Welcome back to 1910 & Beyond, your regular briefing on the ever-evolving world of appellate law in Houston and beyond. Each post spotlights notable developments from Houston’s two courts of appeals—the First and Fourteenth—as well as from other state and federal appellate courts across Texas and nationwide, while also sharing practical tips on oral and written advocacy. I hope you find these posts useful to your practice and your understanding of what’s happening in Texas appellate law.
To those who have already subscribed, thank you. If you haven’t yet, I hope you’ll consider joining us!
Opening Statement
Like much of the world, I spent the past month entranced by the World Cup. Houston had a particularly good seat: “Houston Stadium” hosted five group-stage matches and two knockout games. Your authors even made it to one of them, as photographic evidence proves.
One of the controversies surrounding this World Cup—and there’ve been a few—is its size. For the first time since 1998, FIFA expanded the field, this time from 32 teams to 48. Ghana manager Carlos Queiroz complained that the enlarged 104-match format risked turning the World Cup into a “vulgar, ordinary competition.” FIFA president Gianni Infantino, apparently undeterred, is already exploring another expansion—to 64 teams—in 2030.
FIFA can afford an expanded docket. More teams mean more games; more games mean more broadcast rights, tickets, sponsorships, and hospitality packages. Whatever expansion does to the quality of the competition,1 it creates the money needed to stage it—and then some.
It doesn’t work that way for the Texas Judiciary.
In an insightful article, Ryan Autullo of Bloomberg Law recently reported that filings in Texas’s 15 intermediate appellate courts rose 23% from September through May. That’s over 1,500 more civil and criminal appeals than during the same nine-month period a year earlier. The increase wasn’t confined to a few courts: every regional court received more filings, with eleven seeing double-digit growth. Filings in both Houston courts rose 28%, while Austin’s increased 33%.
The courts were already losing ground. Only four cleared as many cases as they received last year, leaving the statewide clearance rate at 93%. That may sound respectable until you remember what a clearance rate below 100% means: The backlog is growing. And as a court’s docket grows, it doesn’t mean the work magically becomes simpler. Each additional appeal still requires a record, briefs, legal research, deliberation, and an opinion that explains the result to the parties, the bar, and the trial courts that must follow it.
What’s the cause of this surge? The article discusses possible explanations ranging from generative AI to political changes in the courts. (I find the latter highly dubious.) But no study has established the answer, and the First Court’s Chief Justice Terry Adams pushed back on the suggestion that AI-assisted pro se litigants were driving the increase. Whatever the cause, the capacity problem is real.
“There’s no fat in the system,” Chief Justice Adams told Mr. Autullo. The Chief Justices of the intermediate appellate courts plan to ask the Legislature for additional staff attorneys commensurate with the increase in filings. They aren’t asking for more judges. (They could, but they recognize the political realities.) They’re instead asking for the lawyers who help them move cases from filing to decision without sacrificing the care that appellate judging requires. As Chief Justice Adams put it, the increased filings may reflect “public confidence and faith in our judiciary.” The courts “just want tools to handle” them.
Make no mistake: Texas can provide those tools.
Our state’s GDP reached $2.9 trillion in 2025. If Texas were still its own country, it would have the eighth-largest economy in the world—well ahead of Spain and Argentina, the two World Cup finalists.
Yet the entire Texas judicial branch received about $1.07 billion for the 2026–27 biennium. That sounds like a large number. But place it alongside the State’s roughly $338 billion biennial budget: Our third branch receives about three-tenths of one percent of what Texas spends. The 15 intermediate appellate courts—the courts now absorbing this filing surge—received about $272 million combined for both years.
Judicial funding obviously will never produce the return that FIFA expects from another round of matches. Courts don’t sell broadcast rights. A memorandum opinion doesn’t generate ticket revenue. And no Golden Boot goes to the Justice who resolves the most appeals promptly and correctly.
But the return is real. Businesses invest, families plan, and people order their affairs on the assumption that Texas courts will resolve disputes fairly, carefully, and within a reasonable time. A strong Judiciary is part of the infrastructure of a strong economy, just as surely as roads, ports, power lines—and yes, pipelines—are.
Texans like to say we live in the best State in the Nation. We certainly have the economy to support the boast. If we expect world-class judging, we should be willing to field—and fund—the full team it requires. Justice, when done both fairly and promptly, is a beautiful game too.
1910
First on the fixtures list: our local courts in Houston. We begin by featuring one opinion from the First and Fourteenth Courts, followed by brief summaries of notable opinions and orders from each court.
Features
1COA
Prasla Property, Inc. v. Spark Wealth Investments, LLC, No. 01-25-00920-CV (en banc) (order): By a 6–3 vote,2 the First Court denied en banc reconsideration of a divided panel order (Gunn, Johnson, JJ.) reinstating an appeal that the court had dismissed for want of prosecution. The appellants’ rehearing motion came after both the ordinary deadline and the extension period had expired, but the panel—acting on its own motion while it still had plenary power—vacated the dismissal and returned the appeal to its active docket. Chief Justice Adams dissented.
The en banc order produced two concurrals and two dissentals over whether Texas Rule of Appellate Procedure 19’s grant of plenary power permitted that result. Justices Gunn and Johnson viewed the panel’s authority to modify its judgment before plenary power expired as distinct from its inability to grant the untimely rehearing motion itself. Chief Justice Adams and Justice Morgan saw the distinction as an improper workaround: In their view, plenary power didn’t authorize the court to grant sua sponte the same relief that Rule 49 barred it from granting on an untimely motion, at least without invoking Rule 2 and finding good cause to suspend the ordinary rules.
En banc action is unusual at the First Court, and the Court’s decision to engage here—even while declining reconsideration—underscores that this was more than a one-off dispute over a missed filing fee. The competing writings address a recurring institutional question that can affect any appeal: whether an appellate court’s still-running plenary power supplies independent authority to correct a procedural dismissal, or whether the deadlines governing party-requested relief also limit what the court may do on its own. The order leaves the panel’s reinstatement in place, but the fractured reasoning gives practitioners no assurance that another panel—or another court—would extend the same grace. And the last whistle may not have blown: Chief Justice Adams expressly urged the Supreme Court of Texas to address the issue.
N.B.: Don’t treat Prasla as extra stoppage time for a missed appellate deadline. While the court may still have power to put the ball back in play, no appellant should build a strategy around the referee acting on its own.
14COA
In re PBP, Inc., No. 14-25-00835-CV (Bridges, Boatman, Antú, JJ.) (orig. proceeding): A divided Fourteenth Court denied mandamus relief from an order expunging PBP’s lis pendens in a dispute over its option to purchase commercial property. The majority, in an opinion by Justice Antú, didn’t decide the contract-interpretation issue on which the trial court had granted expunction. Instead, it held that the order could be sustained because PBP presented no evidence that it could finance the purchase and therefore failed to establish the probable validity of its claim for specific performance.
The divided panel’s disagreement centered on issue preservation. The majority concluded that Artis had adequately raised PBP’s ability to close through its pleadings, written motion, and arguments at the expunction hearings. And because mandamus proceedings don’t impose the same presentation requirements as appeals, the court declined to find that Artis forfeited the point through inadequate briefing in the appellate court.
In dissent, Justice Boatman saw a different match from the one the parties had played below. In her view, Artis sought expunction on a legal theory—that PBP’s purchase option had expired—not on the evidentiary ground that PBP lacked financing, so PBP had no fair notice that it needed to present financing evidence. She would have reinstated the lis pendens and left Artis free to raise a properly developed evidentiary challenge later, rather than deny mandamus on a factual issue the parties had not litigated and the trial court had not decided.
N.B.: Don’t leave preservation to VAR. Raise the issue clearly, develop the supporting record, and obtain a ruling—because an appellate court may not agree that a passing reference was enough to put the issue on the pitch.
Orders and Opinions
1COA
National Women’s Soccer League, LLC v. Clarkson, No. 01-24-00437-CV (Rivas-Molloy, Guiney, Morgan, JJ.): Reversing and remanding for dismissal and a determination of attorney’s fees, the First Court held that Clarkson’s defamation and related claims arising from a league-wide investigative report should have been dismissed under the TCPA. The report concerned a matter of public concern, and Clarkson (the former head coach and general manager of the Houston Dash) was a limited-purpose public figure, so he had to produce clear and specific evidence of actual malice. Because he presented no evidence that the report inaccurately described interviewees’ statements or that appellants knew the challenged statements were false or recklessly disregarded their probable falsity, his defamation claim failed, as did his derivative claims for tortious interference, conspiracy, and vicarious liability.
In re Jones, Nos. 01-24-00651-CV, 01-24-00652-CV, 01-24-00653-CV, 01-24-00654-CV (Rivas-Molloy, Caughey, Dokupil, JJ.) (orig. proceeding): Conditionally granting mandamus relief, the First Court directed the asbestos MDL pretrial court to remand four cases originally filed before September 1, 2003. Section 90.010(a)(3) independently exempts such cases from the MDL rules and contains no requirement that the medical reports have been served within 90 days after Chapter 90 took effect. Section 90.010(b)’s deadline for medical reports applies only to the separate exception in subsection (a)(2). Relators lacked an adequate appellate remedy because continuing in MDL proceedings would waste time and money in litigation that should occur in the original trial courts. (Justice Dokupil dissented without opinion.)
Asset Risk Management, LLC v. Comal Energy Services, LP, No. 01-24-00277-CV (Rivas-Molloy, Guerra, Caughey, JJ.): Reversing and rendering, the First Court held that the economic loss rule barred Comal’s negligent-misrepresentation claim against a project accounting company regarding the processing and payment of invoices under Comal’s contract with another entity. The alleged representations concerned contract-governed invoicing and payment obligations, and Comal’s claimed losses—like depleted working capital and reduced business value—were economic consequences of the payment dispute rather than an independent injury. The rule applied despite the lack of contractual privity because allowing tort recovery would disrupt the project’s contractual allocation of economic risks and remedies.
14COA
Alam v. Reimer, No. 14-25-00400-CV (Jewell, Wilson, Boatman, JJ.): Affirming in part and reversing and remanding in part, the Fourteenth Court held that the trial court could not dismiss claims added in Alam’s amended petition because the Rule 91a motion did not challenge them. Nor could the trial court grant relief to the accounting firm because Alam had nonsuited it before the motion was filed. Limitations and collateral estoppel also didn’t support dismissal because Reimer had not pleaded them and Alam’s petition did not establish them. Nonetheless, the original claims against Reimer individually failed because he had no duty to testify, his silence was not actionable conduct or a defamatory publication, and the absence of an underlying tort defeated civil conspiracy.
Enterprise Houston Ship Channel, L.P. v. AOT Energy Americas LLC, No. 14-25-00022-CV (Christopher, C.J.; Wilson, Bridges, JJ.): Reversing and rendering in part, the Fourteenth Court agreed that Enterprise materially breached a terminal-services agreement by using new vessel-nomination procedures to deny AOT access to docks for which it had contracted and paid, but held that AOT failed to prove its damages. Undisputed evidence showed that AOT received some contractual benefits during the relevant period, including storage and pipeline access, yet its calculation did not subtract the value of those benefits from the monthly fees it sought to recover. The court rendered a take-nothing judgment on AOT’s contract claim and otherwise affirmed.
Hilton Franchise Holdings, LLC v. Adler, No. 14-25-00289-CV (Christopher, C.J.; Wilson, Bridges, JJ.): Reversing and rendering, the Fourteenth Court held that Texas lacked specific jurisdiction over two nonresident Hilton entities in a suit arising from alleged assaults at an independently owned and operated franchised hotel. Hilton Worldwide wasn’t party to the franchise agreement and otherwise had no relevant connection to the hotel. And as to Hilton Franchise, “a nonresident franchisor is [not] subject to specific jurisdiction for claims arising from injuries at a franchise location merely due to the existence of a franchise agreement when the alleged injury did not arise from the franchisor’s exercise of its duties under the franchise agreement.”
Sam Yager Properties, Ltd. v. Forestar (USA) Real Estate Group, Inc., No. 14-24-00815-CV (Wilson, Hart, McLaughlin, JJ.): Affirming, the Fourteenth Court upheld the judgment in a dispute over compensation owed under agreements to manage two real-estate developments sold as part of a larger portfolio. A collateral agreement allocating individual sales prices for tax purposes did not violate the parol-evidence rule and conclusively established the developments’ sales prices; the express management agreements also foreclosed equitable recovery, and their independent-contractor provisions and the parties’ arm’s-length dealings defeated the fiduciary-duty claim. Judgment notwithstanding the verdict as to the jury’s damages award was properly denied, given that the amount fell within the evidence presented.
Columbia/HCA of Houston, Inc. v. Fondren Orthopedic Ltd., No. 14-25-00216-CV (Jewell, Wilson, Boatman, JJ.): Reversing and rendering, the Fourteenth Court held that Columbia/HCA was governed by the partnership agreement’s narrower noncompete provision for the general partner and its affiliates—not the broader provision covering other limited partners, which was the basis of Columbia/HCA’s claim and the jury’s verdict. Although Columbia/HCA was also a limited partner, the agreement expressly allowed the general partner and its affiliates to compete except as otherwise restricted by the provision specifically addressing them. Applying the broader provision would disregard that exception and produce the unreasonable result that the general partner needed its own written consent to compete.
In re Dollar Tree Stores, Inc., No. 14-26-00191-CV (Wise, McLaughlin, Bridges, JJ.) (per curiam) (orig. proceeding): Conditionally granting mandamus relief, the Fourteenth Court directed the trial court to vacate two orders compelling statewide discovery concerning incidents at Dollar Tree stores in a premises-liability suit arising from third-party criminal conduct. Discovery about incidents at stores all across Texas wasn’t reasonably tailored to the Timberwalk factors governing foreseeability, which focus on criminal activity at or near the premises in question. The two orders also imposed inconsistent obligations that left Dollar Tree to guess about compliance, and an appeal couldn’t remedy the burden of producing irrelevant and overbroad discovery.
Gupta Houston Texas Properties Limited Partnership v. Amos, No. 14-25-00405-CV (Jewell, Wilson, Boatman, JJ.): Affirming as modified, the Fourteenth Court upheld an award limited to past-due rent because the landlord presented no competent evidence of the premises’ reasonable rental value during the lease’s remaining term and therefore did not conclusively establish future-rent damages. The trial court also acted within its discretion by denying attorney’s fees and refusing to reopen the evidence after closing arguments because the landlord had introduced no fee evidence during trial. But the lease’s maximum-non-usurious-rate clause required postjudgment interest at 18%, rather than the 5% rate stated in the judgment.
GG Security Group, LLC v. Brown Fox PLLC, No. 14-25-00426-CV (Jewell, Wilson, Boatman, JJ.): Affirming a take-nothing summary judgment, the Fourteenth Court held that GG Security impermissibly recast its legal-malpractice allegations as breach-of-fiduciary-duty and DTPA claims because the complaints concerned the quality of its former attorneys’ advice and representation, not an improper benefit obtained by the attorneys. The malpractice claim also failed because no evidence showed that GG Security informed counsel about the insurance policy that allegedly covered the underlying litigation, and an attorney need not second-guess a client’s unambiguous statement that it lacked such coverage.
In re Exxon Mobil Corp., No. 14-26-00400-CV (Jewell, Wilson, Boatman, JJ.) (orig. proceeding): Conditionally granting mandamus relief, the Fourteenth Court directed the trial court to grant Exxon Mobil’s Rule 91a motion and dismiss claims arising from an accident at a facility operated by its subsidiary. The plaintiffs didn’t allege that Exxon Mobil controlled the specific safety conditions that caused the accident, as necessary for parent-corporation liability. And their negligent-undertaking theory rested on Exxon Mobil’s failure to enforce or mandate corporate safety policies, but an omission can’t constitute the affirmative course of action required for a negligent undertaking.
Hilton Franchise Holding, LLC v. Augustine, No. 14-25-00828-CV (Wise, Wilson, Antú, JJ.): Reversing and remanding with instructions to dismiss, the Fourteenth Court held that Hilton’s franchise relationships in Texas did not subject it to general or specific personal jurisdiction in a suit arising from a shattered hotel shower door. As to general jurisdiction, Hilton was not at home in Texas merely because it had numerous franchise locations there. And as to specific jurisdiction, Hilton’s uncontroverted evidence established that it didn’t own, operate, manage, or control the hotel’s daily operations, defeating the required substantial connection between its Texas contacts and the operative facts.
Arguments
1COA
Goines v. State, Nos. 01-24-00764-CR, 01-24-00765-CR (Caughey, Johnson, Dokupil, JJ.): Many issues arising from the felony-murder trial of a former Houston Police Department officer, which arose from a botched drug raid.
Appellant: George Secrest (Bennett & Secrest)
Appellee: Heather Hudson (Harris County District Attorney’s Office)
Argument: July 27 at 1:30 pm
In re Brickey, No. 01-26-00508-CV (Guerra, Gunn, Caughey, JJ.): Is mandamus relief warranted from the trial court’s order disqualifying counsel based on the lawyer-as-witness rule?
Relator: Efrain Carrera (Law Offices of Efrain Carrera)
Real Party: Ashley Tomlinson (Laura Dale & Associates)
Argument: August 6 at 1:30 pm
14COA
The Fourteenth Court resumes arguments in September.
& Beyond
Halftime is over. We now take the field for & Beyond.
SCOTUS
First up in the second half: a bit of Supreme Court stoppage time. Although October Term 2025 formally ended in June, the Court issued several decisions after our super-sized birthday edition, including opinions on the President’s removal authority, the constitutionality of geofence warrants, and states’ authority to regulate transgender athletes.
Opinions
Trump v. Slaughter, No. 25-332 (D.C. Circuit): May the President remove members of quasi-independent administrative agencies such as the Federal Trade Commission (FTC) without cause?
Majority (Roberts, C.J., joined in full by Alito, Gorsuch, Kavanaugh, and Barrett, JJ., and in part by Thomas, J.): Yes. The Constitution vests the executive power in the President alone, and longstanding historical precedent confirms that in order to “remain accountable to the President,” executive “officers must be removable by the President.” The seemingly contrary rule announced in Humphrey’s Executor v. United States was rooted in the notion that certain officers exercise only partly executive powers, which was wrong at the time and has been proven incorrect in the decades since. To the extent Humphrey’s has anything left to say on the question of the President’s removal power of executive officers, we overrule it.
Concurrence (Gorsuch, J.): Yes, but I can’t “ignore the implications that follow” the majority opinion, given that Congress has delegated not only executive authority to agencies, but legislative and judicial powers as well, which all now presumably come under the President’s ambit.
Dissent (Sotomayor, J., joined by Kagan and Jackson, JJ.): No. The majority’s rule of unlimited removal power lacks support in the Constitution’s text or the background history, and it overrules settled precedent Congress has relied on for nearly a century. This decision undermines the checks that Congress built into agencies exercising quasi-legislative and quasi-judicial functions and threatens the independence of similarly structured bodies going forward.
Trump v. Cook, No. 25A312 (D.C. Circuit): May the President remove a Federal Reserve Governor purportedly for cause without providing notice and an opportunity to respond?
Majority (Roberts, C.J., joined by Sotomayor, Kagan, Kavanaugh, and Jackson, JJ.): No, because in doing so, the President failed to provide the statutorily required procedural protections. As an initial matter, the president’s determination of “cause” and the subsequent removal decision is judicially reviewable, as reflected in the statutory text, our precedent, and the common law. As to the merits, whatever the contours of “cause” may be—a question we don’t answer—the President’s action was statutorily impermissible because the “settled interpretation” of a “cause” requirement where the term of office is for a set period of time requires notice of the charges made against the officer and an opportunity to be heard in defense against those charges. Neither were provided here.
Concurrence (Kavanaugh, J.): No, with two understandings. First, the ruling doesn’t decide whether the President may ultimately remove Cook for cause, given the underlying facts remain undetermined. And second, the opinion “confirms the longstanding historical practice and understanding that the Federal Reserve is an independent agency whose Governors enjoy for-cause removal protection consistent with Article II of the Constitution.”
Concurrence (Jackson, J.): No, but for a different reason: The Government fails to demonstrate the equities favor a stay. It identifies no proper irreparable injury from being denied a stay, and even if it had, the balance of harms and the public interest would still justify denying the stay.
Dissent (Thomas, J.): Yes. To begin, the federal courts lack authority to afford the requested relief because there is no cognizable cause of action, federal courts generally lack the equitable authority to interfere with the removal of public officers, and granting the requested relief would “encroach on the President’s exclusive and preclusive powers.” As to the merits, the office isn’t personal property, and there is no due-process right to keeping it, particularly where the statute contains no mention of notice or an opportunity to respond. And the canon of constitutional avoidance counsels against imposing implied “notice and opportunity” provisions in the statute because that would intrude upon the President’s Article II authority to remove executive-branch officials.
Dissent (Alito, J., joined by Gorsuch, J.): Yes, and the Court should not have resolved the “many thorny legal questions” presented by the stay application. Instead, it should have granted the stay in a brief order because the two issues actually decided by the district court—whether removal for “cause” may be supported by alleged conduct that occurred before government service began and whether the Due Process Clause requires notice and hearing before removal is effectuated—were decided incorrectly.
Dissent (Barrett, J.): Yes, and the majority opinion “chooses to answer a series of difficult merits questions, most of which were not addressed by the D.C. Circuit below” and some of where were expressly waived by the Government, including the central question in this appeal.
Chatrie v. United States, No. 25-112 (Fourth Circuit): Does the collection of an individual’s cell-phone data—including location information—using a “geofence” constitute a Fourth Amendment “search”?
Majority (Kagan, J., joined by Roberts, C.J., and Sotomayor, Kavanaugh, and Jackson, JJ.): Yes. An individual has a legitimate expectation of privacy in his cell-phone location data, and so intrusion into that privacy constitutes a search, even if the intrusion is for a limited time and even if it involves a third party. The resemblance between this case and Carpenter v. United States—where we held acquiring cell-phone location data constituted a search—“practically leaps off the page,” compelling the same result here (including our rejection of the third-party doctrine’s applicability). On remand, the Fourth Circuit should determine whether the search was reasonable.
Concurrence (Jackson, J., joined by Sotomayor, J.): Yes, and I would have gone further and held the search was unreasonable.
Concurrence in Judgment (Gorsuch, J.): Yes, but “I would reach that conclusion by a different route.” The defendant’s location history constitutes part of his “effects” under the Fourth Amendment, and there was a search of the defendant’s “effects” twice over here.
Dissent (Alito, J., joined in part by Thomas and in separate part by Barrett, JJ.): No, and I warned about this exact scenario in Carpenter. The majority opinion is an advisory opinion because this case turns in part on the applicability of the good-faith exception to the exclusionary rule, which the majority opinion doesn’t even discuss. And the resolution of the merits is equally flawed. It eschews centuries of countervailing authority and relies “almost exclusively on Carpenter, propel[ling] that decision’s disruption” to Fourth Amendment jurisprudence “to new heights.”
Dissent (Barrett, J.): No, but I don’t see the risk of an advisory opinion or the viability of Carpenter as negatively as Justice Alito. Instead, I think under our precedent there was no reasonable expectation of privacy.
Watson v. Republican National Committee, No. 24-1260 (Fifth Circuit)3: Does Mississippi’s practice of counting absentee ballots mailed by election day but received up to five business days later violate federal election-day statutes?
Majority (Barrett, J., joined by Roberts, C.J., and Sotomayor, Kagan, and Jackson, JJ.): No. Setting the day for an “election” merely sets “the day when the electorate must make its choice,” as confirmed by statutory text, recent amendments, and Constitutional treatment of elections. As a result, an election occurs whenever the voting is complete, but there is no statutory deadline for ballot receipt. Instead, that is governed by state law, and Mississippi has provided that ballots sent on election day but not received until five business days may nonetheless be properly counted.
Dissent (Alito, J., joined in full by Thomas and Gorsuch, JJ., and in part by Kavanaugh, J.): Yes. The expression of the electorate’s choice for office holder—in other words, an “election”—occurs when the collection of all individual ballots is completed, and thus that collection must be completed on election day under federal law. This conclusion is supported by legal authorities from the period when the federal election-day statutes were enacted as well as “two centuries of historical practice.”
Trump v. Barbara, No. 25-365 (Second Circuit): Is birthright citizenship guaranteed by the Fourteenth Amendment?
Majority (Roberts, C.J., joined by Sotomayor, Kagan, Barrett, and Jackson, JJ.): Yes. The long—and for centuries undisputed—legacy of the common-law is that citizenship is based on where one is born, irrespective of the citizenship or intentions of their parents. Dred Scott endorsed a citizenship-by-blood regime, and the Nation properly rejected it in the Fourteenth Amendment, which uses the language from the common-law in describing citizenship. Our precedent confirms this rule, and we have repeatedly understood our past cases as guaranteeing citizenship to all children born in the United States, with very few exceptions that no one disputes and that cannot save the Executive Order that would end birthright citizenship.
Concurrence (Jackson, J., joined in part by Sotomayor, J.): Yes, and Justice Thomas’s dissent and its interpretation of the Fourteenth Amendment “bears little relationship to the history of its ratification” and “elides the entire point of the Second Founding” following the Civil War.
Concurrence in Judgment and Dissent in Part (Kavanaugh, J.): No, but I agree the Executive Order is unenforceable because it contravenes a federal statute. Our precedent outlined only four exceptions to birthright citizenship, and these were incorporated by Congress into federal law. While nothing in the Constitution prohibits Congress from adding to these exceptions, it hasn’t done so here. So the Executive Order cannot create the exception on its own force.
Dissent (Thomas, J., joined by Gorsuch, J.): No. The Fourteenth Amendment was intended to bestow citizenship on those “domiciled” in the United States—those who “had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority.” The majority’s opposite conclusion invokes a “feudal” principle of citizenship that wasn’t adopted by early Americans and overlooks the long-standing rule that children born on American soil to temporary sojourners were routinely considered non-citizens.
Dissent (Alito, J.): No. The majority’s reliance on English precedent is misplaced, because allegiance in old England was based on the king’s divine right to rule, a principle the Founders emphatically rejected. Furthermore, this conception of citizenship has an uneasy fit with the political peculiarities of the United States—especially the institution of slavery and the legal status of Native American tribes. Nor does it accord with the text and structure of the Fourteenth Amendment and the statutes that informed its drafting and ratification.
Dissent (Gorsuch, J.): No, and I want to emphasize that (1) the dissent’s interpretation of the Fourteenth Amendment accords with Wong Kim Ark; (2) the respondents have pursued a facial challenge to the Executive Order, meaning they must show its application is unconstitutional in every circumstance; and (3) “I harbor doubts” that our Constitution may properly deny citizenship to “a child born here to parents who have long chosen to make this Nation their permanent home.”
National Republican Senatorial Committee v. Federal Election Commission, No. 24-621 (Sixth Circuit): Does the Federal Election Campaign Act’s (FECA) limits on political parties’ coordinated expenditures violate the First Amendment?
Majority (Kavanaugh, J., joined by Roberts, C.J., and Thomas, Alito, Gorsuch, and Barrett, JJ.): Yes. As an initial matter, we retain jurisdiction over now-Vice President Vance’s suit because he faces a sufficiently credible threat of private enforcement of the FECA and because the record indicates he intends to run for office in 2028. On the merits, text and history both suggest FECA’s limits violate the First Amendment: it is only “the Court’s precedents”—particularly FEC v. Colorado Republican Federal Campaign Commission (Colorado II)—that “cloud the issue” by presenting two different standards of scrutiny. Ultimately, that distinction doesn’t matter, because the FECA’s limits fail even the less rigorous test. None of the asserted governmental interests rise to the level required to justify limits on speech, and intervening precedent has heightened the burden on showing a permissible exercise of restrictions on campaign finance.
Dissent (Kagan, J., joined by Sotomayor and Jackson, JJ.): No. The majority “rewrites the rules” of campaign finance by endorsing effective circumvention of the limits on individual contributions to political candidates. But we have already rejected the same arguments the majority “finds irresistible today,” and the majority “once again, disregards and disrespects the core legal principle of stare decisis” by overruling Colorado II to reach its decision. FECA’s limits on coordinated contributions are narrowly tailored to meet a compelling government interest—the appearance of a quid pro quo—and therefore survive First Amendment scrutiny, and the majority’s examples do not accurately reflect the true nature of coordinated contributions or the party’s role in such “coordination.”
West Virginia v. B.P.J, No. 24-43 (Fourth Circuit), & Little v. Hecox, No. 24-38 (Ninth Circuit): Do Title IX and the Equal Protection Clause prohibit states from banning transgendered girls and women from competing in girls’ and women’s sports?
Majority (Kavanaugh, J., joined by Roberts, C.J., and Thomas, Alito, Gorsuch, and Barrett, JJ.): No. First, many of the issues in transgender participation in sports are policy- or politics-based, and therefore are not appropriate for judicial resolution. Legally, these laws pass intermediate scrutiny because they are substantially related to the important government objectives of safety and competitive fairness. And the restrictions implemented to preserve these important objectives are sufficiently narrowly tailored to survive Constitutional scrutiny.
Concurrence (Thomas, J.): No, and transgendered people are not a protected class. Allowing men and boys with gender dysmorphia to participate in girls’ and women’s competitive sports would obscure reality and cease to treat our fellow citizens as equal.
Concurrence (Gorsuch, J.): No, because “Title IX does not clearly and unambiguously alert funding recipients that they are prohibited from sponsoring sports teams restricted to biological women or girls.” And because Title IX’s requirements on the States are only permissible as an exercise of Congress’s spending power, such alerts are required to pass constitutional muster under the Spending Clause.
Concurrence in Judgment in Part and Dissent in Part (Sotomayor, J., joined by Kagan and Jackson, JJ.): I agree that West Virginia’s ban does not violate Title IX because the distinctions here are ones the statute allows. But the Court’s decision on the equal-protection claim is premature, because there are unresolved factual questions over whether biological men or boys on hormone and puberty blockers are similarly situated to cisgender girls. And with these factual determinations unresolved, the Court can’t properly determine whether the law meets the required scrutiny under the Equal Protection Clause. The proper result is to remand the case back to make the required factual findings.
Concurrence in Judgment in part and Dissent in Part (Jackson, J.): Beyond Justice Sotomayor’s concurrence, “the majority is wrong to suggest that the term ‘sex’ in Title IX ‘cannot plausibly be interpreted to refer to anything other than biological sex.’” Thus, West Virginia’s law may “well run afoul of Title IX properly construed.”
Orders
Before leaving the pitch for the summer, the Court tidied up the remaining fixtures, clearing a number of outstanding items in its orders lists.
First, the Court GVR’d several cases based on rulings issued in this past term, including:
17 cases back to the Second, Third, Fourth, Fifth, Eighth, Ninth, and Eleventh Circuits in light of Hunter v. United States;
3 cases back to the Eleventh Circuit, Oregon Court of Appeals, and Missouri Court of Appeals in light of Monsanto v. Durnell;
2 cases back to the Eleventh Circuit and the Court of Criminal Appeals in light of Chatrie v. United States;
1 case back to the Third Circuit in light of United States v. Hemani;
1 case back to the Ninth Circuit in light of Chevron USA Inc. v. Plaquemines Parish;
1 case back to the Ninth Circuit in light of West Virginia v. B.P.J.; and
1 case back to the Eighth Circuit in light of Landor v. Louisiana Department of Corrections and Public Safety.
Second, the Court also granted cert. in several cases:
RiseandShine Corporation v. PepsiCo, Inc., No. 24-1016 (Second Circuit): Is trademark strength—that is, the level of distinctiveness of the mark—a question of fact in the likelihood-of-confusion analysis under 15 U.S.C. § 1114?
Hoffman v. WBI Energy Transmission, Inc., No. 25-159 (Eighth Circuit): In private condemnation proceedings under the Natural Gas Act, should just compensation be determined by reference to state law?
International Partners for Ethical Care, Inc. v. Ferguson, No. 25-840 (Ninth Circuit): Do parents have Article III standing to challenge a law that permits minors to receive gender affirming therapy without parental notice or consent?
Wassily v. Blanche, No. 25-842 (Second Circuit): Are noncitizens who were granted asylum that was later terminated eligible for adjustment to lawful permanent resident status under 8 U.S.C. § 1159(b)?
Republican National Committee v. Mi Familia Vota, No. 25-1017 (Ninth Circuit): Does the National Voter Registration Act or federal consent decree preempt an Arizona law that would require proof of citizenship and would remove a “confirmed” non-U.S. citizen from the voting rolls?
Montoya Palacios v. Liggins, No. 25-1223 (Fourth Circuit): Does the phrase “any civil action” in the Equal Access to Justice Act include applications for habeas corpus to challenge immigration detention?
Viramontes v. Cook County, No. 25-238 (Seventh Circuit), consolidated with Grant v. Higgins, No. 25-566 (Second Circuit): Do the Second and Fourteenth Amendments guarantee the right to possess an AR-15 platform and similar semiautomatic assault rifles?
Grand v. City University Heights, No. 25-965 (Sixth Circuit): Does the regulatory-takings doctrine announced in Williamson County Planning v. Hamilton Bank apply in First Amendment free-exercise cases?
Apple Inc. v. Epic Games, Inc., No. 25-1311 (Ninth Circuit): May a court hold a party in civil contempt based on a violation of an injunction’s “spirit” where the injunction is silent as to the conduct upon which contempt is based?
Third, four denials of cert. garnered writings from the Justices, including three dissents and a statement regarding denial.
Smith v. Kind, No. 25-943 (Seventh Circuit): Does qualified immunity apply if an official acts in a plainly unconstitutional manner even if there is no binding precedent based on largely identical facts?
Order (per curiam): Cert. denied.
Dissent (Sotomayor, J., joined by Kagan and Jackson, JJ.): The Seventh Circuit’s grant of qualified immunity is “clearly wrong” because it required showing a constitutional violation “based on subjecting prisoners to the exact same combination of cold temperature and duration as occurred here,” a more specific showing than the doctrine requires. And the Court’s decision not to reverse “exacerbates its asymmetrical trend of declining to intervene when courts wrongly afford officers the benefits of qualified immunity, but unflinchingly summarily reversing when it believes courts have wrongly denied officers the protection of qualified immunity.”
Dershowitz v. Cable News Network, No. 25-770 (Eleventh Circuit): (1) Does a defendant’s omission of certain language from a recorded statement prove actual malice under New York Times v. Sullivan? (2) Should Sullivan’s actual-malice standard be discarded altogether (or at least as to private citizens that are public figures)? And (3) should Sullivan’s clear-and-convincing burden of proof be modified?
Order (per curiam): Cert. denied.
Dissent (Thomas, J., joined by Gorsuch, J.): Sullivan’s actual-malice standard for public figures “bears no relation to the text, history, or structure of the Constitution.”
Doe v. Hochul, No. 24-1015 (Second Circuit): Does a state law mandating a COVID-19 vaccine without any accommodation for religious belief violate federal law and, consequently, the Supremacy Clause?
Order (per curiam): Cert. denied.
Dissent (Gorsuch, J., joined by Thomas and Alito, JJ.): I harbor serious doubts about the Second Circuit’s rule that a Title VII accommodation cannot be required when it would violate state law, even if the law is unconstitutional as applied to the plaintiff. And while I understand some might see this case as no longer relevant, “[t]he legal issue at the heart of this case is . . . an important and recurring one.”
Jones v. United States, No. 25-6136 (Fifth Circuit)4: Does the appellate waiver bar the defendant’s claim based on United States v. Davis, and is the waiver otherwise unenforceable under the miscarriage-of-justice exception?
Order (per curiam): Cert. denied.
Statement Respecting Denial (Sotomayor, J.): The circumstances aren’t identical to Hunter, so I join the decision not to GVR. But I “encourage lower courts to consider carefully the import of Hunter’s reasoning when deciding whether to enforce a collateral-review or appeal waiver against a defendant who is challenging the validity of his conviction.”
And fourth, the Court requested the views of the United States on another election-law case:
Republican National Committee v. Eakin, No. 25A691 (Third Circuit) and Pennsylvania v. Eakin, No. 25-967 (Third Circuit): Does Pennsylvania’s requirement that mail-in voters fill out, sign, and date a declaration accompanying the ballot violate the Constitution, what is the proper standard of review, and does the balancing framework announced in Anderson-Burdick balancing framework apply?
Arguments
Oral arguments resume when the Court takes the field again this fall.
SCOTX
After its last-minute rush of orders on the final Friday in June, our State’s Supreme Court headed to the locker room for summer. Its orders lists since then have mainly denied petitions for review and for writs of mandamus.
Oral arguments also resume this fall.
CA5
With the high courts covered, we move into extra time: a deep slate of Fifth Circuit opinions.
Opinions
Texas Tobacco Barn, L.L.C. v. U.S. Department of Health & Human Services, No. 25-60200 (Jones, Duncan, Douglas, JJ.): Does the Seventh Amendment require a jury trial before HHS may impose civil penalties for selling unauthorized vape products, or does the public-rights exception permit agency adjudication?
Majority (Duncan, J., joined by Jones, J.): Yes. The punitive monetary remedy (almost $20,000) and the statutory prohibition’s relationship to common-law actions involving adulterated or misbranded consumables made the enforcement action legal in nature. The public-rights exception did not apply because HHS failed to establish a historical tradition of exclusive executive or legislative adjudication of comparable public-health violations.
Dissent (Douglas, J.): No. The public-rights exception applied because the enforcement action concerned a novel premarket-authorization requirement, not conduct resembling a common-law cause of action. In particular, Texas Tobacco Barn was penalized for selling a product without FDA authorization, not for selling an unwholesome product or misrepresenting its quality. Because that regulatory claim lacked a sufficiently close common-law analogue, Congress could assign its initial adjudication to an agency without a jury.
Alta Power, L.L.C. v. General Electric International, Inc., No. 25-10774 (Clement, Southwick, Engelhardt, JJ.): Affirming summary judgment, the Fifth Circuit held that GE could enforce a consequential-damages waiver in Alta’s contract with WattStock because the provision expressly protected subcontractors as intended third-party beneficiaries. The waiver covered claims connected in any way to the agreement, without limiting its protection to misconduct occurring after GE formally became a subcontractor. Because sophisticated, represented parties negotiated the waiver at arm’s length, alleged fraudulent inducement did not invalidate it. And the waiver’s application to “any cause of action” included intentional torts.
Sosnava Rodriguez v. Ortega, Nos. 26-50183, 26-50219, 26-50221 (Southwick, Graves, Wilson, JJ.): Does due process require individualized bond hearings for unadmitted noncitizens detained under 8 U.S.C. § 1225(b)(2)(A)—and, if so, how soon must those hearings occur?
Majority (Southwick, J., joined by Graves, J.): Yes, and within 90 days. To begin, noncitizens who entered without inspection but lived in the United States for more than a decade had established the physical presence necessary to invoke Fifth Amendment protection. Although Section 1225(b)(2)(A) mandates detention without statutory bond hearings, that categorical rule lacked a sufficient due-process justification for prolonged detention of noncriminal residents based solely on their unadmitted status. Due process therefore requires a hearing within 90 days at which the Government must identify an individualized justification for continued detention, such as dangerousness or flight risk.
Special Concurrence (Graves, J.): Yes, but the limit should be shorter. I agree with a 90-day outside limit, because that’s better than no limit. But those already detained should receive hearings within 30 days. And future detainees should receive pre-deprivation process because unjustified detention violates due process from its outset, not only after it becomes prolonged.
Dissent (Wilson, J.): No. “Petitioners, having never been lawfully admitted to the country, are not entitled to additional process concerning their admission beyond what Congress provided in § 1225(b)(2)(A). Even assuming they were, procedural
due process would not entitle them to a bond hearing to assess dangerousness or flight risk, factors that are immaterial to Petitioners’ detention under § 1225(b)(2)(A). Further, Congress had the power to impose mandatory detention for aliens like Petitioners under § 1225(b)(2)(A), and the relatively brief duration of their detention presents no constitutional defect requiring habeas relief to correct it.”
The en banc Court, acting sua sponte, subsequently granted rehearing.
Center for Biological Diversity v. U.S. Department of Transportation, No. 25-60282 (Smith, Willett, Ramirez, JJ.): Denying a petition challenging the Maritime Administration’s approval of a deepwater LNG port, the Fifth Circuit held that three environmental organizations failed to establish associational standing. Their members did not identify concrete use of waters or areas affected by the project or connect alleged environmental, recreational, professional, or health harms to the challenged license; they merely alleged “generalized concern” about regional industrial activity. Without a project-specific injury fairly traceable to the licensing decision, the court lacked jurisdiction over the claims.
EEOC v. SkyWest Airlines, Inc., No. 25-10491 (Wiener, Haynes, Graves, JJ.): Affirming, the Fifth Circuit held that a Title VII plaintiff has no duty to mitigate compensatory damages for emotional distress. The statutory scheme’s explicit mitigation requirement for backpay—but not for compensatory damages—signals congressional intent to exclude such a duty, and the principle of mitigating emotional-distress damages wasn’t well established at common law when the compensatory-damages provision was adopted in 1991. Additionally, sufficient evidence supports the jury’s punitive-damages award; among other things, SkyWest’s investigation was too deficient to satisfy the good-faith compliance defense.
Rey v. LCMC Health Care Partners, L.L.C., No. 25-30661 (Duncan, Oldham, Wilson, JJ.): Dismissing for lack of appellate jurisdiction, the Fifth Circuit held that a partial summary-judgment ruling precluding a permanent injunction against a hospital’s relocated helipad was not immediately appealable. Because no motion for injunction was before the district court, the ruling had only the practical effect of refusing injunctive relief, requiring the homeowners to show serious, potentially irreparable consequences that could be addressed effectively only through immediate appeal. They didn’t attempt that showing. And their failure to seek preliminary relief further undermined any claim of irreparable harm from awaiting final judgment.
United States v. Texas, No. 25-10898 (Smith, Willett, Ramirez, JJ.): Does federal law preempt Texas provisions allowing unlawfully present students who satisfy state-residency requirements to pay in-state tuition when the same benefit is unavailable to all U.S. citizens, regardless of residence?
Majority (Smith, J., joined by Willett, J.): Yes. Section 1623(a) expressly preempts state laws granting unlawfully present students residence-based postsecondary benefits unless all U.S. citizens and nationals may receive the same benefits without regard to residence, and each challenged pathway made Texas residence a necessary condition for reduced tuition. The statute regulates eligibility rather than commanding state action, so its preemptive effect does not violate the Tenth Amendment. Because the proposed intervenors’ defense of these provisions was legally futile, the district court properly denied intervention.
Dissent (Ramirez, J.): No. The district court should first have determined whether Article III jurisdiction existed because the United States and Texas agreed from the outset that the state law was unconstitutional and obtained a consent judgment within hours, without adversarial briefing. Even if jurisdiction existed, Section 1623(a) didn’t preempt the Texas provisions because it operates as a direct prohibition on state action rather than a regulation of private actors, contrary to the Tenth Amendment’s anticommandeering doctrine. Because the proposed intervenors presented a potentially meritorious defense, intervention was not futile and should have been granted.
In re School Board of Concordia Parish, Nos. 25-30698, 26-30074 (Stewart, Willett, Wilson, JJ.): Did the parties’ Rule 41(a)(1)(A)(ii) stipulation immediately end a long-running desegregation case, leaving the district court without authority to conduct unitary-status hearings, and is mandamus relief appropriate?
Majority (Willett, J., joined by Wilson, J.): Yes. The Fifth Circuit dismissed the direct appeal for lack of jurisdiction because the orders scheduling hearings were neither final nor otherwise appealable. But mandamus relief was appropriate. The signed stipulation immediately dismissed the action, stripping the district court of jurisdiction. None of Rule 41’s express exceptions applied, and desegregation precedent did not create a free-standing public-interest exception allowing the district court to continue adjudicating a dismissed case. Because all later district-court actions were nullities, the School Board lacked an adequate appellate remedy and had a clear right to relief.
Concurrence in Part and Dissent in Part (Stewart, J.): No. While the appeal should be dismissed, mandamus relief was improper. Any error is remediable on direct appeal, which will occur “in due course”—once the district court conducted the scheduled hearings and ruled on unitary status. And the School Board lacked a clear and indisputable right to mandamus relief given the special public interests implicated by a longstanding desegregation decree and the uncertainty about whether Rule 41 permitted dismissal without judicial review.
United States v. Allred, No. 25-50204 (Southwick, Graves, Wilson, JJ.): Is 18 U.S.C. § 922(g)(9) constitutional as applied to a person convicted of a misdemeanor crime of domestic violence?
Majority (Southwick, J., joined by Wilson, J.): Yes. Section 922(g)(9), as applied to the defendant, fits the historical tradition of disarming people deemed dangerous because his domestic-violence conviction involved intentionally, knowingly, or recklessly causing bodily injury. Applying a categorical, offense-by-offense approach, the statute’s indefinite prohibition was sufficiently analogous to historical surety, going-armed, and group-disarmament laws.
Concurrence in the Judgment (Graves, J.): Yes, but the analysis should turn on the defendant’s individual circumstances—not on the offense categorically.
In re With Purpose, Inc., No. 25-10572 (Elrod, C.J.; Smith, Wilson, JJ.): Affirming, the Fifth Circuit upheld damages against the Ayers parties for willfully violating the bankruptcy automatic stay by pursuing a deposition in an arbitration involving a fiduciary-duty claim belonging to the bankruptcy estate. Neugebauer could enforce the stay because he was both a creditor and an individual financially injured by the discovery violation. The Ayer parties’ actions violated the automatic stay because, in pursuing the claim, they “acted ‘to exercise control over property of the estate.’” Nor did the bankruptcy court clearly err in its calculation of the damages award.
Local 1374 v. Roberts, No. 25-30305 (Higginbotham, Smith, Oldham, JJ.): Vacating a preliminary injunction and remanding for dismissal, the Fifth Circuit held that a firefighters union’s First Amendment challenge to a Louisiana ethics ruling became moot when the union officer whose service on a civil-service board created the alleged conflict resigned from that board. The resignation removed the ethics restriction and left no ongoing threat of enforcement, allowing the union to resume paying for counsel for members appearing before the board. Neither voluntary cessation nor the capable-of-repetition exception applied because the union didn’t cause the resignation, and no evidence showed a reasonable likelihood that another union officer would serve on the board.
Orders
Now the Fifth Circuit brings everyone onto the pitch, with action from its en banc docket. In addition to the Sosnava Rodriguez grant, the en banc Court granted one petition and denied another.
Ayestas v. Harris County District Attorney’s Office, No. 25-70014 (en banc) (per curiam): Should the Fifth Circuit rehear en banc its decision vacating a nonparty discovery order in a federal habeas proceeding, where the panel divided on appellate jurisdiction?
Order (per curiam): En banc rehearing granted.
Dissental (Smith, J.): No. The decision to grant en banc rehearing is a “prudential” one, and it should “normally” be “reserve[d] . . . for issues of the highest magnitude.” A “routine non-party discovery order, with minimal practical or jurisprudential impact for the aggrieved party,” doesn’t fit the bill.
Lopez v. Ramirez, No. 25-40170 (en banc) (per curiam): Should the Fifth Circuit rehear en banc a panel ruling that it lacked jurisdiction to review an order sending the case to mediation and denying pending motions without prejudice, including motions asserting qualified immunity?
Order (per curiam): Petition denied by 7-10 vote.5
Dissental (Smith, J., joined by Duncan, J.): Yes. Qualified immunity must be resolved at the earliest possible stage because it protects officials from litigation itself. Here, by denying all pending motions without prejudice and requiring mediation before reconsidering them, the district court either denied qualified immunity or improperly deferred its resolution, making the order immediately appealable. The panel’s contrary approach permits “district judges who are not fond of QI to delay—seemingly indefinitely—the ability of QI defendants to take interlocutory appeals.”
Dissental (Ho, J.): Yes. I joined a prior opinion that reached the same result as the panel here, but I was wrong. “As judges, we should strive to be open about mistakes, and look for opportunities to correct them.”
Arguments
The Fifth Circuit’s August sitting takes place the week of August 3.
15COA
We close the match with a few opinions from our statewide court of appeals.
Opinions
Texas Education Agency v. Excellence 2000, Inc., No. 15-25-00148-CV (Brister, C.J.; Field, Farris, JJ.): Reversing and rendering a dismissal for want of jurisdiction, the Fifteenth Court held that sovereign immunity barred a charter-school operator’s takings claim arising from TEA’s possession of two school properties after the charter expired. For starters, TEA’s interlocutory appeal was timely because its second plea to the jurisdiction raised new jurisdictional grounds and evidence, rather than merely seeking reconsideration of its earlier plea. As to the merits, the charter-school operator didn’t creatively plead a trespass-to-try-title claim, which would be barred by sovereign immunity. Nonetheless, its takings claim failed: TEA acted under its colorable contractual rights, so TEA lacked the intent necessary for a constitutional taking.
In re Plaisance, No. 15-26-00105-CV (orig. proceeding): Did the Fifteenth Court have jurisdiction over a mandamus proceeding arising from a case transferred to it for docket-equalization purposes?
Majority (Farris, J., joined by Field, J.): No. The Fifteenth Court’s statutory writ power extends only to matters within its exclusive intermediate appellate jurisdiction. Although Chapter 73 gave the court jurisdiction over Plaisance’s transferred interlocutory appeal, that docket-equalization jurisdiction was distinct from the exclusive jurisdiction required for an original proceeding. The court therefore lacked authority to review by mandamus the trial court’s stay order entered during the appeal.
Dissent (Brister, C.J.): Yes. Chapter 73 provides that the transferee court has jurisdiction over a transferred case, bringing that case within the statutory category of “any other matter as provided by law” and permitting related writ relief. Alternatively, the court’s appellate jurisdiction over the transferred appeal allowed it to review collateral orders that could interfere with the appeal or the effectiveness of its relief. Requiring mandamus proceedings arising from the same case to be filed in another court would fracture appellate review and create unnecessary conflicts and inefficiency.
Interested in additional analysis? Check out Hicks Johnson’s Perspectives page.
Hancock v. Neiman Marcus Group, No. 15-25-00145-CV (Brister, C.J.; Field, Farris, JJ.): Reversing and rendering, the Fifteenth Court held that limitations barred Neiman Marcus’s ultra vires suit seeking the return of over $915,000 in merchandise credits remitted to the Comptroller as unclaimed property. The suit’s underlying nature involved the alleged detention of personal property, making the two-year limitations period applicable, and the claim accrued when the Comptroller denied Neiman Marcus’s refund request—not when Neiman Marcus exhausted its negotiations with the Comptroller.
In re Jackson, No. 15-25-00235-CV (orig. proceeding): Did attorney immunity require dismissal of a former CEO’s tortious-interference claim against a corporate lawyer who allegedly helped secure the CEO’s termination?
Majority (Brister, C.J., joined by Field, J.): Yes. The advice attributed to Jackson about terminating a CEO with a potential $350 million claim was “the kind of conduct” corporate counsel performs for a client, even if Jackson also did nonlegal work or acted partly from self-interest. Because forcing Jackson to defend a baseless claim would defeat the purpose of immunity, mandamus relief was appropriate.
Dissent (Farris, J.): No. Accepting the petition’s allegations as true, Jackson acted as a business advisor, trustee, and corporate director—not necessarily as the company lawyer—and allegedly sought Barras’s removal to obtain the CEO position himself. Those allegations permitted a reasonable inference that at least some of the interference occurred outside a uniquely lawyerly role, preventing dismissal under Rule 91a even if Jackson might later establish attorney immunity through summary judgment or at trial. The Supreme Court should review.
Arguments
The Fifteenth Court has no arguments on the calendar.
Red Light
And with that, the final whistle has blown!
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I’ll reserve judgment on a 64-team World Cup. But watching Cabo Verde—a first-time qualifier that almost certainly wouldn’t have made the field without expansion—celebrate its advancement to the knockout stage after following the end of the Uruguay match on someone’s cell phone along the sideline was something special.
Chief Justice Adams and Justices Morgan and Dokupil voted in favor of en banc reconsideration. Justices Rivas-Molloy, Guerra, Gunn, Caughey, Guiney, and Johnson voted against.
Judge Oldham authored the Fifth Circuit opinion, joined by Judges Ho and Duncan.
Judge Richman authored the Fifth Circuit’s opinion, joined by Judges Dennis and Ho.
Judges Jones, Smith, Richman, Ho, Duncan, Englehardt, and Oldham voted in favor of en banc rehearing. Chief Judge Elrod and Judges Stewart, Southwick, Haynes, Graves, Higginson, Willett, Wilson, Douglas, and Ramirez voted against.
