The Texas Supreme Court issued six decisions with today’s order list.
Three of today’s six decisions involved the question whether a defendant in a medical-malpractice suit can immediately appeal the trial court’s refusal to award sanctions when the plaintiffs nonsuit a case. The Court ultimately held that, yes, such an order was subject to immediate appeal. Although the plaintiffs can nonsuit a claim, that does not also extinguish a claim for affirmative relief by a defendant — and the Court classified this type of sanctions motion by a defendant as a claim for affirmative relief. Justice Wainwright wrote for a unanimous Court in Villafani v. Trejo, No. 06-0501. The Court issued per curiams applying the holding of Villafani to similar fact patterns in Barrera v. Rico, No. 05-0928, and Regent Care Center of San Antonio II, L.P. v. Hargrave, No. 06-0717.
Federal preemption of state tort claims
- BIC Pen Corp. v. Carter, No. 05-0835. Justice Medina wrote the unanimous opinion for the Court. (Justice Green was not sitting.)
The Court held that federal consumer-protection law implicitly established both a ceiling and a floor for safety, displacing the role of state tort law in establishing the duty rules applicable to cigarette lighters. The Court thus reversed the court of appeals and rendered judgment on the question whether this was a valid design-defect claim.
The Court did not render, however, on the manufacturing-defect claim. The Court held that, while the federal scheme might preempt claims about the design of a product, it did not thereby exempt defendants from liability from claims that their actual manufacture of the product unsafely deviated from that design. The Court remanded so the court of appeals could consider the manufacturing-defect claim.
And, although it was not yet affirming any damage awards, the Court did also reach the question of what interest rate should apply to the award. While this question has a narrow and somewhat uncertain impact on these parties (and the parties devoted fewer than four combined pages of merits briefing to the issue), the Court’s reasoning should be studied carefully by those with other cases that may turn on the effective date of statutes:
The Texas Constitution provides that once a bill becomes law by being passed by the Legislature and signed by the Governor, it generally does not take effect until ninety days after the adjournment of the session in which it was enacted. TEX. CONST. art. III, § 39; id. art. IV, § 15. However, a bill may take effect immediately upon signing by the Governor when passed by a recorded, two-thirds majority vote. Id. art. III, § 39. The exception applies to bills and subsequent amendments. Caples v. Cole, 102 S.W.2d 173, 176 (Tex. 1937). Thus, in Caples, we wrote “A harmless bill might be passed in its inception by the requisite vote, and then be radically amended and such amendments be put into immediate effect without the vote required by the Constitution. If such were the rule, the vote on the original bill would control as to whether it became a law immediately after its final passage, and not the final vote subsequently taken on the amendments placed thereon by the other branch of the Legislature, and the plain provision of the Constitution requiring that it be adopted by a vote of two-thirds of all the members of each house, in order to declare an emergency, could be evaded.” Id. Subsequent amendments and resolutions must accordingly meet the constitutional requirement of a recorded, two-thirds majority vote to go into effect before ninety days after adjournment. See id.
Here, the Legislature passed House Bill 2415 by a two-thirds majority vote of each house on June 1, 2003. See Act of June 2, 2003, 78th Leg., R.S., ch. 676, § 1, 2003 Tex. Gen. Laws 2096, 2097. The vote was taken by a recorded vote. See id. The next day, the Legislature adopted Senate Resolution 66, which amended House Bill 2415 by changing its cap on the post-judgment interest rate from the yield on United States Treasury Bills to the prime rate as published by the Federal Reserve Bank of New York. See id. While the resolution was adopted without objection, the vote was not recorded, and thus under the Constitution did not qualify for expedited effect but rather took effect on September 1, 2003. Id. Accordingly, we agree with the court of appeals that this interest rate did not apply to the judgment in this case.
(If you skipped that rather imposing block quote, an amendment to a bill was made in the crush of legislation at the end of the legislative session “without objection” rather than through a formal recorded vote. The Court today holds that the amendment does not qualify for the Constitution’s provision governing which statutes can go into effect immediately.)
I have not yet had a chance to really study this, but it’s not yet clear to me if the Court’s holding means (1) that the Senate Resolution (by a non-record vote) undid the provisions about expediting the effective date and thus the whole bill did not take effect until September 1, 2003 or (2) that instead the bill went into effect immediately using its original (and since repudiated) formula about interest rates and then the resolution changing those rates went into effect later.
Either way of understanding Texas’s rule about effective dates could decide bigger stakes in some future case.
Premises liability and “actual knowledge”
- Univ. of Tex. Pan-Am. v. Aguilar, No. 07-0424 (per curiam). To establish this premises-liability claim against this public university under the Tort Claims Act, these plaintiffs had to establish actual knowledge of an unreasonable risk of harm from a water hose that crossed a sidewalk. One piece of evidence was a manual showing that the university was aware of the risk of tripping over flexible cords, such as electrical wires, on interior walkways. The Texas Supreme Court, in this per curiam decision, held that the manual was “no evidence” of similar actual knowledge of the risk of tripping over water hoses outside. The Court thus reversed and rendered judgment for the university.
Appellate procedure in parental-termination cases
In re K.C.B., No. 07-168 (per curiam). As a prerequisite to appeal in a parental-termination case, the Texas Family Code requires a party to file a statement for the points on which they intend to appeal. Here, the party did that — but the statement was left out of the clerk’s record. The Court ultimately holds that the court of appeals should have permitted an amendment of the clerk’s record — even on rehearing — to include that statement and thus to permit the appeal.
You should probably not be tempted in your own civil cases to try to supplement the clerk’s record on rehearing. The Court makes plain in its closing paragraphs that:
Given the constitutional dimensions of the “fundamental liberty interest of natural parents in the care, custody, and management of their child,” Santosky v. Kramer, 455 U.S. 745, 753 (1982), justice is not served when a case like this, ripe for determination on the merits, is decided on “a procedural technicality” that can easily be corrected, Silk [v. Terrill], 898 S.W.2d [764,] 766 [Tex. (1995) (per curiam)].
Grants in new cases
The Supreme Court of Texas also granted the petitions for review in five new cases, with oral argument dates to be determined at a later time. (( I also plan to write a little more about these at a later time. I’m working on a new format for this blog’s “case notes” that should make case notes easier for me to create — and easier for readers to find and use. ))
One grant worthy of note is Badiga v. Lopez, No. 05-0801 (court of appeals opinion), yet another medical-practice case about the new statute requiring early filing of expert reports. In Badiga, the parties argue over whether a trial court’s refusal to dismiss a case for failure to timely file an expert-witness report can be the subject of immediate interlocutory appeal. Sound familiar?
Today’s case presents the Court with an actual sighting of this rare bird, a species that in my view merits extinction, not conservation. Extensions forgive deficient reports, not absent ones. If a report is missed, not just amiss, courts are remiss if they do not dismiss.
This was Justice Willett’s concurrence in last week’s case Lewis v. Funderburk [my discussion of the case is here]. You may have also seen that last phrase featured this past week on the Sophistic Miltonian Serbonian Blog and Tex Parte.
In Lewis, a majority of the Court did not reach that legal question, concluding that the parties had not preserved or presented it. The Court will face the issue more squarely beginning with oral arguments in Badiga this fall. It remains to be seen if five Justices can agree on a similarly Seussian rule.