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

Category: 'News and Links'

Four grants: disqualifying counsel; suing compounding pharmacies; government immunity × 2 [Oct. 24, 2014]

October 27th, 2014 · Comments Off on Four grants: disqualifying counsel; suing compounding pharmacies; government immunity × 2 [Oct. 24, 2014]

The Court had a two-day private conference before this weekly orders list, leading to orders in more than four dozen petitions. Four cases were ultimately chosen for oral argument in January. The remaining petitioners and relators were not so lucky. The Court has posted the list at a new location.

New Grants

These are the cases chosen for oral argument with this orders list:

Compounding pharmacies under the health-care-liability act

This is a claim against a compounding pharmacy based on an antioxidant supplement. The supplement was provided to a doctor's office, which then provided it to patients. The pharmacy argued that this was a health-care-liability claim and, accordingly, should be dismissed because no expert report was timely filed. The plaintiff argues that filling what the response calls a "bulk" order for these supplements is not filling a prescription and does not fit the statute.

Proof needed to raise a fact question on immunity

This is a suit against a government unit by the family of two girls who were killed by riptides near the Texas City Dike. There were signs posted elsewhere, but not where the accident took place. The City won a plea to the jurisdiction. The petition argues that there was a fact question on immunity, in part because the presence of warning signs at other nearby locations signaled awareness of the problem — or at least would permit a fact-finder to draw such an inference.

Disqualification of counsel for speaking to a former employee of the opposing party


legal ethics
Set to be argued on September 2, 2015

This mandamus petition concerns a trial court's order disqualifying counsel for gathering information from a high-ranking former employee of the opposing party who was involved both in the facts of the case and, as a financial manager, of overseeing paying the lawyers involved in the case.

The dispute involves whether the sort of disqualification that attaches when a law firm hires a legal-services professional like a paralegal from the other side should also attach when the firm gets information from an employee who was involved in a larger "litigation team." The petition urges that this would chill the informal fact-finding that trial counsel are permitted to do of former employees.

The Court granted rehearing of its previous denial of this mandamus petition and has set this case for oral argument.

Local government immunity from contract claims


Chosen for future argument by order issued October 24, 2014

The question is whether suit can be brought against the City for a contract alleged to have been entered in its proprietary (rather than governmental) capacity. The LCRA argues that this category of contract is not covered by immunity and that, if there were any doubt, it has also been waived by statute. The City argues that this proprietary-governmental distinction is inapplicable to contract claims and has also become unworkable in practice.

Tags: News and Links · Order Lists

My apologies for a bumpy road on the blog this week and next

October 19th, 2014 · Comments Off on My apologies for a bumpy road on the blog this week and next

This weekend, the Texas court system rolled out a new website design for the Texas Supreme Court. The old “” domain has been retired, with the Court’s information now folded into the larger “” domain that already handles the courts of appeals. The new page format is cleaner and more modern. It will be good for humans with taste.

The software scrapers that feed this blog are, unfortunately, still trained for the old website. I’ve shut down the scrapers for a short bit until I can re-train and re-test that software. That should freeze the data in place as things stand now.1

A compressed work schedule will prevent me from opening the code editor this week. My best estimate is that the blog will return to normal operation sometime the week of October 27th or the week of November 3rd.

Update 10:00am: Among the items that relocated were the Court’s previous slip opinions. Links that formerly went to a specific opinion now go to the Court’s main page.

I’ve written before about how entangled this blog is with my docket-tracking software. One side benefit is that, when there is some major change to the Court website, I can implement a change in one place and have the fix ripple through the blog archive. (This is not my first rodeo.)

Today’s payoff is this: I’ve written one quick fix for the opinion links in recent blog posts and some data tables. Those should now take you to my archived copy of the slip opinions, rather than to the Court website itself.2 This fix doesn’t make the scrapers any smarter. But it does make the blog a little more usable in the meantime.

  1. If you see some glitches that crept into the data pool before the shutdown — such as case names disappearing from old blog posts — those should naturally resolve themselves once the system is re-trained and the scrapers can reanalyze the pages. 
  2. This fix is not rolled out for posts older than mid-2012. The deeper archive can be fixed eventually, but not this morning. 

Tags: News and Links · SCOTXblog Announcements

A day for certified questions [Sep. 26, 2014]

September 26th, 2014 · Comments Off on A day for certified questions [Sep. 26, 2014]

It was a Fifth Circuit-focused day on the Texas Supreme Court orders list. The Court accepted one new certified question and scheduled another for oral argument.

Request denied for additional argument time

The other order of interest to practitioners might be the Court’s refusal to allow additional time for oral argument in Kcm Financial LLC, R.J. Sikes, Roger Sikes... v. Betty Lou Bradshaw, No. 13-0199 . The parties jointly made the request, suggesting that the facts suggested more than two “sides” and that each petitioner’s counsel thus needed 20 minutes of his own. (motion PDF). The Court decided, instead, to leave the parties with the original 20 minutes per side.

We don’t know how the Court would have reacted to a request for a more modest quantity of additional time, but this denial is a good point of reference the next time a client asks why you are not requesting more time for their case.

Issue Summaries

The Kroger case is set for argument on Dec. 9, 2014. As soon as the Court’s docket page notes that among the calendar entries, the case-status box below should also reflect it.

Does common language in a CGL policy have an ambiguity about coverage for product defects?

This suit grows from an unsatisfied customer of US Metals. Exxon bought and installed 350 pieces of drilling equipment (well neck flanges) but then later determined that they were the source of some problems, requiring the equipment — which had been installed by being welded in among other heavy equipment — to be removed at substantial cost, both in terms of raw expense and lost production during the time that the wells were not operating.

US Metals held a commercial general liability insurance policy that protected it against claims for "property damage" and "bodily injury."

But US Metals's insurer refused to cover the defense of this claim, citing certain exclusions related to damage caused by deficiencies related to "your [the insured's] product", as well as certain types of damage claims for "impaired property."

The Fifth Circuit has now asked the Texas Supreme Court to address, as a question of Texas law, whether two of the pivotal terms in the contract language defining this exclusion ("physical injury" and "replacement") are ambiguous and, if not, what they mean under Texas insurance law.

In making this request, the Fifth Circuit emphasized its view that this was a question of potentially broad importance:

The Texas Supreme Court’s interpretation of these terms will have far-reaching implications due to the commonality of these exclusions within CGL policies. As such, the answer to our certified questions will affect a large number of litigants. No Texas court or any other state or circuit court has determined whether the terms "physical injury" or "replacement" found within the "your property" and "impaired property" exclusions are ambiguous.

This legal point will now be briefed in the Texas Supreme Court, and the case will most likely be heard at oral argument next spring. You can read more details in the Fifth Circuit's opinion certifying the question.

What duty does an employer owe to an employee regarding a premises defect?


Set to be argued on December 9, 2014

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.

Tags: News and Links

The economic loss rule in Texas is more restrictive than the Restatement

June 23rd, 2014 · Comments Off on The economic loss rule in Texas is more restrictive than the Restatement

An architect on a commercial project was sued by a contractor on the project for their negligent work, which allegedly caused significant increased costs that the contractor could not recoup.

The key fact here turns out to be that the architect worked for the project owner, not the contractor. For that reason, the architect argued, Texas law does not permit the contractor to sue it for pure economic losses (those unconnected to some bodily harm or property damage) caused by its allegedly negligent work. The principle involved is the “economic loss rule.”

As the opinion explains, the economic loss rule aims to draw a clearer line to the edges of tort liability than offered by older principles such as “foreseeability.” While foreseeability can turn on idiosyncratic facts, the economic loss rule instead invites a court to announce broad policy determinations about whether tort liability should apply in a particular situation.

The Texas Supreme Court ultimately agreed with the architect and held that the architect had no liability for these economic losses suffered by a contractor relying on its plans. What makes this opinion notable — and ensures it will be frequently cited, despite its narrow holding — is the depth of its examination of the policies and principles behind the economic loss rule, both in terms of Texas law and the larger national academic discussion.

That extensive background sets the stage for the Court to announce a rule at odds with the Restatement. Some commentary in the Restatement addresses just this situation — an architect, whose plans inflict economic loss on others in the project. The Restatement suggests that an architect on a commercial project should expect exactly this degree of reliance from contractors bidding on the project and, thus, that it is appropriate to impose tort liability as the default rule and let the parties choose, if they wish, to modify that by contract.

A unanimous Texas Supreme Court disagreed. It viewed the policies behind the economic loss rule as better served by leaving this kind of liability among people engaged in the same economic transaction exclusively to the realm of contract law: “We think it more probable that a contractor will assume it must look to its agreement with the owner for damages if the project is not as represented or for any other breach. Though there remains the possibility that a contractor may not do so, we think the availability of contractual remedies must preclude tort recovery in the situation generally because … ‘clarity allows parties to do business on a surer footing’.”

To explain its thinking, the Court offered an excerpt from a 1992 law review article by Professor William Powers, an extensive block quote that may soon be a favorite example for those defending the practical value of the legal academy.1

The Court’s precise holding turns out to be narrow: That a general contractor cannot recover pure economic losses from an architect hired by the project’s owner. The implications for future contractors are clear enough: negotiate for contractual or insurance-based protection.

  1. This opinion extensively discusses academic publications by Professor Powers, Professor Fleming James, and Judge Posner, among others. 

Tags: News and Links

Upcoming event: “An evening with the Texas Supreme Court” on April 17, 2014 in Austin

April 11th, 2014 · Comments Off on Upcoming event: “An evening with the Texas Supreme Court” on April 17, 2014 in Austin

On Thursday April 17, the Civil Appellate Section of the Austin Bar is hosting “An Evening with the Texas Supreme Court.” This has become a well-attended biennial event. If you want a sense of what topics are covered, I blogged about the 2012 and 2010 events.

The “evening” begins at 4:30, with a ninety-minute substantive panel of the Justices. There seven Justices listed on the announcement, so the panel should offer a broad view. A reception follows the panel, from 6:00 to 7:00.

Thursday, April 17, 2014 · 4:30–7:00
InterContinental Stephen F. Austin Hotel
701 Congress Avenue · Austin, Texas
$25 if paid in advance, $30 at the door

You can find details about how to register, or how to suggest questions for the panel, on this page.

Tags: News and Links

Texas Supreme Court halts disclosure of identity of pharmacies supplying execution drugs

March 30th, 2014 · Comments Off on Texas Supreme Court halts disclosure of identity of pharmacies supplying execution drugs

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

Tags: Case Notes · News and Links

Can the Legislature prevent a court from striking down a statute on constitutional grounds until 45 days after the AG has been notified?

March 25th, 2014 · Comments Off on Can the Legislature prevent a court from striking down a statute on constitutional grounds until 45 days after the AG has been notified?

That’s the question that the Texas Court of Criminal Appeals, which has the final say on state criminal matters, answered last week.

After the criminal court struck down on First Amendment grounds the Texas criminal statute that had been applied to “sexting” with an underage participant, the AG sought rehearing. One reason offered by the AG’s office is that it had not been formally notified of a constitutional challenge under Texas Government Code 402.010. In denying that rehearing, the Court of Criminal Appeals addressed why it viewed that notice provision as unconstitutional.

The core reason is separation of powers. Section 402.010 provides that a court must forward notice to the attorney general when a party has raised a constitutional challenge, and that “[a] court may not enter a final judgment holding a statute of this state unconstitutional before the 45th day after” such notice is given.

The CCA refused to abide this limitation on its authority to act as a court:

… the potential length of the delay is not so much the problem as the fact of the attempted interference at all. Entering a final judgment is a core judicial power; it falls within that realm of judicial proceedings “so vital to the efficient functioning of a court as to be beyond legislative power.” Thus, the 45-day time frame provided for in subsection (b) is a constitutionally intolerable imposition on a court’s power to enter a final judgment and a violation of separation of powers.

Rehearing Opinion at 6.

In a concurrence, Presiding Judge Keller made two further points. First, that in one year, the CCA disposed of “well over nine thousand matters” in which many made such a claim. Second, that the CCA website makes available “a list of the issues upon which discretionary review has been granted.” Concurrence at 2-3

What does this mean for civil cases?

The statute applies to both civil and criminal cases. The CCA has made plain that it does not think criminal courts and, presumably, courts of appeals hearing criminal dockets need not comply. But the CCA does not have jurisdiction over civil cases.

The question becomes: What does SCOTX think of this notice requirement?

The Context in Which It May Be Answered: The Same-Sex Divorce Cases

The notice statute, it turns out, was passed by the Texas Legislature in 2011 — in the wake of the AG complaining that its office had not been notified about a constitutional challenge lurking in a divorce decree to a gay marriage. There, the AG sought to intervene after the fact, asserting an interest in defending the state’s laws.

The trial court and Austin Court denied that request; that case is now pending before the Texas Supreme Court as In re State of Texas, No. 11-0222 .

At oral argument, there was substantial discussion about the source and nature of the Attorney General’s interest to intervene in private lawsuits. Oral Argument Tr. at 14-18 Although Section 402.010 could not be the source of that authority in In re State — because it was enacted after-the-fact — it was discussed as reflecting the same concerns.

It’s conceivable that the Texas Supreme Court will decide the narrow issue in In re State of Texas, No. 11-0222 without ever mentioning Section 402.010 — certainly, it would not strictly need to discuss a statute enacted after the fact. But not mentioning the statute would be curious, given its provenance and role at oral argument. And it seems unlikely that the Court could mention the statute without acknowledging that its sister court of last resort had held that to violate the separation of powers.

The Texas Supreme Court has not taken warmly to legislative attempts to cut short its consideration of constitutional issues. Whether it embraces legislative attempts to slow down judicial resolution of constitutional issues remains to be seen.

Tags: Case Notes · News and Links

I’ll be a panelist at the Ms. JD conference in Austin

February 12th, 2014 · 1 Comment

On February 21st, I’ll be on a panel about what law students and new attorneys should consider about blogging (or writing for similar platforms) as they start to build their professional identities. My co-panelists are Emily Frost of Austin, Erin Gilmer of Austin, and Valarie Hogan of very far from Austin. Lisa Salazar will be moderating.

This is part of the Ms. JD conference “Passion Forward”.

Friday’s events include two other breakout panels (one on social media, one on community involvement), and a small-group workshop to help participants turn their abstract professional-development ideas into more concrete plans.

On Saturday, Ms. JD is co-hosting a “Women’s Law Institute” with UT’s Center for Women in Law, featuring a distinguished list of speakers and participating mentors.

The registration for both days is being coordinated through this page. The Friday sessions are reasonably priced, and the Saturday program is free.

Tags: News and Links