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

Category: 'News and Links'

Briefs for today’s oral argument about mail-in voting

May 20th, 2020 · Comments Off on Briefs for today’s oral argument about mail-in voting

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.1 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:

Attempted intervenors

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.

Amicus groups

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.

  1. The related case, not technically being argued today, is docket 20-0401, which challenges a district court’s entry of a temporary injunction against the Attorney General. The Court has granted a stay in that case and has just requested a response, which is not due until Thursday (one day after this argument). 

Tags: Case Notes · News and Links

SCOTX resources you may want while the Court website is down

May 14th, 2020 · Comments Off on SCOTX resources you may want while the Court website is down

With the official Texas court websites down for the time being after a ransomware attack, you may be landing on this blog looking for information about an ongoing appeal or about one of the Texas Supreme Court’s recent opinions.

Recent opinions

The good news is that this website hosts its own copy of the Texas Supreme Court’s PDF opinion releases, going back to the 2004 term. I’ll be keeping them current during this outage.

If you are looking for recent opinions from this Term, those are collected together on this page. If you’d like to see recent opinions organized a different way, you can do that through this chart.

If you want to find a specific older opinion from the Texas Supreme Court, I recommend you use the search box at the top right of this page to locate that case in my system. This particular search box only works by case name or docket number.

At least on a temporary basis, the Texas courts are publishing a list of (nearly all?) new appellate opinions on this page.

Recent orders lists

My version of the Texas Supreme Court’s Friday orders is available at this link. Beginning with the May 8, 2020 orders, I’ll be entering the key items by hand, so my list might take a short while to be updated each Friday.

I make previous sets of orders available through this Calendar of Orders page, which lets you navigate back to October 2003.

The Court is (temporarily at least) also publishing PDF versions of its released orders on this page.

Docket pages

My mirrored copy of the Court’s docket was current through May 7. I’m working on a way to more reliably update my database with key case events since then. But for now, I would advise caution. The entries that are there, are there. But you should not assume that the lack of a docket entry on my website means there has been no activity on the Court’s internal system.

Newly filed cases – still an open question

One open question is how to track newly filed cases — such as short-fuse mandamus petitions that might have been filed after the official websites shut down on May 8. I’m working on a way to add those to my system, but (for now) they might only show up as docket pages on my site after the Court issues its first public order or opinion mentioning the case.

If this turns out to be a fairly short outage, that will work itself out. If the outage is longer — as the new cases start to become a bigger share of the docket — I will need to find a better way to track newly filed cases.

Tags: News and Links

SCOTX again clears its docket of argued cases

July 1st, 2018 · Comments Off on SCOTX again clears its docket of argued cases

With this past week’s orders, the Texas Supreme Court finished issuing opinions in the cases that were argued during its 2018 term. All the recent opinions are collected on this blog page.

This marks four years that the Court has met its target of clearing those argued cases from its docket by the end of June, roughly matching the U.S. Supreme Court calendar.

This week’s orders also look ahead to the fall, assigning specific argument dates to 30 cases that will be heard in September and October.1

Some early statistics

I try to keep my published statistics up-to-date throughout the year, but one of the Justices might have beaten me to it with some tweets on Friday morning.

My opinion totals, luckily for me, match those. I show 71 signed decisions and 29 per curiams, totaling 100.

There could be two wrinkles with my totals. First, I did decide to count the new decision on rehearing in USAA Texas Lloyds Company v. Gail Menchaca, No. 14-0721 with this new term. The Court granted rehearing, wrote a substantially different opinion, and changed its voting alignment. For my purposes at least, that’s a new decision. So, it comes off the books for 2017 and goes onto the books for 2018.

Second, I also decided to treat USAA Texas Lloyds v. Menchaca as a plurality, rather than a majority.2 I’m not sure how the official statistics, when they’re issued, will classify this case. Although there are parts of the lead opinion that gathered more than four signatories, only three justices joined the opinion’s rationale for the judgment of remand. That feels like a plurality to me.

By my count, that makes two pluralities this term. The other was issued just this past Friday. In Amanda Bradshaw v. Barney Samuel Bradshaw, No. 16-0328 , the five justices who voted for the judgment did not agree on the rationale.

And if you’re looking for a sneak peak at my voting tables showing how the Texas Supreme Court Justices vote with or against each other, the online version of that chart now covers all the opinions through June 2018. I haven’t yet had time to really analyze this term’s patterns. But if you want to explore the rare disagreements between some justices, or rare agreement between others, you can click through to see which specific opinions led to these totals.

  1. The list of those granted cases is available on this blog page, and the fall calendar begins on this page
  2. My opinion chart for the term now breaks majorities and pluralities into separate columns. 

Tags: News and Links

State of the Texas Judiciary 2015

February 20th, 2015 · Comments Off on State of the Texas Judiciary 2015

On Wednesday, Chief Justice Hecht delivered his first “State of the Judiciary” address to the Texas Legislature. The State Bar has a page on storify collecting some photos and tweets.

I wasn’t able to live tweet this year, or even to watch live. But I’ve had a chance to watch the video and wanted to pass along the highlights.

Statutory interpretation

The speech began with a subject of occasional tension between the branches: statutory interpretation. (The debate about the role of “text” versus “legislative intent” is a long one, and one that understandably looks different to the legislator whose unspoken intent may not be reflected well in the text.)

Read more…

Tags: News and Links

Texas Supreme Court issues temporary order stopping same-sex marriage licenses in Austin

February 19th, 2015 · Comments Off on Texas Supreme Court issues temporary order stopping same-sex marriage licenses in Austin

Some detail added on Thursday evening.

This week, two state judges in Travis County have issued orders indicating that Texas’s ban on same-sex marriage is unconstitutional, culminating in an order that permitted one license to be issued. (Here’s some collected coverage from KUT, our local NPR station.)

As that news story was blanketing local media this morning, the Texas attorney general was filing papers with the Texas Supreme Court requesting a stay of these Travis County rulings. The State’s motion was filed at 11:02am and asked the Court to issue immediate relief; I’ve uploaded a copy of the State’s motion. The Court issued a stay this afternoon, an order that the orders list document describes as granting the relief the AG has requested “in part.” Although the full text of the stay order is not (as I write this) yet on the Court’s website, you can get a sense of what “in part” means from the State’s request. The State requested the Court to stay both the temporary restraining order below and “all further state trial proceedings that seek to resolve the issues” of same-sex marriage or divorce. When we do see the order, I’d expect a formal stay of the order in this case but for the Court to stop short of actually “staying” other trial proceedings, some of which might not yet have been filed. [Update: Yes, here’s the stay order. It covers the specific restraining order below and does not mention other proceedings.]

There was speculation this afternoon about whether the marriage license already issued is valid. Chuck Lindell of the Statesman summarizes the AG’s press release about the stay, which suggests it is not:

My understanding, having now read the State’s motion for emergency relief, is that the AG has not yet requested a ruling on that question. (The State’s formal “petition,” which is not yet online, might request broader relief.)

As a legal matter, this subtlety about whether the license was “void”, or merely issued in error, has implications for whether it can be challenged after-the-fact, and perhaps by whom. That same question is deeply entangled with the AG’s attempt to intervene in a 2010 case in which a different Travis County judge issued a same-sex divorce decree. That set of appeals is still pending; the State argues in its filings today that the Court should freeze these new Travis County orders at least until that prior appeal is disposed.

Those merits decisions have been slowed down by, presumably, the Texas Supreme Court waiting on some relevant US Supreme Court cases to first be resolved. (The three petitions are among the oldest pending cases at the Court.) With the US Supreme Court now expected to issue its next ruling on same-sex marriage by the end of June, I would expect the Texas Supreme Court to wait to see the outcome before deciding this issue with finality. We may, or may not, from the Fifth Circuit in the meantime.


Because the State is challenging two distinct orders, there are two docket numbers in the Court.

  • In re State of Texas, No. 15-0135 : On Tuesday, the State filed a petition asking the Court to stay the first, more general order from a Travis County judge declaring Texas’s ban on same-sex marriages to be facially unconstitutional. Today, the Supreme Court granted that requested stay in full.

  • In re State of Texas, No. 15-0139 : The second petition was filed Thursday morning, about two hours after a Travis County court issued a restraining order demanding the county clerk issue one specific marriage license. The Texas Supreme Court granted the stay request only “in part.” You can read the State’s motion for emergency relief to get a sense of the issues. As a bonus, that motion attaches most of the trial court filings from earlier today. I’ll post the text of the stay order when available.

Tags: News and Links

Admissibility of seat-belt evidence in accident cases; Insurance coverage for the BP oil spill [Feb. 13, 2015]

February 13th, 2015 · Comments Off on Admissibility of seat-belt evidence in accident cases; Insurance coverage for the BP oil spill [Feb. 13, 2015]

With today’s orders list, the Texas Supreme Court issued opinions in two cases. It did not choose any new cases for review.


Evidence about seat-belt use is now admissible in auto accident cases

In 1974, the Court ruled that evidence about whether a car’s occupant was wearing a seat belt was not admissible in an auto-accident case. Carnation Co. v. Wong, 516 S.W.2d 116 (Tex. 1974). Today, the Court overrules that decision.

It explained that the legal background motivating that rule had changed. First, Texas no longer has a contributory-negligence system, under which a plaintiff could be absolutely barred from recovery if they were even the slightest degree negligent. It now has a system of comparative negligence, with a plaintiff’s recovery merely reduced by the percentage of their own fault — unless that fault exceed 50%.1

Second, the Court noted that mandatory seat-belt laws began, and became more strict, after its 1974 ruling. Given that change, the Court referred to its prior holding as “a vestige of a bygone legal system and an oddity in light of modern societal norms.”

The Court rejected the argument that intervening statutes had, implicitly through silence, approved the blanket rule against the admission of seatbelt evidence. In 1985, while approving Texas’s first mandatory-seatbelt law, the Legislature had passed a prohibition on the admission of evidence about seatbelt use that was even broader than the Court’s. But in 2003, the Legislature repealed that provision while making other changes. The Court saw this repeal — without adding other language about the seat-belt question — as the Legislature choosing for its part to be silent. Thus, the Court rejected the argument that the Legislature had weighed in either way.

The Court holds that normal rules of evidence should apply, leaving the details to be sorted out in the usual way:

Today’s holding opens the door to a category of evidence that has never been part of our negligence cases, but we need not lay down a treatise on how and when such evidence should be admitted. Seat-belt evidence has been unique only in that it has been categorically prohibited in negligence cases. With that prohibition lifted, our rules of evidence include everything necessary to handle the admissibility of seat-belt evidence. As with any evidence, seat-belt evidence is admissible only if it is relevant. … The defendant can establish the relevance of seat-belt nonuse only with evidence that nonuse caused or contributed to cause the plaintiff’s injuries. And the trial court should first consider this evidence, for the purpose of making its relevance determination, outside the presence of the jury. … Expert testimony will often be required to establish relevance, but we decline to say it will be required in all cases. And, of course, like any other evidence, even relevant seat-belt evidence is subject to objection and exclusion under Rule 403.

The Court also considered how this should be handled for children who are not wearing seat belts, concluding that it can be proper for a jury to consider both whether an adult in the car bears some responsibility for that injury, as well as whether the child was acting as would an “ordinarily prudent child of [the same] age, intelligence, experience and capacity.”

And the Court addressed whether the jury should be asked who caused the accident (what the Court calls “occurrence-causing conduct) and then asked separately who caused each person’s injury (“injury-causing conduct”). The Court said no, that both kinds of fault should be folded into a single apportionment question. “There is nothing about injury-causing conduct that renders it incompatible with being considered alongside occurrence-causing conduct in one responsibility apportionment for the harm suffered by the plaintiff.”

  1. The facts involve a collision in which multiple passengers were ejected from a car, including children, and there is conflicting evidence about which adults or children were wearing seatbelts. Even without hearing evidence of seat-belt use, the jury assessed fault for the accident as being 51% to the trucking company and 49% to the family-car driver. Even with the reduction, the family’s award here was $2.3 million. 


BP does not have insurance coverage as an "additional insured" under the policy purchased by Transocean

In 2010, a drilling rig owned by Transocean and developed by BP exploded in the Gulf of Mexico, leading to months of subsurface oil leakage, damage to coastal communities and industries, and other serious claims. In the parties’ drilling contract, Transocean was to be responsible for above-surface pollution risks while BP was to be responsible for subsurface pollution risks. Another provision of the contract required Transocean to provide "additional insured" protection to BP.

BP sued over the scope of this "additional insured" coverage, arguing that Transocean’s insurers must cover BP’s losses, regardless whether the specific cause was above or below the surface.

The Fifth Circuit originally ruled in favor of BP, concluding that the insurance policy itself did not limit the scope of coverage afforded to BP and that, under EVANSTON INSURANCE COMPANY v. ATOFINA PETROCHEMICALS, INC., No. 03-0647, it should not look beyond the text of that document to find a limitation to coverage. On rehearing, however, the Fifth Circuit withdrew its opinion and chose to certify this question to the Texas Supreme Court to authoritatively address two questions under Texas law:

  1. Does ATOFINA compel a finding that BP is covered for these damages?

  2. Does the doctrine of contra proferentem (that is, construing a contract against the person who drafted it) apply even in a sophisticated commercial context?

The Texas Supreme Court reached the opposite result, basing its decision on a less restrictive reading of ATOFINA, one that is compatible with the idea that an insurance policy can effectively “incorporate” another document needed to understand its scope:

Texas law has long allowed insurance policies to incorporate other documents by reference, and policy language dictates the extent to which another document is so incorporated. The policies here provide additional-insured coverage automatically where required and as obligated by written contract in which an insured has agreed to assume the tort liability of another party. Because BP is not named as an insured in the Transocean policies or any certificates of insurance, the insurance policies direct us to the additional-insured provision in the Drilling Contract to determine the existence and scope of coverage. Applying the only reasonable construction of that provision, we conclude that, as it pertains to the damages at issue, BP is an additional insured under the Transocean policies only to the extent of the liability Transocean assumed for above-surface pollution.

Having concluded that BP is covered by Transocean’s policies only to the extent that the drilling contract required, the Court answered the first question no, that there is no coverage.

The Court did not reach the second question about the contra preferentum doctrine because that rule applies only to ambiguous text, and it saw no ambiguity here.

Tags: News and Links · Order Lists

Four opinions, no grants [Feb. 6, 2015]

February 6th, 2015 · Comments Off on Four opinions, no grants [Feb. 6, 2015]

With today’s orders list, the Court issued signed opinions in two cases, issued two per curiams, and did not grant any new cases for review.

Lack of consent is part of the definition of trespass, not an affirmative defense

A farming company (FPL) got into a dispute with an environmental-wastewater company (EPS) that was injecting wastewater into the deep subsurface where it, allegedly, ended up beneath FPL's property. The farming company sued the enviornmental-wastewater company for trespass, that trespass taking place in the deep subsurface water table beneath its land.

If that scenario sounds familiar, it may be because this case is making its second visit to the Texas Supreme Court. In 2011

This case is making its second visit to the Supreme Court. The first time, the court of appeals held that the farming company could not sue for trespass because the State regulator had issued a permit. The Texas Supreme Court reversed, holding that the permit was not a bar to civil liability. FPL FARMING LTD. v. ENVIRONMENTAL PROCESSING SYSTEMS, L.C., No. 09-1010

On remand, the court of appeals ruled that the farming company should get a new trial. Part of its reasoning was that the jury charge was defective because it required the plaintiff farming company to prove a lack of consent to recover for trespass. In the court of appeals’s holding, that was an affirmative defense on which the defendant should have had the burden to establish the presence of consent.

With this opinion, the Texas Supreme Court disagreed. It surveyed a line of its own cases, going back to the days of the Republic, which described consent as part of the definition of trespass itself. Responding to FPL’s citation to some courts of appeals that used the term “affirmative defense” to describe the question of consent, the Court suggested that may have been discussing just the general concept that a defendant who did prove consent would defeat the claim, no matter whose burden of proof it actually way. As such, those courts may have “perhaps hastily used the term ‘affirmative defense’ to describe this proposition.” (The Court also notes that “[t]here is no pattern jury charge for a trespass to real property cause of action in Texas.” One suspects that might change.)

Having held that a plaintiff in a trespass claim does bear the burden to prove the lack of consent, the Court concluded that the jury charge here was not erroneous. Because this part of the Court’s decision was sufficient for the defendant to prevail, and because the Court was rendering judgment rather than sending the case back for a new trial, the Court saw no need in this case to reach the broader question of whether Texas law imposes a duty on a landowner to avoid causing this kind of “deep subsurface wastewater migration” beneath neighboring land.


Making a UDJA claim to stave off foreclosure can subject you to paying the lender’s attorney’s fees

When Wells Fargo began a foreclosure process on a home-equity loan, this homeowner fought by back filing what the Court calls a “separate and original proceeding” (a phrase that will come into play in its reasoning). In that separate suit, the homeowners sought injunctive relief, asserted fraud claims, and sought relief under the UDJA. Wells Fargo, in response, sought its own declaration and asked for attorney’s fees under the UDJA.

The trial court ultimately ruled for Wells Fargo and awarded it attorney’s fees under the UDJA. The homeowners appealed, arguing that Wells Fargo did not assert a valid declaratory claim. The court of appeals agreed — but to strike down the fees, it had to go a step further. Either side can recover under the UDJA, so to reverse the award, the court of appeals also had to determine whether the homeowners had a valid UDJA claim. It concluded that neither side had a valid UDJA claim and, thus, that there was no basis for a fee award.

The Supreme Court reversed. On the procedural question, it ruled that the homeowners' challenge to the award was fatally incomplete. Because they had not challenged whether his own UDJA claim was valid, the court of appeals could not reach that question sua sponte. And, thus, the basis for the court of appeals’s ruling was invalid.

That led to a constitutional question: Can a lender recover attorney’s fees in this situation, consistent with Texas’s constitutional provisions about home-equity lending?

The Court held that the key was that this was a “separate and original proceeding.” Rather than defending the lender’s original suit (in which, the Court suggests, no fees would have been available), the homeowners filed this separate proceeding.


Objecting to a trial court’s pretrial sanction order can preserve error against an eventual spoliation instruction

This is a negligent-spoliation case. After a contested hearing before trial, the district court ordered that a spoliation instruction would be given to the jury. When it came time to approve the jury charge, however, the defendant did not renew this objection. The court of appeals held that this waived any complaint about spoliation.

The Supreme Court disagreed. It held that the objections made before trial were clear enough, and clearly enough ruled upon, that the question of whether some spoliation question was proper had been adequately preserved. (It noted that there was no challenge here to the precise wording of the instruction, a challenge that might have required a different type of objection or ruling.)

Moving a police car to point its headlights into oncoming traffic is a “use” of property for which immunity is waived

The plaintiff contends that a car accident was caused by the headlights of a police car, which was at the time being moved and was facing oncoming traffic. The County invoked sovereign immunity. The question on appeal is whether this situation withs within the “use of property” exception in the Texas Tort Claims Act.

The Supreme Court held that it does fit the exception and, thus, that a waiver of sovereign immunity had been pleaded. The key fact turned out to be that, in this case, the police car was being operated (“relocat[ed]”) at the time of the accident.

The County argued that an accident caused by headlights alone could not fit within the waiver, citing a Houston case from 2007 in which that court found immunity against an accident claimed to have been caused by a parked police car with its emergency lights activated. Texas DPS v. Grisham, 232 S.W.3d 822 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The driver in that case claimed the accident was caused by the fact that they had to change lanes to comply with state law. That court of appeals, however, held that the police car in question was not in “use” merely by virtue of being parked with its emergency lights on.

In this case, the Supreme Court was expressly careful not to either approve or disapprove the holding of Grisham. (“Although we express no opinion as to the substance of the Grisham panel’s analysis, we decline to follow its reasoning here.”). That may be a question for another day.

To decide this case, the Supreme Court chose merely to distinguish Grisham, noting that the police car here was unquestioningly being operated at the time. This was not a parked car, it was a car in motion.

The Court also rejected the County’s argument that the accident was caused by the “illegal conduct” of the driver, an illegality based on the Transportation Code requirement to change lanes or reduce speed when approaching a parked emergency vehicle. This car, it noted, was not parked. And the ultimate effect of such a finding would, the Court noted, be merely to reduce proportionate responsibility; there is not a general bar to suit based on “illegal conduct.”

Tags: News and Links

Dallas is hosting the AJEI conference later this month

November 3rd, 2014 · Comments Off on Dallas is hosting the AJEI conference later this month

This year’s AJEI (Appellate Judges Education Institute) is being held in Dallas from November 13-16. If you’re in the area, you should see if part of the program works with your schedule. (If you’re already planning to attend, then please say hello if you see me wandering the halls).

The program lineup gives you a sense of the range of topics. This is a national event, and the centerpiece Saturday event is a two-hour program with Justice Scalia and Bryan Garner. The program also has some Texas Supreme Court flavor, including former Chief Justice Wallace Jefferson, current Chief Justice Nathan Hecht, former Justice Scott Brister, former Justice (now federal judge) Xavier Rodriguez, and former Chief Justice Wallace Jefferson (who is indeed speaking twice).

I’ll be moderating a breakout panel about electronic briefing on Friday morning, with Judge Stephen Higginson of the Fifth Circuit, Justice Virginia Linder of the Oregon Supreme Court, and Kevin Newsom of Bradley Arant Boult Cummings LLP.

Tags: News and Links