With this week’s orders list, the Texas Supreme Court issued opinions in three cases, one of which was a per curiam opinion. The Court also chose two cases for oral argument this October.

Opinions

What is the effect of a remand for a new judgment to be entered?

If this case name looks familiar, it may be because you’re remembering its earlier visit to the Texas Supreme Court as BENNY P. PHILLIPS, M.D. v. DALE BRAMLETT, INDIVIDUALLY AND AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF VICKI BRAMLETT, DECEASED..., No. 07-0522 .

In that case, the Court remanded for entry of a new judgment with a lower damages figure. The trial court did so, but its award calculated post-judgment interest from the new judgment date on remand rather than the original judgment date. The Bramletts filed an appeal (to the court of appeals) and a mandamus (directly to the Texas Supreme Court). The Texas Supreme Court declined the mandamus while the appeal continued.

The court of appeals disagreed with the trial court, concluding that interest should have been calculated based on the original judgment.

Then Phillips filed a petition for review. With today’s decision, the Texas Supreme Court holds that interest should have been computed based on the original judgment:

For purposes of the present case, we need not (and do not) decide whether postjudgment interest runs from the date of the original judgment in every remanded case, or particularly in cases in which the trial court is required to conduct a new trial or other evidentiary proceeding before entering the remand judgment. Here, we remanded the case for the trial court to enter judgment in accordance with our opinion, and the trial court was not required to admit or consider any additional evidence before entering its remand judgment.

[Thus,] the date the trial court entered the original judgment is the “date the judgment is rendered,” and postjudgment interest began to accrue and must be calculated as of that date.

Also interesting to appellate lawyers is the Court’s extensive discussion of the effect of a remand on a lower court’s power. The Court makes clear that the mandate did not limit the trial court’s formal “jurisdiction”, but it did limit its “authority” to make certain decision. In other words, it narrowed the range of options the trial court could take without committing reversible error.

Because the trial court’s mistake was not jurisdictional in nature, the court of appeals had power to review whether this second judgment computed interest correctly, and (in turn) the Texas Supreme Court had authority to affirm that aspect of its decision.

Does the “sale for resale” tax exemption apply to the fulfillment of government contracts?

I suppose this is one way to (ever so slightly) bring down the cost of federal health programs. The opinion issued in these two consolidated cases holds that the Texas subcontractors of those federal health services are largely exempt from paying sales tax on goods and services that they use fulfilling that contract.

Texas has an exemption for sales tax for items that a business purchases for resale, on the logic that the eventual purchaser will pay sales tax on the whole price (including those component costs).

The twist here is that the ultimate “purchaser” in the chain is the federal government, administering some health-care programs. Needless to say, the federal government does not pay sales tax to the state — so the services being provided are non-taxable services.

In 1975, the Texas Supreme Court held that similar items purchased to fulfill a federal contract for ammunition were exempt from sales tax because of a provision that formal title to the goods transferred on purchase. Day & Zimmerman v. Calvert, 519 S.W.2d 106 (Tex. 1975). The Comptroller argued that Day & Zimmerman was distinguishable (as being about goods, not services) and that it no longer applied due to changes to the tax statutes.

The Court concluded that none of these changes spoke specifically enough to this unusual situation to “abrogate” the Court’s earlier Day & Zimmerman opinion. Accordingly, until the statutes are changed more explicitly, the firms are entitled to sales tax refunds.

The broad workers compensation bar can apply to government “employees” hired through a contractor

This case is an application of PORT ELEVATOR-BROWNSVILLE, L.L.C. v. ROGELIO CASADOS AND RAFAELA CASADOS, INDIVIDUALLY AND AS REPRESENTATIVES OF THE ESTATE OF THEIR SON, RAFAEL CASADOS, No. 10-0523 , which held that the bar against lawsuits created by a firm’s Workers Compensation enrollment applied to a firm’s temporary workers — even if the firm had not paid for them to have that coverage.

The wrinkle here is that the third-party employee worked for a government contractor, who in turn billed his hours to the city. In the court of appeals, the dispute was whether he was covered by the specific terms of the workers compensation coverage obtained by the city.

Applying Casados, the Supreme Court says that was the wrong question. Instead of coverage breadth, what matters is whether the plaintiff was an employee — “the undisputed evidence does establish as a matter of law that the City controlled the details of Johnson’s work and, thus, that Johnson was its employee.” As such, he falls within the reach of the Workers Compensation Act provision and his only recourse was through workers compensation, not through a separate tort suit.

Grants

Good-faith belief of the Whistleblower Act

TEXAS DEPARTMENT OF HUMAN SERVICES v. OLIVER OKOLI, No. 10-0567

Set to be argued on October 9, 2013

Before being granted, this had been the longest-pending case at the merits-briefing stage, with its reply brief on the merits filed in March 2011.

The issues involve some fine-grained parsing of the Whistleblower Act, involving whether a complaint made to a supervisor of alleged fraud qualified as a report to an appropriate law-enforcement authority about a violation of law.

Because the general subject matter overlaps with some other recent cases about the Whistleblower Act, the long time this petition was pending might have been a “hold” (to see if those other cases resolved the issue) that turned into a failed attempt at a per curiam. Whatever the reason, four Justices eventually decided the issues warranted oral argument.

Beachfront takings

This is another case about whether the Texas General Land Office has taken land along a beachfront without compensation by moving the line at which the public has an easement for access. I can’t adequately summarize the details here, so if you’re interested, you should take a look at the briefs.

I’ll note two things: