25-14: Wonderful
A look back to the weeks of November 24 and December 1, with help from Wicked
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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I hope everyone had a joyful Thanksgiving. Mine was wonderful—and a little Wicked. My kids were thrilled to watch For Good on the big screen, and for one afternoon we were back in the enchanted land of Oz.
But, as Elphaba reminds us, there’s No Place Like Home—and I’m back with my goodliest colleague Kate Ring to cover the notable legal action. But before we float across the States in Glinda’s Bubble, let me share some thrillifying news about another talented colleague, Fraser Holmes, who had a fantastic interview in Law360 about his braverism in delivering his first oral argument. Here are some excerpts from the article:
Leading up to the argument:
“I was very nervous. But I’ve talked to a lot of partners here — people who have argued over and over again, and who are incredibly good — and they get nervous, too, and that made me feel better. You learn to use energy positively and make sure you can handle anything … So, I am actually grateful I felt nervous. If I had been complacent, I might not have been as well-prepared.”
And the most important feedback — the client’s reaction:
“[I]t was incredibly rewarding to hear directly from the client how pleased they were. It kind of gets back to why I was so excited to do appellate work to begin with: It’s everything I enjoyed about graduate school — becoming an expert, trying to convince others of your position, etc. — with the real-world impact of getting to help someone with your work product.”
Congratulotions, Fraser!
1910
Orders and Opinions
As always, 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
Buchanan v. Androderm X, LLC, No. 01‑24‑00762‑CV (Adams, C.J.; Morgan, Dokupil, JJ): This trade‑secrets/noncompete dispute turned into a tutorial on temporary‑injunction practice. The defendants noticed appeals from a temporary restraining order, a temporary injunction, and later an amended TI. The First Court first dismissed the challenge to the oral denial of the motion to dissolve both the TRO and the TI: TROs are not appealable, and an oral ruling on a TI does not confer appellate jurisdiction because only written orders are appealable. With the amended TI in place, the appeal from the original TI was moot.
Turning to the amended TI, the Court dissolved the surviving provisions for violating Rule 683’s specificity requirement—the order was unclear about who was enjoined and which conduct was prohibited, and several directives were undefined. The Court also reversed the noncompete provision as applied to Buchanan because the injunction issued without Rule 681 notice, depriving him of due process.
N.B.: Temporary‑injunction orders must be both noticed and precise. Under Rule 681, provide reasonable notice before granting a TI. Under Rule 683, state the reasons for issuance, be specific in terms, set a trial date, avoid cross‑references to other documents, and define key terms like “confidential information.” Skip those steps and your order may melt on appeal faster than a certain witch in a water fight. And remember: an oral denial of a motion to dissolve a TI will not support an interlocutory appeal.
Harris County v. Noriega, No. 14‑24‑00359‑CV (Wilson, Hart, McLaughlin, JJ.): A former executive director alleged Harris County terminated him in retaliation for reporting that a sexual‑harassment complaint against him was false, asserting a claim under the Texas Whistleblower Act. The County filed a plea to the jurisdiction, arguing the report concerned only internal county policies, not “law” within the Act. The trial court denied the plea.
Reversing and rendering, the Fourteenth Court held that the Whistleblower Act’s waiver of immunity was not triggered because the employee’s report cited violations of the County’s Personnel Policies and Code of Conduct—internal rules that were not “a statute, ordinance, or a rule adopted under a statute or ordinance” as required under Texas Government Code § 554.001(1). The Court reinforced Supreme Court guidance that complaints about internal policy compliance do not qualify as protected whistleblower reports.
N.B.: To follow the yellow‑brick road to Whistleblower Act protection, tie the report to a specific statute, ordinance, or a rule adopted under one. Internal manuals—even if widely followed—won’t get you to Emerald City.
In Brief
1COA
City of Houston v. Tapia, No. 01‑25‑00016‑CV (Rivas‑Molloy, Gunn, Caughey, JJ.): Affirming the denial of the City’s Rule 91a motion to dismiss in a wrongful‑death suit, the First Court held the parents’ pleadings sufficiently alleged actual notice under the Texas Tort Claims Act—subjective awareness of the death, the City’s potential fault, and the parties’ identities. The parents also plausibly stated premises‑liability and gross‑negligence claims based on the City’s control of Memorial Park and its knowledge of habitual pedestrian access to active tracks. The City’s “open and obvious” defense was both waived and, in any event, overcome by the pleaded facts.1
Westview Drive Investments v. Harris Central Appraisal District, No. 01‑25‑00205‑CV (Guerra, Guiney, Johnson, JJ.): Denying a petition for permissive appeal, the First Court held the certified question—whether Tax Code § 23.231’s “circuit breaker” cap limits the 2024 appraised value to 20% above 2023—is not ripe because Section 42.23 requires the trial court to determine the property’s 2024 market value de novo. Depending on that finding, the cap may prove irrelevant, and an immediate appeal would not materially advance termination of the litigation.
Harper v. Spencer & Associates, P.C., No. 01‑25‑00736‑CV (order) (Gunn, J.): Granting an emergency stay of a turnover order and appointment of a receiver, the First Court paused all collection efforts pending appeal because the trial court failed to hold a hearing on Harper’s motion to reduce the supersedeas bond under Texas Rule of Appellate Procedure 24.2(b), risking the loss of a meaningful appeal.
Calkins v. Sullivan, No. 01‑24‑00779‑CV (order) (Dokupil, J.): Denying appellants’ emergency motion to compel filing of the reporter’s record, the First Court explained that under Texas Rule of Appellate Procedure 37.3(b), a court reporter must prepare and file the record only after payment or a satisfactory payment arrangement. The Court ordered appellants to provide proof of full or partial payment within 15 days.
Gonzalez v. Zachry Industrial, Inc., No. 01‑23‑00230‑CV (Rivas‑Molloy, Gunn, Caughey, JJ.): Affirming a take‑nothing summary judgment on limitations, the First Court rejected plaintiffs’ bid to toll under the narrow Hilland misidentification doctrine. The case involved omission, not misidentification: Plaintiffs knew about Zachry Inc. well before limitations ran, yet failed to timely name it. Equitable tolling therefore did not apply.2
14COA
Amell v. Van Pelt, No. 14‑24‑00297‑CV (Wilson, Hart, Boatman, JJ.): Affirming the judgment following a bench trial, the Fourteenth Court upheld findings of defamation per se against the Amells based on emails to carriers and customers falsely asserting unethical conduct and contractual violations. The Court sustained reputational‑damages awards (supported by sufficient evidence) and matching exemplary‑damages awards (supported by actual malice). A cross‑appellant’s effort to recover an individual’s damages failed for lack of specific proof.
Pawn TX, Inc. v. City of Houston, No. 14‑24‑00869‑CV (Wise, Hart, Boatman, JJ.): Reversing and remanding at the plea‑to‑the‑jurisdiction stage, the Fourteenth Court held that Pawn TX’s pleadings and jurisdictional evidence raised a fact issue on material and substantial impairment of access where right‑of‑way curbing would render numerous parking spaces unusable and require costly reconfiguration. The City’s affidavit did not negate functional impairment under Texas takings law.
Baizer v. Shaw, No. 14‑24‑00072‑CV (Wilson, Hart, Boatman, JJ.): Affirming in part and reversing in part, the Fourteenth Court upheld the jury’s finding that the 1996 lease contained a $70,000 purchase option and concluded the option persisted through renewals and automatic extensions, making Shaw’s 2021 exercise timely. Specific performance, however, was improper absent proof or a jury finding that Shaw was ready, willing, and able to exercise and pay the option. The rent reimbursement was reduced, and attorney’s fees were reversed and remanded for recalculation in light of the modified relief.
Arguments
1COA
The First Court has no scheduled arguments on the docket.
14COA
City of Houston v. Showers, No. 14-25-00037-CV (Christopher, C.J.; Wilson, Bridges, JJ.): In this personal-injury case, did the trial court err in denying the City’s motion for summary judgment based on standing and governmental immunity?
Appellant: Donald Hightower (City of Houston)
Appellee: Matías Adrogué (Matías J. Adrogué)
Argument: December 9 at 2 pm
Aguirre v. State, No. 14-25-000214-CV (Christopher, C.J.; Wilson, Bridges, JJ.): Does sufficient evidence support the defendant’s conviction for murder, and did the trial court violate due process by instructing the jury that “beyond a reasonable doubt” could be as little as “60 percent”?
Appellant: Douglas Gladden (Harris County Public Defender’s Office)
Appellee: Nathan Farmer (Harris County District Attorney’s Office)
Argument: December 9 at 2 pm
Mont Belvieu Caverns, LLC v. DCP Partners MB II LLC, No. 14-25-00085-CV (Christopher, C.J.; Wilson, Bridges, JJ.): Did the trial court err in granting summary judgment for defendants in this case involving the interpretation of Restated Operating Agreement governing the joint ownership of two fractionators and certain related infrastructure?
Appellants: David Keltner (Kelly Hart & Hallman) and Cody Stafford (Dobrowski Stafford & Pierce)
Appellees: Reagan Brown (Norton Rose Fulbright)
Argument: December 16 at 2 pm
MJM Repairs, LLC v. CP2 Realty Holdings, LLC, No. 14-25-00025-CV (Wise, Hart, Boatman, JJ.): Did the trial court err in disregarding the jury’s verdict based on a purportedly unpled defense, and in awarding attorneys’ fees?
Appellant: Andrew Parma (The Law Offices of Marcos & Associates)
Appellee: Peter Smart (Crain Caton & James)
Argument: December 18 at 10 am
Delgado v. Harris County, No. 14-24-00942-CV (Jewell, McLaughlin, Antú, JJ.): Did the trial court err in granting Harris County’s plea to the jurisdiction based on the Texas Tort Claims Act’s emergency exception?
Appellant: Eric Nielsen (Nielsen Law Firm)
Appellee: Ashley Segura (Office of Harris County Attorney)
Argument: December 18 at 2 pm
& Beyond
SCOTUS
As October Term 2025 clicks its heels toward the end of the calendar year, the Court delivered its first non‑interim‑docket work—two summary reversals—alongside several notable orders, including the Texas redistricting stay.
Opinions
We have the first non-interim-docket opinions of October Term 2025. Yet neither comes from the argument docket; both are summary reversals—unsigned per curiam opinions where the legal error warrants correction by the full Court, but the resolution so straightforward that further briefing and argument is unnecessary.
Pitts v. Mississippi, No. 24-1159 (Supreme Court of Mississippi): A defendant’s Sixth Amendment right to confront witnesses “face‑to‑face” cannot be denied absent case‑specific findings of necessity, notwithstanding a Mississippi statute allowing a child‑abuse victim to testify from behind a screen at trial. But the error is subject to harmless‑error review. On remand, the parties may address whether the decision to have the defendant’s daughter testify from behind a screen affected the verdict.
Clark v. Sweeney, No. 25-52 (Fourth Circuit): Departing from the principle of party presentation, the Fourth Circuit abused its discretion by granting a new trial based on an argument the habeas petitioner never raised. Rather than decide the petitioner’s ineffective‑assistance claim, the court relied on a “combination of extraordinary failures from juror to judge to attorney.” On remand, the court must analyze only the claim the petitioner actually presented.
The Court also issued several orders-related opinions, most notably granting the State of Texas’s stay application in the redistricting litigation (as covered in my previous post).
Abbott v. League of United Latin American Citizens, No. 25A608 (Western District of Texas): Should the Court stay the three-judge district court’s order (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?
Majority (per curiam): Yes. The State is likely to succeed on the merits based on “at least two serious errors.” First, the district court “failed to honor the presumption of legislative good faith by construing ambiguous direct and circumstantial evidence against the legislature.” And second, it “failed to draw a dispositive or near‑dispositive adverse inference against respondents” despite the absence of a viable alternative map that met the State’s avowedly partisan goals (an Alexander map). The remaining stay factors favor the State given the district court’s “improper[] insert[ion]” into an ongoing primary campaign, causing confusion and upsetting the federal‑state balance in election administration—the much‑discussed Purcell principle.
Concurrence (Alito, J., joined by Thomas, Gorsuch, JJ.): Two points are “decisive.” First, even “the dissent does not dispute—because it is indisputable—that the impetus for the adoption of the Texas map was . . . partisan advantage pure and simple.” Second, because litigants can easily use claims of racial gerrymandering for partisan ends, Alexander requires the challenger “to produce an alternative map that serves the State’s allegedly partisan aim just as well as the map the State adopted.” The failure to do so here supports the inference that partisanship—not race—drove the mapmaking.
Dissent (Kagan, J., joined by Sotomayor, Jackson, JJ.): Under the clear-error standard of review, the question is whether the district court’s finding that the map was motivated by racial—not partisan—considerations is plausible. The answer is yes. While there is a presumption of legislative good faith, the district court plausibly explained why that presumption was rebutted here. Nor does Alexander require an alternative map when faced with direct evidence of race-based decisionmaking. And the Purcell principle doesn’t apply here, with nearly a year before the election. Any timing concerns stem from the Legislature’s own timing when taking up redistricting. Nor should Purcell be construed as allowing an unlawful election.
Beck v. United States, No. 24–1078 (Eighth Circuit): Should the Court grant certiorari to decide whether (1) the Feres bar against a service member’s ability to bring tort claims “incident to service” is only triggered when the injury was directly caused by the servicemember’s military duties or orders, or (2) Feres should be limited or overruled?
Majority (per curiam): Certiorari denied.
Dissent (Thomas, J.): Yes. The Court need not overrule Feres to hold that the bar is inapplicable on these facts. It should provide guidance to lower courts, which are divided on Feres’s reach.
Justice Gorsuch also would have granted the petition.
Statement (Sotomayor, J.): No. Although Feres “is a difficult decision to justify,” statutory stare decisis counsels restraint. Congress is better positioned to craft fixes to the Federal Tort Claims Act.
Orders
Aside from the usual list of denials, the Court acted on two stay applications.
Blanche v. Perlmutter, No. 25A478 (D.C. Circuit): Should the Court stay an order temporarily reinstating the Register of Copyrights following her removal by the Trump Administration?
Majority (per curiam): Decision deferred pending Trump v. Slaughter (removal of FTC director) and Trump v. Cook (removal of Federal Reserve director).
Justice Thomas would grant the application.
Margolin v. National Association of Immigration Judges, No. 25A662 (Fourth Circuit): Should the Court stay the Fourth Circuit’s mandate that would send a dispute over a policy governing speaking engagements by immigration judges back to a federal district court for factfinding?
Order (Roberts, C.J.): Yes. Response ordered by December 10.
The Court also granted several certiorari petitions, including in the Trump Administration’s challenge to birthright citizenship.
Jules v. Andre Balasz Properties, No. 25-83 (Second Circuit): Does a federal court that initially exercises jurisdiction and stays a case pending arbitration maintain jurisdiction over a post-arbitration Section 9 or 10 application where jurisdiction would otherwise be lacking?
T.M. v. University of Medical System Corp., No. 25-197 (Fourth Circuit): Is the Rooker-Feldman doctrine, which prevents parties who lose in state courts from challenging injuries caused by state-court judgments, triggered by a state-court decision that remains subject to further review in state court?
Trump v. Barbara, No. 25-365 (District of New Hampshire)3: Does Executive Order No. 14,160 violate the Fourteenth Amendment’s Citizenship Clause and 8 U.S.C. § 1401(a), which codifies that clause?
Abouammo v. United States, No. 25-5146 (Ninth Circuit): Is venue proper in a district where no offense conduct took place, so long as the statute’s intent element “contemplates” effects that could occur there?
Arguments
The Court will hear four cases the week of December 8, before taking its customary holiday break. Oral arguments will resume on January 12, 2026.
December 8
Trump v. Slaughter, No. 25-332 (D.C. Circuit): Does the statutory removal protections for members of the Federal Trade Commission violate the separation of powers—and, if so, should Humphrey’s Executor v. United States be overruled? And may a federal court prevent a person’s removal from public office, either through relief at equity or at law?
December 9
National Republican Senatorial Committee v. Federal Election Commission, No. 24-621 (Sixth Circuit): Do the limits on coordinated party expenditures in 52 U.S.C. § 30116 violate the First Amendment, either on their face or as applied to party spending in connection with “party coordinated communications” as defined in 11 C.F.R. § 109.37?
December 10
Hamm v. Smith, No. 24-872 (Eleventh Circuit): May courts consider the cumulative effect of multiple IQ scores in assessing an Atkins claim—and if so, how?
FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd., No. 24-345 (Second Circuit): Does Section 47(b) of the Investment Company Act create an implied private right of action?
All oral arguments can be livestreamed at this link.
SCOTX
Back in Austin, the Supreme Court of Texas largely stayed behind the curtain.
Opinion
The Court issued one opinion without oral argument.
Tabakman v. Tabakman, No. 24-0919 (Fourteenth Court): In this divorce case, is the petitioner entitled to a new trial under the Craddock test?
Majority (per curiam): Yes. The petitioner demonstrated lack of conscious indifference by showing that she was unaware of having been served through alternative service and did not receive the posted citation. Upon learning about the oral rendition of judgment, she filed an answer before the judge signed the default decree. The record also established a meritorious defense and that a new trial would not unduly delay or injure the respondent. The trial court erred by focusing only on the first Craddock factor; all three were satisfied.
Orders
No orders of note: The Court didn’t issue any orders on November 28 due to the holiday. And aside from Tabakman, the customary Friday orders on December 5 contained solely of denials or dismissals of petitions for review, rehearing, and mandamus.4
Arguments
The Court has concluded arguments for 2025. The next sitting begins in January 2026.
CA5
Down in New Orleans, the Fifth Circuit continued Dancing Through (Judicial) Life.
Opinions
Alongside the usual civil decisions, two criminal opinions stood out—one addressing special conditions of supervised release (an issue I’ve litigated more times than I’d like to count).
Cadence Bank v. Johnson, Nos. 24‑10812 & 25‑11078 (Smith, Graves, Duncan, JJ.): Affirming summary judgment for two banks, the Fifth Circuit first upheld diversity jurisdiction: Cadence is incorporated in Mississippi with its principal place of business (nerve center) in Mississippi; Century is a New Mexico citizen; and the Johnsons and their LLCs are Texas citizens. The court next held that summary judgment enforcing the Johnsons’ personal guaranties was proper. Because the guarantors failed to satisfy the early‑release conditions, they remained liable on the loans.
In re Jet Oilfield Services, No. 25‑50206 (Smith, Stewart, Haynes, JJ.): Affirming the bankruptcy court, the Fifth Circuit upheld dismissal of Spin Capital’s claim. Spin’s proof of claim, premised on a “future receivables” agreement, failed because Spin did not carry its burden to show that Jet’s member (Brian Owen) had actual or apparent authority to bind the LLC under Texas law. Apparent authority depends on the principal’s conduct and the reasonableness of the third party’s assumptions; here, Jet’s amended company agreement required other members’ consent, the tax return listing Owen as “partnership representative” bore no member‑manager signature, Spin never confirmed authority with Jet’s principals or reviewed formation documents, and Spin’s own representative admitted that bank‑account access does not equal authority.
United States v. Ducksworth, No. 24‑60473 (Smith, Stewart, Ramirez, JJ.): Affirming the conviction, the Fifth Circuit upheld the denial of a motion to suppress and joined the First Circuit in recognizing that “a driver’s possession of a firearm may give rise to reasonable suspicion to pat‑down his passenger, at least when coupled with other circumstances.” The officer had reasonable suspicion to pat down the passenger after discovering a concealed gun on the driver who had lied—at night, in a high‑crime area—with a single officer outnumbered; companionship with an armed driver was a relevant factor. The court otherwise rejected Ducksworth’s remaining challenges to his Section 922(g)(1) conviction, which were largely foreclosed.
United States v. Currier, No. 24‑50974 (Clement, Graves, Ho, JJ.): Vacating and remanding, the Fifth Circuit adopted a bright-line remedy for oral-pronouncement errors involving special conditions of supervised release: Any unpronounced discretionary supervised‑release condition that conflicts with the oral sentence must be excised from the written judgment.
Arguments
Other than one virtual argument on December 11 in a criminal case, the Fifth Circuit has concluded arguments until January 2026.
15COA
Finally, let’s spend One Short Day in our statewide court of appeals.
Opinions
Aside from continued action on the Court’s Rule 29.3 injunctive-relief docket, the Fifteenth Court issued one noteworthy split decision.
Exxon Mobil Global Services v. State Office of Administrative Hearings, No. 15‑24‑00034‑CV: Does a SOAH administrative law judge have a ministerial duty to conduct an evidentiary hearing when a party appeals a tax case involving property classified by the taxing authority as industrial?
Majority (Field, J., joined by Farris, J.): No. A dissatisfied taxpayer may challenge appraisal review board determinations either by filing a suit for review in district court—or, for non‑industrial property, by appealing to SOAH. While SOAH ALJs have authority under the Government Code to decide value disputes for non‑industrial property, they lack express power to adjudicate classification disputes. Here, HCAD classified Exxon’s computers as industrial, and the ALJ satisfied her ministerial duty by recognizing the statutory jurisdictional limit and dismissing without receiving evidence on classification.
Dissent (Brister, C.J.): Yes. Texas law governing pleas to the jurisdiction requires tribunals to consider record evidence when necessary to resolve jurisdiction. By analogy, ALJs should evaluate evidence bearing on jurisdictional facts—including whether the property is truly “industrial”—rather than relying on HCAD’s ipse dixit. Electing SOAH should not forfeit due‑process protections when jurisdiction turns on a factual predicate, and separation‑of‑powers principles require verification of jurisdiction before dismissal.
Arguments
The Fifteenth Court has two arguments scheduled for December 18.
Texas State Board of Social Worker Examiners v. Youniacutt, No. 15-25-00064-CV: Does Texas Occupations Code § 108.052, which governs the licensure of master social workers, violate the due-course clause of the equal-rights provision of the Texas Constitution?
Appellant: Beth Klusmann (Office of Attorney General)
Appellees: James Knight (Institute for Justice)
In re Powered by People, No. 15-25-00140-CV (orig. proceeding): Is mandamus relief warranted from the trial court’s restraining order (among other orders) barring Powered by People from engaging in certain political fundraising activities?
Relators: Mimi Marziani (Marziani, Stevens & Gonzalez)
Real Parties: Abigail Smith (Office of Attorney General)
Red Light
And finally, much to my kids’ chagrin, the curtain drops—time for the Wizard to retire behind the screen until his next appearance.
I’d love to hear from you: Comments, case tips, or practice ideas are always welcome. And if you enjoy these updates, please subscribe and share.
Until we meet again, have a great week. This wise ol’ carney will be back soon with more legal blarney!
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
Disclaimer: I represented the appellees in prior proceedings.
Disclaimer: I represented the appellants in this appeal.
This is a rare grant of certiorari before judgment.
The Court also issued denied a mandamus petition on December 1.
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.
Thanks, as always, for putting this together. Great read