25-09: On the Mend
A look back to the month of September, with help from crutches
Welcome back to 1910 & Beyond, your regular briefing on the ever-evolving world of appellate law in Houston and beyond. Each post spotlights 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.
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It’s been a minute since my last post. Between transitioning to my new firm, an exciting office move, an oral argument in the Fourteenth Court, a stack of appellate briefs, two CLE presentations, and—the cherry on top—knee surgery, September has been anything but quiet. But I’m glad to be back with you, even if still on the mend.
Now, let’s limp through the docket together.
1910
Orders and Opinions
As always, we start with our local courts here in Houston. After the end-of-fiscal-year surge of opinions, the First and Fourteenth Courts enjoyed a well-deserved quiet September. Below, I highlight one notable opinion from each court, followed by brief summaries of others worth noting.
Features
AABC Travels, Inc. v. Delta Airlines, Inc., No. 01-24-00893-CV (Adams, C.J.; Morgan, Dokupil, JJ.) (op.): A Houston travel agency sued Delta Airlines for business-reputation damages after Air France allegedly failed to honor extra seat purchases. Delta moved for no-evidence summary judgment, which the trial court granted after the agency failed to respond. On appeal—without first moving for a new trial—the agency argued it never received notice of the motion or submission date.
The First Court affirmed. Lack of notice is a procedural defect—not jurisdictional—and thus waivable if not timely raised. As a result, a party complaining of lack of notice “must file a motion for new trial to preserve a complaint that she did not receive notice of a summary judgment motion and hearing or submission date.” Because the travel agency here skipped that step, its argument was not preserved for appeal.
N.B.: AABC Travels underscores a critical preservation rule: If you’re claiming non-fundamental error on appeal, you must first raise it in the trial court. For lack of notice of a summary-judgment hearing, that means filing a motion for new trial. Raising the issue for the first time on appeal won’t work.
Jones v. Port Freeport, No. 14-23-00948-CV (Wilson, Hart, Boatman, JJ.) (op.): Port Freeport condemned land near its terminal for future “expansion of port facilities” and “development of business and industries.” The landowners challenged the taking, arguing that (1) economic-development takings violate the Texas Constitution and (2) the Port failed to plead a specific public use as required by the Texas Property Code.
Agreeing with the second argument, the Fourteenth Court reversed and remanded. The Texas Constitution allows the taking of private property only for public use. To enforce that constitutional rule, “all condemnation petitions must ‘state with specificity the public use for which the entity intends to acquire the property.” Tex. Prop. Code § 21.012(b)(2) (emphasis added).” The Port’s generic pleading—merely parroting statutory language—didn’t satisfy this specificity requirement.
The court also rejected the Port’s argument that it couldn’t specify the property’s use until after acquiring the property and then contracting with the private party who will use the property. As the court explained, “Texas law views any condemnation that confers a benefit on a private party with skepticism”—and the Port’s “take now, plan later” approach runs squarely afoul of the Property Code’s specificity requirement.
N.B.: If the Government wants to take property, it must strictly comply with Section 21.012(b)(2) of the Property Code. Future, undefined “expansion” or “business development” isn’t enough—specific means specific.
In Brief
1COA
Powell v. Grimes, No. 01-23-00129-CV (Morgan, J.) (order): The First Court denied appellant’s fourth motion for an extension of time to file motions for rehearing and rehearing en banc. After granting three prior extensions totaling nearly 160 days—and warning that no further extensions would be granted absent extraordinary circumstances—the court found the appellant’s cited hardships were not “extraordinary” enough to justify more time.
Spiller v. West Oaks Hospital, Inc., No. 01-24-00502-CV (Guerra, Guiney, Johnson, JJ.) (mem. op.): A guardian sued a residential rehabilitation hospital after her ward was sexually assaulted by other patients, alleging negligent supervision and policy failures. The trial court dismissed the case for failure to serve the expert report required by Section 74.351 of the Texas Medical Liability Act. The First Court affirmed, holding the claims were healthcare liability claims under the TMLA because the alleged negligence occurred while the hospital was performing tasks to protect the ward from harm, in a care setting, and based on alleged failures to implement and follow proper safety standards.
14COA
Expedi, Inc. v. Safety N95, LLC, No. 14-23-00656-CV (Wise, Wilson, Antú, JJ.) (mem. op.): Safety N95 sued Expedi under the DTPA after Expedi failed to refund payment for 50,000 masks it never delivered. Expedi counterclaimed, arguing the deal was for 100,000 masks. Following a bench trial, the court sided with Safety N95, awarding a full refund and attorneys’ fees. The Fourteenth Court affirmed, finding sufficient evidence supported the trial court’s findings and rejecting Expedi’s arguments—including those under the Texas Business and Commerce Code—as thinly veiled attacks on fact findings.
Wu v. Luo, No. 14-24-00483-CV (Wise, Bridges, Antú, JJ.) (mem. op.): Wu appealed the denial of her motion to compel arbitration in a business dispute. The Fourteenth Court affirmed because she failed to challenge all independent grounds supporting the trial court’s order—specifically, estoppel and quasi-estoppel based on her prior denial of the agreements’ existence. Because an appellant must attack every ground supporting the ruling under Texas law, Wu’s failure to do so made affirmance mandatory.
Arguments
The First and Fourteenth Courts are back in session for oral arguments.
1COA
Since our last post, the First Court heard one argument on September 17:
George v. Barbers Hill Independent School District, No. 01-24-00789-CV (Rivas-Molloy, Gunn, Caughey, JJ.): Whether a school district’s male hair-length restriction in its dress code violates the Texas CROWN (Creating a Respectful and Open World for Natural Hair) Act, and whether the student’s graduation renders the dispute moot.
Appellant: Dylan Drummond (Langley & Banack) and Allie Booker (The Booker Law Firm)
Appellee: Sara Leon (Leon Alcala)
The First Court’s next argument is set for October 9 at 1:30 pm:
Akinrinlola v. State, Nos. 01-24-00410-CR, 01-24-00413-CR (Guerra, Guiney, Johnson, JJ.): Whether the trial court properly denied the defendant’s motion to suppress cell-phone evidence, and whether trial counsel provided ineffective assistance.
14COA
The Fourteenth Court, by contrast, has had a packed argument docket. Since our last post, it has heard seven arguments:
Rios v. CHI St. Luke’s Health Baylor College of Medicine Medical Center, No. 14-24-00017-CV (Wilson, Hart, McLaughlin, JJ.): Whether insufficient evidence supports the jury’s mixed verdict—mostly in favor of the hospital—in a physician’s healthcare-retaliation lawsuit.
Appellant: Misty Hataway-Coné (Coné)
Appellee: Dale Burrus (Spencer Fane)
Rodriguez v. State, No. 14-24-00464-CR (Wilson, Hart, McLaughlin, JJ.): Whether the trial court properly admitted cell-phone evidence under Rules 403 and 404, and whether sufficient evidence supports the defendant’s conviction.
Odyssea Phoenix, LLC v. Wilcox-Carleton, No. 14-24-00622-CV (Bridges, Boatman, Antú, JJ.): Whether the trial court properly denied the defendant’s special appearance, based in part on jurisdictional veil-piercing.
Appellant: Aaron McLeod (Adams & Reese)
Appellee: Andrew Gould (Hicks Johnson)—yes, that’s me!
State v. Cabeza-Torres, No. 14-24-00993-CR (Bridges, Boatman, Antú, JJ.): Whether the trial court erred in granting habeas relief absent proof of prejudice.
Bayou Bait Camp, LLC v. Wasserloos, No. 14-24-00640-CV (Christopher, C.J.; Wise, Jewell, JJ.): Whether the trial court properly excluded evidence under Rules 403 and 404, and whether sufficient evidence supports the jury’s damages findings.
Endeavor Natural Gas III, LLC v. Comanche Maverick Ranch Investments, L.P., No. 14-24-00639-CV (Bridges, Boatman, Antú, JJ.): Whether the trial court correctly construed a Surface Use Agreement as requiring a permit before seismic operations.
Holloway v. Harris County, No. 14-24-00618-CV (Bridges, Boatman, Antú, JJ.): Whether summary judgment for Harris County was proper under the Texas Tort Claims Act’s emergency exception.
The Fourteenth Court has three more arguments on the horizon:
Exxon Mobil Corporation v. Brown, No. 14-24-00104-CV (Christopher, C.J.; Wise, Jewell, JJ.): Whether errors in the jury charge require a new trial, and whether sufficient evidence supports the jury’s awards for economic and noneconomic damages.
Appellant: Joshua Smith (Beck Redden)
Appellees: Misty Hataway-Coné (Coné)
Argument: September 30 at 2 pm
Daly v. Lehle, No. 14-24-00828-CV (Bridges, Boatman, Antú, JJ.): Whether the trial court properly denied dismissal of a defamation lawsuit under the Texas Citizens Participation Act.
Argument: October 9 at 2 pm
Stanin v. Moore, No. 14-24-00840-CV (Bridges, Boatman, Antú, JJ.): Whether the trial court erred in granting summary judgment based on various procedural deficiencies (e.g., lack of notice and untimeliness), or in denying a continuance.
Argument: October 9 at 2 pm
& Beyond
SCOTUS
Though nearing the end of its recess, the Supreme Court of the United States continued its unusually active summer.
Opinions
The emergency docket remains busy. Two stay applications from the Trump Administration drew separate opinions from the Justices:
Noem v. Perdomo, No. 25A169: Should the Supreme Court stay a district-court order barring federal immigration officers from relying on certain factors—“apparent race or ethnicity,” speaking in Spanish or accented English, presence at a location where undocumented immigrants “are known to gather,” and employment in specific jobs like landscaping or construction—to justify conducting detention stops in several southern California counties, including Los Angeles?
Majority (per curiam): Stay summarily granted.
Concurrence (Kavanaugh, J.): Beyond the issue’s certworthiness, injunctive relief is likely improper based either on the plaintiffs’ lack of standing or the lack of a Fourth Amendment violation—the circumstances here providing reasonable suspicion of illegal presence. The Government also has shown irreparable harm from chilled immigration-enforcement efforts. Finally, the equities favor the Government; individuals who are illegally in the country don’t have an “especially weighty legal interest” in avoiding questioning.
Dissent (Sotomayor, J., joined by Kagan, Jackson, JJ.): The Government hasn’t shown a likelihood of success on the merits: The plaintiffs have standing, and the Government’s generalized demographic and occupational factors don’t create reasonable suspicion. What’s more, the only irreparable harm is to “the people of Los Angeles and the Central District,” who will be subjected to these unconstitutional stops. Finally, the majority should have at least provided some explanation for its decision.
Trump v. Slaughter, No. 25A264: Should the Supreme Court stay the court of appeals’ divided order requiring reinstatement of a commissioner on the Federal Trade Commission whom President Trump removed without cause?
Majority (per curiam): Stay summarily granted and certiorari before judgment granted. The Court directed briefing on two questions:
“Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U. S. 602 (1935).”
“Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.”
Dissent (Kagan, J., joined by Sotomayor, Jackson, JJ.): Until overruled, Humphrey’s Executor controls. The emergency docket should not be used to sidestep precedent or shift power from Congress to the President.
Department of State v. AIDS Vaccine Advocacy Coalition, No. 25A269: Should the Supreme Court stay a district court’s order requiring the Trump Administration to make available for obligation billions of dollars in appropriated foreign-aid funds?
Majority (per curiam): Stay granted. The Court’s preliminary view—not “a final determination on the merits”—is that the Impoundment Control Act bars this suit, which the plaintiffs brought under the Administrative Procedure Act. And the harms to the Executive’s conduct of foreign affairs outweigh the potential harms to the plaintiffs.
Dissent (Kagan, J., joined by Sotomayor, Jackson, JJ.): Nothing in the ICA precludes this APA suit. Nor are the claimed harms persuasive: They are “the price of living under a Constitution that gives Congress the power to make spending decisions through the enactment of appropriations laws.” Once again, the Executive Branch hasn’t met the high standard for emergency relief, which “should be sparingly given.”
Orders
Meanwhile, the Court issued several orders—some standard, some miscellaneous—throughout the month of September. A few are notable:
Learning Resources, Inc. v. Trump, No. 24-1287; Trump v. V.O.S. Selections, Inc., No. 24-250 (per curiam): Granting certiorari before judgment in Learning Resources and certiorari in V.O.S. Selections—two cases challenging the Trump Administration’s imposition of tariffs under the International Emergency Economic Powers Act. Argument set for first week of November 2025.
South Carolina v. Doe, No. 25A324 (per curiam): Denying application for stay from court of appeals’ injunction requiring a public school to allow a transgender student to use the boys’ bathroom while challenging a state law requiring bathroom use based on biological sex at birth. “The denial of the application is not a ruling on the merits of the legal issues presented in the litigation. Rather, it is based on the standards applicable for obtaining emergency relief from this Court.”
Justices Thomas, Alito, and Gorsuch would grant the application.
N.J. Transit Corp. v. Colt, No. 24-1113 (per curiam): Granting stay of trial in case where Court has granted certiorari on issue of state sovereign immunity.
Harris v. Bessent, No. 25-312; Wilcox v. Trump, No. 25-319 (per curiam): Denying certiorari before judgment in two cases challenging President Trump’s without-cause firings of members of the Merit Systems Protection Board and National Labor Relations Board.
The Court will hold its “Long Conference” on September 29, where it will consider roughly 2,000 certiorari petitions that accumulated during the summer recess.
Arguments
With October comes the beginning of October Term 2025, and the start of another season of Supreme Court arguments. The Court will hear six cases the week of October 6:1
October 6
Villarreal v. Texas, No. 24-557: Whether a trial court abridges a defendant’s Sixth Amendment right to counsel by prohibiting the defendant and his counsel from discussing the defendant’s testimony during an overnight recess.
Berk v. Choy, No. 24-440: Whether a state law providing that a complaint must be dismissed unless it is accompanied by an expert affidavit may be applied in federal court.
October 7
Chiles v. Salazar, No. 24-539: Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the First Amendment’s Free Speech Clause.
Barrett v. United States, No. 24-5774: Whether the Fifth Amendment’s Double Jeopardy Clause permits two sentences for an act that violates 18 U.S.C. § 924(c) and (j).
October 8
Bost v. Illinois Board of Elections, No. 24-568: Whether petitioners, as federal candidates, have pleaded sufficient factual allegations to show Article III standing to challenge state time, place, and manner regulations concerning their federal elections.
U.S. Postal Service v. Konan, No. 24-351: Whether a plaintiff’s claim that she and her tenants did not receive mail because U.S. Postal Service employees intentionally did not deliver it to a designated address arises out of “the loss” or “miscarriage” of letters or postal matter under the Federal Tort Claims Act.
All arguments can be livestreamed at this link.
SCOTX
The Supreme Court of Texas’s 2025–26 Term is officially underway.
Opinions
Though back in session, the Court hasn’t yet issued any merits opinions. But Justice Young continues his prolific streak of separate writings on orders-related matters:
In re Bowen, No. 25-0754 (statement respecting denial of petition for writ of mandamus): Although the City of Austin’s ballot language for a voter-approval tax increase—featuring a broad catchall purpose—raises concerns about clarity and potential to mislead, it does not rise to the level warranting mandamus relief. The Legislature, of course, “is always free to impose heightened substantive or procedural mandates for tax-increase elections” if circumstances warrant. But for now, this proposed tax increase must be decided—and debated—by Austin’s voters.
Fort Bend Independent School District v. Paxton, No. 23-0679 (concurring in denial of motion for rehearing of denial of petition for review): A future case may need to resolve how the Public Information Act applies to government employees’ private cell phones—including under the Texas Constitution, which need not necessarily “remain in lockstep” with the U.S. Supreme Court’s “interpretation of the federal Constitution.” But this case isn’t the right vehicle to do so, because the records request expressly sought redacted information excluding personal calls and other confidential data.
Orders
As usual, the Court’s customary Friday orders lists were dominated by denials of petitions for review and for writs of mandamus. But the Court has begun granting several petitions for review, setting the following cases for argument:
Johnson v. Clifton, No. 23-0671 (Eighth Court): How to interpret a double fraction in an oil‑and‑gas deed and whether the presumed‑grant doctrine applies.
K&K Inez Properties, LLC v. Kolle, No. 24-0045 (Thirteenth Court): A nuisance case addressing (1) an exemplary-damages cap calculation and (2) whether intentional and grossly negligent nuisance are mutually exclusive causes of action when based on the same property damage.
Maya Walnut LLC v. Ly, No. 24-0171 (Fifth Court): Whether a commercial tenant could justifiably rely on a landlord’s continued lease-renewal negotiations despite alleged red flags.
Huffman Asset Management, LLC v. Colter, No. 24-0205 (Fifth Court): Multiple issues regarding service of process, including whether a Whitney certificate must show that process documents were forwarded to an entity’s most recent principal address on file with the Secretary of State.
Boerschig v. Rio Grande Electric Cooperative, Inc., No. 24-0213 (Fourth Court): A case concerning the existence and scope of a utility company’s easement by estoppel.
HEB Grocery Co. v. Peterson, No. 24-0310 (Thirteenth Court): Whether a grocery store was entitled to summary judgment in a slip-and-fall case when the plaintiff presented evidence of prior leaks only in other parts of the store.
In Interest of K.N., No. 24-0881 (Seventh Court): A parental-termination challenge to the trial court’s jurisdiction and the sufficiency of the evidence supporting termination.
Carden v. Minton, Bassett, Flores & Carsey, P.C., No. 24-0834 (Third Court): Whether civil claims brought by a criminal defendant against former attorneys are improperly “fractured” professional-negligence claims barred by the Peeler doctrine.2
Diamond Hydraulics, Inc. v. GAC Equipment LLC, No. 24-1049 (Third Court): Whether the trial court properly excluded an untimely designated expert witness while also allowing an opposing rebuttal expert to testify.
The Court also set several mandamus petitions for argument:
In re Bell Helicopter Services, Inc., No. 24-0883 (Fourteenth Court): Whether Bell Helicopter is entitled to mandamus relief after the denial of its motion for summary judgment based on a federal statute of repose.3
In re Tafel, No. 24-1062 (Fifth Court): Whether a qui tam action survives the death of the qui tam relator.
In re LaPuerta, No. 24-0879 (First Court): Whether the trial court improperly granted a new trial based on the inclusion of a “loss of chance” instruction.
Arguments
The Court has a slate of arguments scheduled for the week of October 6.
October 7
Office of Attorney General v. PFLAG, Inc., No. 24-0892 (Travis County): In this rare direct appeal, the issue is whether the trial court erred in ordering that a nonprofit organization need not comply with portions of a civil investigative demand seeking information related to an investigation of alleged misrepresentations regarding gender transitioning and reassignment treatments and procedures. (Sullivan, J., not participating)
Ortiz v. Nelapalta, No. 23-0953 (Fifth Court): This personal injury case concerns the admissibility of partially controverted affidavits offered to prove the reasonableness and necessity of medical expenses.
Petitioner: Haleigh Jones (Crawford Wishnew & Lang)
Respondent: Michael Northrup (Cowles & Thompson)
Morrison v. Morrison, No. 24-0053 (Twelfth Court): The central issue in this case is whether a post-divorce enforcement order that applied an agreed divorce decree’s damages provision impermissibly changed the substantive division of property after the trial court’s plenary power had expired.
Petitioner: Julie Wright (Freeman Mills)
Respondent: Tyler Friedson and Beau Sinclair (Sinclair Law Office)
In re Zaidi, No. 24-0245 (Fourteenth Court): Whether the trial court clearly abused its discretion in granting Real Parties’ motion to disqualify Relators’ counsel. (Bland, J., not participating)
Relator: Robin Harrison (Hicks Thomas)
Real Party in Interest: Andrew Meade (Meade Neese & Barr)
October 8
Hancock v. RJR Vapor Co., No. 24-0052 (Third Court): Whether a state tax on tobacco products, defined as products “made of tobacco or a tobacco substitute,” applies to oral nicotine products. (Lehrmann, J., not participating)
Petitioner: William Cole (Office of Texas Attorney General)
Respondent: Christian Vergonis (Jones Day)
Amicus Curiae McLane Company: Kyle Hawkins (Lehotsky Keller)
Webb Consolidated Independent School District v. Marshall, No. 24-0339 (Fourth Court): This case presents two issues regarding school board members’ statutory rights to access district information and to obtain attorney’s fees under the Texas Education Code.
Petitioner: Kevin O’Hanlon (O’Hanlon, Demerath & Castillo)
Respondents: Baldemar Garcia Jr. (Person Mohrer Morales Boddy Garcia Gutierrez)
Shamrock Enterprises, LLC v. Top Notch Movers, LLC, No. 24-0581 (Thirteenth Court): This restricted appeal raises personal jurisdiction and substituted service-of-process issues in a dispute about payment under a contract for moving services.
Petitioner: Michael Yanochik (Pappas Grubbs Price)
Respondent: Audrey Vicknair (Law Office of Audrey Mullert Vicknair)
Valk v. Copper Creek Distributors, Inc., No. 24-0516 (Fifth Court): This case concerns the propriety of a trial court’s jury instruction on spoliation of evidence.
Petitioner: James Sherry (McCathern)
Respondent: Reagan Herod (Gibson Herod Law)
October 9
Equinor Energy LP v. Lindale Pipeline, LLC, No. 24-0425 (First Court): Whether an oil and gas operator breached its agreement with a water pipeline operator by buying water from other suppliers.
Petitioner: Joshua Smith (Beck Redden)
Respondent: David Keltner (Kelly Hart & Hallman)
S&B Engineers & Constructors, Ltd. v. Scallon Controls, Inc., No. 24-0525 (Ninth Court): Whether a defendant can settle tort claims and then seek recovery under a contractual comparative-indemnity provision.
Petitioners: Jack McKinley (Ramey Chandler Schein) and Philip Werner (Werner Ayers & McDonald)
Respondent: Tory Taylor (Taylor Twining)
In Interest of C.S., Jr., No. 25-0008 (Eleventh Court): The principal issue in this case is whether the trial court properly extended its jurisdiction over a parental rights-termination suit past the Family Code’s automatic dismissal deadline.
Petitioner: Britt Lindsey and Jeffrey Stephens (Office of Texas Attorney General)
Respondents: Derek Hampton (Law Office of Derek C. Hampton) and Bryce Bedford (Attorney at Law)
CA5
The Fifth Circuit had an especially productive September.
Arguments
Before diving into opinions, the Fifth Circuit recently heard three en banc arguments—two involving appellate-jurisdiction issues—during the last week of September:
United States ex rel. Doe v. Planned Parenthood Federation of America, Inc., No. 23-11184: Whether the Fifth Circuit has appellate jurisdiction to consider the district court’s denial of attorney immunity to Planned Parenthood’s attorneys in a qui tam lawsuit, and whether the attorney-immunity doctrine bars the relator’s claims to the extent they are based on the attorneys’ representation of Planned Parenthood.
Appellants: Anton Metlitsky (O’Melveny & Myers)
Appellees: Heather Hacker (Hacker Stephens)
Amicus Curiae State of Texas: William Peterson (Office of Texas Attorney General)
Parker v. Hooper, No. 23-30825: Whether the Fifth Circuit has appellate jurisdiction to review an order appointing special masters to develop proposed remedial plans in a long-running prison-conditions case.
Texas Medical Association v. HHS, No. 23-40605: Whether regulations establishing the methodology for “qualifying payment amounts” are consistent with the No Surprises Act, and whether the district court erred in granting universal relief under the Administrative Procedure Act.
Appellants: Kevin Soter (Department of Justice)
Appellees (Texas Medical Association, et al.): Jillian Stonecipher (Sidley Austin)
Appellees (East Texas Air One LLC, et al.): Max Straus (Susman Godfrey)
The Fifth Circuit will soon resume its normal oral-argument schedule, with three panels set to hear argument the week of October 6.
Opinions
Meanwhile, the Fifth Circuit continued its steady output of notable opinions—and even an unusual order—throughout September.
W.M.M. v. Trump, No. 25-10534 (Southwick, Oldham, Ramirez, JJ.): Does the Alien Enemies Act authorize President Trump’s proclamation ordering removal of Venezuelan nationals tied to Tren de Aragua, and does the Government’s revised notice procedures satisfy due process?
Majority (Southwick, J.): The AEA doesn’t authorize the Venezuelan nationals’ removal. The proclamation’s factual findings don’t establish a “declared war,” “invasion,” or “predatory incursion” as those terms were historically understood. But the Government’s updated seven-day notice procedures are adequate on the current record.
Concurrence in Part and Dissent in Part (Ramirez, J.): Not only was the AEA improperly invoked, but the updated notice procedures also fail due process. At least 21 days’ notice is required.
Dissent (Oldham, J.): The President’s determination under the AEA is conclusive and unreviewable. The majority’s analysis “transmogrifies the least-dangerous branch into robed crusaders who get to playact as multitudinous Commanders in Chief.”
Doe v. HHS, No. 24-40778 (Haynes, Ho, Oldham, JJ.) (order): After appellant’s lead counsel suffered a medical emergency on the morning of oral argument and requested a continuance, the Fifth Circuit proceeded with argument with co-counsel—but issued an order offering to hold a supplemental Zoom argument if lead counsel wished.
“Note” (Haynes, J.): The court proceeded because both sides had traveled and notice came shortly before argument. Co-counsel—whose name was on the briefs—argued well, so a second argument may be unnecessary, but it’s up to lead counsel.
Concurrence (Ho & Oldham, JJ.): Appellate counsel typically needs more than two hours to prepare. Courts routinely reschedule for health emergencies, and “it seems obvious that there is a meaningful difference between lead counsel and second chair.”
Fugedi v. Initram, Inc., No. 24-40283 (Elrod, C.J.; Duncan, Englehardt, JJ.): 28 U.S.C. § 1359’s bar on collusive devices to create federal jurisdiction extends to trusts allegedly formed to manufacture diversity. The statute’s “or otherwise” language covers sham fiduciary appointments, and the district court didn’t clearly err in finding the trust was created for that purpose.
McRaney v. North American Mission Board of Southern Baptist Convention, Inc., No. 23-60494 (Richman, Oldham, Ramirez, JJ.): Does the First Amendment’s church-autonomy doctrine bar tort claims by a former Southern Baptist Convention executive against the Convention’s board?
Majority (Oldham, J., joined by Richman, J.): Yes. The church-autonomy doctrine operates as a jurisdictional bar to suit, but not necessarily for purposes of Rule 12(b)(1). And the doctrine applies here to bar the former executive’s claims, which would require courts to resolve matters of faith, governance, and internal governance. The ministerial exception also bars certain claims.
Dissent (Ramirez, J.): No. The church-autonomy doctrine doesn’t bar the former executive’s claims. There’s no “intra-church” dispute here, as there is no unified “Baptist Church.” And the executive’s secular claims merely require a court to apply neutral principles of tort law.
United States v. Allen-Shinn, No. 24-30685 (Haynes, Ho, Oldham, JJ.): Service-connected disability payments deposited in a bank account are not exempt from garnishment under 26 U.S.C. § 6334(a)(10). The exemption in § 6334(a)(1) applies only to amounts “payable” in the future, not funds already received.
Gulf Coast Pharmaceuticals Plus, LLC v. RFT Consulting, Inc., No. 24-60480 (Haynes, Ho, Oldham, JJ.): A forum-selection clause stating that “venue shall only be proper in Harrison County, Mississippi” did not clearly waive the right to remove to federal court. The language is ambiguous and reasonably read as addressing only geographic venue—especially given another clause expressly allowing suit in Mississippi state or federal court.
United States v. Mancilla, No. 23-10952 (Elrod, C.J.; King, Graves, JJ.): Does 18 U.S.C. § 922(g)(1)—prohibiting felons from possessing firearms—violate the Second Amendment as applied to a defendant with a prior drug-trafficking conviction?
Majority (per curiam): No. Under binding precedent (Kimble), drug-trafficking convictions categorically establish a defendant’s dangerousness under the Second Amendment.
Concurrence (Elrod, C.J.): While Kimble controls, historical analogues support individualized assessments of dangerousness.
Dissent (Graves, J.): Kimble wrongly failed to follow precedent that (rightly) required individualized dangerousness assessments.
Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, No. 23-20337 (Dennis, Willett, Duncan, JJ.): Waiver of removal occurs only when a defendant “clearly and unequivocally” intends for state court to resolve the case on the merits. Filing a single TCPA motion—never set for hearing, never ruled on, and resulting only in a temporary discovery pause—doesn’t meet that standard.
AbbVie, Inc. v. Fitch, No. 24-60375 (Elrod, C.J.; Clement, Ramirez, JJ.) (per curiam): The district court properly denied to enjoin enforcement of Misssissippi’s H.B. 728, which prohibits drug manufacturers from interfering with covered entities’ use of contract pharmacies under the federal 340B program. H.B. 728 does not effectuate a physical taking because it imposes only a negative obligation of noninterference; it doesn’t compel manufacturers to transfer or sell their drugs, including at larger quantities than what Section 340B requires. Nor does it constitute a regulatory taking under Penn Central, as the law’s economic impact is limited, investment-backed expectations were not significantly disrupted, and the statute serves important public interests. Finally, H.B. 728 is not preempted by federal law: Section 340B doesn’t occupy the field of drug distribution to patients, nor does it conflict with H.B. 728 (which neither expands the list of covered entities nor penalizes violations of Section 340B itself).
Genesis Energy, LP v. Danos, LLC, No. 24-20357 (Elrod, C.J.; Duncan, Englehardt, JJ.): Under Doiron, the parties’ platform-repair contract is not a maritime contract. Although the contract facilitated oil-and-gas production on navigable waters, the parties didn’t expect the chartered vessel to play a “substantial role” in completing the work. The vessel served only ancillary functions—housing crew, transporting personnel and equipment, and storing supplies—while all repair work occurred on the platform. Unlike cases where vessels provided cranes or specialized equipment central to the job, this vessel had no direct role. Louisiana law under OCSLA applied, rendering the indemnity provision unenforceable.
Texas v. EPA, No. 16-60670 (Smith, Higginson, Douglas, JJ.): Did the EPA comply with the Administrative Procedure Act and the Clean Air Act in disapproving Texas’s State Implementation Plan (SIP) under the Clean Air Act’s Good Neighbor Provision for the 2008 ozone NAAQS?
Majority (Higginson, J., joined by Douglas, J.): Yes. Procedurally, EPA’s failure to meet the 12-month statutory deadline did not void its authority to act, and EPA otherwise provided adequate notice and opportunity to comment. On the merits, EPA reasonably found Texas’s SIP deficient because it failed to analyze whether Texas emissions would “interfere with maintenance” of the ozone standard or significantly contribute to nonattainment in any other state, as required by 42 U.S.C. § 7410(a)(2)(D)(i). EPA’s reliance on updated modeling and data was permissible and rational.
Dissent (Smith, J.): No. Missing the 12-month statutory deadline should have ended the matter. Instead, EPA used the additional time to develop new data to support disapproval—an approach that is arbitrary and capricious.
15COA
Finally, a quick update from our statewide court of appeals.
Opinions
The Fifteenth Court issued two notable decisions, including one in Attorney General Ken Paxton’s high-profile lawsuit against Beto O’Rourke’s Powered by People PAC.
In re Powered by People, No. 15-25-00140-CV (per curiam) (order): A temporary restraining order barring Powered by People from engaging in certain political-fundraising activities is an unconstitutional prior restraint on speech.
Even if the State ultimately couldn’t prove its DTPA claim, the trial court still had subject-matter jurisdiction to consider the TRO request.
Texas Supreme Court precedent forecloses the State’s argument that TROs are immune from mandamus review.
The TRO is an unlawful prior restraint on political expression. It contained “no findings supported by evidence that imminent and irreparable harm will deprive the litigants of a just resolution of their dispute, or that the sweeping prior restraints are the least restrictive means to prevent the harm.” Instead, the order offered only conclusory findings on the merits.
ENGIE IR Holdings LLC v. Hancock, No. 15-24-00058-CV: Did ENGIE IR Holdings and Hamlin CISD plead a viable ultra vires claim to overcome sovereign immunity after the Comptroller withdrew a Chapter 313 certificate of limitation after expiration of the Texas Economic Development Act?
Majority (Brister, C.J., joined by Field, J.): No. The Comptroller’s “purported” withdrawal of the certificate was harmless for two reasons. First, the certificate had already been invalidated by its own terms when ENGIE Solar’s franchise taxpayer status changed after a merger, altering information in the original application. Second, the appellants’ value limitation agreement was invalid because the Comptroller never approved it as required by Tax Code § 313.027(f)(7). Rule 9.1055(e)’s 20-day review period did not authorize applicants to self-execute agreements without Comptroller approval.
Dissent (Farris, J.): Yes. The Comptroller failed to act within Rule 9.0155(e)’s 20-day review period, and so it lacked authority to withdraw the certificate. Whether the certificate was invalid for other reasons is a separate question—one for a declaratory-judgment action, not this ultra vires claim.
Argument
Last, the Fifteenth Court heard argument in a significant regulatory appeal brought by several major-county district attorneys against the Attorney General.
Paxton v. Garza, No. 15-25-00116-CV: Whether the Attorney General properly promulgated rules under Texas Government Code § 41.006 requiring district and county attorneys in major Texas counties to regularly report certain prosecution-related information.
Red Light
It wasn’t just my September that was busy: It was another packed month for courts across Texas and the nation. And with both Supreme Courts kicking off new Terms, the pace should only accelerate in October . . . unlike me, still hobbling along on crutches.
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As of this post, the Court hasn’t released the Day Call sheets, identifying arguing counsel.
I had previously flagged this case after the petitioner successfully moved the Court to rehear the denial of its petition for review.
Disclaimer: I previously represented the real party in interest in this case.
Best of luck to my good friend Will in his first SCOTX argument as the Solicitor General of Texas. Will has had a busy start to his SG tenure, also arguing on behalf of the State before the en banc Fifth Circuit in the Doe v. Planned Parenthood argument discussed below.