With the Texas appellate websites still down, I wanted to provide a blog post that collects in one place all the filings in the case being argued today in the Texas Supreme Court about mail-in voting, and, specifically, what flexibility the statute permits county officials in determining “disability” in light of the coronavirus.
There are two currently pending cases in the Texas Supreme Court on this topic, only one of which is (technically) set for argument today. Today’s case is docket 20-0394, which is the Attorney General’s request for a writ of mandamus from the Texas Supreme Court directly compelling various county officials to act.
These briefs are arranged in the spirit of “You can’t tell the players without a program.”
The party seeking relief in the Mandamus Petition is “The State of Texas,” being represented by the Attorney General.
The AG also filed a short letter about the federal case in which an injunction was issued yesterday.
Real parties in interest
The AG brings this action against five county officials, each of whom has filed a response to the mandamus petition:
Two sets of groups have sought to “intervene” in the case. (Normally, this type of intervention might happen in a district court, but the AG brought this action in a way that bypassed the district court.)
The proposed intervenors also filed this joint mandamus response brief addressing the merits of the case.
The State filed a brief opposing these interventions. The Court has stated that it will treat these filings as being amicus curiae submissions rather than a formal intervention.
Various groups and individuals have filed amicus briefs in this case. They include (as of the time of this blog post):
Argument day itself
The official submission schedule indicates that the State’s side will be argued by the Solicitor General, Kyle Hawkins.
The county officials will be represented by three attorneys. It appears from the submission forms that the lead role will be taken by Scott Brister, who is representing Harris County. He has also submitted a set of bench exhibits for the Court’s reference during the argument.
Travis County will be represented at argument by Sherine E. Thompson. Dallas County will be represented by Barbara S. Nichols.
On Tuesday, the Texas Supreme Court issued an orders list in the afternoon, choosing three new cases for oral argument. The unusual timing is explained by the argument date chosen: February 10th. By issuing this mid-week order, the Court gives the parties the minimum 21 days notice that the rules expect for oral arguments.
now begins some idle speculation about the calendar…
The Court’s calendar shows the next private conference of the Justices is on February 16-17, 2016. And it shows the next argument sitting as March 8-10, 2016, with no cases yet assigned to those dates. Doing a little math… we might expect some grants to be announced on February 16th, to be argued on March 9th or March 10th.
Of course, the Court can adjust its calendar as it sees fit. But those counsel whose fully-briefed petitions are up for conference in February might want to keep some flexibility in their March calendars.
Cases set for oral argument
Untangling some issues related to individual and corporate standing
Linegar sued DLA Piper for a variety of claims, including fraud and legal malpractice, related to a business deal that went terribly wrong. The jury found in his favor. DLA Piper argues that Linegar actually lacks standing to bring these claims because the funds he lost were held in a corporate retirement account by Zaychan (a company Linegar) owns. According to DLA Piper, only Zaychan would have standing to bring suit. The court of appeals agreed with DLA Piper, dismissing the case for want of jurisdiction.
Linegar's petition argues that DLA Piper owed duties directly to him, and that he was "personally aggrieved" enough to satisfy the threshold for jurisdictional standing. Because this was Linegar's retirement account, he argues, only he was injured. He is not seeking to recover derivatively for corporate injuries.
The Court has granted the petition for review and set the case for argument in February. If that schedule holds, the Court should announce its decision by summer.
How early in the condemnation process can governmental immunity be invoked?
This dispute between two local governments has reached the Supreme Court on a fast track. The question relates to a very early step of the condemnation process: the court appointing special commissioners to make an initial evaluation of property value.
When Tarrant Regional Water District (TRWD) filed suit to condemn some land for a pipeline easement across land held by another local entity (Lazy W District No. 1), a plea to the jurisdiction was filed immediately, even before appointment of the special commissioners. The trial court declined to move forward until it could first resolve the question raised by the plea, whether it had subject-matter jurisdiction at all. At TRWD's request, the court of appeals granted mandamus relief ordering that the appointments be made immediately. Lazy W petitioned the Supreme Court, which issued a stay freezing proceedings below. It has now scheduled the petition for oral argument.
What litigation conduct will waive a mandatory forum-selection clause?
This is a dispute between Nationwide and one of its agents. The contract contained a mandatory forum-selection clause choosing Ohio (its corporate home) as the place where any suit should be filed.
In 2012, this lawsuit was filed. During 2013 and 2014, Nationwide filed a series of special exceptions, along with a motions to dismiss under Rule 91a and a motion for summary judgment. The trial court focused on the pleading issued, giving the plaintiffs an opportunity to amend, without disposing of any claims on the merits. In 2014, Nationwide conducted some limited amount of discovery. In 2015, Nationwide filed a motion to enforce the forum-selection clause. The trial court denied that request, concluding that Nationwide had substantially invoked the Texas court system. Nationwide has sought review by petition for mandamus, urging that the Texas case be dismissed.
The Texas Supreme Court has scheduled the petition for oral argument.
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.
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.
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.
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.
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.
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?
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:
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?
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?
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
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.
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