26-05: The Tariff Menace
A look back to the weeks of February 16 and 23, with help from an underwhelming prequel
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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Opening Statement
A confession: Growing up, I was mildly obsessed with Star Wars.1 When George Lucas announced the creation of a prequel trilogy—starting with Episode I: The Phantom Menace—a few classmates and I camped out for days outside Louisville’s then-brand-new Tinseltown theaters to land tickets to Episode I’s midnight premiere. Both the wait and line were long.
Spoiler: The movie wasn’t worth it.
So when President Trump announced Liberation Day—a sweep of tariffs hitting nearly every worldwide trade partner—my first thought was: Did we just stumble into the Star Wars universe? After all, Episode I literally opens on a galactic trade dispute and a blockade.2
In the galaxy far, far away, the conflict culminates in the Battle of Naboo (and even its own Liberation Day). But on this planet, the fight went to a different (and far more boring) venue: the federal courts. The challengers argued that the President lacked statutory authority to impose these tariffs under the International Emergency Economic Powers Act (IEEPA), the law invoked by the Trump Administration as the basis for the tariffs. If you’re reading this, you know how the movie ends: On February 20, the U.S. Supreme Court held that IEEPA doesn’t authorize the President to impose tariffs.
Later in this post, we’ll walk through the seven separate opinions in Learning Resources, Inc. v. Trump. Together, they run to 170 pages. That’s a lot of reading—about as long as my Episode I line felt.
But you know what isn’t long? Chief Justice Roberts’s opinion for the Court: a brisk 21 pages. Stop and think about that for a moment. In an era when Supreme Court opinions keep expanding, one of the most consequential recent decisions on presidential power needed only some twenty pages to resolve. And don’t mistake brevity for shallowness. The opinion persuasively covers the necessary ground—free of any bloat.3 It showcases why Chief Justice Roberts is one of the Court’s two best writers (the other is Justice Kagan), and it isn’t particularly close.
Judges often remind us that our “briefs” aren’t brief. Guilty as charged; one need only read one of these posts to know that I often write more when less is needed. But many judicial opinions could also lose a page (or several). Extra fat—whether in a brief or an opinion—detracts from clarity.
As Chief Justice Roberts’s opinion shows, longer doesn’t mean better. (So, too, for Episode I.) A good edit serves the reader—and the law.
Feature
For another week, we’re remaining outside the Houston system and docking in the Fifth Circuit sector—where a skirmish over phantom citations drew a sharp rebuke from the Circuit’s Supreme Chancellor.
Fletcher v. Experian Information Solutions, Inc., No. 25-20086 (Elrod, C.J.; Smith, Wilson, JJ): Joining the ever-increasing ranks of courts across the country, the Fifth Circuit recently confronted the problem of AI‑hallucinated quotations and citations in a legal brief. In an opinion from a show-cause order by Chief Judge Elrod, the court sanctioned counsel $2,500 after concluding that she used generative AI “to draft a substantial portion, if not all, of her reply brief”; failed to verify the brief’s hallucinated quotations and citations; and then offered evasive, misleading explanations when the court asked what happened.
Two aspects of the opinion stand out. First, the court reaffirmed that a bespoke rule is unnecessary to govern AI misuse in lawyers’ briefing. Existing tools—Federal Rule of Appellate Procedure 46(c) (allowing courts to discipline attorneys for “conduct unbecoming a member of the bar”) and the court’s inherent authority (allowing the imposition of “sanctions for abuse of the judicial process”)—are enough to address inaccurate filings, as well as an attorney’s misleading behavior when confronted with such errors. The Fifth Circuit even declined last year to adopt a proposed certification rule about AI use, opting instead to remind practitioners that they must review filings for accuracy.
Second, candor matters. The court emphasized that it likely would have imposed lesser sanctions had counsel been forthright about the mistake from the outset. Instead, after the show‑cause order itemized a laundry list of fabricated quotations and other misstatements, counsel blamed “publicly available sources” for the errors—which, as the court showed, was highly unlikely (to put it mildly)—and only later confessed to the use of AI. The court deemed this conduct “evasive, misleading, and sanctionable.”
N.B.: AI can be the apprentice, not the master—“always two there are,” perhaps, but only one owes duties of candor. No different from any other brief, verify every citation before you file. If a blockade of bad text gets through, report it promptly. The bench will “watch your career with great interest,” and it expects accountability.
1910
Hyperdrive off—back to home base. Let’s return to 1910 and the Houston docket.
Orders and Opinions
Below are brief summaries of recent notable orders and opinions from the First and Fourteenth Courts.
1COA
Austin v. Extruded Aluminum Corp., No. 01-24-00435-CV (Rivas-Molloy, Gunn, Caughey, JJ.): Did the district court correctly grant the company’s special appearance for lack of specific personal jurisdiction?
Majority (Gunn, J.): Yes. Although the company purposefully availed itself of Texas by shipping parts to a project, contracting with another company to staff remediation, and sending employees to train and supervise repairs, the suit does not “relate to” those contacts under Texas’s substantial‑connection framework. The operative facts concern the creation and enforcement of a parking‑lot backing policy, which are only distantly connected to the company’s component‑repair activities.
Concurrence (Caughey, J.): Yes. While relatedness is not met on these facts, courts need clarity on what “relate to” means after the U.S. Supreme Court’s Ford opinion—recognizing that due process allows relationships supporting jurisdiction without strict causation, but still imposes “real limits.” Even after Ford, Texas courts continue to apply a “substantial connection” inquiry focused on the operative facts.
Nicandros v. Mourant Ozannes, No. 01-25-01087-CV (Adams, C.J.; Gunn, Johnson, JJ.): Dismissing for lack of appellate jurisdiction, the First Court held that an order recognizing a foreign money judgment under Chapter 36A of the Civil Practice and Remedies Code that doesn’t state with certainty who owes what to whom is not a final, appealable judgment. While foreign-law finality is relevant to recognition, Texas law governs the consequences of recognition, and Texas requires a definite, executable money judgment before appeal or enforcement. Because the order merely “recognizes” the foreign judgment without incorporating its terms or specifying parties and amounts—amid a severance that the order did not address—it lacked the definiteness required.
Bonterra at Cross Creek Ranch Community Association, Inc. v. Laughlin, No. 01-24-00229-CV (Adams, C.J.; Guiney, Morgan, JJ.): Reversing, the First Court compelled arbitration of wrongful‑death and survival claims arising from alleged Legionnaires’ Disease exposure at a community recreation center. The Texas Arbitration Act was inapplicable because the parties’ agreement expressly stated that the Federal Arbitration Act governed. And the arbitration clause—covering “any and all” claims related to the community—was broad enough to encompass tort claims, and because wrongful‑death and survival claims are derivative, the beneficiaries were bound by the decedent’s agreement.
Obaro v. North Woodland Hills Village Community Association, No. 01-24-00525-CV (Rivas-Molloy, Gunn, Caughey, JJ.): Affirming, the First Court upheld a no‑answer default judgment because service on Obaro’s agent—designated in a recorded statutory durable power of attorney—was proper. Section 752.110(5) of the Estate Code empowers an agent granted “claims and litigation” authority to accept service, and neither the statute nor the broad instrument allowed the agent to refuse once the principal conferred that power. The return showed hand‑delivery of the citation and petition to the agent at the listed address, satisfying Rule 106 and due‑process notice, and the agent’s verified statement that he rejected the papers did not invalidate service.
In re Allied Trust Insurance Company, No. 01-25-00989-CV (Adams, C.J.; Gunn, Johnson, JJ.) (orig. proceeding): Denying mandamus, the First Court refused to abate an insured’s suit pending document production and an examination under oath (EUO). Disputed fact issues about document compliance and an unresolved dispute over the EUO’s format (in‑person vs. Zoom, length, attendance) had not been addressed by the trial court. Because abatement would be premature absent those rulings, mandamus relief was inappropriate.
Turner Specialty Services, L.L.C. v. Horn, No. 01-24-00097-CV (Rivas-Molloy, Guiney, Morgan, JJ.): Reversing, the First Court compelled arbitration of survivors’ gross‑negligence claims under a Dispute Resolution Agreement signed by the decedent employee. Exemplary‑damages claims under Article XVI, Section 26 of the Texas Constitution and Section 408.001(b) of the Labor Code are asserted through—and remain derivative of—the Wrongful Death Act. As a result, nonsignatory beneficiaries stand in the decedent’s shoes and must arbitrate. The court rejected the survivors’ arguments that there are independent, non‑derivative causes of action for exemplary damages outside the Act. Nor did the defendant substantially invoke the judicial process: Filing a jurisdictional motion like a special appearance didn’t waive the right to arbitrate, and the defendant’s discovery conduct was limited and largely defensive.
City of Dickinson v. Crystal Cruise Investments, LLC, No. 01-24-00684-CV (Rivas-Molloy, Guiney, Morgan, JJ.): Reversing, the First Court upheld the City of Dickinson’s vacation‑rental specific‑use‑permit ordinance against due‑course, equal‑protection challenges, and ultra-vires challenges and rendered judgment for the City on those claims. There is no vested right to use property for short‑term rentals, and the ordinance rationally advances health, safety, and neighborhood character through case‑by‑case permitting and reasonable conditions. The City’s different treatment of rentals of 30 days or less was rational given legislative distinctions and record evidence of traffic, parking, and noise impacts.
Conover v. Conover, No. 01-24-00471-CV (Rivas-Molloy, Guiney, Morgan, JJ.): Affirming summary judgment in favor of an estate’s coexecutors, the First Court held the granddaughters’ fiduciary‑duty and fraud claims were barred by limitations because, as “persons interested” in their father’s estate, they had constructive notice of the public probate record and thus could have discovered the alleged injury with reasonable diligence. Contrary evidence can’t overcome this irrebutable presumption. The court rejected application of the discovery rule and fraudulent‑concealment tolling, emphasizing that probate records disclosed key facts (estate value, asset valuations, distribution schedule) and that any tolling based on fraudulent concealment ceased no later than 2015, making the 2021 suit untimely. Because limitations was dispositive, the court did not reach the appeal’s remaining merits issues.
Oncor Electric Delivery Co. LLC v. Ramirez, No. 01-24-00088-CV (Adams, C.J.; Rivas-Molloy, Caughey, JJ.): In a permissive appeal, the First Court affirmed the denial of Oncor’s summary‑judgment motion on its affirmative defense under Chapter 752 of the Health and Safety Code, holding Oncor did not conclusively establish that the decedent employee was a “person responsible” for work or activity near a high‑voltage line. Chapter 752 applies to persons or entities “responsible” for temporary work, activity, or function near a line. But here, the record created fact issues on the employee’s responsibility, including whether the employee—acting as a pumper who reported a brushfire—had authority to negotiate safety arrangements or bind his employer to pay de‑energizing costs, as the statute contemplates.
14COA
Meitec, Inc. v. Primoris Services Corp., No. 14-24-00704-CV (Wilson, Hart, McLaughlin, JJ.): Affirming in part and reversing in part, the Fourteenth Court revived Meitec’s claims for breach of written contract, suit on sworn account, quantum meruit, and breach of an oral contract. Primoris’s hybrid summary‑judgment motions did not conclusively negate those theories, as Meitec raised fact issues on the elements of offer, acceptance, and consideration. But the court affirmed summary judgment against Meitec’s veil‑piercing declaratory claim, noting that Section 21.223 pf the Business Organizations Code requires “actual fraud” to impose alter‑ego liability, which Meitec did not show.
Hart v. San Jacinto River Authority, No. 14-24-00786-CV (Jewell, McLaughlin, Antú, JJ.): Is appellants’ timely, unverified motion to reinstate a timely filed postjudgment motion under Rule 30, foreclosing restricted-appeal review?
Majority (Antú, J.): Yes. Texas Rule of Appellate 30 asks only whether a postjudgment motion was timely filed—not whether it satisfied verification or other procedural requirements. While Texas Rule of Civil Procedure 165a “expressly requires verification for a motion to reinstate, that requirement does not control whether the filing constitutes a postjudgment motion for purposes of Rule 30 because nothing in Rule 30 requires that a postjudgment motion be verified.” As a result, a timely unverified motion to reinstate forecloses restricted‑appeal review. Here, because appellants timely filed a reinstatement motion—albeit unverified—but did not timely perfect an ordinary appeal, the court lacked jurisdiction.
Concurrence (Jewell, J.): Yes. But the Supreme Court of Texas should reconsider its prior precedent to hold that a timely unverified reinstatement motion extends ordinary‑appeal deadlines, thereby aligning the treatment of other postjudgment motions and reducing harsh forfeitures.
City of Houston v. Ezzeddine, No. 14-24-00907-CV (Christopher, C.J.; Wilson, Bridges, JJ.): Reversing and rendering, the Fourteenth Court dismissed a Texas Tort Claims Act suit over a collision at an intersection with inoperative signals because the pleadings did not allege facts showing a waiver under Section 101.060(a)(2) of the Civil Practice and Remedies Code. The plaintiffs pleaded only that the City placed temporary signage—but they alleged no facts about what the signs conveyed or why they were inadequate. As a result, their conclusory assertions could not survive Rule 91a.
Memorial Hermann Health System v. Doe, No. 14-25-00038-CV (Wilson, Hart, McLaughlin, JJ.): Did the trial court correctly deny Memorial Hermann’s motion to dismiss under the Texas Medical Liability Act based on the adequacy of the expert report?
Majority (McLaughlin, J.): No. Reversing and rendering, the Fourteenth Court held that the amended expert report did not satisfy Section 74.351 because, although it recited numerous standards and “never event” concepts, it failed to specify what Memorial Hermann should have done differently—i.e., the concrete breach—so it didn’t provide a fair summary that both informs the provider of the conduct at issue and permits the trial court to conclude the claim has merit. The court further rejected the claimant’s request for remand for additional discovery, noting that he had already used the one 30‑day extension under the statute.
Concurrence (Wilson, J.): No and no. While the report thoroughly described standards of care for preventing sexual abuse, it didn’t identify any nonconclusory reasons how Memorial Hermann breached those standards. Even though pre-report discovery is limited, the expert could have at least interviewed the claimant “to determine what the hospital did and did not do in advance of and after the assault.”
Aguirre v. State, No. 14-25-00214-CR (Christopher, C.J.; Wilson, Bridges, JJ.): Reversing and remanding for a new trial, the Fourteenth Court held that the trial judge’s voir dire remark suggesting the State’s burden could be met at “60 percent” improperly quantified reasonable doubt and lessened the burden of proof. The defendant did not forfeit this complaint by failing to object: Although the error could be waived, it couldn’t be forfeited through mere inaction. Though not structural error, the error wasn’t harmless beyond a reasonable doubt given its potential to influence jurors on a fundamental standard.
In re Grayson Mill Operating, LLC, No. 14-25-00645-CV (Wilson, Hart, McLaughlin, JJ.): Are relators entitled to mandamus relief from the trial court’s denial of forum non conveniens dismissal?
Majority (Wilson, J.): Yes. The Texas‑resident exception in Section 71.051(e) of the Civil Practice and Remedies Code doesn’t apply because it can’t be triggered by residency acquired after the accident or after suit is filed. On the statutory factors, an adequate alternate forum exists in North Dakota; key witnesses, physical evidence, and a related suit are centered there; and both public and private interests predominate in favor of a North Dakota forum. As a result, dismissal is warranted under Section 71.051(b).
Concurrence (McLaughlin, J.): Yes. The statute’s text does not specify a post‑filing residency test, and courts may not add such language. The result makes sense: Determining residency after the incident or after filing suit invites “mischief.”
Arguments
On to arguments, and it’s a short, Yoda-sized list: one at the First Court and one at the Fourteenth.
1COA
Asset Risk Management, LLC v. Comal Energy Services, LP, No. 01-24-00277-CV (Guerra, Caughey, Dokupil, JJ.): Among other issues, did the trial court err in declining to submit a borrowed-employee jury instruction and in otherwise failing to apply the economic-loss rule to a negligent-misrepresentation claim?
Appellant: Mia Lorick (Troutman Pepper Locke)
Appellee: Robert Dubose (Alexander Dubose Jefferson)
Argument: March 2 at 11:30 am
14COA
Howard v. State, Nos. 14-24-00283-CR, 14-24-00284-CR, 14-24-00285-CR (Christopher, C.J.; Hart, Antú, JJ.): Did the trial court engage in judicial vindictiveness, rendering the defendant’s punishment agreement involuntary?
Appellant: Mark Hochglaube (Hochglaube & DeBorde)
Appellee: Chris Conrad (Harris County District Attorney’s Office)
Argument: March 3 at 2 pm
& Beyond
Let’s reengage the hyperdrive and chart a course for the Outer Rim: & Beyond.
SCOTUS
It’s been a busy two weeks at the Supreme Court of the United States—and not just based on the Court’s ordinary work. The Court amended two of its internal rules: First, filings must include comprehensive lists not only of all litigants, but also their stock ticker symbols so the Court’s new conflict‑checking software can run automated recusal checks. And second, electronic filing now counts as timely if the required paper copies are delivered or mailed within three days—replacing the prior rule that only paper filings were timely. (This latter amendment is especially welcome news to practitioners, who won’t be at the mercy of printing presses to finish their briefs well before deadline.)
Opinions
“Begun . . . the regular handdown of merit opinions . . . has.”4 We begin with the Court’s opinion reviewing the legality of the most comprehensive tariff regime in modern American history.
Learning Resources, Inc. v. Trump, No. 24-808 (D.C. Circuit): Does the International Emergency Economic Powers Act (IEEPA) authorize the President to impose tariffs during peacetime emergencies?
Majority & Plurality (Roberts, C.J., joined in full by Gorsuch, Barrett, JJ., and as to all but Parts II-A-2 and III by Sotomayor, Kagan, Jackson, JJ.): No. The Government concedes the President enjoys no general authority to impose tariffs during peacetime, and so authority to do so must have been delegated by Congress. But the major-questions doctrine requires Congressional delegation of its core powers—including its power to tax—to be explicit, and IEEPA does not include any language evincing the “clear and limited delegations” that has characterized Congress’s delegation of these powers in the past. And IEEPA’s reference to “regulat[ing] . . . importation” cannot support a finding of delegation, because the term “regulate” does not include the power to tax and tariffs are “different in kind, not degree,” from other executive actions such as embargos and quotas.
Concurrence (Gorsuch, J.): No. And here’s over 45 pages on why everyone but me (and Chief Justice Roberts) is either wrong or inconsistent in their application of the major-questions doctrine.5
Concurrence (Barrett, J.): No. And no, Justice Gorsuch, my view of the major-questions doctrine is neither wrong nor inconsistent. The doctrine isn’t a “strong-form substantive canon”—one that puts a thumb on the interpretive scale—but simply an “ordinary application of textualism.”
Concurrence in Part and in Judgment (Kagan, J., joined by Sotomayor, Jackson, JJ.): No, but there’s no need to apply the major-questions doctrine—which, by the way, I’ve never embraced. We need only apply the “ordinary tools of statutory interpretation” to reach the proper result here. The key phrase purportedly authorizing imposing tariffs—“regulating . . . importation” of foreign goods—says nothing about tariffs, and the meaning of regulate doesn’t encompass taxing.
Concurrence in Part and in Judgment (Jackson, J.): No, and IEEPA’s legislative history adds yet more support.
Dissent (Thomas, J.): Yes. Beyond Justice Kavanaugh’s correct dissent, IEEPA “is consistent with the separation of powers as an original matter.” Congress is constitutionally prohibited from delegating only its “core legislative power, which is the power to make substantive rules setting the conditions for deprivations of life, liberty, or property.” Because the delegation contemplated by IEEPA (the power to impose duties) is not of Congress’s “core legislative power,” the delegation was constitutionally permissible.
Dissent (Kavanaugh, J., joined by Thomas, Alito, JJ.): Yes. Congress has repeatedly authorized the President to use tariffs in regulating imports, along with other more putative measures such as embargoes and import quotas, so the delegation under IEEPA accords with historical practice and does not vitiate separation of powers principles. Context and common sense reinforces this textual reading, as IEEPA permits the President to take more expansive actions, such as cancelling imports altogether and does not “draw . . . an odd distinction between quotas and embargoes on the one hand and tariffs on the other.” Furthermore, “regulating imports” was understood at the time of IEEPA’s passing to include promulgating tariffs, as evidenced by President Nixon’s levying tariffs under IEEPA’s predecessor statute. And the major-questions doctrine does not alter this conclusion: Presidents have commonly imposed tariffs as a way to regulate imports, and at any rate the major-questions doctrine doesn’t apply in the foreign-affairs context.
Geo Group, Inc. v. Monocal, No. 24-758 (Tenth Circuit): May a federal contractor take an immediate appeal of a district court’s order denying the contractor protection from liability provided by Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940)?
Majority (Kagan, J., joined in full by Roberts, C.J.; Sotomayor, Gorsuch, Kavanaugh, Barrett, Jackson, JJ.; joined as to Parts I and III by Thomas, J.): No. The collateral-order doctrine permits appeal of interlocutory orders only where the order is effectively unreviewable on appeal. Yearsley protection is a defense from liability rather than immunity from suit because, unlike immunity, application of the protection turns on whether the defendant violated the statute. Because such determination can be properly reviewed in the ordinary appellate course without improperly subjecting the defendant to trial, an immediate appeal of this determination is improper.
Concurrence in Part and in Judgment (Thomas, J.): No, but because the collateral-order doctrine conflicts with Congress’s authority over federal jurisdiction. So we shouldn’t further expand it.
Concurrence in Judgment (Alito, J.): No, but the Court errs in its analysis of the issue by focusing on the defendant’s conduct’s illegality. Instead, consideration of the collateral-order doctrine properly turns on whether an interlocutory appeal “is necessary to vindicate important constitutional or public-policy interests.” Because an immediate appeal from a denial of Yearsley protection fails both of these elements, the collateral-order doctrine does not apply.
Hain Celestial Group, Inc. v. Palmquist, No. 24-440 (Fifth Circuit):6 Does a district court’s erroneous dismissal of a nondiverse party before final judgment cure a jurisdictional defect (lack of complete diversity) that existed when the suit was removed to federal court?
Majority (Sotomayor, J., for unanimous Court): No. Unlike cases where a court’s action before final judgment “cured” a jurisdictional defect that existed at filing, the decision to dismiss a nondiverse party “lingers” throughout the case proceedings because the original jurisdictional defect may be revived if the dismissal order is reversed on appeal. Neither concerns about finality and efficiency nor the ability of a federal court to “add or drop a party” “on just terms” as permitted by Federal Rule of Civil Procedure 21 alters this conclusion because of the constitutionally limited nature of federal courts’ jurisdiction.
Concurrence (Thomas, J.): No, and the doctrine of improper joinder impermissibly requires courts to consider a suit’s merits before determining jurisdiction. Because this doctrine “appears unfaithful to Congress’s limits on . . . diversity jurisdiction and inconsistent with” Supreme Court precedent, the doctrine should be revisited in an appropriate case.
U.S. Postal Service v. Konan, No. 24-351 (Fifth Circuit):7 Does the United States retain sovereign immunity against claims for damages based on postal workers’ intentional failure to deliver mail?
Majority (Thomas, J., joined by Roberts, C.J.; and Alito, Kavanaugh, and Barrett, JJ.): Yes. The Federal Tort Claims Act permits the federal government to retain sovereign immunity for all claims “arising out of the loss, miscarriage, or negligent transmission of letters or postal matter,” and the first two harms (“loss” and “miscarriage”) can occur as the result of intentional acts. The potential surplusage created by expansive interpretations of “loss” and “miscarriage” cannot overcome the terms’ ordinary meaning or with the ascribed congressional intent of “keep[ing] complaints about mail delivery out of court.”
Dissent (Sotomayor, J., joined by Kagan, Gorsuch, and Jackson, JJ.): No. The majority’s conclusion focuses on “harms” rather than government misconduct, but that analysis is inconsistent with the Federal Tort Claims Act. And the contentions that “loss” and “miscarriage” signify intentional acts is inconsistent with those phrases’ ordinary meaning and result in a statutory scheme that does not accord with congressional intent.
Villarreal v. Texas, No. 24-557 (Texas Court of Criminal Appeals): Does a trial court order limiting what a criminal defendant might discuss with counsel during an overnight recess while the defendant is testifying violate the Sixth Amendment?
Majority (Jackson, J., joined by Roberts, C.J.; Alito, Sotomayor, Kagan, Kavanaugh, Barrett, JJ.): No. A criminal defendant’s right to converse with counsel is ordinarily absolute, but the contours of that right changes when the defendant testifies. Because an overnight recess is long enough to suggest defendants and their counsel may discuss topics other than the defendant’s pending testimony, a blanket prohibition on communications during recess may be impermissible, but the trial court’s prohibition on discussions that would “manag[e]” the defendant’s testimony was properly limited.
Concurrence (Alito, J.): No. Breaks in proceedings “should not fundamentally alter the rule that [a] defendant must testify without coaching by counsel,” regardless of their length. Overnight delays change this analysis somewhat because of the possible need for communications unrelated to the defendant’s testimony, but the general rule against “improving or shaping the defendant’s ongoing testimony” should hold.
Concurrence in Judgment (Thomas, J., joined by Gorsuch, J.): No. Because a criminal defendant has no right to discuss his ongoing testimony, the trial court’s order prohibiting discussions about such testimony was proper. But the majority opinion improperly opines on hypothetical situations and expands the Court’s precedents on these issues by purporting to announce a rule that a defendant has a right to testimony that is incidental to other, permissible topics.
Orders
In addition to its usual list of denials, the Court granted certiorari in one case:
Suncor Energy, Inc. v. County Commissioners of Boulder County, No. 25-170 (Supreme Court of Colorado): Does federal law preclude state-law claims seeking relief for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate? And does the Supreme Court have statutory and Article III jurisdiction to resolve the dispute?
The Court also granted two motions from the Solicitor General for leave to participate in oral argument:
Keathley v. Buddy Ayers Construction, Inc., No. 25-006 (Fifth Circuit):8 Does the doctrine of judicial estoppel bar a plaintiff who fails to disclose a civil claim in bankruptcy filings from pursuing that claim irrespective of any evidence of bad faith where there is a potential motive for non-disclosure?
Montgomery v. Caribe Transport II, LLC, No. 24-1238 (Seventh Circuit): Does the Federal Aviation Administration Authorization Act preempt state-law claims for negligently selecting a motor carrier or driver?
Finally, Justice Sotomayor authored in an opinion respecting the denial of a stay of execution.
Trotter v. Florida, No. 25-6853 (25A926) (Supreme Court of Florida): Is a stay of execution warranted when the petitioner’s sole challenge is that the State is likely to maladminister the execution protocol in a way that violates the Eight Amendment?
Order (per curiam): No.
Statement Respecting Denial (Sotomayor, J.): A denial is proper based on the lack of evidentiary support. But “[t]he record reflects at least the possibility that recent Florida executions have involved” acts that could deprive a future party of its Eighth Amendment rights. Florida’s continued acts of “shroud[ing] its executions in secrecy” leads to undermining both the integrity of its own execution process and the Supreme Court’s ability to ensure the State complies with the Eighth Amendment.
Arguments
Like the First and Fourteenth Courts, the Supreme Court has a short argument week.
March 2
United States v. Hemani, No. 24-1234 (Third Circuit): Does the federal statute prohibiting the possession of firearms by a person who “is an unlawful user of or addicted to any controlled substance” violate the Second Amendment as applied to the respondent?
March 3
Hunter v. United States, No. 24-1063 (Fifth Circuit):9 Are the only permissible exceptions to a general appeal waiver for claims of ineffective assistance of counsel or that the sentence exceeds the statutory maximum? And does an appeal waiver apply when the sentencing judge advises the defendant that he has a right to appeal and the Government does not object?
March 4
Montgomery v. Caribe Transport II, LLC, No. 24-1238 (Seventh Circuit): Does the Federal Aviation Administration Authorization Act preempt state-law claims for negligently selecting a motor carrier or driver?
All oral arguments can be livestreamed here.
SCOTX
Quieter in this sector: the Supreme Court of Texas logged only a concurrence on a denial of rehearing, then powers up for eight arguments beginning March 3.
Orders
As usual, the Court’s customary Friday orders lists were dominated by denials of petitions for review and for writs of mandamus. But Chief Justice Blacklock authored a short concurrence from the denial of a motion for reearing:
Umphress v. Steel, No. 25-0288 (certification from Fifth Circuit): Treating a “Motion for Clarification” as a motion for rehearing, should the Court reconsider its conclusion that Canon 4A(1) of the Texas Code of Judicial Conduct does not prohibit judges from refusing, for moral or religious reasons, to perform same-sex weddings while continuing to perform opposite-sex weddings?
Order (per curiam): No.
Concurrence (Blacklock, C.J.): No. “There is no clearer answer than ‘no.’ . . . The Court’s one-word answer to the certified question (yes, the entire certified question) is as far from needing clarification as it is possible for any answer to be.”
Arguments
After (presumably) celebrating Texas Independence Day, the Supreme Court returns with a bevy of oral arguments beginning March 3.
March 3
MV Transportation, Inc. v. GDS Transport, LLC, No. 24-924 (Fifth Court): Under Section 452.056(d) of the Transportation Code, is an independent contactor of a regional transit authority liable for damages arising from acts that would have been covered by governmental immunity or that were the covered by contract?
Petitioner: Stacy Obenhaus (Foley & Lardner)
Respondent: Julia Pendery (Cowles & Thompson)
Fasken Oil & Ranch, Ltd. v. Puig, No. 24-1033 (Fourth Court): Does a phrase in a royalty agreement providing for payment “free of costs forever” constitute an agreement that royalty payments are free from postproduction costs as a matter of law?
Petitioner: Douglas Alexander (Alexander Dubose & Jefferson)
Respondent: Charles “Skip” Watson (Greenberg Traurig)
River Creek Development Corporation v. Preston Hollow Capital, LLC, No. 24-1070 (Third Court): Are certain public financing instruments void because they were not submitted to the Attorney General for approval under Chapter 431 of the Transportation Code or because they do not comply with the Public Improvement District Act, and did the court err in admitting evidence in support of summary judgment and abuse its discretion in awarding fees?
Petitioner: George Hyde (Hyde Kelley).
Respondent: David Coale (Lynn Pinker Hurst & Schwegmann)
March 4
Gopalan v. Marsh, No. 25-161 (Third Court): In a suit affecting the parent-child relationship, is a parent’s right to exclusively determine the child’s “primary residence” accompanied with a right to at least 50% custodial possession?
Petitioner: Stephen Orsinger (Law Office of Stephen M. Orsinger) and Richard Orsinger (Orsinger, Nelson, Downing & Anderson).
Respondent: Audrey Blair (Law Office of Audrey J. Blair).
Champion Food Service, Inc. v. ProAlamo Foods, L.L.C., No. 25-297 (Fourth Court): May the jury be charged with, and may a party subsequently recover damages on, a claim for quantum meruit when a valid agreement governs the parties’ obligations? And does a trial court err by awarding attorneys’ fees when a jury verdict returns $0 as a fee award?
Petitioner: Santos Vargas (Davis & Santos)
Respondent: Kevin Terrazas (Arambula Terrazas)
In re Home Depot U.S.A., Inc., No. 25-0317 (Fourteenth Court):10 In this original proceeding, does a shipper who hires a commercial carrier owe duties to a third-party motorist injured by the carrier’s driver?
Relator: Michael Eady (Thompson, Coe, Cousins & Irons)
Real Party in Interest: Daryl Moore (Ahmad, Zavitsanos & Mensing)
March 5
Texas General Land Office v. SaveRGV, No. 24-237, consolidated with Cameron County v. SaveRGV, No. 24-407, & Paxton v. SaveRGV, No. 24-457 (Thirteenth Court): Does a citizens group have standing to bring claims challenging the constitutionality of a statute ordering the closure of public beaches?
Petitioners: Beth Klusmann (Office of Texas Attorney General) and James P. Allison (Allison, Bass & Magee).
Respondent: Marisa Perales (Perales, Allmon & Ice)
Texas v. City of McAllen, No. 24-1060 (Third Court): Are SB 1004 (which authorizes wireless network providers to install network nodes in public rights-of-way) and SB 1152 (which requires telecommunications and cable services providers to pay cities a single charge for using public rights-of-way to deliver both services) unconstitutional under the Texas Constitution’s Gift Clauses?11
Petitioner: William R. Peterson (Office of Texas Attorney General)
Respondent: Robert Heath (Bickerstaff Heath Delgado Acosta)
CA5
Time to enter the Fifth Circuit’s orbit, headquartered in New Orleans, a city whose late‑night bars could give Mos Eisley’s cantina a run for “hive‑of‑scum‑and‑villainy” ambiance—minus the blasters.
Opinions
Trader Joe’s Co. v. NLRB, No. 24-60367 (Dennis, Oldham, Douglas, JJ.): Does substantial evidence support the National Labor Relations Board’s findings that Trader Joe’s violated the NLRA?
Majority (Douglas, J., joined by Dennis, J.): Yes. Applying the Wright Line framework, substantial evidence supports the Board’s findings that Trader Joe’s unlawfully issued a written warning and then suspended and terminated an employee for protected concerted activity. The court declined to reach the challenge to the Board’s Thryv make‑whole remedy because the objection was not preserved before the Board under Section 10(e) of the NLRA.
Dissent (Oldham, J.): No. For starters, “[t]he Wright Line test is flawed to its core” and should be abrogated. In any event, the record shows the employee’s discipline for abusive and unsafe conduct rather than for protected activity. Finally, the Board’s remedial authority does not extend to Thryv‑style compensatory damages—an issue that is properly before the court under Section 10(e).
Roake v. Brumley, No. 24-30706 (en banc): Did the district court improperly enter a preliminary injunction based on a facial challenge to Louisiana H.B. 71, which mandates Ten Commandments displays in every public‑school classroom?
Majority (per curiam): Yes, because the facial challenge is not ripe for review. Ripeness requires facts that permit evaluation of “how the text is used,” and here many implementation details remain unresolved. The statute’s constitutionality turns on classroom‑specific context that does not yet exist, under the statute’s delegation to local school boards. But nothing forecloses future as‑applied challenges once concrete records develop.
Concurrence in the Judgment (Ho, J.): Yes, but on the merits. Stone v. Graham is no longer binding, given superseding Supreme Court precedent in Kennedy v. Bremerton School District. As a matter of first principles, passive displays are not coercive. To the contrary, the law “reinforces our Founders’ firm belief that the children of America should be educated about the religious foundations and traditions of our country.”
Dissent (Dennis, J., joined by Graves, Higginson, Douglas, Ramirez, JJ.): No. Stone directly prohibits classroom postings of the Ten Commandments under the Establishment Clause. And although Kennedy abrogates the endorsement test, it didn’t “revisit the secular-purpose requirement, the analysis of primary effects, or the concern with excessive entanglement,” all of which remain binding.
Dissent (Haynes, J.): No. The case is ripe because the statute itself compels classroom postings with specified content and formatting, and the preliminary injunction is proper for the reasons stated in the panel opinion. This result is required “not based on what I think of the Ten Commandments but following the Constitution as the Supreme Court has explained.”
Dissent (Higginson, J., joined by Dennis, Graves, Douglas, Ramirez, JJ.): No. Choosing a particular scriptural version of the Ten Commandments for compulsory classroom display creates denominational preferences that contravene longstanding school‑Establishment Clause jurisprudence. The law “risks pitting religions against each other—an evil the Framers sought to protect against when they wrote into the original Constitution the No Religious Test Clause disestablishment imperative.”
Dissent (Ramirez, J., joined by Stewart, Dennis, Graves, Higginson, Douglas, JJ.): No. The challenge is ripe for review because H.B. 71 fixes the “when, where, and what” of the displays, so no further facts are needed to adjudicate the challengers’ facial claims. And given the public-school context, denying the challengers prompt judicial review would impose a substantial hardship—forcing them to decide between sending children to public school despite the First Amendment burden, incurring the cost of sending children to private school, or avoiding school and risking violation of state law. For the reasons stated in the panel opinion, the injunction was proper.
Farmers Texas County Mutual Insurance Co. v. 1st Choice Accident & Injury, L.L.C., No. 24-20275 (Smith, Richman, JJ.)12: Affirming the district court’s judgment, the Fifth Circuit upheld the court’s post‑judgment denial of leave to amend a civil RICO complaint, concluding there were “ample and obvious” grounds—chiefly undue delay—even if the court referenced Federal Rule of Civil Procedure 59(e) rather than applying Rule 15(a) by name. Farmers stood on the sufficiency of its amended complaint for months, despite repeated notice of defects in pleading an association‑in‑fact enterprise and sought leave only after dismissal. Nor did Farmers provide any explanation for its delay, or dispute the fact that it could have asserted its additional allegations earlier.
Houston Prime Investments, Ltd. v. Community Loan Servicing, L.L.C., No. 24-20171 (Smith, Richman, JJ.) (per curiam): Affirming a permanent injunction, the Fifth Circuit held that a judicial‑foreclosure claim was time‑barred because the lien became void four years later under Section 16.035(d) of the Texas Civil Practice & Remedies Code. Section 16.069’s counterclaim rule cannot resurrect a void lien, and so it cannot revive a time-barred foreclosure claim on a lien that no longer exists.
Bradford v. Sovereign Pest Control of TX, Inc., No. 24-20379 (Elrod, C.J.; Clement, Haynes, JJ.): Affirming summary judgment for the company, the Fifth Circuit held the Telephone Consumer Protection Act’s text requires only “prior express consent”—oral or written—for prerecorded calls to cell phones. The plaintiff here gave prior express consent: He provided his mobile number in the service agreement, acknowledged the company could contact him, scheduled the renewal‑inspection calls, and renewed four times.
Kealani Distribution, L.L.C. v. FDA, No. 25-40135 (Jones, Engelhardt, JJ.; Summerhays, J., sitting by designation): Affirming the district court’s judgment, the Fifth Circuit upheld a final rule setting forth requirements for premarket tobacco product applications against a Regulatory Flexibility Act challenge brought by small e‑liquid manufacturers and a trade association. The 2016 Deeming Rule’s compliance‑cost analysis supplies a sufficient factual basis for the FDA’s 2021 certification that the final rule will not significantly affect a substantial number of small entities. And both rules also consider meaningful alternatives and reasonably explain why those options weren’t adopted.
Orders
En banc work at the Fifth Circuit has picked up again. The full Court agreed to rehear Sterling v. City of Jackson, Mississippi, No. 24-60370.13 In that case, a divided panel held that the plaintiffs had sufficiently stated a substantive due process claim based on allegations that the City knowingly supplied lead-contaminated water and misled residents about its safety.
Meanwhile, the Court denied en banc petitions in three cases:
Ramirez v. Granado, No. 24-10755 (en banc): Denying, by a 9–8 vote, rehearing en banc in a qualified-immunity case on excessive force.
Grant (8): Jones, Smith, Richman, Ho, Duncan, Englehardt, Oldham, Wilson, JJ.
Deny (9): Elrod, C.J.; Stewart, Southwick, Haynes, Graves, Higginson, Willett, Douglas, Ramirez, JJ.
Dissent (Ho, J., joined by Jones, Smith, JJ.): “Instability remains the state of the law in our circuit when it comes to excessive force. This instability is not just regrettable as a matter of law— it’s dangerous for the police officers and civilians of our circuit.”
Dissent (Oldham, J., joined by Jones, Smith, Duncan, Engelhardt, JJ.): “Our court apparently determined that this qualified-immunity appeal is too fact-bound to warrant en banc rehearing. If qualified immunity must be denied when a man jumps out of a car holding a gun after a high-speed chase and a drive-by shooting, query how qualified immunity ever could be granted.”
Perez v. City of San Antonio, No. 23-50746 (en banc): Denying, by a 6–11 vote, rehearing en banc in a suit alleging that San Antonio’s park project substantially burdens Native American religious exercise at a sacred site.
Grant (6): Elrod, C.J.; Smith, Higginson, Willett, Ho, Oldham, JJ.
Deny (11): Jones, Stewart, Richman, Southwick, Haynes, Graves, Duncan, Engelhardt, Wilson, Douglas, Ramirez, JJ.
Dissent (Ho, J.): Noting his “profound agreement” with the Oldham dissent.
Dissent (Oldham, J., joined by Elrod, C.J.; Smith, Higginson, Willett, Ho, JJ.): Among other things, the panel’s misguided substantial-burden approach particularly threatens minority faiths.
Voice of the Experienced v. LeBlanc, No. 25-30478 (en banc): Denying, by a 6–11 vote, rehearing en banc in a case concerning Prisoner Litigation Reform Act‑governed preliminary injunctions addressing Louisiana’s “farm‑line” work during summer heat.
Grant (6): Jones, Smith, Ho, Duncan, Engelhardt, Oldham, JJ.
Deny (11): Elrod, C.J.; Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Wilson, Douglas, Ramirez, JJ.
Dissent (Jones, J., joined by Smith, Ho, Duncan, Oldham, JJ.): The en banc Court should “forcefully rebuke the district court’s gamesmanship that avoided the requirements of law.” To avoid the PLRA’s mandate that all preliminary injunctions expire after 90 days if not made permanent, the district court simply entered serial preliminary injunctions. These circumstances qualify for the “capable of repetition, yet evading review” exception.
Concurrence (Higginson, J., joined by Stewart, Graves, Douglas, JJ.): “It is a disservice to our branch for any inferior officer to speak of ‘rebuk[ing]’ or ‘policing’ another. In that spirit, we would all do well to remember our late colleague Judge Reavley’s kind and gentle reminder that ‘[t]he trial judge is the key to the administration of justice. . . . [I]t is a function of the circuit judge to be an enabler of the trial judge, because the trial court is the point of delivery of justice.’”
Dissent (Ho, J.): First, “I join [Judge Jones’s] call to arms on the need for appellate courts to police insubordination in the district courts.” Second, a suggestion of mootness is not a reason to deny en banc review.
Statement Respecting Denial (Wilson, J.):14 Although Judge Jones is rightly concerned about the district court’s serial preliminary relief under the PLRA, this case is a poor vehicle for en banc review given intervening developments—including a recent bench trial on the claims for permanent injunctive relief.
Arguments
The Fifth Circuit begins its March session on March 2, with a full complement of panels sitting throughout the week. The Court also will be engaging in some “roadshows,” with panels traveling from the John Minor Wisdom Courthouse to sit at Tulane University, the University of Houston, and the Houston federal courthouse.
As I mentioned in my last post, the Southern District of Texas Chapter of the Federal Bar Association and the Garland R. Walker Inn of Court are hosting a (sold out) CLE program around the March 4 sitting at the Houston federal courthouse. I’m looking forward to moderating a post-argument discussion on appellate advocacy with Nelson Ebaugh, which will feature a discussion with the three judges on the panel.
15COA
Our last stop is the Fifteenth Court of Appeals, where jurisdiction stretches across the map.
Opinions
In re Jackson, No. 15-25-00235-CV (Brister, C.J.; Field; Farris, JJ.): In an original proceeding challenging the denial of a Rule 91a motion, is temporary relief warranted staying proceedings based on the attorney-immunity doctrine?
Majority (per curiam): Yes, but only as to the proceedings involving the general-counsel defendant. Applying the Rule 52.10 factors, the court preliminarily concluded that the plaintiff’s tortious‑interference claim against the general counsel is likely barred by attorney immunity because the alleged conduct (termination of an employment contract) constitutes legal services performed in an adversarial context—or, if unrelated to the termination, would not support the only pleaded claim. The court also weighed the risk of extensive privilege disputes and found no material prejudice from requiring the plaintiff to press his claim solely against the company and its owner.
Dissent (Farris, J.): No. The petition doesn’t show a likelihood of success because the pleadings—construed at this preliminary stage—describe conduct more akin to business advising than legal services, which doesn’t fall under the attorney-immunity doctrine.
In re Fort Bend County, Nos. 15-25-00102-CV & 15-25-00061-CV (Brister, C.J.; Field, Farris, JJ.) (orig. proceeding): Conditionally granting mandamus and rendering judgment of dismissal, the Fifteenth Court held the district court lacked jurisdiction in the first instance to enjoin an ALJ’s discovery subpoena in a workers’‑compensation compensability case. The Division of Workers’ Compensation has exclusive jurisdiction over matters related to a contested-case hearing, including discovery disputes. The claimant must exhaust those administrative remedies through the chosen administrative path, rather than filing a parallel suit in district court.
State of Texas v. Harris County, No. 15-25-00231-CV (Brister, C.J.; Field, Farris, JJ.) (order) (per curiam): Denying temporary relief, the Fifteenth Court15 concluded that a stay was unwarranted on the State’s motion “to prevent Harris County from funding, or referring persons to, a program that reimburses legal counsel for representing indigent persons facing deportation.” Although the Attorney General had authority to bring the suit, the State likely had not shown a violation of the Texas Constitution’s Gift Clause because the program appears non‑gratuitous, serves a legitimate public purpose, and is subject to government contractual controls and auditing. Nor had the State shown any proof of “any actual harm to residents of Harris County or the state.”
Argument
Finally, the Fifteenth Court has two arguments scheduled for March 12 at 2 pm:
Public Utility Commission of Texas v. City of Denton, No. 15-25-00018-CV: Among other issues, does substantial evidence support the Commission’s final order setting the City’s wholesale transmission rates?
Appellant: Jordan Pratt (Office of Texas Attorney General)
Appellee: Jose de la Fuente (Lloyd Gosselink Rochelle & Townsend)
In re Powered by People, No. 15-25-00140-CV: Among other issues, is a temporary restraining order barring Powered by People from engaging in certain political-fundraising activities an unconstitutional prior restraint on speech—and are certain portions of the dispute moot?
Relators: Joaquin Gonzalez (Marziani, Stevens & Gonzalez)
Real Parties in Interest: Abigail Smith (Office of Texas Attorney General)
Red Light
Cue John Williams and the closing parade: Our journey at lightspeed across the galaxy has come to an end.
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.
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Until next time, have a great week—and may the Force be with you.
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.16
In hindsight, “the downfall of the Jedi starts with a trade war” was a good sign that the prequel trilogy wouldn’t land with the same Force as the original.
By contrast, the principal dissenting opinion ran three times as long. Query: If “the answer” to the question presented “is clearly yes,” does the opinion really require 63 pages?
Yes, I recognize that this quote doesn’t come from Episode I, but from Episode II: Attack of the Clones—a movie that, at least for me, led to a greater appreciation of Episode I.
The fantastic Advisory Opinions podcast brilliantly referred to Justice Gorsuch’s opinion as the Festivus Concurrence.
Judge Stewart authored the opinion for the Fifth Circuit panel, joined by Judges Clement and Ho.
Judge Douglas authored the opinion for the Fifth Circuit panel, joined by Judges Wiener and Willett.
Judges Higginbotham, Stewart, and Haynes comprised the per curiam panel.
Judges Davis, Smith, and Higginson comprised the per curiam panel.
Justices Wise, Jewell, and Hart comprised the per curiam panel.
Justice Hawkins is not participating in this case.
This case, as well as the one below, was decided by a quorum due to Judge Dennis’s retirement.
Judges Southwick and Graves did not participate in the en banc proceedings.
Though termed a “statement respecting the denial,” it’s more accurately a concurrence.
Justice Farris concurred without opinion.
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