Today, the Texas Supreme Court issued its first opinions of the new term. All were unanimous; all but one were per curiam opinions. It’s early yet, but this fits the general pattern from last term.

The Court also granted three new petitions to be argued in December. Those are listed at the end of the post; details will follow, as appropriate.

Lottery winnings assignable

Texas Lottery Commission v. First State Bank of DeQueen, Stone Street Capital, Inc., and Cletius L. Irvan (DDB)

In this case, a lottery winner and financing company challenged a provision of the Lottery Act that restricted the ability to assign the last two years’ worth of payments on a multi-year lottery payout. (Disclosure: I represented the Lottery Commission in the court of appeals while I was at OSG.)

The statutory conflict arose from two bills, passed in the same legislative session, amending different statutes. In the first bill, the Legislature amended the U.C.C. to permit assignment of lottery winnings. Thirteen days later, the Legislature passed amendments to the Lottery Act that would restrict the assignment of the last two years’ winnings.

The court of appeals divided 2-1, with a majority concluding that the U.C.C. contained a provision making lottery winnings assignable and a dissenting Justice concluding that the more specific and later-enacted provisions of the Lottery Act controlled.

Today, the Texas Supreme Court affirms. Writing for the Court, Justice Johnson concludes that the plain text of the Texas U.C.C. expresses an intent that the U.C.C. win all of these conflicts with other state statutes, to the exclusion of any other canons of statutory construction.

The Court also rejected arguments that the Lottery Act provision fits into a carve-out made in the U.C.C. that permits certain consumer protection laws, and it rejected the argument that the Declaratory Judgments Act does not permit this sort of suit to be filed against the Lottery Commission.

The Tort Claims Act requirement of notice within six months doesn’t mean pre-suit notice — the lawsuit itself can work

Glenn Colquitt v. Brazoria County, No. 09-0369 (per curiam) (DDB)

This might be a significant case for plaintiffs against the government.

The Texas Tort Claims Act requires that a potential claimant give a formal written notice to the government within six months of the incident.

With today’s case, the Texas Supreme Court holds that this need not be a pre-suit notice. Instead, if a claimant files a lawsuit quickly, the lawsuit itself can satisfy the statute.

The issue in this case is whether the lawsuit itself, served on the governmental unit within six months of the incident and containing all the requisite information, constitutes proper notice under the Act. The court of appeals concluded it did not and dismissed the case. We conclude that it does and, accordingly, reverse and remand to the trial court.

This may be a little extra incentive for plaintiffs to file suit quickly. If the lawsuit itself comes within six months, there will be no question about whether the required notice encompasses the claims. (( It might make subsequent amendments to the complaint tricky. But that’s an appellate question for another day. ))

If you use a Ford F-250 to help hoist workers, an injury to them falls into the “auto use” exclusion in a worksite insurance policy

Mid-Continent Casualty Co. v. Global Enercom Management, Inc., No. 09-0744 (per curiam) (DDB)

Yes, that’s a strange headline. But…

As part of the repairs, the employees set up a rope-and-pulley system on the [cell phone] tower. One end of the rope was anchored on a spool and was run through a pulley attached to the “towing point,” or eye hooks, on the front bumper of a 2000 Ford F-250 Super Duty truck. The truck was parked some distance away from the tower on the opposite side of an outbuilding. The rope also ran through pulleys installed on the top and bottom of the 280-foot cell tower and was finally anchored to a headache ball on the other end of the rope. Three workers were instructed by the foreman to climb the tower to take measurements. They tried to reach the top of the tower by attaching themselves to the headache ball at the end of the rope and signaling the foreman to back the truck away from the tower to pull the rope through the pulleys and raise the headache ball. The foreman driving the truck did not see the workers until they had been raised approximately fifteen to twenty feet in the air, over the building obstructing his view. The foreman gave a hand signal, communicating “What’s going on?” The workers, attached to the headache ball, gave another “up” signal, indicating to the foreman to continue driving the truck. Although the foreman knew this was not common practice and potentially unsafe, he nevertheless continued to drive the truck in reverse, away from the tower, lifting the three workers to a height of eighty feet. The rope broke, and the workers fell to their deaths.

This is how an automobile can be part of the cause of workers falling from a cell phone tower.

The Texas Supreme Court concluded that this falls within the terms of the “auto use” exclusion in the primary CGL (Commercial General Liability) policy with the higher limits ($1,000,000) and must be pursued, if at all, against the automotive policy that, in this case, has a lower policy limit ($100,000).

Read the opinion if you want to know more about how “it is in the inherent nature of a 2000 Ford F-250 Super Duty pickup truck on a cell tower job site that it will be used to haul and tow materials.”

Whistleblower Act

City of Elsa, Texas v. Joel Homer Gonzalez, No. 09-0834 (per curiam) (DDB)

Gonzalez brought suit under the Texas Whistleblower Act, which requires a plaintiff show that he has reported a violation of law to an “appropriate law enforcement authority.”

Here, Gonzalez claimed that he made such a report to the city council by objecting a meeting that it had been convened in violation of the Texas Open Meetings Act. The Texas Supreme Court disagreed, concluding that a “law enforcement entity” must have some enforcement or investigatory authority distinct from its own “ability to comply with a law by acting or refusing to act.” In other words, just pointing out to someone that their own actions violate the law may not satisfy the statute.

Gonzalez also claimed that his action in forwarding an opinion letter written by the city attorney met the statute. But the Court concluded that the record did not support the assertion that this was meant to report a violation of law: “Gonzalez’s testimony and affidavit reflect that when he circulated the city attorney’s letter…, Gonzalez did not believe the mayor had violated any laws. [Thus], it does not follow that he made a good-faith report of an existing or past violation of law.”

The Texas Supreme Court reversed and dismissed Gonzalez’s claims.

There must be a “complete diagnostic evaluation” before a juvenile offender is transferred to stand trial as an adult

In re B.T., a juvenile, No. 10-0383 (per curiam) (DDB)

In this mandamus proceeding, we consider whether the juvenile court abused its discretion when it did not obtain a complete diagnostic evaluation of a juvenile prior to a hearing to transfer the juvenile to adult criminal court. The Family Code mandates a “complete diagnostic study,” and the psychologist who performed this report emphasized it was incomplete. We hold the trial court abused its discretion, a determination the State does not dispute, and we conditionally grant the petition for writ of mandamus.

New Grants

The Texas Supreme Court also set three new cases for oral argument this December.

  • BP America Production Co., et al. v. Stanley G. Marshall, Jr., et al., No. 09-0399 (DDB). Set for argument on December 7, 2010.

  • Samuel T. Jackson v. State Office of Administrative Hearings and Sheila Bailey Taylor in her official capacity as Chief Administrative Law Judge, Stte Office of Administrative Hearings, No. 10‑0002 (DDB). Set for argument on December 8, 2010.

  • In re Universal Underwriters of Texas Insurance Co., No. 10‑0238 (DDB). Set for argument on December 8, 2010.