25-06: What'd I Miss
A look back to the month of July, with help from Hamilton
Welcome back to 1910 & Beyond, your regular briefing on 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. Occasionally, I’ll also share practical tips on oral and written advocacy. I hope these updates continue to prove useful to your practice and enhance your understanding of Texas appellate law.
To those who have already subscribed, thank you! And if you haven’t yet, I hope you’ll consider joining us.
It’s been nearly a month (!) since our last post. To quote Thomas Jefferson from Lin-Manuel Miranda’s epic musical Hamilton, “So what’d I miss?” Apparently, quite a bit. The First and Fourteenth Courts of Appeals stayed quite busy throughout July. So did our Supreme Courts—especially the Supreme Court of the United States, thanks largely to its ever-active emergency docket. Let’s jump straight into the action.
1910
Orders and Opinions
As always, we begin with our local courts here in Houston. Given the sheer volume, I won’t list all the days the courts issued orders and opinions over the month of July. You can find the full lists for the First Court here, and for the Fourteenth Court here.
Also, because we have so many opinions to cover this month, I’m skipping our usual Features section—where I typically provide an in-depth look at one opinion from each Court. Instead, let’s instead jump straight into the In Brief section, featuring short summaries of those opinions that caught my eye.
In Brief
1COA
NFG Energy Services, LLC v. F.E. Moran, Inc. Special Hazard Systems, No. 01-24-00511-CV (order) (Gunn, J.) / Thomas v. Babylon Capital, Inc., No. 01-25-00382-CV (order) (Gunn, J.): After settling their disputes, the parties moved to dismiss only their appeals. Justice Gunn explained that settlements generally moot an entire case, typically requiring vacatur of the trial court’s judgment and dismissal of the entire lawsuit—not just the appeal. Because mootness is jurisdictional, Justice Gunn ordered the appellants to clarify whether they sought dismissal of the appeal only, or of the entire case (in which case amended motions to dismiss should be filed).
Profaca v. Breeze Coach Leasing, Inc., No. 01-24-00078-CV (mem. op.) (Adams, C.J.; Gunn, Guiney, JJ.): After the trial court issued a directed verdict against one defendant and dismissed several claims—including gross negligence—a jury awarded approximately $1.9 million to two crew members injured in a bus crash. On appeal, the crew members argued evidentiary errors led to an improper judgment, particularly the absence of a gross-negligence verdict. Although the First Court assumed some exclusions were erroneous, it held that no harmful error occurred because the crew members’ gross-negligence theory “was not viable” under today’s “standards” as set by Chapter 41 of the Civil Practice and Remedies Code.1
Naissance Galleria, LLC v. Zaheer, No. 01-23-00727-CV (mem. op.) (Guerra, Caughey, Morgan, JJ.): Naissance Galleria challenged a temporary injunction granted in favor of Azeemeh Zaheer, who claimed an assignment transferring her managing-member rights was forged. The First Court rejected the company’s jurisdictional challenge, categorizing it as a merits-based capacity issue rather than standing. Affirming the injunction, the Court held sufficient evidence demonstrated Zaheer’s viable claims; a probable right to relief amidst conflicting evidence,; and imminent, irreparable harm from potential forgery affecting the company’s operations.
Robinson v. Jones, No. 01-24-00050-CV (mem. op.) (Adams, C.J.; Gunn, Guiney, JJ.): After Leo Robinson failed to appear at a de novo county-court trial, the court entered a default judgment favoring Isaac Jones’s breach-of-contract counterclaim. On appeal, Robinson challenged the sufficiency of Jones’s pleadings and evidence. Affirming, the First Court held Jones’s justice-court counterclaim properly carried forward under Texas Rule of Civil Procedure 506.2. And it presumed that sufficient evidence supported the judgment because Robinson failed to order a reporter’s record.
Houston Methodist St. John Hospital v. Cagle, No. 01-25-00055 (mem. op.) (Guerra, Gunn, Dokupil, JJ.): Shelby Cagle sued Houston Methodist after the hospital discharged her newborn to adoptive parents despite her revoking parental-rights relinquishment. The hospital argued her claims were health care liability claims (HCLCs) under the Texas Medical Liability Act, and that her expert report from a family-law attorney didn't satisfy HCLC requirements. The First Court agreed that her claims were HCLC claims because they implicated hospital licensing standards for professional and administrative services directly related to health care. It then acknowledged “[i]n all but the most vanishingly rare cases, an expert report from a lawyer would be no report at all when the lawyer is not a physician or practicing health care.” But under “the unusual circumstances,” the Court had “good reason” “to hold that the attorney-expert is a person with expertise for the purpose of the expert report”—thus allowing remand for the trial court to determine if Cagle should receive a thirty-day extension to cure the expert-report deficiencies.
In re JPMorgan Chase Bank, N.A., No. 01-25-00438-CV (orig. proceeding) (Adams, C.J.; Caughey, Johnson, JJ.): During an expedited foreclosure proceeding under Texas Rule of Civil Procedure 736, a nonparty intervened and asserted a negligence counterclaim against JPMorgan. After the trial court refused to strike the intervention and counterclaim, JPMorgan sought mandamus relief. The First Court granted the petition, emphasizing that Rule 736 expressly requires dismissal of counterclaims and intervention in such proceedings. It further held that JPMorgan lacked an adequate appellate remedy because the order allowed claims to proceed in a streamlined foreclosure forum where no discovery is permitted and was otherwise contrary to Rule 736’s plain text.
Discover Bank v. Miller, No. 01-23-00513-CV (mem. op on reh’g) (Rivas-Molloy, Guiney, Morgan, JJ.): After Discover sued a customer for defaulting on unpaid credit-card debt, the customer filed a counterclaim under the Truth in Lending Act. Discover moved to compel arbitration based on the loan agreement, which the customer claimed he had not signed or agreed to. The trial court denied the motion, and the First Court reversed. It held that Discover’s uncontested evidence—showing the customer electronically consented to the loan terms (including arbitration) during the application process and by accepting the loan proceeds—established a valid arbitration agreement.
Quinn v. Nagar, No. 01-25-00449-CV (order) (Guerra, J.): A judgment debtor sought to stay enforcement without posting a supersedeas bond, citing indigency. Justice Guerra denied the motion, explaining indigency exempts court costs—but not supersedeas bonds in eviction appeals. Without evidence of the debtor seeking bond reduction or posting security, enforcement could proceed.
Reyes v. Fiesta Mart, LLC, No. 01-23-00526-CV (mem. op.) (Adams, C.J.; Gunn, Guiney, JJ.): After a slip-and-fall at a Fiesta grocery store, Mirian Reyes sued for premises liability. Fiesta moved for summary judgment, arguing no evidence showed it had actual or constructive knowledge of the hazard. The trial court granted the motion, and the First Court affirmed. Through her discovery responses, Reyes admitted she lacked evidence of Fiesta’s knowledge and otherwise presented no evidence showing how long the condition existed. The court also rejected Reyes’s claims of inadequate discovery time and spoliation.
Masterson v. SCI Texas Funeral Services, LLC, No. 01-23-00496 (mem. op.) (Rivas-Molloy, Dokupil, JJ.; Johnson, J. [dis.]): In this otherwise garden-variety dispute over compelled arbitration, the panel divided on appellate jurisdiction. Mary Masterson initially sued a cemetery in her individual capacity, but later—in contravention of a court order—sought to amend her petition to sue as executor of her father’s estate. When she appealed solely as executor of her father’s estate, the cemetery argued that the Court lacked appellate jurisdiction because Masterson as executor was not a proper party to the dispute. The majority held that Masterson never validly amended her petition, and that in any event the Court would not narrowly construe her notice of appeal—filed solely as an executor—to deprive her of appellate review. The dissent would instead hold Masterson to her word (“it is clear she appealed precisely in the capacity in which she intended”), thus depriving the Court of jurisdiction.
Homeowners of America Insurance Co. v. Menchaca, No. 01-23-00633-CV (Rivas-Molloy, Guiney, Morgan, JJ.): After a homeowner disputed his insurer’s underpayment of his homeowner’s claim, the insurer paid the full award and statutory interest following appraisal. The homeowner nonetheless counterclaimed for breach of contract, bad faith, and Insurance Code violations, obtaining mental-anguish damages and attorney’s fees. The First Court reversed, holding that payment of the appraisal award foreclosed contract and extra-contractual claims; that mental anguish from claims handling is not an “independent injury”; and that attorney’s fees were barred under the Insurance Code once the insurer discharged its appraisal obligations.
14COA
City of Houston v. Martinez, No. 14-24-00613-CV, c/w In re Houston Professional Fire Fighters’ Association, No. 14-24-00688-CV (op.) (Christopher, C.J.; Wise, Wilson, JJ.): Assistant Fire Chiefs intervened in long-running litigation between the City of Houston and the firefighters’ union, claiming their exclusion from a $650 million settlement violated the Fire and Police Employee Relations Act (FPERA). The City and the union filed pleas to the jurisdiction, which the trial court denied. The City took an interlocutory appeal, while the union filed a mandamus petition. After holding that mandamus was appropriate to address the union’s jurisdictional arguments alongside the City’s, the Fourteenth Court held that the Assistant Chiefs had standing to sue for breach of the duty of fair representation under Section 174.251 of FPERA—while the union’s remaining arguments went to the merits, not jurisdiction. As to the City, the court held that its governmental immunity is waived only for claims enforcing FPERA duties—but not for claims to settlement proceeds or declarations about local ordinances or overtime policies. It thus denied the union’s mandamus petition, and affirmed in part and reversed and rendered in part the trial court’s order as to the claims involving the City.
In re Texas Wall & Landscape, LLC, No. 14-25-00096-CV (orig. proceeding) (per curiam) (Wise, Wilson, Antú, JJ.): Seven months after a trial court granted summary judgment for Texas Wall, the plaintiff moved for a judgment nunc pro tunc, arguing the court had mistakenly affixed its electronic signature to the summary judgment order. The trial court granted the motion, declaring the earlier summary judgment a clerical mistake. Granting Texas Wall’s mandamus petition, the Fourteenth Court held that the error was judicial—not clerical—because the signed judgment reflected the court’s actual rendition, even if incorrect. As a result, it could not be altered by nunc pro tunc after the expiration of the court’s plenary power.
Patel v. Mustang Rental Services of Texas, Ltd., No. 14-23-00938-CV (op.) (Christopher, C.J.; Wilson, Antú, JJ.): Mustang sued Sterling Engineering for unpaid equipment rentals, alleging that Sterling’s subcontractor had apparent authority to rent equipment on Sterling’s account. The jury found for Mustang after refusing Sterling’s requested instruction on apparent authority: whether “Mustang exercised reasonable diligence and prudence.” Affirming, the Fourteenth Court held that Sterling’s requested instruction on diligence and prudence was sufficiently covered by the instruction’s main clause of “reasonably prudent person”—and that sufficient evidence supported the jury’s apparent-authority finding.
Jimmy Changas, Inc. v. City of League City, No. 14-24-00416-CV (op.) (Christopher, C.J.; Hart, Bridges, JJ.): Jimmy Changas sued League City over a Chapter 380 incentive agreement, requiring proof of investment and job creation within 90 days; failure to do so rendered the agreement “of no further force and effect.” The trial court granted summary judgment for the City based on Jimmy Changas’s missed deadline. The Fourteenth Court affirmed, holding that City never waived the condition—which was a condition precedent, not a covenant. But the court reversed the City’s attorneys’-fee award because the agreement’s revocation also nullified that clause.
Advance Meyerland, LLC v. Salon Park Meyerland, LLC, No. 14-24-00327-CV (mem. op.) (Wilson, Hart, Boatman, JJ.): After the trial court granted Salon Park a temporary injunction before allowing Advance Meyerland to present evidence, Advance Meyerland appealed. Reversing and remanding, the Fourteenth Court held that Texas Rule of Civil Procedure 681’s notice requirement guarantees both notice and a meaningful opportunity to present evidence. Because the trial court granted the injunction immediately after Salon Park’s first witness without allowing Advance Meyerland to present any evidence, the temporary injunction was improper.
Bernsen v. Bernsen, No. 14-22-00902-CV (mem. op.) (Wise, Wilson, Antú, JJ.): Justice Wise’s brilliantly written introduction says it all—
Less than a month after a doctor determined Leon Bernsen Sr. was “totally incapacitated” and provided that opinion to Leon’s daughter Dianna, he signed a new will naming Dianna his sole beneficiary and disinheriting his son and grandchildren. A week before Leon signed the will, Dianna wrote to the lawyer who drafted it: “I think we should sign the docs and let them try to prove incompetence.”
Well, they did. A jury found that Leon lacked testamentary capacity and that Dianna did not offer the will for probate in good faith and with just cause. She challenges these findings on appeal and also complains about the admission of evidence.
We affirm.
City of League City v. West FM 517, Ltd., No. 14-24-00405-CV (mem. op.) (Wilson, Hart, Boatman, JJ.): West FM challenged League City’s increased impact fees as unreasonable and noncompliant with Chapter 395 of the Local Government Code. The City filed a partial plea to the jurisdiction, arguing West FM lacked standing, which the trial court denied. The Fourteenth Court reversed and rendered. West FM neither paid nor intended to pay the fees, which were instead borne by the homebuilder purchasing West FM’s lots—an injury “West FM cannot borrow.”
Singh v. Singh, No. 14-24-00332-CV (mem. op.) (Christopher, C.J.; Wilson, Antú, JJ.): Divjyot Singh sued Harbhajan Singh (no relation) for defamation, alleging that Harbhajan falsely accused him—publicly and to police—of assaulting and injuring him. Harbhajan moved to dismiss the suit under the Texas Citizens Participation Act, which the trial court denied. The Fourteenth Court affirmed. Although the TCPA applied because the statements concerned alleged criminal conduct, Divjyot established a prima facie case of defamation with affidavits, video evidence, and corroborating witness statements showing no injurious contact occurred. It also rejected Harbhajan’s qualified-privilege defense because the accusations were publicly shared beyond police—plus Divjyot made a prima facie showing of actual malice.
Chamberlain, Hrdlicka, White, Williams & Aughtry, P.C. v. Van Eps, No. 14-24-00446-CV (mem. op.) (Christopher, C.J.; Wilson, JJ.)2: Karl Van Eps sued Chamberlain Hrdlicka and shareholder Barry Adkins for negligent advice in restructuring his drywall business, which allegedly converted his separate property into community property—costing him $5 million in a later divorce. The firm moved to compel arbitration based on an arbitration clause in its engagement letter with Van Eps’s business, arguing that he was bound under direct-benefits estoppel. The trial court denied the motion, but the Fourteenth Court reversed. Van Eps directly benefitted from the contract (e.g., tax advantages through corporate restructuring), and his negligence and misrepresentation claims arose from the firm’s performance of legal services under the agreement.
Texas Department of Transportation v. Callaway, No. 14-24-00743-CV (op.) (Wise, Bridges, Antú, JJ.): After Lee Callaway’s motorcycle accident, he sued TxDOT under the Texas Tort Claims Act (TTCA) in Harris County, though the crash occurred in Chambers County. TxDOT filed a plea to the jurisdiction, arguing that TTCA’s mandatory-venue provision —requiring suit “in the county in which the cause of action or a part of the cause of action arises” (Civil Practice and Remedies Code § 101.102(a))—is a jurisdictional prerequisite to suit under Government Code § 311.034. The trial court denied the motion, but the Fourteenth Court reversed. Parting ways with the Fifth Court, the court held that TTCA’s venue provision is a jurisdictional prerequisite—rejecting arguments that venue defects can be waived or are purely procedural. Because the crash occurred in Chambers County, the Harris County court lacked subject‑matter jurisdiction, requiring the suit’s dismissal.
ISI Contracting, Inc. v. Dar, No. 14-24-00340-CV (mem. op.) (Wise, Jewell, Hart, JJ.): Omar Dar sued ISI Contracting after a crash in a TxDOT highway project zone, alleging negligent failure to provide proper signage and barricades. ISI sought summary judgment under Civil Practice & Remedies Code § 97.002, which shields contractors from liability if they comply with TxDOT contract documents material to the alleged defect. The trial court denied ISI’s motion, and the Fourteenth Court affirmed. ISI failed to conclusively prove its compliance with the TxDOT contract: TxDOT’s area engineer was not present at the scene, relied on inspectors’ daily reports, and was unsure whether traffic barriers and markings were in place at the time of the crash. The accident occurred during ongoing work, and TxDOT’s later approval of the project did not necessarily establish compliance on the day of the crash.3
Cox v. Cooper, Nos. 14-24-00479-CV & 14-24-00490-CV (mem. op.) (Jewell, Hart, Bridges, JJ.): Justin Cox challenged two trial‑court orders permanently sealing exhibits and nearly 10,000 pages of documents in securities‑fraud litigation. Reversing, the Fourteenth Court held that the sealing orders failed Texas Rule of Civil Procedure 76a’s substantive requirements—in particular, the movant presented no evidence that less restrictive means (e.g., redaction) would be inadequate to protect confidentiality.
Nationstar Mortgage, LLC v. Linicam Investments, LLC, No. 14-24-00734-CV (op.) (Jewell, Wilson, Boatman, JJ.): Linicam sought to quiet title after buying property at foreclosure, claiming Nationstar and Fannie Mae’s deed-of-trust interest was void under the limitations period following the loan’s acceleration. Nationstar moved for summary judgment, which the trial court granted. But the court subsequently reversed course after a bench trial against Fannie Mae—which Nationstar did not attend—entering a final judgment that declared Linicam the owner and that voided both defendants’ interests, thus contradicting the earlier summary judgment without notice or opportunity to relitigate. The Fourteenth Court reversed, holding the court could not set aside Nationstar’s partial summary judgment post‑trial and that the interwoven rights of Nationstar and Fannie Mae (and undeveloped record) required remand for both parties.
Arguments
Though the First and Fourteenth Courts stayed busy in their opinions output, their oral-argument docket has been quiet. The Fourteenth Court heard a single argument in July: the McCartney v. McCartney divorce dispute discussed in my last post. The First Court has no arguments scheduled, while the Fourteenth Court resumes its argument docket with a host of arguments in September.
& Beyond
Despite their summer recesses, the Supreme Courts of the United States and Texas continue releasing regular orders, including notable opinions. At SCOTUS, several emergency matters have highlighted significant national issues.
SCOTUS
Aside from a customary summer orders list denying a host of rehearing petitions, the action at the U.S. Supreme Court was on the emergency docket.
Opinions
The Court issued three opinions related to stay applications, all arising from the Trump Administration’s efforts to restructure the federal government.
Trump v. American Federation of Government Employees, No. 24A1174: Should the Supreme Court stay the district court’s nationwide injunction barring the Executive Branch from implementing an Executive Order directing federal agencies to prepare plans to execute reorganizations and reductions in force?
Majority (per curiam): Stay granted. The Government is likely to succeed on its argument that the EO itself is lawful (and the other stay factors are satisfied)—though not opining on the plans themselves, which are not at issue.
Concurrence (Sotomayor, J.): Although Justice Jackson is correct that the President cannot restructure federal agencies inconsistent with enacted laws, the plans are not before the Court at this time. The district court can consider those plans’ legality in the first instance.
Dissent (Jackson, J.): The district court’s injunction was based on findings of fact—specifically, that the EO was not an effort to initiate lawful reductions in force, but to fundamentally transform the Federal Government in a manner inconsistent with congressional policymaking. The Court improperly sidesteps these findings, despite the deference owed to lower-court factfinding. And the Court equally overlooks the irreparable harm to the federal employees likely to result from the EO’s implementation.
McMahon v. New York, No. 24A1203: Should the Supreme Court stay the district court’s injunction requiring the reinstatement of Department of Education employees fired as part of a reduction in force?
Majority (per curiam): Stay summarily granted.
Dissent (Sotomayor, J., joined by Kagan, Jackson, JJ.): “When the Executive publicly announces its intent to break the law” (by issuing an Executive Order directing the Secretary of Education “to facilitate the closure of the Department” of Education, a congressionally authorized agency) “and then executes on that promise” (by firing over a thousand employees), “it is the Judiciary’s duty to check that lawlessness, not expedite it.” And the Government notably doesn’t even defend the lawfulness of its actions, instead relying on unpersuasive “jurisdictional and remedial arguments.”
Trump v. Boyle, No. 25A11: Should the Supreme Court stay the district court’s judgment ordering the reinstatement of three members of the Consumer Product Safety Commission, whom the President summarily terminated despite a statute prohibiting their at-will removal?
Majority (per curiam): Stay granted. This case “is squarely controlled by Trump v. Wilcox, 605 U.S. ___ (2025),” where the Court granted a similar stay application involving the summary termination of Merits Service Protection Board and National Labor Relations Board members. “Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases.”
Concurrence (Kavanaugh, J.): “When an emergency application turns on whether the Court will narrow or overrule a precedent”—here, Humphrey’s Executor v. United States, 295 U.S. 602 (1935)—“and there is at least a fair prospect (not certainty, but at least some reasonable prospect) that we will do so,” the Court generally should grant a stay and certiorari before judgment. There is no need for lower-court percolation when lower courts can’t overrule or alter Supreme Court precedent.
Dissent (Kagan, J., joined by Sotomayor, Jackson, JJ.): The Court has “all but overturned Humphrey’s Executor” on the emergency docket—without full briefing and argument—and “with the scantiest of explanations.” What’s more, this is just the latest instance in which the Court has inappropriately allowed “an increase of executive power at the expense of legislative authority” on the emergency docket.
Orders
The Court issued three other miscellaneous orders:
Uthmeier v. Florida Immigrant Coalition, No. 24A1269: Denying stay of district court’s preliminary injunction preventing Florida from enforcing a state statute criminalizing illegal entry and reentry.4
Turtle Mountain Band of Chippewa Indians v. Howe, No. 25A62: Staying Eighth Circuit’s mandate in an opinion holding that private plaintiffs cannot rely on 42 U.S.C. § 1983 to sue under Section 2 of the Voting Rights Act. Justices Thomas, Alito, and Gorsuch would deny the application.
Bell v. Florida, Nos. 25-5097 & 25A45 (per curiam): Denying stay of execution (and petition for writ of certiorari). Justices Sotomayor and Kagan would grant the application and petition.
Finally, we received some clarity on why the Court chose to set Louisiana v. Callais, Nos. 24-109 & 24-110—a case briefed and argued last Term—for reargument this Term. In a brief order, the Court instructed the parties to brief a new question: “Whether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U.S. Constitution.” This question places the constitutionality of Section 2 of the Voting Rights Act—as applied to require the creation of majority-minority districts following a VRA violation—squarely at issue. And it transforms Callais into one of the most significant cases of the upcoming Term.
SCOTX
![Hamilton: Aaron Burr [INFJ 9w1] – Funky MBTI](https://substackcdn.com/image/fetch/$s_!DH8h!,f_auto,q_auto:good,fl_progressive:steep/https%3A%2F%2Fsubstack-post-media.s3.amazonaws.com%2Fpublic%2Fimages%2F1305f3f5-dec8-4343-83d5-929c01fe1297_645x410.jpeg "Hamilton: Aaron Burr [INFJ 9w1] – Funky MBTI")
Meanwhile, the Texas Supreme Court continues its regular Friday orders lists—as well as a couple of miscellaneous orders related to original proceedings. By and large, the lists consist of denials of petitions for review, mandamus petitions, and motions for rehearing. But tucked in these orders are two interesting opinions by Justice Young:
Six Brothers Concrete Pumping, LLC v. Texas Workforce Commission, No. 23-0711 (Young, J., joined by Busby, J., concurring in denial of motion for rehearing): This concurral flags two unresolved questions with “serious” implications for administrative law, sovereign immunity, and private constitutional rights. First, does a wage-claim appeal against a private employee become a suit “against a governmental entity” under Government Code § 311.034 merely because the Commission must be named as a defendant? And second, even if so, is Labor Code § 61.062(d)’s mandatory-venue requirement properly considered a “jurisdictional” requirement? Justice Young suggested that these issues, which were underdeveloped below, should percolate in lower courts before SCOTX weighs in.
Mann v. Sikh National Center, Inc., No. 24-0828 (Young, J., concurring in denial of petition for review): This concurral identifies another significant unresolved issue: May a trial court award attorney’s fees under the Uniform Declaratory Judgments Act even when it wholly lacks subject-matter jurisdiction over the underlying declaratory-judgment claims? He contrasted this question with Texas Right to Life v. Van Stean, 702 S.W.3d 348 (Tex. 2024), where the Court held that attorney’s fees were unavailable in that context under the Texas Citizens Participation Act. Yet due to numerous “collateral issues,” this case was a poor vehicle for resolving this question.
Together, Six Brothers and Mann underscore Justice Young’s frequent use of separate writings—both in cases decided on the merits and those denied review. Indeed, since the 2022 Term, Justice Young has been the Court’s most active separate author.5
Finally, one miscellaneous order caught my eye: the denial of a mandamus petition (and accompanying denial of a motion for emergency stay) in In re Nonparty Patient No. 15, No. 25-0630. The petition arises from the context of the State of Texas’s criminal prosecution of a physician accused of violating the State’s ban on providing gender-dysphoria treatment. Patient No. 15—one of the physician’s transgender patients—refused to answer certain questions at his deposition under the Fifth Amendment, asserting concern about criminal prosecution about the manner in which he obtained prescription medicine from the physician. Overruling the Patient’s invocation of the Fifth Amendment, the trial court compelled the Patient to answer the questions. After unsuccessfully seeking mandamus relief from the Fifteenth Court of Appeals, the Patient sought similar relief—and a stay of the resumed deposition—from the Supreme Court. Following motion-level briefing, the Court denied the petition, upholding the trial court’s order.
Other
Houston’s appellate courts and the Supreme Courts weren’t the only busy courts in July. The Fifth Circuit continued its consistent churn of opinions—while nestled in the new Fifteenth Court of Appeals’ orders and opinions was a very interesting order and dissent.
15COA
Let’s begin with the Fifteenth Court, which recently divided over an interesting stay application.
Paxton v. Garza, No. 15-25-00116-CV, involves a group of district and county attorneys’ challenge to new rules adopted by the Attorney General, which mandate certain reporting requirements. The group argued that the Attorney General lacked constitutional or statutory authority to enact these rules. The trial court agreed and entered a temporary injunction. The Attorney General took an interlocutory appeal, thus superseding the injunction. The group moved for an emergency stay of enforcement during the interlocutory appeal.
A split Fifteenth Court (Brister, C.J. & Field, J.) granted the motion. The majority explained that “[t]he case before us presents a close question of statutory construction,” and it was “reluctant to decide who is ‘likely to succeed on the merits’” at this very early juncture. It further found that there was greater potential irreparable harm to the district and county attorneys than to the Attorney General. The Court thus granted the stay and ordered expedited briefing.
Justice Farris dissented. In her view, the Court could not grant a stay without conducting the underlying legal analysis of the stay factors. Because the majority failed to analyze—and make a conclusion on—the movants’ likelihood of success, she could not “join in the order granting temporary relief.”
CA5
The Fifth Circuit had a host of notable published opinions from July:
Apple Inc v. National Labor Relations Board, No. 24-60242 (Richman, Willett, Douglas, JJ.): The NLRB found that Apple violated the National Labor Relations Act by coercively interrogating an employee and by removing union flyers from a breakroom during a union campaign at an Apple retail store. Reversing, the Fifth Circuit held that substantial evidence did not support either finding. It concluded that the manager’s brief, routine questions lacked coercive elements—no hostility, threats, or reprisals—and occurred in a public setting. As to the flyers, Apple consistently enforced neutral housekeeping and non‑solicitation policies, removing all unattended materials (union and non‑union alike) from shared spaces; isolated instances of newspapers or coupons left behind did not show discriminatory enforcement.
Judge Douglas concurred, explaining that she would decide the second finding solely on Apple’s consistent enforcement of its non-solicitation policy—rendering unnecessary any analysis of the housekeeping policy.
Williams v. BP Exploration & Production, Inc., No. 24-60095 (Elrod, C.J.; Higginbotham, Southwick, JJ.): A Deepwater Horizon cleanup worker from the sued BP, alleging severe illness from exposure to oil and dispersants. After excluding the worker’s expert testimony (Drs. Freeman and Clark) as unreliable under Rule 702 and Daubert, the district court granted summary judgment for BP. The Fifth Circuit affirmed, holding: (1) the “featherweight” causation standard for Jones Act seamen did not apply; (2) the district court did not abuse its discretion in finding that Dr. Freeman’s differential etiology failed to analyze alternative causes, thus rendering his specific-causation opinion unreliable; (3) the court equally did not abuse its discretion in excluding Dr. Clark’s report after finding that it contained several errors; and (4) without admissible expert evidence, Williams could not prove specific causation, requiring the case’s dismissal.
Students for Fair Admissions, Inc. v. University of Texas at Austin, No. 24-50631 (Smith, Graves, Duncan, JJ.): In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023), the U.S. Supreme Court held that race-conscious college-admissions policies violate the Fourteenth Amendment. After Harvard, the University of Texas repealed its race-conscious admissions policy and adopted a facially race-neutral process—but allowed admissions officers to access applicants’ racial check‑box and aggregate racial data during review. SFFA sought declaratory and injunctive relief, arguing this access perpetuated discrimination. The district court dismissed the entire case as moot in light of Harvard. The Fifth Circuit affirmed dismissal as to UT’s pre-Harvard policy, which was fully repealed and unlikely to recur. But it reversed as to the revised policy, holding the live controversy remains because admissions officers still have racial data access. The court remanded for consideration of SFFA’s claim that “UT’s facially race-neutral policy is a subterfuge for continuing race discrimination.”
Association of Club Executives of Texas, Inc. v. Paxton, No. 24-50434 (Stewart, Dennis, Haynes, JJ.): To combat sex trafficking, a Texas law raised the minimum age for working at sexually oriented businesses (SOBs) from 18 to 21. Trade groups and clubs challenged the law under the First Amendment, arguing it overly restricted expressive conduct and was overbroad. After a bench trial, the district court upheld the statute, and the Fifth Circuit affirmed. Applying intermediate scrutiny, the court held Texas provided reasonable evidence linking SOBs to trafficking and that the law left alternative avenues of expression intact. It rejected the groups’ overbreadth arguments, emphasizing that the statute targets employment conduct rather than protected speech and does not substantially chill expressive activity.
Gilchrist v. Schlumberger Technology Corp., No. 22-50257 (Jones, Richman, Ho, JJ.) (per curiam): Measurements While Drilling Field Specialists (MWDs) sued Schlumberger for overtime pay under the FLSA. Although they earned over $200,000 annually, the district court ruled they were non‑exempt employees. The Fifth Circuit reversed, holding they qualified for the highly compensated employee exemption: Their work involved non‑manual tasks (monitoring and quality‑controlling drilling data) directly related to Schlumberger’s customers’ business operations and advisory and consulting duties (advising drillers in real time)—administrative duties sufficient under the exemption’s flexible standard. Because they regularly performed these duties, the exemption applied.
In re Media Matters for America, No. 25-10630 (Clement, Graves, Willett, JJ.): Media Matters filed a mandamus petition to compel transfer of X Corporation’s defamation-related suit from the Eastern District of Texas to the Northern District of California, arguing convenience and improper venue under 28 U.S.C. §§ 1404(a) and 1406. The district court denied transfer solely on timeliness grounds, finding that Media Matters delayed unreasonably and engaged in “gamesmanship.” The Fifth Circuit granted mandamus in part, holding that the district court erred by failing to conduct the required eight-factor public/private interest analysis. Although recognizing timeliness as a factor, the court concluded that it alone cannot substitute for the full balancing. It vacated the denial and remanded for “a more complete venue analysis.”
Seville Industries LLC v U.S. Small Business Administration, No. 24-30170 (Clement, Oldham, Wilson, JJ.): Seville Industries sought Paycheck Protection Program (PPP) loan forgiveness for amounts it calculated using payments to independent contractors. After the SBA denied forgiveness beyond sums attributable to W‑2 employees, Seville Industries sought review of the final agency decision in federal district court—which affirmed the SBA’s decision. The Fifth Circuit likewise affirmed, holding that the CARES Act’s definition of “payroll costs” do not include payments made by small businesses to independent contractors.
Wilson v. Centene Management Company, No. 24-50044 (Dennis, Southwick, Englehardt, JJ.): Plaintiffs brought class breach-of-contract claims against insurance companies, alleging that the companies provided materially inaccurate provider lists—in turn causing the plaintiffs and class members to pay higher costs. The district court denied class certification, holding that the plaintiffs could not plead an injury-in-fact and thus lacked standing. The Fifth Circuit reversed. Adopting the “class-certification approach” to standing, the court held that only the named plaintiffs’ individual standing must be shown; adequacy to represent others is a separate issue under Rule 23 certification. As Judge Southwick explained:
Under this approach, standing and certification are two discrete inquiries. So, merits-based evaluations of expert opinions are relevant for Rule 23 purposes but are premature for the purposes of standing at this stage of litigation.
Having vacated the district court’s erroneous no-standing conclusion, it remanded for consideration of whether the plaintiffs met the Rule 23 certification requirements.
Vinales v. AETC II Privatized Housing, LLC, No. 24-50113 (Elrod, C.J.; King, Graves, JJ.) (per curiam): Military family tenants sued private operators of Randolph AFB housing, alleging unremedied mold and property damage. The district court granted summary judgment to the defendants on most of the tenants’ claims under the federal enclave doctrine, as well as on their fraud claim. A jury then returned a verdict in favor of the tenants on the remaining claim, but the district court denied the tenants’ request for attorneys’ fees. The Fifth Circuit affirmed. Among other reasons:
Most of the tenants’ claims were barred under the federal enclave doctrine, which limits applicable law to federal and pre‑cession state law; and no exception applies under the Texas Deceptive Trade Practices-Consumer Protection Act.
The tenants’ fraud claim failed for multiple reasons, including that they identified only nonactionable statements of puffery and opinion.
The tenants were not entitled to attorneys’ fees under the pre-cession law, Article 2226 of the Texas Revised Civil Statutes.
Sufficient evidence supports the jury’s verdict.
There was no jury-charge error.
Institute for Free Speech v. Johnson, No. 24-50712 (Elrod, C.J.; Englehardt, J.; Guidry, D.J.): The Institute for Free Speech (IFS) sued the commissioners of the Texas Ethics Commission, arguing that Texas Election Code § 253.094—which treats pro bono legal services to candidates or political committees as prohibited “in-kind” contributions—as violating the First Amendment. The district court dismissed for lack of standing and ripeness and also found the individual defendants immune. The Fifth Circuit affirmed in part and reversed in part. It held that IFS alleged a concrete intent to engage in constitutionally protected conduct arguably proscribed by law and faced a credible threat of enforcement, thus satisfying pre‑enforcement standing and ripeness. And applying Ex parte Young, it held that IFS could pursue official‑capacity claims against the commissioners. But the court affirmed dismissal of IFS’s individual‑capacity claims on qualified‑immunity grounds, finding no clearly established right to provide pro bono services free from contribution limits.
Last—but certainly not least—the Fifth Circuit granted an en banc petition in Holberg v. Guerrero, No. 21-70010. Over a vigorous dissent, a divided panel (Higginbotham & Higginson, JJ.; Duncan, J. [dis.]) vacated a state capital-murder conviction based on a Brady violation. The en banc Court will hear argument in January 2026.
Red Light
If you’re thinking, “Boy, that was a lot of cases!”—I agree! That’s the downside of waiting a whole month between posts. Thanks for your patience in the delay between posts.
As before, 1910 & Beyond is a continuing a work in progress, and the best way to improve it is through your input. Please feel free to leave comments or email me with any feedback, topic suggestions, and interesting cases you’ve covered. In fact, I’m excited to share some greater reader feedback in my next post!
Thanks again to the growing number of subscribers—I genuinely appreciate your support. If you haven’t yet subscribed, I hope you’ll consider joining us (it’s free!). And if you think someone else might enjoy this content, please share it with them.
Finally, to answer King George III in Hamilton: Yes, I’ll be back—and certainly in less than a month!
Disclaimer: I represented the appellants in this appeal.
Justice Bourliot 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.
(Another) disclaimer: I represented the appellee in this appeal.
Florida’s statute criminalizing illegal entry and reentry is similar to Texas’s statute, which a divided Fifth Circuit held is preempted by federal law (as discussed in my last post).
SCOTXblog provides helpful statistics on the Justices’ opinions output.