25-13: Turkey Trot
A look back to the weeks of Novembers 10 and 17, with help from Ben Franklin's "Birds of Courage"
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!
Greetings from Louisville, Kentucky—my hometown and our family’s annual Thanksgiving headquarters. The strategy is simple: lots of turkey, trimmings, and pies, followed by the traditional migration to the couch for football.
The courts, meanwhile, have laid out their own holiday spread: a full plate of opinions and arguments. With help from my wonderful colleague Kate Ring, I’ll cover the usual suspects. But this week’s menu includes a special dish—the much-discussed clash between Judges Smith and Brown in the Texas redistricting litigation. Several readers have asked for my take, so stick around to the end of this post for dessert (though it’s not particularly sweet).
1910
Opinions
But first, we start with our local courts here in Houston. Below, I highlight one notable opinion from the First and Fourteenth Courts, each court, followed by brief summaries of others worth noting.
Features
In re American Zurich Insurance Co., No. 01-25-00580-CV (Rivas-Molloy, Guerra, Gunn, JJ.): Two homeowners sued Zurich over fire damage to a newly built home, alleging breach of contract and bad faith after Zurich paid $500,000 but disputed the remaining loss. After Zurich unsuccessfully moved to compel appraisal under the policy, it sought mandamus.
The First Court conditionally granted relief, holding that Zurich retained its contractual right to appraisal. The court rejected arguments that Zurich waived the right to seek appraisal either by failing to request a proof of loss or by waiting 15 months before demanding appraisal. The appraisal clause’s 60-day deadline was never triggered because no proof of loss was submitted, and the claims-handling provision didn’t create a condition precedent. Coverage defenses likewise did not bar appraisal, and the record showed ongoing negotiations—negating any claim of impasse.
N.B.: Texas courts broadly enforce appraisal causes. Even after litigation begins, insurers may invoke appraisal if negotiations continue and no prejudice is shown. To that end, an insurer’s failure to request a proof of loss does not automatically waive appraisal rights.
American Honda Motor Co. v. SFI 59 LP, No. 14-24-00469-CV (Christopher, C.J.; Wise, Jewell, JJ.): A jury found Honda liable for fire damage caused by an alleged manufacturing defect in a CR-V, awarding over $525,000 in damages. On appeal, Honda challenged sufficiency of the evidence and admission of expert testimony.
The Fourteenth Court reversed and remanded for a new trial—not because the evidence was legally or factually insufficient, but because the trial court erred in admitting the plaintiff’s expert’s previously undisclosed opinion identifying a specific high-resistance connection as the defect. The expert had testified at deposition that he could not pinpoint a defect, yet at trial he relied on a photograph to do so. The court held this surprise testimony—which the plaintiff heavily relied upon at closing argument—violated Texas discovery rules and unfairly prejudiced Honda, requiring a new trial.
N.B.: Relying on late-disclosed expert opinions can be fatal. Under Texas Rule of Civil Procedure 193.6, undisclosed opinions are automatically excluded unless the proponent proves good cause or lack of unfair surprise and prejudice. Failure to supplement timely can derail a verdict—even when other evidence supports liability—because reversal is likely if the undisclosed opinion becomes the centerpiece of the case. Timely disclosure isn’t just procedural; it’s essential to preserve your judgment.
In Brief
1COA
6CATS International Ltd. v. Hartley, No. 01-24-00048-CV (Guerra, Guiney, Johnson, JJ.): Reversing and rendering, the First Court dismissed claims against two UK-based companies for lack of personal jurisdiction. The court held that neither 6CATS nor CXC Global purposefully availed themselves of Texas jurisdiction by contracting with a Texas staffing agency or processing payments for work performed abroad. The contract’s English choice-of-law and forum-selection clauses, coupled with the absence of Texas-directed conduct, defeated specific jurisdiction. Sending invoices or receiving payments from Texas was deemed unilateral activity insufficient to establish minimum contacts.
Gilbert v. Morgan, No. 01-24-00467-CV (Adams, C.J.; Morgan, Dokupil, JJ.):
Dismissing, the First Court held that it lacked jurisdiction over this appeal. The first challenge—disputing the judgment’s domestication—was moot after a state supreme court’s ruling. The second challenge—seeking to compel arbitration a year after the trial court’s plenary power expired—was void because post-judgment enforcement authority does not permit reopening substantive issues or relitigating matters resolved in the original judgment. The court emphasized that Uniform Enforcement of Foreign Judgments Act (UEFJA) proceedings cannot be used to revisit the merits of the underlying controversy.
14COA
Duncan House Charitable Corp. v. Harris County Appraisal District, No. 14-24-00682-CV (Christopher, C.J.; Wilson, Bridges, JJ.): Affirming summary judgment, the Fourteenth Court held that Duncan House was not entitled to a charitable property-tax exemption under Tax Code § 11.18 for its 50% interest in a historic home. The court concluded that the property wasn’t “exclusively used” for charitable purposes because the Cantrells continued to occupy the entire residence as their homestead, a use that wasn’t incidental under the statute. Occasional tours and preservation efforts didn’t overcome the primary residential use, and statutory exemptions are strictly construed against the taxpayer.
Marshall v. Marshall, No. 14-23-00276-CV (Wise, Jewell, Hart, JJ.): In this latest chapter of the Marshall Family saga, the Fourteenth Court held that the trial court erred in granting partial summary judgment for a trust beneficiary and awarding over $350,000 in damages and $2 million in attorney’s fees against the trustee. The court concluded that the beneficiary’s evidence of damages—not based on any estimate of what a “prudent or knowledgeable investor would have made” considering the circumstances, but instead a purely speculative assumption—awas legally insufficient to support the jury’s award, requiring a new trial on both liability and damages. It also held that fact issues existed regarding the trustee’s good faith under an exculpatory clause, precluding summary judgment. The court sustained challenges to the attorney’s-fee award and remanded that issue as well.
Webb County v. Mares, No. 14-23-00617-CV (Jewell, Hart, Antú, JJ.): Affirming in part and reversing in part in a substitute opinion, the Fourteenth Court held that Webb County violated the Texas Open Meetings Act by providing inadequate notice of a meeting in which it restructured a department and reduced an employee’s salary. The court rejected mootness and upheld the award of attorney’s fees and costs under TOMA. But it reversed the monetary award in back pay and lost retirement benefits, holding that TOMA does not waive governmental immunity for monetary damages, whether sought as declaratory, injunctive, or mandamus relief.
Elite Protective Services, LLC v. Black, No. 14-24-00423-CV (Wilson, Hart, Boatman, JJ.): Reversing and rendering judgment for the defendant, the Fourteenth Court held there was no evidence that Elite proximately caused injuries suffered by an employee who was stabbed by a coworker. Although the jury found Elite negligent in hiring, retention, and supervision, the court concluded that nothing in the record—including a prior marijuana arrest and a “not re-hirable” notation—made the assault foreseeable. The court rendered judgment that the plaintiff take nothing on his negligent-hiring, retention, and supervision claims.
Nguyen v. Pusch, No. 14-25-000932-CV (Wilson, Hart, McLaughlin, JJ.) (orig. proceeding): Granting emergency relief in this high-profile business divorce between two prominent Houston personal-injury attorneys, the Fourteenth Court stayed a trial court’s temporary injunction requiring attorney Nguyen to transfer trademarks—including WE PUSH YOU WIN® and AVOCADOS AT LAW—and related registrations to Pusch & Nguyen Law Firm. The stay remains in effect for the duration of the appeal, preserving the status quo while the court reviews the underlying dispute over trademark ownership.
Arguments
The First and Fourteenth Courts return to session after the Thanksgiving holiday for two oral arguments.
1COA
Oncor Electric Delivery Company v. Ramirez, No. 01-24-00088-CV (Adams, C.J.; Rivas-Molloy, Caughey, JJ.): Under what circumstances may an employee, who exerts some control over a temporary activity or temporary work within six feet of a high-voltage overhead line, be a “person responsible” for purposes of Chapter 752 of the Texas Health and Safety Code?
Appellant: Daryl Moore (AZA)
Appellee: Russell Post (Beck Redden)
Argument: December 4 at 11 am
14COA
Zante Enterprises, Inc. v. Leonataritis, No. 14-24-00983-CV (Wise, Hart, Boatman, JJ.): Did the trial court err in granting summary judgment for the defendants in a property dispute involving forged deeds and judicial estoppel?
Appellants: Joshua Smith (Beck Redden)
Appellees: Scott Wheatley (Jackson Walker)
Argument: December 4 at 2 pm
& Beyond
SCOTUS
We shift from Houston to the federal front—here’s what’s happening at the Supreme Court of the United States.
Opinions
Still no merits-related opinions, but the Court released two opinions dissenting from the denial of certiorari petitions.
Veneno v. United States, No. 24-5191 (Tenth Circuit): Should the Court grant certiorari to decide whether Presley v. Georgia’s requirement that courts consider alternatives to closure applies when proceedings are streamed, and whether Congress has constitutional authority to criminalize conduct between members of the same Tribe on Tribal land?
Dissent (Gorsuch, J., joined by Thomas, J.): Yes. Congress lacks constitutional authority to criminalize conduct occurring between Tribe members on Tribal land. The “plenary power” doctrine rests on “archaic prejudices” and lacks any constitutional foundation. In that respect, Kagama relies on “little more than [the Court’s own] ipse dixit.” The Court shouldn’t “shirk from the task” of correcting this error.
Hutson v. United States, No. 24-1022 (Fifth Circuit): Should the Court grant certiorari to clarify whether a state or local official seeking to terminate prospective relief under the Prison Litigation Reform Act bears any burden beyond showing that the statutory time period has elapsed?
Dissent (Alito, J., joined by Thomas, J.): Yes. The Fifth Circuit misallocated the burden of proof under 18 U.S.C. § 3626(b)(1)(A), leaving New Orleans to fund a “longstanding and unlawful prison-building order” contrary to the PLRA’s text.
Justice Gorsuch also would have granted the petition.
Orders
The Court’s customary orders lists otherwise consisted of the usual petition and motion denials. But aside from two orders denying stays of executions, the Court issued three notable orders on its interim docket.
Castro v. Brito Guevara, No. 25A376 (Fifth Circuit) (per curiam): Denying application to stay the Fifth Circuit’s mandate requiring a 7-year-old girl residing in Dallas, Texas with her mother to be sent back to Venezuela.
Justices Sotomayor and Jackson would have granted the application.
Rollins v. Rhode Island State Council of Churches, No. 25A539 (First Circuit) (per curiam): Extending the administrative stay previously entered by Justice Jackson of a Rhode Island district court’s orders requiring the Trump Administration to fully fund November Supplemental Nutritional Assistance Program (SNAP) payments.
Following the conclusion of the Federal Government shutdown, the Government withdrew its application as moot.
Justice Jackson would not have extended the administrative stay.
Abbott v. League of United Latin American Citizens, No. 25A608 (Western District of Texas) (Alito, J.): Granting an administrative stay of the three-judge district court’s majority opinion (1) enjoining the State of Texas from using the Legislature’s redistricted 2025 map for the 2026 election, and (2) ordering the State to revert to the repealed 2021 map; and ordering a response to the application. (I’ll be discussing the underlying opinions at the end of this post.)
Arguments
The Court will hear four cases during the week of December 1, all of which can livestreamed at this link.
December 1
Urias-Orellana v. Bondi, No. 24-777 (First Circuit): Must courts defer to the BIA’s judgment that certain facts do not amount to “persecution” under 8 U.S.C. § 1101(a)(42)?
Cox Communications Inc. v. Sony Music Entertainment, No. 24-171 (Fourth Circuit): Does knowledge of infringement suffice for contributory liability and willfulness under federal copyright law?
December 2
First Choice Women’s Resource Centers, Inc. v. Platkin, No. 24-781 (Third Circuit): When the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, does a federal court lack jurisdiction over a first-filed action because those rights must be adjudicated in state court?
December 3
Olivier v. City of Brandon, No. 24-993 (Fifth Circuit): Does Heck v. Humphrey bar Section 1983 claims seeking prospective relief when the plaintiff has been punished before under the law challenged as unconstitutional, and when they never had access to federal habeas relief?
SCOTX
We now trot from Washington, D.C. to Austin.
Opinion
The Supreme Court of Texas issued one opinion from its docket of orally argued cases:
In re UMTH General Services, L.P., No. 24-0024 (Fifth Court) (orig. proceeding): Is mandamus relief appropriate in a case where the trial court refused to deny dismissal of the shareholders’ claim where the shareholders sought to assert direct claims against a third party based on that party’s agreement with the corporation?
Majority (Bland, J., for unanimous Court1): Yes. A third party’s agreement with a corporate entity doesn’t create a duty to individual shareholders separate from the entity’s rights. Any cause of action for injury arising from that agreement belongs to the corporation, and shareholders must pursue such claims derivatively. The opinion reaffirmed the longstanding rule that “a shareholder cannot recover damages personally for a wrong done solely to the corporation, even though he may be injured by that wrong.” And absent express contractual language, an agreement with the corporation does not confer third-party beneficiary status on its shareholders.
Orders
Like the U.S. Supreme Court, the Texas Supreme Court’s customary Friday orders lists were dominated by the usual petition and motion denials. But the Court did grant several cases for review, setting the cases for oral argument in January 2026:
Texas General Land Office v. SaveRGV, No. 24-0237 (Thirteenth Court): Petition granted in a challenge to statutes authorizing beach closures for spaceflight activities.
Did the court of appeals err in holding that immunity was waived under the Uniform Declaratory Judgments Act because respondents challenge the statutes themselves rather than petitioners’ conduct?
Weldon v. The Lilith Fund for Reproductive Equity, No. 24-0250 (Second Court): Petition granted in a suit by a reproductive rights group against a private citizen seeking discovery into alleged violations of Texas abortion laws.
Are Uniform Declaratory Judgment Act claims challenging the constitutionality of statutes exempt from dismissal under the Texas Citizens Participation Act, even when the action is “based on” or “in response to” a defendant’s exercise of free speech, petition, or association rights?
JMI Contractors, LLC v. Medellin, No. 24-0846 (Fourth Court): Petition granted in a personal-injury suit by an independent contractor against a general contractor.
Is the risk of falling from a roof an open and obvious danger that negates a duty to warn?
Does the necessary-use exception apply to independent contractors?
Did the trial court properly exclude evidence of plaintiff’s marijuana and alcohol use on the morning of the accident?
Texas Department of Public Safety v. Callaway, No. 24-0966 (Thirteenth Court): Petition granted in a suit alleging termination due to PTSD in violation of the Texas Commission on Human Rights Act.
May an employer lawfully terminate an employee who admittedly committed serious policy violations as a result of his disability without violating the TCHRA?
Paxton v. City of Austin, No. 24-1078 (Fifteenth Court): Petition granted in a declaratory judgment action under the Expedited Declaratory Judgments Act concerning authority to levy taxes and issue bonds for a light-rail system.
Did the court of appeals err in concluding it lacked appellate jurisdiction over the Attorney General’s interlocutory appeal?
Arguments
Finally, the Court returns to oral arguments during the week of December 1.
December 2
Clifton v. Johnson, No. 23-0671 (Eighth Court): How should courts interpret a double fraction in an oil-and-gas deed, and does the presumed-grant doctrine apply?
Petitioner: Macey Reasoner Stokes and Richard Phillips (Baker Botts)
Respondent: Tim Hootman (Tim Hootman Law Firm)
K&K Inez Properties, LLC v. Kolle, No. 24-0045 (Thirteenth Court of Appeals): In this nuisance case, how should courts calculate the exemplary-damages cap, and can intentional and grossly negligent nuisance claims coexist when based on the same property damage?
Petitioner: Susan Clouthier (Clouthier Law)
Respondent: Samuel Cole (Cole, Cole, Easley & Sciba)
Maya Walnut LLC v. Ly, No. 24-0171 (Fifth Court): Can a commercial tenant justifiably rely on a landlord’s continued lease-renewal negotiations despite alleged red flags?
Petitioner: Darren McCarty (McCarty Law PLLC)
Respondent: Anne Johnson (Tillotson Johnson & Patton)
Huffman Asset Management, LLC v. Colter, No. 24-0205 (Fifth Court): Does a Whitney certificate need to show that process documents were forwarded to the entity’s most recent principal address on file with the Secretary of State?
Petitioner: Craig Henderson (Wolf & Henderson)
Respondent: Robert Nunnally (Wisener Nunnally Higgins)
December 3
HEB Grocery Co. v. Peterson, No. 24-0310 (Thirteenth Court): Was summary judgment proper in a slip-and-fall case where evidence of prior leaks concerned other areas of the store?
Petitioner: Wallace Jefferson (Alexander Dubose & Jefferson)
Respondent: Jeremy Sloan (Sloan PLLC)
In re K.N., No. 24-0881 (Seventh Court): Parents challenge the trial court’s jurisdiction and the sufficiency of evidence supporting termination of their parental rights.
Petitioners: Michael Sharpee (Sharpee Law Firm)
Respondent: Corey Scanlon (Office of the Attorney General of Texas)
In re Bell Helicopter Servs. Inc., No. 24-0883 (Fourteenth Court): Is Bell Helicopter entitled to mandamus relief after denial of summary judgment based on a federal statute of repose?
Relator: Kent Rutter (Haynes & Boone)
Real Parties in Interest: Byron Henry (Henry Hill)2
In re Tafel, No. 24-1062 (Fifth Court): Does a qui tam action survive the death of the relator?
Relator: Jane Webre (Scott Douglass & McConnico)
Real Parties in Interest: Jeffrey Stephens (Office of the Attorney General of Texas) and Andrew B. Sommerman (Sommerman, McCaffity, Quesada & Geisler)
December 4
Carden v. Minton, Bassett, Flores & Carsey, P.C., No. 24-0834 (Third Court): Can an attorney be held liable for civil wrongs committed during representation of a criminal defendant?
Petitioner: Gaines West (West, Webb, Allbritton & Gentry)
Respondents: Elizabeth Brabb (Thompson, Coe, Cousins & Irons)
In re LaPuerta, No. 24-0879 (First Court): Did the trial court err in granting a new trial based on error in a proximate-cause jury instruction?
Relators: Michelle Robberson (Cooper & Scully)
Real Party in Interest: Rosalyn Tippett (Tippett Law Office)
Diamond Hydraulics, Inc. v. GAC Equip., LLC, No. 24-1049 (Third Court): May a party offer testimony from an untimely designated expert when its original expert became unavailable shortly before trial?
Petitioner: Angie Olalde (Greer, Herz & Adams)
Respondent: Hunter Polvi (Passman & Jones)
CA5
Next to New Orleans, where we take a look at the latest from the Fifth Circuit.
Opinions
The Fifth Circuit continues to dish up interesting opinions.
United States v. Bonner, No. 24-60601 (Barksdale, Willett, Duncan, JJ.): Did the district court properly reject constitutional challenges to 18 U.S.C. § 922(g)(1), which prohibits firearm possession by convicted felons?3
Majority (per curiam): Yes. All of Bonner’s challenges—including Second Amendment (facial and as-applied), vagueness, Commerce Clause, and Equal Protection—are foreclosed by binding Fifth Circuit precedent.
Concurrence (Willett, J., joined by Duncan, J.): Yes, but with reservations. Judge Willett expressed “serious doubts” about the constitutionality of § 922(g)(1) under both the Commerce Clause and the Second Amendment. He criticized the statute’s minimal nexus to interstate commerce and questioned whether current precedent aligns with Bruen and Rahimi. He urged the en banc court or Supreme Court to revisit these issues, warning that federal power has expanded beyond enumerated limits and that the Fifth Circuit’s Second Amendment methodology may need recalibration.
In Matter of Sanchez Energy Corporation, No. 24-20207 (King, Jones, Oldham, JJ.): Reversing and remanding, the Fifth Circuit held that the bankruptcy court lacked post-confirmation jurisdiction over Carnero’s state-law contract claims against Mesquite Energy and others. The dispute arose eighteen months after Sanchez Energy’s Chapter 11 plan was confirmed, when Mesquite executed new midstream agreements that Carnero alleged impaired its rights under a pre-bankruptcy contract. The court concluded that these agreements were not “Executory Contracts” under the plan and that the claims didn’t “pertain to the plan’s implementation or execution.” As a result, the bankruptcy court lacked “related to” jurisdiction over these post-confirmation claims. The judgment was reversed with instructions to remand the case to state court.
In Matter of Langston, No. 24-10883 (Southwick, Higginson, Wilson, JJ.): Affirming, the Fifth Circuit held that a debtor waived his objection to the timeliness of a creditor’s challenge to claimed exemptions under Bankruptcy Rule 4003(b)(1). Although the trustee failed to comply with Rule 2003(e) by filing a statement continuing the Section 341 meeting, the court declined to adopt a bright-line rule deeming the meeting concluded on the last convened date. Instead, it found that the debtor agreed to the continuance, amended schedules, and negotiated during the extended period—conduct inconsistent with enforcing the 30-day deadline. Waiver, not timeliness, controlled the outcome.
Sterling v. City of Jackson, No. 24-60370 (Dennis, Haynes, Engelhardt, JJ.): Did plaintiffs state a substantive due process claim based on allegations that Jackson knowingly supplied lead-contaminated water and misled residents about its safety?
Majority (Haynes, J.): Yes, in part. The complaint plausibly alleges that the City violated plaintiffs’ Fourteenth Amendment right to bodily integrity by introducing toxic water into homes and falsely assuring residents it was safe. The allegations also support a state-created danger theory, which the Fifth Circuit formally adopts today. But individual city officials are entitled to qualified immunity because the right was not clearly established in this context. The court reversed dismissal of the due process claims against the City, vacated dismissal of state-law claims, and remanded.
Concurrence in Part and Dissent in Part (Dennis, J.): Yes. The plaintiffs state a bodily-integrity claim, and the defendants aren’t entitled to qualified immunity. Supreme Court precedent clearly establishes the right to refuse nonconsensual bodily intrusions, and any reasonable official should have known that supplying lead-laden water under false pretenses violated that right.
Dissent (Engelhardt, J.): No. The majority improperly expands substantive due process, transforming failures in municipal services into constitutional violations. The alleged conduct here doesn’t “shock the conscience,” and the right to bodily integrity doesn’t encompass claims based on deficient water service or officials’ misstatements. The majority also wrongly adopts the state-created danger doctrine, which is ahistorical and ill-defined.
Stanford v. Brandon Nursing & Rehabilitation Center, No. 24-60509 (Southwick, Oldham, Ramirez, JJ.): Did the district court correctly deny a motion to compel arbitration based on an agreement signed by a purported health-care surrogate?
Majority (Southwick, J., joined by Ramirez, J.): To resolve this state-law question, certification to the Mississippi Supreme Court is proper. The certified question: Under Mississippi’s Uniform Health-Care Decisions Act, a lower-priority family member (an adult brother) may act as surrogate when a higher-priority member (an adult child) is reasonably available? The statute is ambiguous, and no Mississippi precedent resolves the issue.
Dissent (Oldham, J.): Both here and more generally, certification is improper. The Fifth Circuit’s overuse of certified questions undermines federalism and Article III, delays justice, and patronizes state courts. Federal courts have a duty to decide close questions of state law rather than “abdicate” that responsibility. Certification, as a form of advisory opinion, is constitutionally suspect. And in any event, the Fifth Circuit’s standard for certification as “standardless.”
Computer Sciences Corp. v. Tata Consultancy Services Ltd., No. 24-10749 (Higginson, Ho, Wilson, JJ.): Affirming in part and vacating in part, the Fifth Circuit upheld a $56 million compensatory award and $112 million exemplary damages for trade-secret misappropriation under the Defend Trade Secrets Act, but it vacated and remanded the permanent injunction for modification. The court agreed that TCS willfully and maliciously misappropriated CSC’s software trade secrets to develop its software platform and win a $2.6 billion contract, rejecting arguments on authorization and specificity. It also upheld the exemplary-damages award, rejecting TCS’s excessiveness argument. But it held that the injunction’s scope overlapped with the unjust-enrichment award, requiring narrowing to avoid duplication.
Arguments
The Fifth Circuit also returns to oral argument after Thanksgiving, with several panels sitting during the week of December 1.
15COA
Last, a quick update from our statewide court of appeals, which issued one opinion of note.
ASI Lloyds Insurance Company v. Texas Windstorm Insurance Association, No. 15-24-00083-CV (Brister, C.J.; Field, Farris, JJ.): Affirming, the Fifteenth Court upheld the Texas Department of Insurance’s rule requiring TWIA to calculate member assessments based on participation percentages for the year of the assessment—not the year of the catastrophe. ASI argued the rule was invalid after legislative amendments to Chapter 2210 and claimed Hurricane Harvey assessments should have used 2017 data, reducing its liability by some $450,000. The court rejected those arguments, holding that no statute mandates use of the catastrophe year and that the rule aligns with TDI’s authority to implement TWIA’s plan of operation.
Redistricting
Now, to the hottest of topics among appellate lawyers in Texas and nationwide: the Texas redistricting litigation. What follows are my own thoughts, offered in my individual capacity.
Few things shake the foundations of judicial collegiality like a public feud between respected jurists. The recent clash between Judges Smith and Brown in Texas’s redistricting litigation is a case study in how tone and timing can overshadow substance, even in the most consequential of cases.
Background: How We Got Here
This summer, the Texas Legislature—following calls from national party leaders—redrew its congressional map in a way designed to flip several House seats from Democratic to Republican control. Almost immediately, a coalition of groups and individuals, including the League of United Latin American Citizens (LULAC), filed suit. Their basic claim: The new map was an unconstitutional racial gerrymander under Section 2 of the Voting Rights Act. Why this matters: The Constitution forbids racial gerrymanders, but it permits partisan ones—a distinction at the heart of this litigation.
Under 28 U.S.C. § 2284, challenges of this type go to a special three-judge district court, whose decision is directly reviewable by the Supreme Court. Here, the panel consisted of U.S. Circuit Judge Jerry Smith (Fifth Circuit), U.S. District Judge David Guaderrama (Western District of Texas), and U.S. District Judge Jeffrey Brown (Southern District of Texas).4 In early October, the court held a nine-day evidentiary hearing on the plaintiffs’ motion for a preliminary injunction.
On November 18, Judge Brown—joined by Judge Guaderrama—issued a 160-page opinion granting the plaintiffs’ motion, enjoining use of the new map, and ordering Texas to revert to its prior map for the upcoming election. The majority concluded that the evidence showed racial gerrymandering, not permissible partisan gerrymandering.
Importantly, the majority noted that Judge Smith would be filing a separate dissent.
The Dissent—and Its Tone
Some 24 hours later, Judge Smith filed a 104-page dissenting opinion. It opened with a four-page “Preliminary Statement” accusing Judge Brown of releasing the majority opinion “without giving me any reasonable opportunity to respond.” Judge Smith called this “the most outrageous conduct by a judge that I have ever encountered in a case in which I have been involved.”
On the merits, Judge Smith argued that the map reflected partisan—not racial—considerations, and that the majority erred at every turn. But the dissent’s tone was strikingly personal. Beyond referencing Judge Brown by name nearly 280 times (and the Soros family more than 15 times), the dissent included sharp language like this, highlighted by David Lat in his most recent Judicial Notice post:
“[Because I didn’t have enough time to edit, the] resulting dissent is far from a literary masterpiece. If, however, there were a Nobel Prize for Fiction, Judge Brown’s opinion would be a prime candidate.”
“There’s the old joke: What’s the difference between God and a federal district judge? Answer: God doesn’t think he’s a federal judge…. Only this time, it isn’t funny.”
“If this were a law school exam, the opinion would deserve an ‘F.’”
“Judge Brown is an unskilled magician. The audience knows what is coming next.”
“Judge Brown’s analysis exposes either a naivete that is unbefitting of the judiciary or a willful blindness unbecoming of the judiciary. Collected below is a non-exhaustive list of misleading, deceptive, or false statements Judge Brown put forward.”
“[The majority’s] order, replete with legal and factual error, and accompanied by naked procedural abuse, demands reversal…. Darkness descends on the Rule of Law. A bumpy night, indeed.”
Where Things Went Wrong
I find the row, in a word, disheartening.
As I told the Texas Lawbook, Judge Smith had legitimate reason to be frustrated over the majority opinion’s timing. Multimember panels typically release opinions together, allowing each side to respond fully. This norm does more than promote fairness—it strengthens judicial decisionmaking by enabling dialogue between majority and dissent.
Based on what’s been reported, I believe the majority erred by not allowing Judge Smith a reasonable window to prepare his dissent. Judge Brown cited the Supreme Court’s Purcell principle as a reason for urgency, yet the majority opinion itself argued Purcell didn’t apply. If that’s correct, a short delay—perhaps a week—would have preserved norms without jeopardizing the election timeline. And even if Purcell might apply, I still don’t see why the majority couldn’t have offered some short period of time to allow Judge Smith to prepare a dissent.
But Judge Smith’s response—the level of sheer personal attacks, which ultimately detracted from the serious merits of his legal disagreements—was dispiriting. Both as an advocate and a past president of the Federal Bar Association’s Southern District of Texas Chapter, I know both judges as respected jurists and members of the broader federal legal community. Neither rule based on personal ideology; each call their cases as they see them. That doesn’t mean that higher courts always agree with either judge, but I don’t for a moment believe that either rule on the basis of “activism.”
The Broader Impact
When criticism turns personal, it undermines more than collegiality; it chips away at the public’s faith in a fair and impartial judiciary. As I told the Texas Lawbook:
“As someone who cares deeply about our judicial system, I am concerned that the dissent’s unusually sharp language could unintentionally reinforce broader narratives of hostility toward the judiciary, particularly at a time when judges across the spectrum face heightened security risks,” he said.
Against that backdrop, I found the State of Texas’s emergency stay application in the Supreme Court—led by my friend Will Peterson, the Solicitor General of Texas—to be a masterclass in advocacy. Whether the State is right or wrong on the merits is beside the point. What matters is that the application demonstrates how the same arguments raised in the dissent can be advanced—even under intense time pressure—vigorously, yet with sobriety and respect.
A Hope for Grace
At the end of the day, Judges Brown and Smith are fine jurists and devoted public servants who are navigating a high-profile, complex, consequential case under extraordinary time pressure. Their disagreement is genuine, but I cannot imagine it arising from anything other than good faith. And that disagreement should never overshadow the shared values that sustain our judiciary: respect, professionalism, and dialogue. In this season of gratitude, I hope those values prevail.
Red Light
This Thanksgiving, I’m grateful for many things—my family, my friends, my new firm and colleagues, and so much more. But one more thing I’m grateful for is you, the reader. Thank you for taking the time to read and subscribe to 1910 & Beyond.
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.
Until next time, I wish you and your family a joyful and restful Thanksgiving!
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.5
Justice Hawkins didn’t participate in the decision—and for good reason, as he argued the case successfully for the relators.
Disclaimer: I previously represented the real parties in interest in this case.
Bonner wasn’t the only interesting Second Amendment opinion from the Fifth Circuit over this two-week period. In United States v. Mitchell, No. 24-60607 (Elrod, C.J., Clement, Haynes, JJ.), the court held that a defendant’s Section 922(g)(1) conviction was unconstitutional as applied to his Section 922(g)(3) predicate offense (unlawful possession of a controlled substance while possessing a firearm).
Judge Smith was appointed by President Reagan, Judge Guaderrama by President Obama, and Judge Brown by President Trump.
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