25-03: Apparently Not the Revenue Stream
A look back to the week of June 16, with a gentle dig from my wife
Welcome to this week’s briefing from 1910 & Beyond, where we explore the evolving landscape of appellate law in Houston and beyond. Each post highlights notable developments from Houston’s two courts of appeals—the First and Fourteenth—as well as from other state and federal appellate courts across Texas and nationwide. From time to time, I’ll also share practical tips on oral and written advocacy. I hope you find these posts useful to your practice and your understanding of what’s happening in Texas appellate law.
My wonderful wife had this reaction to my decision to launch a Substack:
Thanks, dear—I think?
Although I can guarantee the third bulletpoint, the first two bulletpoints are . . . well, you get what you pay for. Still, I greatly appreciate the growing support for this new venture. If you haven’t yet subscribed or shared with someone in your network, I hope you’ll consider doing so.
And now, let’s get into last week’s action. Once more, thanks to the efforts of the Supreme Courts of the United States and Texas to clear their dockets before the summer recess, it’s another busy week.
1910
Orders and Opinions
But first, let’s start with our local courts in Houston. The First Court issued orders and opinions on June 17, 19, and 20; while the Fourteenth Court did so on June 16, 17, 19, and 20. Below, I’ll feature one opinion from each court that stood out to me. I’ll then briefly note any other orders and opinions that I thought worth mentioning.
Features
Cook v. Memorial Hermann Health System, No. 01-23-00178-CV (1COA: Rivas-Molloy, Johnson, Dokupil, JJ.) (mem. op.): After a hospital terminated an employee for refusing a COVID vaccine, the employee sued the hospital for religious and disability discrimination under the Texas Labor Code and for wrongful termination in violation of Texas public policy. The hospital moved to dismiss under Rule 91a, arguing that the employee hadn’t exhausted administrative remedies and that Texas doesn’t recognize a freestanding public-policy termination claim. When the employee didn’t respond, the trial court granted the motion and dismissed the case. The employee then moved for a new trial, arguing that her counsel failed to respond to the motion only because he inadvertently missed the filing. The new-trial motion was overruled by operation by law.
In a memorandum opinion by Justice Rivas-Molloy, the First Court affirmed in part and reversed in part:
Wrongful-Termination Claim: The employee waived appellate review of the trial court’s dismissal of her claim by failing to brief it.
Failure to Amend: The trial court was not required to allow the employee to amend her petition to allege exhaustion of remedies before ruling on the Rule 91a motion. “Indeed, Rule 91a expressly permits a non-movant to amend her petition before ruling on a motion to dismiss.”
Motion for New Trial: Under the Craddock factors,1 the trial court erred in denying the employee’s new-trial motion as it related to her discrimination claim.
Lack of Conscious Indifference: The employee’s counsel submitted uncontroverted affidavits explaining that he missed the Rule 91a motion’s filing because because he was in trial, and his paralegal was not on the service list. The court deemed this a sufficient excuse.
Meritorious Defense: The employee attached an EEOC right-to-sue letter to her motion for new trial, which satisfied the exhaustion requirement for her discrimination claim.
No Prejudice: The employee alleged that a new trial would not prejudice the hospital, and the hospital presented no contrary argument.
Because all three Craddock factors were met, the First Court reinstated the employee’s discrimination claim (and only that claim).
N.B.: This opinion illustrates two important procedural principles on Rule 91a practice. First, don’t wait on the trial court to amend a petition in response to a Rule 91a motion. If you think your petition may not meet Texas’s fair-notice pleading standard, go ahead and amend. Second, if you inadvertently fail to respond to a Rule 91a motion (not a good idea!), make sure to submit the necessary affidavits to satisfy the Craddock factors.
Van Steenwyk v. Applied Technologies Associates, Inc., Nos. 14-24-00068-CV & 14-24-00095-CV (14COA: Wilson, Hart, McLaughlin, JJ.) (mem. op.): Two out-of-state defendants—a Nevada-based shareholder and his California-based attorney—challenged personal jurisdiction and sought dismissal under the Texas Citizens Participation Act after being sued in Texas for breaching confidentiality and shareholder agreements, interfering with business relations, and conspiring to derail a real-estate transaction. The trial court denied both the special appearances and the TCPA motion.
In a memorandum opinion by Justice Hart, the Fourteenth Court affirmed in part and reversed in part:
Special Appearance (Shareholder): The shareholder had consented to jurisdiction in Harris County through valid forum-selection clauses in both the Confidentiality and Shareholders’ Agreements.
Special Appearance (Attorney): Because the attorney acted solely in his role as the shareholder’s legal counsel, not in his individual capacity, the alleged Texas contacts do not apply to him.
TCPA Motion (Shareholder): No exception to the TCPA applies: The plaintiffs did not allege “an officer-director, employee-employer, or independent contractor relationship” between the shareholder and plaintiffs, and their claims are not based on fraud. To that end, the shareholder established that the claims against him were based on his right to petition—via litigation-related communications—triggering the TCPA. Plaintiffs’ claims fail under the TCPA, because they failed to present a prima facie case as to essential elements of their underlying claims.
Because the plaintiffs failed to meet their burden under the TCPA, the court rendered judgment dismissing all claims against the attorney (excluding an unchallenged claim for injunctive relief).
N.B.: This opinion underscores three practice points. First, forum-selection clauses can provide a basis for personal jurisdiction. Second, just as the attorney-immunity doctrine generally provides a defense to liability, agency doctrine may shield a lawyer from personal jurisdiction. And third, under the TCPA, litigation-related communications—even informal ones—are protected, and failure to provide evidence of each element for each TCPA claim will result in dismissal.
In Brief
The First and Fourteenth Courts issued two opinions (i.e., non-memorandum opinions) this week:
Pertolanitz v. Waldroup, No. 01-24-00033-CV (1COA: Adams, C.J.; Caughey, Johnson, JJ.) (trespass to title)
Clarke v. Wolf, No. 14-24-00226-CV (14COA: Christopher, C.J.; Jewell, McLaughlin, JJ.) (judicial immunity)
And perhaps of interest only to me: a briefing-related order, where the parties agreed to a four-step briefing schedule for a case involving a cross-appeal.
Some background: Under the Federal Rules of Appellate Procedure, cross-appeals follow a four-step brief sequence (with adjusted word limits) for cases involving a cross-appeal—(1) appellant’s opening brief, (2) appellee’s response brief and cross-appellant’s opening brief, (3) appellant’s reply brief and cross-appellee’s response brief, and (4) cross-appellant’s reply brief.
But the Texas Rules of Appellate Procedure contain no such framework. In Texas, parties in cross-appeals simply file dueling sets of briefs, subject only to an aggregate limit of 27,000 words per party. See Tex. R. App. P. 9.3(i)(2)(B).
Having handled cross-appeals in both Texas and federal courts, I strongly prefer the federal model. Even where the appeal and cross-appeal raise distinct legal questions, the underlying facts and procedural history typically overlap. And sometimes a cross-appellate issue turns on the resolution of an appellate issue. Whatever the case, writing two sets of briefs leads to duplication and inefficiency—for both the parties and the court. At least one Texas court of appeals seems to agree: the Fifth Court of Appeals (Dallas), which has adopted a local rule similar to Federal Rule 28.1. I’d welcome a similar amendment to the statewide Rules of Appellate Procedure.
Arguments
Both the First and Fourteenth Courts continue to maintain their pace of steady arguments.
1COA
On June 19, a panel consisting of Justices Guerra, Gunn, and Dokupil heard argument in Bynon v. Garcia, No. 01-24-00849-CV. Last week’s post previewed the case, a dispute concerning whether the plaintiffs’ claims are healthcare liability claims under the Texas Medical Liability Act (TMLA). A recording of the argument can be viewed at this link.
The same panel has two more scheduled arguments this week:
Chiv v. Figueroa, No. 01-23-00638-CV: In a car-wreck case, whether legally and factually sufficient evidence supports specific components of the jury’s awards for past medical expenses and physical pain.
Sarah Allen (Doyle, Restrepo, Harvin & Robbins) represents the appellant, and Andrew Parma (The Law Offices of Marcos & Associates) represents the appellee.
Houston Methodist St. John Hospital v. Cagle, No. 01-25-00055-CV: Whether the plaintiff—alleging negligence surrounding the hospital’s release of a newborn to adoptive parents after she revoked her affidavit of relinquishment—has asserted a healthcare liability claim under the TMLA; and, if so, whether the plaintiff’s expert report satisfies the requirements of Chapter 74.
Angela Nolan (Lapin & Landa) represents the appellant, and Keith Gross (Attorney at Law) represents the appellee.
The argument session begins at 1:30 pm on June 26.
14COA
On June 24, a panel consisting of Justices Jewell, Wilson, and Boatman will hear two arguments—one criminal, and one civil:
State v. Manzella, Nos. 14-24-0377-CR, 14-24-00378-CR: Whether the trial court erred in requiring the State to disclose the identity of a confidential informant under Texas Rule of Evidence 508—which the State declined, resulting in the indictment’s dismissal.
John Crump (Harris County District Attorney’s Office) represents the State, and Inger Chandler (Ingher H. Chandler PLLC) represents the defendant.
Occidental Petroleum Corporation v. Black Mountain Carbonlock, LLC, No. 14-24-00794-CV: Among other arbitral-related issues, whether the trial court erred in denying a motion to compel arbitration, despite the nonsignatory parties’ argument that direct-benefit and intertwined-claims estoppel applies.
Justin Patrick (Gibbs & Bruns) represents the appellants, and David Pruessner (Law Offices of David M. Pruessner) represents the appellee.
& Beyond
But once more, the bulk of activity came from the Supreme Courts of the United States and Texas. Both courts continue to release large batches of opinions as they steadily clear their dockets of orally argued cases before their informal June 30 deadlines.
SCOTUS
Opinions
The U.S. Supreme Court issued eleven merits opinions last week—five on June 18, and six on June 20. The Court now has ten outstanding decisions before its informal June 30 deadline.
June 18
Perttu v. Richards, No. 23-1324 (affirming Sixth Circuit):
Majority (Roberts, C.J., joined by Sotomayor, Kagan, Gorsuch, Jackson, JJ.): Prisoners bringing claims under the Prison Litigation Reform Act have a statutory right to a jury trial on the issue of PLRA exhaustion when the factual dispute regarding exhaustion is intertwined with the underlying claim’s merits.
Dissent (Barrett, J., joined by Thomas, Alito, Kavanaugh, JJ.): Nothing in the PLRA or the Seventh Amendment requires a jury trial under these circumstances. (And, by the way, neither the courts below nor the parties’ briefing discuss the majority’s conclusion.)
United States v. Skrmetti, No. 23-477 (affirming Sixth Circuit):
Majority (Roberts, C.J., joined in full by Thomas, Gorsuch, Kavanaugh, Barrett, JJ.; joined as to Parts I and II-B by Alito, J.): Rational-basis review—not heightened scrutiny—applies to an Equal Protection Clause challenge to a state law banning medical treatments like puberty blockers and hormone therapy for transgender minors. That law does not classify on the basis of sex or transgender status; it merely regulates medical procedures equally applied to all. And the law easily satisfies rational-basis review.
Concurrence (Thomas, J.): The Court’s analysis in Bostock v. Clayton County, 590 U.S. 644 (2020), does not inform constitutional challenges; it applies only to Title VII challenges. And the Court rightly discounts efforts to defer “to the authority of the expert class.”
Concurrence (Barrett, J., joined by Thomas, J.): Transgender status is not a suspect class.
Concurrence in Part and Dissent in Part (Alito, J.): The law probably classifies on the basis of transgender status. But it doesn’t matter, because transgender status is not a suspect (or quasi-suspect) class.
Dissent (Sotomayor, J., joined in full by Jackson, J.; joined as to Parts I–IV by Kagan, J.): The law facially discriminates based on both sex and transgender status, so intermediate scrutiny should apply—and it is questionable whether the law satisfies intermediate scrutiny.
Dissent (Kagan, J.): Justice Sotomayor is right that intermediate scrutiny applies, but we don’t need to wade into how it might apply here.
EPA v. Calumet Shreveport Refining, LLC, No. 23-1229 (reversing Fifth Circuit2):
Majority (Thomas, J., joined by Alito, Sotomayor, Kagan, Kavanaugh, Barrett, Jackson, JJ.): Although EPA’s denials of small-refinery-exemption petitions under the Clean Air Act constitute “locally or regionally applicable” actions, they are “based on a determination of nationwide scope or effect.” As a result, the challenges must be brought in the D.C. Circuit.
Dissent (Gorsuch, J., joined by Roberts, C.J.): The majority correctly holds that the challenges are “locally or regionally applicable” actions. But there is no “nationwide scope or effect” exception to this rule. So the challenges were properly brought in the regional circuit.
Oklahoma v. EPA, No. 23-1067 (reversing Tenth Circuit):
Majority (Thomas, J., joined by Sotomayor, Kagan, Kavanaugh, Barrett, Jackson, JJ.): Applying the test from Calumet Shreveport Refining, EPA’s disapproval of a state emissions-control plan (“SIP”) is a “locally or regionally applicable action,” and the “nationwide scope or effect” exception does not apply. So the challenges were properly brought in the regional circuit.
Concurrence in the Judgment (Gorsuch, J., joined by Roberts, C.J.): The majority correctly holds that a SIP is “locally or regionally applicable.” For the reasons stated in my Calumet Shreveport Refining dissent, the analysis should end there.
NRC v. Texas, No. 23-1300 (reversing Fifth Circuit3):
Majority (Kavanaugh, J., joined by Roberts, C.J.; Sotomayor, Kagan, Barrett, Jackson, JJ.): Entities who were not parties to a Nuclear Regulatory Commission’s licensing proceeding, including through intervention, may not obtain judicial review of the NRC’s licensing decision under the Hobbs Act. As a result, the Court need not reach the question of whether the NRC may license a private company to store spent nuclear fuel on private off-site facilities—though there is “significant support” for that position.
Dissent (Gorsuch, J., joined by Thomas, Alito, JJ.): The entities here were “parties” to the licensing proceeding because they participated in the underlying review process. And under the Atomic Energy Act, the NRC may not license a private company to store spent nuclear fuel on private off-site facilities.
June 20
Fuld v. Palestine Liberation Organization, No. 24-20 (reversing Second Circuit):
Majority (Roberts, C.J., joined by Alito, Sotomayor, Kagan, Kavanaugh, Barrett, Jackson, JJ.): The Promoting Security and Justice for Victims of Terrorism Act’s personal-jurisdiction provision does not violate the Fifth Amendment’s Due Process Clause because the statute reasonably ties the assertion of jurisdiction to conduct involving the United States and implicating sensitive foreign policy matters within the prerogative of the political branches.
Concurrence in the Judgment (Thomas, J., joined as to Part II by Gorsuch, J.): Based on text and history, the Fifth Amendment does not prohibit Congress from extending federal jurisdiction beyond the Nation’s borders.
Stanley v. City of Stanford, No. 23-997 (affirming Eleventh Circuit):
Majority—Parts I and II (Gorsuch, J., joined by Roberts, C.J.; Thomas, Alito, Kagan, Kavanaugh, Barrett, JJ.): A retiree is not a “qualified individual” who can maintain a discrimination claim under the Americans with Disabilities Act (ADA) when they neither hold nor desire a job whose essential tasks they can perform with reasonable accommodations.
Plurality—Part III (Gorsuch, J., joined by Alito, Sotomayor, Kagan, JJ.): A retiree could potentially maintain an ADA discrimination claim when they have alleged that the discrimination occurred when they held or sought the underlying job. But the plaintiff here did not make those allegations, indeed affirmatively disavowing this theory on appeal.
Concurrence in Part and in the Judgment (Thomas, J., joined by Barrett, J.): Part III exemplifies “the increasingly common practice of litigants urging this Court to grant certiorari to resolve one question, and then, after we do so, pivoting to an entirely different question.” The plurality should have stopped after Part II.
Concurrence in Part and Dissent in Part (Sotomayor, J.): I agree with Justice Jackson’s interpretation of “qualified individual,” but I agree with the plurality that the plaintiff forfeited the theory on appeal.
Dissent (Jackson, J., joined as to Parts III–IV (except for FN12) by Sotomayor, J.): The plaintiff here did allege that the discrimination occurred before she retired. At any rate, under the ADA, a retiree is a “qualified individual” under the ADA when she claims disability discrimination in the postemployment payout of benefits earned during her tenure.4
Diamond Alternative Energy, LLC v. EPA, No. 24-7 (reversing D.C. Circuit):
Majority (Kavanaugh, J., joined by Roberts, C.J.; Thomas, Alito, Kagan, Gorsuch, Barrett, JJ.): Fuel producers have Article III standing to raise a Clean Air Act challenge to EPA’s approval of California regulations requiring automakers to manufacture more electric vehicles and less gasoline-powered vehicles. It is likely that invalidating the regulations would likely result in more revenue from additional fuel sales, so the producers have established redressability.
Dissent (Sotomayor, J.): Because the D.C. Circuit’s standing opinion rests on a mistaken understanding of the facts, the proper course is to vacate and remand for reconsideration.
Dissent (Jackson, J.): The Court should not have granted certiorari on “this highly factbound, soon-to-be-moot dispute.” In any event, the majority’s opinion applies a “remarkably lenient approach to standing” in this case, which perhaps is because the case involves powerful industry plaintiffs.
McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., No. 23-1226 (reversing Ninth Circuit):
Majority (Kavanaugh, J., joined by Roberts, C.J.; Thomas, Alito, Gorsuch, Barrett, JJ.): The Hobbs Act does not bind district courts in enforcement proceedings to an agency’s interpretation of a statute. District courts must independently determine the law’s meaning under ordinary principles of statutory interpretation, while affording appropriate respect to the agency’s interpretation.
Dissent (Kagan, J., joined by Sotomayor, Jackson, JJ.): The Hobbs Act’s provision for pre-enforcement judicial review—giving the courts of appeals “exclusive jurisdiction” to “determine the validity” of agency action—means that district courts may not second-guess that conclusion in subsequent proceedings.
Esteras v. United States, No. 23-7483 (reversing Sixth Circuit):
Majority (Barrett, J., joined in full by Roberts, C.J.; Thomas, Kagan, Kavanaugh, JJ.; and as to all but Part II-B by Sotomayor, Jackson, JJ.): When considering whether to revoke a defendant’s supervised release, a district court may not consider 18 U.S.C. § 3553(a)(2)(A), which covers retribution for the defendant’s underlying crime.
Concurrence in Part and in the Judgment (Sotomayor, J., joined by Jackson, J.): District courts may not consider retribution for any purpose when making a revocation decision.
Concurrence in Part and in the Judgment (Jackson, J.): Same as Justice Sotomayor.
Dissent (Alito, J., joined by Gorsuch, J.): District courts absolutely may consider Section 3553(a)(2)(A) when making a revocation decision.
FDA v. R.J. Reynolds Vapor Co., No. 23-1187 (affirming Fifth Circuit5):
Majority (Barrett, J., joined by Roberts, C.J.; Thomas, Alito, Kagan, Gorsuch, Kavanaugh, JJ.): Retailers who would sell a new tobacco product if not for the Food and Drug Administration (FDA)’s order denying a manufacturer’s application are “any person[s] adversely affected” under the Family Smoking Prevention and Tobacco Control Act (TCA), allowing them to seek judicial review of the denial order.
Dissent (Jackson, J., joined by Sotomayor, J.): Only tobacco manufacturers—not retailers—may seek judicial review under the TCA of such a denial order, and they must do so in the D.C. Circuit or the circuit where those manufacturers have their principal place of business.
Orders
The Court also issued its scheduled order list on June 16—consisting mostly of certiorari denials. But it GVR’ed (granted, vacated, and remanded) one petition: Roman Catholic Diocese v. Harris, No. 24-319 (New York Court of Appeals), ordering reconsideration in light of Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, No. 24-154.
The Court also granted certiorari in two cases:
First Choice Women’s Resource v. Platkin, No. 24-781 (Third Circuit): When the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, whether a federal court in a first-filed action lacks jurisdiction because those rights must be adjudicated in state court.
Chevron USA Inc. v. Plaquemines Parish, No. 24-813 (Fifth Circuit6): Whether the “relating to” prong of the federal-officer-removal statute requires a showing of causation (a “causal nexus” test); and whether a federal contractor may remove to federal court when sued for oil-production activities undertaken to fulfill a federal oil-refinement contract.7
Finally, on June 20, the Court issued an order in Learning Resources, Inc. v. Trump, No. 24-1287: a case challenging President Trump’s imposition of tariffs under the International Emergency Economic Powers Act. There, the challengers seek to leapfrog the D.C. Circuit to obtain Supreme Court review of the district court’s judgment through a rarely granted petition for a writ of certiorari before judgment. The challengers moved to expedite consideration of the petition by ordering the Trump Administration to respond by June 23, allowing the Court to consider—and grant—the petition before its summer recess. To borrow one of Sarah Isgur’s phrases from one of my favorite legal podcasts, Advisory Opinions, the Court responded: “Naw, dog.”
SCOTX
Opinions
The Texas Supreme Court issued six opinions on its customary Friday orders list. It has five outstanding decisions from its docket of orally argued cases before its own informal June 30 deadline.8
Boeing Company v. Southwest Airlines Pilots Association (SWAPA), No. 22-0631 (affirming Fifth Court):
Majority (Boyd, J., joined by Blacklock, C.J.; Lehrmann, Devine, Busby, Young, Sullivan, JJ.): The federal Railway Labor Act does not preempt SWAPA’s state-law claims against Boeing, because resolving those claims does not substantially depend on interpreting the parties’ collective-bargaining agreements. Nor are SWAPA’s individual members’ assignments of their claims to SWAPA void as against public policy, giving SWAPA standing to pursue those individual members’ claims.
Dissent in Part (Bland, J., joined by Huddle, J.): Although the majority’s preemption holding is correct, its assignment holding is not. The assignments impermissibly attempt to circumvent the requirements of Business Organizations Code § 252.007, which allows nonprofit associations to assert member claims only when those claims do not require individual participation—an impossibility when individualized proof is required.
Mehta v. Mehta, No. 23-0507 (reversing Second Court):
Majority (Huddle, J., for unanimous Court): When quantitative evidence (e.g., lists of expenses and sources of income) is incomplete, courts considering eligibility for spousal maintenance may consider qualitative evidence (e.g., testimony about inability to pay for essential expenses). Courts may also consider child-support payments received by the spouse seeking maintenance, so long as the court also considers child-related expenses that the custodial spouse will incur.
Concurrence (Lehrmann, J., joined by Busby, J.): Courts determining eligibility for spousal maintenance should consider all available income (including child-support payments) against all reasonable expenses (including child-related expenses) because both affect the seeking spouse’s ability to meet her minimum reasonable needs.
BRP-Rotax GmbH & Co. KG v. Shaik, No. 23-0756 (reversing Fifth Court):
Majority (Young, J., for unanimous Court): Applying the stream-of-commerce-plus test, Texas courts lack personal jurisdiction over a foreign aircraft-engine manufacturer for products-liability and negligence claims arising from an allegedly defective aircraft engine. The engine came to Texas through the unilateral action of a third-party distributor with substantial discretion in marketing and providing after-sale support for the manufacturer’s products within that distributor’s territory—not any “stream” engineered, controlled, or manipulated by the manufacturer. It is insufficient that the manufacturer may have foreseen some of its products arriving in Texas.
Concurrence (Busby, J., joined by Devine, J.): The long-governing test for personal jurisdiction from International Shoe Co. v. Washington, 326 U.S. 310 (1945), is unworkable, “producing inconsistent, unpredictable, and thus unfair results in factually similar cases brought in different courts.” (Emphasis in original.) The U.S. Supreme Court should replace the International Shoe regime with one based on history and tradition, which focuses on sovereign power.9
City of Houston v. Gomez, No. 23-0858 (reversing Fourteenth Court10) (no oral argument11):
Majority (per curiam; Busby, J., recused): By itself, an officer’s momentary lapse of judgment when responding to an emergency call (here, reaching down to raise his police radio’s volume) amounts to mere negligence—not recklessness, as required to preclude the application of the Texas Tort Claim Act’s “emergency exception” under Civil Practice and Remedies Code § 101.055(2). And the law-of-the-case doctrine does not trump subsequent Supreme Court cases on the exception.
Lozada v. Posada, No. 23-1015 (reversing Eighth Court) (no oral argument):
Majority (per curiam): Although accidents happen when something has gone wrong, “not all accidents are evidence of negligence.” Here, no evidence shows that the driver acted negligently when attempting to control his tractor-trailer in response to a rapid, unforeseen tire failure.
Hyundam Industrial Company, Ltd. v. Swacina, No. 24-0207 (reversing Thirteenth Court) (no oral argument):
Majority (per curiam): The trial court properly exercised its discretion to deny the plaintiff’s motion to strike an affidavit in support of the defendant’s special appearance, which was based on the affiant’s nonconclusory personal knowledge. And for similar reasons as BRP-Rotax, a foreign manufacturer’s desire to serve a large region including Texas does not constitute purposeful availment when there is no other evidence that the manufacturer specifically targeted Texas.
Orders
In its orders list, the Court also granted petitions for review in five cases:
Equinox Energy LP v. Lindale Pipeline, LLC, No. 24-0425 (First Court12): Whether the trial court properly determined that a pipeline agreement’s provision concerning the provision of water was ambiguous, allowing the issue’s submission to a jury; and whether legally sufficient evidence supports the jury’s $26-million award of damages.
State v. JRJ Pusok Holdings, LLC, No. 24-0447 (Fourteenth Court13): Whether the Texas Repurchase Statutes (Texas Property Code § 21.101 et seq.) waive the State’s sovereign immunity—and, even if so, whether repurchase claims apply only to property acquired through eminent domain (not property that could have been taken by eminent domain, but instead purchased by the parties’ agreement), and whether such claims must be brought in district courts (not county courts of law).
Ruth v. Commission for Lawyer Discipline, No. 24-0613 (Fourth Court): Whether Texas Disciplinary Rule of Professional Conduct 4.02—prohibiting attorneys from communicating with opposing parties who are represented by counsel (“the no-contact rule”)—applies to a lawyer representing himself pro se.
Busse v. South Texas Independent School District, No. 24-0782 (Thirteenth Court): Among other issues, whether the plaintiffs—individual taxpayers and a neighboring school district—have standing to challenge the constitutionality of a school property tax.
In Interest of C.S. Jr., No. 25-0008 (Eleventh Court): Among other issues, whether the trial court properly extended the automatic dismissal deadline in a termination proceeding under Family Code § 263.401 when it failed to make the required “extraordinary circumstances” and “best interest” findings before that deadline—and relatedly, whether the parent preserved the argument by objecting after the deadline, but before the trial on the merits.
The orders list also contains the Court’s helpful summaries of last week’s granted petitions.
Other
Thanks again to our Supreme Courts, I’ve provided enough content for multiple posts. But it’s me, so I couldn’t help but flag three more cases.
CA5
United States v. Allam, No. 24-40065 (Graves, Higginson, Wilson, JJ.): As some know, I cut my appellate teeth at the United States Attorney’s Office for the Southern District of Texas, where I worked for seven years as an AUSA in the Appellate Division. Though I’ve since shifted to civil appellate work, I still keep an occasional eye on the Fifth Circuit’s criminal docket. (Some habits die hard.)
A bit of background: In recent years, Second Amendment challenges—particularly to various subsections of 18 U.S.C. § 922 (the federal firearm-possession statute)—are on the rise. In Fifth Circuit Update CLEs I’ve participated in, I’ve asked a few judges on the court for any noteworthy trends, and constitutional challenges to Section 922 regularly common up. No surprise there: The U.S. Supreme Court’s recent opinions in New York State Rifle & Pistol Association, Inc. v. Bruen (2022) and United States v. Rahimi (2024) set a new two-step framework for analyzing Second Amendment challenges: First, does the Second Amendment’s text cover the individual’s conduct? And second, if so, is the challenged law consistent with the Nation’s historical tradition of firearm regulation?
The trickier step is the second. Under Bruen and Rahimi, it’s the Government’s burden to identify historical analogues that are sufficiently similar to the modern restriction. The test doesn’t require an exact match, but something close enough to show that the “law is consistent with this Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S. at 17.
Allam showcases the challenge. It’s a disturbing case: For several days, the defendant sat parked just 40 feet from a Beaumont, Texas school—armed with an AR-15-style rifle, a thirty-round magazine, and 150 rounds of ammunition. When asked to leave, he refused to—at one point telling a parent that he was on a “mission” and that “no one would ever see him again Monday.” Alarmed, the parent called police. Officers arrested the defendant for traffic violations, and a search of his car turned up the rifle and ammo (plus many other troubling items, as outlined in footnote 3).
The defendant was indicted under Section 922(q)(2)(A), which prohibits firearm possession in or near school zones. He moved to dismiss, challenging the statute’s constitutionality under the Second Amendment, which the district court denied. The defendant pleaded guilty and appealed his motion’s denial.
The Fifth Circuit affirmed. Perhaps mindful of the Supreme Court’s recent skepticism toward facial constitutional challenges (see the first paragraph of Part II of the Court’s opinion last Term in Moody v. NetChoice, LLC), the defendant limited his appeal to an as-applied constitutional challenge. The panel had little difficulty with step one of the Bruen/Rahimi framework: He claimed to carry the AR-15 for self-defense, so the Second Amendment arguably applied.
But step two required more work. The Government relied on several historical laws, chief among them King Henry VII’s version of the Statute of Northampton and going-armed laws. Though not “dead ringers” or the “historical twins” for modern buffer-zone laws, the panel found them sufficiently analogous. The court also considered 19th-century regulations in educational settings and certain states’ polling-place restrictions. These latter examples were less persuasive, but still offered “some evidence of the permissibility of limited buffer zones for the purpose of preventing threats of physical violence.” Altogether, the panel held that the statute was constitutional as applied to the defendant’s conduct.
Bottom line: This is dense, complex research and analysis—and another example of just how much work these Second Amendment challenges demand, both from lawyers and the courts.
Roake v. Brumley, No. 24-30376 (Dennis, Haynes, Ramirez, JJ.): Late Friday, the Fifth Circuit issued a lengthy opinion in a closely watched challenge to Louisiana’s Ten Commandments law. The law requires Louisiana public schools to display a poster-sized copy of the Ten Commandments, accompanied by a “context statement” about their historical role in American education. But that idea arguably isn’t new—over forty years ago, the Supreme Court struck down a similar Kentucky statute in Stone v. Graham, 449 U.S. 30 (1980) (per curiam). Citing Stone, a group of parents and students filed a pre-enforcement First Amendment challenge, and the district court enjoined the law’s enforcement.
The Fifth Circuit affirmed. The opinion tackles several threshold issues—including ripeness and sovereign immunity. But the most interesting issues are standing and the Establishment Clause. On both fronts, Louisiana pressed aggressive theories: Relying on Kennedy v. Bremerton School District’s rejection of the old Establishment Clause test from Lemon v. Kurtzman,14 the State argued that Stone was no longer controling and that “offended observer standing” no longer applied. The panel disagreed—rejecting these arguments and attempts to distinguish this case from Stone and other precedents—and upheld the injunction.
But Roake is far from finished. Louisiana’s Attorney General has already announced plans to seek en banc review. The odds of a grant strike me as very high—but at bare minimum, someone will write an opinion. Either way, the next stop is One First Street.
Texas Business Court
Primexx Energy Opportunity Fund, LP v. Primexx Energy Corporation, No. 24-BC01B-0010 (1st Div.; Whitehill, J.): I ordinarily stick to appellate cases, but this one warrants an exception.
The case involves a nine-figure “drag-along sale” dispute between a corporation and its minority investors. The investors sued in the Texas Business Court, asserting a range of claims—including breach of contract and breach of fiduciary duty. In an eighty-page opinion, the court granted summary judgment for the defendants on the investors’ key claims. The parties then entered into a Rule 11 agreement dismissing the remaining claims, rendering the summary judgment final and appealable.
As the Texas Lawbook reports (subscription required), this marks the first contested final judgment on the merits issued by a Texas Business Court—and, in turn, the first contested final judgment to be appealed to the newly created Fifteenth Court of Appeals. That makes Primexx the Fifteenth Court’s debut opportunity to weigh in on corporate law. It’s one worth watching.
Red Light
Phew—another L-O-N-G post. If you’ve made it this far, thanks for sticking with me! (And yes, I too am counting down the days until the Supreme Courts wrap their Terms.)
As I’ve said before, 1910 & Beyond is a work in progress. I’m still figuring out what works—and what doesn’t—for future posts, and I truly appreciate your patience along the way. The best way to improve this publication is by hearing from you, the readers. So please don’t hesitate to leave a comment or send an email with any feedback, topic ideas, or tips on interesting cases.
Thanks again for your support of this new venture. I’m especially grateful to the growing number of you who have subscribed—and, if you haven’t yet, it’s free! I hope you’ll also consider sharing this post with someone in your network who might be interested in joining this “Substack for appellate nerds.”
I’ll be back next week—and, once more in Becca’s words, “for the love of the law, apparently not the revenue stream.”
Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939).
Judge Smith authored the panel opinion for the Fifth Circuit, which now-Chief Judge Elrod joined. Judge Higginbotham dissented, reaching the ultimate result as the Supreme Court.
Also, the Court technically vacated the Fifth Circuit’s judgment. But as before, I use the shorthand “reversed” for readers to more easily track the court-by-court outcome.
Judge Ho authored the panel opinion for the Fifth Circuit, joined by Judges Jones and Wilson. The court later denied en banc review by a vote of 9 (Richman, C.J.; Jones, Smith, Elrod, Haynes, Ho, Duncan, Engelhardt, Wilson, JJ.) to 7 (Stewart, Southwick, Graves, Higginson, Willett, Douglas, Ramirez, JJ.). The dissental authored by Judge Higginson—joined by Judges Graves, Douglas, and Ramirez—reached the same result as the Supreme Court.
In footnote 12, Justice Jackson characterizes “pure textualism” as “incessantly malleable,” an interpretive method “certainly somehow flexible enough to secure the majority’s desired outcome.” She asserts that “pure textualism’s refusal to try to understand the text of the statute in the larger context of what Congress sought to achieve turns the interpretive task into a potent weapon for advancing judicial policy preferences.” (Emphasis added.)
Judge Jones and Ho joined the underlying per curiam order for the Fifth Circuit, while Judge Higginson dissented.
Judge Davis authored the Fifth Circuit’s panel opinion, joined by Judge Englehardt. Judge Oldham dissented. With four judges recused (Smith, Haynes, Ho, Douglas, JJ.), the Court denied en banc review by a closely divided vote of 7 (Elrod, C.J.; Stewart, Southwick, Graves, Higginson, Engelhardt, Ramirez, JJ.) to 6 (Jones, Richman, Willett, Duncan, Oldham, Wilson, JJ.)
I’ve been interested in federal-officer-removal jurisdiction ever since one of my own cases went up to the U.S. Supreme Court on the issue—coincidentally with Paul Clement (who represents Chevron here) also representing the removing defendant. That case, though, involved a different element of the test: whether the defendant was “acting under” a federal officer.
At a campaign event last week in Houston, Justice Busby said that the Court would meet this deadline.
Adam Shniderman has an insightful analysis of Justice Busby’s concurrence at his excellent Substack, 14th & Colorado.
Justice Zimmerer authored the majority opinion for the panel, joined by Justice Hassan. Justice Wilson dissented, reaching the same result as the Supreme Court.
Recall that the Texas Supreme Court regularly issues opinions in appeals and original proceedings without hearing argument. See Tex. R. App. P. 52.8(c), 59.1.
Justice Kelly authored the memorandum opinion for the panel, joined by Justices Landau and Countiss.
Chief Justice Christopher authored the panel opinions (including its supplemental opinion on rehearing, which Justices Bourliot and Hassan joined.
Kennedy, 597 U.S. 507 (2022); Lemon, 403 U.S. 602 (1971).