26-09: Time
A look back to the weeks of April 13 and 20, with help from Pink Floyd
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!
Saddle up, as I’ve got things on my mind this week . . .
Feature
Due to travel and other obligations over the past two weeks, we’re skipping the Opening Statement this week and going directly into the Feature. For that, we travel in Time to a place far more boring than the Dark Side of the Moon: Washington, D.C.
Enbridge Energy, LP v. Nessel, No. 24-783 (Sotomayor, J., for unanimous Court): In an important civil-procedure opinion, the U.S. Supreme Court reminded litigants that you can’t simply tick away the moments that make up a dull day. When a case is removable at the outset, the clock starts immediately. If the case is removable when served, 28 U.S.C. § 1446(b)(1) gives the defendant 30 days to remove, and that deadline cannot be equitably tolled.
The facts brought the point home, home again. Michigan’s attorney general sued Enbridge in state court in June 2019, seeking to shut down pipeline operations under state law. Instead of removing to federal court within 30 days, Enbridge litigated in state court for months—only to remove almost 900 days later, after a related federal case produced a favorable ruling on federal-question jurisdiction.
That softly spoken magic spell didn’t work. In a unanimous opinion, the Court held that even assuming the removal deadline is nonjurisdictional, the statute’s text, structure, and context show that Congress didn’t want open-ended equitable tolling for late civil removals. Congress built specific timing rules and specific exceptions into the removal statutes—including later removal when removability is first ascertained later, and targeted “for cause shown” extensions in certain other contexts—but not a general escape hatch for cases removable from the outset.
The broader practice point is just as useful. Removal doctrine is built to settle forum fights early, not after months of state-court litigation while the defendant waits to see whether the federal path looks better. The Court emphasized efficiency, finality, and the waste that follows when a threshold forum issue is left unresolved at the front end. And though the Court footnoted that its decision addressed only equitable tolling—not other doctrines such as waiver, forfeiture, or estoppel—the album cover remains the same: If the case is removable on day one, don’t assume you can wait for someone or something to show you the way to remove.
N.B.: Time isn’t just trippy background music in removal practice; it’s the point. If you fritter and waste the hours in an offhand way once the removal clock has already started, you may eventually find that the time is gone to remove.
1910
Orders and Opinions
Before time gets away from us entirely, let’s come back down to earth—and, more specifically, to Houston. Speak to Me, local courts: below are brief summaries of notable orders and opinions from the First and Fourteenth Courts.
1COA
Houston International Management & Trade, Inc. v. Peacock Shipping and Trading, Inc., No. 01-24-00542-CV (Adams, C.J., Gunn, Johnson, JJ.): Affirming, the First Court upheld the judgment rejecting HIM’s adverse-possession and trespass-to-try-title claims over commercial-property lots. The jury could reasonably find HIM’s possession was not hostile because the testimony supplied some evidence that HIM was managing the properties under a verbal management agreement, rather than claiming them as its own. Because HIM didn’t meet its burden to establish title to the properties through adverse possession, the trial court’s judgment properly declared Peacock to be owners of certain lots. Finally, HIM’s new-trial arguments failed because juror-misconduct allegations were supported only by affidavit, not live evidence as required under Texas Rule of Civil Procedure 327; and a declaration was new evidence rather than newly discovered evidence.
Goloby v. Briones, Nos. 01-25-00409-CV, 01-26-00108-CV (Guerra, Johnson, Dokupil, JJ.): Affirming the dismissal for lack of jurisdiction, the First Court held that Commissioner Adrian Garcia didn’t resign his office as county commissioner by accepting appointment to the Gulf Coast Protection District board because the self-appointment branch of the incompatibility doctrine made that appointment void ab initio. The Commissioners Court couldn’t appoint one of its own members to an office within its appointing power, and that rule applies even to an uncompensated office that gives the appointee new governmental powers. Because Commissioner Garcia remained an official-capacity defendant, governmental immunity barred the claims.
Humphries Construction Corp. v. Highland Village Limited Partnership, No. 01-23-00651-CV (Rivas-Molloy, Johnson, Dokupil, JJ.): Reversing the order abating arbitration, the First Court held the parties didn’t clearly and unmistakably delegate waiver-by-litigation-conduct issues to the arbitrator, but Highland Village still failed to show Humphries substantially invoked the judicial process. Although Humphries filed a placeholder lien-foreclosure suit, sought temporary injunctive relief, and obtained limited third-party financial records, its conduct was largely directed to preserving its rights pending arbitration. Coupled with its early demand for arbitration, its conduct fell short of the kind of merits-focused litigation that waives arbitration.
M-I L.L.C. v. Texas International Terminals, Ltd., No. 01-24-00608-CV (Gunn, Morgan, Dokupil, JJ.): Reversing and remanding, the First Court held the trial court rewrote the parties’ unambiguous settlement agreement by adding adjustment language to the annual-payment term and by requiring M-I to remove equipment on TXIT’s request. The court’s contrary determination impermissibly rested on TXIT’s extrinsic, course-of-dealing evidence, which couldn’t be used to contradict the agreement’s plain language.
In re Miller, No. 01-26-00319-CV (Adams, C.J., Caughey, Morgan, JJ.) (per curiam) (orig. proceeding): Was relator entitled to mandamus relief from a party chair’s ruling declaring her ineligible for the general election?
Majority (per curiam): No. The relator didn’t file a complete mandamus record, as Texas Rule of Appellate Procedure 52.7(a) requires.
Concurrence (Adams, C.J.): No. Additionally, the petition appears to contain AI-fabricated quotations and case citations. “Filing a document in our Court with fictitious or misleading citations—whether generated by AI and not checked by a human, or otherwise—is a serious breach of candor that this Court cannot tolerate.” This behavior “will require the Court to take the necessary corrective action including, but not limited to, striking the offending brief and reporting counsel to the State Bar.”
14COA
McCoy v. Van Sickle, No. 14-24-00501-CV (Wilson, Bridges, Antú, JJ.): Affirming the attorney’s-fees award following a bench trial, the Fourteenth Court held the evidence was sufficient to support fees awarded to Van Sickle under the Texas Uniform Fraudulent Transfer Act after McCoy nonsuited his fraudulent-transfer and veil-piercing claims against her. Morris’s testimony and billing records sufficiently supported the lodestar calculation, as well as the trial court’s rejection of McCoy’s arguments that segregation between the claims and parties was required. The Fourteenth Court also declined to adopt the Fifth Circuit’s factors for deciding whether a TUFTA fee award is “equitable and just,” instead following analogous Texas authority that allows consideration of “the concept of fairness, considering all the circumstances of a case.”
Mont Belvieu Caverns, LLC v. DCP Partners MB II LLC, No. 14-25-00085-CV (Christopher, C.J., Wilson, Bridges, JJ.): Affirming summary judgment for Phillips 66, the Fourteenth Court concluded that the parties’ operating agreement encompassed Frac IV as a joint-venture asset rather than Enterprise’s sole property. The court reasoned that the agreement’s definition of “Facilities” extends to later alterations, additions, and enlargements made under the agreement, contains no geographic limitation confining expansions to the original site—and, in any event, Frac IV was physically and operationally connected to the original site through essential piping and shared deisobutanizer capacity. It also concluded that, once Phillips 66 elected non-participating-owner status in response to Enterprise’s offer, the agreement didn’t permit Enterprise to unilaterally withdraw that offer.
Sparks v. McLean, No. 14-24-00888-CV (Jewell, McLaughlin, Antú, JJ.): In an interlocutory appeal under the Texas Citizens Participation Act, the Fourteenth Court affirmed the denial of the Advocacy Group’s motions to dismiss because the alleged defamatory statements in its shareholder letter weren’t made in connection with a matter of public concern. Although the bank was a women-owned minority depository institution, the challenged statements concerned a private shareholder dispute over board composition and alleged director misconduct, with no shown relevance to a wider public audience beyond shareholders and investors. As a result, the motion failed at the TCPA’s first step.
Westland Section Four Owner’s Association v. Prime Investing Group, No. 14-23-00832-CV (Jewell, Bridges, Antú, JJ.): Affirming the judgment, the Fourteenth Court held the evidence was legally sufficient to support the jury’s finding that Westland breached the restrictive covenants by unreasonably denying Prime’s proposal to build a machine shop. The evidence showed that Westland denied the proposal without giving any reason and never explained its decision even after Prime requested one, which supported the unobjected-to charge’s definition of an arbitrary denial as one made “without reason.” And Westland waived any complaint about the alternate juror’s participation in the first deliberations by waiting to object until after the verdict was read and accepted to object. As a result, the only verdict properly before the court was the first unanimous verdict for Prime.
Burrow v. Bryan Texana Foundation, No. 14-24-00787-CV (Christopher, C.J., Wilson, Bridges, JJ.): Affirming no-evidence summary judgment, the Fourteenth Court held the plaintiffs produced no evidence on the foreseeability component of proximate cause in this premises-liability case. The Museum’s loading-ramp area was marked by a large yellow-striped zone and planters, there was room to avoid the curb, and the Museum had no prior complaints or trip-and-fall incidents despite roughly 26,000 annual visitors over the two years the ramp had been in use. Finally, the architect’s contrary foreseeability opinion didn’t raise a scintilla of evidence because it failed by failing to account for these undisputed facts and thus was conclusory.
iGeo, LLC v. Jiang, No. 14-24-00691-CV (Wise, McLaughlin, Antú, JJ.): Affirming the judgment confirming the arbitration award, the Fourteenth Court held the arbitrators didn’t exceed their authority by imposing quantum-meruit liability on Rong Shu individually. Jiang pleaded a quantum-meruit claim against both iGeo and Shu, appellants themselves moved to compel that claim to arbitration, and the trial court ordered all counts to arbitration, so Shu’s individual liability was plainly among the issues submitted to the panel. Appellants’ veil-piercing complaint was merely an attack on the arbitrators’ legal or factual reasoning, rather than on their power to decide the submitted claim, and thus was not a basis to vacate the award.
Arguments
To the B-side of the 1910 vinyl: the upcoming oral arguments.
1COA
Union Pacific Railroad Co. v. Johnson, No. 01-23-00900-CV (Adams, C.J., Guerra, Guiney, JJ.): Multiple trial issues arising from a $73-million judgment, including sufficiency of the evidence, charge error, evidentiary error, excessive damages, and closing argument.1
Appellant: Kent Rutter (Haynes Boone)
Appellee: Russell Post (Beck Redden)
Argument: April 28 at 1:30 pm
Russell v. Sadler, No. 01-24-00843-CV (Gunn, Caughey, Morgan, JJ.): Did the trial court err in granting summary judgment on plaintiff’s breach-of-contract claim based on the existence of fact issues on contractual ambiguity?
Appellant: Thomas Michel (Griffith, Jay & Michel)
Appellees: Chad Arnette (Kelly Hart & Hallman)
Argument: May 6 at 11 am
Perez v. State, No. 01-23-00705-CR (Guerra, Gunn, Caughey, JJ.): Among other issues, can an insufficient indictment be challenged for the first time on appeal? And were the trial judge’s voir dire comments improper?
Appellant: Ted Wood (Harris County Public Defender’s Office)
Appellee: Shawna Reagin (Harris County District Attorney’s Office)
Argument: May 6 at 1:30 pm
Pat Black Properties, LLC v. Murff, No. 01-24-00941-CV (Gunn, Caughey, Morgan, JJ.): Did the trial court err in granting summary judgment on plaintiff’s nuisance claim (assuming one was pleaded) based on the statute of limitations? And did the appellant waive any error by failing to challenge all grounds on which summary judgment was granted?
Appellant: Elliot Kudisch (Andrews Myers)
Appellees: Cody Stafford (Dobrowski Stafford & Pierce)
Argument: May 7 at 1:30 pm
14COA
In re Jim S. Adler & Associates, No. 14-26-00041-CV (Jewell, McLaughlin, Antú, JJ.): Is mandamus relief warranted from the trial court’s order disqualifying an entire law firm from representing the defendants in a personal-injury lawsuit?
Appellant: Rodney Drinnon (McCathern Houston)
Appellee: David Kassab (The Kassab Law Firm)
Argument: April 28 at 2 pm
Ex parte Dixon, No. 14-25-00045-CR (Christopher, C.J., McLaughlin, Boatman, JJ.): Did the trial court err in denying the defendant pretrial habeas relief based on double jeopardy?
Appellant: Mandy Miller (Mandy Miller Legal)
Appellee: Angela Kao (Fort Bend County District Attorney’s Office))
Argument: May 5 at 2 pm
Hayden v. Federal Home Loan Mortgage Corp., No. 14-25-00883-CV (Christopher, C.J., McLaughlin, Boatman, JJ.): In a home-equity-lien dispute, did the trial court err in dismissing the homeowners’ claims based on the absence of a live controversy?
Appellants: Jeffrey Jackson (Jeffrey Jackson & Associates)
Appellees: Jessica Riley (Hinshaw & Culbertson)
Argument: May 5 at 2 pm
& Beyond
Let’s hop into that Learjet I think I need and head off into & Beyond.
SCOTUS
The past two weeks in Washington have unfolded in a slightly lower register. As the Court concludes its argument calendar for the Term, it issued three opinions—not counting Enbridge—where the Justices engaged in their typical battle of words.
Opinions
Chevron USA Inc. v. Plaquemines Parish, No. 24-813 (Fifth Circuit):2 Does an oil-and-gas company’s production of crude oil for refining into aviation gas “relate to” its role as an agent of the federal government, thereby triggering application of the federal officer removal statute?
Majority (Thomas, J., joined by Roberts, C.J., Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett, JJ.): Yes. Because “relating to” sweeps broadly, removal under the federal officer statute doesn’t require a party to demonstrate its “federal duties specifically required or strictly caused the challenged conduct.” Chevron’s case fits comfortably within this meaning of “relating to.” Because the crude oil Chevron produced was the “essential feedstock” of the aviation gas it was contracted to provide, Chevron’s acts in obtaining this crude are related to its contracted-for duty, particularly given how important aviation gas was to the war effort.
Concurrence in the Judgment (Jackson, J.): Yes, but the statute demands more than the indirect relationship found by the majority. Instead, removal is proper if there is a causal relationship between the targeted conduct and the federal duties. This interpretation better accords with Congress’s intent in its 2011 amendment to the federal-officer0removal statute, because the statutory and legislative history demonstrates Congress intended to retain the causal-nexus requirement previously applied by the Court. The addition of “relating to” wasn’t intended to expand the potential scope of removal, but instead to cover pre-suit discovery proceedings.
Hencely v. Fluor Corp., No. 24-924 (Fourth Circuit): Are state-law claims premised on a military contractor’s activity in a war zone preempted even when the contractor was not required or authorized to take the action at issue?
Majority (Thomas, J., joined by Sotomayor, Kagan, Gorsuch, Barrett, Jackson, JJ.): No. Neither the Constitution nor any federal statute explicitly preempts these claims, and neither does the Court’s opinion in Boyle v. United Technologies Corp. The Court has repeatedly emphasized that Boyle’s reach is narrow and will rarely apply when the litigation is purely between private parties. And even granting that there is a “uniquely federal interest” in regulating military bases overseas, there is no conflict between that interest and state-law negligence liability when the contractor’s actions are contrary to federal law. The Fourth Circuit’s test —that the imposition of state law, in and of itself, conflicts with federal law governing military bases—sweeps too broadly, and the Constitution’s assignment of war powers to the other branches has never been understood to bar all war-related tort suits.
Dissent (Alito, J., joined by Roberts, C.J. and Kavanaugh, J.): Yes. The Constitution entrusts the power to make war and conduct combat operations exclusively to Congress and the President, and permitting this suit to continue intrudes upon those powers. Indeed, adjudication of this suit is very likely to entail an evaluation of the Government’s policy decisions during wartime, and may involve discovery of sensitive documents or depositions from individuals that will interfere with their combat responsibilities and, potentially, the military chain of command. Furthermore, applying state law tort principles in these circumstances will likely lead to thorny choice-of-law problems, and simply identifying the relevant legal principles to inform this analysis would be a challenge.
District of Columbia v. R.W., No. 25-248 (D.C.) (summary reversal): In considering whether there is a reasonable suspicion of criminal activity, may a court exclude certain facts known to the officer at the time?
Majority (per curiam): No. The totality-of-the-circumstances test that governs reasonable-suspicion determinations precludes piecemeal analysis of individual facts and instead requires courts to consider “the whole picture.” Here, the D.C. Court of Appeals failed to consider all of the circumstances in analyzing whether there was reasonable suspicion.
Dissent (Jackson, J.): There is no need for the Court to intervene in this case—much less to intervene through a summary reversal—because the D.C. Court of Appeals below properly understood the nature of the inquiry. While the court stated it “excised” certain factors from the inquiry, that appears to be a “poor word choice” than a methodological error. And if the Court’s decision to intervene is driven by its “disapproval” of the court’s assessment of which particular facts should control, such a fact-bound correction is an improper use of summary adjudication.
Justice Sotomayor would simply deny the petition.
Orders
In addition to its usual denials, the Court GVR’d one petition based on Zorn v. Linton, while granting two cert. petitions:
St. Mary Catholic Parsh v. Roy, No. 25-581 (Tenth Circuit): Does proving a lack of a law’s general applicability under Employment Division v. Smith require a showing of unfettered discretion or categorial exemptions for identical secular conduct? And does Carson v. Makin displace the rule in Smith when the Government explicitly excludes religious people and institutions?
Beaird v. United States, No. 25-5343 (Fifth Circuit):3 Does Stinson v. United States still correctly state the rule for deference that courts must give to the commentary of the Sentencing Guidelines?
Arguments
The Court will get a chance to Breathe, breathe in the air as it concludes arguments for this Term with four arguments in three days—closing with a consolidated argument on the Trump Administration’s immigration policies.
April 27
Chatrie v. United States, No. 25-112 (Fourth Circuit): Does the Fourth Amendment require law enforcement to update a “geofence warrant” when law enforcement seeks information about device movement or de-anonymized subscriber information?
Monsanto Co. v. Durnell, No. 24-1068 (Missouri Court of Appeals): Does the Federal Insecticide, Fungicide, and Rodenticide Act preempt a label-based failure-to-warn claim when the Environmental Protection Agency has not required the warning?
April 28
Cisco Systems, Inc. v. Doe I, No. 24-856 (Ninth Circuit): Does the Alien Tort Statute or the Torture Victim Protection Act allow a judicially implied private right of action for aiding-and-abetting liability? And if the Alien Tort Statute so provides, is the required mens rea knowledge or purpose?
April 29
Mullin v. Doe, No. 25-1083 (Southern District of New York), consolidated with Trump v. Miot, No. 25-1084 (District of the District of Columbia): Can the Trump Administration terminate the Temporary Protected Status Program for Syrian and Haitian nationals?
All oral arguments can be livestreamed here.
SCOTX
Whatever calm prevailed in Washington didn’t extend to Austin, where the Supreme Court of Texas was operating at a run, rabbit, run pace.
Opinions
Webb Consolidated Independent School District v. Marshall, No. 24-0339 (Fourth Court): Does a litigant “prevail” under the Texas Education Code when it obtains preliminary injunctive relief?
Majority (Lehrmann, J., for unanimous Court): Yes. While obtaining temporary injunctive relief is generally not sufficient to create prevailing party status, here the trial court’s order effectively granted the very relief authorized by statute. Indeed, in this case, the recipients of preliminary relief “prevailed” in the only way the statute allows, blurring any distinction between temporary and permanent relief.
Concurrence (Hawkins, J., joined by Young and Sullivan, JJ.): Yes, but only because “the so-called ‘temporary injunction’ issued by the trial court was not actually a temporary injunction.” Instead, given the unusual statutory scheme, the injunction did not merely preserve the status quo but instead granted ultimate relief. But future litigants and courts should take care not to read the majority opinion too broadly.
Muth v. Voe, No. 24-0384 (Third Court), consolidated with Abbott v. Doe, No. 24-0385 (Third Court): Is an appeal challenging temporary-injunction orders prohibiting the Department of Family and Protective Services from investigating reports of minors using puberty blockers and hormone therapy in transitioning therapy moot when the Department permanently closes its investigation and the minors reach the age of majority?
Majority (per curiam):4 Yes. The closure of the Department’s investigations means three of the families no longer face a credible, nonspeculative threat of a future investigation, and the final family’s claims are mooted because the child subject to the investigation has obtained the age of majority. The Department’s unambiguous assertions that it will not investigate new reports based on the same allegations obviates any concern that it could re-open investigations following dismissal, and the Department’s testimony as a whole supports taking these assertions at face value. Furthermore, the Court lacks jurisdiction over claims brought by a psychiatrist who treats children diagnosed with gender dysmorphia because there are no allegations of prosecution or investigation or that patients will sue or leave the psychiatrist’s practice if she complies with state regulations.
Concurrence (Blacklock, C.J.): While the families’ claims are moot, the psychiatrist likely has standing based on the increased reporting burden that she faces under the law. Even so, the injunction should be vacated based on the merits. Since these cases were initiated, Texas has banned gender-transition therapy for children, and both this Court and the U.S. Supreme Court have affirmed the constitutionality of such bans.
In re Bell Helicopter Services, Inc., No. 24-0883 (Fourteenth Court):5 Is mandamus relief warranted from a trial court’s denial of a motion for summary judgment based on the federal General Aviation Revitalization Act (GARA)’s statute of limitations?
Majority (Blacklock, C.J., for unanimous Court): Yes. While couched as a limitations period, GARA in truth operates as a statute of repose by barring claims that arise more than 18 years after the manufacturer’s delivery of the aircraft. While the statute also provides that the repose period is reset with the installation of a new part that later causes an accident, that exception does not apply here: Contrary to the plaintiff’s argument, no state or federal court has ever concluded that revising part of a flight manual means the entire manual is “new,” thereby triggering a new repose period. In other words, “[r]eplacing some parts or components of a system does not restart a repose period for the entire system,” and the section of the flight manual that covers the part that allegedly caused the accident has never been revised. And while mandamus review is generally not available for denial of summary judgment, this case falls presents an exceptional circumstance because GARA’s statute of repose provides a right against litigation, not merely liability.
Boren Descendants & Royalty Owners v. Fasken Oil & Ranch, Ltd., No. 25-0010 (Eleventh Court), consolidated with The Mabee Ranch Royalty Partnership, L.P. v. Fasken Oil & Ranch, Ltd., No. 25-0012 (Eleventh Court): Did the court of appeals err in concluding it lacked jurisdiction to consider arguments based on the presumed-grant doctrine because the issue wasn’t specifically identified in the district court’s order certifying a permissive interlocutory appeal?
Majority (per curiam):6 Yes. The inquiry on whether a court of appeals has jurisdiction to consider an issue on permissive interlocutory appeal does not turn entirely on the district court’s certification order. Instead, jurisdiction exists over all issues that are “fairly included” in the order. Declining to exercise jurisdiction to consider the presumed-grant doctrine would result in inefficiency and thwart the purpose of the permissive interlocutory appeal statute.
Texas Commission on Environmental Quality v. Paxton, No. 23-0244 (Third Court): Was the Texas Commission on Environmental Quality presumptively required to provide information in response to a request under the Public Information Act because the Commission’s required letter to the Attorney General requesting an opinion on whether the information should be disclosed was sent after the statutorily imposed ten-business-day deadline?
Majority (Sullivan, J., joined by Blacklock, C.J., Devine, Bland, Huddle, Young, Hawkins, JJ.): No. Although the Attorney General initially determined the letter had not been timely sent, it subsequently acknowledged its original position was wrong and that the Commission had met the ten-business-day deadline. This subsequent position, and not the initial finding the deadline had been missed, was correct: The deadline clock was restarted when the Commission requested ways to narrow the information request, and application of the mailbox rule means the letter was timely submitted. And the question of what constitutes a “business day” requires wading into a thicket of Texas law on retroactivity, an unnecessary task given the surrounding circumstances.
Dissent (Busby, J., joined by Lehrmann, J.): Yes. Our Legislature has directed courts to construe the Public Information Act in favor of granting requested information, and the majority’s decision to excuse a state agency for failing to comply with the statutory deadline is incorrect. The clock was not restarted because the Commission’s inquiry asked whether the request included confidential information, which would not have to be disclosed in any event and therefore cannot support a finding that the Commission sought to narrow the requested information. And the majority’s reliance on City of Dallas v. Abbott in finding that the clock restarts is misplaced, because the Court there merely held that the deadline may be reset when “a request is so unclear or overbroad” that a government entity cannot, in good faith, understand what is requested. Because that is not the case here, the clock should not have restarted, and the letter was untimely.
Valk v. Copper Creek Distributors, Inc., No. 24-0516 (Fifth Court): Did the court of appeals err in reversing and remanding based on a finding that the district court improperly submitted a spoliation instruction when there were grounds for reversal that would have required rendition rather than remand?
Majority (Huddle, J., for unanimous Court): Yes. Appellate courts must first consider issues that may lead to rendition rather than remand. The court of appeals misunderstood this principle when concluding it had broad discretion to order remand. Recent precedent highlights that remanding when rendition may be warranted should be a very limited exception, usually involving circumstances where there is an intervening change in the governing law. The court of appeals’ decision to remand the case did not accord with these principles, but instead resulted in an “unjustified second bite at the apple,” which was not in service of the interests of justice. And its conclusions regarding the harm occasioned by the spoliation instruction was erroneous because the court didn’t consider the record as a whole by otherwise concluding remand was required.
Orders
In addition to its typical denials, the Court denied a petition for review that drew a concurrence and denied a petition for mandamus that drew a dissent—both from Justice Young, the Court’s most prolific separate writer.
Howmet Aerospace, Inc. v. Burford, No. 24-0411 (Fourteenth Court):7 Must a plaintiff prove the “proof of dose” of asbestos exposure to demonstrate such exposure was a substantial cause of the plaintiff’s injury when the allegations point to a single source of the exposure?
Order (per curiam): Petition denied.
Concurrence in Denial (Young, J., joined by Sullivan, Hawkins, JJ.): While this isn’t the proper case to consider the question, the court of appeals’ conclusion that a plaintiff need not demonstrate “proof of dose” when the plaintiff alleges a single source of exposure is “troubling.” Retaining this requirement even where there is only a single possible source of asbestos exposure ensures the plaintiff meets the burden to demonstrate asbestos exposure caused an injury by a preponderance of the evidence. And beyond that, our prior statement that proof of dose is required “even in a single-exposure case” is not dicta, as the statement was made after careful consideration of the question. And even were it otherwise, it isn’t clear that appellate courts may disregard the precedential force of an opinion from this Court on this basis.
In re Warwick Construction, Inc., No. 26-0206 (Fourth Court): Is mandamus relief warranted from the trial court’s order refusing to reopen discovery under Texas Rule of Civil Procedure 190.5(b) when the trial date had been postponed by more than three months and the record reflected material changes to the case following the close of discovery?
Order (per curiam): Petition denied.
Dissent (Young, J.): Without expressing an opinion on whether the decision to deny discovery in these circumstances was erroneous (including under mandamus review), the decision is problematic enough to counsel staying trial for further consideration. There is a potential risk that relators’ ability to proceed at trial will be “completely vitiated or severely compromised,” and considering the issue now might avoid “a wasteful second trial, further delay for the parties, and additional usage of scare judicial resources.” The trial court could consider “a limited amount of last-minute discovery into the design issue”—and if it doesn’t, it could lead to a finding of reversible error on appeal.
Arguments
The Court has concluded arguments for this Term.
CA5
And now to New Orleans, where the light was anything but dim: The Fifth Circuit issued two major en banc opinions in prominent litigation involving the State of Texas—and where the opinions were just a bit longer than half a page of scribbled lines.8
Opinions
En Banc
Nathan v. Alamo Heights Independent School District, No. 25-50695 (en banc): Does Texas’s law requiring public-school classrooms to display the Ten Commandments violate the Establishment Clause or the Free Exercise Clause?
Majority (Duncan, J., joined in full by Elrod, C.J., Jones, Smith, Engelhardt, and Wilson, JJ.; and joined as to all but Part III (standing and ripeness) by Willett, Ho, and Oldham, JJ.): No. The plaintiffs have standing to pursue both challenges, which—unlike the similar Louisiana law—are ripe for review. The Establishment Clause challenge fails because S.B. 10 doesn’t resemble a Founding-era religious establishment: The law doesn’t compel worship, control doctrine, impose religious taxes, or otherwise carry the hallmarks of an establishment. The Supreme Court’s opinion in Kennedy displaced Lemon, leaving Stone (its prior Ten Commandments case) with no controlling force. The Free Exercise Clause challenge also fails because the statute authorizes only a classroom display—not religious instruction, compelled observance, or teacher-led efforts to undermine parents’ religious teaching.
Concurrence (Ho, J.): No. The challenge can be resolved on the merits without deciding standing or ripeness. “No challenge to either Texas or Louisiana law could possibly succeed, because neither law comes close to imposing either an establishment of religion or a prohibition on the free exercise thereof, as originally understood by the Founders or articulated by any governing Supreme Court precedent.”
Concurrence in Part (Oldham, J., joined by Willett, J.): No. On the merits, the majority is correct. But “[i]t is not obvious . . . that these plaintiffs have standing.” The plaintiffs’ standing theory sounds in offended-observer standing—”a proposition that is wrong as a matter of Constitutional structure and Supreme Court precedent.” The plaintiffs’ decision to bring a facial, pre-enforcement challenge also cuts against their ability to obtain relief.
Dissent (Ramirez, J., joined in full by Stewart, Graves, Higginson, Douglas, JJ.; and in part by Richman, Haynes, JJ.): Yes. Stone directly controls because S.B. 10 is materially similar to the Kentucky law that the Supreme Court invalidated, and that case hasn’t been overruled despite Kennedy. The classroom displays are problematically coercive in the public-school setting because they pressure students to read, meditate on, and potentially venerate religious commands in a compulsory environment. And the statute substantially burdens parents’ ability to direct their children’s religious upbringing.
Dissent (Southwick, J., joined in part by Richman, Graves, Higginson, Douglas, Ramirez, JJ.): Yes. While Kennedy rejects Lemon’s framework, it doesn’t sweep away pre-Lemon school-prayer and secular-purpose precedents. On that view, Stone remains binding because it rested on still-viable principles drawn from the school cases rather than on Lemon alone. And the mandatory classroom displays create coercion sufficiently similar to the school-prayer cases to violate the Establishment Clause.
Dissent (Haynes, J.): Yes. Because Stone “clearly makes S.B. 10 an unconstitutional statute, I simply stop there. We must follow the Supreme Court, and that is what the opinion Stone shows.”
Dissent (Higginson, J., joined by Richman, Graves, Douglas, and Ramirez, JJ.): Yes. S.B. 10 runs afoul of “three constitutional priorities: non-discrimination among religions, the Supreme Court’s constitutional solicitude for students, and, above all, the right of parents to control the faith guidance of their children.”
United States v. Texas, No. 24-50149 (en banc): Do the nonprofit and county plaintiffs have Article III standing to maintain a pre-enforcement facial challenge to Texas’s S.B. 4, a state immigration law that criminalizes unlawful entry and reentry?
Majority (Smith, J., joined by Elrod, C.J., Jones, Haynes, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, JJ.): No. The nonprofit plaintiffs’ asserted mission frustration, voluntary resource diversion, and added legal work did not amount to a cognizable Article III injury. El Paso County’s alleged reputational harm doesn’t suffice to create standing, and its claimed budgetary harms are too speculative in this pre-enforcement posture. As no plaintiff had standing, the injunction must be vacated without regard to the merits.
Concurrence (Ho, J.): No. But the law is also constitutional under Article I, Section 10 of the Constitution. Whether mass unlawful migration constitutes an invasion under this clause—thus allowing states to detain foreign migrants—is a judgment for the political branches, not the judiciary.
Concurrence (Oldham, J., joined in full by Jones, Willett, Ho, Duncan, Engelhardt, JJ.; and joined as to all but footnote 5 by Elrod, C.J.): No. But even if the Court reached the merits, the facial-preemption challenge fails. Plaintiffs can’t “meet Salerno’s no-set-of-circumstances test,” as “it is easy to imagine an application of S.B. 4 that is not conflict preempted.” And the Supreme Court’s opinion in Arizona isn’t to the contrary: S.B. 4 can operate in coordination with federal immigration enforcement, rather than in opposition to it.
Dissent (Richman, J., joined in full by Stewart, Southwick, Higginson, Ramirez, JJ.; and joined as to Part II by Graves, Douglas, JJ.): Yes. The nonprofit plaintiffs had standing because S.B. 4 would directly and concretely impair their core counseling and representation work by forcing them to navigate a second, state-created immigration regime for the vulnerable clients they already serve. On the merits, the law is unconstitutional—even in this pre-enforcement facial context. Under Arizona, S.B. 4 is field preempted because it creates parallel state crimes, state removal mechanisms, and state-driven interference with federal discretion over entry, removal, asylum, and related determinations.
Dissent (Graves, J., joined by Stewart, Richman, Higginson, Douglas, Ramirez, JJ.): Yes. The majority’s standing analysis oversimplifies both the claimed injury and controlling caselaw. As to injury, the nonprofit plaintiffs “would have to rework or abandon” not just their legal advocacy services, but also their counseling and referral services, to handle the changes wrought by S.B. 4. And as to caselaw, Havens is directly on point.
Dissent (Higginson, J., joined by Stewart, Richman, Southwick, Douglas, Ramirez, JJ.): Yes. “At its core, Texas’s law interferes with the federal scheme addressing who may be removed, how, and to where,” and is thus conflict preempted. And the majority’s standing analysis completely disregards the district court’s factual finding of direct interference—the basis for that court’s actual standing conclusion as to the nonprofit plaintiffs.
Panel
Cuevas Machine Co. v. Calgon Carbon Corp., No. 25-60198 (Elrod, C.J., Smith, Wilson, JJ.): The Fifth Circuit concluded Mississippi law is unclear on whether a construction lien satisfies Mississippi Code section 85-7-405(1)(b) when the lien itself omits the required “last date” labor, services, or materials were supplied but attaches dated invoices that do not plainly identify that date. The panel thus certified the following question to the Mississippi Supreme Court:
If a lienor attaches dated invoices to a construction lien, but these invoices do not plainly indicate the “the last date the labor, services or materials were supplied to the premises,” do the attachments nonetheless satisfy the requirement that an enforceable lien “specify the date the claim was due” under Miss. Code Ann. § 85-7-405(1)(b)?
United States v. Ball, No. 25-60396 (Smith, Haynes, Oldham, JJ.): Should the Court grant the Government’s motion to remand a criminal appeal based on an apparent sentencing error that the Court—not the parties—identified on Anders review?
Majority (per curiam): Yes.
Concurrence (Oldham, J.): Yes. But this result highlights a tension with the “so-called” party-presentation rule. “What gives courts power to ignore a winning legal argument in some contexts, but not in others? Perhaps the best answer is to recognize a basic truth: Courts have the power and duty to find and apply the correct legal principles regardless of what the parties say.”
Starbucks Corp. v. NLRB, No. 24-60500 (Southwick, Higginson, Douglas, JJ.): Vacating the Board’s order and remanding, the Court held that the NLRB applied the wrong legal standard in finding Starbucks violated Section 8(a)(1) by obtaining Board-issued subpoenas seeking information about protected union activity. Section 8(a)(1) liability turns on whether the employer’s conduct would tend to be coercive under the totality of the circumstances, but the Board instead treated National Telephone Directory Corp.—a discovery-balancing rule governing whether subpoenas should be quashed—as effectively dispositive of unfair-labor-practice liability. Because the Board never performed the required coercion analysis in context, the order couldn’t stand.
United States v. Lezama-Ramirez, No. 23-30721 (Southwick, Oldham, Ramirez, JJ.): Did the district court permissibly impose supervised-release conditions disclosed in the presentence report without specifically confirming on the record that the defendant reviewed the PSR with counsel?
Majority (per curiam): Yes and no. There was no reversible error in imposing the standard conditions and one special condition that appeared in both the PSR and the written judgment because the defendant had notice through the PSR, and the record supported the inference that he and counsel had reviewed it. But one special condition needed to be conformed to its narrower oral pronouncement.
Concurrence (Oldham, J.): Yes and no. The disposition process in this case exemplifies the problems with the Fifth Circuit’s “strong form” of the rule of orderliness, which wrongly treats prior panel opinions as making law “as if they were statutes passed by Congress.”
Dissent (Southwick, J.): Yes. The majority’s conclusion doesn’t “accurately apply the test set out” in the Fifth Circuit’s en banc opinion in Diggles.
Arguments
The Fifth Circuit’s regular monthly session is coming a week early, with multiple panels sitting the week of April 27.
15COA
Finally, one short stop before Eclipse: our statewide court of appeals.
Opinion
Morrell v. Texas Commission on Environmental Quality, No. 15-25-00212-CV (Brister, C.J., Field, Farris, JJ.): Affirming in part, reversing in part, and remanding, the Fifteenth Court held that the plaintiff’s ultra vires and declaratory-judgment challenges to the TCEQ’s scrap-tire enforcement order were barred. The order wasn’t outside the agency’s statutory authority, and the TCEQ officials permissibly determined that the tires on the plaintiff’s property were municipal solid waste. The plaintiff also lacked standing to challenge a registration rule that was never applied to him. But the trial court wrongly dismissed the plaintiff’s Public Information Act claim: TCEQ’s withholding of requested records qualified as a refusal to supply public information, and TCEQ failed to prove any disclosure exception because it offered neither evidence nor in camera review to support its privilege assertions.
Argument
The Fifteenth Court’s next argument session is on May 21.
Red Light
The time is gone, the song is over . . .
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Disclaimer: I previously represented the appellee.
Judge Davis wrote the majority opinion, joined by Judge Englehardt. Judge Oldham dissented.
Justice Alito did not participate in the decision.
The per curiam panel was comprised of Judges Richman, Graves, and Douglas.
Justice Sullivan did not participate in the decision.
The per curiam panel was comprised of Justices Spain, Poissant, and Wilson, who summarily denied mandamus relief.
Disclaimer: I previously represented the real party in interest.
Justices Devine and Hawkins did not participate in the decision.
Justice Wilson authored the panel opinion, joined by Justices Wise and Zimmerer.
Congratulations to my friend Will Peterson, the Solicitor General of Texas, who led the State’s team in both cases.
Obligatory Disclaimer: This Substack is intended for informational purposes only and should not be construed as legal advice. The content provided does not constitute the formation of an attorney-client relationship. For advice specific to your situation, we recommend consulting with licensed legal counsel.
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