With today’s orders list, the Texas Supreme Court issued opinions in eighteenseventeen cases, set five cases for oral argument (into next January), and dismissed a case argued last October as being improvidently granted.

These are the “year end” orders, coming at the end of the State of Texas’s fiscal year. This is also the traditional time for the court statistics to be measured and, as such, usually results in a flurry of opinions. Last year, the Court issued nineteen opinions.

I’ve made quick notes about a few cases on the list below.

Opinions Issued

This is a potentially major takings case about when government can take property for private (rather than public) benefit. The City of Austin took a parcel of land in downtown that was, in short order, folded into a private development. A jury concluded that this taking was made in bad faith, and the court of appeals agreed.

Divided 7-2, the Texas Supreme Court reverses. The majority (written by Justice Guzman) holds that the record here does not support the jury’s conclusion. The dissent (written by Justice Hecht) argues that it does.

What makes this a potential landmark is the strength of the evidence — coming from (as the dissent notes) the city’s own witnesses. If this evidence is so weak that it cannot support a verdict in favor of a landowner on this type of bad-faith takings claim, these may be very difficult to win indeed.

This is a case about how much time a claimant has to file suit under the Texas Commission on Human Rights Act (TCHRA). From Justice Guzman’s majority opinion:

[I]n 2009, Congress enacted the Lilly Ledbetter Fair Pay Act (Ledbetter Act), amending Title VII to provide that a discriminatory pay decision occurs each time a paycheck is received and not just when an initial salary decision is made.3 Thus, when a claimant files a discriminatory pay claim under federal law, the 180-day limitations period begins each time a claimant receives a paycheck containing a discriminatory amount. The Texas Legislature has not similarly amended the TCHRA.
As a matter of first impression, we must determine whether the federal Ledbetter Act applies to a claim brought under the TCHRA so that the 180-day limitations period begins anew each time a claimant receives a paycheck containing a discriminatory amount.

Because Title VII and the TCHRA are no longer analogous where discriminatory pay claims are concerned, and because the Legislature—and not this Court—is the proper governmental branch to amend the TCHRA, we hold that the federal Ledbetter Act does not apply to a claim brought under the TCHRA. Thus, in accordance with the TCHRA and our precedent, we conclude that a pay discrimination complaint must generally be brought within 180 days of the date the claimant is informed of the compensation decision.

This case asked whether state action that (perhaps) led to a landowner losing a federal water permit constituted a taking. (The case was featured in this Texas Tribune piece.)

Today, the Court held that it did not. Justice Wainwright wrote for the majority, emphasizing that it was “the United States Army Corps of Engineers, not the State of Texas, [that] exercised its exclusive authority to deny petitioner’s application for a federal mitigation banking permit on the land.”

Justice Hecht, writing for three Justices, would have held that this was a taking because it was a situation where “government’s own interests in the ownership or use of specific property conflict[s] with the landowner’s. . . . Acting in its own interest, the State has persuaded the Corps to reject Hearts Bluff’s application, apparently the first time the Corps has ever rejected a mitigation bank application.”

This might have been the case that resolved how detailed the trial court must be in granting a motion for new trial. But that issue will have to wait (at least until January).

The order granting new trial here listed several reasons — but joined with “and/or” clauses, making it unclear which reason was being used. Moreover, one of those reasons echoed the old (and disapproved) “interest of justice” language, meaning that an appellate court could not be certain whether that ground had been used. Accordingly, the majority held that this order violated the Court’s already existing prohibition on an order relying on the “interest of justice” alone to grant a new trial.

The takeaway is this: If you have “and/or” clauses in an order granting new trial, you make the order more vulnerable to reversal, not less.

As Justice Wainwright notes in his concurrence, the Court has just granted another mandamus petition that more “squarely raises the issue” of how in-depth these orders must be: In re Toyota Motor Sales, U.S.A., Inc., No. 10-0933.

This case set up a procedural clash between (1) the jurisdictional rule that Texas appellate courts can only hear an interlocutory appeal that fits within narrow grounds set by statute and (2) the jurisdictional principle that subject-matter jurisdiction is a question that can be raised at any time.

The Court took a slightly narrower path but, in effect, held that the second of these principles controlled. Justice Johnson wrote for a majority of six, concluding that the court of appeals should have heard the immunity argument even though it had not been presented before. But the Court remanded to the trial court because it concluded there was a possibility that the plaintiff here could cure that defect by amending the pleadings.

As Justice Hecht notes in his concurrence, the majority opinion was not framed in jurisdictional absolutes: “‘we, like the U.S. Supreme Court, have recognized that our sometimes intemperate use of the term “jurisdictional” has caused problems.’ All we decide in this case is whether an appellate court in an interlocutory appeal permitted by statute can decide an issue of governmental immunity from suit outside the scope of the appeal. The Court answers yes and wisely stops there.”

For those who litigate against the government, the implications are pretty clear: Every appeal is potentially an appeal about sovereign immunity. The consolation is that, if the government has not presented the argument in the trial court, it may not be able to obtain a complete dismissal instead of a remand.

Justice Lehrmann wrote a dissent, joined by Chief Justice Jefferson and Justice Medina, that would have held this sovereign-immunity issue cannot be raised for the first time in an interlocutory appeal.

See my later summary.

See my later summary.

See my later summary.

See my later summary.

See my later summary.

See my later summary.

Improvident grant


Disposed on orders list of August 31, 2012

This was a case about whether Texas’s health-care liability statute extended to allegations of sexual assault by health-care providers. The Court heard oral argument in this case last October, but today it issued an “improvident grant,” choosing to dismiss the petition rather than decide it on the merits.

New grants and cases set for argument

Set for January 8, 2013

Set for January 9, 2013


Chosen for future argument by order issued August 31, 2012

Re-set for October 16, 2012


Set to be argued on October 16, 2012

The Court granted a motion to expedite the oral argument in this direct appeal. The Court had previously accepted jurisdiction over this direct appeal, and it has been fully briefed, but the Court had not yet set an argument date.