26-07: Trust the Process
A look back to the weeks of March 16 and 23, with help from the Philadelphia 76ers
Welcome back to 1910 & Beyond, your regular briefing on the ever-evolving world of appellate law in Houston and beyond. Each post spotlights notable developments from Houston’s two courts of appeals—the First and Fourteenth—as well as from other state and federal appellate courts across Texas and nationwide. From time to time, I also share practical tips on oral and written advocacy. I hope you find these posts useful to your practice and your understanding of what’s happening in Texas appellate law.
To those who have already subscribed, thank you. If you haven’t yet, I hope you’ll consider joining us!
Opening Statement
Regular readers know my bias: I’m often more interested in procedure than substance. That’s by no means any slight to substance; substance, after all, is the whole point of the case. But procedure defines the playing court. And because procedure cuts across cases, the way we draw those lines shapes outcomes and efficiency.
Efficiency is one reason I focus on process. How can the rules work better?
One gap has always puzzled me: the Texas Rules of Appellate Procedure don’t address consolidating appeals. Early in my shift to Texas appellate practice, I filed an unopposed motion to consolidate two related appeals with overlapping issues—the kind of motion the Fifth Circuit (where the bulk of my appellate experience originated) routinely grants. Yet the Texas court of appeals summarily denied the motion, without any explanation.
About six months ago, in denying a motion to consolidate (in an order I previously covered), the Fourteenth Court offered a possible rationale: The Rules of Civil Procedure expressly allow for consolidation, but the Rules of Appellate Procedure don’t. Instead, the court would allow “coordination.” But the coordination the court ordered looked awfully similar to consolidation.
Then, recently, a different Fourteenth Court panel summarily granted an unopposed motion to consolidate. There was no mention of the Rules of Appellate Procedure or the court’s prior approach.
So which is it? I think the most recent order is right. Even without an express rule, appellate courts maintain the ability to order consolidation consolidate through their inherent docket-control authority.
Still, there’s a cleaner solution: The Supreme Court should amend the Rules of Appellate Procedure to expressly permit consolidation, whether by motion or sua sponte. That small tweak would trade ambiguity for real efficiency—and clean process.
Feature
Texas Department of Insurance v. Thomas, No. 15-24-00073-CV (Brister, C.J.; Field, Farris, JJ.): On the surface, Thomas is an ordinary workplace dispute: the Fifteenth Court reversed the trial court’s order and rendered judgment dismissing the plaintiff’s employment-related claims against TDI. But the more interesting part of the opinion is the court’s divided treatment of its own jurisdiction.
The plaintiff asserted ADA, FMLA, and Chapter 21 claims against TDI, a state agency. While the ADA and FMLA claims fit within the Fifteenth Court’s exclusive intermediate appellate jurisdiction, Chapter 21 proceedings are expressly excluded. That raised a jurisdictional question: Does the court’s jurisdiction reach the excluded claim, given that the appeal arrived with qualifying claims?
Chief Justice Brister’s majority opinion gave a narrow but important answer. The court held that it could decide the entire appeal—including the excluded Chapter 21 claim—because the federal claims were unquestionably within its exclusive jurisdiction and all of the claims arose from the same nucleus of operative facts. Relying on the Fifteenth Court’s general civil jurisdiction under Section 22.220(a) of the Government Code, the majority rejected a reading of the statute that would require separate appeals in separate courts of appeals arising from a single occurrence.
But the majority stopped there. It expressly declined to say whether the same result would follow if a qualifying appeal also included claims arising from unrelated transactions or occurrences. That reservation matters. Thomas resolves the easier version of the problem—mixed claims, same factual nucleus—while leaving for another day the harder question whether the Fifteenth Court’s jurisdiction is ultimately claim-based or case-based.
Justice Farris’s concurrence would have answered that broader question now. In her view, Section 22.220(d)(1) gives the Fifteenth Court exclusive jurisdiction over a “matter,” and “matter” means the entire appeal. On that reading, one qualifying claim brings the rest of the case with it—even if another claim would otherwise fall within a statutory exclusion, and even if it arises from unrelated facts. The concurrence thus reads the Fifteenth Court’s jurisdiction as case-based, not claim-based.
That dispute is the real significance of Thomas. TDI may have won this quarter, but the jurisdiction discussion will continue into overtime. For now, the court has made clear that it won’t splinter a single appeal when qualifying and excluded claims arise from the same occurrence. But at some point, the court will confront the open question: whether one jurisdiction-triggering claim is enough to anchor an entire appeal in the Fifteenth Court, full stop.
N.B.: The majority approached this dispute one possession at a time. For now, one qualifying claim keeps related claims in the Fifteenth Court. But the concurrence would script the entire offense: one qualifying claim, entire appeal. Until the court decides that broader question, lawyers in mixed-claim cases should think early—and carefully—about whether they are running appellate jurisdiction as claim-based or case-based.
1910
And now, to our local courts here in Houston. But before the summaries of notable orders and opinions from the First and Fourteenth Courts, let’s begin the next possession with a couple of announcements.
First, the Houston Bar Association Appellate Section and State Bar of Texas Appellate Section are co-hosting Coffee with the First and Fourteenth Courts on April 16 at 9 am. It should be a nice, low-key opportunity to meet members of the courts and their staffs, and to connect with other lawyers in the local bar.
Second, with the retirement of the courts’ shared Clerk of Court, each court is now conducting its own search for a Clerk. The First Court’s posting is here, and the Fourteenth Court’s posting is here. If you know someone who might be interested, please pass these postings along.
Orders and Opinions
1COA
Absolute Oil + Gas, LLC v. Chord Energy Corp., No. 01-24-00180-CV (Rivas-Molloy, Guiney, Morgan, JJ.): Reversing and remanding a severance order, the First Court held that severance was an abuse of discretion based on the claims’ interwoven nature:
In summary, the severed claims and the remaining claims involve the same subject matter, the same actors, the same time frame, and the same contracts. AOG’s live petition relies on the same facts and circumstances to support both its tort and contract claims. If the severance order is upheld, the parties would pay the same attorneys to represent them and the same experts to testify in separate cases when the issues could be tried once in a single action. [citation omitted] If allowed to stand, the severance would not only inconvenience the parties by causing such duplication, but it could also result in inconsistent judgments, which would prejudice the parties.
City of Houston v. Holmes, No. 01-25-00359-CV (Rivas-Molloy, Guiney, Morgan, JJ.): Affirming the denial of the City’s plea to the jurisdiction, the First Court held the City did not conclusively establish that the firefighter driving a ladder truck was outside the scope of employment when the truck struck Holmes’s car during a grocery trip. The summary-judgment record raised a fact issue on the scope-of-employment question because the firefighters were on a 24-hour shift, used the truck to buy food for the on-duty crew, and kept the engine running so they could respond immediately to an emergency call. On those facts, the grocery trip was not conclusively a purely personal errand.
Washington v. Victoria, No. 01-23-00473-CV (Rivas-Molloy, Johnson, Dokupil, JJ.): Reversing and remanding, the First Court held the evidence was legally sufficient to support the jury’s finding that Father had testamentary capacity to execute the later will, but the trial court reversibly erred by excluding Daughter’s responsive evidence after allowing testimony that Father was angry with her over the alleged taking of his money. Testimony from the witnesses present at the will signing and expert testimony provided some evidence of testamentary capacity, even without direct proof that Father discussed the details of his assets on the day he signed the will. But once the jury heard evidence suggesting Daughter had taken Father’s money and that this anger motivated the change in testamentary disposition, fairness required allowing Daughter to offer impeachment and explanatory evidence on that same subject. The evidence’s exclusion was harmful because the issue became central to the case.
HTLF Bank v. Beaumont SNF, LLC, No. 01-24-00952-CV (order) (Caughey, J.): Denying appellees’ motion to set the appeal for immediate submission, the First Court (patiently)1 explained that the court balances numerous docket-management factors, including the timing of filing and whether a case is accelerated, when setting its docket. The order denied the request to expedite submission on that basis, while stating that the appeal will be set “as soon as is practicable.”
14COA
City of Kemah v. Merger Three, LLC, No. 14-24-00829-CV (Christopher, C.J.; Wilson, Bridges, JJ.): Reversing and remanding, the Fourteenth Court rejected the City’s jurisdictional challenges, holding that the Uniform Declaratory Judgments Act waives immunity for a validity challenge and the measure is not a penal ordinance. But it dissolved a temporary injunction requiring restoration of a pre-ordinance status quo, concluding that the plaintiffs failed to show a probable right to relief because an ordinance restricting a street to pedestrians and emergency vehicles does not “close” the street. As a result, the plaintiffs lacked a cause of action under the Texas Transportation Code and any probable right to recover under the Texas Civil Practice and Remedies Code.
McCarthy v. Wisch Auto Group, Inc., No. 14-24-00040-CV (Wilson, Hart, Boatman, JJ.): Affirming in part and reversing and remanding in part, the Fourteenth Court overturned much of a jury verdict in favor of an automobile dealer in a dispute arising from a truck purchase. The buyers signed a retail‑installment sales contract (RISC) for a truck after the dealer had only conditional approval from a third‑party lender. But when that approval fell through, the dealer demanded the truck’s return, threatened criminal charges, and did not timely pay off the traded‑in vehicle. While upholding the jury’s verdict on intentional infliction of emotional address, it held the jury’s take‑nothing findings were factually insufficient on a number of fraud-related claims, relying on the unambiguous RISC identifying the dealer as the creditor. The court also reversed summary judgment on a statutory claim that the dealer, as creditor, took adverse action without the required notice.
City of Houston v. Pellott, No. 14-24-00940-CV (Christopher, C.J.; Wilson, Bridges, JJ.): When a plaintiff twice amends but never pleads Texas Tort Claims Act notice or actual notice despite special exceptions and a Rule 91a challenge, must the case be dismissed with prejudice rather than allowing another amendment?
Majority (Bridges, J.): Yes. Dismissal with prejudice was required because TTCA notice is a jurisdictional statutory prerequisite that must appear on the face of the pleadings, and Rule 91a confines review to the pleadings. Here, the plaintiff had a full and fair opportunity to amend after the City pinpointed the defect, yet the plaintiff failed to do so.
Dissent (Christopher, C.J.): No. On this record, denying a chance to amend elevates form over substance when the City assigned a claims handler and actual notice appears undisputed.
Desta v. Wassihun, No. 14-24-00984-CV (Jewell, Wilson, Boatman, JJ.): Reversing and remanding, the Fourteenth Court held Wife was entitled to a new trial from a default divorce decree because her email response to the court coordinator counted as an appearance that entitled her to notice of the trial setting. Applying the default-judgment and due-process rules, the court concluded the email sufficiently identified the case and the responding party, and it was deemed filed because Wife objectively attempted to place it with the clerk through a court email address. Because Wife received no notice of the dispositive hearing, she didn’t have to satisfy the remaining Craddock elements.
Jones v. Arlington Place Apartments, No. 14-25-00770-CV (Wise, Hart, Boatman, JJ.) (per curiam) (order): Dismissing a motion for rehearing from a dismissed appeal for failure to file a brief, the Fourteenth Court held it lacked authority to treat the rehearing motion as timely because the plaintiff filed it one day after the deadline for seeking an extension. Under Texas Rule of Appellate Procedure 49.1, a rehearing motion must be filed within 15 days after judgment, and any motion to extend that deadline must itself be filed within the additional 15-day window. Because no timely extension request was before the court, there was no proper basis to reopen the dismissed appeal or consider the late brief.
Northampton Maintenance Fund, Inc. v. JAS Luxury Rentals, LLC, No. 14-25-00512-CV (Wise, McLaughlin, Bridges, JJ.): Reversing and remanding, the Fourteenth Court held that a rental company was not entitled to summary judgment invalidating the HOA’s leasing policy because the Property Code authorized the association to regulate property use unless the deed restrictions “otherwise provide.” To that end, silence in the restrictions didn’t bar the board from adopting lease-duration and related leasing rules. The Fourteenth Court also held the trial court’s declaration voiding any fines was improper because no fines had been imposed.
Ranger Steel Services, LP v. McPherson, No. 14-24-00374-CV (Wise, Bridges, Antú, JJ.): Affirming, the Fourteenth Court held legally sufficient evidence supported the jury’s finding that Ranger Steel and its former president formed an enforceable unilateral contract entitling him to 60 percent of the company’s net profits after the CEO’s death. Although the written consent did not expressly say the president had to keep working to earn that compensation, the jury could infer continued service was the bargained-for consideration from the surrounding circumstances, including the CEO’s succession plan, the president’s role in keeping the company running, and the president’s actual post-death performance. Once the CEO continued working as contemplated, the promise became enforceable and supported the breach-of-contract judgment.
East Lake Houston Management District v. AUC Group, LLC, No. 14-24-00495-CV (Wise, Bridges, Antú, JJ.): Affirming in part and reversing and rendering in part, the Fourteenth Court held that AUC pleaded a waiver of governmental immunity for its contract claim under Chapter 271 of the Local Government Code, but not for its negligent-misrepresentation claim. As to the former, the equipment leases were written contracts for providing goods or services because they required AUC to deliver and install water and wastewater equipment and to perform related design, permitting, and construction work, even though AUC retained ownership of the equipment during the lease term. But as to the latter, the District is not subject to the proprietary-function exception—AUC’s sole argument for waiver of immunity on this claim—and AUC identified no suggestion for how to cure this pleading defect.
Westcott Law Group PLLC v. Paychex, Inc., No. 14-24-00848-CV (Jewell, Wilson, Antú, JJ.): Dismissing for lack of appellate jurisdiction, the Fourteenth Court held that the default judgment that Westcott sought to challenge by restricted appeal was interlocutory, not final. The judgment didn’t dispose of all claims—specifically, Paychex’s counterclaims. Nor did the judgment, despite being labeled as “final,” state with unmistakable clarity that it finally resolved all claims and parties or was appealable.
Arguments
Before turning to upcoming arguments, a friend alerted me to this interesting pre-submission status conference in a parental-termination appeal, which the First Court held on March 27. From the letter setting the conference:
The purpose of the conference is simply orientation. The Court hopes to discuss this appeal and the briefing process in a manner analogous to that contemplated by Texas Rule of Civil Procedure 166 and Federal Rule of Appellate Procedure 33. See TEX. R. CIV. P. 166 (“[T]he court may in its discretion direct the attorneys for the parties . . . to appear before it for a conference . . . .”); FED. R. APP. P. 33 (“The court may direct the attorneys . . . to participate in one or more conferences to address any matter that may aid in disposing of the proceedings . . . .”). There is no need for counsel to conduct any legal research or invest significant attorney resources in preparation. Nor does the Court expect either side to debate the merits of the appeal or to commit to a particular position. Rather, the Court wishes to have a short conversation with counsel about the optimal path forward for everyone so that a decision may be reached within the 180-day period that applies in parental termination cases.
This is something new; I’m unaware of Texas courts of appeals holding similar conferences. And I’ve never seen Federal Rule of Appellate Procedure 33 used for anything other than settlement conferences. But like the First Court’s Pilot Program, why not experiment in a way that seeks to improve the administration of justice?
1COA
SCI Funeral Services, LLC v. Mann, No. 01-25-00572-CV (Gunn, Caughey, Morgan, JJ.): Did the trial court err in denying the defendants’ motion to compel arbitration based on those provisions’ binding nature on plaintiffs, whether as direct signatories, third-party beneficiaries, or direct estoppel?
Appellants: Michelle Gray (Fogler O’Neil Gray)
Appellees: Joshua Lee (Armstrong, Lee & Baker)
Argument: April 2 at 1:30 pm
Castille v. State, No. 01-24-00418-CR (Adams, C.J.; Guerra, Guiney, JJ.): Did the trial court violate the defendant’s Fifth and Fourteenth Amendment rights by ordering him shackled during trial?
Appellant: Daucie Schindler (Harris County Public Defender’s Office)
Appellee: Ryan Thompson (Harris County District Attorney’s Office)
Argument: April 7 at 1:30 pm
Goloby v. Briones, No. 01-25-00409-CV & In re Vega, No. 01-26-00108-CV (Guerra, Johnson, Dokupil, JJ.): Did the trial court err in granting the governmental defendants’ plea to the jurisdiction based on a claim that Commissioner Adrian Garcia resigned when he accepted appointment to the Board of the Gulf Coast Protection District—and do the plaintiffs have standing to raise such a challenge?
Appellants/Relator: Jerads Najvar (Chalmer, Adams, Backer & Kaufman)
Appellees/Real Parties: Jonathan Fombonne (Office of Harris County Attorney)
Argument: April 8 at 1:30 pm
Zaragoza v. Fuentes, No. 01-24-00497-CV (Adams, C.J.; Guerra, Guiney, JJ.): Did the trial court properly dismiss a divorce dispute without prejudice to Mexican parallel litigation?
Appellant: Michael Kawalek (Kawalek Law)
Appellee: Christoper Odell (Arnold & Porter Kaye Scholer)
Argument: April 9 at 1:30 pm
14COA
Parker v. Well Cell Global LLC, No. 14-25-00909-CV (Bridges, Boatman, Antú, JJ.): Did the trial court properly enter a temporary injunction under Texas Rule of Civil Procedure 683 in a trade-secrets dispute?
Appellant: Joseph Golinkin (Jordan, Lynch & Cancienne)
Appellees: Lema Mousilli (Mousilli Law) and James Pierce, Esq.
Argument: April 7 at 10 am
Yilaam Housing, LLC v. Vivaldi Group, LLC, No. 14-25-00384-CV (Jewell, Wilson, Boatman, JJ.): Did the trial court properly grant summary judgment in a breach-of-contract claim and award damages on that claim, and did it err by not ruling on the defendant’s motion to compel arbitration?
Appellant: Walter Simons (Bracewell)
Appellee: Ashish Mahendru (Mahendru)
Argument: April 9 at 2 pm
Moe v. Bailey, No. 14-25-00387-CV (Jewell, Wilson, Boatman, JJ.): Did the trial court properly grant summary judgment on an invasion-of-privacy claim involving Amazon’s photographing a minor while delivering a package?
Appellant: Mo Taherzadeh (Taherzadeh)
Appellees: Shae McPhee (Perkins Coie)
Argument: April 9 at 2 pm
& Beyond
Having completed the first half of the process, let’s travel into the second half: & Beyond.
SCOTUS
In Washington, D.C., the Supreme Court sped up its decisional offense with four opinions—including a summary reversal in a qualified-immunity case and a copyright decision that, for those of us who used Napster, perhaps came a quarter-century too late.
Opinions
Cox Communications, Inc. v. Sony Music Entertainment, No. 24-171 (Fourth Circuit): Is an internet-service provider liable for contributory copyright infringement by continuing to provide internet access to users that are associated with infringement?
Majority (Thomas, J., joined by Roberts, C.J., and Alito, Kagan, Gorsuch, Kavanaugh, and Barrett, JJ.): No. The Copyright Act does not expressly contemplate contributory negligence, and while caselaw has created such a liability, its application should not be extended. Because the internet service provider neither induced its users’ infringement nor tailored its internet services to infringing use, it could not be found to have contributed to the infringement.
Concurrence in the Judgment (Sotomayor, J., joined by Jackson, J.): No, but for a different reason: the internet-service provider can’t be shown to have the requisite intent to aid or abet in copyright infringement. The majority improperly concludes that contributory negligence can only be shown if a third party induces infringement or tailors its services to infringing use, which is inconsistent with precedent and the statutory incentive structure Congress created in the Digital Millennium Copyright Act. But even under a broader conception of contributory negligence, the majority’s judgment is correct because the facts of the case foreclose the possibility of aiding-and-abetting liability.
Rico v. United States, No. 24-1056 (Ninth Circuit): If a criminal defendant absconds during a period of supervised release, does this extend (or toll) the period of supervised release until contact is reestablished with the defendant?
Majority (Gorsuch, J., joined by Roberts, C.J., and Thomas, Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson, JJ.): No. Nothing in the Sentencing Reform Act’s provisions about supervised release, absconders, or extension and tolling options support an automatic extension of a supervised-release period when the defendant absconds. And while applying such a rule might be appealing in practice, it leads to contradictory and paradoxical legal results.
Dissent (Alito, J.): Yes, and it has nothing to do with tolling. The Sentencing Reform Act allows judges to take a variety of factors into account when making sentencing determinations, and the district court below could have properly considered the post-release arrest in making its determination. What’s more, the sentencing guidelines are merely advisory, and judges are permitted to impose sentences outside the recommended guidelines to account for all the statutory factors.
Olivier v. City of Brandon, No. 24-993 (Fifth Circuit):2 Does Heck v. Humphrey bar Section 1983 claims seeking a declaration that a law is unconstitutional and an injunction against its enforcement when the claimant was previously convicted under the challenged law?
Majority (Kagan, J., for unanimous Court): No. Heck commands that Section 1983 claims are improper if they necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, but that bar has no application to claims that seek purely prospective relief from a law’s enforcement. Instead, the result in this case is dictated by Wooley v. Maynard, which states that a party is not precluded from challenging a law’s future enforcement because of a prior conviction that had already been sustained and that carried a sentence that had already been served.
Zorn v. Linton, No. 25-297 (Second Circuit) (no oral argument): Is an officer entitled to qualified immunity against a Fourth Amendment excessive-force claim when he uses a pain compliance technique on a passively resisting protestor?
Majority (per curiam): Yes. Summarily reversing, the Court explained that whether a particular use of force violates the Fourth Amendment depends on the specific facts and circumstances, and reasonable officers would not have interpreted past precedent to conclude using a routine wristlock on a resistant protestor after warning of its use would violate the Fourth Amendment. The Second Circuit’s conclusion that excessive-force claims may be based on gratuitous use of pain compliance techniques on a resisting protestor lacked the high degree of specificity required under the qualified-immunity doctrine.
Dissent (Sotomayor, J., joined by Kagan and Jackson, JJ.): No. A jury could have reasonably found the officer’s use of force was excessive when, among other factors, the charged crime was not particularly severe and the officer’s safety risk was low. Furthermore, the Second Circuit’s precedent holding that gratuitous use of pain compliance techniques against resisting protestors constitutes excessive force was sufficiently similar for qualified-immunity purposes. And at the very least, the decision was not so erroneous to warrant summary reversal.
Orders
In addition to its routine orders, the Court granted certiorari before judgment in another high-profile challenge to a Trump Administration immigration policy:
Noem v. Doe, No. 25-1083 (25A952) (Second Circuit) and Trump v. Miot, No. 25-1084 (25A999) (D.C. Circuit): Has the Government demonstrated its right to a stay of temporary injunctions postponing termination of Temporary Protected Status for immigrants from Haiti and Syria?
Order (per curiam): Consideration of the respective stay applications are deferred and treated as petitions for certiorari before judgment, which are granted. The cases are consolidated, and a total of one hour is allotted for oral argument to be heard during the second week of the April 2026 session.
Two cert. denials also drew dissents from Justice Sotomayor, including one involving a famous Texas death-row defendant.
Villareal v. Alaniz, No. 25-29 (Fifth Circuit):3 Are state officials entitled to qualified immunity from a First Amendment retaliation claim when they arrest a journalist under a law that had not previously been enforced and the complaint alleged facts demonstrating the arrest was the result of disapproval with First Amendment activity?
Majority (per curiam): Certiorari denied.
Dissent (Sotomayor, J.): No. The adverse action taken against the journalist is an “obvious case” of a First Amendment violation, because, in truth, the state officials punished the journalist for asking questions of governmental officials and subsequently publishing information disclosed by the answers. The Fifth Circuit’s contrary conclusion doesn’t withstand scrutiny: The officers had no probable cause to arrest the journalist because that determination cannot be based on constitutionally protected activity, the officers enforced the statute in an obviously unconstitutional way, and the independent-intermediary doctrine doesn’t apply when, as here, no reasonably competent officer could conclude the requested arrest warrant should issue.
Reed v. Goertz, No. 24-1268 (Fifth Circuit):4 Does the requirement in Texas’s postconviction DNA-testing statute of a finding that the to-be-tested material has not been contaminated through the chain of custody violate due process?
Majority (per curiam): Certiorari denied.
Dissent (Sotomayor, J., joined by Kagan and Jackson, JJ.): Maybe, but the Fifth Circuit failed to address Reed’s argument that the noncontamination requirement is arbitrary because testing can yield probative results even where the evidence is supposedly contaminated. The Court should accordingly GVR the case to the Fifth Circuit to consider this argument in the first instance.
Finally, the Court GVR’d one case in light of its recent opinion in Galette v. New Jersey Transit Corporation. Don’t remember that case? This brief summary [ed. note: authored by the better half of this duo] might refresh your recollection.
Arguments
The Court continues marching toward the end of argument season with four arguments, including one that will be sure to attract significant attention: the birthright-citizenship case.
March 30
Abouammo v. United States, No. 25-5146 (Ninth Circuit): Is venue proper in a district where no offense conduct takes place if the animating statute’s intent element contemplates that effects could occur in that forum?
Jules v. Andre Balazs Properties, No. 25-83 (Second Circuit): Does a federal court that initially exercises jurisdiction to stay a case pending arbitration maintain jurisdiction over a post-arbitration application to confirm or vacate an arbitration award under Sections 9 and 10 of the Federal Arbitration Act where jurisdiction over the application proceedings would otherwise be lacking?
March 31
Pitchford v. Cain, No. 24-7351 (Fifth Circuit):5 Was the Mississippi Supreme Court’s determination that a criminal defendant waived his right to rebut the prosecutor’s asserted race-neutral reasons for peremptorily striking four Black jurors unreasonable under the Antiterrorism and Effective Death Penalty Act?
April 1
Trump v. Barbara, No. 25-365 (D.N.H.): Does Executive Order 14,160—which limits citizenship to individuals born in the United States to American parents—facially violate the Constitution’s Citizenship Clause and the statute codifying the clause?
All oral arguments can be livestreamed here.
SCOTX
Meanwhile, the nine in Austin took fewer shots over the past two weeks, issuing one summary per curiam reversal and one unanimous opinion.
Opinions
Landry v. Landry, No. 24-0910 (Fifth Court): Did the court of appeals perform a proper analysis to determine whether certain investment accounts were sufficiently shown to be separate property?
Majority (per curiam): No. The trial court heard “extensive, unrebutted expert testimony regarding the separate character of the two investment accounts at issue.” But instead of crediting this evidence, the court of appeals substituted its own judgment for that of the trial court by treating purportedly missing statements as dispositive despite this expert testimony. Rather than remanding to the Fifth Court for a second time,6 the Court rendered judgment reinstating the trial court’s judgment.
Diamond Hydraulics, Inc. v. GAC Equipment, LLC, No. 24-1049 (Third Court): Did the district court err in denying a motion to substitute experts made years after the expert deadline after the original testifying expert left his previous job and refused to testify?
Majority (Sullivan, J., for unanimous Court): Yes. “Good cause is a demanding standard, not an impossible one,” and finding good cause here was supported by four facts: (1) the original testifying expert’s unavailability was outside of the party’s control; (2) the party nonetheless tried its best to get the original expert to testify rather than standing idly by; (3) the expert testimony’s subject matter—causation—was the “cornerstone” of the case; and (4) the court treated the parties differently when it permitted the other party’s untimely designated expert witness to testify. And none of the countervailing arguments persuade, because the record demonstrates the expert was not going to testify, there was no fault in failing to anticipate the expert would not testify, and Rule 193.6 requires either good cause or a lack of prejudice—not both.
Orders
In addition to its typical denials, the Court also granted five petitions for review, all set to be heard in September:
Comprehensive Training Center, LLC v. Edcouch-Elsa Independent School District, No. 24-0772 (Thirteenth Court): Did the court of appeals err in granting a school district’s plea to the jurisdiction based on governmental immunity when the district argued the superintendent who executed the contract lacked the authority to do so?
ACS State Healthcare, LLC v. M&M Orthodontics, PA, No. 24-0802 (Third Court): (1) Did the court of appeals have jurisdiction to hear this interlocutory appeal under Section 51.014(a)(5) of the Civil Practice and Remedies Code, Section 51.014(a)(8), or any other source of interlocutory appellate jurisdiction? (2) Did the court err in concluding that an issue of subject-matter jurisdiction was so intertwined with the merits it could not adjudicate the jurisdictional question? (3) Did the court err in concluding there was no “employee” relationship triggering application of the election-of-remedies bar? (4) Did the court misapply Supreme Court precedent by refusing to dismiss the case when the pleaded theory of liability required proof that the State’s enforcement actions were fraudulent?
Morris v. Old Republic Insurance Company, No. 24-1034 (Twelfth Court): (1) Did the court of appeals err in basing a ruling on an issue that was not presented to the trial court and was not raised until the appellant’s reply brief? (2) Did the court err by grafting a “settlement credit limitation” from a different statute onto the Worker’s Compensation Act? (3) Should an insurance company have been found to be estopped from relying on a settlement credit limitation when it represented in a settlement release it would not seek a subrogation interest or any kind of credit?
In re L.H., No. 25-0229 (First Court):7 Did the court of appeals erroneously interpret the phrase “practicable to proceed” in the Texas Family Code to mean “reasonably feasible to begin and carry on an action or go on and do something,” and did it erroneously omit from its sufficiency analysis events that occurred after the respondent’s 18th birthday?
Zody v. Aran & Franklin Engineering, Inc., No. 25-0374 (Thirteenth Court): Did the trial court abuse its discretion in denying a motion to dismiss when a certificate of merit required under Section 150.002 of the Civil Practice and Remedies Code came from a licensed engineer who was not specifically appointed as a qualified inspector by the Department of Insurance, and when a separate certificate of merit from a different engineer had already been filed?
The Court also set one case for submission in September from the Fifth Circuit:
Canada v. Sherman, No. 26-0127 (Fifth Circuit):8 Is an LLC membership interest exempt property in a federal bankruptcy proceeding, based on section 101.112 of the Texas Business Organizations Code?
Finally, the Court set two mandamus petitions for oral argument, also in September:
In re Bosco, No. 25-0421 (Third Court): Did the trial court abuse its discretion by permitting a property inspection when there was insufficient evidence demonstrating need and the information could have been obtained from less-intrusive sources, and does a party have an adequate remedy at appeal if a trial court erroneously permits inspection?
In re Simon Property Group, L.P., No. 26-0023 (Fifth Court): Did the trial court abuse its discretion in denying a Rule 91a motion when the allegations do not demonstrate a duty, establish a superseding cause for the sustained injuries, and assert an ordinary negligence claim that in truth sounds in premises liability?
Arguments
The Court has concluded arguments for this Term.
CA5
From Austin, we head east to New Orleans, where the Fifth Circuit remained more on the ball than the Pelicans have managed lately.
Opinions
Clouse v. Southern Methodist University, No. 24-10860 (King, Higginson, Wilson, JJ.): Affirming a $180,000 cost award, the Fifth Circuit held that SMU was a prevailing party after summary judgment and that the Pacheco factors supported the award of costs. The court approved taxing costs for both videotaped and written deposition transcripts where reasonably necessary for trial preparation and treated scanning as “copying” under § 1920(4), while noting that the district court correctly excluded non-taxable e‑discovery processing and duplicative copy items.
Intuit, Inc. v. Federal Trade Commission, No. 24-60040 (Jones, Barksdale, Ho, JJ.): Did Article III bar the FTC from adjudicating a Section 5 deceptive‑advertising case before an ALJ, requiring the matter to proceed in federal court?
Majority (Jones, J.): Yes. Deceptive‑advertising claims are “private‑rights” disputes closely analogous to common‑law fraud and deceit, so Jarkesy requires adjudication in an Article III court rather than agency in‑house proceedings.
Concurrence (Ho, J.): Yes. And there are multiple constitutional problems with the FTC, which combines legislative, executive, and judicial authority.
Williamson v. United States, No. 25-10565 (Wiener, Willett, Wilson, JJ.): Do binding Fifth Circuit precedents foreclose Williamson’s as-applied Second Amendment and Commerce Clause challenges to 18 U.S.C. § 922(g)(1), even if some of that precedent may warrant reconsideration?
Majority (per curiam): Yes. Affirming, the Fifth Circuit held Williamson’s as-applied Second Amendment challenge failed under existing circuit precedent because his prior felony convictions for deadly conduct by discharging a firearm were closely analogous to the violent criminal history that defeated a similar challenge in Reyes. The panel rejected Williamson’s request for a remand for fresh Bruen analysis because one panel could not overrule another absent an intervening change in law. It also treated his Commerce Clause challenge as foreclosed by circuit precedent, denied the Government’s motion for summary affirmance as unnecessary, and affirmed without further briefing.
Concurrence (Willett, J., joined by Wilson, J.): Yes. But it’s questionable whether Fifth Circuit precedent upholding § 922(g)(1) under the Commerce Clause was correctly decided, as mere firearm possession does not fit comfortably within the original meaning of Congress’s commerce power. There’s also tension in the circuit’s post-Diaz as-applied Second Amendment cases—some opinions ask whether the predicate felony matches a Founding-era felony punishable by death or forfeiture, while others rely on a broader dangerousness inquiry.
SEC v. Barton, No. 24-10788 (Davis, Jones, Stewart, JJ.): Affirming in part and dismissing in part, the Fifth Circuit first held it lacked appellate jurisdiction over the district court’s approval of the receiver’s sale of the Amerigold Suites and two receivership settlement orders, but it could review the completed sale of the Hall Street property under the collateral-order doctrine. The Amerigold dispute was moot because the sale had fallen through, and the settlement approvals were non-sale administrative orders that fell outside the court’s interlocutory appellate jurisdiction. As to Hall Street, the district court acted within its discretion in approving the sale before final judgment, rejecting the defendant’s request to create a new rule barring pre-judgment sales absent “exigent circumstances.”
Megatel Homes, L.L.C. v. City of Mansfield, Texas, No. 25-11006 (Haynes, Higginson, Ho, JJ.): Reversing and remanding the district court’s refusal to exercise supplemental jurisdiction, the Fifth Circuit held that the City was not entitled at the pleading stage to state-action immunity from Megatel’s Sherman Act claims arising from the city’s alleged control over water service for a development in its extraterritorial jurisdiction. Although the Texas Water Code clearly permits monopoly power to the utility holding the relevant certificate of convenience and necessity, the statute did not grant the same power to the City itself. As a result, the City was not entitled to state-action immunity on the pleadings.
Arnesen v. Lutnick, No. 24-60055 (Wiener, Haynes, Higginson, JJ.): Affirming summary judgment for the Government, the Fifth Circuit rejected commercial fishers’ effort to set aside a final rule implementing Gulf of Mexico greater-amberjack catch reductions based on an Appointments Clause challenge to members of the Gulf of Mexico Fishery Management Council. Although the councilmembers’ veto-related powers under the Magnuson-Stevens Act conferred significant authority in violation of the Appointments Clause, those powers were severable, leaving the councilmembers as advisors or employees rather than officers whose appointments tainted the rule. None of the other challenged powers, by contrast, conferred significant authority on the councilmembers. Finally, the fishers’ removal-based challenge failed for lack of any showing that an unconstitutional removal restriction caused their injury.
Arguments
Several panels of the Fifth Circuit will hear argument during the week of March 30.
15COA
One final possession—this time from our statewide court of appeals.
Opinions
White v. First United Bank & Trust Co., No. 15-26-00004-CV (Brister, C.J.; Field, Farris, JJ.) (order): Lifting its administrative stay and denying an emergency motion, the Fifteenth Court affirmed the trial court’s supersedeas order and declined to enjoin foreclosure pending appeal. The $3.8 million security was not arbitrary because it tracked the Rule 11 agreement’s minimum‑collateral requirement. As an “other” judgment under Texas Rule of Appellate Procedure 24.2(a)(3), the net‑worth procedure for money judgments did not apply. And in any event, the judgment debtor failed to provide a record showing changed circumstances.
Kenedy County Wide School District v. Hancock, No. 15-24-00079-CV (Brister, C.J.; Field, Farris, JJ.): Does substantial evidence supports the Comptroller’s chosen adjustment to the appraisal values of a county’s ranchland?
Majority (Brister, C.J., joined by Field, J.): Yes. The Comptroller wrongly concluded that Section 403.302(b)(4) of the Government Code excludes open-space land, and thus productivity-value protests still fall within protests determined under Tax Code Section 41.43. Even so, the Comptroller had discretion to determine what adjustment was appropriate and was not required to mirror the ARB’s reduced values. Here, the Comptroller provided evidence to support the $105.20-per-acre figure, while the ARB orders gave no reasoning beyond unexplained reductions.
Concurrence in Part and Dissent in Part (Farris, J.): Yes and no. The majority correctly concludes that open-space land is not excluded from Section 403.302(b)(4). But the further question of what adjustment was “appropriate” should be decided first by the Comptroller, rather than by the court. When an agency misinterprets its governing statute (as the Comptroller did here), the proper course is remand.
Aspire Power Ventures, LP v. Public Utility Commission of Texas, No. 15-24-00118-CV (Brister, C.J.; Field, Farris, JJ.): Affirming orders granting the PUC and ERCOT’s pleas to the jurisdiction, the Fifteenth Court rejected Aspire’s lawsuit to ERCOT’s contingency-reserve-service protocols and related PUC approval orders. ERCOT protocols are not rules adopted by a state agency under the APA, so Aspire’s APA-based challenges fail. Aspire’s ultra-vires claims also fail because the commissioners acted within their statutory authority in allowing ERCOT to adopt and implement the protocols. Finally, the district court lacked jurisdiction: The PUC has exclusive jurisdiction over protocol disputes, and Aspire didn’t pursue and exhaust the requisite administrative-review process for ERCOT protocols.
Arguments
The Fifteenth Court’s next argument session is on April 23.
Red Light
The clock reads 0.0, the red light is on, and the buzzer has sounded.
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Appellees’ . . . unique . . . motion appears to have been driven by two factors: briefing’s completion some eight months ago, coupled with the appellants’ request for oral argument.
Judge Douglas wrote the panel opinion, joined by Judges Weiner and Graves.
Judge Jones authored the en banc majority opinion, joined by Judges Smith, Stewart, Richman, Southwick, Haynes, Duncan, Engelhardt, Oldham, and Wilson. Judge Higginson authored the en banc dissenting opinion, joined by Chief Judge Elrod and Judges Graves, Willett, and Douglas. Judges Ho and Ramirez did not participate.
Chief Judge Elrod authored the panel opinion, joined by Judges Jones and Higginson.
Judge Duncan authored the panel opinion, joined by Judges Haynes and Willett.
The opinion’s tart language makes evident the Court’s frustration with the Fifth Court.
Justice Countiss authored the panel opinion, joined by Chief Justice Adams and Justice Hightower.
Judge Ho authored the Fifth Circuit panel opinion, joined by Judges Southwick and Willett.
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