26-06: Pilot Program
A look back to the weeks of March 2 and 9, with help from the friendly skies
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
The First Court of Appeals is trying something new this week in oral argument. Spearheaded by Justice David Gunn, the Court is launching a “Pilot Program” gives advocates two minutes of uninterrupted time to make their elevator pitch. In the Court’s words:
Each side will be allowed to open with two minutes of uninterrupted time. Counsel may use the full two minutes, or only a part of it, or none of it. The purpose is to allow counsel a chance to prepare an “elevator pitch” that highlights whatever points counsel deems worthy of attention. (Rebuttal will not have any guarantee of uninterrupted time.)
The inspiration comes from One First Street. Particularly after Justice Antonin Scalia’s arrival, the U.S. Supreme Court’s bench evolved into a hot one, with advocates often interrupted before finishing an opening clause. In 2019, the Court added a simple guardrail: two minutes at the start for uninterrupted remarks, after which the Justices resume their usual cross‑examination. These days, many Supreme Court advocates now wrap that opening by “welcom[ing] the Court’s questions.” It’s become a brief runway before takeoff.
When Justice Gunn previewed the Pilot Program at our recent “Oral Argument Is My Love Language” CLE, my first reaction was skepticism. Texas appellate benches—even the Supreme Court of Texas—typically aren’t as interrupt‑happy as the U.S. Supreme Court. In my experience, I can usually deliver a 60‑ to 90‑second introduction before the first question. Yes, I’ve been cut off in the opening sentence once or twice; but that’s the exception, not the rule..
Then I thought about how I actually prepare. I write those 60‑ to 90‑second openings precisely because I expect that’s the maximum margin I’ll get before the Court jumps in. Especially in multi‑issue appeals—common in the intermediate courts—my first sentence is often more roadmap than rhetoric: “The district court properly granted summary judgment for three reasons.” That framing is a signal—or, perhaps, a plea— to the bench: Please let me give you the list before we dive into the details.
Two guaranteed minutes change the flight plan. They give advocates room to set the scene thematically—to articulate the dispute’s throughline, state the relief, and identify the hinge points—before shifting into the “here are the three reasons” structure. You can front‑load the core equities or legal architecture, not just the itinerary. And because the time is uninterrupted, you can trust the narrative to build, instead of bracing for turbulence on syllable two.
Will there be tradeoffs? Of course. Two minutes is a meaningful percentage of a typical argument. So if you’re going to use those minutes, make them count. Precision matters: You only have a short runway, not cruising altitude, to frame the case. And if enough advocates squander that window, that’s the virtue of a pilot program: The Court tests the tweak, keep it if it sharpens argument, and scrap it if it doesn’t.
For now, I’m happy to purchase a ticket. I’m eager to see how the First Court’s Pilot Program flies—and, if it lands well, whether other Texas courts will chart a similar course.
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
Lee v. Park, No. 01-24-00627-CV (Adams, C.J.; Gunn, Johnson, JJ.): This landlord-tenant dispute arose from a commercial lease that included an option-to-buy component and, more immediately, a temporary injunction barring the landlords from taking steps to evict the tenant from the property. The landlords, however, didn’t take an interlocutory appeal from the original order granting the injunction. Instead, they later moved to dissolve it—and, when the trial court denied that motion, appealed. Affirming, the First Court held that this appeal did not reopen the propriety of the injunction as originally entered.
Justice Gunn’s opinion treats the case as a useful reminder about the limited function of a motion to dissolve. Once the time to appeal the original temporary injunction passed, the relevant question was no longer whether the tenant had adequately proved irreparable injury at the initial hearing or whether the injunction originally swept too broadly. Instead, the landlords generally needed to show changed circumstances or some change in law warranting dissolution, and the record did not do so.
The opinion is especially clear on the practical reason for this rule—if litigants could relitigate the original injunction through a later motion to dissolve, the short deadline for interlocutory review would become largely meaningless. And it closes with a practical point of its own: Whatever anyone thinks about the correctness of the preliminary order, the real fix is to try the case rather than keep circling the injunction fight.
N.B.: If you want to challenge a temporary injunction, don’t miss your departure window—take the interlocutory appeal when the runway is open, because a later motion to dissolve usually is not a standby ticket for rearguing the original order. And if you’re flying the dissolution route instead, make sure you have genuine changed circumstances in your flight plan; otherwise, the court is likely to keep the injunction on autopilot until trial.
V247 Power Corp. v. Italian Jewel Corp., No. 14-24-00928-CV (Christopher, C.J.; Wilson, Bridges, JJ.): After a bench trial, the trial court awarded Italian Jewel damages and fees on a breach-of-contract claim arising from V247’s early exit from the Texas retail-electric market. The Fourteenth Court reversed and remanded. It rejected V247’s impossibility defense because even though ERCOT had terminated V247’s market-participant agreement after V247 failed to satisfy operational requirements, V247 never identified a supervening change in law that made performance illegal.
That part of the opinion is a useful reminder that impossibility by illegality is a narrow defense. The court took the familiar rule from Centex seriously: If you’re claiming that performance became impossible because the law changed, you have to identify the law, explain the change, and connect that change to the alleged illegality. V247’s proof fell short because the record showed operational fallout and regulatory consequences, but not the key point the doctrine requires—a change in law that made performance unlawful during the contract term.
The damages holding is just as practical, and probably more so. The contract supplied a specific formula for damages after an uncured default: estimated remaining usage multiplied by the positive difference between the market rate and V247’s contract rate. The court held there was legally sufficient evidence of the rate differential, including evidence supporting the fixed rate as a commercially reasonable market proxy. But the proof broke down on “estimated remaining usage,” as Italian Jewel’s co-owner offered only a rough, approximate untethered to an actual usage calculation. Put another way, when the contract provides a formula, you need evidence for each input in the formula—not just some plausible bottom-line estimate. And while the invoice record could support some damages, it couldn’t support the full award the trial court entered, requiring a new trial.
N.B.: Before you try to clear the runway on impossibility, make sure you can point to the actual legal change that grounded the defense, not just the business or regulatory turbulence that followed. And if your contract damages model has multiple instruments in the cockpit, check every one before takeoff: An appellate court may forgive a rough landing on one input, but not a flight plan that never had the numbers to begin with.
In Brief
1COA
PDA Houston, LLC v. B-FAM, LLC, No. 01-25-00528-CV (Morgan, J.) (order): Denying appellants’ motion to supplement the clerk’s record, the First Court explained that Texas Rule of Appellate Procedure 34.5(c) ordinarily requires the parties—not the court—to direct the trial clerk to file a supplemental record. The court said its intervention is generally reserved for situations in which the court wants supplementation or the clerk has been nonresponsive to a party’s request. “Using this Court as an intermediary for an ordinary supplementation request injects needless inefficiencies into the process.”
Amazing Paws, LLC v. Pedraza, No. 01-24-00475-CV (Guerra, Caughey, Dokupil, JJ.): Affirming, the First Court held that text messages from Amazing Paws’ CEO canceling all contracts were signed writings that supported an implied finding that Amazing Paws repudiated the parties’ breeding agreements, thereby excusing the defendant’s further performance. Amazing Paws also failed to conclusively prove any earlier breach by Pedraza because the record did not show the contractual deadlines had arrived, the claimed balances were then due, or any unauthorized breeding, competition, or unmet mediation duty before repudiation. And the court couldn’t grant relief from the judgment against Collins because she did not file a notice of appeal (and, in any event, the judgment was proper under the Tax Code).
Phipps v. Largo, No. 01-25-00307-CV (Adams, C.J.; Gunn, Johnson, JJ.): Affirming the confirmation of an arbitration award, the First Court held that Harris County was the proper venue for the confirmation application because that’s where the arbitration hearing was held. It also held that the appellants’ challenges to the award were untimely because they did not seek vacatur within the statutory three-month period, which “left the trial court no choice but to confirm the award.”
JAJWK, LLC v. Primeway Federal Credit Union, No. 01-23-00657-CV (Rivas-Molloy, Gunn, Caughey, JJ.): Reversing and rendering, the First Court reaffirmed the longstanding rule that “non-party rights cannot be adjudicated in a post-judgment turnover proceeding.” It first confirmed its appellate jurisdiction: JAWJK (a nonparty to the underlying suit)’s postjudgment objection functioned as a motion to modify the first turnover order, thus extending the appellate deadline; and the breadth of the turnover orders confirmed that a live controversy remained, despite the sale of a particular car. With appellate jurisdiction confirmed, the First Court concluded the trial court could not use a post-judgment turnover proceeding to adjudicate JAJWK’s lien rights. As a result, the court’s turnover orders were legally void.
The University of Texas Health Science Center at Houston v. Bustos, No. 01-24-00381-CV (Adams, C.J.; Gunn, Johnson, JJ.): Reversing and rendering, the First Court held that sovereign immunity was not waived under the Texas Tort Claims Act because a state-employed doctor’s hands alone are not “tangible personal property.” And even if hands could qualify as tangible personal property, the undisputed jurisdictional evidence showed that the treating doctors weren’t themselves infected, and that they used only sanitized, covered stethoscopes, when they treated the patient. Either way, the trial court should have granted the jurisdictional plea.
14COA
In re J Martinez Trucking, Inc., No. 14-25-01074-CV (Christopher, C.J.; Wise, Jewell, JJ.) (per curiam) (orig. proceeding): Conditionally granting mandamus relief, the Fourteenth Court held that the trial court had a ministerial duty to grant the defendant’s motion for leave to designate its former co-defendant as a responsible third party. Under Section 33.004(f) of the Civil Practice and Remedies Code, the trial court had to grant leave because the plaintiff didn’t object within 15 days after service of the motion. The plaintiff’s varied arguments—incomplete mandamus record, Chapter 33’s applicability, timing limitations, and pleading insufficiency—all failed.
Marshall v. Marshall, No. 14-25-00322-CV (Wise, Jewell, Hart, JJ.): Affirming as modified, the Fourteenth Court held that the probate court did not abuse its discretion in refusing to dissolve most of a temporary injunction governing disputes over several trusts. It rejected appellants’ reliance on Louisiana judgments because claim and issue preclusion are pleas in bar that go to the merits, which couldn’t be resolved in this interlocutory appeal from the denial of a motion to dissolve. It also held affirmed the plaintiff’s standing to challenge alleged misconduct involving one trust. But it held that challenges to other expired trusts had become moot, modifying the injunction to remove those moot portions.
Odyssea Marine, LLC v. Wilcox-Carleton, No. 14-24-00303-CV (Wilson, Hart, Boatman, JJ.):1 Reversing and rendering, the Fourteenth Court held that Texas courts lacked personal jurisdiction over the defendants in a Jones Act suit arising from injuries suffered by an Alabama seaman aboard a vessel in federal waters. Because the plaintiff didn’t rely in the trial court on a charter’s forum-selection clause as an independent basis for jurisdiction, it couldn’t assert that basis for jurisdiction in the appellate court. Nor could the plaintiff establish jurisdiction over Odyssea Holdings or Odyssea Vessels by imputing Odyssea Marine’s contacts under an alter-ego theory. As to Odyssea Marine, contracts with a Texas-based company and sales visits to Texas weren’t substantially connected to the operative facts.
Choudhri v. Mokaram Latif West Loop, Ltd., Nos. 14-24-00057-CV & 14-25-00614-CV (Jewell, Bridges, Antú, JJ.): Affirming the final judgment (and denying mandamus relief), the Fourteenth Court held that a trial judge’s post-recusal, administrative transfer of a case was permissible under the Harris County Local Rules—and, in any event, was later ratified by the regional presiding judge. And among other issues, the trial court properly awarded nearly $2 million for breach of a settlement agreement, as the appellant’s continued reliance on the release provisions waived the appellee’s first material breach of the agreement.
Arguments
Next up on the departure board: a full slate of arguments taxiing toward the First and Fourteenth.
1COA
YSM-Ponderosa, LLC v. World Market of Texas, LLC, No. 01-24-00460-CV (Adams, C.J.; Guerra, Guiney, JJ.): In this cross-appeal, did the trial court properly convert the sublease into a direct lease between the parties? And did the court correctly calculate common-area charges under the commercial lease?
Appellant: Joe Roden (Rusty Hardin & Associates)
Appellee: Allen Hernandez (Susman Godfrey)
Argument: March 17 at 1:30 pm
Weems & Kelsey Management Co. No. 2, Ltd. v. Union Pacific Railroad Co., No. 01-24-00110-CV (Rivas-Molloy, Johnson, Dokupil, JJ.): Does sufficient evidence support the defense verdict in this underground-pipeline trespass case?
Appellant: Joshua Smith (Beck Redden)
Appellee: Jonathan Smith (Shipley Snell Montgomery)
Argument: March 18 at 1:30 pm
SCI Texas Funeral Services, LLC v. Lawhon, No. 01-25-00251-CV (Gunn, Caughey, Morgan, JJ.): Did the trial court properly deny a motion to compel arbitration in light of the parties’ later agreement?
Appellant: Emily Freeman (McDowell Hetherington)
Appellees: Anjali Nigam (The Nigam Law Firm)
Argument: March 19 at 1:30 pm
Schatte v. The Trapp Trust, No. 01-24-00813-CV (Rivas-Molloy, Johnson, Dokupil, JJ.): Did the trial court err by refusing to enforce a deed restriction barring fences over 40 inches based on the balance of the equities?
Appellant: Nicholas Bruno (Beck Redden)
Appellee: Joshua Anderson (Hoover Slovacek)
Argument: March 25 at 1:30 pm
Flores v. Inverness Forest Residents Civic Club, Inc., No. 01-24-00667-CV (Gunn, Caughey, Morgan, JJ.): Did the trial court err by granting summary judgment to the homeowners’ association on the homeowner’s claims challenging deed-restriction violation assessments?
Appellant: Gregory Jones, Esq.
Appellee: Leigh McBride (Roberts Markel Weinberg Butler Hailey)
Argument: March 26 at 1:30 pm
14COA
DeLeon v. State, No. 14-25-00287-CR (Wise, McLaughlin, Bridges, JJ.): Does sufficient evidence support the DWI conviction where the defendant was found asleep behind the wheel?
Appellant: Mark Stevens, Esq.
Appellee: Rebecca Klaren (Galveston County Criminal District Attorney’s Office)
Argument: March 18 at 10 am
Davet v. State, No. 14-24-00884-CR (Jewell, Wilson, Boatman, JJ.): Among other issues, did the trial court err by failing to stay the proceedings after an informal finding of incompetency and by denying the defendant’s request to represent himself?
Appellant: Bryan Garris, Esq.
Appellee: Unknown (Harris County District Attorney’s Office)
Argument: March 19 at 2 pm
Ford v. Smith, No. 14-25-00169-CV (Jewell, Wilson, Boatman, JJ.): Did the trial court have jurisdiction over a pre-service TCPA motion involving a Section 1301 management trust? If so, does the TCPA apply to the challenged pleading, and did the guardian ad litem make a prima facie case?
Appellant: Don Ford (Ford+Bergner)
Appellee: Laurel Smith (Kean Miller) and Adrianne Graves (Graves Law)
Argument: March 19 at 2 pm
Alvarez v. Amdre, LLC, No. 14-25-00538-CV (Christopher, C.J.; Hart, Antú, JJ.): Did the justice court and county court have subject-matter jurisdiction over this forcible-detainer action? And if so, are the eviction orders void because the occupants were not specifically identified in the eviction notice?
Appellant: Jeffrey Jackson (Jeffrey Jackson & Associates)
Appellee: John Burger (Barry & Sewart)
Argument: March 24 at 2 pm
Stevens v. State, No. 14-24-00765-CR (Jewell, Wilson, Boatman, JJ.): In this capital-murder case, did the trial court err by denying the defendant’s motion to suppress under Franks v. Delaware?
Appellant: Gregory Sherwood, Esq.
Appellee: Jay Johannes (Office of Colorado County Attorney)
Argument: March 26 at 2 pm
Espinoza v. State, No. 14-25-00225-CR (Jewell, Wilson, Boatman, JJ.): Did the trial court err by consolidating five cases for trial and by ordering the defendant’s sentences to run consecutively?
Appellant: Robert Finlay, Esq.
Appellee: Scott Taliaferro (Galveston County Criminal District Attorney’s Office)
Argument: March 26 at 2 pm
& Beyond
With the regional runways behind us, we climb into & Beyond, where the first stop is the nation’s highest tower: the Supreme Court of the United States.
SCOTUS
Opinions
The Court issued four opinions—two from the merits dockets, and two from its interim docket.
Merits Docket
Galette v. New Jersey Transit Corp., Nos. 24–1021, 24–1113 (Supreme Court of Pennsylvania): Is the New Jersey Transit Corporation an arm of the State of New Jersey entitled to interstate sovereign immunity, such that it cannot be sued in the courts of other States without New Jersey’s consent?
Majority (Sotomayor, J., for unanimous Court): No. Sovereign immunity is personal to the State and extends only to entities the State has structured as part of itself. The clearest indicators are whether the entity is legally separate and whether the State is formally liable for its debts or judgments. New Jersey created NJ Transit as a body corporate with traditional corporate powers—including the power to sue and be sued, contract, hold property, raise funds, and own subsidiaries—and New Jersey law expressly provides that the State is not liable for NJ Transit’s debts. The State’s substantial control over NJ Transit and its description of NJ Transit as an “instrumentality” do not overcome that formal corporate structure.
Urias‑Orellana v. Bondi, No. 24–777 (First Circuit): Must courts of appeals apply the substantial-evidence standard when reviewing the Board of Immigration Appeals’ determination that undisputed facts do not constitute “persecution” under 8 U.S.C. §1101(a)(42)?
Majority (Jackson, J., for unanimous Court): Yes. The INA requires deferential substantial-evidence review for the entire persecution determination, including both the agency’s underlying factual findings and its application of the statutory persecution standard to those facts. Section 1252(b)(4)(B) codified the approach reflected in INS v. Elias-Zacarias, and Congress’s later amendments did not expand judicial review of that mixed determination. Because persecution findings are fact-intensive and the First Circuit correctly asked whether any reasonable adjudicator would be compelled to reach the opposite conclusion, the judgment was affirmed.
Interim Docket
Mirabelli v. Bonta, No. 25A810 (Ninth Circuit): Should the Court vacate the Ninth Circuit’s stay of the district court’s injunction as to parents and teachers challenging California school policies on parental notification and preferred names and pronouns for students?
Majority (per curiam): Yes, but only as to the parent subclasses. Parents with religious objections are likely to succeed on their Free Exercise claim because California’s nondisclosure and mandatory-pronoun policies substantially burden parental religious-upbringing interests and likely are not narrowly tailored. Parents with religious or nonreligious objections are also likely to succeed on their substantive-due-process claim because the policies exclude them from major decisions bearing on their children’s mental health. The traditional stay factors otherwise favor interim relief.
Concurrence (Barrett, J., joined by Roberts, C.J., and Kavanaugh, J.): Yes, but only as to the parent subclasses. Existing substantive-due-process precedent recognizing parental authority over childrearing and significant mental-health decisions makes the parents likely to succeed on the merits under Glucksberg and related cases. The Court is deciding only interim relief, but the risk that parents will be excluded during prolonged appellate proceedings makes that relief appropriate now.
Dissent (Kagan, J., joined by Jackson, J.): No. The Court shouldn’t use the emergency docket to resolve difficult and consequential constitutional questions without full briefing, argument, and the completion of the Ninth Circuit’s own en banc process. Although California’s policies may ultimately cross the constitutional line, those issues should be addressed through ordinary merits review rather than effectively settled in an emergency posture.
Justice Thomas and Alito would grant the application in full, while Justice Sotomayor would deny it in full.
Malliotakis v. Williams, Nos. 25A914, 25A915 (New York Supreme Court, New York County): Should the Court stay a state-trial-court order barring New York officials from conducting any election under the congressional map the Legislature approved in 2024?
Majority (per curiam): Summarily stayed.
Concurrence (Alito, J.): Yes. The trial court’s order likely violates the Equal Protection Clause because it directs the creation of a district with race as the decisive criterion without any compelling interest that could justify that racial line-drawing. The Court has jurisdiction because the New York Court of Appeals’ refusal to grant interim relief effectively finally resolved the applicants’ claim that the injunction would violate their federal rights during appellate review. A stay is warranted to prevent the state-court process from outrunning this Court’s ability to review the constitutional issue before the election and to avoid the confusion and inequity of using an unconstitutional district.
Dissent (Sotomayor, J., joined by Kagan, Jackson, JJ.): No. The Court lacks jurisdiction because there is no final judgment from New York’s highest court, and the applicants did not first seek available relief there after the Appellate Division denied a stay. Federalism and ordinary limits on federal-court intervention require allowing the New York courts to finish their own review, especially because they can move quickly in election cases and could grant relief on state-law grounds. The stay also contradicts the Court’s repeated warnings against federal judicial interference with election rules close to an election and prematurely assumes that any eventual remedial district would necessarily violate the Federal Constitution.
Orders
Turning to the Court’s usual orders lists, the Court granted certiorari in one case:
Department of Air Force v. Guahan, No. 25-579 (Ninth Circuit): Is the federal government’s submission of a permit-renewal application to a state or territorial regulator under the Resource Conservation and Recovery Act (RCRA) a final agency action immediately reviewable under the Administrative Procedure Act? And must the federal government comply with the National Environmental Policy Act’s general environmental-review procedures before submitting a RCRA permit-renewal application, even though RCRA provides its own procedures for evaluating environmental impacts in the hazardous-waste permitting process?
Finally, two cert. denials drew dissents:
Johnson v. High Desert State Prison, No. 25–457 (Ninth Circuit): Does 28 U.S.C. § 1915(b)(1) require each incarcerated plaintiff proceeding in forma pauperis to pay the full filing fee even when multiple incarcerated plaintiffs file one joint civil action?
Dissent (Sotomayor, J., joined by Jackson, J.): Yes. Section 1914(a) sets one filing fee per case, and nothing in the PLRA expressly changes that baseline for indigent prisoners who file together. Section 1915(b)(1) bars waiving or reducing the fee for an IFP prisoner, but Section 1915(b)(3) caps total collection at the single fee authorized for commencing one civil action, so joint prisoner-plaintiffs must be allowed to share that amount. The Ninth Circuit’s contrary rule deepens an entrenched circuit split, creates the odd result that non-IFP prisoners may split fees while IFP prisoners may not, and imposes substantial recurring burdens on the poorest prisoners seeking access to the courts.
Justice Kagan also would grant certiorari.
Burnett v. United States, No. 25–5442 (Third Circuit): Does the Fifth and Sixth Amendment jury right apply when supervised-release revocation proceedings result in imprisonment beyond the maximum custodial sentence authorized for the underlying offense of conviction?
Dissent (Gorsuch, J.): Yes. Burnett’s revocation sentences, imposed by judges using a preponderance standard, raised his total incarceration from 105 months to 132 months, exceeding the 120-month maximum authorized for his underlying crime. Once revocation imprisonment goes beyond that statutory maximum, Apprendi and related cases require any fact increasing the penalty to be found by a jury beyond a reasonable doubt. The Court should have taken the case because the existing regime permits substantial additional imprisonment, sometimes for very long periods, based solely on judicial factfinding rather than the jury-trial protections the Constitution ordinarily demands.
Finally, the Court denied a stay in a capital case.
Arguments
The Court will hear four cases the week of March 23.
March 23
Watson v. Republican National Committee, No. 24-1260 (Fifth Circuit):2 Do the federal election-day statutes preempt a state law that allows ballots that are cast by federal election day to be received by election officials after that day?
March 24
Keathley v. Buddy Ayers Construction, Inc., No. 25-6 (Fifth Circuit):3 Can the doctrine of judicial estoppel be invoked to bar a plaintiff who fails to disclose a civil claim in bankruptcy filings from pursuing that claim simply because there is a potential motive for nondisclosure, regardless of whether there is evidence that the plaintiff in fact acted in bad faith?
Noem v. Al Otro Lado, No. 25-5 (Ninth Circuit): Does an alien who is stopped on the Mexican side of the U.S.–Mexico border “arrive in the United States” under the Immigration and Nationality Act, which provides that an alien who “arrives in the United States” may apply for asylum and must be inspected by an immigration officer?
March 25
Flower Foods, Inc. v. Brock, No. 24-935 (Tenth Circuit): Are workers who deliver locally goods that travel in interstate commerce—but who do not transport the goods across borders nor interact with vehicles that cross borders—“transportation workers” “engaged in foreign or interstate commerce” for purposes of the exemption in Section 1 of the Federal Arbitration Act?
All oral arguments can be livestreamed here.
SCOTX
Back in Texas airspace, the first signal from the Supreme Court of Texas is a notable one: Justice Kyle Hawkins’s debut opinion for the Court.
Opinions
City of San Antonio v. Realme, No. 24-0864 (Fourth Court): Is a Thanksgiving community turkey trot “recreation” under the Recreational Use Statute, such that the City owed only the duty owed to a trespasser?
Majority (Hawkins, J., for unanimous Court): Yes. The statute’s definition of “recreation” uses a nonexclusive list of examples; it doesn’t displace the ordinary meaning of recreation as diversion, play, or enjoyable physical activity. A community fun run comfortably fits that ordinary meaning, and courts need not force it into one enumerated example or require that it amount to an “escape into nature” before the statute applies. Because Realme entered a City park and engaged in recreation there, her ordinary-negligence claim is barred.
Clifton v. Johnson, No. 23-0671 (Eighth Court): Does a deed conveying “1/128 (1/16 of the usual 1/8 royalty)” grant a fixed 1/128 royalty rather than a floating 1/16 royalty under Van Dyke’s double-fraction presumption?
Majority (Young, J., for unanimous Court): Yes. Although Van Dyke begins with a rebuttable presumption that a double fraction using “1/8” refers to the entire mineral estate, this deed’s text rebuts that presumption by using “1/128” as the operative fraction in both the granting clause and the future-lease clause. The parenthetical “1/16 of the usual 1/8 royalty” functions as an arithmetic explanation of how the parties reached 1/128, not as an independent floating-royalty grant.
Cockrell Investment Partners v. Middle Pecos GCD, Nos. 23-0593, 23-0742 (Eighth Court): Does Water Code Section 36.251 waive the District’s immunity for Cockrell’s suits challenging the denial of party status, and did Cockrell exhaust its administrative remedies before suing?
Majority (Sullivan, J., for unanimous Court): Yes and yes. Section 36.251 applies because Cockrell was a person “affected by and dissatisfied with” the District’s orders denying it party status. It wasn’t appealing the permitting decisions themselves, so the statute’s limitation on who may challenge a permit decision didn’t bar suit. Cockrell also exhausted its administrative remedies because, as a nonparty to the permitting proceedings, it was not subject to the 90-day rehearing process under the Water Code. Instead, Local Rule 4.9 governed, under which its reconsideration requests were denied by operation of law after 45 days.
Equinor Energy LP v. Lindale Pipeline, LLC, No. 24-0425 (First Court):4 Does a contract making Lindale the “sole and exclusive water provider and pumper on the Pipeline” bar Equinor from buying water from other suppliers for wells not connected to the defined Pipeline?
Majority (Sullivan, J., for unanimous Court): No. The contract unambiguously grants Lindale exclusivity only “on the Pipeline,” and the defined “Pipeline” consists of the enumerated pipeline components and related facilities, not the wells themselves. The attached map doesn’t expand that definition merely because it depicts the wells, and the contract’s exception clause confirms that the exclusivity provision concerns water moved through the Pipeline rather than all water used in Equinor’s operations. Because the wells at issue were outside the contract’s scope, Equinor didn’t breach by purchasing water from other suppliers for use there.
NuStar Energy, L.P. v. Hancock, No. 24-0037 (Third Court): Under Tax Code Section 171.103(a)(1), are sales of bunker fuel delivered to oceangoing vessels at Texas ports “delivered or shipped to a buyer in this state” even if the buyer immediately transports the fuel elsewhere for use?
Majority (Devine, J., for unanimous Court): Yes. Section 171.103(a)(1) sources receipts to Texas when the seller transfers possession and control of tangible personal property to the buyer in Texas, not when the buyer later uses or consumes the goods. The statutory text focuses on where the property is “delivered or shipped to a buyer in this state,” and a use-based or ultimate-destination test would improperly read in concepts the Legislature did not include while rendering key delivery language superfluous. The Comptroller’s rules therefore remain valid because, despite some awkward phrasing, they likewise apply a place-of-transfer rule rather than an ultimate-destination rule.
Justice Lehrmann didn’t participate in the decision.
Office of the Attorney General v. PFLAG, Inc., No. 24-0892 (261st Judicial District Court, Travis County): Did the district court err by blocking the Attorney General’s Deceptive Trade Practices Act investigation into a nonprofit organization assisting with transgender medical treatment and refusing to enforce the narrowed civil investigative demand?
Majority (Blacklock, C.J., for unanimous Court): Yes. The district court focused on the abandoned original CID instead of the revised, narrowed CID. It also wrongly substituted its own view of the investigation for the Attorney General’s despite Section 17.61’s low threshold, which requires only a reasonable belief that the recipient may possess relevant material. The disputed affidavit reasonably suggested that PFLAG might have documents bearing on possible efforts to continue prohibited treatments in Texas and deceptively conceal them, and PFLAG’s privacy objections were substantially addressed by redaction of identifying information and the DTPA’s nondisclosure protections.
Justice Sullivan didn’t participate in the decision.
S&B Engineers & Constructors, Ltd. v. Scallon Controls, Inc., No. 24-0525 (Ninth Court): Does a contractual proportional-indemnity clause allow S&B and Zurich to seek post-settlement recovery from Scallon for Scallon’s allocable share, notwithstanding the express-negligence rule?
Majority (Young, J., joined by Blacklock, C.J., Busby, Sullivan, Hawkins, JJ.): Yes. Jinkins does not control because it addressed statutory and common-law contribution, not a negotiated contractual indemnity provision allocating risk by fault. The contract allows recovery for Scallon’s “allocable share” of comparative, concurrent, or contributing negligence while disclaiming any indemnity for S&B’s or Sunoco’s own negligence, so the express-negligence rule poses no bar. On remand, S&B and Zurich may pursue proportional indemnity if they prove the settlement was reasonable and made in good faith and if they establish what portion of the liability is attributable to Scallon’s negligence.
Dissent (Bland, J., joined by Lehrmann, Devine, Huddle, JJ.): No. The contract doesn’t expressly authorize S&B to shift to Scallon any portion of a settlement paid to resolve claims asserted only against S&B and Sunoco, so the express-negligence rule forecloses recovery. Every dollar of the settlement resolved S&B’s own liability—not Scallon’s—and allowing post-settlement “allocation” effectively lets S&B prosecute unasserted or time-barred claims against Scallon. The majority’s approach invites distorted, burdensome “case-within-a-case” trials in which the settling party has every incentive to inflate the settlement’s value and minimize its own responsibility while pinning fault on the non-settling party.
Orders
As usual, the Court’s customary Friday orders lists were dominated by denials of petitions for review and for writs of mandamus. the Court accepted a certified question from the Fifth Circuit in one case:
Canada v. Sherman, No. 26-0127 (Fifth Circuit): Is an LLC membership interest exempt property in a federal bankruptcy proceeding, based on section 101.112 of the Texas Business Organizations Code?
Finally, on the evening of Primary Election Day, the Court stayed two district-court orders that extended polling hours beyond the statutory deadline.
Arguments
The Court has concluded its arguments for this Term.
CA5
From Austin we head east to New Orleans, where the Fifth Circuit’s runway is once again crowded with opinions worth a close look.
Opinions
Renteria v. Grieg Star AS, No. 25-20131 (Jones, Engelhardt, JJ; Summerhays, J., by designation): Affirming, the Fifth Circuit held that an injured longshore worker failed to raise a fact issue on negligence under the Longshore and Harbor Workers’ Compensation Act. There was no breach of the turnover duty because the alleged hazard—gaps between cargo rolls covered by plastic sheeting—was open and obvious to the plaintiff, who knew the gaps existed and could have checked beneath the sheeting. Nor was there any breach of the active-control duty because the stevedore, not the vessel, controlled the cargo hold and the methods and details of the unloading work.
Kincannon v. United Airlines, Inc., No. 24-10708 (Higginson, Willett, Engelhardt, JJ.): In a class action concerning United Airlines’s alleged failure to offer reasonable religious and medical accommodations to its COVID-19 vaccine mandate, did the district court properly decline to certify two subclasses of employees, while certifying an unpaid-leave subclass in part?
Majority (Engelhardt, J., joined by Higginson, J.; and joined by Willett, J., as to all but Parts IV.B.3 and V): Yes. After affirming the propriety of two plaintiffs’ inclusion as parties, the Fifth Circuit held that the district court didn’t abuse its discretion in rejecting a Rule 23(b)(2) class because individualized issues concerning punitive damages—specifically, how how United’s unpaid-leave policy affected different employees—would predominate over classwide injunctive relief. The masking-and-testing and ADA subclasses also failed because (respectively) the alleged harms varied from employee to employee, and whether each worker had a qualifying disability required individualized proof. But the district court properly certified a religious unpaid-leave subclass because (among other reasons) the central Title VII questions—religious sincerity, the reasonableness of unpaid leave, and undue hardship—could be addressed largely with common proof, subject to later good-faith challenges to particular employees’ class membership. To that end, the majority rejected United’s argument that religious sincerity could not be established on a classwise basis, refusing to “establish[] a bright-line rule against class actions in religious-discrimination cases.”
Concurrence in Part and in the Judgment (Willett, J.): Yes. But Judge Willett wouldn’t decide whether religious sincerity is itself a common issue capable of classwide resolution, because that difficult question was unnecessary to the disposition. In his view, affirmance followed from the abuse-of-discretion standard and the existence of other common questions.
United States ex rel. Ferguson v. Lockheed Martin Corp., No. 24-10713 (Jones, Graves, Rodriguez, JJ.): Does the False Claims Act’s first-to-file bar block a relator’s qui tam suit because an earlier relator’s complaint already alleged the same essential fraud?
Majority (Graves, J.): No. “[T]his case is more analogous to the cases where a second relator files a complaint that alleges a violation of the same statute but alleges a different scheme or method of perpetrating the fraud. Ferguson does not merely add details or different locations where the fraud was perpetrated, but alleges a different mechanism. Thus, the first-to-file bar does not apply.”
Concurrence in the Judgment (Rodriguez, J.): No. But the problem with the majority opinion is that it conducts its analysis by primarily looking to six factors. Although those factors “lend support to the conclusion that Ferguson does not base her lawsuit on the facts underlying Girard’s claims[,]” these factors aren’t dispositive or as the standard governing the analysis of the first-to-file bar. In short, such factors may prove relevant, but are not the focus of the assessment.”
Dissent (Jones, J.): Yes—at least mostly. The second complaint alleges the “same essential facts” and “material elements” as the first. And Ferguson’s own handling of the case—including describing the two cases as substantially related—adds further support.
Ayestas v. Harris County District Attorney’s Office, No. 25-70014 (Smith, Southwick, Ho, JJ.): Among other issues in this capital habeas case, did the Fifth Circuit have appellate jurisdiction to review a magistrate judge’s discovery order under the collateral-order doctrine, even though the affected party failed to object to that judge’s order in the district court?
Majority (Smith, J., joined by Ho, J.): Yes. The collateral-order doctrine permits immediate review because the order compelled a nonparty prosecutor’s office to disclose privileged prosecutorial work product. And as to the nonparty’s failure to object, Rule 72(a)’s objection requirement applies only to parties—not nonparties.
Dissent (Southwick, J.): No. Whether under Rule 72 or 28 U.S.C. § 636(b)(1)(A), the nonparty could have sought review in the district court. The collateral-order doctrine doesn’t justify bypassing review in the district court.
Savage v. LaSalle Management Co., No. 25-30259 (Smith, Wiener, Higginson, JJ.): Affirming the district court’s order of dismissal, the Fifth Circuit held that the district court did not abuse its discretion by excluding the plaintiff’s evidence after four years of stalled litigation, repeated discovery failures, multiple continuances, and lesser sanctions that had already proved futile. The ordinary exclusion factors—not a heightened dismissal-sanction standard—applied to the evidentiary ruling, even though exclusion effectively ended the case. Dismissal with prejudice was appropriate because the record showed clear delay, the ineffectiveness of lesser measures, and the prejudice to defendants.
Deras v. Johnson & Johnson Services, Inc., No. 25-10977 (Smith, Wiener, Higginson, JJ.): Vacating and remanding, the Fifth Circuit held that the district court abused its discretion in denying Rule 60(b)(1) motions to reopen a case dismissed after counsel failed to appoint local counsel as required by a Northern District of Texas rule. The district court used the wrong standard by requiring the plaintiff to show that the dismissal without prejudice functioned as a dismissal with prejudice, importing that requirement from Rule 41(b) cases rather than addressing excusable neglect under Rule 60(b)(1). The Fifth Circuit remanded for consideration under the proper Rule 60(b) framework.
In re Alliance Liftboats, L.L.C., No. 26-30091 (Smith, Haynes, Oldham, JJ.) (orig. proceeding) (per curiam):5 Denying mandamus relief, the Fifth Circuit held that Alliance had an adequate remedy by ordinary appeal from final judgment. Any challenge to the district court’s collective-action certification could be raised on direct appeal, while any objection to notice was already moot because notice had been sent. Nor does collective treatment cause irreparable harm, for added litigation burden and cost do not make relief effectively unobtainable—only burdensome.
Arguments
A single panel of the Fifth Circuit (Richman, Englehardt, Wilson, JJ.) will hear one virtual argument on March 19 at 10 am.
15COA
We close this leg in the Fifteenth Court, where the newest court on the route continues to chart its own course.
Opinions
Texas Department of Public Safety v. Texas Tribune, No. 15-24-00010-CV (Brister, C.J.; Field, Farris, JJ.): Affirming in part, reversing in part, and remanding, the Fifteenth Court held that the news organizations were not entitled to summary judgment compelling disclosure of Department of Public Safety records related to the Uvalde school shooting. DPS raised a fact issue under the Public Information Act’s law-enforcement exception through evidence that releasing the requested materials could interfere with the ongoing investigation and any prosecutions arising from the shooting and law-enforcement response. The trial court erred by ordering disclosure of materials that did not exist or were not in DPS’s possession when the requests were made, as well as records obtained from federal agencies. But the court properly struck the Uvalde district attorney’s plea in intervention because her interests were already being adequately represented by DPS.
State v. Broadmoor Austin Associates, No. 15-25-00013-CV (Brister, C.J.; Field, Farris, JJ.): Affirming in part and reversing and rendering in part, the Fifteenth Court first held that sovereign immunity barred Broadmoor’s lease-breach claims against the State and two agencies. While Chapter 114’s sovereign-immunity waiver applies to qualifying contracts entered by a state agency, the State alone was the lessee here. Broadmoor also failed to plead a viable ultra vires claim against the Health and Human Services’ deputy executive commissioner because certifying fund availability under Section 2167.101 of the Government Code is discretionary, not ministerial. But it sufficiently alleged an ultra vires claim against the Texas Facilities Commission’s executive director for sending the termination notice without first following TFC’s regulations on lease termination.
Argument
The Fifteenth Court next argument session is April 23.
Red Light
And with that, the red runway lights have come into view. Before we taxi in for the week, I’d be glad to hear your thoughts, suggestions, and tips for what to watch next.
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Disclaimer: I represented the appellee in this case.
Judge Oldham authored the panel opinion, joined by Judges Ho and Duncan.
Judges Higginbotham and Stewart comprised the per curiam majority. Judge Haynes concurred only in the judgment.
Justice Kelly authored the panel opinion, joined by Justices Landau and Countiss.
Judge Haynes joined only in the denial.
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