Welcome back to 1910 & Beyond, your regular briefing on the ever-evolving world of appellate law in Houston and beyond. Each post spotlights notable developments from Houston’s two courts of appeals—the First and Fourteenth—as well as from other state and federal appellate courts across Texas and nationwide. From time to time, I also share practical tips on oral and written advocacy. I hope you find these posts useful to your practice and your understanding of what’s happening in Texas appellate law.
To those who have already subscribed, thank you. If you haven’t yet, I hope you’ll consider joining us!
As some of you may have noticed, this edition is a week late. A successful three-week trial—followed immediately by mountains of end-of-Term opinions from our Supreme Courts—is to blame. Prepare yourself for the longest edition of 1910 & Beyond to date.
But first, we have a birthday to celebrate . . .
Opening Statement
A year ago this month, I launched 1910 & Beyond.
At the time, I wasn’t entirely sure what would become of this experiment—or how long it would last. I knew I wanted an outlet to write about appellate law in Houston and beyond—in particular, the work of the First, Fourteenth, and Fifteenth Courts of Appeals, along with the U.S. and Texas Supreme Courts and the Fifth Circuit. I also knew I wanted it to sound like something I had written. Useful, to be sure, but mainly readable. And maybe even occasionally fun—well, to the extent a Substack on appellate litigation can be fun.
One year later, I’m grateful that so many of you have found it worth your time.
Since that first post, 1910 & Beyond has grown to over 300 subscribers, with many more readers who follow along without subscribing. Across 28 posts, the Substack has been viewed almost 17,000 times. Compared to other legal publications, those numbers are quite modest. But for a nerdy publication devoted to Texas appellate litigation and the occasional cultural detour, I’ll take them.
As I’ve told many of you, this Substack is a labor of love. And on its first birthday, I’ll begin where I should: with gratitude.
First, thank you to my family—especially my wife, Becca. These posts are often written at night, on weekends, or in the margins of an already full schedule. Becca has been the Substack’s biggest amicus from the beginning, encouraging me to keep going even when the production schedule gets tight and the cases won’t summarize themselves. I’m grateful for her patience, encouragement, and steady belief that this project in legal geekery is worth doing.
Thank you also to my firm, Hicks Johnson, for its enthusiastic support of 1910 & Beyond. When I joined Hicks Johnson almost a year ago, my colleagues didn’t just encourage me to continue the Substack. They wanted to be part of it. I’ve been proud to bring the Substack under the firm’s banner, and I’m grateful to have colleagues who value this kind of writing—not as mere marketing, but as a way to contribute to our bench and bar.
I’m particularly grateful to my talented colleagues who have helped make these posts possible. As I mention below, each edition takes substantial time to produce, and I couldn’t keep this schedule without their help. Thank you to Kate Ring, my former colleague, for her excellent work on earlier posts. And most of all, thank you to Fraser Holmes—an up-and-coming appellate star—whose tireless efforts over the past several months have been essential. I am deeply indebted to both of you.
But above all, thank you to you—the reader.
On average, each post takes some 15 hours to produce.1 That’s a real commitment of time, and if no one were reading, I wouldn’t keep writing. But many of you have reached out over the past year—judges, lawyers, journalists, clients, former colleagues, classmates, and friends—to say that you read the posts, enjoy them, share them, or find them useful. Those messages mean more than you know. They’re what keep this project going.
So, on this first birthday, I’ll make a small request. If you enjoy 1910 & Beyond, please consider sharing it with someone else who might enjoy it too. Forward this post. Send the subscription link to a colleague. Mention it to someone who practices in Texas and federal courts, follows appellate litigation, or simply appreciates (what I hope is) good legal writing.
It’d be wonderful to double our subscriber count over the next year. But more than numbers, I’d be grateful to keep building a community of readers who care about appellate law, good writing, and the work our courts do.
Thank you for reading this past year. I’m looking forward to the next one.
And now, on to our regularly scheduled programming.
1910
Orders and Opinions
As always, we begin with our local courts here in Houston. Given the number of candles to blow out this week—with thanks to our Supreme Courts, who are celebrating the end of their Terms—we again skip the Features. Instead, we move directly into brief summaries of notable opinions from the First and Fourteenth Courts.
1COA
Russell v. Sadler, No. 01-24-00843-CV (Gunn, Caughey, Morgan, JJ.): Reversing and remanding, the First Court held that a consulting agreement unambiguously ended Russell’s right to $10,000 monthly payments when his consulting services ended, but fact issues remained about whether he was owed payments during the 30-day termination period. The contract’s compensation and termination provisions could be harmonized by reading the monthly fee as tied to ongoing consulting services, while allowing a separate 4% sale-related fee to survive termination. Because the summary-judgment record didn’t conclusively show that Russell stopped performing services during the notice period or had been paid for that period, summary judgment for Dr. Performance could not stand.
Union Pacific Railroad Co. v. Johnson, No. 01-23-00900-CV (Adams, C.J., Guerra, Guiney, JJ.):2 Reversing and remanding for a new trial, the First Court held that the jury charge improperly allowed the determination of liability and apportionment based on Union Pacific’s ordinary negligence even though Johnson was a trespasser on the railroad’s tracks. Because the only duty owed to a trespasser was to refrain from willful, wanton, or grossly negligent injury, the jury instead needed to be charged based on gross negligence. The court rejected Union Pacific’s requested discovered-peril instruction, but the erroneous ordinary-negligence submission required a new trial.
Reliant Pro Rehab, LLC v. Burns, No. 01-24-00518-CV (Guerra, Gunn, Caughey, JJ.): Reversing and remanding with instructions to compel arbitration and stay the case, the First Court held that Burns’s employment-retaliation and conspiracy claims fell within a valid arbitration agreement. Reliant established Burns’s electronic acceptance through its HR system, and the non-signatory appellants could enforce the agreement as third-party beneficiaries because the agreement expressly covered employment disputes involving Reliant’s employees, customers, agents, and related personnel. Burns didn’t prove arbitration waiver because appellants’ litigation activity was minimal, they conducted no merits discovery, they sought no merits adjudication, and her appellate timeliness argument had not been presented to the trial court.
Nguyen v. Le, No. 01-24-00492-CV (Adams, C.J., Gunn, Johnson, JJ.): Did the trial court properly set aside the verdict and grant judgment notwithstanding the verdict?
Majority (Gunn, J.): Yes. Affirming, the First Court held that although the evidence supported the jury’s finding that Nguyen made an oral agreement to buy part of the shrimping boat, no evidence supported damages or fraud. While the charge asked for the difference between the value of the oral contract as performed and as promised, the record contained no evidence of either measure. The fraud claim also failed because Nguyen identified only vague partnership-related statements by Le and no probative evidence of a knowingly false representation made with intent to induce reliance.
Concurrence (Gunn, J.): The jury’s conflicting verdict raises another question: Should Texas Rule of Civil Procedure 324 be amended to allow a party to complain of conflicting answers for the first time in a new-trial motion? Currently, the rule requires a party to complain before the jury is discharged; a new-trial motion is too late. The rule perhaps should be amended to follow the Fifth Circuit approach, which allows preservation in a new-trial motion when an irreconcilable conflict is discovered after discharge. The concern is that entering judgment on mutually destructive findings can impair the jury-trial right and force judges to choose among inconsistent answers without a principled basis.
Montrose 15, LLC v. Montrose Collective Owner, LP, No. 01-25-00756-CV (Guerra, Gunn, Morgan, JJ.): Affirming, the First Court held that the lease’s late-payment interest provision supported 18% prejudgment and postjudgment interest on the landlord’s money judgment. The lease required interest on unpaid rent or other charges at the maximum lawful contractual rate, capped at 1.5% per month, and Texas Finance Code Section 304.002 applies when a contract provides for interest. Courts have construed similar provisions as specifying an 18% annual judgment-interest rate, as we do here.
Flatt v. Tornow, No. 01-24-00901-CV (Adams, C.J., Guerra, Morgan, JJ.): Affirming the denial of Flatt’s TCPA motion, the First Court held that Tornow’s privacy-based claims weren’t based on or in response to Flatt’s exercise of the rights to petition or free speech. The timing of Tornow’s suit after subpoenas in Flatt’s divorce proceeding did not, by itself, show the suit was “in response to” protected petitioning activity. And the alleged disclosure of private images and related social-media message concerned a private dispute between private persons, not a matter of public concern under the TCPA.
Vu v. Texas Fair Plan Association, No. 01-23-00733-CV (Guerra, Caughey, Dokupil, JJ.): Reversing and remanding for a new trial, the First Court held that a Texas county court civil trial may not proceed, over objection, with only five jurors. Article V, Section 17 of the Texas Constitution requires a county court jury to “consist of six persons”—and unlike the analogous district-court provision (Section 13), it contains no death-or-disability exception allowing a reduced jury to return a verdict. Because Vu objected and moved for mistrial after a juror failed to return, the trial court lacked authority to continue with five jurors.
In re Lugenbuhl, Wheaton, Peck, Rankin, & Hubbard, No. 01-25-00116-CV (Rivas-Molloy, Guiney, Morgan, JJ.) (orig. proceeding):3 Conditionally granting mandamus relief in part, the First Court ordered the trial court to vacate a ten-year disclosure sanction requiring certain Lugenbuhl lawyers to attach the sanctions order to future Texas pro hac vice applications, while otherwise denying relief from disqualification, monetary sanctions, denial of severance, and other non-monetary sanctions. The sanctions and disqualification rulings turned on disputed evidence about whether Relators knowingly facilitated transmission of privileged materials, arranged a quid pro quo with a witness, and mischaracterized their conduct to the trial court—fact disputes unreviewable by mandamus. But the ten-year term of the disclosure sanction was excessive because it imposed a long-running burden on lawyers whose individual misconduct wasn’t specifically identified, and for whom lesser sanctions weren’t considered.
LOLA Energy Holdings II, LLC v. RD Heritage Group, LLC, No. 01-23-00830-CV (Rivas-Molloy, Guiney, Morgan, JJ.): Reversing and rendering, the First Court held that Texas courts lacked personal jurisdiction over nonresident individuals and entities added to RD Heritage’s suit over an oil-and-gas development agreement. The alleged misconduct occurred in Pennsylvania, RD Heritage was based outside Texas, and—most importantly—RD Heritage did not show that Crockard was LOLA2’s alter ego merely because he was an officer, director, indirect minority owner, and contract signatory for the company, none of which qualifies as atypical control. Without proof overcoming corporate separateness, RD Heritage could not bind Crockard or the other non-signatory entities to the agreement’s Texas forum-selection clause through alter ego or reverse-piercing theories.
14COA
Cypress-Fairbanks Independent School District v. Sanchez, No. 14-25-00601-CV (Christopher, C.J., Hart, Antú, JJ.): Reversing and rendering in part, the Fourteenth Court held that the Texas Tort Claims Act did not waive the school district’s immunity for negligent entrustment, training, retention, and supervision claims arising from a school-bus collision. For school districts, the TTCA waiver reaches only tort claims arising from the operation or use of a motor vehicle, and the challenged claims instead arose from alleged supervisory and employment-related negligence. Because Sanchez acknowledged there was no waiver for those claims—and Sanchez’s purported Rule 11 agreement dropping the claims wasn’t in the appellate record—dismissal with prejudice was required.
Utley v. Wood, No. 14-25-00834-CV (Wise, Hart, Antú, JJ.): Affirming a take-nothing judgment after a motor-vehicle jury trial, the Fourteenth Court held that legally and factually sufficient evidence supported the jury’s findings that Utley was negligent and 80% responsible for the accident. The jury heard conflicting evidence about both drivers’ speed, lookout, stopping, and evasive action, and it could reasonably credit Wood’s account that Utley was traveling too fast or failed to avoid leaving the roadway. Finally, counsel’s references in closing to damage to a historic church—even if improper—weren’t the rare kind of incurable argument that could be raised for the first time in a new-trial motion.
Law Offices of Willie D. Powells III & Associates, PLLC v. Harris County Hospital District, No. 14-24-00916-CV (Christopher, C.J., Wilson, Bridges, JJ.): Affirming, the Fourteenth Court held that the law firm’s interpleader dispute with Harris Health was moot once the hospital lien was satisfied and Harris Health no longer claimed the remaining settlement funds. But as to the law firm’s declaratory-judgment claims, the Texas Declaratory Judgments Act did not waive Harris Health’s governmental immunity because the requested declarations concerned the construction or application of hospital-lien statutes, not the validity of a statute or ordinance. As a result, the trial court properly granted Harris Health’s plea to the jurisdiction dismissing those claims.
City of Houston v. Fonteneaux, No. 14-25-00153-CV (Jewell, McLaughlin, Antú, JJ.): Affirming the denial of the City’s Rule 91a motion to dismiss, the Fourteenth Court held that Fonteneaux pleaded sufficient facts to allege a Texas Tort Claims Act waiver for injuries allegedly caused when a bus door closed on her arm. Her petition alleged, in the alternative, that the bus was owned, operated, maintained, or driven by the City or Metro, and those allegations permitted an inference that the City owned the bus and employed the operator. The court otherwise declined to render judgment on the City’s unresolved summary-judgment immunity argument because the record didn’t conclusively negate jurisdiction and Fonteneaux had not yet received a full and fair opportunity for jurisdictional discovery.
Gordon-Knowles v. Koman, No. 14-25-00145-CV (Christopher, C.J., Wise, Hart, JJ.): Dismissing for want of jurisdiction, the Fourteenth Court held that Gordon-Knowles’s motion to reinstate did not extend appellate deadlines because it failed to comply with Rule 165a(3)’s mandatory service requirements. Although counsel timely filed a motion to reinstate and separate verification, the certificate of service showed service only on counsel of record, while the record identified the defendants as unrepresented parties with addresses on file. Without an effective deadline-extending motion, the notice of appeal filed more than two months after the deadline was untimely.
Loyo v. Stephen, No. 14-25-00823-CV (Christopher, C.J., McLaughlin, Boatman, JJ.): Affirming, the Fourteenth Court held that a judgment creditor could execute on former community property awarded to the debtor’s ex-wife because the debtor incurred tortious liability during the marriage. The underlying arbitration award for breach of fiduciary duty was issued and confirmed while the spouses were still married, even though the order later merged into a final judgment after divorce. Under Section 3.202(d) of the Family Code, the property was already subject to that tortious liability before the divorce decree awarded it to the non-debtor spouse.
Servello v. VillaSport LLC, Nos. 14-24-00426-CV, 14-24-00776-CV (Wilson, Hart, Boatman, JJ.): Affirming in part and reversing and remanding in part, the Fourteenth Court held that VillaSport’s temporary injunction was void but that its defamation and business-disparagement claims survived Servello’s anti-SLAPP motion. The injunction failed to comply with Rule 683 because it didn’t set a trial date or state specific reasons for issuance. But the anti-SLAPP motion was properly denied because, although Servello’s social-media accusations about alleged misconduct in a gym childcare area involved a matter of public concern, VillaSport produced prima facie evidence of false defamatory statements, actual malice or reckless disregard, loss-causing disparagement, and special damages tied to membership cancellations.
In re Fort Bend Christian Academy, No. 14-26-00132-CV (Christopher, C.J., Hart, Antú, JJ.) (orig. proceeding): Conditionally granting mandamus relief in part, the Fourteenth Court held that the ecclesiastical-abstention doctrine barred the parents’ individual claims based on the Academy’s academic-accommodation, bullying, harassment, and disciplinary policies. These claims would require a court to interpret or second-guess religiously grounded school-governance policies, including biblically based curriculum and discipline decisions. But claims based on concussion-management obligations arising from TAPPS membership could proceed: Those rules come from an independent athletic organization that applies equally to religious and nonreligious schools and can be assessed under neutral principles of law.
Arguments
1COA
MC Hotels, LLC v. Yeluh, LLC, No. 01-24-00614-CV (Guerra, Gunn, Morgan, JJ.): Among other issues, does legally sufficient evidence support the jury’s findings on the plaintiff’s fraud and breach-of-contract claims, and did the trial court err in submitting a question and instruction regarding an “as is” contractual provision?
Appellant: Joseph Anderson (Patel Anderson)
Appellee: Pete Mai (Mai & Na)
Argument: June 25 (Video)
Lenear v. State, No. 01-24-00747-CR (Caughey, Johnson, Dokupil, JJ.): Among other issues, did the defendant have standing under the Fourth Amendment to object to the warrantless search of his spouse’s cell phone?
Appellant: Nicolas Hughes, Esq.
Appellee: Heather Hudson (Harris County District Attorney’s Office)
Argument: July 1 at 1:30 pm
14COA
The Fourteenth Court has no arguments on the calendar.
& Beyond
And now, we move into the main celebration. As both Supreme Courts rush to wrap their Terms, the opinions are piling up like birthday presents. With a party-hat tip to the extraordinary Fraser Holmes, it’s time to start opening the boxes . . . and boxes . . . and boxes . . .
SCOTUS
We start the party in our Nation’s Capital, which is also about to celebrate a big birthday.
Opinions
Abouammo v. United States, No. 25-5146 (Ninth Circuit): In a prosecution for falsifying documents with the intent to impede a federal investigation under 18 U.S.C. § 1519, is venue proper in a district where no falsification took place if effects from the falsification could have occurred in the district where the prosecution was brought?
Majority (Kagan, J., for unanimous Court): No. The only conduct prescribed by Section 1519 is falsifying documents, and so the only proper venue “must be where a document’s falsification happened.” Nor does Section 1519’s special intent provision counsel a different result: the Court “has never looked to a statute’s mens rea elements in considering venue,” and for good reason, because the intent element “adds nothing to the conduct-focused analysis.”
FS Credit Opportunities Corp. v. Saba, No. 24-345 (Second Circuit): Does the Investment Company Act (ICA) provide a private right of action for rescission of a contract that allegedly violates the Act?
Majority (Barrett, J., joined by Roberts, C.J., Thomas, Alito, Gorsuch, and Kavanaugh, JJ.): No. The ICA’s provision against rescission is a mandate directed to the courts rather than one that confers a right on a specified class of persons. The background principle that rescission is a remedy—rather than a cause of action—confirms this conclusion, as does the ICA’s statutory structure, which expressly authorizes two private rights of action in different contexts.
Dissent (Kagan, J.): Justice Jackson is right that the text, structure, and statutory history of the ICA supporting recognizing a private right of action. But “[r]eliance on legislative history” is potentially appropriate only “when statutory text in context remains, after careful view, stubbornly ambiguous,” and the ICA isn’t that type of statute.
Dissent (Jackson, J., joined by Sotomayor, J., and in part by Kagan, J.): Yes, because “all reliable indicia of Congress’s intent”—including the legislative history—support finding a private right of action. The ICA wasn’t crafted on a blank slate, but instead was built upon past precedent from this Court that held a private right of action for rescission was implicit in the Act’s predecessor statute. And the statutory structure confirms the availability of a cause of action for rescission, given its use of the expansive phrase “any party” and given that enumerated rights of action are for damages, rather than the equitable remedy of rescission.
Keathley v. Buddy Ayers Construction, Inc., No. 25-6 (Fifth Circuit)4: Can judicial estoppel be invoked to bar a plaintiff who fails to disclose a civil claim in bankruptcy filings from pursuing that claim when there is a potential motive for nondisclosure but no evidence the plaintiff acted in bad faith?
Majority (Jackson, J., for unanimous Court): No. Because judicial estoppel is an equitable doctrine, its application depends on a flexible, case-by-case analysis that has “room to consider all of the particulars” of an underlying case. Applying this doctrine only where the debtor knew of the facts underlying her claim and had a motive for nondisclosure is both overly rigid and overly broad, which makes it “patently incompatible with an inadvertence-or-mistake standard” required by statute.
Concurrence (Thomas, J., joined by Gorsuch, J.): No, and we should reexamine the judicial-estoppel doctrine. The doctrine has an uncertain provenance and does not appear to have any basis in statute, any Rule of Civil Procedure, or any traditional inherent power of federal courts.
Concurrence (Sotomayor, J.): No, and it may never be proper to apply judicial estoppel to pending bankruptcy proceedings. The party that ultimately benefits from the application of judicial estoppel in bankruptcy is neither the bankruptcy estate nor the creditors, but an unrelated tortfeasor. So “it is doubtful that equity ever demands the application of judicial estoppel” in these circumstances.
T.M. v. University of Maryland Medical System Corporation, No. 25-197 (Fourth Circuit): Does the Rooker-Feldman doctrine apply to state court judgments that remain subject to further review in state appellate proceedings?
Majority (Sotomayor, J., joined by Thomas, Alito, Kavanaugh, Jackson, JJ.): Yes. Petitioner here plainly seeks “review and rejection” of an adverse state-court judgment from a federal district court, a “paradigm situation in which Rooker-Feldman” apples. And the contrary view that Rooker-Feldman only applies when the state court judgments are final can’t be squared with precedent, which turns on differences between original and appellate jurisdiction in federal courts. Adopting a rule that a state-court loser may seek appellate review in the federal district courts where the case is still proceeding but not where the case is final “makes little sense.”
Concurrence (Thomas, J.): Yes, and Rooker-Feldman, properly understood, is also correct as an original matter. The doctrine proceeds on two premises: (1) reversing or modifying the judgment of another court is an exercise of appellate jurisdiction; and (2) only the Supreme Court has appellate jurisdiction over state-court judgments. The first premise has been recognized “from before the ratification of the Constitution,” while the second has been true as long as Congress has declined to give “inferior” federal courts general revising power over state-court judgments (since the late eighteenth century).
Dissent (Barrett, J., joined by Roberts, C.J., Kagan, Gorsuch, JJ.): No. We have explained that the Rooker-Feldman doctrine is “confined” to the procedural circumstances present in those two cases, which we emphasized involved claims brought in federal court after the state proceedings had ended. The proceedings in the federal court here, properly understood, are not an appeal, but rather a collateral attack. So questions of original versus appellate jurisdiction are misplaced. The majority’s “grab bag of policy reasons” leave the doctrine worse off than before.
Hunter v. United States, No. 24-1063 (Fifth Circuit)5: Is an appellate waiver contained in a plea agreement unenforceable when enforcing the provision would result in a miscarriage of justice?
Majority (Kagan, J., joined by Roberts, C.J., Alito, Sotomayor, Gorsuch, Kavanaugh, Barrett, Jackson, JJ.): Yes. Appellate waivers are unique because of the “special, and indeed pivotal, role of the judiciary in approving and implementing” such waivers, which means enforcing these waivers implicates the interest of not only the parties to the plea agreement, but also the judiciary. As a result, any enforcement of an appeal waiver “that would bring the judicial system into disrepute” violates these interests. This high bar—which we term a “miscarriage of justice”—applies to prohibit enforcing appellate waivers when doing so would “undermine public confidence in the judiciary.”
Concurrence (Gorsuch, J., joined by Sotomayor, Jackson, JJ.): Yes, and this is hopefully the first step in correcting for the “conveyor belt of plea bargains” that now characterizes our criminal justice system. The acceptance of plea bargains is of recent vintage (and appeal waivers are ever newer). While the Court’s decision is a good first step, lower courts have “considerable work ahead to flesh out the standard the Court announces.” And there are other, more systemic concerns surrounding appellate waivers, like enforcing unknowing or involuntary guilty pleas in contradiction of the Fifth Amendment, that remain to be decided.
Concurrence (Kavanaugh, J., joined by Alito, Barrett, JJ.): Yes, and while “I appreciate Justice Gorsuch’s thoughtful concurrence,” I fear his concurring opinion would set a lower bar for the miscarriage-of-justice exception than the majority opinion.
Concurrence (Barrett, J.): Yes, on the understanding that the majority opinion is not rooted in the Supreme Court’s supervisory power over federal district courts. That power is not properly implicated here, because the opinion is instead based on longstanding waiver principles, which are based in procedural common law rather than any supervisory authority.
Dissent (Thomas, J.): No. The majority doesn’t identify any source of law for its “miscarriage of justice” exception, but instead appears to rest its holding on the fact that “waivers may sometimes lead to unfair results or make federal courts look bad.” The failure to identify any supporting legal principle is unsurprising: Criminal defendants weren’t permitted to appeal their convictions at all for over a century after the Founding, and nothing has ever prohibited persons from waiving even constitutional rights. Simply put, our law commands appellate waivers must be strictly enforced regardless of the policy implications.
United States v. Hemani, No. 24-1234 (Fifth Circuit)6: Does the Second Amendment permit a lifetime ban on firearm possession for an individual who occasionally uses controlled substances under the federal Gun Control Act?
Majority (Gorsuch, J., joined by Roberts, C.J., Thomas, Sotomayor, Kavanaugh, Barrett, Jackson, JJ.): No. The three types of laws relied on by the government to show a historical analogue—vagrancy laws, civil-commitment statutes, and surety laws—“differ dramatically” from the Gun Control Act “on every single metric the government invites us to consider[.] They targeted different kinds of people, did so for different purposes, and operated in different ways.” And, importantly, these historical laws also had process attached before an individual lost any liberty, which isn’t present in the Gun Control Act.
Concurrence (Thomas, J.): No, and as “a matter of both original meaning and this Court’s precedents,” the Gun Control Act “appears to exceed Congress’s enumerated power to regulate interstate commerce.” In an appropriate case, we should reconsider the Act’s constitutionality.
Concurrence (Jackson, J., joined by Sotomayor, J.): No, and the means-end scrutiny test we used to employ in these circumstances is preferable to the “history and tradition” metric we have since adopted.
Concurrence in Judgment (Alito, J., joined by Kagan, J.): No, and this conclusion is amply supported by the simple finding that the habitual drunkard laws are not a sufficient historical analogue to the Gun Control Act for Second Amendment purposes.
Blanche v. Lau, No. 25-429 (Second Circuit): Must a border officer have “clear and convincing evidence” that a lawful permanent resident has committed a crime of moral turpitude to render him non-admitted?
Majority (Thomas, J., joined by Roberts, C.J., Alito, Gorsuch, Kavanaugh, Barrett, JJ.): No. No such requirement is imposed by the Immigration and Nationality Act (INA), even though it imposes similar burdens in other situations, including on the Government to prove an already-admitted alien is deportable. The Second Circuit’s test was derived not from the INA’s text, but instead from inapposite precedent from the Board of Immigration Appeals.
Dissent (Jackson, J., joined by Sotomayor, Kagan, JJ.): Yes. The INA provides that legal permanent residents are admissible unless one of the six exceptions in the INA applies—including the commission of a crime of moral turpitude. The statute’s text further concludes this determination must be made before any decision that the legal permanent resident is seeking admission. And even if the question is whether the proper weight of the burden is clear and convincing evidence or probable cause, a dispute over the weight of the burden shouldn’t be used to jettison the Government’s essential burden to prove an exception to a legal permanent resident’s already-admitted status applies.
Pung v. Isabella County, No. 25-95 (Sixth Circuit): Under the Constitution’s Takings Clause, if a property is sold at a tax-foreclosure sale below its hypothetical fair market value, must the government reimburse the taxpayer the difference between the sale price and the fair market value?
Majority (Alito, J., joined in full by Roberts, C.J., Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett, Jackson, JJ., and in part by Thomas, J.): No. The auction price, rather than the hypothetical fair market value, is the proper baseline for a “just compensation” determination under centuries of historical precedent of tax-foreclosure sales. So long as the sale is fair in light of our country’s history of tax sales—which requires the taxpayer to be reimbursed any proceeds from the sale above his tax liability—fair market value simply doesn’t enter the picture at all. Petitioner’s claim that the failure to reimburse the fair market value violates the Eighth Amendment’s prohibition against fines similarly lacks any historical or precedential support.
Concurrence (Sotomayor, J., joined by Gorsuch, Jackson, JJ.): No. And the majority opinion neither identifies “the contours of a fair auction” nor endorses “the parties’ or the United States’ articulations of what this standard requires.”
Concurrence in Part and in Judgment (Thomas, J., joined in part by Gorsuch, J.): No, but with reservations. While the general rule is that just compensation is based on fair market value, the majority opinion well explains that tax-foreclosure sales are an historical exception. But that conclusion assumes a tax-foreclosure sale consistent with historical precedent. On “my initial view, any history of tax foreclosure sales reflects a greater respect for principles of just compensation” than demonstrated here.
Landor v. Louisiana Department of Corrections and Public Safety, No. 23-1197 (Fifth Circuit)7: Does the Religious Land Use and Institutionalized Persons Act (RLUIPA) permit suits for damages against state employees?
Majority (Gorsuch, J., joined by Roberts, C.J., Thomas, Alito, Kavanaugh, Barrett, JJ.): No. While RLUIPA provides for a private right of action, it only extends to claims against state agencies—not individual employees in their private capacities, as damage suits require. This is because Congress can only constitutionally enact RLUIPA as an exercise of its powers under the Spending Clause, which requires consent to the statute. Although the agencies express this consent through the receipt of funds from the federal government, individual employees have evinced no such consent.
Dissent (Jackson, J., joined by Sotomayor, Kagan, JJ.): Yes. The majority opinion considers statutes enacted under the Spending Clause as contracts between parties rather than laws to be followed. This ignores decades of precedent about Congress’s use of the “power of the purse” to govern and misconstrues both the Spending and Necessary and Proper Clauses. We have already concluded RLIUPA’s “sister statute” permits suits for damages, and this similarity should control even though RLIUPA was enacted under Congress’s Spending-Clause powers.
Exxon Mobil Co. v. Corporacion Cimex, S.A., No. 24-699 (D.C. Circuit): Is sovereign immunity abrogated by the Helms-Burton Act such that plaintiffs bringing claims under the Act do not need to satisfy an exception under the Foreign Sovereign Immunity Act?
Majority (Kavanaugh, J., joined by Roberts, C.J., Thomas, Alito, Gorsuch, Barrett, JJ.): Yes, for four reasons. First, Helms-Burton’s cause of action expressly applies against Cuban agencies and instrumentalities (i.e., parties that may otherwise claim sovereign immunity). Second, showing an exception to sovereign immunity under the FSIA would be difficult if not impossible given the statutory interplay between the FSIA and Helms-Burton Act, which would frustrate Helms-Burton’s purpose. Third, Helms-Burton provides that subject-matter jurisdiction lies under the federal question statute and not the FSIA, reinforcing the FSIA’s general inapplicability. And fourth, the president’s gatekeeping authority under Helms-Burton tracks sovereign immunity principles implemented before the FSIA.
Dissent (Kagan, J., joined by Sotomayor, Jackson, JJ.): No. “[T]he bar for finding congressional abrogation is high, and the Helms-Burton Act falls short.” The creation of a cause of action does not, standing alone, tell us whether Congress has abrogated immunity; instead, its intent must be made “unmistakably clear in the language of the statute.” Helms-Burton says nothing about sovereign immunity, but rather provides a source of substantive law. And Congress’s amendment to Helms-Burton—where it changed not even a jot of the FSIA’s jurisdictional-immunity rule—further confirms Congress understood the FSIA to apply to Helms-Burton claims. Finally, reading Helms-Burton “as it was written” doesn’t “negate the cause of action it authorized”; it merely creates a cause of action that is subject to the FSIA’s “comprehensive framework” for determining sovereign immunity.
Cisco Systems, Inc. v. Doe, No. 24-856 (Ninth Circuit): Does the Alien Tort Statute (ATS) permit courts to create new causes of action based on violations of international norms, and does the Torture Victim Protection Act provide for aiding-and-abetting liability?
Majority (Barrett, J., joined by Roberts, C.J., Thomas, Alito, Gorsuch, Kavanaugh, JJ.): No to both. As we’ve previously said, the ATS is a jurisdictional statute creating no new causes of action. For good reason: Creating new causes of action based on violations of international norms risks negatively impacting international relations and introduces the possibility that international rules will be privately actionable. Precedent therefore commands we limit any additional causes of action arising under the ATS. As for the Torture Victim Protection Act, that statute nowhere mentions aiding or abetting, “and that silence is enough to settle the issue” given our past precedent.
Dissent in Part and Concurrence in Part (Jackson, J., joined by Kagan, J.): Yes and no. The majority improperly uses our precedent to create a “magic words” test for aiding-and-abetting liability.
Dissent (Sotomayor, J., joined in part by Kagan, Jackson, JJ.): Yes to both. Sosa expressly provided that the ATS may support an implied right of action where (1) a plaintiff demonstrates an alleged violation of a norm that is specific, universal, and obligatory and (2) the court determines allowing the case to proceed is a proper exercise of judicial discretion. Both of these steps are met here, and the majority’s refusal to even engage with this analysis de facto overrules Sosa. And aiding-and-abetting liability is supported by the TVPA’s plain text, which creates liability against anyone who “subjects an individual to torture.”
Wolford v. Lopez, No. 24-1046 (Ninth Circuit): Does a Hawai‘i law banning firearms on private property open to the public without the express and affirmative consent of the property owner violate the Second Amendment?
Majority (Alito, J., joined by Roberts, C.J., Thomas, Gorsuch, Kavanaugh, Barrett, JJ.): Yes. The law “hobbles what the Second Amendment protects: the right of Americans to carry arms for self-defense as they go about their daily lives.” Bruen’s first step is satisfied because Hawai‘i’s law falls within the Second Amendment’s plain text, as the laws regulate who may carry a firearm and under what circumstances. As to the second step, Hawai‘i’s main argument is based on Hawai‘i’s history of regulating firearms—but the Second Amendment has the same meaning in all parts of the United States. And the laws Hawai‘i contends are analogous are “vastly different from Hawai‘i’s new default rule” because they consist almost entirely of anti-hunting statutes on another’s private property.
Concurrence (Barrett, J., joined in part by Thomas, Gorsuch, JJ.): Yes. In addition, Hawai‘i’s attempt to ground this case in property rights “misunderstands the role of historical evidence in a Second Amendment challenge,” which simply doesn’t apply at the first step of the Bruen analysis. As for Hawai‘i’s historical analogues, they operate on “too high a level of generality” because none of them demonstrate the State singled out firearms for disfavored treatment. Instead, these laws were targeted in how they dealt with concerns (like poaching) that are simply inanalogous here.
Dissent (Kagan, J.): No. Hawai‘i’s law “is a modern-day analogue of colonial and founding era laws that similarly prohibited carrying firearms onto private property without the owner’s affirmative consent.” The principles reflected in these Founding-era laws are the same as the one animating Hawai‘i’s current law: the perceived abuses that can be caused by people carrying firearms on other’s lands.
Dissent (Jackson, J., joined by Sotomayor, J.): No, because neither of Bruen’s steps are met. To begin, Hawai‘i’s law does not implicate the Second Amendment because all agree there is no right to carry a gun on private property without consent, and nothing in the Constitution dictates what form that consent must take. And even if the Second Amendment were implicated, Hawai‘i’s proffered analogues demonstrate a history and tradition of States protecting property rights against the unwanted presence of firearms. Finally, the majority’s decision to refuse to credit Black Laws as historical analogues for firearm regulations seeks to have it both ways and excises important historical considerations from our Second Amendment jurisprudence.
Mullin v. Al Otro Lado, No. 25-5 (Ninth Circuit): Under the Immigration and Nationality Act, has an alien seeking admission only “arrive[d] in the United States” if they physically enter the United States?
Majority (Alito, J., joined by Roberts, C.J., Thomas, Gorsuch, Kavanaugh, Barrett, JJ.): Yes. “An alien ‘arrives in the United States’ only when he crosses the border,” as confirmed by everyday meaning and “[s]everal features of statutory context.” While the counterargument that this reading creates statutory surplusage carries force, the statutory history explains why there may be superfluities, and in any event, “if forced to choose between an interpretation that entails some redundancy and one that contradicts what words usually mean, we . . . choose the former.” Even if these clues weren’t enough, the presumption against extraterritorial application of United States law “tip[s] the scale” against an alternative reading.
Concurrence (Thomas, J.): Yes, and there are two additional problems to the decisions below. First, the district court’s order “appeared to effectively grant . . . classwide injunctive relief that Congress has prohibited in this context.” Second, even if the statute authorized the received relief, “it would raise serious constitutional questions” about the authority of the courts to refrain Executive Branch action in the immigration sphere.
Dissent (Sotomayor, J., joined by Kagan, Jackson, JJ.): No. The majority’s “illogical” interpretation of the INA overly fixates on the word “in” and ignores the statute’s context and history as well as the longstanding position of the Executive Branch. A reading of the complete statute confirms asylum seekers are “arriving in the United States” once they come to the threshold of entry, and the majority’s counterexamples are stripped of important context. And the majority’s opinion admittedly creates superfluous language in the statute.
Dissent (Jackson, J.): No, and we should not have granted cert. to begin with. The metering policy at the heart of this case was ended almost five years ago and the Government has no concrete plans to reinstate the policy. Furthermore, there is no factual record to evaluate how metering works in practice, meaning the Court has issued an opinion without a proper understanding of the underlying context.
Mullin v. Doe, No. 25-1083 (Second Circuit), consolidated with Trump v. Miot, No. 25-1084 (D.C. Circuit): May the Trump administration properly terminate Temporary Protected Status (TPS) for Syrian and Haitian refugees?
Majority (Alito, J., joined by Roberts, C.J., Thomas, Kavanaugh, JJ., and in part by Gorsuch, Barrett, JJ.): Yes. The claims that the termination decision fails as a matter of statute are non-justiciable, because the TPS statute prohibits judicial review “of any determination” respecting TPS designations or the termination of such designations. The challenged decisions here were properly “determinations” regarding a TPS designation or its termination regardless of how broadly or narrowly that term is defined. As for claims that termination of TPS status for Haitian refugees violated the Constitution’s equal-protection clause, respondents themselves actually provide a “race-neutral” explanation for the termination decision: The administration’s general antipathy toward immigration generally and the TPS program specifically.
Concurrence (Thomas, J.): Yes, and the equal-protection claim fails for two additional reasons. First, it too is barred by the statutory prohibition against judicial review of the Secretary’s “determinations” related to TPS designations. Second, the Constitution’s equal protection clause applies only against the states, not the federal government, and it only protects a “narrow set of core private rights,” not “government-created privileges” like immigration status for nonresident aliens.
Dissent (Kagan, J., joined by Sotomayor, Jackson, JJ.): No. As to the judicial-review bar, that applies only to ultimate TPS determinations by the Secretary, not to whether the Secretary adhered to the procedures mandated by the TPS statute. Because respondents challenge the process utilized by the Secretary in deciding TPS should be terminated—rather than the ultimate determination itself—judicial review is available. As for the equal protection claim, the majority first eschews the standard of review, which requires it to credit the district court’s factual findings as long as they are plausible. And the official statements offered by respondents to support their claim of discrimination—which are so vile the majority does not even deign to repeat them—provide more than plausible support that racial animus played a “motivating factor” in terminating TPS status for Haitian asylum seekers.
Monsanto Company v. Durnell, No. 24-1068 (Court of Appeals of Missouri): Does the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempt a state law failure-to-warn claim when the claim would require a label to include different information than required under federal law?
Majority (Kavanaugh, J., joined by Roberts, C.J., Thomas, Alito, Sotomayor, Kagan, Barrett, JJ.): Yes. FIFRA requires pesticide manufacturers to label their products only with labels that are approved or required by the EPA, and any deviation from the EPA-approved or required label therefore violates federal law. Requiring manufacturers to provide additional information about a product’s safety under state law thus conflicts with FIFRA by imposing requirements that are “in addition to” or “different from” federal law.
Concurrence (Thomas, J.): Yes, but FIFRA has a number of “constitutional infirmities.” First, it “appears to regulate more than the Commerce Clause allows.” Second, there are questions about whether Congress over-delegated legislative authority to the EPA. Third, it is unclear how preemption principles based in the Supremacy Clause apply to administrative action, which is neither the Constitution, nor a treaty, nor “laws” as properly understood.
Dissent (Jackson, J., joined by Gorsuch, J.): No. The state law failure-to-warn claim is neither “in addition to” nor “different from” federal mandates. It is instead equivalent to the federal standard, similarly requiring labels that do not mislead consumers. And the state-law claims do not conflict with any other provision in FIFRA because the EPA’s registration and label-approval process do not create any kind of federal labeling requirement.
Orders
Beyond these (many) opinions, the Court’s orders lists contain several notable items.
First, the Court issued one summary reversal:
McCarthy v. Hernandez, No. 25-748 (Second Circuit): Did the Court of Appeals err in finding a state-court decision was contrary to and involved an unreasonable application of Missouri v. Seibert?
Majority (per curiam): Yes. First, no federal law—much less any clearly established federal law—required the trial court to instruct the jury as requested by the defendant. Second, the relevant federal law established nothing about a jury’s determination of a confession’s legality, the key legal principle at issue in this case. And third, our caselaw does not support the Second Circuit’s conclusion that there was a denial of due process from the trial judge’s answer to the jury’s question.
Second, the Court issued opinions respecting the denial of several cert. petitions:
Alabama v. Powell, No. 25-848 (Court of Criminal Appeals of Alabama): Does Griffin v. California apply to bar any direct comment on the choice not to testify as violative of the Fifth Amendment, and should Griffin be overruled?
Order (per curiam): Cert. denied.
Dissent (Alito, J., joined by Thomas, J.): No to the first question—because Griffin was later clarified by United States v. Robinson, which found no Fifth Amendment violation was present when a prosecutor’s reference to the defendant’s failure to testify was “a fair response to a claim made by defendant or his counsel.” And if there were any doubt whether the opinion below rested on federal or state law, the Court could remand for the Alabama courts to clarify the basis of the decision. Yet we don’t take even that minimal step here.
E.D. v. Noblesville School District, No. 265-906 (Seventh Circuit): When does the rule announced in Hazelwood School District v. Kuhlmeier apply in the context of student speech?
Order (per curiam): Cert. denied.
Dissent (Alito, J.): “Since Hazelwood was decided, lower courts have struggled to ascertain its precise limits,” requiring clarification from this Court.
United States v. Carter, No. 25-885 (D.C. Circuit): Are perceptions of law enforcement that a court attributes to a particular racial group relevant in determining whether an individual has been illegally seized under the Fourth Amendment?
Order (per curiam): Cert. denied.
Dissent (Alito, J., joined by Thomas, J.): Cert. should be granted. The D.C. Circuit appears to have made the defendant’s race a critical component of the Fourth Amendment inquiry, “and the lawfulness of that test is an important question for both doctrinal and practical reasons.”
Saldano v. Texas, No. 25-5749 (Court of Criminal Appeals of Texas): Did the Texas Court of Criminal Appears err in interpreting Texas Criminal Code Article 11.071, Section 5(a)(1) to preclude review of an claim brought under Atkins v. Virginia, and may a state-created procedure bar consideration of an Atkins claim?
Order (per curiam): Cert. denied
Dissent (Jackson, J., joined by Kagan, Sotomayor, JJ.): Yes to the first question, which is sufficient to GVR this case. The parties agree the Court of Criminal Appeals’ determination should be vacated so the Texas courts can consider the Atkins claims on the merits. The Court’s decision to nonetheless deny cert. not only is a profound disservice to the petitioner, but also severely undermines the State’s interest in “ensuring the legitimacy of its criminal system.”
Third, the Court GVR’ed three cases, including one over a dissent:
Newberry v. Texas, No. 25-862 (Court of Criminal Appeals of Texas): Should the Court GVR a capital conviction where both the petitioner and the State agree that the underlying conviction was unconstitutional?
Order (per curiam): Granted, vacated, remanded.
Busby v. Mississippi, No. 25-862 (Supreme Court of Mississippi): Should the Court GVR a conviction where both the petitioner and the State agree that the underlying conviction was unconstitutional?
Order (per curiam): Granted, vacated, remanded.
Grayson v. United States, No. 25-851 (Sixth Circuit): Does the exclusionary rule provided by 18 U.S.C. § 2515 apply against the government even when it was not involved in the unlawful interception under a “clean-hands” exception?
Order (per curiam): Granted, vacated, remanded.
Dissent (Alito, J.): Any error in finding suppression was excused by the clean-hands exception was harmless because “a mountain of properly admitted evidence proved petitioner’s guilt,” including a recording of a phone call in which the petitioner described the contents of the challenged communication to the FBI.
Fourth, the Court granted certiorari in several cases:
Nielsen v. Watanabe, No. 25-417 (Ninth Circuit): Did the Ninth Circuit err in recognizing a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics?
Genalo v. Black, No. 25-886 (Second Circuit): (1) Is there a point at which an alien’s detention under 8 U.S.C. § 1226(c) becomes “unreasonably prolonged” such that due process requires a bond hearing? (2) If so, what party bears the burden in such a hearing? And (3) are petitioner’s claims now moot?
Guerrero v. Johnson, No. 25-1003 (Fifth Circuit)8: Does a claim rely on a “new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” as required by the Anti-Terrorism and Effective Death Penalty Act of 1996 when the habeas petitioner could have asserted a claim based on the new rule in a prior federal habeas petition?
Kian v. Florida, No. 25-6623 (Florida Court of Appeals): Do the Sixth and Fourteenth Amendments require a 12-person jury to adjudicate serious felonies in state court proceedings?
Fifth, the Court called for the Solicitor General’s views in one case:
Pharmaceutical Research and Manufacturers of America v. O’Day, No. 25-1018 (Ninth Circuit): Is a government reporting requirement subject to intermediate First Amendment scrutiny that is met when the requirement aims to correct information asymmetries that are product-specific? And do entities that operate in “highly regulated” industries categorically lack reasonable investment-based expectations in their trade secrets for purposes of the Takings Clause?
Sixth, the Court denied one stay application in a capital case, while staying the mandate in a case forcing a reporter to reveal her sources or pay a fine.
Arguments
The Court has concluded arguments for this Term.
SCOTX
The Supreme Court of Texas gets the next slice. True to form, the Court has wrapped its Term before July 1, with its final round of opinions tied up and ready for opening.
But before turning to those opinions, a quick rules note. The Court gave preliminary approval to amendments to Texas Rule of Civil Procedure 13 and Texas Rules of Appellate Procedure 9 and 52, along with the repeal of Texas Rule of Civil Procedure 57. The amendments are aimed chiefly at reinforcing that lawyers and self-represented parties must review and verify court filings—including legal citations, quotations, holdings, and, in appellate filings, record citations. The comments make the connection to artificial intelligence point directly: The new verification language is meant principally to address concerns that improper AI use can produce fabricated authorities, quotations, and holdings, while also making clear that accuracy matters whether AI was used or not. Comments are due by September 1, 2026, with the amendments expected to take effect October 1.
Opinions
State v. JRJ Pusok Holdings, LLC, No. 24-0447 (Fourteenth Court)9: May the State claim sovereign immunity when a landowner invokes her statutory right to repurchase condemned property that is unnecessary for public use?
Majority (Bland, J., joined by Lehrmann, Devine, Busby, Huddle, Young, JJ.): No. First, our Legislature nested the repurchase statute within existing law governing eminent domain, an area where the State enjoys no immunity. Second, amendments to the repurchase statute “make clear that the Legislature anticipated the State as a defendant in suits to vindicate property rights,” evincing a waiver of any otherwise available immunity. Finally, “the repurchase right serves virtually no purpose absent a waiver of immunity.”
Concurrence (Young, J.): No, and “assessing whether a statute waives sovereign immunity can and should be simpler than our precedents may suggest.” It should simply come down to whether the statute, in light of its text, context, and history, evinces an intent to waive sovereign immunity with “unmistakable clarity.” Because the Legislature’s decision to place the repurchase right within the eminent-domain framework is enough to show waiver, any analysis based on statutory purpose is unnecessary.
Dissent (Hawkins, J., joined in full by Sullivan, J. and in part by Blacklock, C.J.): Yes. “We have long insisted that to be operative, a legislative waiver of sovereign immunity must be unmistakable.” The majority acknowledges no explicit waiver exists here—which should be enough to answer the question presented—but then proceeds to eschew bedrock principles by invoking other considerations that cannot overcome the absence of an explicit legislative waiver. This decision usurps the proper role of the Legislature and does not accord with past precedent, which involves unique considerations rooted in the Takings Clause.
Ruth v. Commission for Lawyer Discipline, No. 24-0613 (Fourth Court): Does the rule prohibiting lawyers from communicating with persons known to be represented by another lawyer without consent or legal authorization apply to lawyers acting pro se?
Majority (Lehrmann, J., joined by Blacklock, C.J., Devine, Busby, Bland, Young, Sullivan, Hawkins, JJ.): No. The non-contact rule authorizes a represented litigant who happens to be a lawyer to communicate with another represented person, and we doubt there’s a legitimate basis to nonetheless conclude a pro se litigant who happens to be a lawyer is prohibited from doing so. Perhaps the Rule should specifically apply to pro se lawyers or represented lawyers, but it does not clearly state that it does, and we don’t “revise our rules by opinion.”
Concurrence in Judgment (Huddle, J.): The Court’s holding “contradicts the rule’s plain language and is at odds with the well-accepted premise that a person can simultaneously occupy two roles: in this case lawyer and client.” The non-contact rule should apply to self-represented attorneys, which “would strengthen the ethical standards the Court’s opinion unfortunately degrades.” Despite these concerns, I agree with the majority’s judgment not to submit the attorney in this case to discipline because he could have justifiably relied on contrary guidance from the Texas Committee on Professional Ethics.
River Creek Development Corporation v. Preston Hollow Capital, LLC, No. 24-1070 (Third Court): If a government corporation fails to submit a promissory note and its supporting documentation to the Texas Attorney General as required by the Transportation Code, does that failure void the underlying transaction?
Majority (Busby, J., joined by Lehrmann, Devine, Bland, Huddle, Young, Sullivan, JJ.): No. While the Transportation Code doesn’t provide an express consequence for failing to provide the required documentation, it does explicitly state that when this provision is met, “the corporation enjoys the statutory defense of incontestability.” Failing to provide the required documents, then, waives this incontestability defense rather than rendering the entire transaction void. Nor does the agreement violate the Public Improvement District Assessment Act because the Local Government Code allows for improvement costs to be financed “under an installment sales contract,” which is the method used by the parties here.
Concurrence in Judgment (Hawkins, J., joined by Blacklock, C.J.): I can’t fault the majority for adhering to the parties’ positions in its opinion, but concluding that the loss of an incontestability defense is the only consequence of failing to properly submit documents to the Attorney General as statutorily required risks turning a mandatory “shall” into a permissive “may.” And the majority’s conclusion about the Public Improvement District Assessment Act blesses a loophole that “effectively eliminates a critical legislative measure to protect local taxpayers from spendthrift municipalities and . . . unscrupulous out-of-state financiers seeking to prey on them.”
Texas General Land Office v. SaveRGV, No. 24-0327 (Thirteenth Court), consolidated with Cameron Country v. SaveRGV, No. 24-0407 (Thirteenth Court), and Paxton v. SaveRGV, No. 24-0457 (Thirteenth Court): Is there a private right of action to enforce the Texas Open Beaches Act and Section 33 of the Texas Constitution for alleged violation of Texans’ unrestricted right to use public beaches?
Majority (Huddle, J., for unanimous Court): No. When a governmental defendant asserts immunity from a claim asserting a constitutional violation, courts must determine whether the underlying constitutional claim is facially valid, regardless of whether the complaint is about governmental action or the statutory text. And here, the constitutional claims are invalid on their face because private rights of action are not available to vindicate rights to open beaches. Not only does Section 33 expressly prohibit private causes of action, but the Texas Open Beaches Act that preceded its passage left enforcement of the Act overwhelmingly to governmental entities, not private litigants.
In re Tafel, No. 24-1062 (Fifth Court) (orig. proceeding): Does a qui tam claim brought based on violations of the Texas Health Care Program Fraud Prevention Act survive the qui tam relator’s death? And is such a suit prevented from proceeding by another pending qui tam action or the public disclosure of Medicaid fraud allegations in that related action?
Majority (Busby, J., joined in full by Lehrmann, Devine, Bland, Young, and Sullivan, JJ., and in part by Blacklock, C.J., and Huddle and Hawkins, JJ.): Yes and no. As to the first question, qui tam actions properly belong to the State due to its substantial power over the action, including the right to settle or otherwise dispose of the claims. The claim therefore survives the relator’s death. As to the second question, the first-to-file bar applies when the “‘core allegations’ necessary to establish that the Act has been violated” are materially the same across the two suits, which isn’t met here. And the public-disclosure bar doesn’t apply because the State isn’t a party and the Attorney General opposes dismissal.
Concurrence (Busby, J.): I agree with the Court’s opinion, but I write to address questions raised in the other concurrences. In response to Justice Bland, any transfer or assignment of interest occurred when the qui tam relator brought suit in the State’s name, so the agency principles underlying that concurrence do not apply here. As to the questions raised by Justices Young and Sullivan, the answer “seems unlikely to matter much to the capacity analysis” in this case because nothing was transferred from the original relator to his estate; instead, the estate succeeded to the relator’s rights automatically.
Concurrence (Bland, J., joined by Blacklock, C.J., Young, J.): I agree that qui tam claims survive a relator’s death, but there’s a difference between whether a qui tam claim survives and whether an executor has the capacity to pursue it. And every “textual indication at this preliminary review supports the conclusion that” a relator’s executor lacks capacity to bring suit in the State’s name unless assignment of the suit is provided by statute.
Concurrence (Young and Sullivan, JJ.): We agree with the majority opinion but write to acknowledge two issues. First, actions filed by qui tam relators have long been justiciable, and no party has argued we should alter that rule. Second, notwithstanding that we have no need to address the standing question head-on, our concerns about the Act remain, including whether the Act violates separation-of-powers principles.
Laboratory Corporation of America Holdings v. State, No. 25-0127 (First Court)10: Must the government or a qui tam relator show an omission was material to prove a violation of the Texas Health Care Program Fraud Prevention Act?
Majority (Hawkins, J., joined by Lehrmann, Devine, Bland, Huddle, Young, Sullivan, JJ.): Yes. The Act’s reference to fraud is interpreted in light of the long history of common-law fraud, which has always required an omission be material to be actionable. This principle applies here based on statutory text and structure, and thus materiality is a required element for a claim brought under the Act. Furthermore, the record doesn’t include sufficient evidence to demonstrate the omissions here were material given that the Government continued to make payment despite its actual or imputed knowledge of a violation of the Act.
Dissent (Blacklock, C.J., joined by Busby, J.): No. “The common law developed to govern and guide the private economy, not to govern and guide the sovereign,” and so the majority’s imposition of common-law principles into the Act is improper. Under the statutory text, liability hinges on causation, not materiality, so there is no statutory basis for imputing common-law principles, either.
Dissent (Busby, J.): No. In addition to the Chief Justice’s dissent, the majority opinion “does not endorse LabCorp’s reading of the billing regulations and agreements at issue.” If LabCorp continues these practices, nothing constrains future enforcement actions by the State.
In re Reed, No. 25-0149 (First Court) (orig. proceeding)11: Does the federal Surface Transportation Board have jurisdiction to determine whether a railroad is a “common carrier” potentially subject to liability under the Federal Employers’ Liability Act (FELA)?12
Majority (Huddle, J., for unanimous Court): No. There is nothing in the Board’s enabling legislation, the statute authorizing the Board to issue declaratory orders, or FELA that can serve as a basis for the trial court’s conclusion that the Board has jurisdiction to make a judicial determination about common-carrier status under FELA. The Board thus lacked any authority to resolve the question presented to it, and the trial court erred in “outsourc[ing]” this determination to the Board.
Concurrence (Young, J., joined by Hawkins, J.): No, and I’m skeptical of the continued viability of the primary-jurisdiction doctrine as currently understood. The doctrine originally only applied when a judicially cognizable claim required resolution of issues “placed within the special competence of an administrative body.” Broadening the doctrine’s scope means it has “mostly become a mechanism for judges to learn an agency’s view of an issue before a court ultimately decides it”—which makes sense as an amicus practice, but raises constitutional concerns if those views bind the trial court.
Concurrence (Sullivan, J., joined by Busby and Hawkins, JJ.): No, and we should revisit the doctrine in an appropriate case. At minimum, we correctly do not expand the doctrine to refer cases to federal agencies, rather than state agencies.
Champion Food Service, Inc. v. ProAlamo Foods, L.L.C., No. 25-0297 (Fourth Court): Are claims for quantum meruit barred when the underlying dispute is covered by express agreements between the parties?
Majority (Lehrmann, J., for unanimous Court): Yes. The record conclusively establishes the existence of express contracts that cover the acts in question, and there is no evidence to suggest any related acts fell outside the scope of the express agreements. This suffices to defeat a claim for quantum meruit. And because the quantum meruit claim is barred, attorneys’ fees are unavailable.
Concurrence (Blacklock, C.J., joined by Sullivan, J.): Yes, and as to the fee award, even if fees were otherwise available, the jury’s award of no fees is reasonable and the trial court’s upward adjustment was plainly improper.
In re J.D.H., No. 25-0588 (Fourteenth Court) (no oral argument)13: If a parent fails to timely appeal a judgment terminating parental rights because of ineffective assistance of counsel, may the parent pursue an out-of-time appeal?
Majority (per curiam): Yes. The standard employed in criminal cases—which permits out-of-time appeals when the failure to timely appeal is due to ineffective assistance—is comparable given the significance of the rights at sake. Nevertheless, an attorney’s failure to timely file a notice of appeal does not necessarily equate to ineffective assistance of counsel, and nothing stated here should alter the general rule that the Family Code imposes “a hard deadline on a parent’s ability to challenge a termination order, regardless of the reason.”
Dissent (Sullivan, J., joined by Young and Hawkins, JJ.): No. Because a timely notice of appeal is an “essential prerequisite for the appellate court’s jurisdiction,” it isn’t excused even in sympathetic circumstances, particularly where the statute—not simply the Rules of Appellate Procedure—provides an appellate deadline.
Maya Walnut LLC v. Ly, No. 24-0171 (Fifth Court): Was a store’s reliance on its landlord’s representations that a renewed lease was available unreasonable as a matter of law when the landlord had already agreed to lease the space to a competitor?
Majority (Busby, J., joined by Devine, Bland, Huddle, Young, Hawkins, JJ.): Yes. Because there were “red flags indicating such reliance is unwarranted,” including an announcement from the store’s competitor that raised the store’s suspicions that the landlord may have executed a lease with the competitor. Despite this red flag, the store failed to investigate further or otherwise “exercise reasonable diligence and ordinary care to protect its interests.” Its alleged reliance on the misrepresentation was thus unreasonable as a matter of law.
Concurrence in Judgment (Blacklock, C.J., joined by Lehrmann, Sullivan, JJ.): Yes, but not under the “red flag doctrine.” Instead, the store’s reliance was unreasonable as a matter of law because “no reasonable business owner would rely on . . . non-committal statements in the bet-the-farm way” as the store did here.
Family Dollar Stores of Texas, LLC v. JLMH Investments, LLC, No. 24-0543 (Second Court): Did the court of appeals properly exercise appellate jurisdiction over a trial court’s order granting summary judgment when the trial court subsequently signed an order authorizing a permissive interlocutory appeal? And may a plaintiff obtain injunctive relief without a legally viable cause of action underlying the request?
Majority (Busby, J., joined in part by Blacklock, C.J., Lehrmann, Devine, Bland, Huddle, Young, JJ.): Yes and no. As to jurisdiction, the initial order granting summary judgment stated “in no uncertain terms” it was final, appealable, and disposed of all claims, and the subsequent order is neither express nor specific enough to vacate, set aside, modify, or amend the summary-judgment order. As to the merits, “[t]here is no stand-alone right to abate a nuisance or obtain an injunction.” An injunction requires a legally available cause of action, and nuisance is a legal injury, not a cause of action that can alone support injunctive relief.
Concurrence (Busby, J., joined by Lehrmann, Devine, JJ.): The court of appeals also erred in relying on an overly broad principle that limitations don’t apply to suits seeking only to enjoin a nuisance without accompanying damages. Instead, the questions of when nuisance suits are subject to limitations and which statute of limitations applies “require[s] a careful approach” to answer, including a determination of the nature of the nuisance and the relevance of adverse possession or prescription.
Concurrence in Part and in Judgment (Young, J., joined in full by Bland, Huddle, JJ. and in part by Blacklock, C.J.): We have appellate jurisdiction because the subsequent order purportedly clarifying the original order granting summary judgment was “completely facially ineffective” and thus didn’t impact the finality of the prior order “whatsoever.” Second, the conclusion on the merits is not only compelled by logic, but also by nuisance jurisprudence.
Dissent (Sullivan, J., joined by Blacklock, C.J., Hawkins, J.): No to jurisdiction. The clarifying order transformed a final order into an interlocutory one “because there’s no other interpretation that gives it any reason to exist.” Consequently, there was no final judgment, and thus no appellate jurisdiction.
Carden v. Minton, Bassett, Flores & Carsey, P.C., No. 24-0834 (Third Court): Does a criminal defendant’s mother have standing to bring claims related to ineffective criminal-defense representation when the son was the client but the mother but paid counsel for services that were allegedly undelivered? And does the doctrine announced in Peeler v. Hughes & Luce operate as a categorical bar on claims brought by un-exonerated criminal defendants against their criminal-defense counsel?
Majority (Devine, J., joined in full by Lehrmann, Busby, Huddle, Young, Sullivan, Hawkins, JJ., and in part by Blacklock, C.J., Bland, J.): Yes and no. As to standing, while there was no express or implicit attorney-client relationship between counsel and the defendant’s mother that could support claims for malpractice, gross negligence, and breach of fiduciary duty, the allegations sufficiently pleaded causes of action under fraud and contract theories because the mother allegedly paid for services that were never received. As to the Peeler doctrine, it “does not bar billing or fee disputes that are independent from the conviction.” Here, there are claims that “concern compliance with contractual obligations and the truthfulness of factual statements about fee use,” which aren’t governed by the doctrine and thus should not have been dismissed.
Concurrence (Young, J., joined by Devine, J.): Though I agree with the majority, the limitations issue resulting from remand to the court of appeals “gives me serious concern.” Multiple considerations lead me to conclude these claims are likely time-barred, from the conclusory allegations that the discovery rule applies to facts demonstrating the defendant and his mother were aware of a legal injury outside the limitations period.
Concurrence in Part and Dissent in Part (Blacklock, C.J., joined by Bland, J.): While I agree with much of the majority opinion, I don’t agree that any of the criminal defendant’s claims survive the Peeler bar. The majority leaves for remand the question of whether the criminal defendant’s claims based on “billing and fee disputes” are barred by Peeler, but those claims belong to the defendant’s mother—not to him.
JMI Contractors, LLC v. Medellin, No. 24-0846 (Fourth Court): Does a workplace-injury claim give rise to a cause of action for negligent activity when the injury stems from nonfeasance rather than malfeasance? And may independent contractors recover on a premises-liability claim for injuries caused by open and obvious dangers?
Majority (Hawkins, J., for unanimous Court): No to both. “[T]he core distinction between” a negligent-activity claim and a premises-liability claim “is one of malfeasance versus nonfeasance,” and negligent-activity claims require contemporaneous action leading to an injury. The gravamen of the claim here sounds in nonfeasance, making it a premises-liability claim. As to the merits, the necessary-use exception to the open-and-obvious-danger doctrine doesn’t apply to independent contractors as a matter of law. Independent contractors are typically better positioned to avoid premises defects than landowners given their specialized training, and protecting independent contractors from open and notorious dangers “generally do[es] not implicate the policy considerations that led us to recognize the necessary-use exception” in the first place.
Concurrence (Busby, J.): The majority opinion doesn’t implicate our retained-control precedents, which allow for negligence claims when a party fails to control the work of an independent contractor with reasonable care.
Aldaco v. Wood, No. 24-1069 (Second Court): Does the statute of limitations bar a healthcare-liability claim if it is brought within two years of treatment but beyond two years after the action that gave rise to liability?
Majority (Sullivan, J., for unanimous Court in part and plurality in part consisting of Lehrmann, Devine, Busby, JJ.): No. The statute of limitations on healthcare-liability claims is disjunctive and permits suits to be brought within two years of the “occurrence of the breach or tort” or “from the date [of] the medical or health care treatment that is the subject of the claim.” Here, the completion of treatment was termination of psychotherapy sessions, which occurred within two years of the claim. And even without this disjunction, the occurrence of the tort was an injurious surgery that occurred within the limitations period because that was the first time there was an actual injury suffered as a result of the allegedly tortious conduct.
Concurrence (Young, J., joined by Bland, J.): The Court correctly holds that the completion of treatment is the relevant triggering event for the statute of limitations in this case. But the rationale that the surgery is the triggering event is “troubling,” because it would expand the statute of limitations beyond reason and “inject uncertainty into medical liability in areas far beyond this context.”
Crane v. Crane, No. 25-0386 (Thirteenth Court) (no oral argument): Did a summary-judgment motion specifically identify the elements of the claims lacking evidence when it argued there was no evidence that the plaintiff owned an easement or that the defendant violated the easement?
Majority (per curiam): Yes. The summary-judgment motion “challenged the sole basis” for a declaratory-judgment action and an element of the request for injunctive relief when it argued there was no easement violated by constructing a fence—precisely the basis of the requested relief. The plaintiff failed to provide sufficient evidence to support these elements. At most, the evidence showed the plaintiff owned an easement, but “the mere existence of an easement is not itself a justiciable controversy entitling the easement holder to legal or equitable relief.”
In re J.Z.A., No. 25-0787 (Eighth Court) (no oral argument): Did a court-ordered service plan specifically establish the actions a mother was supposed to take, such that termination of the parent-child relationship was justified due to the mother’s failure to take such actions?
Majority (per curiam): No. The mother’s parental rights were terminated based on her failure to take required medication. But strictly scrutinizing parental-termination proceedings, our scrutiny shows that this requirement wasn’t made by court order and wasn’t included in the court-ordered service plan. And the mother’s alleged failure to submit to a particular mental-health assessment “is too trivial and immaterial to support termination.”
McKesson Medical-Surgical Inc. v. Cleveland, No. 26-0005 (Fifth Court) (no oral argument): Is there a substantial ground for difference of opinion sufficient to support a permissive interlocutory appeal when a statute may be given more than one plausible meaning and the statutory interpretation question has not been decided by the Supreme Court?
Majority (per curiam): Yes. While the existence of conflicting authorities strongly suggests a substantial ground for difference of opinion, “an actual conflict among the courts of appeals is not necessary when the case presents a potentially dispositive statutory construction question that this Court has not resolved.” In fact, the lack of such authority supports a permissive interlocutory appeal.
Orders
As if these opinions weren’t enough, the Court’s customary Friday orders lists provided more cupcakes beyond the usual denials.
First, perhaps drawing inspiration from Justice Hawkins’ recent concurrence, the Court GVR’ed one case and effectively GVR’ed another (technically, a denial of a mandamus petition):
Moock v. Energy Transfer LP, No. 25-0988 (Fourteenth Court)14: Does Section 1 of the Federal Arbitration Act apply to suits bought by an environmental specialist who worked on natural-gas pipelines?
Order (per curiam)15: GVR’ed in light of Flowers Foods, Inc. v. Brock.
In re The Toro Company, No. 25-0749 (Eighth Court) (orig. proceeding): Did the trial court err in denying a Rule 91a motion to dismiss a wrongful-death lawsuit involving a fatal collision between a passenger vehicle and a tractor-trailer?
Order (per curiam): Petition denied without prejudice to allow reconsideration based on In re Home Depot.
Second, the Court issued several opinions related to the denials of petitions:
Oramas v. UTMB Health (Hospital) at Galveston, No. 25-0917 (First Court)16: Did the trial court err in dismissing a healthcare liability suit when a pro se plaintiff failed to timely file the statutorily required expert report within 120 days of the defendant’s answer?
Order (per curiam): Petition for review denied.
Concurrence (Young, J., joined by Devine, Busby, JJ.): What makes this otherwise routine matter worthy of writing is that the plaintiff missed the statutory deadline despite vigorously pursuing her claim because she could not find a lawyer who would take her case. Although the courts below were compelled to dismiss the case for failure to meet the deadline, our Legislature might want to consider amending the statute based on “my own perception that serious access-to-justice problems may be preventing citizens from pursing their substantial rights because of their inability to find counsel.”
In Interest of A.L., No. 25-1123 (Second Court): Can a trial court conclude the best interests of the child support termination when the parent has completed parts of the court-ordered service plan?
Order (per curiam): Petition for review denied.
Concurrence (Blacklock, C.J.): In a suitable future case, the Court may need to determine whether appellate courts have jurisdiction to review a trial court’s decision not to place children with extended family members based on lack of standing when the issue has been preserved for appeal by a terminated parent.
In re Hotze, No. 24-1042 (Fourteenth Court) (orig. proceeding): Did the trial court abuse its discretion by declining to abate a civil proceeding while a parallel criminal case involving identical facts was also proceeding against one of the parties?
Order (per curiam): Petition for writ of mandamus denied.
Statement Respecting Denial (Devine, J., joined by Busby, Bland, JJ.): “This Court has yet to articulate a standard for resolving motions to stay civil proceedings when parallel criminal proceedings are pending.” My proposal: Stays are proper when a defendant in a civil case faces parallel criminal charges arising from the same conduct unless the opposing party “demonstrates a compelling reason why the civil proceedings must go forward” or “stipulates to a jury instruction prohibiting the fact finder from drawing any adverse inference from the defendant’s invocation of the Fifth Amendment” in the civil proceedings.
Statement Respecting denial (Hawkins, J., joined by Devine, Sullivan, JJ.): It may be appropriate to elucidate a standard for adjudicating stay applications in these circumstances, but there are two impediments to using this case for that purpose. First, one of the petitioners is no longer a criminal defendant. And second, the criminal proceedings against the other petitioner “will soon be underway,” so it is far from clear the hypothesized dilemma justifying a stay will come to pass.
Third, the Court granted fourteen petitions for review, with arguments set to take place this upcoming fall and into the winter:
Chamberlain, Hrdlicka, White, Williams & Aughtry, P.C. v. ESL Ventures, LLC, No. 24-0825 (First Court): How should courts determine the scope of a directed verdict when the ruling does not specify the contractual theory of liability, and is the phase in which a contract was terminated a liability issue or a damages issue?
Lexington Ins. Co. v. Exxon Mobil Corp., No. 25-0410 (Ninth Court): Do employee-injury exclusions in an umbrella insurance policy bar additional-insured coverage when the additional insured is alleged to be a statutory employer under the workers’ compensation laws?
Texas Department of Transportation v. Medina, No. 25-0429 (Fourteenth Court): Can an uncovered drainage opening in a grassy right-of-way near a pedestrian path qualify as a “special defect” under the Texas Tort Claims Act?
Morath v. Texas State Teachers Association, No. 25-0527 (Third Court): Does an Education Commissioner rule giving an operating partner sole and final authority over employee assignments to an underperforming campus impermissibly impair teachers’ statutory rights?
Quantum Plus, LLC v. Hospital Internists of Austin, P.A., No. 25-0579 (Third Court): Are lost profits recoverable under a terminable-at-will contract, what control is prohibited by Texas’s corporate-practice-of-medicine doctrine, and how should courts handle attorney’s fees and tort damages after an election of remedies?
United Methodist Rio Texas Conference Board of Trustees v. First Methodist Church of Alice, No. 25-1086 (Fourth Court): Does the ecclesiastical-abstention doctrine bar civil courts from resolving a dispute over local churches’ compliance with disaffiliation procedures in the United Methodist Church’s Book of Discipline?
Deacero, S.A.P.I. de C.V. v. BNSF Railway Co., No. 24-0973 (Fourteenth Court)17: When is an online indemnity provision incorporated by reference into a shipping contract sufficiently conspicuous, and should Texas require conspicuousness for non-UCC indemnity agreements between sophisticated parties?
Tex. Comm’n on Env’t Quality v. S.A. Bay Estuarine Waterkeeper, No. 25-0564 (Fifteenth Court): What standard governs judicial review of TCEQ’s denial of requests for a contested-case hearing, and may courts review the merits of the agency’s permit decision in that posture?
Chabot v. Frazier, No. 25-0995 (Fifth Court): What must a public figure show to avoid TCPA dismissal of a defamation claim based on campaign-related statements about criminal proceedings and police employment?
ENGIE IR Holdings, LLC v. Hancock, No. 25-1093 (Fifteenth Court): Can a tax-limitation applicant plead an ultra vires claim based on the Comptroller’s withdrawal of an approval certificate after the applicable regulatory review period has expired?
Martinez v. Baird/Williams Construction II, Ltd., No. 25-1097 (Third Court): What level of contractual control over the means, methods, or details of a subcontractor’s work is sufficient for a general contractor to owe a duty to the subcontractor’s injured employee?
Bexar Appraisal District v. Abasto Properties, LLC, No. 26-0060 (Fourth Court): What evidence is admissible in an unequal-appraisal case involving cold-storage condominiums, and how should courts apply a discretionary attorney’s-fee statute after a property owner prevails?
Texas Tech University Health Sciences Center El Paso v. Mohrman, No. 26-0085 (Eighth Court): Does the common-law mailbox rule apply to the Texas Tort Claims Act’s notice requirement, allowing receipt of notice to be presumed from proof of mailing?
Moore v. Stanley Spurling & Hamilton, Inc., No. 26-0307 (Fourteenth Court)18: When must a plaintiff invoking the certificate-of-merit statute’s limitations-based extension allege that time constraints prevented contemporaneous filing of the certificate?
Fourth, the Court also set six mandamus petitions for oral argument during the same timeframe:
In re Ford Motor Co., No. 25-0865 (First Court)19: Is mandamus relief appropriate from the denial of Ford’s Rule 91a motion to dismiss claims arising from repairs performed by, and an alleged assault at, an independent dealership?
In re Liberty County Mut. Ins. Co., No. 25-0880 (First Court)20, consolidated with In re ClaimTECH Solutions, No. 25-0932 (First Court)21: Is mandamus relief appropriate from orders denying Rule 91a motions to dismiss a third-party claimant’s tort and contract claims challenging an insurer’s settlement of her medical bills?
In re Morningstar Oil & Gas, LLC, No. 25-0557 (Second Court): Is mandamus relief appropriate from an order overruling special exceptions to demand-futility allegations in derivative claims brought on behalf of a limited partnership under Delaware law?
In re Texas Dep’t of Family & Protective Services, No. 25-0663 (Third Court): Is mandamus relief appropriate from an order allowing a forensic computer examiner to search a State-owned database containing confidential DFPS records?
Drusch v. Borchers, No. 26-0107 (Fifteenth Court): Is mandamus relief appropriate to require a stay of trial-court proceedings while an interlocutory appeal from the denial of a motion to compel arbitration is pending?
In re Old Dominion Freight Line, Inc., No. 26-0295 (Fifth Court): Is mandamus relief appropriate from an order compelling production of nonparty supervisors’ personnel files in a collision case involving claims of ordinary and gross negligence?
Fifth, the Court issued an emergency stay in an original proceeding:
In re State, No. 26-0171 (Fifteenth Court): Should the Court grant an emergency stay barring Harris County from disbursing funds for its Immigrant Legal Services Fund and Immigration Resource Hotline while the related appeal remains pending?
Order (per curiam): Yes. On the limited record, there is serious doubt about the program’s constitutionality. And once the funds are spent, they can’t feasibly be recouped.
Dissent (Lehrmann, Bland, Huddle, JJ.): “On the limited record before us, the State has not established that the court of appeals erred in declining to issue temporary relief while that court considers the appeal.”
Arguments
The Court has concluded arguments for this Term.
CA5
Phew. After a full birthday circuit through Washington and Austin, the party gets a bit more manageable in New Orleans.
Opinions
EnvTech, Inc. v. DeBusk, No. 25-40237 (Southwick, Higginson, Douglas, JJ.): Reversing dismissal of EnvTech’s RICO complaint, the Fifth Circuit held that EnvTech plausibly alleged that USAD’s CEO (DeBusk) personally directed or conspired in trade-secret theft involving EnvTech’s HF alky-unit cleaning process. The complaint supported a reasonable inference of knowledge and intent from the rarity of EnvTech’s process, DeBusk’s control over USAD, his involvement in USAD’s entry into that market, and alleged irregularities such as USAD’s lack of testing before using a similar process. EnvTech also plausibly pleaded a RICO pattern by alleging a repeated modus operandi of hiring competitors’ key employees and using their trade secrets as part of USAD’s regular way of doing business.
National Horsemen’s Benevolent & Protective Association v. Black, No. 23-10520 (King, Duncan, Engelhardt, JJ.): Affirming in part and reversing in part on remand from the Supreme Court, the Fifth Circuit held that while the Horseracing Integrity and Safety Act’s amended rulemaking structure does not violate the private-nondelegation doctrine, its enforcement provisions do. The FTC’s new power to abrogate, add to, or modify the Horseracing Integrity and Safety Authority rules cured the prior rulemaking problem by giving the agency final say over policy choices. But contrary to the Sixth Circuit, HISA still leaves core enforcement powers—investigations, subpoenas, searches, sanctions, and injunction suits—with private entities without sufficient FTC control.
Guilbeau v. Schlumberger Technology Corp., No. 25-50594 (Higginbotham, Smith, Oldham, JJ.): Reversing in part, the Fifth Circuit held that Guilbeau’s hybrid compensation—fixed biweekly pay plus day-rate and other variable pay—satisfied the salary-basis requirement for the FLSA’s highly-compensated-employee exemption. Because the guaranteed biweekly amount was predetermined, exceeded the regulatory minimum, and wasn’t reduced based on work quantity or quality, Section 541.602(a) applied rather than Section 541.604(b)’s reasonable-relationship test. But summary judgment was inappropriate as to the entire directional-driller collective because the record didn’t establish each opt-in member’s duties, compensation, or exemption status.
Wightman v. Ameritas Life Insurance Corp., No. 24-30775 (Elrod, C.J., Higginbotham, Graves, JJ.): Reversing in part and affirming in part, the Fifth Circuit held that dental services qualify as healthcare services under Louisiana’s PPO Act, so the district court erred by granting Ameritas summary judgment on the ground that dentists fall outside the statute. The Act’s broad definition of “provider,” ordinary healthcare usage, Louisiana’s treatment of dentists, and the later Network Leasing Act all supported coverage rather than exclusion. The district court also erred in declining to rule on the Wightmans’ non-PPO Act claims, as only the circuit court—not the district court—could determine what claims had been forfeited on appeal.
Pace v. Cirrus Design Corp., No. 25-40635 (Wiener, Haynes, Graves, JJ.): Vacating and remanding, the Fifth Circuit held that Texas’s Savings Statute can apply to more than one prior case dismissed for lack of personal jurisdiction. The district court erred by tolling only the time Pace’s first Mississippi suit was pending and refusing to toll the second, because Section 16.064 applies whenever the previous court dismisses the action for lack of jurisdiction. But the panel declined to decide whether Pace intentionally disregarded proper jurisdiction in filing the second Mississippi suit because that issue turns on fact findings the district court had not made.
Trailer Bridge, Inc. v. Louisiana International Marine, LLC, No. 25-30331 (Jones, Stewart, Willett, JJ.): Affirming the judgment from a bench trial, the Fifth Circuit held that Louisiana International Marine had maritime liens on two barges for unpaid towage services because it provided necessaries to vessels on the order of the charterer’s agents, who were presumed authorized to procure them. The barges’ no-lien clause did not defeat the liens because LIM lacked actual knowledge of the clause when it contracted to provide towage, and CIMLA no longer imposes a reasonable-diligence duty to discover such clauses. The district court also properly declined attorney’s fees based on its “adherence to the traditional understanding of in personam recoveries.”
Larkins v. S.D.P. Manufacturing, Inc., No. 24-20413 (Southwick, Willett, Ho, JJ.): Reversing and remanding, the Fifth Circuit held that the plaintiffs’ delayed service raised a fact question on diligence under Texas limitations law. Texas requires ordinary diligence, not the highest degree of diligence, and a reasonable factfinder could credit the plaintiffs’ explanations for waiting three days to send citations to the process server, allowing the process server time to work through multiple similarly named corporate defendants, and taking additional time to resolve address confusion.
VDX Distro, Inc. v. U.S. Food & Drug Administration, No. 24-60537 (Elrod, C.J., Smith, Wilson, JJ.): Denying the petition for review, the Fifth Circuit upheld FDA’s denial of marketing authorization for VDX’s menthol-flavored e-cigarette products. Petitioners’ major-questions argument was really a nondelegation argument, which was foreclosed by precedent, and their vagueness argument failed because the public-health standard prohibited no conduct. Nor did the FDA’s utilization of the comparative-efficacy standard violate notice-and comment rulemaking requirements, because that standard was an adjudicatory method for applying the public-health standard—not a tobacco-product standard. Finally, because FDA reasonably explained its application of that standard to VDX’s products and marketing plan, its denial was not arbitrary and capricious.
Roberts v. KJ Win, Inc., No. 25-60263 (Southwick, Graves, Wilson, JJ.): Affirming, the Fifth Circuit upheld the denial of KJ Win’s Rule 60(b) motion to set aside a $2.8 million default judgment arising from a multi-vehicle crash. KJ Win failed to carry its burden to show excusable neglect because it offered no evidence explaining its failure to respond after substituted service, and the district court’s willfulness finding ended the Rule 60(b)(1) inquiry. KJ Win also forfeited its newly raised arguments—including whether the default judgment was void under Rule 60(b)(4) based on defective service—which were not raised below, and which did not present the the type of purely legal issues that warranted review to avoid a miscarriage of justice.
Orders
Last week, the Fifth Circuit took the unusual step of granting initial hearing en banc22 in two related appeals: Spectrum WT v. Wendler, No. 26‑10127, and Texas A&M Queer Empowerment Council v. Mahomes, No. 25‑20108. Both cases—which the Court consolidated for oral argument—broadly raise two issues: May public-university officials bar student-organized drag performances from campus event spaces under Christian Legal Society v. Martinez, and do drag performances qualify as inherently expressive conduct protected by the First Amendment in the first place?
Arguments
The Fifth Circuit’s next sitting begins the week of July 6.
15COA
Finally, we save a small slice of cake for our statewide court of appeals.
Opinion
Hays County v. Carnes, No. 15-25-00121-CV: Could residents use an alleged notice defect under the Texas Open Meetings Act to defeat Hays County’s EDJA bond-validation suit after waiting until early voting began to sue?
Majority (Brister, C.J., joined by Farris, J.): No. Under TOMA, the County’s physical and online postings should be read together. Reading them together, the online posting disclosed the required information about the road bonds, projects, debt, and taxes. But even if there were a TOMA defect, the residents forfeited their complaint by waiting until early voting began to seek relief, leaving no timely mandamus or injunction remedy to stop, prevent, or reverse the alleged violation. A subsequent EDJA proceeding can’t be used to revive the same untimely TOMA complaint
Dissent (Field, J.): Yes. The County sought a declaration that its election order was valid and TOMA-compliant, so TOMA compliance was a live defensive issue in the County’s own EDJA suit. The County’s agenda notice was insufficient because it referred only to a bond election and did not alert interested citizens that the item involved $439 million in bonds for 31 transportation projects, some controversial; online links were insufficient. The Supreme Court should review the case.
Argument
Last, the Fifteenth Court heard one argument:
State v. Johnson & Johnson, No. 15-25-00229-CV: Did the trial court err in granting Johnson & Johnson and Kenvue Inc.’s special appearances in the State’s DTPA and TUFTA lawsuit against those companies arising from the sale of Tylenol?
Appellant: John Masslon (Keller Postman)
Appellees: Aaron Nielson (Kirkland & Ellis)
Argument: June 25 (Video)
Red Light
Time to finally blow out the candles!
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Disclaimer: I previously represented the appellee.
Disclaimer: I previously represented the real parties in interest.
Judges Higginbotham, Stewart, and Haynes issued the Fifth Circuit’s per curiam opinion.
Judges Davis, Smith, and Higginson issued the Fifth Circuit’s per curiam opinion.
Judges Haynes, Higginson, and Douglas issued the Fifth Circuit’s per curiam opinion.
Judge Clement authored the opinion for the Fifth Circuit, joined by Judges Graves and Higginson.
Judges Southwick, Graves, and Higginson issued the Fifth Circuit’s per curiam opinion.
Chief Justice Christopher authored the opinion for the Fourteenth Court, joined by Justices Bouliot and Hassan.
Justice Kelly authored the opinion for the First Court, joined by Chief Justice Adams and Justice Rivas-Molloy.
Chief Justice Adams authored the majority opinion for the First Court, joined by Justice Goodman. Justice Kelly dissented.
Disclaimer: I previously represented the relator.
Justices Jewell, Wilson, and Boatman issued the Fourteenth Court’s per curiam opinion.
Justice Wilson authored the opinion for the Fourteenth Court, joined by Justices Hart and Boatman.
Justice Devine did not take part in the decision.
Justice Gunn authored the opinion for the First Court, joined by Justices Guerra and Dokupil.
Justice Bourliot authored the opinion for the Fourteenth Court, joined by Justices Zimmerer and Poissant.
Justice Wise authored the opinion for the Fourteenth Court, joined by Justices Hart and Boatman.
Chief Justice Adams and Justices Morgan and Dokupil comprised the First Court panel that summarily denied the petition.
Chief Justice Adams and Justices Morgan and Dokupil comprised the First Court panel that summarily denied the petition.
Chief Justice Adams and Justices Morgan and Dokupil comprised the First Court panel that summarily denied the petition.
Equally unusual, both en banc petitions were filed jointly by the parties.
