26-11: Coda
A look back to the weeks of May 11 and 18, with help from loose ends
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, while also sharing 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
My last post—among the most read in this Substack—focused on the center of my writing process: outlining. As I wrote:
Whenever I talk about legal writing, I usually begin with the same overarching principle: The best legal brief is a logical, easy-to-follow brief. My goal in every brief is straightforward—if a judge reads the brief only once, the judge should walk away understanding the basic points I’m trying to convey and why those points matter.
That kind of clarity takes work. It rarely comes from stream-of-consciousness drafting. It requires discipline on the front end, including the kind of careful outlining that too many lawyers skip. Without that structure, a brief may start strong, only to meander through the middle and arrive at a conclusion that feels less clarifying than confusing.
The immediate impetus for that post was Justice Alito’s discussion of his writing process at the Fifth Circuit Judicial Conference. But once the post was out the door, I realized that the story was incomplete. While Justice Alito’s comments certainly prompted my post, the habit he described—the discipline of building the structure before writing the draft—is one I learned from someone who went unmentioned: Judge Raymond Kethledge of the Sixth Circuit. So allow me to complete the story, while giving credit where it’s due.
I clerked for Judge Kethledge many moons ago.1 It remains one of the most formative experiences of my professional life, especially as a writer.
Judge Kethledge is one of the best judicial writers in the country. His opinions aren’t flashy. They don’t strain for memorable lines. And they’re certainly not overwritten. Instead, they do something better: they make complicated issues feel understandable. The reader always knows where the opinion is going, why it is going there, and how each step fits into the larger analysis—all in plain-spoken language.
Clarity, concision, and restraint are hallmarks of Judge Kethledge’s style. They collectively reflect his disciplined approach to writing.
When I would go into Judge Kethledge’s chambers to discuss an opinion, I would often see a lengthy handwritten outline—usually filled with scratch marks and arrows—on his desk. Before he started writing, he had to know the structure. What was the first point? What had to come next? Where was the turn in the analysis? What could be omitted? What needed to be said plainly before the harder point could land?
Suffice it to say that I didn’t appreciate the process of outlining before my clerkship. I do now.
Justice Alito’s comments, then, reminded me of a writing habit that has served me well. But Judge Kethledge is the one who taught that habit to me. And if I’ve become a good legal writer, it’s in no small part because of the many lessons I learned from him about writing as a discipline, especially this: before a brief can be clear, the structure must be clear.
Feature
Drawing on recent posts from Hicks Johnson’s new Perspectives page,2 this week’s Feature highlights two significant opinions from the Supreme Court of Texas that every Texas appellate practitioner should know.
Helena Chemical Co. v. Bales, No. 25-0812 (Tex. 2026) (per curiam): The Supreme Court of Texas intervened to correct a narrow construction of authority on permissive interlocutory appeals under Section 51.014(d) of the Civil Practice and Remedies Code. In Helena Chemical, a unanimous Court held that a “substantial ground for difference of opinion” exists when there is a meaningful possibility that a trial court’s ruling departs from binding precedent.
The case arose from crop-damage claims in which the defendant moved for no-evidence summary judgment, arguing that the Supreme Court’s prior decision in a related case controlled. The trial court denied the motion but permitted an interlocutory appeal on that controlling legal question. The Eighth Court of Appeals declined to accept the appeal, reasoning that a “well-settled” legal issue cannot present the required “difference of opinion.”
The Supreme Court rejected that framing. It explained that Section 51.014(d) isn’t designed to surface novel or unsettled questions for academic debate, but to allow early resolution of dispositive legal issues. When a trial court signals that its ruling may be inconsistent with controlling precedent—and invites review on that basis—that gap itself satisfies the statute. Put differently, the “difference of opinion” isn’t measured by doctrinal novelty but by the real possibility that the trial court’s answer conflicts with what higher courts have already said. In that circumstance, the ground for disagreement is “substantial and self-evident.”
The decision also reinforces the Court’s broader endorsement of permissive interlocutory appeals as an efficiency tool. By directing the court of appeals to accept the appeal without merits briefing or argument, the Court underscored that Section 51.014(d) should function as an early checkpoint, not a barrier. The opinion reframes the inquiry from whether a legal question is unsettled to whether early appellate intervention could quickly resolve a dispositive issue—especially where the trial court itself recognizes tension with binding authority.
N.B.: Don’t assume that a “settled” legal issue takes interlocutory appeal off the table—misalignment with precedent is exactly what can open that door. If the trial court’s ruling arguably departs from controlling authority, frame that tension clearly and early, because permissive appeal may be the cleanest way to tie off the case before it sprawls.
Noyes v. State ex rel. Voges, No. 24-0023 (Tex. 2026) (per curiam): In a short per curiam disposition, the Court addressed a serious constitutional challenge to a lifetime firearm restriction imposed through a protective order—but stopped well short of the merits. The Court granted the petition for review, held that the petitioner had preserved his constitutional claims, vacated the Third Court of Appeals’ judgment, and remanded in light of the U.S. Supreme Court’s intervening decision in United States v. Rahimi.
For appellate practitioners and in-house counsel, the real value lies not in the disposition itself—or even in Justice Sullivan’s extensive concurrence studying the Second Amendment and Texas’s Arms Clause—but in Justice Hawkins’s concurring opinion, which reframes the case as a vehicle for a procedural tool that deserves far more attention: the GVR. That is, grant, vacate, and remand. The concept is familiar at the U.S. Supreme Court, where intervening developments routinely prompt remands for reconsideration rather than full merits review. As Justice Hawkins explains, Texas practice has lagged behind, with relatively few true GVRs despite the availability of the mechanism.
Noyes provides a textbook example. The court of appeals decided the case without the benefit of Rahimi, which clarified the constitutional framework governing firearm restrictions tied to protective orders. Once the Texas Supreme Court concluded that the issue had been preserved, the efficient course was to return the case to the court of appeals to apply the new authority in the first instance—without oral argument or full briefing.
Justice Hawkins’s concurrence turns that move into concrete guidance. As he explains, Texas Rule of Appellate Procedure 60.2(f) already authorizes vacatur and remand in light of changes in the law, and the Court’s shift to granting review before merits briefing makes the timing question more acute. The opportunity to tee up a GVR—and avoid a full merits cycle—comes at the petition stage. Miss that window, and the case may be on a longer and more expensive path than necessary.
N.B.: Not every case needs full merits review to get where it needs to go. When intervening law puts the lower court’s reasoning in doubt, a well-framed GVR request can save time, money, and a round of unnecessary appellate work.
1910
Orders and Opinions
And now, to our local courts here in Houston. Below are brief summaries of notable opinions and orders from the First and Fourteenth Courts.
1COA
In the Interest of N.L.S., No. 01-26-00100-CV (Adams, C.J., Guerra, Guiney, JJ.): Affirming the denial of a mother’s petition to reinstate parental rights, the First Court held that Family Code Section 161.303(c)(3) required her to prove at the reinstatement hearing that the children were not subject to an adoption placement agreement at the time of the hearing—not when she filed her petition. Sections 161.302 and 161.303 impose separate requirements: one governs eligibility to file, the other proof at the hearing. No statutory text supports the mother’s argument that filing a petition creates a stay during its pendency.
Schatte v. The Trapp Trust, No. 01-24-00813-CV (Rivas-Molloy, Johnson, Dokupil, JJ.): Reversing and remanding, the First Court held that the trial court abused its discretion by denying a permanent injunction to enforce a deed restriction limiting fence and landscaping height within a setback. Texas law does not impose a bright-line rule requiring injunctive relief whenever a properly recorded restrictive covenant is violated, but the trial court’s equitable balancing failed to account for the Trust’s constructive notice before purchase, actual notice before construction, and the jury’s rejection of waiver and changed-conditions defenses. Because those facts were not properly weighed, further equitable proceedings were required.
Montrose 15, LLC d/b/a Idle Hands v. Montrose Collective Owner, LP, No. 01-25-00756-CV (Gunn, J.) (order): The First Court denied a motion to reschedule oral argument, emphasizing the need for prompt resolution of a dispute affecting the amount of security and the applicable postjudgment interest rate. Rescheduling would prolong a stay tied to enforcement and prejudice the appellee, particularly given the parties’ advance notice of the argument setting.
Doe v. Texas State Conference of the NAACP, No. 01-22-00122-CV (Adams, C.J., Gunn, Guiney, JJ.): Reversing and rendering, the First Court held that the plaintiffs—both organizational and individual—lacked standing to bring pre-enforcement Texas constitutional challenges to S.B. 1 against the Secretary of State. Their alleged injuries were speculative, generalized, based on third-party effects, or not tied to a legally protected interest in the challenged voting methods, and Texas law does not recognize cumulative or global standing theories. The pleadings also failed to show traceability because the Secretary’s general election-administration duties did not establish an enforcement connection to the challenged provisions.
Vitorino v. Post Oak Crossing Council of Co-Owners, No. 01-24-00717-CV (Adams, C.J.; Guerra, Guiney, JJ.): Affirming in part, reversing in part, and remanding, the First Court upheld no-evidence summary judgments for two property owners’ associations because the plaintiff failed to respond to one motion and failed to address the challenged elements in responding to the other. The court also upheld a Rule 91a dismissal of negligence and wrongful-foreclosure claims against the law firm involved because the petition did not allege an independent duty or the elements of wrongful foreclosure. But the trial court erred in dismissing Vitorino’s declaratory-judgment and Civil Practice and Remedies Code Section 12.002 claims because the Rule 91a motion did not challenge them.
YSM-Ponderosa, LLC v. World Market of Texas, LLC, No. 01-24-00460-CV (Adams, C.J.; Guerra, Guiney, JJ.): In a lease dispute over retail space in a Houston shopping center, the First Court affirmed in part, reversed in part, rendered in part, and remanded. Bed Bath’s bankruptcy did not prevent World Market’s sublease from remaining in full force and effect as a direct lease with Ponderosa under the parties’ Recognition Agreement, but World Market had no right to exercise renewal options reserved to Bed Bath. The court also reversed declarations calculating controllable common-area charges—an issue World Market did not waive through its motion for entry of judgment—because the lease’s plain-language cap formula used the tenant’s actual pro rata share of taxes, not Ponderosa’s estimate.
14COA
In re Rose Acquisitions, LLC, No. 14-26-00460-CV (Jewell, Hart, Bridges, JJ.) (per curiam) (orig. proceeding): Denying mandamus relief, the Fourteenth Court held that Rose Acquisitions had an adequate remedy by accelerated interlocutory appeal from the order denying its motion to compel arbitration. Orders denying arbitration under the FAA and TAA are immediately appealable, and Rose Acquisitions did not explain why that remedy was inadequate.
Runge v. Moore, No. 14-25-00208-CV (Christopher, C.J.; Wilson, Bridges, JJ.): Affirming as modified after a bench trial over a mediated business-divorce settlement, the Fourteenth Court held that the record supported the finding that Runge and Superior—not Moore—first materially breached the agreement. The judgment, however, awarded an improper double recovery for inventory sales already captured by the award for unsplit inventory and for accounts receivable Moore had already partially recovered. The court deleted $2.4 million from the damages award and otherwise rejected Runge and Superior’s remaining arguments, including their challenge to the trial court’s negative evidentiary presumption based on discovery abuses.
Ford v. Graves, No. 14-25-00169-CV (Jewell, Wilson, Boatman, JJ.) (per curiam) (order): Granting emergency relief in part, the Fourteenth Court held that the automatic stay triggered by an interlocutory TCPA appeal remains in effect until the appellate mandate issues. Service of citation accomplished while the stay was in place was ineffective while the stay continued, but not void. The court ordered that service would become effective upon issuance of the mandate, with deadlines running from that date.
In re Jim S. Adler & Associates, No. 14-26-00041-CV (Jewell, McLaughlin, Antú, JJ.) (orig. proceeding): Conditionally granting mandamus relief, the Fourteenth Court held that the trial court abused its discretion by disqualifying McCathern Houston from jointly representing a personal-injury plaintiff and Jim Adler in a fee-and-interference dispute with Clutch Law Group. Clutch did not show with specificity that the joint representation created a substantial risk of direct adversity, as the parties were pursuing a unified defense and had asserted no cross-claims. Clutch also failed to show actual prejudice—an independent requirement for disqualification. The court further rejected Clutch’s waiver argument, explaining that the three-month delay was not unjustified given relators’ prompt efforts to obtain a stay and seek mandamus relief.
Pan v. Wang, No. 14-25-00240-CV (Christopher, C.J., Hart, Antú, JJ.): Affirming, the Fourteenth Court held that Texas law does not recognize claims arising from promises or representations made within an extramarital relationship between married persons, including “fraud on the relationship” and fiduciary-duty theories. The court also upheld the jury’s findings on fraudulent inducement, breach of a joint venture agreement, unpaid wages, and property ownership, concluding that legally and factually sufficient evidence supported the verdict. It further rejected challenges to evidentiary rulings and the handling of deemed admissions.
Temeng v. InTown Homes, Ltd., No. 14-25-00624-CV (Wise, Wilson, Antú, JJ.): Affirming summary judgment, the Fourteenth Court held that limitations barred claims arising from an allegedly defective water-heater drain pan. The pre-closing inspection report identified the deficiency and recommended a plumber’s review, giving Temeng inquiry notice and triggering limitations even though the flooding and full extent of damages came later. The discovery rule did not defer accrual, and ripeness did not postpone limitations because the legal injury occurred when the defective installation occurred.
In re Eureka Holdings, Inc., No. 14-25-00634-CV (Jewell, Wilson, Boatman, JJ.) (per curiam) (orig. proceeding): Conditionally granting mandamus relief in part, the Fourteenth Court held that the trial court abused its discretion by imposing case-determinative evidentiary sanctions in a premises-liability case arising from a shooting. The sanctions effectively established foreseeability and reasonableness and barred defendants from contesting those elements—amounting to death-penalty sanctions on liability. Because the trial court did not first test lesser sanctions or explain their insufficiency, mandamus relief was warranted as to the evidentiary sanctions, though not the monetary sanctions, for which an adequate appellate remedy existed.
Kirklin Properties LLC v. Stevenson, No. 14-25-01098-CV (Jewell, Wilson, Boatman, JJ.) (per curiam) (order): Granting Kirklin’s motion to dismiss the cross-appeal, the Fourteenth Court held that the severance order was final because it disposed of Kirklin’s quantum-meruit claim and appellees’ attorney-fee request. The trial court’s plenary power expired 30 days later, rendering a subsequent “final judgment” void. The cross-appeal was therefore untimely under Rule 26.1(d).
Fustok v. U.S. Bank National Association, No. 14-25-00582-CV (Jewell, Hart, Bridges, JJ.): Affirming summary judgment authorizing judicial foreclosure, the Fourteenth Court held that res judicata barred the Fustoks’ renewed challenge to their home-equity loan’s constitutional validity. The Trustee, servicer, and foreclosure counsel were in privity with Bank of America, which prevailed in prior federal litigation involving the same loan, and the new theory arose from the same nucleus of operative facts. Because such constitutional challenges can be claim-precluded, the Fustoks could not relitigate validity under a different subsection of Article XVI, Section 50 of the Texas Constitution.
Arguments
1COA
Harper v. Spencer & Associates, P.C., No. 01-25-00736-CV (Guerra, Gunn, Morgan, JJ.): Did the trial court properly disregard the jury verdict based on legally insufficient evidence?
Appellants: Nicholas Reisch (Spencer Fane)
Appellee: Ashley Spencer (The Spencer Law Firm)
Argument: June 4 at 1:30 pm
14COA
Lemon v. State, No. 14-24-00985-CR (Christopher, C.J., McLaughlin, Boatman, JJ.): Among other issues, was the evidence legally sufficient to support the deadly-weapon element of aggravated robbery, and can an associate judge constitutionally conduct voir dire?
Appellant: Douglas Gladden (Harris County Public Defender’s Office)
Appellee: Shawna Reagin (Harris County District Attorney’s Office)
Argument: June 2 at 2 pm
Mendoza v. NAT USA LLC, No. 14-24-00985-CV (Christopher, C.J., McLaughlin, Boatman, JJ.): Did the trial court err in denying a foreign defendant’s special appearance, including because of defective service?
Appellant: Elias Yazbeck (Law Office of Elias M. Yazbeck)
Appellee: Jeremy Gaston (Hawash Cicack & Gaston)
Argument: June 2 at 2 pm
State v. Wright, Nos. 14-25-00603-CR, 14-25-00604-CR (Jewell, Hart, Bridges, JJ.): Did the trial court err in granting a new trial based on improper closing argument?
Appellant: Shawna Reagin (Harris County District Attorney’s Office)
Appellee: Stanley Schneider (Schneider & McKinney)
Argument: June 4 at 2 pm
& Beyond
Both Supreme Courts have picked up the tempo as they push toward the close of the Term, issuing opinions as the coda approaches.
SCOTUS
In Washington, the Supreme Court continued issuing orders on state redistricting provisions and addressed a wide range of issues, including jurisdiction over arbitration claims, the scope of the LIBERTAD Act, and tort liability against interstate freight brokers.
Opinions
Jules v. Andre Balazs Properties, No. 25-83 (Second Circuit): If a court, properly exercising federal jurisdiction, stays claims in favor of arbitration under Section 3 of the Federal Arbitration Act (FAA), does it retain jurisdiction over later motions to confirm or vacate the arbitral award when those motions do not independently establish federal jurisdiction?
Majority (Sotomayor, J., for unanimous Court): Yes. Unlike “freestanding” FAA cases that require courts to “look through” the arbitration to determine whether federal jurisdiction exists, a court may instead look to the complaint that initiated the arbitration. Nothing in the FAA strips a court of existing jurisdiction while the parties arbitrate. So if the court had jurisdiction to compel arbitration, it retains jurisdiction to resolve later motions. This reading also fits the FAA’s structure: under petitioner’s view, courts would keep stayed cases on their dockets without authority to enforce the resulting award.
Montgomery v. Caribe Transport II, LLC, No. 24-1238 (Seventh Circuit): Does the Federal Aviation Administration Authorization Act (FAAAA) preempt state-law negligent-hiring claims against freight brokers?
Majority (Barrett, J., for unanimous Court): No. Although the FAAAA broadly preempts state regulation, it preserves state authority over safety with respect to motor vehicles. Negligent-hiring claims against brokers fall within that exception because requiring brokers to exercise ordinary care in selecting carriers “concerns” the trucks used to transport goods. The broker’s and Government’s contrary arguments are unpersuasive: applying the safety exception does not swallow preemption or create surplusage. And while it is odd that Congress included a safety exception for interstate but not intrastate shipping, it is “better to live with the mystery” than rewrite the statute.
Concurrence (Kavanaugh, J., joined by Alito, J.): No, but the question is closer than the majority suggests. Some statutory features—including the differing treatment of interstate and intrastate shipping—favor the broker’s reading. But other contextual considerations, especially the broader safety regime governing trucking, ultimately point in the same direction as the majority.
Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., No. 24-983 (Eleventh Circuit): Does the Cuban Liberty and Democratic Solidarity Act impose liability for trafficking in confiscated property only if the conduct would have interfered with the property absent confiscation?
Majority (Thomas, J., joined by Roberts, C.J., Alito, Sotomayor, Gorsuch, Kavanaugh, Barrett, Jackson, JJ.): No. The statute’s text allows liability based on trafficking in the property itself, not just an interest in the property. A contrary reading would lead to implausible results—for example, that using the property (here, the docks) would not qualify as trafficking.
Concurrence (Sotomayor, J., joined by Kavanaugh, J.): No, but two issues may arise on remand or in future cases. First, petitioner’s reading could allow for effectively limitless recovery from a single loss, raising due-process concerns. Second, it remains an open question whether the Act’s exception for lawful travel to Cuba applies to these uses.
Dissent (Kagan, J.): Yes. The docks were never owned by the corporation; it held only a time-limited use interest that expired years before the alleged conduct. The majority misreads the statute, misunderstands the nature of the confiscation, and disregards basic limits on property interests.
M&K Employee Solutions, LLC v. Trustees of the IAM National Pension Fund, No. 23-1209 (D.C. Circuit): Under the Employee Retirement Income Security Act of 1974 (ERISA), does the “measurement date” that is the basis for calculating an employer’s liability for withdrawal from an underfunded pension plan also serve as the deadline by which actuaries must select assumptions underlying the withdrawal-liability calculation?
Majority (Jackson, J., for unanimous Court): No. The statutory provisions governing withdrawal-liability calculations do not mention actuarial assumptions, which are not the type of facts that must be fixed on the measurement date. Instead, they resemble the methods used to calculate liability, which may be applied after that date. And the ERISA provisions that address actuarial assumptions impose no timing requirement—an omission that matters given that Congress included deadlines elsewhere in the statute.
Hamm v. Smith, No. 24-872 (Eleventh Circuit): May courts consider the cumulative effect of multiple IQ scores, and how should they consider that cumulative effect, in assessing intellectual disability under Atkins v. Virginia?
Majority (per curiam): Writ of certiorari dismissed as improvidently granted.
Concurrence (Sotomayor, J., joined by Jackson, J.): This case is an improper vehicle to determine how courts should assess multiple IQ scores. The evidentiary record is unclear, and the issue was neither meaningfully raised nor passed upon below in either the district court or the court of appeals. The principal dissent’s contention that this case could bring needed guidance to the courts in assessing Atkins claims is misplaced, and the core of its argument appears to be a disagreement that the offender actually is intellectually disabled. In any event, the district court’s “holistic method of reviewing multiple IQ scores is consistent with this Court’s precedents, the medical community’s diagnostic framework, and Alabama state law.”
Dissent (Thomas, J.): Atkins lacks constitutional grounding, “has bred only confusion and absurdity,” and should be overruled.
Dissent (Alito, J., joined in full by Thomas, J.; and in part by Roberts, C.J., Gorsuch, J.): “This case presented an opportunity for the Court to explain how courts should evaluate Atkins claims when the defendant has multiple IQ test scores. Nothing in our case law sanctioned the lower courts’ analyses, and we should have used this case to bring clarity to our Atkins doctrine. By instead remaining silent, the Court exacerbates the confusion that plagues our jurisprudence in this area.”
Orders
In addition to its usual denials, the Court vacated one stay, granted another, and continued issuing orders tied to Callais—including two GVRs that drew dissents from Justice Jackson about issues that Callais didn’t address.
Allen v. Caster, No. 25-243 (Eleventh Circuit), consolidated with Allen v. Singleton, No. 25-273 (Northern District of Alabama) and Allen v. Milligan, No. 25-274 (Northern District of Alabama): Did Alabama’s intentionally discriminatory refusal to create a second majority-minority Congressional district violate the Fourteenth Amendment?
Order(per curiam): Motion to expedite and petition for certiorari before judgment is granted in Caster, and the judgment in all three cases are vacated with instructions to remand to the Eleventh Circuit and the Northern District of Alabama, respectively, for further consideration in light of Callais.
Dissent (Sotomayor, J., joined by Kagan, Jackson, JJ.): Vacatur is unwarranted. The district court’s finding of intentional discrimination is unaffected by Callais, and the Court’s action risks confusion as primary elections approach.
Danco Laboratories, LLC v. Louisiana, No. 25A1207 (Fifth Circuit), consolidated with GenBioPro, Inc. v. Lousiana, No. 25A1208 (Fifth Circuit):3 Should the Court stay the Fifth Circuit’s order preliminarily enjoining the Food and Drug Administration from altering its regulations expanding the ability to prescribe and dispense mifepristone?
Order (per curiam): Yes. The Fifth Circuit’s opinion granting preliminary relief is stayed pending the Fifth Circuit’s final disposition and the Supreme Court, if a cert. petition is filed.
Dissent (Thomas, J.): The petitioners haven’t satisfied their burden for securing interim relief, not least of which because the Comstock Act of 1873 bans using “the mails” to ship abortifacients. Because petitioners effectively contend their harm is lost profits from their criminal enterprises, they are not entitled to a stay.
Dissent (Alito, J.): The stay should be denied because the record demonstrates the petitioners have not suffered harm as a result of the Fifth Circuit’s opinion. Under the prior Administration, the FDA routinely declined to enforce the in-person-dispensation requirement, and it seeks to maintain the status quo while it completes an internal safety review of mifepristone, which is unlikely to be completed this year.
Guerrero v. Busby, No. 25A1235 (Fifth Circuit):4 Should the Supreme Court vacate the Fifth Circuit’s order staying the execution of an intellectually disabled man?
Order (per curiam): Stay vacated.
Dissent (Sotomayor, J., joined by Jackson, J.): No. The experts in this case agree that the defendant is intellectually disabled, and in fact the parties jointly (but unsuccessfully) requested the Texas courts to find him ineligible for execution on this ground. The Court’s “rush to extinguish” the defendant’s life does not accord with the factual record or stays of execution more generally.
Justice Kagan would have denied the application.
The Court also summarily denied several stay applications—two in capital cases, and two in election disputes, including the closely watched Virginia redistricting matter.
Finally, the Court granted certiorari in one case, while Justice Sotomayor issued one opinion relating to the denial of certiorari:
Crowther v. Board of Regents of the University System of Georgia, No. 25-183 (Eleventh Circuit): Does Title IX provide employees of federally funded educational institutions a private right of action to sue for sex discrimination in employment?
Order (per curiam): Cert. granted.
Lairy v. United States, No. 25-821 (Seventh Circuit): Can an individual assert the “actual innocence exception” to procedural bars on habeas relief to challenge a noncapital sentence?
Order (per curiam): Cert. denied.
Statement Respecting Denial (Sotomayor, J.): Because the Government has promised to correct the oversight that resulted in the defendant receiving a longer prison sentence than permitted by the applicable statutory maximum, denial of cert. is appropriate.
Arguments
The Court has completed arguments for this Term.
SCOTX
Beyond the two Feature opinions, our state Supreme Court has issued a wide variety of opinions—ranging from statutory caps for exemplary damages, the amount of security required to supersede a judgment, the scope of easements by estoppel, and when courts may exercise personal jurisdiction over out-of-state property.
Opinions
Weldon v. The Lilith Fund, No. 24-0250 (Second Court): Does the Texas Citizens Participation Act (TCPA) apply to a suit alleging Senate Bill 8 is unconstitutional?
Majority (Busby, J., for unanimous Court): Yes. The suit was filed in response to a Rule 202 petition, as reflected in the Fund’s request for an anti-suit injunction and its repeated reliance on that petition to show irreparable harm. The court of appeals erred by blending the TCPA’s three-step framework and crediting the plaintiff’s merits arguments at the first step.
Braxton Minerals III, LLC v. Bauer, No. 24-0438 (Second Court): May Texas courts exercise personal jurisdiction over a resident defendant in a dispute involving real property located in another state?
Majority (Blacklock, C.J., for unanimous court): Yes. Because the suit arises from an alleged contractual obligation to convey mineral rights, it sounds in personam, and there is generally no jurisdictional barrier to such suits about out-of-state property when the court has jurisdiction over the parties. Texas courts have long enforced contracts to convey land in other states through coercive relief directed at the parties. The court of appeals’ contrary rule—that Texas courts lack jurisdiction where the “gist or gravamen of a claim involves adjudication of title to foreign real estate”—is incorrect. And because all the relief awarded by the district court is given effect through coercing the defendants—rather than, for instance, annulling a deed or quieting title—jurisdiction in Texas is proper even if the subject property is in another state.
In re Home Depot U.S.A. Inc., No. 25-0317 (Fourteenth Court) (orig. proceeding):5 May a plaintiff assert negligence claims against a passive shipper with no control over the relevant actors or risk?
Majority (Devine, J., for unanimous Court): No. The only alleged link was a shipping contract with the carrier, which is insufficient to create a duty. The shipper didn’t create the risk or hazard (which was not unusual), supply a dangerous instrumentality, or control the actors involved. Without a duty, there can be no negligence liability. Because the trial court abused its discretion in denying the shipper’s Rule 91a motion, mandamus relief is appropriate.
Wang v. Whittenburg, No. 25-0350 (Seventh Court): Can a plaintiff recover attorneys’ fees as the only damages from a breach of a settlement agreement?
Majority (Busby, J., for unanimous Court): Yes, in some circumstances. Fees may be recoverable as damages if they result from litigation made necessary by the breach and are not themselves based on enforcing that breach. Here, the fees were incurred in related litigation not caused by the breach itself and were a natural, probable foreseeable consequence of the defendant’s noncompliance.
In re Abbott, No. 25-0674, consolidated with In re State, No. 25-0687 (orig. proceeding): Should the Court grant quo warranto relief removing Texas House members who broke quorum by leaving the state?6
Majority (Blacklock, C.J., for unanimous Court): No. The constitutional dispute between branches resolved itself through political mechanisms the Constitution commits to the Legislature. The House retained authority to compel attendance and discipline its members, and those tools restored a quorum without judicial intervention. “Should those remedies unexpectedly prove inadequate in a future case, we might have occasion to consider whether any judicial remedy could ever be available in circumstances such as these.”
Concurrence (Sullivan, J.): No—for now. The quorum break ended too quickly for the factfinding quo warranto would require, but the Court retains authority to act in a future case. Open questions remain about procedures, jury-trial rights, and who may initiate such proceedings.
K&K Inez Properties, LLC v. Kolle, No. 24-0045 (Thirteenth Court): In a case involving multiple defendants and separate exemplary-damages awards, does Civil Practice and Remedies Code Chapter 41’s exemplary-damages cap require consideration of the percentage of economic damages attributable to an individual defendant, rather than the total award? And when the economic damages are awarded to the plaintiffs jointly as a single amount, does the cap apply to each defendant based on that single amount of economic damages?
Majority (Huddle, J., for unanimous Court): Yes and yes. For starters, the trial court did not err in striking a requested responsible-third-party designation, because the relevant statute makes clear that a third party is not “responsible” for an injury “unless he has also violated some applicable legal standard,” which was not shown in this case. Nor did the trial court’s judgment violate the one-satisfaction rule by awarding damages for both intentional nuisance and negligent nuisance, because nothing in the statutory definition of “gross negligence” precludes the possibility that certain conduct could support claims for both intentional nuisance and gross negligence. As for the main issues, the statutory cap is based on the economic damages attributable to each defendant—not the total award—both to track the statutory text and to avoid due-process concerns. And when the jury awards a single amount of economic damages, that figure governs the cap for each defendant. The court of appeals erred in allowing recovery above that cap.
Boerschig v. Rio Grande Electric Cooperative, Inc., No. 24-0213 (Fourth Court): Does an electric cooperative hold an easement by estoppel for its distribution line that crosses a landowner’s property, and did the cooperative’s upgrade of the line exceed the scope of the easement by estoppel as a matter of law?
Majority (Busby, J., joined by Devine, Young, Sullivan, Hawkins, JJ.): Yes and yes. The evidence supported the existence of an easement based on long-standing use and reliance, even without an express grant. But easements by estoppel are narrowly construed and limited to the scope of the landowner’s representations and the holder’s actual use. The cooperative’s substantial expansion exceeded that scope: it was not required to protect the holder’s investment or reasonable use, and the landowner lacked notice of the easement beyond the already-established transmission line.
Concurrence (Hawkins, J.): Yes, and the doctrine allows only minimal ancillary uses necessary to maintain existing use, with close cases often reserved for juries. This case, however, falls outside that range.
Dissent (Bland, J., joined by Blacklock, C.J., Lehrmann, Huddle, JJ.): Yes and no. The jury reasonably found the expansion within scope, and those fact-intensive determinations should not have been taken from it. The majority’s rule risks turning any deviation into a trespass as a matter of law.
In re Greystar Development & Construction, L.P., No. 24-0293 (Fifth Court) (orig,. proceeding): Does Chapter 52 of the Civil Practice and Remedies Code’s $25 million supersedeas cap apply per judgment, or per judgment debtor?7
Majority (Busby, J., joined by Blacklock, C.J., Lehrmann, Devine, Hawkins, JJ.): Per judgment debtor. The statute ties the cap to each “judgment debtor,” and its structure confirms that debtor-specific reading. But the trial court erred in immediately invalidating the bond without allowing time to cure; parties should generally have 20 days to fix a deficient bond.
Concurrence in Part and Dissent in Part (Huddle, J., joined by Bland, Young, Sullivan, JJ.): Per judgment. The statute caps any single bond, not each debtor, and the majority’s “ivory-tower textualism” increases costs and departs from established practice.
Paxton v. City of Austin, No. 24-1078 (Fifteenth Court): Is mandamus appropriate when a trial court refuses to rule on a plea to the jurisdiction, preventing interlocutory appeal?8
Majority (Blacklock, C.J., for unanimous Court): Yes. Courts must resolve jurisdiction before reaching the merits, and litigants are entitled to the Legislature’s interlocutory-appeal framework. When a trial court’s refusal to rule blocks that right, mandamus is available.
Gopalan v. Marsh, No. 25-0161 (Third Court): Did a divorce decree’s possession order contravene the jury verdict when it awarded the mother more time with the children after the jury concluded the father should have the exclusive right to designate the children’s primary residence?
Majority (Devine, J., for unanimous Court): Yes. “Primary residence” means where the child lives most of the time, and an order cannot undermine that designation by structuring possession to elevate the other parent’s time. The Court also rejected equating “primary parent” with joint managing conservatorship plus the right to designate residence.
Orders
Justice Young continued his run of separate writings, authoring a concurrence in the denial of a mandamus petition:
In re Johnson, No. 25-0977 (orig. proceeding): What procedures and remedies exist to correct inaccurate information on a death certificate?
Order (per curiam): Petition for writ of mandamus denied.
Concurrence (Young, J., joined by Devine, Busby, JJ.): Mandamus isn’t warranted because it appears the courts and state agencies will correct the relator in her modest goal of correcting this inaccurate information. But her “Kafkaesque” experience is troubling. Courts and agencies should ensure the system serves people rather than burdening them with needless complexity.
Arguments
Like its federal counterpart, the Court has concluded oral arguments for this Term.
CA5
With the high Courts squared away—and no noteworthy action from the Fifteenth Court of Appeals from the past two weeks—we close the loop by traveling to New Orleans.
Opinions
Starbucks Corp. v. NLRB, No. 24-60649 (Stewart, Graves, Oldham, JJ.): Did the National Labor Relations Board adequately address countervailing evidence before finding that Starbucks unlawfully disciplined and terminated a union organizer?
Majority (Graves, J.): No. Granting the petition for review, the Fifth Circuit vacated the Board’s decision and remanded because the Board did not sufficiently grapple with evidence distinguishing the employee’s conduct from other workplace infractions. It gave inadequate weight to the severity of the employee’s profanity toward coworkers and supervisors, the escalation from prior discipline, his failure to complete closing tasks while on final warning, and the significance of opening official NLRB mail. Because the Board is the primary factfinder, remand was appropriate for it to consider the conflicting evidence in the first instance.
Concurrence in Part (Oldham, J.): No. But remand was unwarranted because the Board’s treatment of the record departed from fair-minded adjudication. The employee’s egregious, profanity-laden statements toward a subordinate and supervisor supplied an obvious lawful basis for discharge, as the ALJ recognized. The Board should not get another opportunity to reach the correct result.
Arzu v. American Airlines, Inc., No. 25-10606 (Elrod, C.J., Higginbotham, Graves, JJ.): Affirming in part and reversing in part, the Fifth Circuit held that while an imperfect in-flight medical response did not qualify as an “accident” under Article 17 of the Montreal Convention, an allegedly malfunctioning AED could. Deviations from internal airline policy do not create per se Article 17 liability, and the crew’s response was not shown to involve unusual circumstances or willful inaction. But because FAA regulations required a functional AED, and witness testimony created a fact issue over whether the device delivered a shock, the AED-malfunction theory and derivative loss-of-consortium claim may proceed.
United States v. Kuyoro, No. 25-20002 (Haynes, Higginson, Ho, JJ.): Reversing dismissal of the indictment, the Fifth Circuit held that late-disclosed FEMA recoupment letters and an email attempting to contact a FEMA inspector did not justify dismissal. The letters were produced in time for effective use at trial, and the inspector information was not suppressed under Brady because the defense knew of the inspection and could have pursued the inspector with reasonable diligence. Even assuming a Rule 16 violation, the district court abused its discretion by dismissing the indictment without considering prejudice or lesser sanctions.
Cortez v. Rubio, No. 25-20339 (Higginbotham, Smith, Oldham, JJ.): Affirming dismissal, the Fifth Circuit held that the plaintiff’s Section 1503(a) nationality claim was time-barred because he sued more than five years after the first final administrative denial of his passport application. Later applications and denials did not restart limitations, and equitable tolling was unwarranted given the State Department’s repeated explanations and requests for additional proof. Section 1503(a) provided the exclusive adequate remedy, foreclosing APA and mandamus relief, and the plaintiff’s constitutional theories failed to state a claim.
United States v. Cordova, No. 24-50564 (Haynes, Ho, Oldham, JJ.) (per curiam): Does Section 922(g)(1) violate the Second Amendment as applied to a felon whose predicate convictions include evading arrest in a motor vehicle?
Majority (per curiam): No. Applying circuit precedent, the panel rejected the as-applied challenge because the defendant’s vehicular-evasion conviction demonstrated dangerousness. High-speed pursuits pose serious risks to others, supporting disarmament under Section 922(g)(1).
Concurrence in the Judgment (Ho, J.): No. But lifetime disarmament raises serious constitutional concerns, particularly for nonviolent offenders who never served prison time. In any event, the defendant did not adequately raise that issue, and his more recent drug use further narrowed the case.
Concurrence in the Judgment (Oldham, J.): No. But lifetime disarmament raises serious constitutional concerns, particularly for nonviolent offenders who never served prison time. In any event, the defendant did not adequately raise that issue, and his more recent drug use further narrowed the case.
Arguments
The Fifth Circuit’s June sitting takes place the week of June 1.
Red Light
With all loose ends tied up, we’ve reached the red light.
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Judge Duncan authored the Fifth Circuit’s panel opinion, joined by Judges Southwick and Englehardt.
The Fifth Circuit panel considering Mr. Busby’s stay application consisted of Judges Richman, Graves, and Higginson. Judge Graves would have granted habeas relief and the accompanying stay; Judge Higginson would have granted a temporary stay until the Supreme Court issued its judgment in Hamm v. Smith; and Judge Richman would have denied the stay and the accompanying habeas relief.
The Fourteenth Court panel was comprised of Justices Wise, Jewell, and Hart, who issued a per curiam opinion summarily denying the petition.
Justice Hawkins didn’t participate in the decision.
Disclaimer: I previously represented the judgment creditors at the briefing stage.
Justice Sullivan didn’t participate in the decision.
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