25-12: Saved by the Bell
A look back to the weeks of October 27 and November 3, with help from '90s TV
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.
To those who have already subscribed, thank you. If you haven’t yet, I hope you’ll consider joining us!
I recently had a fun dinner with several firm colleagues and lawyer friends of the firm. The food was excellent, but what I enjoyed most was the conversation—which had almost nothing to do with the law and everything to do with life outside it. If you’ve been reading 1910 & Beyond for a while, you know my fondness for the late 20th century. So it won’t surprise you that my biggest contribution to the evening was steering the table toward one of my favorite topics: 1990s television—one of TV’s golden ages (and yes, I’ll die on that hill).
So for this week’s post, grab your flip phones and scrunchies: This week, we’re rewinding to the era of “Must See TV.”
1910
Orders and Opinions
As always, we start with our local courts here in Houston. Below, I highlight one opinion from the First and Fourteenth Courts, followed by brief summaries of others worth noting. Consider this your “morning at Bayside”: The bell just rang, and class is in session.
Features
In re Verrett, No. 01-25-00390-CV (Rivas-Molloy, Gunn, Caughey, JJ.) (orig. proceeding): Cheryl Verret sought mandamus relief from a trial court’s order granting a new trial after a bench trial and final judgment. The original judge presided over the trial and signed judgment but left office before plenary power expired. Her successor—who had not heard the evidence—granted a new trial. In a per curiam opinion, the First Court summarily denied the petition.
In a thoughtful concurrence, Justice Gunn analyzed Texas’s current approach to mandamus review of new-trial orders—which are available from jury trials, but not from bench trials. That disparate treatment, he explained, arose from the recent Toyota line of decisions, under which mandamus review of new-trial orders is tied to the constitutional right to a jury trial: a rationale that doesn’t translate neatly to bench trials. Expanding mandamus beyond that framework, Justice Gunn reasoned, would erode the doctrinal pedestal those cases built for jury verdicts.
Still, Justice Gunn suggested a practical reform: allow appellate review of new-trial orders in all cases by ordinary appeal after the second trial, as federal courts do. That approach would avoid the inefficiencies and expense of mandamus practice, which often requires a full trial record and rarely succeeds. He noted that older Texas cases barring such review are relics of a bygone era, which should be met with the same response “once spoken about a different barrier of roughly the same vintage: ‘Tear down this wall.’”
N.B.: For now, Texas appellate courts treat jury trials as the touchstone for mandamus review of new-trial orders. But Justice Gunn’s concurrence offers a roadmap to the Supreme Court for charting a different course: where ordinary appeal, not a mandamus petition, provides the mechanism for challenging a new-trial order.
Stanin v. Moore, No. 14-24-00840-CV (Bridges, Boatman, Antú, JJ.): The Fourteenth Court reversed a no-evidence summary judgment granted against a family injured in an 18-wheeler collision. After the Stanins’ attorney died mid-case, defense counsel served a 63-point no-evidence motion and hearing notice on that deceased lawyer—despite acknowledging the lawyer’s death—and opposed a continuance when new counsel appeared the day before the hearing. The trial court denied the continuance and granted the defendants’ no-evidence motion.
In an opinion by Justice Boatman, the Fourteenth Court held that this was an abuse of discretion. Service on a known dead attorney doesn’t satisfy Texas Rule of Civil Procedure 21a. And the Stanins’ verified motion for continuance explained their need for discovery after hiring new counsel: The record showed they lacked adequate time for discovery, especially given the complexity of the claims and the timing of their lawyer’s death. The court rejected arguments that a “simple declaration” could defeat a 63-point motion and emphasized that the trial court’s refusal to consider the continuance before ruling was “a bridge too far.”
Justice Boatman also wrote her own concurrence (what the Fifth Circuit sometimes call “specially concurring”). Though obviously agreeing with the result, she raised a broader procedural question: Which rules govern continuances of summary-judgment hearings? Tenneco requires an affidavit or verified motion, citing Rules 166a(g), 251, and 252—but Justice Boatman questioned whether the latter two apply outside trial settings. Rules 251 and 252 predate Texas’s summary-judgment regime and appear in the “Trial of Causes” section, suggesting they were designed for trial continuances. By contrast, Rule 166a(g) specifically addresses summary-judgment continuances and should control under the principle that specific rules trump general ones.
Justice Boatman urged the Supreme Court to clarify whether all three rules apply, noting the confusion between the rules’ different standards. She observed that layering multiple standards on one motion creates traps for litigants and unnecessary complexity.
N.B.: Adequate time for discovery under Rule 166a(i) is fact-specific. In the face of extraordinary circumstances like counsel’s death, courts expect flexibility—especially when the movant hasn’t validly served the nonmovant under Rule 21a.
What’s more, practitioners seeking a continuance should assume compliance with all three rules—Rules 166a(g), 251, and 252—but watch this space. The concurrence invites Supreme Court guidance on whether summary-judgment continuances should be governed solely by Rule 166a(g).
In Brief
1COA
In Interest of N.L.S., No. 01-23-00297-CV (Adams, C.J.; Morgan, Dokupil, JJ.): On remand from the Texas Supreme Court, the First Court affirmed the termination of Father’s parental rights to his child. The court held that factually sufficient evidence supported the trial court’s finding under Family Code § 161.001(b)(1)(E) that Father engaged in conduct endangering the child’s physical or emotional well-being, citing his extensive and escalating criminal history, repeated incarcerations, and prolonged absence from the child’s life. The court also concluded that legally and factually sufficient evidence supported the trial court’s best-interest determination, emphasizing Father’s inability to provide a safe and stable home, lack of contact with the child, and DFPS’s plan for a permanent placement.
City of Pasadena v. Sepulveda, No. 01-24-00327-CV (Adams, C.J.; Morgan, Dokupil, JJ.): Reversing and rendering, the First Court dismissed Sepulveda’s breach-of-contract and constitutional claims against the City for lack of jurisdiction. The court held that the claims were not ripe because Sepulveda had not obtained a final decision on his certificate-of-occupancy application, sought variances after the City rejected his preliminary site plan, or appealed the denial of his site plan. His allegations of breach and constitutional violations were contingent on future events, making judicial review premature.
A*Med Management, Inc. v. Thomas, No. 01-22-00808-CV (Adams, C.J.; Caughey, Johnson, JJ.): Affirming the trial court’s judgment, the First Court held that A*Med was not entitled to a permanent injunction against its former employee despite jury findings of breach of a confidentiality agreement and misappropriation of trade secrets. Those findings didn’t establish evidence of imminent harm or irreparable injury beyond past conduct, as required for permanent injunctive relief. And beyond citing cases, A*Med failed to point to any evidence in the record supporting its request, and the Court wouldn’t “becom[e] an advocate for a party” by “scour[ing] the record for evidence supporting A*Med’s position.”
Sharma v. Lin, No. 01-24-00730-CV (Guerra, Guiney, Johnson, JJ.): Reversing and rendering, the First Court dismissed claims brought by a junior MD Anderson researcher against her senior colleague over an authorship dispute. The court held that under the election-of-remedies provision of Texas Tort Claims Act § 101.106(f), Dr. Sharma was entitled to dismissal because the allegedly defamatory statements and related conduct occurred within the scope of her employment and the claims could have been brought against MD Anderson “under” the TTCA—even though immunity is not waived for intentional torts. The court also rejected an Open Courts challenge to Section 101.106(f) and concluded that the declaratory-judgment claim was coextensive with the plaintiff’s tort claims and likewise barred.
In re Vela, No. 01-23-00969-CV (order) (Guerra, J.): In a separate appeal from a prior judgment affirmed in Vela I, the First Court questioned its jurisdiction to review a post-judgment order increasing a supersedeas bond under Rule 24.3(a)(2). The court noted that Rule 24.4(a) allows review only by motion filed in the appeal from the judgment—not through a new appeal. It directed Vela to show why jurisdiction exists despite her failure to file such a motion in Vela I.
14COA
Bayou Bait Camp, LLC v. Wasserloos, No. 14-24-00640-CV (Christopher, C.J.; Wise, Jewell, JJ.): Affirming the judgment, the Fourteenth Court rejected appellants’ challenges to a jury verdict awarding limited damages against an accountant for breach of fiduciary duty, breach of contract, and defamation. The court held that exclusion of evidence regarding the accountant’s licensure history was not reversible error because the partial reporter’s record omitted key exhibits, requiring a presumption that the missing evidence supported the judgment. It also upheld the jury’s discretion to award some $7,600 in attorney’s fees—far less than the $71,000 claimed—because the amount fell within the range of evidence and was not conclusively established as “liquidated.”
Houston Classical, Inc. v. Richards, No. 14-24-00696-CV (Bridges, Boatman, Antú, JJ.): Reversing and rendering, the Fourteenth Court dismissed a retaliation claim under Family Code § 261.110 brought by a charter school’s former operations director. The court held that sovereign immunity was not waived because the plaintiff did not qualify as a “professional” under Section 261.101(b). Though publicly funded, open-enrollment charter schools are privately operated under contracts with the State—and thus are not “facilities licensed, certified, or operated by the state.”
Summers v. Action Gypsum Supply, LP, No. 14-23-00962-CV (Wise, Bridges, Antú, JJ.): Affirming a seven-figure judgment, the Fourteenth Court held that legally sufficient evidence supported jury findings of fraud, misapplication of trust funds, fraudulent transfer, and conspiracy against the Summers family. The court rejected arguments that the economic-loss rule barred the fraud claim, finding the misrepresentations related to bond releases were independent of the contract. It also held that sufficient evidence supported the jury’s finding that Action Gypsum justifiably relied on the family’s representations, and that the Summers otherwise inadequately briefed their challenge. The court next upheld findings under the Trust Fund Act, again noting the Summers’ inadequate briefing. It also affirmed the jury’s findings under the Texas Uniform Fraudulent Transfer Act, noting that community property was subject to tort liability and that TUFTA authorizes money judgments.
Teligistics, Inc. v. Advanced Personal Computing, Inc., No. 14-23-00953-CV (Wise, Bridges, Antú, JJ.): Affirming in part and reversing in part, the Fourteenth Court upheld a jury finding that Teligistics did not own a trade secret in an RFP document but reversed an attorney’s-fee award under the Texas Uniform Trade Secrets Act (TUTSA). The court held that legally sufficient evidence supported the jury’s conclusion that the RFP contained only generic industry information and lacked independent economic value. But the trial court abused its discretion in awarding some $765,000 in fees because the evidence was legally insufficient to support the jury’s predicate findings of bad faith—whether based on willful ignorance, impermissible reason, or noncompliance.
Dargin v. Noble Drilling Services, Inc., No. 14-24-00300-CV (Wilson, Hart, Boatman, JJ.): Reversing and rendering, the Fourteenth Court held that the trial court erred by converting a plaintiff’s nonsuit without prejudice into a dismissal with prejudice after a summary-judgment hearing. The court reaffirmed that a plaintiff retains the absolute right to nonsuit without prejudice until the trial court renders judgment, and here no judgment was rendered or announced—nor was there any live counterclaim or request for fees and costs. The court rejected Noble’s reliance on caselaw converting a nonsuit based on sanctions or statutory authority, neither of which were present here.
Endeavor Natural Gas III, LLC v. Comanche Maverick Ranch Investments, L.P., No. 14-24-00639-CV (Bridges, Boatman, Antú, JJ.): Affirming summary judgment, the Fourteenth Court held that a seismic provision in a surface-use agreement was an unambiguous condition precedent requiring mutual agreement on a seismic permit before operations could begin. Because the parties never agreed, Endeavor had no right to conduct seismic operations, and Comanche had no obligation to consent. The court rejected Endeavor’s argument that Comanche’s refusal excused performance, emphasizing that “mutually agree” conferred each party an independent right to withhold assent.
Toyo Finance, LLC v. Leo, No. 14-24-00333-CV (Wilson, Hart, Boatman, JJ.): Affirming the trial court’s order granting a special appearance, the Fourteenth Court held that Texas courts lacked specific personal jurisdiction over a Maine resident sued for breach of a settlement agreement. The court concluded that Leo’s contacts—being authorized to do business in Texas, purchasing a car from a Texas company, sending payment to Texas, paying Texas sales tax, and communicating by phone and email in Texas—did not constitute purposeful availment. Nor did negotiating a settlement or hiring agents suffice. The opinion reiterates that merely contracting with a Texas entity and related communications alone do not establish minimum contacts.
Arguments
The First and Fourteenth Courts keep their oral-argument calendars as packed as the Peach Pit on a Friday night.
1COA
A.H.D. Houston, Inc. v. Middleton, No. 01-22-00176-CV (Rivas-Molloy, Guerra, Guiney, JJ.): Did the trial court properly grant summary judgment on the plaintiffs’ claims for misappropriation and negligence, and in turn award $1.4 million in unliquidated damages?
Appellants: Cassie Dallas (Thompson, Coe, Cousins & Irons)
Appellees: Dennis Postiglione (The Casas Law Firm)
Argument: November 10 at 1:30 pm
Industrial Specialists, LLC v. Blanchard Refining Co., No. 01-23-00704-CV (Adams, C.J.; Morgan, Dokupil, JJ.): Among other issues, did the trial court properly rule that an agreement requiring indemnity for bodily-injury claims was enforceable, resulting in a $46 million judgment against the defendant?
Appellant: Brian Cathey (Wright Close Barger & Guzman)
Appellees: Amy Douthitt Maddux (Shipley Snell Montgomery)
Argument: November 18 at 1:30 pm
Houston International Management & Trade, Inc. v. Peacock Shipping & Trading, Inc., No. 01-24-00542-CV (Rivas-Molloy, Gunn, Caughey, JJ.): Did the trial court properly deny judgment notwithstanding the verdict on the issues of adverse possession and the existence of a management agreement, as well as the defendant’s motion for new trial based on jury misconduct and newly discovered evidence?
Appellant: Gus Pappas (Dabney & Pappas)
Appellees: Anastassios Triantaphyllis (Triantaphyllis Law Firm)
Argument: November 19 at 1:30 pm
Lunceford v. Craft, No. 01-23-00921-CV (Rivas-Molloy, Gunn, Morgan, JJ.): In a contested judicial race raising claims of voting irregularities, did the trial court properly declare Tamika Craft the electoral winner?
Appellant: Andy Taylor (Andy Taylor & Associates)
Appellee: Eric Hawley (Kherker Garcia)
Argument: November 20 at 1:30 pm
Ramirez v. Hotze, No. 01-25-00301-CV (Guerra, Guiney, Johnson, JJ.): Did the trial court properly deny the Harris County Registrar’s plea to the jurisdiction in a dispute concerning “address reclassifications” under Texas Election Code § 15.022(b)?
Appellant: Christopher Garza (Office of Harris County Attorney)
Appellee: Jared Woodfill (Woodfill Law Firm)
Argument: November 20 at 1:30 pm
14COA
Pawn TX, Inc. v. City of Houston, No. 14-24-00869-CV (Wise, Hart, Boatman, JJ.): Did the trial court properly grant the City’s plea to the jurisdiction in an inverse-condemnation suit based on loss of access?
Appellant: Charles McFarland (McFarland)
Appellee: Donald Hightower (City of Houston)
Argument: November 12 at 2 pm
Mauerhan v. State, No. 14-24-00977-CV (Wise, Hart, Boatman, JJ.): Does sufficient evidence support the defendant’s conviction for sexual assault, and did the trial court properly admit Rule 404(b) evidence?
Appellant: Seth Kretzer (Seth Kretzer, Esq.)
Appellee: David Rogers (Brazoria County Criminal District Attorney’s Office)
Argument: November 12 at 2 pm
Selwyn v. State, No. 14-24-00670-CR (Christopher, C.J.; Wise, Jewell, JJ.): Does sufficient evidence support the defendant’s conviction for indecent assault, did the trial court properly admit Rule 404(b) evidence, and was trial counsel ineffective?
Appellant: Matthew Hefti (Looney Smith Conrad & Hefti)
Appellee: Angela Kao (Fort Bend County Criminal District Attorney’s Office)
Argument: November 18 at 10 am
Harris County Department of Education Public Facility Corporation v. Paradigm Construction, LLC, No. 14-24-00793-CV (Christopher, C.J.; Wilson, Bridges, JJ.): Did the trial court properly deny the defendant’s plea to the jurisdiction in a construction dispute, whether based on waiver of immunity or disputed issues of fact?
Appellant: Cory Rush (Spalding Nichols Lamp Langlois)
Appellee: Eva Guzman (Wright Close Barger & Guzman)
Argument: November 18 at 2 pm
City of Houston v. Gutierrez, No. 14-24-00811-CV (Christopher, C.J.; Wilson, Bridges, JJ.): Did the trial court properly deny the City’s motion for summary judgment on immunity under the coming-and-going rule?
Appellant: Christy L Martin (City of Houston Legal Department)
Appellee: Gramm J. Klein (The Cain Law Firm)
Argument: November 18 at 2 pm
Velasquez-Pineda v. State, No. 14-24-00323-CR (Wilson, Hart, McLaughlin, JJ.): Must the defendant’s conviction be reversed based on jury-charge error regarding the definitions of an accomplice witness and accomplice-witness testimony?
Appellant: Joel H. Bennett (Sears, Bennett & Gerdes)
Appellee: Barbara Agbu (Galveston County Criminal District Attorney’s Office)
Argument: November 19 at 2 pm
In Estate of Corbett, No. 14-24-00922-CV (Wise, Hart, Boatman, JJ.): Among other issues, did the probate court properly dismiss the Will Contestants’ suit for lack of standing?
Appellant: Robert J. Kileeen, Jr. (Killeen & Associates)
Appellee: Darlene Payne Smith (Crain, Caton & James)
Argument: November 19 at 2 pm
& Beyond
SCOTUS
Just as Monk’s Cafe doesn’t close, neither does the Supreme Court of the United States.
Opinion
Once more, the sole opinion comes from the Court’s emergency docket.
Trump v. Orr, No. 25A319 (First Circuit): Should the Supreme Court should stay a district court’s ruling requiring the State Department to provide transgender and nonbinary people with passports reflecting the sex designation of their choosing?
Majority (per curiam): Yes. “Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment.” The Government thus is likely to succeed on the merits. It also will suffer irreparable harm absent a stay, as “the District Court’s grant of class-wide relief enjoins enforcement of an Executive Branch policy with foreign affairs implications concerning a Government document.”
Dissent (Jackson, J., joined by Sotomayor, Kagan, JJ.): No. Once more, the majority’s “back-of-the-napkin assessment of which party has the better legal argument” ignores equitable principles and the balance of harms, as required to justify extraordinary intervention. To that end, the Government failed to show any irreparable injury from a temporary injunction, while plaintiffs face severe, documented harms—including heightened risk of violence, harassment, and psychological distress—from immediate enforcement. Equity requires fairness and tailoring relief to avoid unnecessary injury while litigation is ongoing; and the Court’s “pattern” of emergency interventions flagrantly disregards these norms.
Orders
Meanwhile, the Court issued several notable miscellaneous orders—the first of which made national news.
Rollins v. Rhode Island State Council of Churches, No. 25A539 (First Circuit): Should the Supreme Court should pause a district court’s orders requiring the Trump administration to fully fund November Supplemental Nutritional Assistance Program (SNAP) payments?
Order (Jackson, J.): Issuing administrative stay of order pending the First Circuit’s resolution of the Government’s motion to stay appeal (which the First Circuit subsequently denied).
Trump v. Illinois, No. 25A443 (Seventh Circuit): Should the Supreme Court stay a district court’s order preventing the Trump Administration from federalizing and deploying the National Guard within Illinois?
Order (per curiam): The parties are to file supplemental briefs addressing “whether the term “regular forces” refers to the regular forces of the United States military, and, if so, how that interpretation affects the operation of 10 U.S.C. § 12406(3).”
Duran v. United States, No. 25A515 (Second Circuit): Should the Supreme Court pause enforcement of a judgment granting control of $40 million in funds from the Estate of Ferdinand Marcos held in an account in New York to the Republic of the Philippines while Filipino human-rights victims who won a $2 billion judgment against the Estate appeal the judgment?
Order (Sotomayor, J.): Recalling and staying Second Circuit’s mandate pending further order and requesting response.
Arguments
The Court is back in session this week for two days of oral arguments. The docket’s tight, the rules are strict, and if you’re not prepared? No argument for you.
November 10
Landor v. Louisiana Department of Corrections & Public Safety, No. 23-1197 (Fifth Circuit): May an individual sue a government official in his individual capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act of 2000?
The GEO Group v Menocal, No. 24-758 (Tenth Circuit): Is an order denying a government contractor’s claim of derivative sovereign immunity immediately appealable under the collateral-order doctrine?
November 12
Fernandez v. United States, No. 24-556 (Second Circuit): Can a combination of “extraordinary and compelling reasons” that may warrant a discretionary sentence reduction under 18 U.S.C. § 3582(c)(1)(A) include reasons that may also be alleged as grounds for vacatur of a sentence under 28 U.S.C. § 2255?
Rutherford v. United States, No. 24-820 (Third Circuit): May a district court consider disparities created by the First Step Act’s prospective changes in sentencing law when deciding if “extraordinary and compelling reasons” warrant a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i)?
SCOTX
Now with a “Full House,” the Texas Supreme Court isn’t just back—it’s in full swing, cranking through the fall docket like Jesse and the Rippers playing a Friday night set at the Smash Club.
Opinions
Merits opinions? You got it, dude.
October 31
Gonzalez v. Texas Medical Board, No. 24-0340 (reversing Third Court):
Majority (Sullivan, J., for a unanimous Court1): The court of appeals erred by failing to remand Gonzalez’s ultra vires and as-applied constitutional claims. The redundant-remedies doctrine bars claims only if they are wholly duplicative of Administrative Procedure Act (APA) relief. Because Gonzalez’s claims sought relief from future Texas Medical Board orders—not just the cease-and-desist order—the APA did not provide a complete remedy. But the Court affirmed dismissal of Gonzalez’s substantial-evidence challenge, holding that judicial review must be authorized by statute, not merely by agency regulation. Gonzalez’s failure to comply with the APA’s thirty-day deadline deprived the trial court of jurisdiction.
D.V. v. Texas Department of Family & Protective Services, No. 24-0840 (reversing Third Court):
Majority (Young, J., for a unanimous Court): In parental-termination cases, an unequivocal statement by the Department—especially through its designated representative—withdraws the termination request unless clearly and promptly repudiated. Here, the Department unequivocally testified that it no longer sought termination but instead sought to limit D.V.’s status to parent non-conservator without visitation or contact—and the Department never repudiated that statement. Termination proceedings require strict scrutiny and that abandonment of a termination request must be honored unless clearly and promptly corrected. Because no such repudiation occurred, the trial court lacked authority to order termination. The Court remanded with instructions to appoint D.V. as a parent non-conservator.
In re Madison, No. 24-1073 (original proceeding from Fourth Court) (no oral argument2):
Majority (per curiam): Conditionally granting mandamus relief, the Court held that a trial court violated the statutory stay imposed by Civil Practice & Remedies Code § 51.014(b) when it awarded attorney’s fees and disposed of claims while a TCPA interlocutory appeal was still pending. The statutory automatic stay remains in effect until the appellate mandate issues, not merely when the court of appeals’ plenary power expired. Because the mandate had not issued, the trial court lacked authority to act.
November 7
In re Estate of Lopez, No. 24-0315 (reversing Fourth Court) (no oral argument):
Majority (per curiam3): The trial court abused its discretion by admitting expert testimony from a former family-law judge who opined that the evidence clearly established an informal marriage. The issue was within the jury’s common understanding, so the testimony did not provide specialized knowledge under Texas Rule of Evidence 702. The error was harmful because the testimony was crucial to the only contested issue, was not cumulative, was deliberately introduced, and repeatedly emphasized the witness’s judicial status.
Orders
Aside from these opinions, the Court’s customary Friday orders lists were accompanied by the usual list of denials of petitions for review and for writs of mandamus.4 But in two cases, members of the Court issued concurrences in the denial of a petition for review.
Ageron Energy, LLC v. ETC Texas Pipeline, Ltd., No. 24-0090 (Eighth Court) (Busby, J., joined by Devine, J.): Though ultimately concurring in the denial of review, Justice Busby identified two important errors in the Eighth Court’s opinion. First, res judicata cannot bar claims that are unripe. And second, an injury to mineral-development rights accrues only when a lessee’s ability to exercise those rights is actually infringed—not merely when contaminants migrate into the subsurface space. But denial of review was appropriate because the record contained some evidence supporting the ultimate result.
City of Houston v. Harris, No. 24-0833 (Fourteenth Court) (Young, J., joined by Devine, J.): Justice Young highlighted a growing split between Houston’s appellate courts on whether superseded admissions can constitute summary-judgment evidence. The Fourteenth Court treats withdrawn admissions as evidence creating a fact issue, while the First Court holds that amended admissions erase prior ones. Although Justice Young viewed the First Court’s approach as more logical, he agreed that this case was not the right vehicle to resolve the conflict in light of procedural shortcomings—but that the Court should address it in a future case.
Finally, the Court granted the parties’ motion to dismiss in In re Brenham Nursing & Rehabilitation Center, No. 24-0494 (First Court)—a dispute involving the Pandemic Liability Protection Act—which was scheduled to be argued last week.
Arguments
The Court’s next slate of arguments begins the week of December 1.
CA5
Let’s now move to New Orleans. It may not be Bel-Air, but the Fifth Circuit still knows how to make a case flip, turn upside down.
Orders
The Court continues to build out its busy en banc docket, adding two more cases to its packed January sitting—including Nathan, which arrives straight to the bench on initial hearing en banc.
Spectrum WT v. Wendler, No. 23-10994: Did the district court properly deny a preliminary injunction to a student group at West Texas A&M University, who claimed that the university’s ban on drag performances violates the First Amendment?
Nathan v. Alamo Heights Independent School District, No. 25-50695: Did the district court properly enter a preliminary injunction enjoining Texas Senate Bill 10, which requires Texas public elementary and secondary schools to display the Ten Commandments in classrooms, as violating the First Amendment’s Establishment and Free Exercise Clauses?5
Opinions
The Fifth Circuit continues to deliver a reliable lineup of noteworthy opinions.
Gas Transmission Northwest, LLC v. FERC, Nos. 24-60002, 24-60197, 24-60280, 24-60354 (Stewart, Dennis, Haynes, JJ.): Denying consolidated petitions for review, the Fifth Circuit upheld FERC’s approval of a natural-gas-pipeline expansion and its denial of a predetermination for rolled-in rate treatment. After rejecting the States’ standing and ripeness challenges, the court found that FERC’s refusal to grant a rate predetermination was not arbitrary or capricious, given the excess capacity and cost allocation concerns. The court next held that FERC reasonably concluded the expansion was in the public interest based on precedent agreements and that it otherwise did not act arbitrarily and capriciously under NEPA, including by excluding compressor replacements from the environmental review.
Jackson v. Tarrant County, No. 25-11055 (Willett, Barksdale, Duncan, JJ.): Affirming the denial of a preliminary injunction, the Fifth Circuit rejected constitutional challenges to Tarrant County’s mid-cycle redistricting of commissioner precincts. The court held that claims of partisan gerrymandering and vote postponement were nonjusticiable under Rucho v. Common Cause, and that plaintiffs’ proffered evidence failed to show intentional racial discrimination under Arlington Heights. It also held that redistricting within staggered election systems, though perhaps resulting in delayed voting opportunities, does not constitute unconstitutional disenfranchisement.
Ackerman v. Arkema Inc., No. 25-20006 (Elrod, C.J.; Clement, Haynes, JJ.): Did the district court properly dismiss state-law claims as time-barred where plaintiffs argued that a pending federal class action tolled the Texas limitations period?
Majority (Elrod, C.J., joined by Clement, J.): Yes. Although Texas courts have adopted American Pipe tolling for state class actions, they have not extended that doctrine “to allow cross-jurisdictional tolling—i.e., to allow a federal class action to toll a state statute of limitations.” The panel reaffirmed its prior Erie guesses in two opinions, which concluded that Texas courts would not apply cross-jurisdictional tolling. The court declined to certify the question to the Texas Supreme Court, finding no compelling reason to revisit settled precedent.
Dissent in Part (Haynes, J.): Maybe. The Court should certify this unresolved question of Texas law—which, in her view, favors cross-jurisdictional tolling—to the Texas Supreme Court.
Hiran Management, Inc. v. NLRB, No. 24-60608 (Jones, Stewart, Ramirez, JJ.): Granting in part and denying in part petitions for review, the Fifth Circuit held that the NLRB lacked statutory authority to award full compensatory damages to employees unlawfully discharged for engaging in protected concerted activity. While affirming the Board’s finding of an unfair labor practice, the court concluded that Section 10(c) of the National Labor Relations Act authorizes only equitable remedies—such as reinstatement and backpay—not legal damages for all foreseeable harms. The court also held that Hiran waived its argument that certain employees were “supervisors” by failing to raise the issue before the ALJ.
United States ex rel. Gentry v. Encompass Health Rehabilitation Hospital of Pearland, LLC, No. 25-20093 (Higginbotham, Ho, Douglas, JJ.): Did the district court properly dismiss a qui tam suit under the False Claims Act for failure to plead fraud with particularity?
Majority (Higginbotham, J., joined by Ho, Douglas, JJ.): Yes. The relator’s second amended complaint failed to meet the plausibility and particularity standards under Rules 8(a) and 9(b). The relator, a former sales representative, alleged that non-clinical staff were improperly involved in preadmission screenings for Medicare patients. But those allegations are speculative and lack factual support for falsity or actual submission of false claims. The district court also properly denied leave to amend, as the proposed amendment is futile and untimely under Rule 15.
Concurrence (Ho, J.): Yes. But the constitutionality of the False Claims Act’s qui tam provisions is questionable—allowing private relators to represent the United States in court raises serious Article II concerns, as they are not appointed by or accountable to the President. Also, “just because an opinion is a solo dissent or concurrence today doesn’t mean it can’t become a majority in the future. Indeed, that’s the whole purpose of a dissent—to convince judges someday to chart a different course.”
Craig v. Commissioner of Social Security, No. 25-50131 (Higginbotham, Ho, Douglas, JJ.): Affirming dismissal, the Fifth Circuit held that the district court properly dismissed a plaintiff’s suit for failure to exhaust administrative remedies before challenging the denial of Social Security disability benefits. Under Federal Rule of Appellate Procedure 10(a), appellate review is limited to the record before the district court at the time of judgment. The plaintiff’s post-judgment filing—intended to establish exhaustion—was excluded from the record and could not be considered. The court declined to take judicial notice of the document, noting that the plaintiff had been warned to present sufficient evidence before judgment was entered.
The Woodlands Pride, Inc. v. Paxton, No. 23-20480 (Dennis, Southwick, Englehardt, JJ.): Did plaintiffs have standing to challenge Texas Senate Bill 12, a law regulating “sexually oriented performances” on public property and in the presence of minors, and does the law facially violate the First Amendment?
Majority (Englehardt, J., joined by Southwick, J.): Only one plaintiff, (360 Queen Entertainment) had standing to challenge Section One of the law. The remaining plaintiffs failed to show they intended to engage in conduct arguably proscribed by the statute or that their injuries were traceable to the remaining defendants. The injunction must be vacated and remanded for reconsideration under the Supreme Court’s Moody v. NetChoice framework for facial challenges.
Concurrence in Part and Dissent in Part (Dennis, J.): While the majority is correct to remand in light of Moody, multiple plaintiffs had standing under proper pre-enforcement principles. “Worse still, the majority intimates in passing that it harbors ‘genuine doubt’ whether Plaintiffs’ drag performances are protected First Amendment expression. That gratuitous dictum runs headlong into settled First Amendment jurisprudence and threatens to mislead on remand.”
Arguments
The Fifth Circuit is also on an argument break until the week of December 1. But when it returns, expect some Uncle Phil-level bench presence—firm, commanding, and ready to keep the courtroom in line.
15COA
Finally, a quick update from our statewide court of appeals, which continues to deliver steady, thoughtful guidance—much like Mr. Feeny dispensing wisdom from across the hall.
Opinion
City of Kyle v. State of Texas ex rel. 1200 S. Old Stagecoach Road, LLC, No. 15-24-00011-CV (Brister, C.J.; Field, Farris, JJ.): Affirming in part and reversing in part, the Fifteenth Court held that the State’s quo warranto challenge to the City’s annexation ordinance was mostly moot after the City repealed the ordinance and disannexed the property. Dismissing the State’s claims for declaratory and injunctive relief, it rejected the State’s argument that the controversy remained live because there was a dispute about whether the ordinance was void ab initio. But it affirmed the trial court’s denial of the City’s jurisdictional challenge to the State’s claim for attorney’s fees under the Uniform Declaratory Judgments Act, holding that such a claim presents a live controversy even when the underlying claims are moot.
Arguments
Last, the Fifteenth Court has two arguments scheduled for November 20 at 1:30 pm:
Texas Department of Public Safety v. Torres, No. 15-24-00089-CV: Among other issues, did the trial court improperly instruct the jury on an invalid theory of liability under the Uniformed Services Employment and Reemployment Rights Act (USERRA), and did the trial court improperly deny the Department an affirmative defense under USERRA?
Appellant: Jason Contreras (Office of Attorney General)
Appellee: Stephen Chapman (Webb Cason)
AIRW 2017-7, L.P. v. City of Georgetown, No. 15-24-00132-CV: Did the district court err in reversing the Texas Commission on Environmental Quality’s final order granting a Texas Pollutant Discharge Elimination System permit to construct and operate a new wastewater treatment plant in Williamson County, Texas?
Appellants: Sara Ferris (Office of Attorney General); Andrew Davis (Lehotsky Keller Cohn); Erin Selvera (The Carlton Law Firm)
Appellee: William Faulk (Spencer Fane)
Red Light
We’ve flipped through a full lineup this week—oral arguments, fresh opinions, and a few syndicated references from the golden age of TV. And while the red light means it’s time to stop (for now), the reruns never end in appellate law.
As always, I welcome your feedback and suggestions for 1910 & Beyond. Please don’t hesitate to leave a comment or email me with thoughts, topic ideas, or tips on interesting cases.
To the growing number of readers who have subscribed—thank you. If you haven’t yet, I hope you’ll consider joining—especially at the unbeatable cost of free. And if you know someone who might enjoy this content, I’d be delighted if you passed it along.
And with that: Cue the theme music, roll the credits, and we’ll see you next time—same channel, same time.
Thank you to my law firm, Hicks Johnson PLLC, for their support of 1910 & Beyond. Hicks Johnson is a premier trial and appellate boutique with offices in Houston and Chicago, known for delivering successful outcomes in high-stakes, complex litigation. We provide superior results for clients by combining elite legal talent and real courtroom experience with cutting-edge technology and strategic client collaboration.6
Justice Hawkins did not participate in any of the three October 31 decisions.
As a reminder, the Texas Supreme Court regularly issues opinions in appeals and original proceedings without hearing argument. See Tex. R. App. P. 52.8(c), 59.1.
Justice Lerhmann did not participate in this decision.
The Court also issued miscellaneous orders in original proceedings on October 30, November 3, and November 6.
The Court will hear the case alongside Roake v. Brumley, No. 24-30706, the Louisiana Ten Commandments case, in which the Court has already granted en banc rehearing.
Obligatory Disclaimer: This Substack is intended for informational purposes only and should not be construed as legal advice. The content provided does not constitute the formation of an attorney-client relationship. For advice specific to your situation, we recommend consulting with licensed legal counsel.