25-04: The Final Countdown
A look back to the week of June 23, with help from stadium rock anthems
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.
For those who have already subscribed, thank you—and for those who haven’t yet, I hope you’ll consider joining us!
We’ve reached The Final Countdown. Showing that the Justices, too, are working for the weekend, the Supreme Courts of the United States and Texas cleared their dockets of all outstanding merits opinions by Friday—just ahead of their informal Monday, June 30 deadlines. So, for one more week, we have a great deal of ground to cover. Let’s get to it.
1910
Orders and Opinions
But first, as always, let’s start with our local courts in Houston. The First Court issued orders and opinions on June 23, 24, 25, and 26; while the Fourteenth Court did so every day: June 23, 24, 25, 26, and 27. Below, I’ll feature one opinion from each court that stood out to me, followed by a brief note on other opinions that I thought worth mentioning.
Features
Begala v. Begala, No. 01-24-00734-CV (1COA: Adams, C.J.; Gunn, Guiney, JJ.) (op.): A divorce decree required David to pay spousal maintenance to his ex-wife Rebecca for several years. David moved to terminate the obligation under Family Code § 8.056(b), which mandates termination if the obligee “cohabits with another person with whom the obligee has a dating or romantic relationship in a permanent place of abode on a continuing basis.”
In the trial court, David presented evidence that Rebecca stayed overnight at her new boyfriend’s house for 116 consecutive days. Rebecca admitted to being in a romantic relationship with her boyfriend. And she admitted staying continuously at his house for more than 60 days. But she characterized the stay as “temporary” and denied “cohabiting.” The trial court denied David’s motion.
In an opinion by Justice Gunn, the First Court reversed and rendered judgment in David’s favor. The first element of the test was readily met: Rebecca and her boyfriend cohabitated in a romantic relationship. The second was equally satisfied: A house is a “permanent place of abode.”
The crux of the dispute turned on the third element: Did the cohabitation occur “on a continuing basis”? Emphasizing the Legislature’s 2011 removal of the word “conjugal” from the statute (“continuing, conjugal basis”), the court held that the term “continuing” is best understood in light of Chapter 8’s monthly structure: one month. Because Rebecca’s cohabitation spanned at least two maintenance periods, it qualified as continuous under the statute—requiring the obligation’s termination.
N.B.: The panel seems to think this case might be worth Supreme Court review. Characterizing the issue as a “significant issue of first impression” (emphasis added), it required David to continue making his monthly maintenance payments into the trial court’s registry until the mandate’s issuance—a temporary order allowed under Texas Rule of Appellate Procedure 24 to preserve the parties’ rights “[s]o that discretionary review may be sought[.]”
Is the case worth Supreme Court review? Maybe—and the panel’s gentle suggestion certainly helps that cause. But I could see the Court denying review if they think the panel got it right, or if simply wishes to let the issue “percolate” in other Texas appellate courts.
Coe v. DNOW LP, No. 14-23-00410-CV (14COA: Christopher, C.J. & Wise, J.) (op.)1: After dozens of employees defected to a competitor, DNOW sued thirteen former employees—plus the competitor and its owner—alleging theft and misuse of DNOW’s confidential and trade-secret information. A jury found for DNOW on trade-secret, civil-theft, and fiduciary-duty claims, awarding over $1.7 million in actual damages, $400,000 in exemplary damages, and $3.2 million in attorneys’ fees. In an opinion by Chief Justice Christopher, the Fourteenth Court reversed nearly all of it.
DNOW’s core theory was that the employees helped engineer a “mass exodus” to the competitor, taking valuable information with them. Although some employees did copy DNOW materials and others encouraged colleagues to jump ship, the Fourteenth Court found that the original judgment couldn’t stand for several reasons:
TUTSA Preemption: In a holding of first impression, the court adopted the majority “compare-the-facts” or “same conduct” test for preemption under the Texas Uniform Trade Secrets Act (TUTSA). Under that test, TUTSA preempts any tort claim—including civil conspiracy—based on the same underlying facts as trade-secret misappropriation. Thus DNOW couldn’t rely on civil conspiracy to hold all the defendants jointly and severally liable; it could “recover damages caused by acts constituting trade-secret misappropriation only to the extent of each individual wrongdoer’s responsibility.” (Emphasis added.).
Damages: Legally sufficient evidence supported the jury’s award of damages for $225,000 in retention bonuses and apportionment of 5% responsibility ($11,2502) to one defendant for trade-secret misappropriation. But the rest of the damages evidence was legally insufficient: DNOW’s witnesses failed to present nonconclusory evidence of lost profits, costs of retraining, or lost productivity.
Attorneys’ Fees: The court remanded for a redetermination of DNOW’s attorneys’ fees.3 DNOW was no longer the prevailing party as to 12 of the 13 defendants, and its total recovery had been reduced by over 99%.
Civil Theft: The jury charge improperly omitted the defendants’ requested definition of “intent to appropriate” under the Texas Theft Liability Act (TTLA), which requires intent to deprive the owner of the property. By contrast, TUTSA defines appropriation largely based on mere unauthorized acquisition and use—raising the risk that that the jury applied the wrong standard. Because DNOW presented no evidence of the kind of appropriation required under the TTLA, the court rendered judgment against DNOW on this claim.
Fiduciary Duty: TUTSA did not preempt DNOW’s fiduciary-duty claims against certain managerial employees breached fiduciary duties, as those didn’t necessarily require trade-secret misappropriation. But here as well, the jury charge misstated the fiduciary-duty standard, and the court couldn’t be sure the jury wasn’t misled. Because there was some evidence of breach under the proper standard, the court reversed and remanded these claims for a new trial.
N.B.: This opinion is a must read for trade-secret litigators in Texas. Practitioners should note the court’s adoption of the “compare-the-facts” test for TUTSA preemption, its strict enforcement of damages proof in trade-secret cases, and its close eye on proper jury instructions for civil-theft and fiduciary-duty claims.
In Brief
Beyond these two opinions, several others this week caught my eye:
Masterson v. BCHH Title of Texas, LLC, No. 01-23-00127-CV (1COA: Adams, C.J.; Rivas-Molloy, Gunn, JJ.) (mem. op.): A party’s conditional demand letter and a counterparty’s response with different terms do not form an enforceable settlement agreement. But what really stands out here isn’t the black-letter contract-law doctrine—it’s the yawning gap between the amount in dispute ($1,000 in earnest money) and the ever-increasing attorneys’ fees (from the briefing, it looks like the parties may be approaching six figures).
Bell v. Bay Area RV Parks, LLC, No. 01-23-00453-CV (1COA: Adams, C.J.; Rivas-Molloy, Gunn, JJ.) (op.): Among other holdings, Texas law does not recognize a tort claim for conversion for a membership interest in a limited liability company.
Thomas Craig Construction, Inc. v. Park Square Condominium Owner’s Association, No. 01-22-00918-CV (1COA: Adams, C.J.; Gunn, Guiney, JJ.) (mem. op.): A defendant waived the right to arbitration by waiting nearly three years before moving to arbitrate—during which time it engaged in significant discovery and otherwise participated in ltigation.
West v. D.C., No. 14-24-00502-CV (14COA: Christopher, C.J.; Jewell, McLaughlin, JJ.) (op.): Medical expert testimony is required to establish causation in disease-transmission cases.
Arguments
This week, both the First and Fourteenth Courts held their final oral-argument sessions for the month of June.
1COA
As previewed in last week’s post, a panel consisting of Justices Guerra, Gunn, and Dokupil heard argument in two cases on June 26:
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.
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.
Perhaps because of the summer season, the First Court currently has no other scheduled arguments on the docket.
14COA
Also as previewed in last week’s post, a panel consisting of Justices Jewell,4 Wilson, and Boatman heard argument in two cases on June 24:
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.
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.
The Fourteenth Court won’t be back for argument until after the July 4 holiday.
& Beyond
But once more—and hopefully for the last time in a while—the main action came from the Supreme Courts of the United States and Texas. Both Courts cleared their dockets of all orally argued cases from the past Term, doing so three days ahead of schedule—allowing them to depart early for their summer recesses.5
SCOTUS
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Opinions
The U.S. Supreme Court issued nine merits opinions from October Term 2024 last week—four on June 26 and five on June 27.
June 26
Riley v. Bondi, No. 23-1270 (reversing Fourth Circuit6):
Majority (Alito, J., joined in full by Roberts, C.J.; Thomas, Kavanaugh, Barrett, JJ., and as to Part II-B by Sotomayor, Kagan, Gorsuch, Jackson, JJ.): A Board of Immigration Appeals (BIA) order denying a request for withholding of removal—where the issue is not whether the alien is removable, but whether he may be removed to his home country—is not a “final order of removal” under 8 U.S.C. § 1252(b)(1). In this case, the “final administrative review order” issued by DHS was the final order. But Section 1252(b)(1)’s 30-day deadline for filing a petition for review of the final order is not jurisdictional; it’s a claims-processing rule.
Concurrence (Thomas, J.): The court of appeals likely lacks jurisdiction to review the alien’s challenge to the order denying relief in his withholding-only proceeding because it is not part of a larger challenge to the final order of removal.
Dissent in Part (Sotomayor, J., joined in full by Kagan, Jackson, JJ.; and except as to Part IV by Gorsuch, J.): An order of removal does not become “final” under Section 1252(b)(1) until withholding-only proceedings are complete.7
Riley v. Bondi, No. 23-1270 (reversing Fourth Circuit):
Majority (Alito, J., joined in full by Roberts, C.J.; Thomas, Kavanaugh, Barrett, JJ., and as to Part II-B by Sotomayor, Kagan, Gorsuch, Jackson, JJ.): A Board of Immigration Appeals (BIA) order denying a request for withholding of removal—where the issue is not whether the alien is removable, but whether the alien may be removed to his home country—is not a “final order of removal” under 8 U.S.C. § 1252(b)(1). In this case, the “final administrative review order” issued by DHS was the final order. But Section 1252(b)(1)’s 30-day deadline for filing a petition for review of the final order is not jurisdictional, but a claims-processing rule.
Concurrence (Thomas, J.): The court of appeals likely lacks jurisdiction to review the alien’s challenge to the order denying relief in his withholding-only proceeding because it is not part of a broader challenge to the final order of removal.
Dissent in Part (Sotomayor, J., joined in full by Kagan, Jackson, JJ.; and except as to Part IV by Gorsuch, J.): An order of removal does not become “final” under Section 1252(b)(1) until withholding-only proceedings are complete.
Medina v. Planned Parenthood South Atlantic, No. 23-1275 (reversing Fourth Circuit):
Majority (Gorsuch, J., joined by Roberts, C.J.; Thomas, Alito, Kavanaugh, Barrett, JJ.): Medicaid’s “any qualified provider” provision—42 U.S.C. § 1396a(a)(23)(A)—does not clearly and unambiguously confer individual rights enforceable under Section 1983. So private plaintiffs cannot sue state officials under Section 1983 for their decision to exclude of a particular provider (here, Planned Parenthood) from the state’s Medicaid program.
Concurrence (Thomas, J.): The Court should revisit its Section 1983 jurisprudence, which has stretched the statute well beyond its original understanding.
Dissent (Jackson, J., joined by Sotomayor, Kagan, JJ.): Congress did use rights-creating language in the “any qualified provider” provision. The majority’s contrary interpretation rewrites the Court’s test—and in a way that undermines the statute’s core function.
Hewitt v. United States, No. 23-1002 (reversing Fifth Circuit8):
Majority—Parts I–III (Jackson, J., joined by Roberts, C.J.; Sotomayor, Kagan, Gorsuch, JJ.): The First Step Act (FSA)’s sentencing-reduction provisions apply to someone who was originally sentenced before the FSA’s enactment, but whose sentence was subsequently vacated and who will be resentenced after the FSA’s enactment.
Plurality—Parts IV–V (Jackson, J., joined by Sotomayor, Kagan, JJ.): The legislative history supports this interpretation of the FSA.
Dissent (Alito, J., joined by Thomas, Kavanaugh, Barrett, JJ.): Neither the FSA’s text nor context support the majority’s “novel vacatur” interpretation. To the contrary, Congress expressly limited the FSA’s retroactive reach to defendants who had not been sentenced as of the time of enactment.
June 27
Free Speech Coalition, Inc. v. Paxton, No. 23-1122 (affirming Fifth Circuit9):
Majority (Thomas, J., joined by Roberts, C.J.; Alito, Gorsuch, Kavanaugh, Barrett, JJ.): Texas’s law requiring age verification for online pornographic content does not violate the First Amendment. The law triggers only intermediate scrutiny because it targets unprotected speech—obscenity to minors—while burdening adults’ access only incidentally.
Dissent (Kagan, J., joined by Sotomayor, Jackson, JJ.): Texas’s law directly—not “incidentally”—burdens adults’ access to constitutionally protected speech based on content. Strict scrutiny thus applies.
Mahmoud v. Taylor, No. 24-297 (reversing Fourth Circuit):
Majority (Alito, J., joined by Roberts, C.J.; Thomas, Gorsuch, Kavanaugh, Barrett, JJ.): A school policy requiring children to participate in LGBTQ+-inclusive lessons—without notice or the opportunity to opt out—impermissibly burdens parents’ free-exercise rights to direct their children’s religious upbringing. The policy also fails strict scrutiny, particularly in light of its lack of opt-outs.
Concurrence (Thomas, J.): The school’s policy is really unconstitutional.
Dissent (Sotomayor, J., joined by Kagan, Jackson, JJ.): The Free Exercise Clause prohibits coercion, not mere exposure to objectionable ideas. The majority’s misinterpretation of Yoder effectively creates “a new constitutional right to opt out of any instruction that involves themes contrary to anyone’s religious beliefs”—and perhaps other aspects of schooling—posing serious logistical challenges for schools.
Federal Communications Commission v. Consumers’ Research, No. 24-354 (reversing Fifth Circuit10):
Majority (Kagan, J, joined by Roberts, C.J.; Sotomayor, Kavanaugh, Barrett, Jackson, JJ.): The FCC’s universal-service scheme—specifically, its contribution mechanism—does not violate the nondelegation doctrine. The statute provides an intelligible principle by directing the FCC to collect only what is “sufficient” to fund statutorily defined programs, thereby setting both a ceiling and a floor. Nor does the statute violate the private nondelegation doctrine, because the ultimate power rests with the FCC.
Concurrence (Kavanaugh, J.): The nondelegation doctrine is not toothless. And there would be substantial constitutional concerns with congressional delegation of authority to an independent agency, rather than an executive agency like the FCC.
Concurrence (Jackson, J.): The private nondelegation doctrine might not actually be a thing.
Dissent (Gorsuch, J., joined by Thomas, Alito, JJ.): The universal-service scheme’s contribution mechanism is a tax, and Congress may not delegate taxing authority without specifying a numeric cap or a defined rate. And “the modern, enfeebled form of the intelligible principle test” undermines our tripartite separation of powers.
Kennedy v. Braidwood Management, Inc., No. 24-316 (reversing Fifth Circuit11):
Majority (Kavanaugh, J., joined by Roberts, C.J.; Sotomayor, Kagan, Barrett, Jackson, JJ.): Members of the U.S. Preventative Services Task Force—an entity within the Department of Health and Human Services—are inferior, not principal, officers. Their work is “directed and supervised” by the HHS Secretary, who has at-will removal authority and can block Task Force recommendations. As a result, the members’ appointment by the HHS Secretary—as authorized by statute—does not violate Article II’s Appointments Clause.
Dissent (Thomas, J., joined by Alito, Gorsuch, JJ.): The proper course is to remand to allow the Fifth Circuit “to consider the important threshold question that it skipped”: whether the Secretary has statutory authority to to appoint Task Force members. But if forced to decide, the statute’s use of “convene” does not confer appointment power—thus avoiding a potential constitutional problem.
Trump v. CASA, Inc., No. 24A884 (partially granting stay applications):
Majority (Barrett, J., joined by Roberts, C.J.; Thomas, Alito, Gorsuch, Kavanaugh JJ.): Universal injunctions likely (read: definitely) exceed federal courts’ equitable authority under the Judiciary Act of 1789. Though equity is flexible, that flexibility is confined to remedies with historical pedigree—and universal injunctions bear no resemblance to anything available at the Founding.
Concurrence (Thomas, J., joined by Gorsuch, J.): Courts should be careful not to resurrect universal injunctions “under the guise of granting complete relief.”
Concurrence (Alito, J., joined by Thomas, J.): Courts should guard against “[l]ax enforcement of the requirements for third-party standing and class certification[,]” which would undermine today’s decision.
Concurrence (Kavanaugh, J.): Remember—the Supreme Court, not district courts, remains “the ultimate decision maker as to the interim legal status of major new federal statutes and executive actions.”
Dissent (Sotomayor, J., joined by Kagan, Jackson, JJ.): The Government cannot show irreparable harm as required for a stay, as President Trump’s executive order eliminating birthright citizenship is plainly unconstitutional. In any event, universal injunctions are consistent with the Nation’s history and tradition—not to mention the whole point of equity.
Dissent (Jackson, J.): The majority’s misguided focus on whether universal injunctions are historically grounded—“a mind-numbingly technical query”—is ultimately “a smokescreen.” What matters is this: In the United States, the Judiciary has a “foundational duty to uphold the Constitution and laws of the United States.” As a result, “courts must have the power to order everyone (including the Executive) to follow the law—full stop.”12
Orders
But wait . . . there’s more!
As astute readers may recall, I wrote in last week’s post that the Court had ten opinions left to go. Yet this week, the Court issued only nine—and announced it was done for the Term. So what happened to the tenth?
That case was Louisiana v. Callais, Nos. 24-109 & 24-110: an appeal from a redistricting challenge to a Louisiana majority-minority congressional district. Though fully briefed and argued this Term, the Court issued an order restoring the case to the calendar for reargument in October Term 2025, potentially with supplemental briefing.
Justice Thomas dissented, believing the case—within the Court’s mandatory jurisdiction—should have been resolved this Term. He then expressed hope that the Court would fix its “broken” Section 2 Voting Rights Act jurisprudence, whose race-based remedies, in his view, place the Act in direct conflict with the Equal Protection Clause.
The Court also issued a significant order in Department of Homeland Security v. D.V.D., No. 24A1153. In D.V.D., the Solicitor General sought to stay an April 2025 district-court order preventing DHS from removing noncitizens to a country not listed in their removal orders unless it first provided that country’s “written notice” and the noncitizen with a “meaningful opportunity” to raise a claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Without explanation, the Court—by an unknown majority vote (5–4? 6–3?)—granted the application, staying the order pending appeal. Joined by Justices Kagan and Jackson, Justice Sotomayor dissented. In a lengthy orders-stage dissent, she argued that the Government was not entitled to a stay in light of its “flagrantly unlawful conduct” (including flouting court orders) and the absence of irreparable harm—especially when compared to the harm facing the noncitizens.
Less than 24 hours later, the Government returned with a “motion to clarify.” According to the district court, the Court’s stay did not affect a separate May 2025 order finding that the Government had violated the April order. The Government asked the Court to clarify that its order also reached both district-court rulings—and to consider instructing the district court not to issue any further injunctions without first seeking preclearance, or ordering the case’s reassignment to a different district judge on remand. After a flurry of briefing, the motion remains pending.
Finally, in its customary orders list, the Court granted certiorari in one case: Landor v. Louisiana Department of Corrections & Public Safety, No. 23-1197. The issue presented is whether a person may sue a government official in his individual capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act of 2000 (RLIUPA).
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Opinions
Not to be outdone by the U.S. Supreme Court, the Texas Supreme Court issued the final five remaining merits opinions of its 2024 Term in its customary Friday orders list. It also released three opinions in non-orally argued cases.
Werner Enterprises, Inc. v. Blake, No. 23-0493 (reversing Fourteenth Court13):
Majority (Blacklock, C.J., joined by Devine, Busby, Young, Sullivan, JJ.): “As between the two drivers involved in a head-on collision, substantial-factor causation requires us to assign legal responsibility to the driver whose negligence made the collision happen—not to a driver whose negligence merely happened to bring him to a time and place at which another driver unexpectedly and negligently collided with him before he had time to react.” So even if the tractor-trailer driver’s speed was a but-for cause of the crash, the only substantial factor was the plaintiff’s conduct: suddenly and unexpectedly losing control of his pick-up, crossing the highway median, and striking the tractor-trailer before its driver had time to respond.
Concurrence (Young, J., joined by Huddle, J.): In a future case, the Court should consider adopting the Admission Rule: When an employer stipulates that its employee was acting within the course and scope of employment, “derivative” theories of negligence—e.g., negligent hiring, training, and supervision—cannot proceed. And that rule shouldn’t be circumvented by a mere allegation of gross negligence.
Dissent in Part (Bland, J., joined by Boyd, Huddle, JJ.): Because some evidence showed that the tractor-trailer driver’s excessive speed contributed to the severity of the plaintiffs’ injuries, the trial court properly submitted the driver’s negligence to the jury. But for the reasons explained in Justice Young’s concurrence, a new trial is required because the trial court should have submitted only the driver—not also his employer—as a liable party.
Not Participating: Lehrmann, J.
Cactus Water Services, LLC v. COG Operating, LLC, No. 23-0676 (affirming Eighth Court):
Majority (Devine, J., for unanimous Court): A mineral lessee owns the “produced water” from oil-and-gas operations when the conveyance—using standard language to transfer oil and gas rights—does not expressly address ownership of produced water.
Concurrence (Busby, J., joined by Lehrmann, Sullivan, JJ.): Parties are free to alter this default rule by contract. And the opinion does not address ownership of un-leased minerals or non-hydrocarbon minerals. Nor does it address the lessee’s obligations to the landowners with respect to the leased “produced water.”
Not Participating: Young, J.
Southern Methodist University v. South Central Jurisdictional Conference of the United Methodist Church, No. 23-0703 (affirming in part and reversing in part Fifth Court):
Majority (Lehrmann, J., joined in full by Blacklock, C.J.; Boyd, Devine, Busby, Huddle, Young, Sullivan, JJ.; and as except to Part IV(B) by Bland, J.): The church-autonomy doctrine does not bar this suit’s adjudication, as the claims do not require courts to interpret church doctrine—only Texas statutes and SMU’s articles of incorporation. Under Business Organizations Code Code § 22.007, the Conference has authority to sue SMU for allegedly ultra vires acts. It may also pursue a breach-of-contract claim against SMU as a third-party beneficiary of SMU’s articles of incorporation. But the Conference’s false-filing claim fails, because the certificate of amendment—read as a whole—is not “materially false.”
Concurrence (Young, J., joined in full by Devine, Sullivan, JJ.; and as to Parts I, III, and IV by Blacklock, C.J.): Parties and amici should continue to explore the contours of the church-autonomy doctrine, which “is a constitutional principle of literally transcendent importance.” And there is reason to believe that the Texas doctrine is broader than its federal counterpart.
Dissent in Part (Bland, J.): Religious organizations may bring declaratory-judgment claims challenging ultra vires corporate actions. But a nonprofit’s charter does not confer third-party-beneficiary status through the State’s charter authorization. So the Conference’s breach-of-contract claim should fail.
Paxton v. American Oversight, No. 24-0162 (reversing Third Court):
Majority (Blacklock, C.J., for unanimous Court): Under Government Code § 22.002, district courts lack jurisdiction to issue writs of mandamus against constitutional executive officers like the Governor and the Attorney General. Violations of the Public Information Act remain subject to criminal penalties, as well as civil declaratory and injunctive relief.
Concurrence (Young, J.): It is doubtful that even the Supreme Court could issue a writ of mandamus against the Governor.
Not Participating: Sullivan, J.
Borusan Mannesmann Pipe US, Inc. v. Hunting Energy Services, LLC, No. 24-0183 (reversing Fourteenth Court14) (no oral argument):
Majority (per curiam): A party does not forfeit an appellate issue by failing to cite cases and statutes, so long as the party has otherwise presented sufficient argument on the issue (such as through record citations).
In re Space Exploration Technologies Corp., No. 24-0290 (orig. proceeding) (reversing Thirteenth Court) (no oral argument):
Majority (per curiam): The trial court’s stated reasons for setting aside the jury’s verdict are insufficient. Among other things, defense counsel’s “impassioned and loaded rhetoric”—referring to a “shakedown,” “lawyer-driven plan,” and an effort to “manufacture an opportunity to cash in”—did not constitute incurable argument. And the court failed to explain how or why the jury’s verdict was manifestly too low.
In re Oncor Electric Delivery Co., No. 24-0424 (orig. proceeding) (reversing in part Fourteenth Court15):
Majority (Lehrmann, J., for unanimous Court): The plaintiffs may not pursue a claim against utilities for intentional nuisance arising from Winter Storm Uri. Intentional nuisance requires that a defendant “create” or affirmatively “maintain” a nuisance, and the utilities were not the source of the nuisance—here, prolonged freezing temperatures. Nor do the current pleadings state a claim for gross negligence—which, in this context, requires allegations that the utilities “could have reduced the deaths and injuries that resulted from the storm” while otherwise complying with legal requirements, “yet chose not to do so.” But in light of the Court’s clarification of the law—and in the exercise of its mandamus discretion—the plaintiffs may re-plead the gross-negligence claim.
Not Participating: Bland, Young, JJ.
Suday v. Suday, No. 24-1009 (reversing Fourth Court) (no oral argument):
Majority (per curiam): An executor may represent the estate pro se when she is its sole beneficiary.
Orders
For yet another week, the content continues in the orders list. Though granting no new cases, the Justices issued three opinions relating to denials:
Nautilus Insurance Company v. HOF Partners, LLC, No. 23-0408 (statement of Young, Sullivan, JJ., respecting denial of petition for rehearing of denial of review) (Second Court): The Court should have granted the petition for review, which raises the important question of whether Chapter 981 of the Insurance Code provides the exclusive rules for surplus-lines insurers—or whether Chapter 4001 also applies.
In re Gothard, No. 24-0236 (orig. proceeding) (Blacklock, C.J., joined by Devine, Sullivan, JJ., dissenting from denial of mandamus petition) (Twelfth Court): The Court should have granted mandamus relief to require that a lawsuit alleging sexual abuse by a church leader be repleaded so that it “does not ask a judge or jury to pass judgment on the propriety of advisability of any defendant’s interpretation of the Bible.”
In re Westdale Asset Management, Ltd., No. 25-0159 (orig. proceeding) (Sullivan, J., joined by Young, J., concurring in denial of mandamus petition): The Court need not upset the Business Court and Fifteenth Court’s interpretation of the term “commenced”—which prohibits removal of civil cases filed in another trial court before the Business Court’s creation—because House Bill 40, effective September 2025, will allow parties to seek agreed transfers to the Business Court.
Other
With all these opinions and orders from the two Supreme Courts, do I really need to cover anything else? Yes, I do. Heading to New Orleans: one order, one opinion, and one upcoming oral argument from the Fifth Circuit deserve attention.
CA5
United States ex rel. Doe v. Planned Parenthood Federation of America, Inc., No. 23-11184 (order): The Fifth Circuit added a new case—one arising from a high-profile controversy involving Planned Parenthood—to its en banc docket.
In this qui tam action under the False Claims Act and its state-law counterparts, the relator alleged that Planned Parenthood conspired with its Texas and Louisiana affiliates—as well as its in-house attorneys—to fraudulently continue billing Medicaid after being terminated from the programs. The district court granted summary judgment to Planned Parenthood on one claim (reverse-false-claims), but denied summary judgment on the implied-false-certification and conspiracy claims. In doing so, it rejected Planned Parenthood’s arguments that the attorney-immunity doctrine shielded it from suit.
Planned Parenthood filed an interlocutory appeal. The issues on appeal were whether the Fifth Circuit had appellate jurisdiction—and, if so, whether the attorney-immunity doctrine applied to actions by Planned Parenthood’s attorneys under the False Claims Act and its state-law counterparts.
In an unpublished per curiam opinion (Barksdale, Southwick, Graves, JJ.), a Fifth Circuit panel answered yes to both. On jurisdiction, it held that Planned Parenthood’s attorney-immunity defense was “substantial” and akin to immunity from suit, thus satisfying the collateral-order doctrine. On the merits, the panel held that Planned Parenthood’s attorneys were entitled to attorney immunity—and that, as a result, Planned Parenthood could claim that immunity insofar as the relator’s claims turned on those attorneys’ actions or advice. In doing so, it rejected the relator’s arguments that the False Claims Act and its Texas and Louisiana counterparts override attorney immunity.
The relator’s en banc petition targets the panel’s holding on the second issue. According to the relator, the panel’s opinion “creates a loophole” in the False Claims Act and its state-law counterparts by allowing corporations to “avoid liability . . . if it involves its lawyers in some way in unlawful acts.”
The relator’s en banc brief is due in late July; Planned Parenthood’s in late August. The en banc Court will hear argument in September.
Garcia v. Fuentes Restaurant Management Services Inc., No. 24-10699 (Richman, Willett, Douglas, JJ.): This is a significant opinion on the state of arbitration waiver after Morgan v. Sundance, Inc., 596 U.S. 411 (2022). As some will recall, Morgan held that federal courts may not create arbitration-specific procedural rules based on the Federal Arbitration Act’s policy favoring arbitration. Arbitration contracts instead must be treated like any other. That meant the Eighth Circuit’s arbitration-specific rule—that a plaintiff must show prejudice to establish waiver—could not stand.
Garcia is the Fifth Circuit’s first published opinion addressing arbitral waiver post-Morgan. Like the Eighth Circuit, the Fifth Circuit had long used a two-part test “rooted in prejudice”: A plaintiff had to show (1) that the party seeking arbitration had substantially invoked the judicial process, and (2) that doing so prejudiced the plaintiff.
In an opinion by Judge Douglas, Garcia formally excised the prejudice requirement in light of Morgan. But the panel went further:
If we excise the prejudice prong from our pre-Morgan test, there is only one way to show waiver in the arbitration context: demonstrating that a party “substantially invoke[d] the judicial process.” To be sure, this does not facially conflict with Morgan’s holding that there be no special procedural rules governing arbitration agreements. But such a conclusion would still, at least partially, fly in the face of Morgan’s holding. Waiver “is the intentional relinquishment or abandonment of a known right.” If waiver of an arbitration agreement only occurred when a party substantially invoked the judicial process, we would be “devis[ing] novel rules to favor arbitration over litigation” by limiting the number of ways to prove waiver—precisely what Morgan counsels against.
Instead, we accept the Supreme Court’s sanctioned definition—which it used to endorse the Eighth Circuit’s remaining test—to determine whether the right to arbitrate was waived. That is, we now ask whether the party “knowingly relinquish[ed] the right to arbitrate by acting inconsistently with that right.” This does not overhaul our circuit’s jurisprudence with respect to waiver of the right to arbitrate. Instead, substantial invocation of the judicial process is merely one way of demonstrating that a party waived its right; after all, substantial invocation of the judicial process is an intentional abandonment of a known right. [Emphases added; citations omitted.]
Garcia nonetheless found waiver under the familiar “substantial invocation” standard. The defendants had answered the complaint without raising an arbitration defense, participated in discovery, attended court-ordered mediation, and even told the court they were unaware of any arbitration agreement and had “no intent to arbitrate.”
Still, Garcia opens the door for creative litigants to explore new theories of arbitral waiver beyond substantial invocation of the judicial process. Again, it’s an important case—one I could see cited beyond the Fifth Circuit’s borders.
W.M.M. v. Trump, No. 25-10534 (Southwick, Oldham, Ramirez, JJ.): Last—but certainly not least—a Fifth Circuit panel will hold a special oral-argument session concerning President Trump’s invocation of the Alien Enemies Act (AEA) to deport members of the Venezuelan criminal gang Tren de Aragua (TdA). So as not to bury the lede, the core issues are twofold: Did the President properly invoke the AEA, and what notice is due to the detainees before their removal?
As many readers will know, this case has already made a trip to the U.S. Supreme Court. The President’s attempt to deport aliens under the AEA—rather than through the traditional process under the Immigration and Nationality Act—has prompted a flurry of litigation. The case here was brought by two detainees identified as TdA members and on behalf of similarly situated detainees in the Northern District of Texas, alleging that the AEA did not authorize their removal.
The class sought an emergency temporary restraining order (TRO) after learning of their potential imminent removal. When the district court did not act on the motion within a short period, the class simultaneously appealed the motion’s “constructive denial” in the Fifth Circuit and sought relief from the Supreme Court. The Supreme Court issued an unusual order “direct[ing]” the Government “not to remove any member of the putative class of detainees from the United States until further order of this Court.”
After the Fifth Circuit dismissed the appeal for lack of jurisdiction—disagreeing that the district court had constructively denied the TRO—the case returned to the Supreme Court. Treating the still-pending application as a petition for a writ of certiorari (which it granted), the Court held that the district court’s “inaction . . . had the practical effect of refusing an injunction to detainees facing an imminent threat of severe, irreparable harm.” As a result, the Fifth Circuit erred in dismissing the appeal for lack of jurisdiction. Having satisfied itself of jurisdiction, the Court then held that the notice given to the detainees did not satisfy due process.
The Court then assigned homework to the Fifth Circuit on remand:
In resolving the detainees’ appeal, the Fifth Circuit should address (1) all the normal preliminary injunction factors, including likelihood of success on the merits, as to the named plaintiffs’ underlying habeas claims that the AEA does not authorize their removal pursuant to the President’s March 14, 2025, Proclamation, and (2) the issue of what notice is due, as to the putative class’s due process claims against summary removal.
With briefing now complete, a panel of Judges Southwick, Oldham, and Ramirez will hear argument on June 30 at 2 p.m. Lee Gelernt (American Civil Liberties Union) will argue on behalf of the detainees; Deputy Assistant Attorney General Drew Ensign (Department of Justice) will argue on behalf of the Government. The argument audio will be livestreamed at this link, with a recording posted later on the Fifth Circuit’s website.
Red Light
We did it! We’ve made it through the past three weeks’ deluge of opinions from both Supreme Courts. If you’ve stuck with me through all this content—bless you. (And yes: I’m very much looking forward to shorter posts.)
1910 & Beyond remains a work in progress. Thank you for your patience as I figure out what works—and what doesn’t—for future posts. But the best way to improve this publication is by hearing from you, the readers! So please don’t hesitate to leave a comment or email me with any feedback, topic ideas, and tips on interesting cases.
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Until next time, have a wonderful Fourth of July weekend!
Justice Hassan participated in oral argument, but her term of office ended on December 31, 2024. Under Texas Rule of Appellate Procedure 41.1(b), the two remaining Justices may decide the case so long as they agree.
Applying TUTSA’s statutory cap, the Fourteenth Court reduced the exemplary-damages award against that defendant from $100,000 to $22,500.
For the same reason, the Fourteenth Court also remanded the issue of costs for redetermination.
Though absent from the argument session, Justice Wilson made clear that Justice Jewell would be watching the arguments. So, as he jokingly reassured counsel: “I promise you—you have three panel members.”
As a young Reagan Department of Justice attorney once remarked: “It is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” The attorney? John G. Roberts, Jr.
Technically, the Court vacated the Fourth Circuit’s judgment. But as before, I use “reversed” as shorthand to help readers more easily track outcomes by court.
Part IV of Justice Sotomayor’s dissent offers suggestions to the Board and the courts for alleviating the “consequences” of the majority’s holding.
Judge Wilson wrote the panel opinion for the Fifth Circuit, joined by Judges Southwick and Englehardt.
Judge Smith wrote the panel majority opinion for the Fifth Circuit, joined by Judge Elrod, reaching the same result as the Supreme Court. Judge Higginbotham concurred in part and dissented in part.
Judge Stewart wrote the panel opinion for the Fifth Circuit—joined by (then) Chief Judge Richman and Judge Haynes—which likewise found no nondelegation problem. Reaching the opposite conclusion, Judge Oldham wrote the en banc majority opinion, joined by Judges Jones, Smith, Elrod, Willett, Ho, Duncan, Englehardt, and Wilson. Judge Stewart—joined by Chief Judge Richman and Judges Southwick, Haynes, Graves, Higginson, and Douglas—wrote the principal en banc dissent.
Judge Willett wrote the panel opinion for the Fifth Circuit, joined by Judges Wilson and Ramirez.
As Professor Jonathan Adler (Case Western University) rightly notes in a Volokh Conspiracy post, Justice Barrett responds to Justice Jackson’s dissent with “what is likely the most pointed language we have seen from Justice Barrett since she joined the Court.” Read the whole thing—Part III-C of the majority—which ends with this memorable line: “We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”
Justice Hassan wrote the Fourteenth Court’s en banc majority opinion, joined by Justices Bourliot, Zimmerer, Spain, and Poissant. Chief Justice Christopher dissented, joined by Justices Wise, Jewell, and Wilson as to Part I and II.A. Justice Wilson also dissented, joined by Justices Wise and Jewell.
Justice Poissant wrote the Fourteenth Court’s panel opinion, joined by Justices Wise and Jewell.
Disclaimer: I represented one of the bellwether plaintiffs in this proceeding.
Chief Justice Christopher wrote the Fourteenth Court’s panel opinion, joined by Justices Jewell and Wilson.