In today’s orders, the Texas Supreme Court decided eight cases and set three others for argument. The list included one of the longest-pending cases on the Court’s docket, another 5-4 decision, and four per curiam decisions (including one issued only one week after the filing of the petition — yes, an elections case).

In addition to setting three new cases for oral argument in April, the Court also consolidated its calendar. It moved the only case it had previous scheduled for its February 26th–28th argument sitting back to that April sitting.

Because of the number of orders, I have divided this into three posts. This first post covers the four per curiam decisions in detail. Another post (in a few minutes) will cover the decisions in the four argued cases. A third post will offer details about the three new cases set for argument.

The Four Per Curiam Decisions

  • Living Centers of Texas, Inc. v. Penalver, No. 06‑0929 Per Curiam Opinion The Texas Supreme Court examined a closing argument that “compared Living Centers’ lawyer’s attempts to minimize damages to a World War II German program in which elderly and infirm persons were used for medical experimentation and killed.” ((Here is the wikipedia entry about the particular Nazi program that was mentioned.)) The Court held this type of argument to not only be improper, but held that the effect of the argument was incurable (and thus need not have been the subject of a timely objection that might have led to a curing instruction):

    Incurable argument is, however, rare. Not all personally critical comments concerning opposing counsel are incurable. But arguments that strike at the courts’ impartiality, equality, and fairness inflict damage beyond the parties and the individual case under consideration if not corrected. Such arguments damage the judicial system itself by impairing the confidence which our citizens have in the system, and courts countenance very little tolerance of such arguments.

    The argument which Living Centers complains of struck at Living Centers and its trial counsel by comparing trial counsel to perpetrators of the T-4 Project atrocities. The T-4 Project was brought up only once during trial when, upon inquiry by the Peñalvers’ counsel, a witness testified that he was not familiar with the program. There was no evidence that Living Centers either intended to injure or kill Belia or that Living Centers performed medical experiments on her. … The Peñalvers’ improper comments were not inadvertent, and the jury argument was designed to incite passions of the jury and turn the jurors against defense counsel for doing what lawyers are ethically bound to do: advocate clients’ interests within the bounds of law. … The argument struck at the integrity of the courts by utilizing an argument that was improper, unsupported, and uninvited. Failure to deal harshly with this type of argument can only lead to its emulation and the entire judicial system will suffer as a result.

    After that discussion, it is no surprise that the Court reversed the judgment and remanded for a new trial.

  • Nueces County v. San Patricio County, No. 07‑0166. Per Curiam Opinion

    In this suit between two counties, the Texas Supreme Court explored the nature of the governmental immunity held by each, concluding that immunity ultimately barred this lawsuit. It rejected the court of appeals’s view that immunity only extended to authorized actions by a county:

    The court of appeals’ reasoning that Nueces County was not entitled to immunity because it acted beyond its governmental authority in taxing what turned out to be San Patricio’s land is additionally flawed to the extent it is based upon a line of cases holding that cities do not enjoy immunity from suit when they undertake “proprietary” rather than “governmental” functions. The court of appeals reasoned that, although counties are granted the power to assess taxes on their own land, they have no governmental authority to tax other counties’ land; when they do, they act beyond their governmental authority and thus outside sovereign immunity’s protections. However, as “involuntary agents of the state” without the power to serve the local interests of their residents, counties have no “proprietary” functions; all of their functions are “governmental” in nature.

    The Texas Supreme Court emphasized the role of immunity in preserving certain kinds of decisions for the Legislature in the first instance, rather than the courts:

    San Patricio County contends that allowing a money-damages suit against Nueces County under these circumstances is consistent with the policies supporting governmental immunity, insofar as the suit does not seek to divert Nueces County’s properly collected tax resources from their intended purpose; rather, Nueces County is itself the wrongful depletor of tax revenues which belong to San Patricio County. See Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002). However, we emphasized in City of Galveston that the “heavy presumption in favor of immunity” derives not just from principles related to separation of powers but from practical concerns: “In a world with increasingly complex webs of governmental units, the Legislature is better suited to make the distinctions, exceptions, and limitations that different situations require. The extent to which any particular city, county, port, municipal utility district, school district, or university should pay damages involves policy issues the Legislature is better able to balance.” City of Galveston, 217 S.W.3d at 469. That principle holds equally true here.

  • Warwick Towers Council of Co-Owners v. Park Warwick, L.P., No. 07‑0384. The Court held that an insurer, asserting its rights to subrogation, could perfect its own appeal by filing a notice of appeal in its insured’s name because that was a “bona fide attempt to appeal by filing the notice of appeal in the name of its insured, and by listing its interest in the docketing statement and other appellate pleadings.” Per Curiam Opinion

  • In re LaRhonda Torry, No. 08-0057. Just one week after the petition was filed, the Texas Supreme Court conditionally granted mandamus relief requiring the Chair of the Harris County Democratic Party (Birnberg) to place LaRhonda Torry’s name on the primary ballot. From the per curiam opinion:

    Birnberg does not contend that Torry has failed to satisfy the qualifications for office of state representative set forth in Article III, Section 7 of the Texas Constitution.[2] Nor does Birnberg contend that Torry’s application failed to comply with the applicable requirements of the Election Code. See TEX. ELEC. CODE §§ 141.031, 172.021. Birnberg further acknowledges that Torry paid the $750 filing fee before 6:00 p.m. on January 2, 2008, the deadline for applying for a place on the ballot. See id. § 172.023(a). We cannot locate, and Birnberg does not identify, any Election Code provision that authorizes a party chair to refuse to certify a candidate’s name for placement on the ballot on the basis of the candidate’s failure to designate a campaign treasurer with the Texas Ethics Commission. Nor does the Election Code authorize a party chair to insert additional certification requirements beyond those prescribed in the Election Code.

    Birnberg is correct that the Election Code requires a candidate for state representative to appoint a campaign treasurer and report that appointment to the Texas Ethics Commission. Id. §§ 252.001, 252.005(1)(A). Neither statute prescribes a penalty for a candidate’s noncompliance with those provisions. Birnberg is also correct in asserting that, pursuant to section 253.031(a), a candidate may not “knowingly accept a campaign contribution or make or authorize a campaign expenditure at a time when a campaign treasurer appointment for the candidate is not in effect” and that a violation of that provision is a Class A misdemeanor. Id. § 253.031(a), (f). Additionally, a candidate may not knowingly accept from a contributor in a reporting period a cash contribution that in the aggregate exceeds $100. Id. § 253.033(a). Assuming, without deciding, that Torry violated sections 253.031(a) and 253.033(a) of the Election Code in paying the filing fee, the Penal Code would provide for any appropriate penalty. The Election Code does not authorize Birnberg, as a county party chair, to prescribe his own penalty for a candidate’s failure to comply with any of these provisions.