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

Category: 'Order Lists'

Two (more) grants on a Tuesday, for argument in March [Feb. 16, 2016]

February 16th, 2016 · Comments Off on Two (more) grants on a Tuesday, for argument in March [Feb. 16, 2016]

That might sound familiar, or even vaguely predictable, for those monitoring the argument calendar:

Doing a little math… we might expect some grants to be announced on February 16th, to be argued on March 9th or March 10th.

The two cases granted with some orders issued earlier today (official version) are being scheduled for argument on March 9th and March 10th.

More details about these cases will appear after the docket is updated. Generally speaking, the J.B. Hunt case is about two Texas trial courts competing for jurisdiction. The Doctors Hospital case is about how liability for medical malpractice can, or cannot, percolate up through the limited-partnership structure owning a hospital.


Set to be argued on March 9, 2016

Tags: Order Lists

Deepwater Horizon case set for March argument; no opinions or grants [Feb. 12, 2016]

February 12th, 2016 · Comments Off on Deepwater Horizon case set for March argument; no opinions or grants [Feb. 12, 2016]

With today’s orders list, the Texas Supreme Court did not issue any opinions or choose new cases for argument.

The Court did, however, announce an argument date for the certified question it previously accepted involving the Deepwater Horizon oil spill (what many outside of a courtroom call the “BP Oil Spill”).

This is a fairly quick argument setting. In December, the Court accepted this certified question from the Fifth Circuit, and the parties are wrapping up merits briefing in the Texas Supreme Court now.1 The argument will be 25 days from today.

Does a claim for wrongful denial of insurance benefits require independent damages?


Chosen for future argument by order issued February 12, 2016

This is one of many cases percolating in the Fifth Circuit about the Deepwater Horizon (BP) oil spill. Here, the dispute is between various insurers over some subrogation and indemnification arrangements, internal to the complex stack of insurance that might apply to the project.

The Fifth Circuit resolved some of those questions under what it found to be well-settled law, and certified one other question to the Texas Supreme Court on a point that it found to be unsettled in Texas:

Whether, to maintain a cause of action under Chapter 541 of the Texas Insurance Code against an insurer that wrongfully withheld policy benefits, an insured must allege and prove an injury independent from the denied policy benefits?

The Fifth Circuit explains the uncertainty as being about whether Vail v. Texas Farm Bureau Mutual Insurance Co., 754 S.W.2d 129 (Tex. 1988), remains good law. That case would answer the question "no." Two decades later, a different panel of the Fifth Circuit analyzed intervening Texas authority and held that Vail was no longer controlling on this point. Great American Insurance Co. v. AFS/IBEX Financial Services, Inc., 612 F.3d 800, 808 & n.1 (5th Cir. 2010). In now certifying this question to SCOTX for an authoritative answer, the panel observes that some intermediate Texas courts, contrary to the Fifth Circuit's conclusion in Great American, still treat Vail as controlling law.

See also:

  1. The docket calendar indicates that the reply brief was due yesterday, but that filing is not yet listed. It may be detained in e-filing purgatory. 

Tags: Order Lists

Quiet orders list [Feb. 5, 2016]

February 5th, 2016 · Comments Off on Quiet orders list [Feb. 5, 2016]

With today’s orders list, the Texas Supreme Court did not issue any opinions or select new cases for oral argument.

The Court will be hearing arguments next week on Monday and Tuesday.

Tags: Order Lists

Challenge to school religious policy not moot; two oil and gas cases; timing is crucial in arguing for an easement to a roadway [Jan. 29, 2016]

January 29th, 2016 · Comments Off on Challenge to school religious policy not moot; two oil and gas cases; timing is crucial in arguing for an easement to a roadway [Jan. 29, 2016]

With today’s orders list, the Texas Supreme Court issued opinions deciding four cases. It also issued corrected opinions on rehearing in one case originally decided last summer. And it reassigned one of the cases set for argument in early March to a (new) argument date in late March.

The case with new opinions on rehearing is Chesapeake Exploration, L.L.C. and Chesapeake Operating, Inc. v. Martha Rowan Hyder, Individually, and As Independent Executrix and Trustee Under the Will of Elton M. Hyder..., No. 14-0302 .

The case now set for oral argument on March 29th is Crosstex North Texas Pipeline, L.P., n/k/a EnLink North Texas Pipeline, LP v. Andrew Gardiner and Shannon Gardiner, No. 15-0049 .


A school cannot moot a student's lawsuit merely by announcing a policy change

A group of middle school cheerleaders sued when their school prohibited them from displaying banners containing religious messages. The school district filed a plea to the jurisdiction and, eventually, an interlocutory appeal.

After the suit was filed, the school district adopted a new policy stating, in somewhat elliptical terms, that it was “not required to prohibit messages on school banners . . . that display fleeting expressions of community sentiment solely because the source or origin of such message is religious,” but “retains the right to restrict the content of school banners.” Although that policy does not provide a definitive answer on whether future banners will be permitted, it purports to change the rules under which district officials might consider a request. The school district argued on appeal that this policy change mooted the case, depriving the courts of subject-matter jurisdiction, and the court of appeals agreed.

The Texas Supreme Court reversed, stating that it was unpersuaded that the controversy had been resolved. The opinion notes that, in suits brought to challenge public policy, a defendant cannot moot the challenge merely by stating that it has changed its mind: "If it did, defendants could control the jurisdiction of courts with protestations of repentance and reform, while remaining free to return to their old ways. This would obviously defeat the public interest in having the legality of the challenged conduct settled."

In framing the test to be applied, the Court focused on the risk that the conduct would recur. It quoted language from past decisions saying that the defendant arguing for mootness bears "a 'heavy' burden" to show that "subsequent events make 'absolutely clear that [the conduct] could not reasonably be expected to recur."

The Court held that this situation fell short of mootness. It noted, in part, the district's continued position that, while "it does not have any current 'intent' or 'plan' to reinstate that prohibition," it was reserving the right to do so. Because the case was not moot, the Texas Supreme Court reversed and remanded the case to the court of appeals so that it could consider the other issues raised by the district in its plea.

The Railroad Commission can defeat a claim for breach of contract or negligence by showing its officials acted with subjective good faith


jury charges oil and gas regulatory sovereign immunity

This case involves a well that was plugged in error by the Railroad Commission. The Commission was in discussion about the need to plug a number of wells, which included the one at issue here. A meeting was held, where it is alleged a preliminary oral agreement was reached to delay plugging these wells to give the operator more time to try to reestablish production.

Subsequently, an official from the Railroad Commission misread a map and plugged this well. When a dispute arose, the Legislature passed a resolution authorizing these plaintiffs to bring a lawsuit against the Railroad Commission despite the state's sovereign immunity. The case proceeded to trial, and the trial court refused to submit a question to the jury about whether the officials had acted with "good faith." The trial court found the Railroad Commission to be liable.

The Texas Supreme Court holds that the trial court should have submitted a question to the jury about "good faith," which the statute makes a substantive defense to liability. The Court rejected the argument that this had been procedurally waived. (The Court's discussion of how error can be preserved through proposed questions is worth more careful study.) And it rejected the argument that the Legislature's jurisdictional permission to bring this suit was also a waiver of this substantive defense.

The Court did not find, however, that the evidence was so conclusive about "good faith" to permit it to render judgment in favor of the Commission. Instead, the Court remanded this for a new trial, with the clarification that the kind of "good faith" contemplated by the statute is merely subjective good faith of the officials involved, not the higher burden of showing objective good faith.

With regard to the contract claim, the jury charge asked merely whether the Commission had breached an agreement—without specifying the timing of when that agreement was formed. Here, that fact was crucial. The plaintiffs argued that the Commission's actions taken just before the final agreement was signed constituted a breach of the agreement, the basic terms of which had already been agreed weeks before that formality. The jury charge, echoing Texas's very broad pattern jury charge, did not distinguish between the two contracts. The Texas Supreme Court holds that the distinction mattered and that the Commission's objections made below were specific enough to preserve this error. The Court also holds that the "good faith" defense mentioned in the statute is, because of the way the law was drafted, equally applicable to this breach of contract claim. So in the second trial, the Commission will be able to argue that it should not be liable for contract damages where its officials acted in subjective good faith.

The "necessity" in an easement by necessity is evaluated at time the two properties were severed

The land originally conveyed in a state land grant was eventually severed into two parcels in 1866. Today, one of those parcels (the Staley tract) is landlocked in the sense that it has no connections to nearby roads and so cannot be accessed without the permission of other neighboring owners. The current owners sued, arguing that the doctrine of easement by necessity should compel finding an easement across the other half of the original land grant (the Stiles tract) to connect to a state road running through the area. The trial court ruled against them.

The court of appeals affirmed, holding that this record did not support an easement by necessity. The Texas Supreme Court agreed, affirming the judgment below.

The key to the Court's decision is timing. As the Court explained:

Maps introduced into evidence showed roads in the vicinity of CR 134 may have existed as early as the 1930s, but there was no evidence of a public roadway through the Stiles Tract or along its northern boundary before that time.

The Court explained that a landowner claiming an easement by necessity must show the presence of a public roadway at the time of the original severance of the two parcels. Here, that severance was in 1866. And there was no evidence that—in 1866—any easement could have been drawn to connect to a public road.

Interpreting fractions in older documents conveying a royalty interest in minerals

In 1947, Ethel Hysaw executed a will that would divide her properties among three children. Although the surface parcels were divided in different proportions, with one getting the homestead and another getting a larger contiguous piece, the mineral royalty to be devised was the same for each: "an undivided one-third (1/3) of an undivided one-eighth (1/8) of all oil, gas or other minerals in or under or that may be produced from any of said lands." She passed away in 1949.

In 2008, a mineral lease was negotiated that offered an even larger royalty to the mineral estate, 1/5 (0.2) instead of 1/8 (0.125). This case is about who owns this additional 3/40 (0.075) interest. Should it be divided in proportion to the surface estate, because the will was specific about using the figure 1/8? Or should the will be interpreted to give an equal share to each of the original heirs, floating with the current market royalty?

The complexity comes from history. Before the 1970s, it was extraordinarily common that landowners would receive a 1/8 royalty, with some courts even taking judicial notice of that being the rate. Thus, a "double fraction" conveyance—in which a document assigns percentages or fractions of a "1/8" interest—have sometimes been interpreted to mean that the drafter intended the recipient to receive that percentage of the full royalty (assumed at that time to be 1/8), creating a royalty that floats with market conditions. In other contexts, courts have read these documents to suggest that two fractions should be multiplied to create a single, fixed royalty that does not change, regardless of later market conditions.

The Court's opinion contains an extensive discussion of how courts have grappled with this problem, as well as the rules of construction that should be applied. The Court cautioned against a mechanical approach, emphasizing that the larger context of the document can shed more light on the drafter's intent.

Here, the Court ultimately concluded that the intent was to give each heir a 1/3 interest that floated with the prevailing royalty. The Court placed special emphasis on a different section of the document, which conditionally gave each heir an equal 1/3 interest in the proceeds of any assignments of the royalty interest that Ethel might make during her lifetime. Although this clause about what might happen during her lifetime was not triggered (because the royalty interests stayed in the estate), the Court noted that this was still probative of Ethel's intent for how to divide royalties after her death.

Given that context, the Court holds that each of the original heirs was devised an equal, floating 1/3 interest in whatever royalty is later negotiated, not merely a fixed 1/24 royalty.

Tags: Order Lists

And… two more grants, issued late on Friday [Jan. 22, 2016]

January 24th, 2016 · Comments Off on And… two more grants, issued late on Friday [Jan. 22, 2016]

After issuing its usual Friday morning orders list, the Texas Supreme Court amended the list in the afternoon to select two additional cases for oral argument. These cases have been assigned to the Court’s special sitting at Baylor University on March 30.

March 30

Tags: Order Lists

Four more grants, with these scheduled to be heard in March [Jan. 22, 2016]

January 22nd, 2016 · Comments Off on Four more grants, with these scheduled to be heard in March [Jan. 22, 2016]

With this week’s orders list, the Texas Supreme Court selected four additional cases for oral argument. These cases have been set for March 8th and March 9th. [Update: There were two additional grants later in the day. Combined with the three grants issued on Tuesday, that makes nine grants this week.]


March 8, 2016


factual sufficiency pleadings trial
Set to be argued on March 29, 2016


Set to be argued on March 8, 2016

March 9, 2016

Tags: Order Lists

Grants made on a Tuesday afternoon [Jan. 19, 2016]

January 21st, 2016 · Comments Off on Grants made on a Tuesday afternoon [Jan. 19, 2016]

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


fraud malpractice standing
Set to be argued on February 10, 2016

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?

IN RE LAZY W DISTRICT NO. 1, No. 15-0117

local immunity takings
Set to be argued on March 9, 2016

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?


forum selection mandamus
Set to be argued on February 10, 2016

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.

Tags: Case Notes · Order Lists

No grants or opinions – but a short outage on the blog [Oct. 16, 2015]

October 16th, 2015 · Comments Off on No grants or opinions – but a short outage on the blog [Oct. 16, 2015]

With this week’s orders list, the Court did not issue any opinions or choose any new cases for future argument.

Earlier this week, the Court heard its third group of oral arguments this term, including two that are attracting some press attention:

Programming note

Due to some changes in how the Court’s website presents the official docket information, my scrapers are now very confused. The edits look small to humans. For example, where docket entries for many years have said “Petition for review filed,” they now say “Petition for Review.” And so on. But my scrapers were tuned to the Court’s old data format, and that old predictable format was used to compute a petition’s current “stage” — which fed through most of my data.

The opinion and voting data should remain unchanged. But my list of currently pending petitions is quite thoroughly broken. (As I write, that page shows only 9 cases at the petition stage, all of which are parental termination matters.)

My hope is that this is a short outage. But until I dig into the data and see what is involved in a fix, I can’t make any promises.

Tags: Order Lists