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

Category: 'Order Lists'

Eight grants and one revised opinion [Oct. 9, 2015]

October 9th, 2015 · Comments Off on Eight grants and one revised opinion [Oct. 9, 2015]

With this week’s orders list, the Texas Supreme Court chose eight new cases for future oral argument. It also released a revised version of its earlier majority opinion in Kachina Pipeline Company, Inc. v. Michael D. Lillis, No. 13-0596 .

The eight grants:

Read more

Tags: Order Lists

Quiet orders list [Oct. 2, 2015]

October 2nd, 2015 · Comments Off on Quiet orders list [Oct. 2, 2015]

There were no opinions and no new grants on this week’s orders list.

Tags: Order Lists

Quiet orders list [Sep. 25, 2015]

September 25th, 2015 · Comments Off on Quiet orders list [Sep. 25, 2015]

This week brought the Court’s second oral argument sitting of the term. The Friday orders did not, however, include any new grants or opinions.

Tags: Order Lists

Two per curiam opinions; no grants [Sep. 18, 2015]

September 18th, 2015 · Comments Off on Two per curiam opinions; no grants [Sep. 18, 2015]

The Court’s orders list for this week contained two per curiam opinions, each applying a recent holding from the Court.

Who is a proper law enforcement official under the Whistleblower Act?

The Court again faced the question of whether a report that an employee makes internally within a government agency counts as a report to "law enforcement," and thus grants the employee protection from retaliation under the Texas Whistleblower Act.

This case was decided at the court of appeals level before the Court's decision in TEXAS DEPARTMENT OF HUMAN SERVICES v. OLIVER OKOLI, No. 10-0567. The Court concluded that the same holding should apply here, and that a report made to an official with merely internal oversight authority within the agency did not qualify. Instead, the report must be made to someone with the authority to enforce laws against the public.

Spectators at a sporting event are not engaging in a "recreational use" of the property

The Supreme Court found the facts in this case indistinguishable from those in its recent decision in UNIVERSITY OF TEXAS AT ARLINGTON v. SANDRA WILLIAMS AND STEVE WILLIAMS, No. 13-0338.

What makes this per curiam interesting is how the Court dealt with Williams being a plurality decision. Because only four Justices joined the "opinion of the court" in that case, its statements do not form a truly binding holding of the Court. So, to assemble a holding, the Court adds up the justices who agreed with the judgment, looking for a majority who shared a common holding.

Although not embracing the plurality’s analysis, Justice Boyd concurred with the opinion’s salient holding. Id. at 62 (Boyd, J., concurring). Thus, a majority of the Court agreed that under facts similar to those in this case, the recreational use statute does not apply.

Tags: Order Lists

Quiet orders list [Sep. 11, 2015]

September 11th, 2015 · Comments Off on Quiet orders list [Sep. 11, 2015]

The Court did not issue any grants or opinions with this week’s orders list.

Tags: Order Lists

Fourteen grants, and some (straggling) opinions about the San Marcos water-flouridation case [Sep. 4, 2015]

September 4th, 2015 · Comments Off on Fourteen grants, and some (straggling) opinions about the San Marcos water-flouridation case [Sep. 4, 2015]

At the end of the Court’s first argument week of the term, we have its first orders list — which has 14 cases chosen for oral argument and a (large) list of petition denials and rehearing denials. The Court also granted rehearing of two petitions previously denied, reinstating them to the docket. (The details of the cases chosen for argument will appear in a later post.)

The Texas Supreme Court also issued what are, depending on how you look at it, the first two opinions of this new term or the final opinions of the last one. On August 28, the Court issued an order denying mandamus relief in In re Shannon Dorn, Kathleen O'Connell, Communities for Thriving Waters - Flouride Free San Marcos, and Morgan Knecht, No. 15-0632 . Today, just after the turning of the Court’s calendar, it has published an opinion dissenting to last week’s order and one concurring in the outcome.

Even short delays in the litigation process can doom a mandamus petition

This case involves a petition drive seeking to put the question of fluoridated water on the ballot, in the form of a charter amendment. In May, the city clerk sent a letter to the group stating that the signatures would not be counted because the petitions were not accompanied by an oath or affirmation of validity. The group sent some letters explaining its position to the city. The city responded by itself filing suit on June 18, seeking a declaratory judgment. The group filed an answer and counterclaim on July 17.

On August 14, the district court ruled for the group of voters. The city, however, filed for an interlocutory appeal that stayed further action in the trial court. With the ballot deadline looming, and perhaps inspired by the Court's very recent ruling supporting a citizen's petition in IN RE JARED WOODFILL ET AL., No. 14-0667, the group of voters sought immediate mandamus relief from the Texas Supreme Court.

On August 28, the Texas Supreme Court denied relief. With its September 4 orders list, some of the Justices wrote separate opinions explaining their own thinking.

Justice Devine, joined by Justice Lehrmann, would have granted the mandamus relief because the legal question was clear and because failing to issue mandamus relief would bless the city's use of an interlocutory appeal to moot the ability of courts to speak to the question:

Here, a district court determined the City Clerk must review the petition signatures and perform her ministerial duty. Rather than comply, the City initiated an interlocutory appeal, assuring that the deadline would pass before relief could be obtained. I would not permit a city to use a directory deadline in the Election Code in this manner to either avoid a ministerial duty or thwart the will of the people.

Justice Brown, joined by Justice Green, wrote an opinion concurring in the Court's decision to deny relief. The concurrence focused on the delays earlier in the process — such as the letters being written to the city, and the voters waiting 30 days to file an answer rather than filing one immediately. The concurrence suggested that the voters should have first sought relief from the court of appeals before coming directly to the Texas Supreme Court because the "urgency [here] is of their own making."

The interlocutory appeal filed by the city remains pending in the court of appeals.

Tags: Order Lists

Final Friday of the Texas Supreme Court’s 2014-2015 term (Aug. 28, 2015)

August 28th, 2015 · Comments Off on Final Friday of the Texas Supreme Court’s 2014-2015 term (Aug. 28, 2015)

With today’s orders list, the Texas Supreme Court issued its final Friday orders for the term. The list included one per curiam about a workers comp issue, and no grants.

As the Term comes to a close, the usual drama is missing. The Court cleaned out its docket of argued cases at the end of June. (You might have missed it because a different “SC” issued a different opinion that same day.) Total cases remaining on July 1: 0.

I thought we’d all have a relaxed summer, but the Court has subsequently issued a few more opinions, bringing the total number of cases pending at the end of the term to -5.1

Two of those opinions involved a challenge to the City of Houston’s ordinance about equal rights for sexual orientation (HERO). In the first decision, issued in July, the Texas Supreme Court ruled that the city council had improperly rejected a local petition of voters demanding that the question be put on the ballot for voter approval. In re Jared Woodfill et al., No. 14-0667

The city council responded by keeping the ordinance in place while scheduling a ballot measure asking voters if they wanted to repeal the ordinance . The challengers thought this framing was backwards, and filed another mandamus petition asking the Supreme Court to intervene, again. On August 19, the Court issued an opinion ruling that the ballot measure must ask voters to approve the ordinance; that it was not enough to presume the law exists and ask voters whether they would like to repeal it. In re F.N. Williams, Sr., and Jared Woodfill, No. 15-0581

That’s two of the five opinions. The others, in brief:

  • City of Ingleside, Texas v. City of Corpus Christi, Texas, No. 14-0548 :: This was a lawsuit between two cities over their common boundary, which was defined in the operative document as being a “shoreline.” One of the cities filed a plea to the jurisdiction, arguing that the boundary line was a nonjusticiable political question. The Supreme Court disagreed, concluding that the courts can properly clarify a term like “shoreline”, and thus tell the parties where the boundary defined by the controlling law actually falls in fact, without offending the separation of powers.

  • Katy Venture, Ltd. and Katy Management, L.L.C. v. Cremona Bistro Corp., No. 14-0629 :: A default judgment is subject to later attack when the plaintiff has it served on an out-of-date “registered” address rather than the defedant’s true “last known mailing address,” when there is evidence that the plaintiff had actual knowledge of that new address.

  • Dallas National Insurance Company v. Gloria De La Cruz, No. 13-0814 :: The Court reversed a workers comp award to someone who claimed to have lost the use of her feet due to an injury suffered elsewhere on her body (her back). The pivotal step in the analysis is the sentence: “For total loss of use of a [body part] to be compensable, the loss of use must have resulted from injury to the [part] itself, as opposed to the loss of use resulting from injury to another part of the body.”

The week ahead

Next week brings the first week of oral arguments in the new term. On Tuesday, the Court will hear arguments in the school-finance litigation. That is followed on the calendar by normal argument slates on Wednesday and Thursday.

  1. Well, the true count is still at zero. These were per curiams that were never argued. I’ve been asked if the timing of these opinions reflects some resurgence in the old shadow/submarine docket of per curiam cases. My first reaction is no, that this is just a normal trickle of cases. 

Tags: Order Lists

Texas’s same-sex divorce cases result in a deep divide — over the power of the Attorney General [Jun. 19, 2015]

June 19th, 2015 · Comments Off on Texas’s same-sex divorce cases result in a deep divide — over the power of the Attorney General [Jun. 19, 2015]

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.

Programming Note

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.

  1. Future cases may turn on whether the AG's office has a similar opportunity to intervene or whether, in the view of an appellate court, the trial court was attempting to evade its involvement. There is a hint of this in how Justice Willett's dissent discusses another, still-pending case challenging the issuance of a same-sex marriage license time-stamped one minute after the action was filed. 

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.

  1. Both the majority and concurrence also shared another feature: express reliance on the concurring opinion that Justice Pemberton filed in the court of appeals. That concurrence was quoted multiple times in Justice Devine's majority, which adopted its statutory analysis. And Justice Boyd's dissent opens by saying, "Essentially for the reasons expressed in the court of appeals’ concurring opinion, ... I dissent." 

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.

In the news:
When does a home-equity lender forfeit all of the principal and interest under the note?


home equity
Set to be argued on September 23, 2015

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:

  1. 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?

  2. 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?

Tags: Case Notes · Order Lists