26-01: Auld Lang Syne
A look back to the weeks of December 22 and 29, with help from Dick Clark
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!
Opening Statement
As we cue up Auld Lang Syne and reenact Dick Clark’s New Year’s Rockin’ Eve countdown, I’m ringing in a few changes at 1910 & Beyond—starting with a new feature: Opening Statement. It’s an introductory brief to spotlight what’s most newsworthy or simply what’s top-of-mind. This section won’t appear every time, but expect it in most posts going forward.
To kick things off: The Court has formally approved its set of major amendments to the Texas Rules of Appellate Procedure.
In my earlier post, I explained that the Supreme Court of Texas had preliminarily approved sweeping changes to the Appellate Rules that would move grant decisions to the petition stage and end the Court’s longstanding practice of requesting full merits briefs before grant. The proposal retooled Rule 53 (and aligns Rule 52 for mandamus) to require more robust petition‑stage briefing: petitions and responses would gain 2,000 words (to 6,500 total), include a counted 1,000‑word introduction that makes the grant case, and eliminate “unbriefed” issues reserved for later. I endorsed the shift, noting it should reduce cost and delay—given that historically many ordered merits briefs did not lead to grants—while improving predictability and docket management.
Following a notice-and-comment period, the Court adopted the amendments on December 23, 2025. The amendments apply to all cases initiated in the Court on January 1, 2026. They largely remain unchanged from the preliminary version.
But one notable change comes in Rule 53.2(a)’s description of the Introduction. The preliminary draft said the petition must include an introduction “summarizing the reasons the Court should grant review and why the petitioner should prevail.” In a letter to the Clerk of the Court (which I discussed in my last post), I noted that the Court may wish to change this “summarizing” language, which raised the possibility of duplication with Rule 53.2(i)’s Summary of the Argument.
The revised version removes this reference. While it retains Rule 53.2(i)’s Summary of the Argument, it changes Rule 53.2(a)’s description of the Introduction:
The petition must contain an introduction that identifies the most persuasive grounds for the Court to grant review, which will vary by case, but will often include reference to the substantive legal arguments made in the body of the petition.
The mandamus rules remain unchanged. Rule 52.3(a) still calls for an Introduction “summarizing the reasons the Court should grant relief and the legal arguments made in the body of the petition.” But unlike the rules governing petitions for review, the mandamus rules continue to omit a Summary of the Argument section. I’ll be curious to see whether practitioners approach Introductions differently in mandamus petitions versus petitions for review.
Ultimately, the amendments mark a fundamental reorientation of Texas Supreme Court practice. The new rules align the Court more closely with the U.S. Supreme Court model. No longer will petitions be lengthy cover letters to future merits briefs—in many ways, they’re the main event. This petition‑centered approach promises not only lower costs and increased efficiency, but also improved docket discipline in which the Court reserves full merits briefing for the matters that truly warrant its time. I’m excited to practice under the new regime.
1910
Orders and Opinions
And now, to 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
City of Houston v. Williams, No. 01‑23‑00974‑CV (Guerra, Guiney, Johnson, JJ.): In this interlocutory appeal, the City challenged orders denying two Rule 91a motions to dismiss the plaintiff’s negligence suit, which included immunity arguments under the Texas Tort Claims Act. The trial court denied both because each motion was set for submission fewer than 21 days after filing.
Affirming, the First Court held the first motion was properly denied where the plaintiff objected that the submission setting—10 days after filing—did not comply with Rule 91a.3’s 21-day deadline. For the second motion—filed seven days before submission—the court concluded the trial judge could deny it sua sponte under its inherent docket‑management authority, even though Rule 91a.3’s deadlines are generally directory. (Still, the court noted that its opinion did not prevent the City from pursuing its immunity defense via a plea to the jurisdiction or summary judgment.)
N.B.: Don’t let your Rule 91a clock hit midnight—set submission at least 21 days out, or else the trial court may deny the motion for procedural reasons alone.
Diversitas Holdings LLC v. Allure Body Sculpt, LLC, No. 14‑24‑00947‑CV (Wise, Hart, Boatman, JJ.) (order): After a bench trial, Diversitas timely requested findings of fact and conclusions of law and filed a past‑due reminder when none were issued. On appeal, Diversitas’s sole appellate issue challenged this failure by the trial court—whose presiding judge had since left office. Diversitas argued that without findings of facts and conclusions of law, it couldn’t properly present its appeal.
The Fourteenth Court agreed. It rejected Allure’s argument that, among other reasons, Diversitas wasn’t harmed by the failure because Diversitas could brief the appeal based on implied findings of fact and conclusions of law:
Under those circumstances, Diversitas would have to broaden its appeal to challenge all possible grounds supporting the judgment. Such a review would defeat the objectives of Rules of Civil Procedure 296 and 297 and hold a party who has requested findings and conclusions to the same standard as a party who did not do so.
Following the Texas Supreme Court’s decision in Ad Villarai, the Fourteenth Court concluded that the appropriate disposition was to abate the appeal and direct the sitting court to request that the former judge file findings and conclusions by a certain date. Should the former judge not comply with the request, the Fourteenth Court may reverse and remand for a new trial.
N.B.: In bench trials, don’t drop the ball on the Rule 296/297 countdown: Timely requests for findings of fact and conclusions of law and reminders preserve your path to meaningful appellate review from a bench trial. And even if you’re the victor, you may consider reminding the judge if there is a risk that the judge’s term ends mid‑window—or else you risk a new trial.
In Brief
1COA
Industrial Specialists, LLC v. Blanchard Refining Co. LLC & Marathon Petroleum Co. LP, No. 01‑23‑00704‑CV (Adams, C.J.; Morgan, Dokupil, JJ.): Reversing and rendering, the First Court held that an indemnitee who settles all negligence claims may recover from its indemnitor the portion attributable to other defendants under a comparative‑indemnity scheme only if the agreement complies with the express‑negligence doctrine and expressly provides for comparative indemnity. The agreement here did not. The key clause—“except to the extent the liability … is attributable to and caused by the negligence of Company”—does not expressly provide for indemnity where the indemnitee’s negligence is concurrent. It merely excludes indemnification for the Company’s own misconduct.
In Estate of Bryan D. Davidson, No. 01‑24‑00026‑CV (Adams, C.J.; Gunn, Guiney, JJ.): Affirming, the First Court upheld a bench‑trial finding of informal marriage. On the central question—whether there was an agreement to be married—the court properly admitted the wife’s testimony under Texas Rule of Evidence 601(b) (the Dead Man’s Rule), and she corroborated it by testifying that the husband gave her a wedding ring. Conflicting evidence did not compel a different result given the factfinder’s role.
Galloway v. Green, No. 01‑25‑00696‑CV (Adams, C.J.) (order): In an order, the First Court warned that briefs with fictitious or misleading citations—whether generated by artificial intelligence or otherwise—violate duties of candor and may lead to striking filings, dismissal, or monetary sanctions. The court directed appellants to stop submitting AI‑sourced citations without independent verification and cautioned that continued violations could result in striking the filings, deciding the appeal without briefing, and possible monetary sanctions.
A.H.D. Houston, Inc. v. Middleton, No. 01‑22‑00176‑CV (Rivas‑Molloy, Guerra, Guiney, JJ.): In a case involving the unlicensed use of models’ images in marketing materials, the First Court reversed summary judgment for the models and the accompanying $1.4 million award. Although the court concluded the models established the misappropriation elements, fact issues remained on the negligence claims, making a liability‑only affirmance improper. The court also held the damages were unliquidated and could not be awarded on summary judgment. Because liability was contested, Rule 44.1(b) required a remand for a new trial on both liability and damages.
Venable’s Construction, Inc. v. Aspen Midstream, LLC, No. 01‑24‑00702‑CV (Rivas‑Molloy, Gunn, Caughey, JJ.) (op.): Affirming in part and reversing in part, the First Court held that Venable’s added work did not qualify as “Extra Work” under the parties’ contract, foreclosing Venable’s breach‑of‑contract and related claims. The court also reversed Aspen’s declaratory judgment on a duty to defend its affiliate in the Woods suit because Aspen never demanded a defense, leaving no justiciable controversy.
Ramirez v. Hotze, No. 01‑25‑00301‑CV (Guerra, Guiney, Johnson, JJ.): Reversing and rendering, the First Court rejected the plaintiffs’ ultra vires theory. “Address reclassification” under Election Code § 15.022 means a USPS reclassification of an address, not a voter’s change‑of‑address for mail delivery. Because the plaintiffs did not plead any viable ultra vires conduct, the Registrar’s plea to the jurisdiction should have been granted.
14COA
Reynolds v. Davis, No. 14‑24‑00473‑CV (Wilson, Hart, Boatman, JJ.): Affirming the denial of a TCPA motion in a dispute over wrongful‑death settlement funds, the Fourteenth Court held the administrator’s turnover claim falls within the TCPA’s personal‑injury exemption (“statements concerning a legal action seeking recovery for bodily injury, wrongful death, or survival”). The administrator’s TUFTA / constructive‑fraud/ conspiracy claims likewise did not qualify for TCPA protection because the challenged statements were not “based on or in response to” communications in an actual pending proceeding. Alternatively, the administrator offered clear and specific evidence establishing the prima facie elements of her claims, and Reynolds failed to present evidence of a valid defense.
In re Parikh, No. 14‑25‑00714‑CV (Jewell, Wilson, McLaughlin, JJ.) (per curiam) (orig. proceeding): Conditionally granting mandamus, the Fourteenth Court ordered the trial court to vacate a post‑judgment discovery order because Parikh’s cash deposit superseded the amended judgment. Even if the appellant had not challenged every aspect of the judgment, the judgment as a whole remains superseded until the appeal is final.
Johnson v. Leza, No. 14‑23‑00888‑CV (Christopher, C.J.; Wise, Boatman, JJ.): Affirming a default judgment in a restricted appeal, the Fourteenth Court held Section 3931 of the Servicemembers Civil Relief Act applies only when a defendant has not appeared. Because the defendant made a general appearance here, Section 3931 was inapplicable.
MKM Engineers, Inc. v. Guzder, No. 14‑23‑00160‑CV (Christopher, C.J.; Wise, Hart, JJ.): Affirming the judgment, the Fourteenth Court upheld specific performance of a Rule 11 settlement. The law‑of‑the‑case doctrine did not bar Guzder’s excuse argument, which raised different legal and factual issues than those resolved in the prior appeal. The companies’ repudiation excused Guzder’s pre‑suit tender, and he offered evidence that he was ready, willing, and able to perform. The court also upheld the award of equitable prejudgment interest tied to the long delay.
Arguments
The First and Fourteenth Courts are back in session for oral argument in 2026.
1COA
Martinez v. State, No. 01-24-00141-CR (Guerra, Caughey, Dokupil, JJ.): Did the trial court violate the defendant’s constitutional and statutory rights by failing to appoint a Spanish-language interpreter to assist the defendant during a contested adjudication hearing?
Appellant: Clay Hearrell, Esq.
Appellee: Trey Picard (Brazoria County Criminal District Attorney’s Office)
Argument: January 15 at 1 pm
14COA
In re Quintero, No. 14-25-00757-CV (Christopher, C.J.; Wise, Jewell, JJ.): Is mandamus relief required from the trial court’s order granting the plaintiffs’ motion to compel the deposition of counteraffiants under Texas Civil Practice and Remedies Code § 18.001?
Relators: Jack McKinley (Ramey Chandler Schein)
Real Parties in Interest: Matthew Kita, Esq.
Argument: January 8 at 2 pm
Energy Transfer LP v. Purland, No. 14-25-00110-CV (Christopher, C.J.; Hart, Bridges, JJ.): Did the trial court err in denying the defendants’ motion to compel arbitration under, among other things, the Federal Arbitration Act’s transportation-worker exemption?1
Appellants: Jessica Barger (Wright Close Barger & Guzman)
Appellee: David Frederick (Kellogg, Hansen, Todd, Figel & Frederick)
Argument: January 13 at 2 pm
Texas Materials Group, Inc. v. Harris County, No. 14-25-00161-CV (Wise, Hart, Boatman, JJ.): Among other issues in this procurement dispute, did the trial court err in granting Harris County’s plea to the jurisdiction for Texas Material Group’s claims brought under Chapter 262 of the Local Government Code and Chapter 2269 of the Texas Government Code?
Appellant: Stephen Irving (Peckar & Abramson)
Appellees: Neal Sarkar (Office of Harris County Attorney)
Argument: January 14 at 2 pm
THF Partners, LLC v. Gonzalez, No. 14-24-00660-CV (Jewell, McLaughlin, Antú, JJ.): Among other issues in this cross-appeal, did the trial court err in entering a judgment that found that the defendant breached a purchase contract but was legally excused from performing; and who is the prevailing party entitled to attorneys’ fees?
Appellant / Cross-Appellee: David Lodholz (Hughes Watters Askanase)
Appellees / Cross-Appellants: Daniel Goldberg (The Goldberg Law Office)
Argument: January 15 at 10 am
City of Houston v. Henderson, No. 14-25-00078-CV (Jewell, McLaughlin, Antú, JJ.): Did the trial court err in denying the City’s immunity-based motion despite its employee’s affidavit attesting that he was off-duty and not driving to work at the time of the collision?
Appellant: Robert Higgason (City of Houston Legal Department)
Appellee: Andres Suarez (Pusch & Nguyen Law Firm)
Argument: January 15 at 2 pm
& Beyond
Now, to ring in the new year beyond the 1910 Courthouse . . .
SCOTUS
The year’s final “countdown” at the Supreme Court of the United States was subdued on the merits docket—but the interim docket still dropped a few headline‑making balls.
Opinion
Trump v. Illinois, No. 25A443 (Seventh Circuit): Should the Supreme Court stay a district court’s order barring the President from deploying federalized National Guard units in Illinois to protect federal personnel and property amid violent protests obstructing immigration enforcement?
Majority (per curiam): No. Under 10 U.S.C. § 12406(3), the President may call the Guard into federal service only if “unable with the regular forces to execute the laws of the United States.” The term “regular forces” likely refers to the U.S. military—not civilian law enforcement. And under the Posse Comitatus Act, the military may not “execute the laws” “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” Because the Government identified no such authority here, it failed to carry its burden at this preliminary stage.
Concurrence in the Judgment (Kavanaugh, J.): No. The stay should be denied on narrower grounds: The record doesn’t show that the President made the required statutory determination that he was “unable” to execute federal law with the U.S. military. Absent additional briefing and argument, the Court should have gone no further.
Dissent (Alito, J., joined by Thomas, J.): Yes. By deciding the application on an issue not raised by the parties, the majority contravenes the party‑presentation doctrine. On the issue properly presented, “[t]here is no basis for rejecting the President’s determination that he was unable to execute the federal immigration laws using the civilian law enforcement resources at his command.”
Dissent (Gorsuch, J.): Yes. Given the “sensitive and gravely consequential questions concerning what roles the National Guard and U.S. military may play in domestic law enforcement,” the Court should decide the application only on the parties’ preserved arguments and the evidentiary record. On that basis, the President met his preliminary burden under § 12406(3). All other questions should await proper preservation.
Order
PG Publishing Co. v. National Labor Relations Board, No. 25A725 (Third Circuit): Should the Supreme Court stay a temporary injunction issued under Section 10(e) of the National Labor Relations Act requiring changes to a newspaper’s employee health-insurance plan?
Order (Alito, J.): Administrative stay entered and response ordered.
Arguments
The Supreme Court also returns to oral argument next week.
January 12
Chevron USA Inc. v. Plaquemines Parish, Louisiana, No. 24-813 (Fifth Circuit)2: Does a causal-nexus or contractual-direction test survive the 2011 amendment to the federal-officer removal statute, and may a federal contractor remove to federal court when sued for oil-production activities undertaken to fulfill a federal oil-refinement contract?
January 13
Little v. Hecox, No. 24-38 (Ninth Circuit): Do laws that seek to protect women’s and girls’ sports by limiting participation to women and girls based on sex violate the Fourteenth Amendment’s Equal Protection Clause?
West Virginia v. B.P.J., No. 24-43 (Fourth Circuit): Does Title IX prevent a state from consistently designating girls’ and boys’ sports teams based on biological sex determined at birth, and does the Fourteenth Amendment’s Equal Protection Clause prevent a state from offering separate boys’ and girls’ sports teams based on biological sex determined at birth?
January 14
Galette v. New Jersey Transit Corporation, No. 24-1021 (Pa.): Is the New Jersey Transit Corporation an arm of the State of New Jersey for interstate-sovereign-immunity purposes?
All oral arguments can be livestreamed here.
SCOTX
As the clock hit twelve, the merits stage dimmed at the Supreme Court of Texas. But its mandamus desk lit up with two notable non‑argument opinions.
Opinions
In re Paxton, No. 25-0641 (Fifteenth Court): May a court of appeals issue a Rule 29.3 stay that counteracts the State’s automatic supersedeas without first making a preliminary merits assessment?
Majority (per curiam): No. The State’s interlocutory appeal automatically superseded the temporary injunction. To stay that injunction under Rule 29.3, an appellate court must make a preliminary inquiry into the likely merits and may not bypass that requirement due to urgency—especially “when the judiciary is asked to enjoin executive‑branch action on matters of public import.” The Court conditionally granted mandamus and directed the Fifteenth Court to assess the merits and determine by January 5, 2026 whether a stay is warranted.
Concurrence (Bland, J., joined by Lehrmann, Huddle, JJ.): No. In addition to evaluating the merits, “must (1) also evaluate the balance of harms associated with the requested relief; and (2) have a reasonable time to determine whether a stay is warranted.” Given the time that has elapsed, the Fifteenth Court has had sufficient opportunity to make a preliminary merits determination and should do so—or issue its merits opinion, which would moot any stay.
Author’s Note: As summarized below, the Fifteenth Court issued its merits opinion on December 30, ruling against the State.
In re Smith, No. 25-1107 (Supreme Court): Is a primary candidate for Chief Justice of the Texas Supreme Court entitled to mandamus relief compelling the Republican Party Chair to place his name on the 2026 primary ballot, despite not meeting Election Code § 172.021(g)’s requirement of 50 valid signatures from each Court of Appeals district?
Majority (per curiam): No, for multiple reasons. First, the candidate unduly delayed by bringing a last‑minute, emergency facial constitutional challenge that could have been raised earlier without disrupting election administration. Second, he was unlikely to succeed on the merits: The signature rule is plausibly a procedural ballot‑access requirement rather than an unconstitutional additional eligibility criterion beyond Article V, Section 2(b) of the Texas Constitution, and the Legislature may impose reasonable measures to ensure an orderly ballot. Third, the candidate provided an incomplete mandamus record under Rule 52.7. Fourth, his petition failed to address “a host of other constitutional issues . . . , including the associational rights of political parties under the United States and Texas Constitutions.” The Court reserved any constitutional ruling for a proper case.
Not Participating: Blacklock, C.J.; Busby, J.3
Arguments
The Texas Supreme Court also resumes oral arguments next week.
January 14
Texas Department of State Health Services v. Sky Marketing Corp., No. 23-0887 (Third Court): Did the state agency responsible for maintaining Texas’s schedules of controlled substances properly modify certain definitions within those schedules, and do the plaintiffs have standing to enjoin the effect of those modifications?
Petitioners: Cory Scanlon (Office of Texas Attorney General)
Respondents: Amanda Taylor (Butler Snow)
Not Participating: Sullivan, J.
Weldon v. The Lilith Fund, No. 24-0250 (Second Court): Is a declaratory-judgment suit challenging a statute’s constitutionality subject to dismissal under the Texas Citizens Participation Act?
Petitioner: Jonathan Mitchell (Mitchell Law)
Respondent: Alexandra Albright (Alexander Dubose & Jefferson)4
January 15
JMI Contractors v. Medellin, No. 24-0846 (Fourth Court): Is the risk of falling from a roof an open and obvious danger that negates a duty to warn, and does the necessary-use exception apply to independent contractors?
Petitioner: Joseph Loiacono (Chamberlain McHaney)5
Respondent: Nadeen Abou-Hossa (Chiscano & Hossa)
Texas Department of Public Safety v. Callaway, No. 24-0966 (Thirteenth Court): May an employer lawfully terminate an employee who admittedly committed serious policy violations as a result of his disability without violating the Texas Commission on Human Rights Act?
Petitioner: Todd Dickerson (Office of Texas Attorney General)
Respondent: William Hommel (Hommel Law Firm)6
All oral arguments can be livestreamed here.
CA5
Between performances, the Fifth Circuit kept the show moving—closing 2025 with several headline‑grabbing split opinions.
Opinions
Alvarez v. Guerrero, No. 18‑70001 (Elrod, C.J.; Jones; Richman, JJ.): In a capital case, is the defendant entitled to habeas relief on various claims, including a Sixth Amendment “sleeping lawyer” claim?
Majority (Jones, J., joined by Elrod, C.J.): No. The state courts adjudicated the “sleeping‑lawyer” issue on the merits, so AEDPA deference applies. Under AEDPA, there is no clearly established Supreme Court precedent holding that a defendant’s Sixth Amendment rights are violated where one counsel allegedly performed defectively but another, engaged attorney effectively represented the defendant. A remand to consider defense counsel’s years‑old affidavit would be improper given the request’s untimeliness.
Dissent (Richman, J.): Yes. Lead counsel repeatedly slept during critical portions of the trial he was responsible for—direct examinations that he then cross‑examined—constituting deficient performance and effectively no counsel at those moments. At minimum, Strickland prejudice is shown because “[t]he spectacle of lead counsel sleeping during a death penalty case” undermines confidence in both the verdict and sentence. The case should at least be abated to allow the state court to consider defense counsel’s affidavit.
Ramirez v. Granado, No. 24‑10755 (Dennis, Oldham, Douglas, JJ.): Did the district court properly grant summary judgment on qualified immunity to an officer who fatally shot a fleeing suspect?
Majority (per curiam): No. Viewing the record in the plaintiff’s favor, genuine disputes exist about whether the suspect posed an immediate threat after the first unsuccessful shot and during the subsequent six shots. The parties “offer genuinely conflicting narratives,” including whether the decedent made any threatening gestures and whether the officer even knew he was armed. Under clearly established law, a jury must resolve what the officer actually perceived in the moments before the fatal shots.
Concurrence (Dennis, J.): No. The dissent sidesteps abundant record evidence and relies on inapposite citations. The majority properly holds that genuine factual conflicts cannot be resolved at summary judgment and instead must go to a jury.
Dissent (Oldham, J.): Yes. The undisputed video‑captured facts, coupled with abundant precedent, compel qualified immunity. And even absent an on‑point case (though there are), qualified immunity would still apply. The majority’s ruling will hinder officers forced to make split‑second decisions.
La Unión del Pueblo Entero v. Abbott, No. 22-50775 (consol. Nos. 22‑50775, 22‑50777, 22‑50778) (Richman, Southwick, Oldham, JJ.): Does Ex parte Young permit plaintiffs’ § 1983 challenges to multiple provisions of Texas’s Election Integrity Protection Act against the Texas Secretary of State and the Attorney General, and are the surviving claims traceable for standing?
Majority (Richman, J., joined by Southwick, J.): Yes in part, and yes. The court has collateral‑order jurisdiction even though defendants did not assert sovereign immunity over all claims. The Secretary is a proper Ex parte Young defendant for provisions requiring her to sanction voter registrars who fail to comply with voter‑roll‑maintenance rules and to design voting forms, as she has the requisite enforcement connection. She is immune as to other provisions, including referral authority for civil or criminal prosecution and early‑voting regulations. The Attorney General is immune except for one provision authorizing him to sue to recover civil penalties from non‑compliant counties. The plaintiffs’ injuries on the surviving claims are traceable to the Secretary or Attorney General, who enforce those provisions.
Concurrence in Part and Dissent in Part (Oldham, J.): No. The “some connection” test under Ex parte Young “is between (A) the defendant’s enforcement of state law and (B) the plaintiff’s rights under federal law.” The Fifth Circuit’s contrary “No Nexus Rule”—incorrectly requiring only a connection between the officer and the challenged law—has led to “ever‑more‑chaotic‑and‑inconsistent decisions.” Applying the proper test here, neither the Secretary nor the Attorney General can enforce the challenged provisions against these plaintiffs, so both are immune under Ex parte Young.
Pool v. City of Houston, No. 24‑20138 (Smith, Higginson, Douglas, JJ.): Affirming the district court’s Rule 60(b)(5) vacatur of a Section 1988 fee award, the Fifth Circuit held the award lacked a legal footing once the prior decision (Pool II) was vacated on the merits for lack of Article III jurisdiction. If Pool II conflicted with Pool I under law‑of‑the‑case principles, the plaintiffs should have sought rehearing rather than allowing the mandate to issue. The district court’s vacatur complied with the Pool II mandate, which effectively eliminated the plaintiffs’ prevailing‑party status.
Arguments
The Fifth Circuit’s January session takes place from January 6 to 8, with multiple panels sitting.
15COA
Opinions
Before signing off, the Fifteenth Court delivered two show-stopping opinions to end the year.
Paxton v. Garza, No. 15‑25‑00116‑CV (Brister, Field, Farris, JJ.): Does Texas Government Code § 41.006 give the Attorney General rulemaking authority to adopt statewide reporting rules for local prosecutors, and did the trial court properly issue a statewide temporary injunction barring enforcement of those rules?
Majority (Field, J., joined by Brister, C.J.; Farris, J.): No and no. First, Section 41.006 does not confer rulemaking authority on the Attorney General. Texas agencies require an express legislative grant, and the Legislature has repeatedly used explicit “by rule” language when it intends to give the Attorney General that power. While the term “direct” provides authority to request and receive information, it is not rulemaking authority. Second, although a temporary injunction was proper as to the named local prosecutors, the statewide scope was overbroad. Absent proof of a probable, imminent, and irreparable injury to nonparties in the interim, relief must be limited to the parties.
Concurrence (Brister, C.J.): Section 41.006’s text supports case‑specific requests—not “general, permanent, mandatory, across‑the‑board” reporting. Two recent statutory enactments reinforce that understanding. At the same time, actions by the Legislature and Attorney General reflect a legitimate concern that some prosecutors are not enforcing criminal laws despite their oaths to faithfully execute the laws.
AIRW 2017‑7, L.P. v. City of Georgetown, No. 15‑24‑00132‑CV (Brister, C.J.; Field, Farris, JJ.): Reversing and rendering judgment in favor of the Texas Commission on Environmental Quality, the Fifteenth Court concluded that substantial evidence supports the Commission’s order granting AIRW’s wastewater‑discharge permit for a housing‑development project. The order complied with the regionalization policy under the policy’s “cost” exception, which includes (lost) “opportunity cost.” The permit otherwise met water‑quality, anti‑degradation, and human‑health protections. The 150‑foot odor buffer was satisfied because the cited green space is not a park; there is no evidence the green space will be recreational. Finally, the application contained all reasonably required information.
Arguments
The Fifteenth Court has no oral arguments in the upcoming two weeks.
Red Light
And with that, the ball has dropped. Confetti fills the air as millions (I’m sure I have that estimate right) celebrate the end of another post.
Thanks to my colleague Allie Bitz for her assistance with this week’s post.
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.
For now, Andrew Gould . . . so long!
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.7
Disclaimer: I previously represented the appellee in this appeal.
Judge Davis authored the panel’s majority opinion, which was joined by Judge Englehardt. Judge Oldham dissented.
Chief Justice Blacklock obviously did not participate because the petition was brought by his putative primary opponent. Justice Busby likely did not participate because his putative primary opponent also purportedly failed to comply with the same statutory provision.
This listing identifies the signed author of the respondent’s brief, as the respondent has not yet confirmed who will be arguing.
This listing identifies the signed author of the petitioner’s brief, as the petitioner has not yet confirmed who will be arguing.
Both listings identify the signed author of the parties’ briefs, as neither party has yet confirmed who will be arguing.
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