With today’s order list, the Texas Supreme Court issued three per curiam decisions and granted review in six new cases that will be heard at oral argument in March.
The trend continues. There are still no dissenting or concurring opinions on the merits this term at the Texas Supreme Court. And another Justice notes her disagreement by a simple notation in the order list rather than penning a separate opinion.
Today’s notation of disagreement on rehearing
Today’s order list denied rehearing in Metro Allied Insurance Agency, Inc. v. Shiche E. Lin, No. 07-1032 (more info).
This was a case about the proof of “producing cause” needed under the DTPA. In a per curiam in December, the Texas Supreme Court reversed the judgment and ordered the trial court to render judgment for the defendant. I wrote about it here.
Today, the Court denied a motion for rehearing. But the order list states:
Justice O’Neill would remand in the interest of justice.
Unpacking that, I understand that notation to suggest that she would have left open the possibility of a new trial under the new standard announced by the Court.
Preserving error in a juvenile-justice appeal
In re R.D., No. 09-0343 (per curiam)
Those who follow the Texas court system closely know that juvenile-justice cases are treated as civil matters rather than purely criminal matters. What you might not have realized (I didn’t until today) is this characterization of these cases as civil matters even includes some questions about error preservation in the trial court.
In this appeal, the Texas Supreme Court had to decide whether a juvenile’s motion for new trial was sufficient to preserve an error about a specific affirmative defense.
The court of appeals had held that this error was waived because it was not mentioned in the motion for rehearing. Here is the Texas Supreme Court’s summary:
R.D. filed a motion for new trial generally challenging the sufficiency of the evidence to support the jury’s verdict, and complaining specifically of the deadly-weapon finding supporting the “aggravated” status of the offense. R.D.’s motion did not specifically challenge the evidentiary basis for the jury’s rejection of his affirmative defense of duress, causing the court of appeals to conclude that the issue was waived on appeal. Because the jury’s delinquency finding subsumed its rejection of R.D.’s affirmative defense, however, we hold that R.D.’s new trial motion was sufficient to preserve error.
The Court remanded the appeal back down to the court of appeals so that it could reach the merits.
Remand for findings of fact by the trial court about a new issue that arose during the appeal
Gallagher Headquarters Ranch Development, Ltd. v. City of San Antonio, No. 08-0773 (per curiam) (more info)
In a somewhat unusual order, the Texas Supreme Court today abated an appeal and remanded it to the trial court for more findings of fact, so that the Court could then reach the merits.
The dispute is whether a broad settlement agreement reached between these parties while this appeal was pending is broad enough to also include this case. The parties do not agree about how to interpret that settlement contract.
The Court issued an opinion explaining its order and giving the trial court until May 3, 2010 to finish its proceedings and “prepare findings of fact.”
Elements of the Whistleblower Act are jurisdictional
Galveston Independent School Dist. v. Jaco, No. 09-0195 (per curiam) (Guzman, J., not sitting)
The court of appeals had held that the elements of the Texas Whistleblower Act were not jurisdictional. The Texas Supreme Court reversed and remanded for the court to consider the analysis in its more recent decision State v. Lueck, 290 S.W.3d 876, 883 (Tex. 2009), which held that those elements were jurisdictional.
Six new petitions granted
The Court also set the following cases for its March argument calendar, including the challenge to the Texas “pole tax” admission charge on alcohol-serving clubs with nude dancing:
The University of Texas at El Paso v. Alfredo Herrera, No. 08-1049 [more info] Set for argument on March 25, 2010 at St. Mary’s University School of Law (San Antonio)
Bic Pen Corp. v. Janace M. Carter, No. 09-0039 [more info] Set for argument on March 23, 2010
MCI Sales and Service, Inc., at al. v. James Hinton, et al., No. 09-0048 [more info] Set for argument on March 24, 2010
Sharyland Water Supply Corp. v. City of Alton, et al., No. 09-0223 [more info] Set for argument on March 24, 2010
Stockton v. Offenbach, M.D., No. 09-0446 [more info] Set for argument on March 25, 2010 at St. Mary’s University School of Law (San Antonio)
Susan Combs, Comptroller of Public Accounts v. Texas Entertainment Association, Inc. and Karpod, Inc., No. 09-0223 [more info] Set for argument on March 25, 2010 at St. Mary’s University School of Law (San Antonio)