25-08: Ch-Ch-Changes
A look back to the weeks of August 18 and 25, with help from David Bowie
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. From time to time, I 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 last post ended with a promise of exciting news—some professional “changes,” if you will.
Here’s the news: I’ve joined Hicks Johnson PLLC, a premier litigation boutique with offices in Houston and Chicago, as a partner and head of its appellate practice. I’m thrilled for the opportunity to help grow a go-to appellate team for high-stakes matters in Texas, Illinois, and across the country. Even better, I get to do so alongside a group of exceptionally talented colleagues—especially my new appellate partners, Marc Tabolsky and Penny Nicholson. I couldn’t be more excited.
If you’re in downtown Houston—or better yet, if you’ll be in Austin this week for the State Bar’s Civil Appellate 101 and Advanced Civil Appellate Practice courses, where I’ll be presenting—please reach out to say hello.
So what does this mean for 1910 & Beyond? It’s not going anywhere. With enthusiastic support from Hicks Johnson and my new colleagues, expect this Substack to get even better. So if you haven’t subscribed, now’s the perfect time to join—and unlike a vintage David Bowie vinyl, it’s still free.
And with all that, “let’s dance!” Thanks to a host of interesting opinions, there’s an unusual amount to cover this week.
1910
Orders and Opinions
As always, we begin with our local courts here in Houston. Over the past two weeks, both the First Court and the Fourteenth Court issued—borrowing a phrase from Justice Gunn—“a freshening stream” of opinions and orders. With the new State fiscal year beginning in September, both courts released a flurry of decisions ahead of the judiciary’s year-end—leaving much to cover.
Ordinarily, I use the “Features” section to highlight one notable opinion from each court. But this week, I’m spotlighting three interesting orders of particular note to appellate practitioners.
Features
1COA
Gaston v. CFour Appraisals, Inc., No. 01-24-00555-CV (Gunn, J.) (order): Justice Gunn’s opening line sets the tone:
In recent days this case has generated a freshening stream of filings. Included among those filings are a motion to abate, a motion to strike, a motion for expedited consideration, a motion for sanctions (plus a notice of a desire to withdraw it), and responses to the motions.
Carrying the motions with the case, Justice Gunn politely expressed the Court’s exasperation: “The Court does not desire (and will not welcome) any new filings or responses. The Court will endeavor to set this case for submission as quickly as it can.” The order concluded with a warning: “If the filings continue,” the Court would consider holding an in-person status conference.1
N.B.: Though appellate courts accept filings beyond the briefs, they don’t appreciate unnecessary ones—and certainly not a flood of them. (The same is true for trial courts.) Don’t bother the appellate courts with additional filings unless they’re truly necessary. Or, to quote Bowie, “Don’t lean on me, man.”
Houston International Management & Trade, Inc. v. Peacock Shipping & Trading, Inc., No. 01-24-00542-CV (Gunn, J.) (order): This order underscores the importance of pinpoint record citations in appellate briefing. After the appellees’ brief repeatedly lacked citations to support factual assertions, Justice Gunn ordered an amended brief with citations for every factual claim. He also directed the appellant to provide pinpoint citations—especially to relevant portions of exhibits—in its forthcoming reply brief. “The purpose of this request[,]” Justice Gunn concluded, “is to ensure that the Court can better understand the record fully and accurately.”
N.B.: Record citations are just as important as legal ones. Every factual assertion should be supported with a pinpoint citation to the record.
Donaldson v. Thiel, No. 14-24-00511-CV; Cooley v. Thiel, No. 14-24-00516-CV; Izen v. Thiel, No. 14-24-00517-CV (Christopher, C.J.; Wise, Jewell, JJ.) (order): The common appellees moved to consolidate three appeals. Granting the motion only in part, the Court ordered that the appeals be “coordinated, not consolidated.” (Emphasis added.) As the Court explained, “‘Consolidation’ is a formal procedure under the Texas Rules of Civil Procedure, but not under the Texas Rules of Appellate Procedure. See Tex. R. Civ. P. 174.”
The Court then outlined the coordinated procedure, including submission to the same panel:
1. Each appeal will remain open.
2. Any document meant to be filed in all appeals must bear all appeal numbers.
3. Regardless of whether a document applies to one or more appeals, any document filed is subject to Texas Rule of Appellate Procedure 9.4.
4. Each appeal will be submitted to the same panel.
5. If separate judgments are issued, the issuance date of the judgment in each appeal shall control all further deadlines in that appeal, including due dates for post-judgment motions and remittitur, expiration of plenary power, and issuance of the mandate.
N.B.: While Rule 3(b) of the Federal Rules of Appellate Procedure expressly allows consolidated appeals, the Texas Rules contain no such mechanism. Donaldson offers a procedural alternative to achieve a similar result: coordination.
In Brief
As noted earlier, the First and Fourteenth Courts issued a host of opinions across a wide range of topics. Given the sheer volume, below are capsule summaries of each opinion. An asterisk indicates that the case was orally argued.
1COA
*Great Value Storage LLC v. Princeton Capital Corp., No. 01-23-00618-CV (Adams, C.J.; Guiney, Johnson, JJ.) (mem. op.): The First Court reversed a $2.84 million receivership fee award and related expense approvals. After rejecting the receiver’s multifarious challenges to appellate jurisdiction, it held that the trial court abused its discretion by basing the fee on an $11.37 million settlement that never came into the receiver’s possession—contrary to the Receivership Order’s terms. The court also reversed the summary denial of third-party affiliates’ pleas in intervention, finding a due-process violation in dismissing them without notice or hearing.
*Chiv v. Figueroa, No. 01-23-00638-CV (Guerra, Gunn, Dokupil, JJ.) (mem. op.): In a personal-injury suit from a rear-end collision, the First Court reversed and rendered a take-nothing judgment on a $5,000 past mental-anguish award for lack of legally sufficient evidence. It also reversed the award of past medical expenses and remanded for a new trial on that claim, holding the trial court erred in striking the defendant’s counteraffidavit under Civil Practice and Remedies Code § 18.001—improperly allowing the plaintiff to rely on affidavits rather than live testimony. The court finally rejected challenges to the future-pain award and to impeachment rulings.
Met International Trading Co., Inc. v. 49North LLC, No. 01-24-00756-CV (Rivas-Molloy, Johnson, Dokupil, JJ.) (mem. op.): Affirming the denial of a motion to compel arbitration in a container-home contract dispute, the First Court held that Met waived its right by substantially invoking the judicial process—litigating for 15 months, filing counterclaims, engaging in extensive discovery, and seeking arbitration only after adverse summary judgments and on the eve of trial—thus resulting in prejudice to the nonmoving party. The Court further noted that Met failed to address this argument, thus requiring affirmance. Meanwhile, Met’s CEO could not compel arbitration, having failed to preserve any non-signatory theory.
In re Sowell, No. 01-25-00502-CV (Rivas-Molloy, Guiney, Morgan, JJ.) (mem. op.): Granting mandamus relief, the First Court held void a trial court order granting a motion for new trial after plenary power expired. The judgment was signed January 16, 2025; plenary power expired May 1, but the new-trial order was signed May 6. The trial court was directed to vacate the order.
*Louis A. Tsakiris Family Partnership, Ltd. v. Waller County Road Improvement District No. 1, No. 01-22-00821-CV (Adams, C.J.; Rivas-Molloy, Gunn, JJ.) (op.): In an eminent-domain dispute over a road extension, the First Court reversed summary judgment for the District, which had declared an easement existed, eliminating compensation. After rejecting standing arguments, the court found fact issues on the District’s claims of easement by estoppel and express dedication, thus making summary judgment improper.
Darling Homes of Texas, LLC v. Carpenter, No. 01-23-00957-CV (Rivas-Molloy, Guiney, Morgan, JJ.) (mem. op.): Affirming confirmation of an arbitration award, the First Court rejected the homebuilder’s argument that the arbitrator exceeded her authority by awarding $669,500 for diminution in value. The homebuilder’s argument essentially amounted to a claim that the arbitrator misapplied the law, which is not a basis for vacatur under the FAA. Judicial review of arbitration awards remains “extraordinarily narrow.”
Somer v. OakBend Medical Center, No. 01-24-00187-CV (Guerra, Gunn, Dokupil, JJ.) (op.): In a data-breach class action, the First Court affirmed in part and reversed in part a trial court’s grants of pleas to the jurisdiction. OakBend Medical Center—a municipal hospital authority—retains governmental immunity from negligence and unjust enrichment claims, as no Tort Claims Act waiver applied and equitable claims seeking money damages remain barred. But OakBend Medical Group, a nonprofit affiliate that is similar to an economic development corporation, failed to establish immunity as an “arm of the State” or via derivative immunity (even assuming the doctrine exists).
In re AJM Construction Co., No. 01-25-00283-CV (Rivas-Molloy, Guiney, Morgan, JJ.) (mem. op.): Granting mandamus relief, the First Court held the trial court abused its discretion by ordering that a neuropsychological independent medical examination under Rule 204 be audio and video recorded. Absent proof of “special circumstances” or a “particularized need,” recording is not permitted. Evidence of traumatic brain injury alone was insufficient, and recording would compromise test validity and the expert’s ability to perform standard testing. The trial court was directed to vacate the recording requirement.
*PoolRe Insurance Corp. v. Feldman, No. 01-23-00629-CV (Rivas-Molloy, Guiney, Morgan, JJ.) (op.): Affirming confirmation of an arbitration award, the First Court rejected PoolRe’s arguments that Feldman and Capstone lacked standing and that the matter was moot. Under the FAA and TAA, “any party to the arbitration” may seek confirmation, and Feldman and Capstone were parties to the arbitration. Nor was Feldman and Capstone’s application moot because of a settlement, which goes to the merits of the underlying dispute resolved by arbitration. As PoolRe offered no basis for vacating, modifying, or correcting the award, the trial court was required to confirm it.
Triple G Ventures LLC v. Wang, No. 01-23-00634-CV (Guerra, Gunn, Dokupil, JJ.) (mem. op.): Affirming the grant of a special appearance, the First Court held that Texas courts lacked specific personal jurisdiction over nonresident defendants in an investment dispute. Communications with Texas residents were fortuitous and did not constitute purposeful availment; the investment contracts created no continuing obligations akin to a franchise relationship. Unrelated business relationships with unrelated parties did not alter the jurisdictional analysis.
*Humphries Construction Corp. v. Highland Village Ltd. Partnership, No. 01-23-00651-CV (Rivas-Molloy, Johnson, Dokupil, JJ.) (op.): The First Court reversed an order abating arbitration and holding that Humphries waived its right to arbitrate by litigation conduct. Because the contract did not unmistakably delegate the issue of waiver to the arbitrator, the matter was one for the court to decide. To that end, although Humphries filed a “placeholder” lien foreclosure suit and sought injunctive relief, its actions were largely defensive and consistent with preserving arbitration rights. The strong presumption against waiver governed this close case. The court also denied the appellees’ mandamus petition challenging the trial court’s denials of their motions for sanctions, to quash, and for a protective order.
In re Hotchkiss Disposal Servs., Ltd., No. 01-25-00158-CV (Guerra, Gunn, Dokupil, JJ.) (mem. op.): Granting mandamus in part, the First Court held the trial court abused its discretion by compelling net-worth discovery from two employer-defendants without sufficient evidence of a “substantial likelihood” of success on exemplary damages claims under Chapter 41 of the Civil Practice and Remedies Code. Rejecting the plaintiffs’ reliance on a 1983 case, the Court explained that “the law of gross negligence has gone through great upheaval since then, and what once would have passed muster no longer does.” But because there was sufficient evidence of gross negligence as to the truck driver, relief was denied for him.
14COA
Olsen v. Cox, No. 14-23-00893-CV (Christopher, C.J.; Wise, Bridges, JJ.) (mem. op.): Rory Olsen contested his loss in the 2022 Harris County Probate Court No. 3 race, alleging illegal votes and election irregularities. The trial court granted Jason Cox’s no-evidence summary judgment. Affirming, the Fourteenth Court held that to overturn an election, a contestant must show illegal votes or mistakes materially affected the outcome—i.e., at least the margin of victory. Olsen’s reliance on certain USPS data and a Secretary of State report did not raise more than a scintilla of evidence; assumptions about voter residency were speculative. Even including excluded evidence, Olsen failed to show enough illegal votes to overcome the margin; any error in excluding evidence was harmless.
*Abraham & Co. v. Markel Insurance Co., No. 14-24-00242-CV (Christopher, C.J.; Wilson, J.) (op.):2 After Winter Storm Uri damaged rugs at Abraham’s showroom, Markel paid $750,000 under a water-damage endorsement. Abraham claimed $2 million in coverage and sued for breach of contract, extra-contractual claims, and negligence against adjuster H&H. The Fourteenth Court affirmed summary judgment for Markel, holding the endorsement unambiguously capped coverage at $750,000 and rejecting ambiguity arguments based on unchecked boxes. It also affirmed dismissal of extra-contractual claims for lack of independent injury and a viable breach-of-contract claim. But it reversed and remanded as to one negligence claim, concluding that Abraham pleaded a general negligence theory that was distinct from negligent claims handling; H&H’s motion addressed only the latter.
BFS Group LLC v. De Leon, No. 14-24-00548-CV (Wise, Wilson, Antú, JJ.) (op.): Parents of an unborn child sued BFS entities for wrongful death and survival claims after an employee miscarried, allegedly due to unsafe work conditions. The trial court denied BFS’s motion to compel arbitration under an employment arbitration agreement. Reversing, the Fourteenth Court held that the FAA applies because the employee was not a “transportation worker” under the Section 1 exemption. The agreement was valid despite the lack of the employer’s signature (there was no place for the employer to sign on the agreement) given the parties’ conduct. The BFS entities, as owner and successor, were third-party beneficiaries entitled to enforce the agreement. And they could enforce that agreement against her non-signatory children, making the wrongful-death and survival claims derivative and subject to arbitration. The court ordered the case remanded with instructions to compel arbitration.
Herman v. Metz, No. 14-24-00277-CV (Christopher, C.J.; Jewell, McLaughlin, JJ.) (mem. op.): A jury found Mary Beth Herman liable for breach of fiduciary duty to Robert Metz, awarding damages in disgorgement related to a property transfer from GBH Enterprises, Inc. to Mary and her late husband. The Fourteenth Court reversed and rendered a take-nothing judgment, holding the trial court erred by submitting a jury question premised on an invalid informal-fiduciary-duty theory. A corporate director cannot owe an informal fiduciary duty to an individual shareholder to manage the corporation in that shareholder’s best interest. Under Estate of Poe, 648 S.W.3d 277 (Tex. 2022), fiduciary duties run to the corporation, not individual shareholders. Metz’s live pleading asserted only a direct claim, not a derivative one. Because all subsequent jury questions depended on this erroneous theory, the error was harmful and required reversal.
Kyles v. Church of God in Christ, Inc., No. 14-24-00402-CV (Wilson, Hart, Boatman, JJ.) (mem. op.): Rufus Kyles sought a declaratory judgment compelling his reinstatement as pastor after removal by the Church of God in Christ through internal disciplinary proceedings. The Fourteenth Court dismissed for want of jurisdiction under the ecclesiastical-abstention doctrine. It held that adjudicating Kyles’s claims would require reviewing the church’s internal judicial process and governance decisions—matters constitutionally reserved to the church. Courts may apply neutral principles of law only when resolution does not intrude on faith, doctrine, or governance. Here, by contrast, the claims were inextricably intertwined with ecclesiastical matters, and the First Amendment bars such review, requiring the case’s dismissal.
Insurors Indemnity Co. v. Quality Works Construction, Inc., No. 14-23-00852-CV (Christopher, C.J.; Wise, Boatman, JJ.) (mem. op.): After settling claims related to performance and payment bonds issued for a City of Galveston project, Insurors Indemnity sued the contractor for indemnity and sought declaratory relief against the city. The trial court denied Insurors’ summary-judgment motion and rendered a take-nothing judgment for all defendants—even though neither the contractor nor the city moved for summary judgment. The Fourteenth Court first rejected all of the jurisdictional arguments: The trial court’s finality language showed its intent to make its summary-judgment ruling a final judgment, and the plaintiff otherwise had standing. On the merits, it reversed the trial court’s grant of summary judgment, given that—again—neither the contractor nor the city had so moved. Thus summary judgment was improper.
Electric Red Ventures, LLC v. RDF Agent, LLC, No. 14-23-00865-CV (Christopher, C.J.; Jewell, McLaughlin, JJ.) (op.): RDF domesticated a $3.39 million New York judgment under the Uniform Enforcement of Foreign Judgments Act (UEFJA). The Venture Parties argued RDF had elected common-law enforcement by seeking dismissal of their Texas suit on res judicata grounds and that the New York judgment should not receive full faith and credit. Affirming the trial court’s rejection of this argument, the Fourteenth Court held that filing a res judicata motion is not an “action to enforce” a judgment under the UEFJA. The trial court also properly accorded full faith and credit to the valid New York judgment, as none of the established exceptions apply. Finally, no evidentiary hearing was required because appellants never requested such a hearing.
*Pilot Travel Centers LLC v. M Felder Trucking, LLC, No. 14-24-00224-CV (Christopher, C.J.; Hart, Bridges, JJ.) (mem. op.): After a jury awarded over $1.7 million in actual and exemplary damages against Pilot for allegedly failing to procure nonsubscriber insurance for Felder Trucking and its owner-driver, the Fourteenth Court reversed and rendered a take-nothing judgment. The court held that causation was lacking as a matter of law because the nonsubscriber policy would have covered only employees paid wages directly by the insured, and undisputed evidence showed Felder was essentially an independent contractor paid by Pilot—not an employee of Felder Trucking, as required to be a “covered person” under the policy. Without coverage, plaintiffs could not prove fraud or breach-of-contract damages.
BK Park, Ltd. v. WBRE, LLC, No. 14-24-00448-CV (Christopher, C.J.; Jewell, McLaughlin, JJ.) (op.): A restrictive covenant in a 1992 deed barred leasing or selling adjacent property to hamburger restaurants, but the restriction was not in BK Park’s chain of title when it purchased the tract in 2018. The trial court enforced the restriction and awarded Whataburger substantial attorney’s fees. Reversing, the Fourteenth Court held that generic “subject to restrictions” language in BK Park’s deed did not impose a duty to search outside its chain of title. BK Park lacked constructive notice of the restrictive covenant, and the restriction did not run with the land. The court rendered declaratory judgment for BK Park and remanded for reconsideration of attorney’s fees.
In re Dolcefino Communications, LLC, No. 14-25-00555-CV (Christopher, C.J.; Jewell, Bridges, JJ.) (op.): Dolcefino Media sought mandamus relief after the trial court denied its petition in intervention and motion to unseal records in a pending divorce case, citing lack of jurisdiction. The Fourteenth Court conditionally granted mandamus in part, holding that Dolcefino Media demonstrated standing under general principles by alleging injury to its common-law right of access to court records. While the right of access is not absolute and may be limited to protect countervailing interests, the trial court erred in concluding it lacked jurisdiction to consider the request. The court directed the trial court to vacate its order denying the petition and motion but denied all other relief, leaving the merits of unsealing under Rule 76a for the trial court to decide.
*City of Houston v. Griner, No. 14-24-00530-CV (Wise, McLaughlin, Boatman, JJ.) (op.): Christopher Griner sued the City after slipping on water in a Bush Intercontinental Airport restroom. The City filed a plea to the jurisdiction, arguing no waiver under the Texas Tort Claims Act because it lacked actual knowledge of the hazard. Affirming the trial court’s denial, the Fourteenth Court held that Griner’s pleadings alleged a valid waiver and that the City’s evidence—an affidavit citing no reports in its internal records system—did not conclusively negate actual knowledge. The records omitted both prior flooding reports and Griner’s own incident. Because the City failed to meet its initial burden, the plea was properly denied.3
Aleman v. Standard Casualty Co., No. 14-24-00123-CV: This insurance-coverage dispute centered on whether burst pipes during Winter Storm Uri qualified as an “explosion” under a homeowner’s policy.
Majority (Hart, J., joined by Wilson, Boatman, JJ.): Reversing summary judgment for the insurer, the court held that the undefined term “explosion” in the policy should be given its ordinary meaning, which includes “bursting.” The court next held it was error to strike Aleman’s summary-judgment response for referencing—rather than attaching—previously filed evidence. Here, the evidence that Aleman’s frozen pipes burst loudly and water gushed forth (rather than slowly leaking) created a fact issue as to whether an explosion occurred, making summary judgment improper.
Concurring (Wilson, J.): Justice Wilson agreed that a fact issue exists but cautioned that not all frozen-pipe breaks constitute explosions. He explained that an explosion requires a sudden, violent bursting caused by internal pressure—not a slow split from freezing. On remand, the key question is whether Aleman’s pipes failed due to gradual expansion of ice or a rapid, forceful rupture.
Arguments
Following the First and Fourteenth Courts’ summer recesses—well, at least as to oral arguments—the 1910 Courthouse will reopen in September for regular oral arguments.
1COA
The First Court has one argument scheduled on September 10 at 1:30 pm:
Venable’s Construction, Inc. v. Aspen Midstream, LLC, No. 01-24-00702 (Rivas-Molloy, Gunn, Caughey, JJ.): This complex commercial cross-appeal involves the trial court’s interpretation of a lump-sum contract between two midstream companies—specifically regarding additional compensation, indemnification, and evidentiary rulings.
Appellant/Cross-Appellee: Daniel Johnson (Kilpatrick Townsend & Stockton)
Appellee/Cross-Appellant: Natalie Arbaugh (Winston & Strawn)
14COA
The Fourteenth Court has five arguments scheduled the week of September 8:
Booker v. State, No. 14-24-00292-CR (Christopher, C.J.; Wise, Jewell, JJ.): The issues include the sufficiency of the evidence supporting a murder conviction, denial of a self-defense instruction, and ineffective assistance of counsel.
State: M. Scott Taliafierro (Galveston County District Attorney’s Office)
Defendant: Tad Nelson (Tad Nelson & Associates)
Argument: September 9 at 2 pm
American Honda Motor Co. v. SFI 59 LP, No. 14-24-00469-CV (Christopher, C.J.; Wise, Jewell, JJ.): The issues in this products-liability appeal involve xpert-testimony error, sufficiency of the evidence for a manufacturing-defect theory, and statutory immunity under Chapter 82 of the Civil Practice and Remedies Code.
Appellant: Ryan Bueché (Germer)
Appellee: Byron Keeling (Keeling & Frederickson)
Argument: September 9 at 2 pm
Balboa v. Texas Children’s Hospital, No. 14-24-00659-CV (Wilson, Hart, McLaughlin, JJ.): The issue in this case involves the trial court’s grant of summary judgment to a hospital on an employee’s religious failure-to-accommodate claim.
Appellant: Jared Woodfill (Woodfill Law Firm)
Appellee: Dan Patton (Scott | Patton)
Argument: September 10 at 2 pm
Houston Livestock Show & Rodeo, Inc. v. Hallmark Financial Services, Inc., No. 14-24-00724-CV (Wilson, Hart, McLaughlin, JJ.): The central issue in this insurance-coverage appeal involves whether losses from COVID-19 are covered under the parties’ policy.
Appellant: Russell Post (Beck Redden)
Appellee: Kenneth Fair (Wright Close & Barger)
Argument: September 10 at 2 pm
State v. Payne, No. 14-24-00798-CR (Wilson, Hart, McLaughlin, JJ.): The main issue in this criminal appeal is whether the trial court properly quashed an indictment based on lack of sufficient notice.
State: Andrew Fletcher (Harris County District Attorney’s Office)
Defendant: Corey Fawcett (Harris County Public Defender’s Office)
Argument: September 11 at 2 pm
& Beyond
Meanwhile, matters remain relatively quiet at the Supreme Courts of the United States and Texas.
SCOTUS
Once again, the main action on the U.S. Supreme Court’s emergency docket came from another stay application brought by the Trump Administration.
National Institutes of Health v. American Public Health Association, No. 25A103: Should the Supreme Court stay the district court’s judgment vacating NIH’s termination of hundreds of millions’ worth of research grants and related guidance?
Majority (per curiam): Stay granted as to the district court’s judgments vacating NIH’s termination of existing grants. The district court likely lacks subject-matter jurisdiction over such claims, which belong in the Court of Federal Claims under the Tucker Act. And the Government faces irreparable harm because grant funds, once disbursed, cannot be recouped. But stay denied as to the district court’s vacatur of NIH’s internal guidance, which plaintiffs may continue to challenge in district court.
Concurrence (Barrett, J.): “Both logic and law . . . support channeling challenges to grant terminations and guidance to different forums.” The two claims are legally distinct, and litigation against the United States often requires two-track litigation—as here.
Concurrence in Part and Dissent in Part (Roberts, C.J., joined by Sotomayor, Kagan, Jackson, JJ.): The stay should be denied in full. The district court had jurisdiction to vacate both the directives and the resulting terminations, which were inseparable parts of a single unlawful policy.
Concurrence in Part and Dissent in Part (Gorsuch, J., joined by Kavanaugh, J.): The stay should be granted in full. The district court seemingly defied this Court’s recent decision in Department of Education v. California. Lower courts must follow this Court’s reasoning—even in interim orders. And to that end, this case is not some “one-off.”
Concurrence in Part and Dissent in Part (Kavanaugh, J.): The stay should be granted in full. Plaintiffs’ claims are essentially breach-of-contract claims that belong in the Court of Federal Claims, and their APA challenge to NIH’s guidance is unlikely to succeed. The equities favor the Government, especially since the plaintiffs have not agreed to return funds if the Government prevails.
Concurrence in Part and Dissent in Part (Jackson, J.): The stay should be denied in full. Today’s order, relying on an underdeveloped emergency ruling in Department of Education v. California, forces plaintiffs into a “multivenue quest” for relief that likely leaves them with none. The Tucker Act does not require splitting the case into two. And the equities strongly favor the Plaintiffs. “Make no mistake: Per the evidence in front of the District Court, the forward march of scientific discovery will not only be halted—it will be reversed.”
SCOTX
Orders
The Court’s customary Friday orders lists consist mostly of denials of petitions for review and writs of mandamus.4
Notably, Justice Young again authored a concurrence from the denial of a petition for review in In re S.G., No. 25-0307. In this child-custody dispute, a child’s grandparents filed a petition challenging a family court’s temporary orders issuing visitation conditions that were, at best, unclear. Joined by Justices Lehrmann and Busby, Justice Young agreed that the petition was properly denied because the case was set for final trial less than a month away, allowing for imminent finality. But he cautioned the family court that such conditions “should be both legally correct and as clear as possible,” and emphasized that appellate courts “should be prepared to speedily review” similar conditions “in future cases” if “crafted in ways like they were here.”
Arguments
The Texas Supreme Court opens its 2025–26 Term with several arguments during the week of September 8. The helpful summaries below come from the Court Calendar:
September 9
Third Coast Services, LLC v. Castaneda, No. 23-0848 (Fourth Court): Whether the statutory immunity afforded to a contractor who constructs a highway “for the Texas Department of Transportation” requires contractual privity between that contractor and the Department. (Lehrmann, J., not participating)
Petitioner: Anthony Golz (Cokinos | Young) and Jessica Barger (Wright Close & Barger)
Respondent: Casey Gibson (The Gibson Law Firm)
Texas Commission on Environmental Quality v. Paxton, No. 23-0244 (Third Court): Whether the Texas Commission on Environmental Quality met a deadline to request an Attorney General decision under the Public Information Act and whether the Commission must disclose the requested information regardless.
Attorney General: Kathy Johnson (Office of Attorney General)
Sierra Club: William Christian (Graves Doughtery Hearon & Moody)
In re UMTH General Services, L.P., No. 24-0024 (Fifth Court): Whether a trust’s shareholder can assert claims directly against an advisor who contracted with the trust or whether such claims must be brought derivatively.
Relators: Kyle Hawkins (Lehotsky Keller Cohn)
Real Party in Interest: Jeffery Tillotson (Tillotson Johnson & Patton)
In re H.S., No. 24-0307 (Second Court): Whether there was legally sufficient evidence to support a parental termination order and whether the trial court abused its discretion by denying a motion to extend the mandatory dismissal date. (Devine, J., not participating)
Petitioners: Cody Vaughn (Jackson Walker) and Shane Kotlarsky (Dobrowski Stafford & Pierce)
Respondent: Natalie Barnett and Jacob Beach (Office of Attorney General)
September 10
NuStar Energy, LP v. Hancock, No. 24-0037 (Third Court): At issue in this case is the facial validity of Comptroller Rule 3.591(e)(29), which defines Texas receipts by a place-of-delivery test for the purpose of calculating franchise taxes. (Lehrmann, J., not participating)
Petitioner: Danielle Ahlrich (Ryan Law Firm)
Respondent: Dimitri Rocha (Office of Attorney General)
Gonzalez v. Texas Medical Board, No. 24-0340 (Third Court): The principal issue in this case is whether there is a statutory right to judicial review of a cease-and-desist order issued by the Texas Medical Board.
Petitioner: Roger Hughes (Adams & Graham)
Respondent: Rance Craft (Office of Attorney General)
Mankoff v. Privilege Underwriters Reciprocal Exchange, No. 24-0132 (Fifth Court): Whether the term “windstorm,” when undefined in a homeowner’s insurance policy, unambiguously includes a tornado.
Petitioner: Robert Dubose (Alexander Dubose & Jefferson)
Respondent: Ryan Pitts (Haynes & Boone)
September 11
JPMorgan Chase Bank v. City of Corsicana, No. 24-0102 (Tenth Court): Whether an economic development agreement violates the Gift Clause found in Article III, Section 52(a) of the Texas Constitution. (Lehrmann, Devine, JJ., not participating)
Petitioner: Brett Kutnick (Jackson Walker)
Respondent: Terry Jacobsen (Jacobsen Law Firm)
Amicus Curiae State of Texas: Benjamin Mendelson (Office of Attorney General)
D.V. v. Texas Department of Family and Protective Services, No. 24-0840 (Third Court): Whether the Department of Family and Protective Services abandons its request for termination of parental rights when the Department’s caseworker and representative at trial unequivocally testifies that the Department is no longer seeking termination, but the written pleadings and other circumstances at trial indicate that the Department is still seeking termination.
Petitioner: Adam Rowins (Law Office of Adam D. Rowins)
Respondent: Nathaniel Plemons (Office of Attorney General)
In re Greystar Development & Construction, LP, No. 24-0293 (Fifth Court): Whether Texas Civil Practice and Remedies Code Section 52.006(b)’s $25 million cap on supersedeas bonds applies per judgment debtor or per judgment.
Real Party in Interest: Byron Henry (Henry Hill)5
Other
“Oh, you pretty things”—there’s still more. Both the Fifth Circuit and the Fifteenth Court continued their output of notable opinions.
CA5
Before turning to the opinions, a couple of brief updates:
First, the Fifth Circuit is back in session for oral arguments. Four panels will hear arguments in a range of civil and criminal arguments during the week of September 1.6 Links to the live audio stream can be located here.
Second, as previously discussed, the divided panel opinion in United States v. Texas, No. 24-51049 (Richman, Ramirez, JJ.; Oldham, J. [dis.]), enjoined Texas’s enforcement of S.B. 4. That law created state crimes for unlawful entry into Texas from a foreign country and authorized state judges to issue removal orders. The State moved for en banc rehearing, which the Court granted. En banc argument is scheduled for January 2026.
Now, to the opinions:7
Space Exploration Technologies Corporation v. National Labor Relations Board, No. 24-50627: Does the NLRB’s dual for-cause removal protections for Board Members and Administrative Law Judges violate Article II of the Constitution?
Majority (Willett, J., joined by Duncan, J.): Yes. NLRB ALJs, like SEC ALJs, are inferior officers. The limited exception in Humphrey’s Executor does not extend beyond the specific context of the FTC. And being subjected to unconstitutional agency authority constitutes irreparable harm.
Concurrence in Part and Dissent in Part (Wiener, J.): Though agreeing with most of the majority’s reasoning, Judge Wiener disagreed on irreparable harm. As other circuits correctly hold, the employers were required to allege causation between the removal provision and their injuries.
Lexon Insurance Co. v. Chevron U.S.A. Inc., No. 24-20347 (Southwick, Oldham, Ramirez, JJ.): The district court properly rejected Lexon’s claims for reimbursement after paying $11 million in decommissioning bonds. Title 31 U.S.C. § 9309 does not authorize recovery from non-parties to the bond. Federal common law does not override the Outer Continental Shelf Lands Act’s requirement to apply state law, and Louisiana law provides no basis for subrogation, contribution, or unjust enrichment.
Burgess v. Whang, No. 22-11172 (Wiener, Douglas, Ramirez, JJ.): Under 12 U.S.C. § 1818(i)(1), district courts lack subject-matter jurisdiction to enjoin or affect FDIC enforcement orders. Constitutional claims must be raised through the statutory review scheme in the courts of appeals after a final agency order. The district court lacked jurisdiction to enjoin an FDIC enforcement proceeding against a former bank CEO, requiring the suit’s dismissal.
Moats v. National Credit Union Administration Board, No. 24-40259 (Wiener, Douglas, Ramirez, JJ.): Mirroring Burgess, the court affirmed dismissal of a constitutional challenge to an NCUA enforcement action. Under 12 U.S.C. § 1786(k)(1), district courts lack subject-matter jurisdiction over suits seeking to enjoin or affect NCUA enforcement proceedings.
Williams v. Wingrove, No. 24-40531: Did the district court properly deny remand based on improper joinder, and does the Poultry Products Inspection Act preempt the plaintiffs’ tort claims?
Majority (Dennis, J., joined by Stewart, J.): The district court properly denied remand, as Texas law imposes the duty to provide a safe workplace on the employer—not individual employees. But it improperly dismissed the plaintiffs’ claims based on preemption, as the PPIA doesn’t preempt state-law negligence claims related to workplace safety.
Dissent (Haynes, J.): The plaintiffs pleaded distinct claims against individual employees, requiring remand. At minimum, the Court should certify this question of Texas law to the Supreme Court of Texas.
La Union del Pueblo Entero v. Abbott, No. 24-50826: Does Section 208 of the Voting Rights Act preempt Texas’s S.B. 1 provisions that restrict compensated voter assistance and imposing additional oath and disclosure requirements?
Majority (Duncan, J., joined by Smith, J.): No. No plaintiff has standing to challenge the oath or disclosure provisions. But although one organization has standing to challenge the compensation provisions, Section 208 does not preempt them. While Section 208 guarantees certain assistance to “blind, disabled, and illiterate voters,” it “does not vaporize all additional state voter assistance regulations.”
Dissent (Graves, J.): The plaintiffs showed standing through evidence of chilled participation and resource diversion. S.B. 1’s compensation provisions are preempted by Section 208, which by its text and purpose protects the right to “assistance by a person of the voter’s choice[.]”
15COA
Last—but certainly not least—the Fifteenth Court issued opinions in two interesting appeals that garnered separate writings.
*City of Dallas v. Paxton, No. 15-24-00081-CV (op.): Did the City of Dallas properly invoke the Texas Public Information Act’s litigation exception to withhold records requested by the Dallas Morning News after providing them to a federal agency during a housing-discrimination investigation?
Majority (Farris, J., joined by Field, J.): No. The litigation exception is “properly raised” under Section 552.326(a) only when the governmental body supplies the Attorney General with enough factual detail to make an informed decision about whether the asserted exception applies. Here, the City’s initial letter merely referenced a federal investigation without discussing anticipated litigation involving the complainant. And the City can’t raise the exception for the first time in the trial court.
Concurrence in the Judgment (Brister, C.J.): Nothing in the PIA requires the governmental body to “name the plaintiff.” Identifying the litigation exception “by name and statutory citation” is sufficient. However, the PIA still requires “written comments stating the reasons why the stated exception appl[ies],” and the City’s generic explanation failed to meet that standard.
Curadev Pharma Pvt. Ltd. v. University of Texas Southwestern Medical Center, No. 15-25-00004-CV (op.): Though raising several issues, the central question is whether sovereign immunity bars Curadev’s claims against a state university for alleged misappropriation of trade secrets and an unconstitutional taking—where the university obtained the disputed material through a contract with a third party.
Majority (Farris, J., joined by Field, J.): Yes. Because Southwestern obtained the disputed property through a valid research contract—not through an exercise of eminent-domain powers—there is no valid takings claim.
Concurrence in Part and Dissent in Part (Brister, C.J.): No. A viable takings claim exists even if the government mistakenly believes it has contractual rights, so long as it intentionally uses property for public purposes without compensation. Because Southwestern allegedly used Curadev’s intellectual property without any contract with Curadev, the claim should proceed.
Red Light
“Ground Control to Major Tom . . .”
Unlike Major Tom, let’s bring this week’s post in for a safe landing.
Thank you, as always, for reading. Again, if you’ll be in Austin this week for Civil Appellate 101 or Advanced Civil Appellate, please come say hello.
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Thank you to my friend David Coale for initially flagging this order on LinkedIn. This was my response:
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.
Disclaimer: I represented the appellee in this case. My former colleague Parker Cragg (now Pro Bono Counsel at Vinson & Elkins) masterfully presented oral argument.
The Court separately denied the State’s mandamus petition—challenging the Fifteenth Court’s expedited briefing schedule in a high-profile mandamus proceeding involving Beto O’Rourke and his PAC, Powered by People—which was mooted when the Fifteenth Court subsequently granted the State’s requested extension.
Disclaimer: I also represent the real party in interest in this case.
The four panels are: (1) Judges Smith, Dennis, Richman; (2) Judges Higginson, Willett, Englehardt; (3) Judges Jones, Stewart, Ramirez; and (4) Judges Haynes, Ho, Oldham.
Because I’ve already written enough (!), I’ll simply link here to the amended panel opinions in AT&T, Inc. v. Federal Communications Commission, No. 24-60223 (separation of powers) and Amazon.com Services LLC v. National Labor Relations Board, No. 24-50761 (appellate jurisdiction).