gross negligence, the Court affirmed the court of appeals's dismissal.

Grants

When can a district clerk seek to collect court costs from indigent pro se litigants?

Until it was enjoined, the Tarrant County district court clerk's office sought to collect court costs, even against parties who had been classified as indigent.

The collections happened in cases where the district court's final judgment included language awarding such costs, against one party or the other.

The county's position is that the clerk should not be in the business of second-guessing the judgment but, instead, should follow it to the letter. In the county's view, the proper route for an indigent party to challenge these costs is by filing a motion in the district court to "re-tax" them.

The plaintiffs argue that the district clerk's office is exceeding its power by pursuing collection activity after the determination of indigence. The argument has been framed as an ultra vires claim, contending that the clerk's office is powerless to collect in this situation, whether or not the judgment is modified.

The county answers that this type of broad injunction is inappropriate because Texas law requires that challenges to the execution of a judgment must be brought in the specific district court that rendered the judgment — thus defeating a broad injunction and bolstering their argument that only the district court can modify the judgment's terms.

When does a home-equity lender forfeit all of the principal and interest under the note?

TERESA GAROFOLO v. OCWEN LOAN SERVICING, L.L.C., No. 15-0437

home equity
Set to be argued on September 23, 2015

The Fifth Circuit has certified another question to the Texas Supreme Court about the meaning of Texas's constitutional provision relating to home-equity lending.

Here, the homeowner made all their payments, completing their obligations under the note. But — perhaps contrary to a contractual provision and this portion of the Texas Constitution — the holder of the note did not send the homeowner the cancelled promissory note or a release of the lien. When this remained uncured, the homeowner filed suit for a violation of Article XVI, § 50(a)(6)(Q)(vii) the Texas Constitution and for breach of contract. The remedy she sought was "forfeiture of all principal and interest paid pursuant to the note."

As the Fifth Circuit explained, the district court had dismissed the constitutional claim on the ground that the Constitution merely required the term be included in the contract, but that violating it was not of constitutional dimension:

[The holder of the note] Ocwen contended that the Texas Constitution is satisfied by merely including such a requirement in the terms of the Security Instrument. Because the Security Instrument here included that requirement, Ocwen asserted that [the homeowner] Garofolo did not suffer a constitutional injury. Ocwen’s motion to dismiss also argued that Garofolo did not allege actual damages, a predicate to recovering money damages for breach of contract. The district court agreed with both arguments.

There appears to be little dispute that the lender's conduct here violated the contractual terms. The question is whether any remedy exists. The lender has argued both that the Constitution merely requires the term by included in a contract and that Texas contract law would require a party to prove up actual damages before obtaining the remedy of forfeiture. The Fifth Circuit recognized that the combination would "render the requirement a virtual nullity except in the (hopefully rare) circumstance where a lender unscrupulously attempts to enforce a paid note resulting in recoverable damages." Nonetheless, it saw the remedy sought by the homeowner as a "drastic remedy."

The Fifth Circuit has certified both claims to the Texas Supreme Court:

  1. Does a lender or holder violate Article XVI, Section 50(a)(6)(Q)(vii) of the Texas Constitution, becoming liable for forfeiture of principal and interest, when the loan agreement incorporates the protections of Section 50(a)(6)(Q)(vii), but the lender or holder fails to return the cancelled note and release of lien upon full payment of the note and within 60 days after the borrower informs the lender or holder of the failure to comply?

  2. If the answer to Question 1 is “no,” then, in the absence of actual damages, does a lender or holder become liable for forfeiture of principal and interest under a breach of contract theory when the loan agreement incorporates the protections of Section 50(a)(6)(Q)(vii), but the lender or holder, although filing a release of lien in the deed records, fails to return the cancelled note and release of lien upon full payment of the note and within 60 days after the borrower informs the lender or holder of the failure to comply?

Tags: Case Notes · Order Lists

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
Summary for previous 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

RANDY AUSTIN v. KROGER TEXAS, L.P., No. 14-0216

Set to be argued on December 9, 2014
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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