This is the third part of my posting about today’s order list, in which the Texas Supreme Court decided eight cases and set three others for argument. ((I’m making a note that, when the Court schedules a two-day conference, I should keep my Friday morning free.))

This post discusses the three new cases set for argument. Previous posts cover the per curiam decisions and decisions in argued cases.

Cases Set for Argument

The Court granted two petitions for review and set one disciplinary appeal for oral argument.

Set for April 1, 2008

  • Edwards Aquifer Authority v. Chemical Lime, Ltd., No. 06-0911. From the Third Court of Appeals. (Set for April 1, 2008) COA Opinion

    This case raises a thorny question about when court decisions “take effect” in the rare but important context when a decision purports to strike down or enjoin a state law.

    In some ways, this is a lawsuit about how to interpret a previous lawsuit. The previous lawsuit was the Texas Supreme Court’s previous decision in Barshop v. Medina County Underground Water Conservation District, 925 S.W.2d 618 (Tex. 1996). In that case, a lower court held that a statute (the 1993 Edwards Aquifer Authority Act) was unconstitutional and enjoined its enforcement. The Supreme Court later reversed that decision.

    The wrinkle is that the statute contained a six-month time window in which parties could file claims with the Edwards Aquifer Authority to declare their historical use of water. And, during the pendency of the Barshop appeal, that time window expired. When the Supreme Court reversed, it created a new six-month time window in which parties could make such filings to effectuate the Legislature’s intent. The Texas Supreme Court’s order did not specify whether that time period would begin on the issuance of its opinion, on the issuance of its mandate, or by rule from the water district. The court of appeals explains how this became a problem:

    In lieu of the then-expired 1994 statutory deadline, the Authority, relying on an interpretation of Barshop, set by rule a deadline of December 30, 1996–six months after the Barshop opinion was issued–for existing users to file declarations of historical use. Appellee Chemical Lime, Ltd., whose New Braunfels plant had used aquifer water since the early 1900s, filed its declaration on January 17, 1997. …

    The Authority’s argument rests upon two subsidiary propositions. First, the Authority interprets Barshop to hold that the historical use declaration filing deadline is six months after the EAA Act became enforceable. Second, the Authority contends that the EAA Act became enforceable on June 28, 1996, at the moment when the supreme court issued its Barshop opinion and judgment. Therefore, the Authority concludes, its rule setting a filing deadline of December 30, 1996 is within its statutory powers, and Chemical Lime’s January 17, 1997 filing is untimely as a matter of law.

    Chemical Lime disputes that the EAA Act took effect immediately upon the supreme court’s judgment in Barshop. Chemical Lime argued in its brief that the EAA Act did not become effective until at least August 16, 1996, the date the supreme court denied rehearing in Barshop, because the court’s judgment was not final until that date. During oral argument, Chemical Lime suggested that the date the supreme court issued its mandate in Barshop–February 10, 1997–might also control. Six months after these dates would have been February 16, 1997, or August 10, respectively, making the Authority’s rule invalid.

    The court of appeals concluded that the six-month window did not begin until the Texas Supreme Court’s mandate issued. The Texas Supreme Court has now accepted the petition’s invitation to explain precisely what the judgment in its Barshop decision meant and — whether predicated on the narrow circumstances of Barshop or on broader principles involving supersedeas and appellate mandates — when the six-month window properly began.

The disciplinary appeal:

  • In re Rolando Caballero, No. 07-0484 (Set for April 1, 2008). The decision below and the briefing are not available online. The description of the action published in the Texas Bar Journal reads as follows:

    On March 28, 2007, the Board of Disciplinary Appeals signed a judgment of disbarment against Roland Caballero (#03569280), 54, of San Antonio. ((The order list today and the Court’s docket recite the party’s first name as Rolando, while the Texas Bar Journal’s summary of his case gives his first name as Roland.)) On June 1, 2006, Caballero pleaded guilty to mail fraud in violation of 18 U.S.C. §1341, an intentional crime as defined in the Texas Rules of Disciplinary Procedure in Cause No. SA-04-CR-611(1)FB, styled United States of America v. Roland Caballero, United States District Court, Western District of Texas, San Antonio Division. Caballero was placed on supervised probation for a term of five years. He was also ordered to pay a special assessment in the amount of $100 and $57,937.50 in restitution. BODA cause number 38821.

Set for April 2, 2008

  • Phillips v. Bramlett, No. 07-0522. From the Seventh Court of Appeals. (Set for April 2, 2008) (Set for April 2, 2008) COA Opinion

    This medical-malpractice case involves a question left open in today’s decision in Living Centers of Texas, Inc. v. Penalver, No. 06‑0929 Per Curiam Opinion (discussed in this earlier blog post) — what steps a party must take at trial to preserve error about an improper jury argument.

    In this case, the plaintiff used a “send the message” theme in his closing argument, which was objected to only once. At that time, the trial court told the jury that this was not evidence, merely argument. The Amarillo Court concluded that further steps would be necessary to preserve for appellate review a complaint that the whole line of argument was improper:

    [T]o preserve an allegation of error for appellate review, the record must show a timely objection stating the grounds for the requested ruling with enough specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1)(A). From the language used in the objection and the response of the trial court, it is apparent that the trial court did not perceive the objection to be directed toward improper jury argument. Rather, the record reflects that the trial court simply clarified that the statement was not evidentiary.

    The Amarillo Court also concluded that this particular line of argument was not so objectionable as to be incurable because:

    in each instance, the refrain from Bramlett’s counsel was in connection with the evidence and what the community should tolerate as a standard for proper medical care. Thus framed, we cannot say that the argument was one that appealed only to the prejudices of the jury or was so inflammatory as to override the jury’s collective ability to review the evidence and base a verdict on the evidence.

    The second issue in this case is whether the statutory damage caps in Article 4590i, §11.02 still applies even when an insured doctor might have a valid claim under the “Stowers Doctrine,” which generally “permits an insured to maintain a cause of action against his insurer for the negligent failure of the insurer to settle a claim within applicable policy limits.”

    The court ultimately concluded that the statutory damage cap in §11.02(a) did not apply when the case involved a potential Stowers claim. The court explained:

    Because the trial court found that the present case presented facts which would allow the invocation of a “Stowers” claim and because we construe art. 4590i, section 11.02(c), as making the damages cap of section 11.02(a) inapplicable in that event, we conclude that the trial court did not err in refusing to apply the damage caps to the judgment rendered.

    The court acknowledged its disagreement with a decision of the Second Court of Appeals in Fort Worth over the same question of statutory construction. The Second Court’s decision was in Welch v. McLean, 191 S.W. 3d 147 (Tex. App.—Fort Worth 2005, no pet.), available here.

Eliminating the Late February Oral Argument Sitting

In addition the Court moved the argument date for another case from its previous setting on February 26, 2008 to a new date of April 1, 2008. That case is Prodigy Communications Corp. v. Agricultural Excess & Surplus Insurance Co., No. 06-0598, and is discussed in this previous post.

Because that case had been the only one set for the late-February argument sitting, this rescheduling removes any need for the argument sitting previously scheduled for February 26th–28th.