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

Category: 'Order Lists'

No opinions or grants [Mar. 11, 2016]

March 11th, 2016 · Comments Off on No opinions or grants [Mar. 11, 2016]

The Court again had a quiet orders list this week, with no opinions or grants.

Tags: Order Lists

No opinions or grants [Mar. 4, 2016]

March 5th, 2016 · Comments Off on No opinions or grants [Mar. 4, 2016]

The Court did not issue any opinions with this week’s orders list.

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Personal jurisdiction in a defamation case that crosses borders; interpreting an oil-and-gas agreement [Feb. 26, 2016]

February 26th, 2016 · Comments Off on Personal jurisdiction in a defamation case that crosses borders; interpreting an oil-and-gas agreement [Feb. 26, 2016]

With this week’s orders list, the Texas Supreme Court issued opinions in five cases. It did not select any new cases for future argument.

Looking at the calendar, to remain on-target to meet last year’s target Court has a fair number of cases to be decided in the next few months, to equal last year’s target of clearing its docket by the end of June. I see 44 argued cases remaining to be decided, with approximately 17 weeks remaining until the end of June.


Does Texas have personal jurisdiction over a Mexican TV station whose broadcasts reach the state?
Summary for previous event:
Set to be argued on October 12, 2015

This is a defamation case involving a broadcast that originated in Mexico and, it is alleged, caused harm in Texas. TV Azteka broadcasts from a location in Mexico that reaches both a local audience and several cities on the Texas side of the border.

The TV station filed a special appearance arguing that Texas courts lack jurisdiction to hear this defamation claim. The trial court denied that request, and the court of appeals agreed that Texas courts can proceed.

The parties dispute the degree to which the TV station has chosen to avail itself of the business opportunities, and legal responsibilities that may come, from having its signal extend into Texas.The plaintiff points to some materials suggesting that TV Azteka was selling advertisers on the benefits of having the signal extend into Texas. Emphasizing a different aspect of its revenue, the TV station says that it had no legal control over how its signals were used in Texas and was unable to charge local cable stations to rebroadcast them.

The national and state associations of broadcasters have filed amicus briefs, urging the Texas Supreme Court to take the case and rule that signals crossing international borders — like postings on the internet — do not automatically create personal jurisdiction wherever they are read.

Court of appeals must address all issues necessary to judgment

In an employee-arbitration case, the trial court agreed with an employee that the agreement was unconscionable. Its ordered addressed only some of the employee's arguments, leaving the others unanswered.

On appeal, the employee urged those other grounds as alternate reasons to affirm. The court of appeals reversed and ordered arbitration (the equivalent here of a rendition, not a remand), declining to consider the employee's alternate grounds:

The court did not address any other arguments that Cardwell raised to oppose arbitration, explaining without authority that “as the trial court did not base its determination of unconscionability on those grounds, we need not consider them.” The court of appeals observed in a footnote that Cardwell had not cross-appealed from the trial court’s findings and conclusions or complained of the omission of findings and conclusions.

The Texas Supreme Court reversed that outcome, remanding to the court of appeals to consider those alternative grounds. The Court noted that a party defending the trial court's judgment need not perfect a cross-appeal and that Texas Rule of Appellate Procedure 47.1 says "[t]he court of appeals 'must hand down a written opinion that . . . addresses every issue raised and necessary to final disposition of the appeal.'”

Tags: Order Lists

Four grants for future argument (likely in the fall); rehearing granted in the Houston takings case between home owners and a flood-control district [Feb. 19, 2016]

February 19th, 2016 · Comments Off on Four grants for future argument (likely in the fall); rehearing granted in the Houston takings case between home owners and a flood-control district [Feb. 19, 2016]

This Friday’s orders list brings four more cases chosen for oral argument. It also brings a rare grant of rehearing in an argued case that was decided last June: HARRIS COUNTY FLOOD CONTROL DISTRICT AND HARRIS COUNTY, TEXAS v. EDWARD A. AND NORMA KERR, ET AL., No. 13-0303

The Court has not specified an argument date for the new grants. Most likely, they will be heard in the fall.

Rehearing Grant

In June, the Court decided HARRIS COUNTY FLOOD CONTROL DISTRICT AND HARRIS COUNTY, TEXAS v. EDWARD A. AND NORMA KERR, ET AL., No. 13-0303 . The vote was split 5-4, with two separate dissenting opinions. A motion for rehearing was filed, and fifteen amicus filings followed shortly thereafter, urging the Court to reconsider.

Today, the Court has granted the motion for rehearing but has not (yet) withdrawn its opinions and has not (yet) set the case for re-argument, if that is its intention. Instead, the case remains on the active docket, awaiting a more final disposition.

The timing of today’s order was driven by the timing of the motion for rehearing. It was filed on August 28th — 175 days before this orders list. Had the Court waited until next week to take action, the 180-day clock for rehearing motions set by the Texas Constitution would have expired.

New Grants


Set to be argued on September 13, 2016


Set to be argued on September 13, 2016


open records
Set to be argued on September 14, 2016


Set to be argued on November 7, 2016

Tags: Order Lists

Two (more) grants on a Tuesday, for argument in March [Feb. 16, 2016]

February 16th, 2016 · Comments Off on Two (more) grants on a Tuesday, for argument in March [Feb. 16, 2016]

That might sound familiar, or even vaguely predictable, for those monitoring the argument calendar:

Doing a little math… we might expect some grants to be announced on February 16th, to be argued on March 9th or March 10th.

The two cases granted with some orders issued earlier today (official version) are being scheduled for argument on March 9th and March 10th.

More details about these cases will appear after the docket is updated. Generally speaking, the J.B. Hunt case is about two Texas trial courts competing for jurisdiction. The Doctors Hospital case is about how liability for medical malpractice can, or cannot, percolate up through the limited-partnership structure owning a hospital.


Set to be argued on March 9, 2016

Tags: Order Lists

Deepwater Horizon case set for March argument; no opinions or grants [Feb. 12, 2016]

February 12th, 2016 · Comments Off on Deepwater Horizon case set for March argument; no opinions or grants [Feb. 12, 2016]

With today’s orders list, the Texas Supreme Court did not issue any opinions or choose new cases for argument.

The Court did, however, announce an argument date for the certified question it previously accepted involving the Deepwater Horizon oil spill (what many outside of a courtroom call the “BP Oil Spill”).

This is a fairly quick argument setting. In December, the Court accepted this certified question from the Fifth Circuit, and the parties are wrapping up merits briefing in the Texas Supreme Court now. (( The docket calendar indicates that the reply brief was due yesterday, but that filing is not yet listed. It may be detained in e-filing purgatory. )) The argument will be 25 days from today.

Does a claim for wrongful denial of insurance benefits require independent damages?


Set to be argued on March 8, 2016

This is one of many cases percolating in the Fifth Circuit about the Deepwater Horizon (BP) oil spill. Here, the dispute is between various insurers over some subrogation and indemnification arrangements, internal to the complex stack of insurance that might apply to the project.

The Fifth Circuit resolved some of those questions under what it found to be well-settled law, and certified one other question to the Texas Supreme Court on a point that it found to be unsettled in Texas:

Whether, to maintain a cause of action under Chapter 541 of the Texas Insurance Code against an insurer that wrongfully withheld policy benefits, an insured must allege and prove an injury independent from the denied policy benefits?

The Fifth Circuit explains the uncertainty as being about whether Vail v. Texas Farm Bureau Mutual Insurance Co., 754 S.W.2d 129 (Tex. 1988), remains good law. That case would answer the question "no." Two decades later, a different panel of the Fifth Circuit analyzed intervening Texas authority and held that Vail was no longer controlling on this point. Great American Insurance Co. v. AFS/IBEX Financial Services, Inc., 612 F.3d 800, 808 & n.1 (5th Cir. 2010). In now certifying this question to SCOTX for an authoritative answer, the panel observes that some intermediate Texas courts, contrary to the Fifth Circuit's conclusion in Great American, still treat Vail as controlling law.

See also:

Tags: Order Lists

Quiet orders list [Feb. 5, 2016]

February 5th, 2016 · Comments Off on Quiet orders list [Feb. 5, 2016]

With today’s orders list, the Texas Supreme Court did not issue any opinions or select new cases for oral argument.

The Court will be hearing arguments next week on Monday and Tuesday.

Tags: Order Lists

Challenge to school religious policy not moot; two oil and gas cases; timing is crucial in arguing for an easement to a roadway [Jan. 29, 2016]

January 29th, 2016 · Comments Off on Challenge to school religious policy not moot; two oil and gas cases; timing is crucial in arguing for an easement to a roadway [Jan. 29, 2016]

With today’s orders list, the Texas Supreme Court issued opinions deciding four cases. It also issued corrected opinions on rehearing in one case originally decided last summer. And it reassigned one of the cases set for argument in early March to a (new) argument date in late March.




A school cannot moot a student's lawsuit merely by announcing a policy change

A group of middle school cheerleaders sued when their school prohibited them from displaying banners containing religious messages. The school district filed a plea to the jurisdiction and, eventually, an interlocutory appeal.

After the suit was filed, the school district adopted a new policy stating, in somewhat elliptical terms, that it was “not required to prohibit messages on school banners . . . that display fleeting expressions of community sentiment solely because the source or origin of such message is religious,” but “retains the right to restrict the content of school banners.” Although that policy does not provide a definitive answer on whether future banners will be permitted, it purports to change the rules under which district officials might consider a request. The school district argued on appeal that this policy change mooted the case, depriving the courts of subject-matter jurisdiction, and the court of appeals agreed.

The Texas Supreme Court reversed, stating that it was unpersuaded that the controversy had been resolved. The opinion notes that, in suits brought to challenge public policy, a defendant cannot moot the challenge merely by stating that it has changed its mind: "If it did, defendants could control the jurisdiction of courts with protestations of repentance and reform, while remaining free to return to their old ways. This would obviously defeat the public interest in having the legality of the challenged conduct settled."

In framing the test to be applied, the Court focused on the risk that the conduct would recur. It quoted language from past decisions saying that the defendant arguing for mootness bears "a 'heavy' burden" to show that "subsequent events make 'absolutely clear that [the conduct] could not reasonably be expected to recur."

The Court held that this situation fell short of mootness. It noted, in part, the district's continued position that, while "it does not have any current 'intent' or 'plan' to reinstate that prohibition," it was reserving the right to do so. Because the case was not moot, the Texas Supreme Court reversed and remanded the case to the court of appeals so that it could consider the other issues raised by the district in its plea.

The Railroad Commission can defeat a claim for breach of contract or negligence by showing its officials acted with subjective good faith


jury charges oil and gas regulatory sovereign immunity

This case involves a well that was plugged in error by the Railroad Commission. The Commission was in discussion about the need to plug a number of wells, which included the one at issue here. A meeting was held, where it is alleged a preliminary oral agreement was reached to delay plugging these wells to give the operator more time to try to reestablish production.

Subsequently, an official from the Railroad Commission misread a map and plugged this well. When a dispute arose, the Legislature passed a resolution authorizing these plaintiffs to bring a lawsuit against the Railroad Commission despite the state's sovereign immunity. The case proceeded to trial, and the trial court refused to submit a question to the jury about whether the officials had acted with "good faith." The trial court found the Railroad Commission to be liable.

The Texas Supreme Court holds that the trial court should have submitted a question to the jury about "good faith," which the statute makes a substantive defense to liability. The Court rejected the argument that this had been procedurally waived. (The Court's discussion of how error can be preserved through proposed questions is worth more careful study.) And it rejected the argument that the Legislature's jurisdictional permission to bring this suit was also a waiver of this substantive defense.

The Court did not find, however, that the evidence was so conclusive about "good faith" to permit it to render judgment in favor of the Commission. Instead, the Court remanded this for a new trial, with the clarification that the kind of "good faith" contemplated by the statute is merely subjective good faith of the officials involved, not the higher burden of showing objective good faith.

With regard to the contract claim, the jury charge asked merely whether the Commission had breached an agreement—without specifying the timing of when that agreement was formed. Here, that fact was crucial. The plaintiffs argued that the Commission's actions taken just before the final agreement was signed constituted a breach of the agreement, the basic terms of which had already been agreed weeks before that formality. The jury charge, echoing Texas's very broad pattern jury charge, did not distinguish between the two contracts. The Texas Supreme Court holds that the distinction mattered and that the Commission's objections made below were specific enough to preserve this error. The Court also holds that the "good faith" defense mentioned in the statute is, because of the way the law was drafted, equally applicable to this breach of contract claim. So in the second trial, the Commission will be able to argue that it should not be liable for contract damages where its officials acted in subjective good faith.

The "necessity" in an easement by necessity is evaluated at time the two properties were severed

The land originally conveyed in a state land grant was eventually severed into two parcels in 1866. Today, one of those parcels (the Staley tract) is landlocked in the sense that it has no connections to nearby roads and so cannot be accessed without the permission of other neighboring owners. The current owners sued, arguing that the doctrine of easement by necessity should compel finding an easement across the other half of the original land grant (the Stiles tract) to connect to a state road running through the area. The trial court ruled against them.

The court of appeals affirmed, holding that this record did not support an easement by necessity. The Texas Supreme Court agreed, affirming the judgment below.

The key to the Court's decision is timing. As the Court explained:

Maps introduced into evidence showed roads in the vicinity of CR 134 may have existed as early as the 1930s, but there was no evidence of a public roadway through the Stiles Tract or along its northern boundary before that time.

The Court explained that a landowner claiming an easement by necessity must show the presence of a public roadway at the time of the original severance of the two parcels. Here, that severance was in 1866. And there was no evidence that—in 1866—any easement could have been drawn to connect to a public road.

Interpreting fractions in older documents conveying a royalty interest in minerals

In 1947, Ethel Hysaw executed a will that would divide her properties among three children. Although the surface parcels were divided in different proportions, with one getting the homestead and another getting a larger contiguous piece, the mineral royalty to be devised was the same for each: "an undivided one-third (1/3) of an undivided one-eighth (1/8) of all oil, gas or other minerals in or under or that may be produced from any of said lands." She passed away in 1949.

In 2008, a mineral lease was negotiated that offered an even larger royalty to the mineral estate, 1/5 (0.2) instead of 1/8 (0.125). This case is about who owns this additional 3/40 (0.075) interest. Should it be divided in proportion to the surface estate, because the will was specific about using the figure 1/8? Or should the will be interpreted to give an equal share to each of the original heirs, floating with the current market royalty?

The complexity comes from history. Before the 1970s, it was extraordinarily common that landowners would receive a 1/8 royalty, with some courts even taking judicial notice of that being the rate. Thus, a "double fraction" conveyance—in which a document assigns percentages or fractions of a "1/8" interest—have sometimes been interpreted to mean that the drafter intended the recipient to receive that percentage of the full royalty (assumed at that time to be 1/8), creating a royalty that floats with market conditions. In other contexts, courts have read these documents to suggest that two fractions should be multiplied to create a single, fixed royalty that does not change, regardless of later market conditions.

The Court's opinion contains an extensive discussion of how courts have grappled with this problem, as well as the rules of construction that should be applied. The Court cautioned against a mechanical approach, emphasizing that the larger context of the document can shed more light on the drafter's intent.

Here, the Court ultimately concluded that the intent was to give each heir a 1/3 interest that floated with the prevailing royalty. The Court placed special emphasis on a different section of the document, which conditionally gave each heir an equal 1/3 interest in the proceeds of any assignments of the royalty interest that Ethel might make during her lifetime. Although this clause about what might happen during her lifetime was not triggered (because the royalty interests stayed in the estate), the Court noted that this was still probative of Ethel's intent for how to divide royalties after her death.

Given that context, the Court holds that each of the original heirs was devised an equal, floating 1/3 interest in whatever royalty is later negotiated, not merely a fixed 1/24 royalty.

Tags: Order Lists