26-12: Baking a Cake
A look back to the weeks of May 25 and June 1, with help from the kitchen
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
I’m in trial right now, so this week’s issue comes just before I reenter the courtroom for the day.
A common misconception about appellate lawyers is that we live only at the appellate level. We enter the picture after trial, when the record is closed, the judgment is signed, and the case is headed upstairs. That’s certainly a major part of the job, but it’s not the whole job. Some of the best appellate work happens much earlier, before trial and during it, while the record is still taking shape.
I often compare taking over a case for the first time on appeal to being asked to bake a cake after someone else has already picked out all the ingredients. Hopefully, you have what you need. But sometimes you don’t. Either way, you have to bake with what you’ve got.
Embedded appellate counsel gets to do something different. You’re there while the ingredients are being chosen in real time—while objections, offers of proof, charge questions, trial motions, and preservation decisions can still shape what happens later.
That doesn’t mean trying the case like an appeal. Trial lawyers don’t need an appellate lawyer hovering nearby to tell them how to try a case—or, worse, pretending we know how to do that. (I certainly don’t.) The good ones already know. They’re reading the jury, managing witnesses, making credibility calls in real time, and carrying the weight of the case in the only place where fast.
But trial moves fast. Legal issues don’t always arrive at convenient times. They show up between witnesses, during charge conferences, in the middle of evidentiary arguments, after long trial days, and sometimes in the few minutes before court resumes.
That’s where embedded appellate counsel can help. The job isn’t to make trial more complicated. To the contrary, it’s to make the trial lawyer’s job a little lighter. Sometimes that means working through a charge issue before it becomes a problem. Sometimes it means making a critical objection in the heat of the moment. Sometimes it means drafting something late at night so the trial team can stay focused on witnesses and themes. And sometimes it means saying, “Yes, we could object—but should we?”
The best trial-appellate partnerships aren’t about turf, but timing. Trial lawyers are trained to win the moment in front of them. Appellate lawyers are trained to think about how that moment will look later, when the heat of trial has cooled and the only thing left is the record. In a hard case, both perspectives matter. The point isn’t to choose between the moment and the record, but to make each strengthen the other.
Being embedded thus lets appellate counsel give advice while it can still change the shape of the case—not months later, when the only tool left is a cold record. That’s why I like the role so much: Instead of trying to bake with whatever ingredients are left on the counter, I get to help shop for the ones the case may need later.
1910
Orders and Opinions
Between trial and the busy Supreme Court dockets, there won’t be any Feature this week. Instead, we jump directly to brief summaries of notable opinions and orders from the First and Fourteenth Courts.
1COA
African American Historic Preservation Committee, Inc. v. State, No. 01-23-00798-CV (Adams, C.J.; Guerra, Guiney, JJ.): Affirming the grant of the State’s plea to the jurisdiction, the First Court held that the Committee failed to raise a fact issue showing its alleged taking injury was fairly traceable to the State. Although the pleadings alleged that the State acted through Texas City in securing demolition of the Committee’s property, the State’s jurisdictional evidence showed that the City acted alone.
Liberation Holdings, LLC v. All-Tex Roofing LLC, No. 01-24-00298-CV (Guerra, Caughey, Dokupil, JJ.): Affirming summary judgment , the First Court held that Soundcheck’s lost-profits and business-destruction claims failed as a matter of law because its damages model rested on unsupported assumptions rather than objective facts, figures, or data tying lost profits to All-Tex’s conduct. Soundcheck’s post-storm property-damage claims were also barred by its release of known and unknown damages, including future developments, resulting from the roof-water intrusion. As to GWA, GWA couldn’t rely on prior breach after electing to treat the roofing contract as continuing, failed to produce evidence that All-Tex breached its workmanship warranty by not repairing leaks within a reasonable time, and didn’t challenge the economic-loss-rule ground for summary judgment.
Freedom Westwood, LLC v. Flagship Capital Partners Equity Opportunity Fund, LP, No. 01-24-00398-CV (Adams, C.J., Gunn, Johnson, JJ.): Reversing and rendering, the First Court held that forum-selection clauses in two LLC agreements did not establish personal jurisdiction over Freedom Westwood. Freedom Westwood wasn’t a party to the first agreement; Flagship Capital wasn’t a party entitled to enforce the second agreement; and the two agreements were separate instruments rather than one unified transaction. Direct-benefits estoppel also didn’t apply because Freedom Westwood was a nonsignatory defendant that had not sued to enforce or otherwise knowingly exploited the agreement containing the clause.
City of Houston v. Barfield, No. 01-25-00467-CV (Rivas-Molloy, Johnson, Dokupil, JJ.): Reversing and rendering, the First Court held that the City retained governmental immunity because its employee was not acting within the course and scope of employment when her City vehicle collided with a bus carrying Barfield. Although use of the City vehicle raised a course-and-scope presumption, the City rebutted it with evidence that the employee had deviated from her duties for a personal errand to buy a soda.
SCI Texas Funeral Services, LLC v. Mann, No. 01-25-00572-CV (Gunn, Caughey, Morgan, JJ.): Reversing the denial of SCI’s motion to compel arbitration, the First Court held that the decedent’s daughter was bound by the arbitration clause in the funeral-goods-and-services contract she signed, and her brothers were bound as non-signatories. The daughter’s arbitration agreement was not illusory, and the timing of the alleged embalming breach did not remove the claims from the agreement’s broad scope. The brothers were bound under direct-benefits estoppel and third-party-beneficiary principles because their claims depended on funeral, embalming, and transportation services provided under contracts containing arbitration provisions.
Tour Partners Ltd. v. Cohen, No. 01-24-00067-CV (Adams, C.J.; Gunn, Guiney, JJ.): Reversing and rendering a take-nothing judgment, the First Court held that res judicata barred Cohen’s TUFTA claims against Tour Partners. Cohen’s prior suit produced a final judgment on the merits against Tour Partners, the parties were identical, and the TUFTA claims arose from the same operative facts as the earlier claims concerning Preston Realty’s alleged debt to Cohen and its transfer of the warehouse to Tour Partners. Cohen’s nonsuit of the fraudulent-conveyance claim after an adverse summary judgment didn’t preserve the claim for a second suit, and Tour Partners didn’t waive or become estopped from asserting res judicata by moving to strike the claim in the first suit.
14COA
JEM Automatics & Tooling Inc. v. DeWalch Technologies, Inc., No. 14-25-00102-CV (Jewell, McLaughlin, Antú, JJ.): Affirming the denial of JEM’s special appearance, the Fourteenth Court held that Texas had specific personal jurisdiction over the Michigan seller because the parties’ negotiated warranty contemplated repair performance in Texas. While the mere sale of the machine to a customer in Texas would not establish jurisdiction by itself, JEM agreed to provide warranty services in Texas, thereby committing itself to an ongoing relationship in the State. DeWalch’s breach-of-contract, breach-of-warranty, and DTPA claims arose from those Texas-related warranty obligations.
Anglo American PLC v. Parnham, No. 14-25-00170-CV (Wilson, Hart, McLaughlin, JJ.): Reversing and rendering dismissal for want of personal jurisdiction, the Fourteenth Court held that Texas courts lacked specific jurisdiction over three European defendants in a personal-injury suit brought by a New Jersey resident injured while working in England. Anglo American’s subsidiary-related contacts could not be imputed to it because the evidence showed ordinary parent-investor involvement, not abnormal control. And although Worley Europe and York Potash purposefully availed themselves of Texas, the operative facts concerned alleged negligent supervision and care in England—not Texas recruitment, Poly4 marketing, or Texas field testing.
Composite Advanced Technologies, LLC v. National Heat Treat, LLC, No. 14-25-00347-CV (Wise, McLaughlin, Bridges, JJ.): Affirming summary judgment for Heat Treat, the Fourteenth Court held that the MTI liability-limitation provision was part of the parties’ services contract and capped Composite’s damages. Heat Treat’s quote specifically stated that all work was subject to the MTI limitation and linked to it, placing the burden on Composite to review that linked limitation. Composite accepted the quote by issuing a purchase order that did not vary the quoted terms. Additional evidence showing that Composite saw the limitation before the transaction further supported assent.
Baxter Bailey & Associates, Inc. v. CVS Health Solutions LLC, No. 14-25-00670-CV (Christopher, C.J.; Hart, Antú, JJ.): Reversing and rendering, the Fourteenth Court held that the trial court abused its discretion by sanctioning Baxter Bailey for continuing to pursue freight-charge claims that CVS argued were barred by the ICCTA’s 18-month limitations period. Although some federal authority supports CVS’s argument, other authority rejects it, and no Texas court or the U.S. Supreme Court appears to have resolved the issue. Because Baxter Bailey’s contrary limitations position was not groundless or frivolous, CVS did not overcome the presumption that the petition was filed in good faith.
In re WeldFit LLC, No. 14-26-00085-CV (Jewell, McLaughlin, Antú, JJ.) (per curiam) (orig. proceeding): Conditionally granting mandamus, the Fourteenth Court held that WeldFit’s contractual jury waiver with its former employee did not waive WeldFit’s jury right on claims against non-signatory defendants. The employment agreement’s waiver applied only to the “Employee” and “Employer,” and the non-signatory STATS entities and executives were not third-party beneficiaries of that waiver. Direct-benefits estoppel didn’t apply because WeldFit’s claims against those defendants sounded in tort and common-law duties rather than in direct benefits under the employment agreement. Nor did WeldFit unduly delay in filing its mandamus petition. Because WeldFit lacked an adequate appellate remedy from the improper loss of its jury right, mandamus relief was appropriate.
Ortega v. Washington, No. 14-25-00371-CV (Wise, Hart, Boatman, JJ.): Affirming judgment under Rule 166(g), the Fourteenth Court held that a remote cellphone caller owes no duty to the general public to control the conduct of a call recipient who is driving. Texas cases recognizing duties for passengers or on-scene actors who distract drivers did not extend to a person who is physically remote from the vehicle and lacks first-hand knowledge of the driving conditions. Analysis of the Phillips factors was unnecessary, given comparable caselaw from other courts and this case’s unique facts.
Arguments
As for what’s next on the appellate menu, the Houston Courts of Appeals have a quiet couple of weeks ahead, with only one oral argument on the calendar.
1COA
Edwards v. State, No. 01-23-00852-CR (Guerra, Gunn, Caughey, JJ.): Several issues arising from a murder conviction, including evidentiary sufficiency, suppression, and jury-charge error.
Appellant: Sophie Bossart (Harris County Public Defender’s Office)
Appellee: Victoriano Flores (Harris County District Attorney’s Office)
Argument: June 9 at 1:30 pm
& Beyond
Leaving the Houston Courts of Appeals kitchen, the & Beyond docket has a fuller spread.
SCOTUS
Outside Houston, the appellate oven was working overtime. In Washington, the Supreme Court’s end-of-Term ramp-up began in earnest, with two opinions on compassionate release, a unanimous decision on the Federal Arbitration Act, and a habeas case that produced an unusual 5–4 split.
Opinions
Flower Foods, Inc. v. Brock, No. 24-935 (Tenth Circuit): Does a person qualify as a worker “engaged in . . . interstate commerce” under Section 1 of the Federal Arbitration Act if they never cross state lines and never interact with vehicles that do?
Majority (Gorsuch, J., for unanimous Court): Yes. Section 1’s reach is broad, and nothing in the term “engaged in . . . interstate commerce” requires an individual to cross state lines or interact with a vehicle that does. Adopting Flower Foods’ reading would lead to illogical results inconsistent with longstanding precedent. And while it’s true that “engaging” requires a direct, necessary, and active role in moving goods across borders, that principle doesn’t limit Section 1’s reach to only those individuals who cross state lines.
Pitchford v. Cain, No. 24-7351 (Fifth Circuit)1: Did the Mississippi Supreme Court unreasonably apply clearly established precedent in concluding a defendant waived his right to challenge an allegedly race-neutral reason for striking a venire member as pretextual?
Majority (Kavanaugh, J., joined by Roberts, C.J., Sotomayor, Kagan, Jackson, JJ.): Yes. The trial court never allowed defendant’s counsel the chance to demonstrate the prosecution’s race-neutral reasons were pretextual as required by Batson v. Kentucky. It explicitly stated the Batson challenge was preserved, and the State’s argument that the defendant preserved his Batson challenge generally while also waiving his right to show pretext specifically “slices Batson way too thin” and is not based on a reasonable reading of the record.
Dissent (Gorsuch, J., joined by Thomas, Alito, Barrett, JJ.): No, because neither avenue for AEDPA relief was demonstrated. First, the state court’s decision was not contrary to or an unreasonable application of clearly established federal law because state courts may create their own preservation rules governing Batson claims. Second, the record supports the state court’s finding of waiver. And even if the majority’s reading of the record was plausible, it wouldn’t be enough, because AEDPA requires the record to “compel” a court to conclude the defendant’s version of events is correct.
Fernandez v. United States, No. 24-556 (Second Circuit): Do doubts about a conviction’s validity qualify as an “extraordinary and compelling reason” to shorten a federal prison sentence through compassionate release?
Majority (Barrett, J., joined by Roberts, C.J., Thomas, Alito, Gorsuch, Kavanaugh, JJ.): No. A prisoner who collaterally attacks the validity of his conviction must proceed through the federal habeas procedures outlined in 28 U.S.C. § 2255, not the compassionate-release statute. Moreover, the compassionate-release statute, contra the dissent, isn’t intended to offer deserving prisoners relief from Section 2255’s rigors. Indeed, the fact that vacating a conviction is not a form of relief granted in the compassionate-release statute proves it is not intended to address claims that go to the validity of the conviction.
Concurrence in the Judgment (Sotomayor, J., joined by Kagan, J.): Yes, but the decision should be affirmed “on a different, far simpler ground”: Compassionate release only applies where there is a change in circumstances that developed after sentencing. The majority’s opinion, however, adopts a rule “that goes far beyond what is needed to resolve this case.”
Dissent (Jackson, J.): Yes. The majority’s decision arbitrarily restricts the discretion afforded to district courts to ensure just treatment of criminal defendants that is created by the compassionate-release statute. There is no explicit or implicit textual basis to support the majority’s habeas-based rule, given that the compassionate-release statute does not even mention habeas relief and included only two exceptions to a trial court’s wide discretion to reduce sentences “for extraordinary and compelling” reasons. And the release of an innocent person from prison “would seem to be the quintessential situation” in which the compassionate-release safety valve would apply.
Rutherford v. United States, No. 24-820 (Third Circuit): Does a sentencing disparity resulting from Congress’s nonretroactive change to statutory penalties serve as an “extraordinary and compelling” reason to support the application of compassionate release to reduce a sentence’s length?
Majority (Barrett, J., joined by Roberts, C.J., Thomas, Alito, Gorsuch, Kavanaugh, JJ.): No. Nonretroactive amendments to criminal penalties are the norm, and it’s hard to see how Congress’s decision to decline to extend newly reduced penalties to those already serving in prison is a convincing reason that warrants a sentence reduction. Finding a sentencing disparity as “extraordinary and compelling” would also venture far outside the heartland of compassionate release, which has long been defined by a prisoner’s personal circumstances.
Dissent (Sotomayor, J., joined by Kagan, Jackson, JJ.): Yes. Properly framed, the question is whether the United States Sentencing Commission acted unreasonably when it issued guidance permitting district courts to consider sentencing disparities created by changes in law in determining compassionate release. The answer is no.
Federal Communications Commission v. AT&T, No. 25-406 (Fifth Circuit)2: Is the FCC’s enforcement structure for investigating and penalizing violations of the communications laws consistent with the Seventh Amendment?
Majority (Roberts, C.J., joined by Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett, Jackson, JJ.): Yes. The forfeiture orders issued against the carriers here (AT&T and Verizon) didn’t settle their legal obligations because there was no accompanying obligation to pay. Instead, the FCC must initiate an enforcement suit against the carriers, which is held de novo and before a jury, as required by the Seventh Amendment. And the unconstitutional-conditions doctrine—which prohibits governments from coercing people from giving up their rights—is a poor fit and doesn’t compel a contrary result.
Dissent (Thomas, J.): No. There is no dispute that the carriers were charged with—and paid—fines issued by the FCC without any jury trial right. And adopting the majority’s regime could leave carriers to be sued in jurisdictions that deny regulated parties the right to a jury trial, a result that is plainly inconsistent with the Constitution.
Sripetch v. Securities and Exchange Commission, No. 25-466 (Ninth Circuit): Must the SEC prove that victims of securities-law violations have suffered pecuniary loss as a precondition to seeking disgorgement?
Majority (Gorsuch, J., for unanimous Court): No. Traditional equity principles underlying disgorgement have focused on the gain of the wrongdoer rather than the loss of the victim, so disgorgement as a remedy does not require a showing of pecuniary harm. Sripetch’s contrary arguments would impose a requirement in establishing a right to disgorgement that is unmoored from precedent and traditional equitable principles alike.
Concurrence (Thomas, J.): No, but SEC disgorgement nowadays is a legal remedy. The process doesn’t resemble any traditional equitable remedy like constructive trusts and equitable liens, nor does it correspond to the “accounting for profits” equitable remedy. Instead, disgorgement most closely resembles the legal remedy of restitution.
Hikma Pharmaceuticals v. Amarin Pharma, Inc., No. 24-889 (Federal Circuit): Is a pharmaceutical company that produces generic versions of name brand drugs liable for induced infringement if published materials could be read by physicians in a way that would encourage inducement?
Majority (Jackson, J., for unanimous Court): No. Induced infringement requires a plaintiff to demonstrate the inducer took affirmative steps to bring about the desired result of patent infringement. The statements in the published materials here fall short: There are plausible alternative explanations for their statements other than inducing infringement, and mere omissions and inaction cannot constitute actionable interference.
The Court also issued two summary reversals:
Margolin v. National Association of Immigration Judges, No. 25-767 (Fourth Circuit): Are work-related constitutional claims brought by federal employees required to proceed through the Merit Systems Protection Board (MSPB) and Special Counsel, or may they be brought in federal district court?
Majority (per curiam): Because the court of appeals violated the principle of party presentation, the judgment must be reversed. Courts are passive instruments and shouldn’t decide a case on an issue that was not properly presented. Here, the Fourth Circuit addressed a much broader question than the one briefed by the parties without giving either side an opportunity to address its theory.
Concurrence (Thomas, J., joined by Barrett, J.): Yes. The respondent conceded its members were employees governed by the Civil Service Reform Act of 1978 and that the workplace policy at issue was a covered agency action, and so the partes had to proceed through the MSPB. The Fourth Circuit’s contrary conclusion relied on external, political considerations that weren’t properly presented.
Whitton v. Dixon, No. 25-580 (Eleventh Circuit): Did the court of appeals err in considering evidence that was not presented a trial in determining whether a state court’s judgment was reasonable as required for habeas relief?
Majority (per curiam): Yes. Neither the jury nor the Florida Supreme Court considered certain evidence in issuing a verdict, so the Eleventh Circuit should not have done so either. We do not address whether the habeas claims were properly exhausted in state-court proceedings or whether the state court’s determination was reasonable based on the evidence admitted at trial.
Dissent (Thomas, J., joined in part by Alito, J.): No. The majority opinion relies on a miniscule portion of the Eleventh Circuit’s opinion, and the claim that was purportedly improperly rejected would have failed on other grounds, anyway. Not only was the evidence against the defendant more than sufficient to justify the verdict, but the petitioner had also failed to properly exhaust his claim in state court proceedings. And the Court’s practice of granting summary relief in certain cases where it makes no impact on the outcome is both regrettable and inconsistent.
Orders
Beyond the Court’s usual denials, as well as one denial from the stay of execution, the Court issued yet another order on a redistricting case impacted by its decision in Callais v. Louisiana, while also declining to grant leave for a suit between three states to proceed:
Allen v. Milligan, No. 25A1314 (Middle District of Alabama), consolidated with Allen v. Singleton, No. 25A1315 (Northern District of Alabama) and Allen v. Caster, No. 25A1316 (Eleventh Circuit): Is Alabama entitled to interim relief of a stay from an order enjoining it from using a congressional map enacted in 2023?
Majority (per curiam): Yes. The State is likely to prevail on the merits because the district court didn’t apply the presumption of legislative good faith on the question of intentional vote dilution. The court also failed to properly apply Callais by finding a violation even though the proposed alternative map did not achieve constitutionally permissible goals as well as the state’s map. The State has also made a strong showing of irreparable harm because we have consistently counseled against courts getting involved in election rules on the eve of an election.
Dissent (Sotomayor, J., joined by Kagan, Jackson, JJ.): No. The record clearly reflects that Alabama drew its map to entrench dilution of Black votes. The majority’s invocations of Callais are at best inapt: these cases involve intentional discrimination, an issue Callais itself claimed it did not address. And in addition to being wrong on the merits, this decision wreaks tremendous public harm by wreaking havoc on Alabama’s elections, debasing the democratic process, and corroding the rule of law.
Florida v. California, No. 162 (orig. proceeding): May Florida file an original complaint against Washington and California for allegedly defying federal law by providing commercial driver’s licenses to illegal aliens who cannot read in English?
Order: Motion for leave to file complaint denied.
Dissent (Thomas, J., joined by Alito, J.): Yes, because the Supreme Court has no authority to refuse to hear suits between states. The court’s discretionary approach towards hearing cases within its original jurisdiction like does not comport with Article III, and even if it did, discretion should have been exercised here because of Florida’s interests in bringing suit and the lack of any other available forum.
Finally, the Court granted certiorari in one case :
Maxwell v. Thomas, No. 25-5930 (Fifth Circuit)3: Can a claim for application of time credits under the First Step Act seeking accelerated transfer to a halfway house or home confinement be brought in a habeas petition under 28 U.S.C. § 2241?
Arguments
The Court has completed arguments for this Term.
SCOTX
Washington wasn’t the only place with a busy appellate kitchen. The Supreme Court of Texas was active in Austin, issuing several opinions on the procedure required—and the fundamental rights involved—in parental-termination cases, plus important clarifications on default judgments and certificates of merit.
Opinions
Huffman Asset Management, LLC v. Colter, No. 24-0205 (Fifth Court): May a party be subjected to default judgment when alternative service is attempted through the Secretary of State and notice was never forwarded to the statutorily required address?
Majority (Lehrmann, J., for unanimous court): No. The Whitney certificates from the Secretary of State prove only that the citation was sent to the address listed in the certificate, not that the address is the statutorily required one. Here, the citation was directed toward the registered office address, rather than the most recent address as required by statute, and so service was never properly effected. And the Court is “increasingly skeptical of default judgments”: Indeed, an entry of default is only tolerable because an absent party could have appeared, but chose not to.
Concurrence (Huddle, J., joined by Devine, Young, and Sullivan, JJ.): Default judgments can threaten the judicial system’s legitimacy by avoiding the adversarial presentation and adjudication on the merits that is critical to its proper functioning. They “must be used only as a last resort, never as a strategy.”
Studio E. Architecture and Interiors, Inc. v. Lehmberg, No. 24-0286 (Fourth Court): If a party has a claim dismissed against a defendant for failing to file a certificate of merit with the original petition as required by Section 150 of the Civil Practice and Remedies Code, may she reassert her claims against that defendant by filing an amended petition with a certificate of merit in the same suit?
Majority (Huddle, J., joined by Blacklock, C.J., Lehrmann, Devine, Busby, Bland, Young, Hawkins, JJ.): Yes. Because the initial dismissal was without prejudice, the parties agree the plaintiff could have brought her claims anew. And an amended petition is an acceptable procedural vehicle because the plaintiff’s suit remained pending, meaning the new claims are treated as if the claims had never been made in the first place. The dissent’s emphasis on Section 150’s reference to the “first” petition overlooks this principle, because, in effect, the amended petition is the first time such claims had been made when prior claims had been dismissed without prejudice.
Concurrence (Hawkins, J., joined by Busby, Young, JJ.): Yes. Both the majority and the dissent’s readings of the statute are permissible, but the regime supported by the majority’s reading is preferable to the dissent’s because it avoids multiplicity of proceedings and better harmonizes Section 150’s various provisions. But there is a “structural peculiarity” lurking in Section 150 because there is no deadline for defendants to file a motion to dismiss for lack of a certificate of merit, an asymmetry with plaintiff’s obligations that encourages procedural gamesmanship.
Dissent (Sullivan, J.): No. “Nothing in our precedents suggest that a court’s power to dismiss without prejudice allows it to forgive noncompliance with a statutory requirement.” Here, the plaintiff failed to attach her certificate of merit to her first-filed petition, so the proper result is to file a new cause of action including the certificate of merit. Whatever may be said about judicial efficiency or the nature of a dismissal without prejudice, the legislature made a decision in how it drafted Section 150, and the statute’s plain text should apply.
Staub v. BBVA USA, No. 24-1057 (Fifth Court): When there is a home equity loan secured by a homestead, will any breach of the loan agreement by the lender result in forfeiture of the loaned amount?
Majority (Bland, J., for unanimous Court): No. Forfeiture of the loan amount only applies where the lender breaches an obligation under the extension of credit, which are enumerated in the Texas Constitution itself. This conclusion is reinforced by the history surrounding the passage of the home-equity constitutional and is also consistent with precedent addressing the forfeiture remedy specifically. Because the borrower here didn’t assert a violation of a constitutional obligation, the lower courts’ judgments were correct.
In re H.S., No. 24-0307 (Second Court): Did the trial court correctly conclude that there were grounds for terminating the parent-child relationship for both parents?
Majority (Young, J., joined by Blacklock, C.J., Busby, Sullivan, Hawkins, JJ.)4: No to the mother, but yes to the father. As to the mother, the trial court erred in postponing the trial where the mother’s progress in life-skill development and the significant deterioration of the well-being of the children constituted extraordinary circumstances. Furthermore, by proceeding directly to trial, the court “cut short a process that seemed poised to lead” to at least a reunification between the mother and the children, and thus the Department failed to present legally sufficient evidence that termination of the mother’s parental rights was in the best interest of the children. As to the father, it was his behavior that directly threatened the family, and thus the evidence was legally sufficient to support the jury’s findings that he had endangered the children and termination was in their best interest.
Dissent in Part (Lehrmann, joined by Bland, Huddle, JJ.): Yes to both. The majority opinion disregards considerable evidence supporting the jury’s verdict, including evidence demonstrating the mother affirmatively indicated her refusal to protect the children from the father even after admitting he had engaged in dangerous conduct and her continued use of drugs while the case was pending. The mother’s apparent intent to continue to submit the children to a home life where they would suffer more trauma could lead a reasonable juror to conclude that termination was in the children’s best interest.
In re K.N., No. 24-0881 (Seventh Court): Did the trial court correctly conclude that there were grounds for terminating the parent-child relationship for both parents?
Majority (Hawkins, J., joined in full by Blacklock, C.J., Devine, Busby, Young, and Sullivan, JJ., and in part by Lehrmann, Bland, Huddle, JJ.): Yes as to the mother but no as to the father. First, the rule providing “temporary emergency jurisdiction” is not tied to the trial court’s subject-matter jurisdiction to determine the case, and thus the parents waived any “jurisdictional” arguments by failing to raise them below. As to the merits, the record demonstrated extensive physical and psychological abuse by the mother over her children that exceeded the “reasonable reliance on traditional methods of discipline, including corporal punishment” that the law supports. As to the father, the record shows the mother’s abuse might have been worse but for the father’s presence. Because termination of parental rights requires the Government to clear a high bar, the father’s unrelated criminal conduct cannot justify termination.
Concurrence (Blacklock, C.J.): Traditional disciplinary methods don’t violate the law—even if abusive in the eyes of some—so long as the intent is parental instruction and not malicious, criminal harm. And we may need to rethink our appellate standards of review when considering this issue going forward given the significant consequences at stake.
Dissent in Part (Bland, J., joined by Lehrmann, Huddle, JJ.): Yes as to both. Like H.S., the majority disregards considerable evidence supporting the jury’s verdict. It discounts the father’s role in abuse of the oldest child, which the jury concluded exceeded the bounds of the law. And it places insufficient weight on his post-removal conduct, which included leading law enforcement on a high-speed chase, never submitting a clean drug test, and not attempting to visit his children for over a year.
State v. City of McAllen, No. 24-1060 (Third Court): Did statutorily reduced rates to run telecommunications equipment across publicly owned property violate the Texas Constitutions’ Gift Clauses?
Majority (Blacklock, C.J., for unanimous Court)5: Maybe, but the court of appeals’ judgment must be vacated because the cities sued the wrong defendant. The cities failed to even attempt to identify a state officer or agency allegedly attributable for their injury, and the proper defendant in this case appears to be the telecommunications companies—not any employee or agency of the state. The judgment sought in this lawsuit would therefore not redress the cities’ injuries or resolve the real-world dispute animating this litigation.
In re C.S., No. 25-0008 (Eleventh Court): Did the trial court have subject-matter jurisdiction to terminate the parental rights of a mother?
Majority (Young, J., joined by Blacklock, C.J., Devine, Sullivan, and Hawkins, JJ.): No. Although the trial court appeared to have granted an extension in a pretrial conference, it neither issued an extension order nor took any other step to grant an extension before the statutorily imposed deadline. And even if we overlooked this jurisdictional problem, the trial would still have been improper because no extension was granted in writing or orally in the presence of a court reporter. The trial that took place was subsequently presided over by a court that lacked jurisdiction over the case, and the judgments below are vacated.
Dissent (Lehrmann, J., joined in full by Bland, Huddle, JJ., and in part by Busby, J.): Yes. An extension on the statutory deadline does not require a formal written order, and here context demonstrates the trial court granted an extension prior to the statutory deadline, even without a court reporter. As to the merits, the court of appeals should be affirmed: The court entered a written order making the statutorily requisite findings after it granted the extension, and the record demonstrates a fact finder could have reached the firm belief or conviction that termination was in the children’s best interests.
In re S.H., No. 26-0030 (First Court) (no oral argument)6: Did the trial court abuse its discretion in removing a parent’s lawyer in parental-termination proceedings?
Majority (per curiam): Yes. Although a trial court must appoint counsel to represent parents in parental-termination proceedings, that doesn’t mean the court can ignore the parents’ chosen counsel. Here, the trial court improperly found that the appearance of a non-appointed counsel usurped judicial functions, and it should have permitted the parent to be represented by counsel of choice.
Orders
Beyond the usual denials, the Court’s most recent orders contain several opinions relating to the denials of petitions:
In re A.B., No. 25-044 (Second Court): Did the court of appeals err in affirming the trial court judgment over complaints about ineffective assistance of counsel?
Order (per curiam): Petition denied.
Concurrence (Young, J., joined by Sullivan, Hawkins, JJ.): Maybe, but the true ineffective assistance of counsel came before this Court. The appellate brief included what appears to be an inadvertent Anders disclaimer that is fatal to the petition. And when this Court ordered appellate counsel to file a letter explaining the inconsistency in the briefing, he refused.7
In re A.C.P., No. 25-0688 (Fourth Court): Did the court of appeals improperly disregard the trial court’s best-evidence findings in a parental-termination suit?
Order (per curiam): Petition denied.
Statement Respecting Denial (Young, J., joined by Devine, Sullivan, JJ.): The Court reasonably denies the Department’s petition for review because the splintered decision from the court of appeals means this case is unlikely to serve as helpful precedent. The deficient record in this case leads to the troubling possibility not that the Department proceeded with termination proceedings on flimsy facts, but rather that the State had evidence supporting termination that it failed to present. It is essential for the Department to create a record that is clear enough to justify the harsh remedy of termination.
In re J.M., No. 25-0941 (First Court)8: Did the court of appeals err in finding the evidence was factually sufficient to support parental-termination?
Order (per curiam): Petition denied.
Concurrence (Sullivan, J., joined by Young, J.): I agree with the decision to not take this case, but lower courts must take all their statutory duties seriously, not merely ones that carry jurisdictional consequences. Nothing in the record suggests the trial court complied with its obligation to issue a judgment no more than ninety days after trial commenced in a parental-termination suit, and letting an ongoing parental-termination trial languish on the docket for five months is unacceptable.
In re D.T., No. 25-1084 (First Court)9, consolidated with In re L.J.K, No. 25-1103 (Fourteenth Court)10, and In re K-K.J.B., No. 25-1159 (Fourth Court), and In re E.J.S., No. 26-0287 (Fourteenth Court)11, and In re M.H., No. 26-0316 (First Court)12: Did the trial court make the proper findings required to terminate parental rights?
Order (per curiam): Petitions denied.
Concurrence (Sullivan, J., joined by Young, J.): Though the Court properly denies the petitions, in each of these cases, the trial court failed to make certain required findings under the Family Code—including that the Department of Family and Protective Services “made reasonable efforts to return the child to the parent before commencement of a trial on the merits.” None of the courts considering these cases found what reasonable efforts the Department took to return the child, and this statute has been on the books long enough that courts should be aware of what is required to do their job in this area.
In re K.L.B., No. 26-0077 (Seventh Court): Did the court of appeals err in affirming parental termination?
Order (per curiam): Petition denied.
Concurrence (Sullivan, J., joined by Young, J.): Though the Court properly denies review, the court of appeals nonetheless erred in relying on cases decided under an old version of the statute granting extensions to the automatic-dismissal date. This led the court to skip a question about whether an extraordinary-circumstances finding to support this extension was warranted, and it further led the court to improperly focus on whether the mother’s failure to complete her service plan was “voluntary” rather than whether the mother engaged in good faith to complete it.
Finally, the Court granted petitions for review in several cases:
Lattimore Materials Corp. v. Trinity Industries Leasing Company, No. 24-0953 (Fifth Court): Did the court of appeals err in holding no evidence supported the jury’s finding that the plaintiff knew about the particulars of a contractual injury more than four years before the plaintiff filed suit?
Orleans Harbour Homeowners Association, Inc. v. West Harbour, LLC, No. 24-1063 (Fourteenth Court)13: Did the court of appeals err in holding a vendor-vendee relationship was required for an easement by estoppel, in finding insufficient evidence of an affirmative representation of permissive use, and in concluding a tract subject to adverse possession was insufficiently described? And was there a justiciable controversy about the proper boundary line between the parties’ property?
Clark v. Rodriguez, No. 25-0182 (Thirteenth Court): Did the court of appeals err in improperly expanding the taxpayer-standing exception, and did it err in finding a fact issue by imposing improper restrictions that are not required under the Texas Prevailing Wages Act?
Estate of Long, No. 25-0601 (Sixth Court): (1) What evidence is admissible to resolve a contest between a will’s intent and the court’s ability to carry out that intent? (2) Did the court of appeals err by failing to consider evidence that would have enabled it to carry out the decedent’s intent? And (3) did the court of appeals err in failing to render judgment based on a will’s residuary clause?
The Court also set oral argument in two original proceedings:
In re Delta Equine Center, Inc., No. 25-0340 (Twelfth Court) (orig. proceeding): Is mandamus relief appropriate from a pre-judgment monetary sanction requiring counsel to pay the opposing party’s anticipated new-trial fees after counsel questions a witness about an exhibit already admitted into evidence?
In re Hughey, No. 25-0463 (Ninth Court) (orig. proceeding): Is mandamus relief appropriate from the trial court’s order striking the use of a non-stenographically recorded, artificial-intelligence-generated deposition transcript?
Arguments
Like its federal counterpart, the Texas Supreme Court has concluded oral arguments for this Term.
CA5
With the Supreme Court ovens cooling, the Fifth Circuit had plenty of its own baking underway.
Opinions
Bravo v. Dallas Independent School District, No. 25-10982 (Wiener, Haynes, Graves, JJ.): Affirming summary judgment for Dallas ISD, the Fifth Circuit held that Bravo failed to make a prima facie Title VII discrimination case because he offered no similarly situated comparator outside his protected class. The Supreme Court’s recent Ames decision did not overturn Fifth Circuit precedent requiring comparator evidence under McDonnell Douglas.
United States v. Squire, No. 25-30324 (Clement, Southwick, Engelhardt, JJ.): Affirming Squire’s felon-in-possession conviction and sentence, the Fifth Circuit held that Section 922(g)(1) was constitutional as applied to a convicted drug trafficker who possessed a firearm inside his home. Although the Second Amendment protects the core right of armed self-defense in the home, historical tradition permits legislatures to disarm classes of people deemed dangerous, and drug trafficking fits within that tradition. But the court emphasized that its holding didn’t decide whether Congress may disarm in-home possession based on convictions lacking a historical analogue tied to dangerousness, violence, or threats to public order.
Wertenbroch v. Hardeman, No. 25-40616 (Clement, Southwick, Engelhardt, JJ.): Vacating and remanding, the Fifth Circuit held that it had appellate jurisdiction under the collateral-jurisdiction doctrine when the district court allowed litigation to proceed without adjudicating a properly raised qualified-immunity defense at the motion-to-dismiss stage. Although the district court didn’t expressly deny qualified immunity, its silence functioned as an implicit denial because qualified immunity must be resolved at the earliest possible stage when presented.
Lutheran Church—Missouri Synod v. Christian, No. 25-50130 (Elrod, C.J.; Jones, Graves, JJ.): Did the district court violate the church-autonomy doctrine by treating the Synod as a Texas unincorporated association and indispensable party whose citizenship defeated diversity jurisdiction?
Majority (Jones, J.): Yes. The district court impermissibly substituted its own secular reading of the Church’s governance documents for the Church’s description of its polity, including the doctrinal distinction between the Synod’s ecclesial role and LCMS’s civil-law role. The neutral-principles exception didn’t apply because the case principally concerned church hierarchy and representation, not merely a property dispute. Finally, “as the secular reflection of the Synod,” LCMS was a real and substantial party to the controversy for diversity purposes.
Concurrence (Elrod, C.J.): Yes. But “this is a straightforward case that can be decided” by looking to all of the Church’s governance documents to determine the best reading, not simply one particular subsection—as the district court did.
Dissent (Graves, J.): No. The district court permissibly applied neutral principles to determine the real party in interest and did not decide an ecclesiastical question. The majority’s contrary conclusion allows for disparate application of the church-autonomy doctrine based on how a religious group is organized.
Orders
Finally, the Fifth Circuit entered three orders in cases involving high-profile Texas legislation:
American Sustainable Business Council v. Hancock, No. 26-50111 (Graves, Ho, Douglas, JJ.): Should the Fifth Circuit stay the district court’s injunction of Texas S.B. 13, an anti-ESG statute?
Order (per curiam): Yes.
Concurrence (Ho, J.): Yes. S.B. 13 regulates spending and investment conduct, not speech. The law is similar to laws prohibiting public entities from doing business with companies that refuse to do business with Israel, or that target the firearms industry.
Students Engaged in Advancing Texas v. Paxton, Nos. 25-51073, 26-50001 (Smith, Haynes, Oldham, JJ.): Should the Fifth Circuit stay the universal preliminary injunctions against Texas’s App Store Accountability Act pending appeal?
Order (per curiam): Yes. Texas made a strong showing that the district court likely erred in applying strict scrutiny to significant parts, if not all, of SB 2420. App-store listings and related disclosures are, at most, commercial speech subject to intermediate scrutiny. To that end, Texas likely showed a reasonable fit between the Act’s age-verification, parental-consent, and content-rating requirements and its interests in protecting children’s data, privacy, and safety. The district court also likely committed other errors in its treatment of statutory exceptions, vagueness analysis, severability analysis, and universal injunction. The remaining stay factors favored Texas because enjoining state law irreparably harms the State and the public interest.
Judge Haynes concurred only in the order granting the stay pending appeal.
Mi Familia Vota v. Abbott, Nos. 22-50775, 22-50777, 22-50778 (Richman, Southwick, Oldham, JJ.): Should the Fifth Circuit grant rehearing en banc in a case concerning challenges to Texas’s Election Integrity Protection Act?
Order (per curiam): Petition denied by 8–9 vote.
Dissent (Oldham, J., joined by Jones, Smith, Willett, Ho, Engelhardt, JJ.): Yes. The panel’s approach turned Ex parte Young from a narrow exception into an “Ex Parte Young No Nexus Rule” allowing facial injunctions against state laws without tying the plaintiff’s own federal rights to the challenged enforcement. This approach undermines state sovereign immunity, exceeds Article III limits, and is especially harmful in election-law cases because it invites broad pre-enforcement challenges to state election-integrity rules.
Arguments
On June 9, the Fifth Circuit has one argument in a case on remand from the U.S. Supreme Court: Wage & White Lions Investments v. FDA, No. 21-60766.
15COA
Back in Texas, the Fifteenth Court also had several opinions ready, mostly from the agency-law side of the kitchen.
Opinions
Nariocan Enterprises LLC v. Texas Health & Human Services Commission, No. 15-24-00117-CV (Brister, C.J.; Field, Farris, JJ.): Affirming dismissal with prejudice, the Fifteenth Court held that Nariocan’s due-course and declaratory-judgment claims against HHSC were barred by sovereign immunity. Nariocan had no constitutionally protected right to special notice of Medicaid Provider Manual changes because Medicaid providers are charged with knowing applicable Medicaid laws and regulations. Its APA declaratory-judgment theory also failed because the live pleadings challenged only notice obligations, not the validity or applicability of an agency rule.
Public Utility Commission of Texas v. City of Denton, No. 15-25-00018-CV (Brister, C.J.; Field, Farris, JJ.): Affirming the district court’s judgment, the Fifteenth Court held that the PUC acted arbitrarily by relying on a materially modified rate-filing package to set Denton Electric’s debt-service coverage ratio at 1.25x. The Commission’s removal of a presumed-reasonable 0.25x adder was a significant change that required Texas Register notice under the Commission’s own rule, and the record didn’t rebut the presumption under the unmodified filing package. But the court also upheld the PUC’s exclusion of Denton Electric’s requested 6% return-on-investment component of its general-fund transfer because Denton Electric didn’t substantiate that component as a reasonable and necessary transmission expense. And it dismissed as moot Denton Electric’s challenge to the ordered interim rate filing, since Denton Electric had since made the filing.
Texas State Board of Social Worker Examiners v. Youniacutt, No. 15-25-00064-CV (Brister, C.J.; Field, Farris, JJ.): Reversing and rendering dismissal, the Fifteenth Court held that constitutional challenges to Occupations Code Section 108.052(2)’s automatic licensure bar for certain healthcare applicants with violent felony convictions were facially invalid. Assuming without deciding that the applicants had a protected liberty interest, the statute satisfied substantive due course because the Legislature could rationally connect the ban to protecting vulnerable patients, and procedural due course was satisfied through the legislative process itself. The equal-protection challenge also failed because applying the bar to social workers, even if not to some related counseling professions, was rationally related to the State’s protective interest.
Argument
The Fifteenth Court’s next argument is June 25.
Red Light
And with that, the baking timer’s gone off.
As always, I welcome your feedback and suggestions for 1910 & Beyond. Please don’t hesitate to leave a comment or email me with thoughts, topic ideas, or tips on interesting cases.
To the growing number of readers who have subscribed—thank you. If you haven’t yet, I hope you’ll consider joining—especially at the unbeatable cost of free. And if you know someone who might enjoy this content, I’d be delighted if you passed it along.
Until next time, have a great week—and here’s hoping you have all the ingredients you need.
Thank you to my law firm, Hicks Johnson PLLC, for their support of 1910 & Beyond. Hicks Johnson is a premier trial and appellate boutique with offices in Houston and Chicago, known for delivering successful outcomes in high-stakes, complex litigation. We provide superior results for clients by combining elite legal talent and real courtroom experience with cutting-edge technology and strategic client collaboration.
Judge Oldham authored the panel opinion, joined by Judges Smith and Duncan.
Judge Duncan authored the panel opinion, joined by Judges Haynes and Wilson.
The per curiam panel was comprised of Chief Judge Elrod and Judges Davis and Ramirez.
Justice Devine did not participate in the decision.
Justice Hawkins did not participate in the decision.
The per curiam panel was comprised of Justices Guerra, Caughey, and Dokupil.
At his excellent Substack 14th and Colorado, Adam Shniderman provides more analysis into this opinion.
Justice Morgan authored the panel opinion, joined by Chief Justice Adams and Justice Dokupil.
Justice Gunn authored the panel opinion, joined by Justices Rivas-Molloy and Caughey.
Justice Antú authored the panel opinion, joined by Justices Bridges and Boatman.
Justice Wilson authored the panel opinion, joined by Chief Justice Christopher and Justice Bridges.
Chief Justice Adams authored the panel opinion, joined by Justices Gunn and Johnson.
Justice Wise authored the panel opinion, joined by Chief Justice Christopher and Justice Hassan.
 | A guest post by
|