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.
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Opening Statement
In 26-14: The Beautiful Game, I wrote about Ryan Autullo of Bloomberg Law’s important reporting on the sudden increase in filings confronting Texas’s intermediate appellate courts. Filings had risen 23% from September through May, adding more than 1,500 appeals to dockets that were already growing.
Speaking on behalf of the Council of Chief Justices, Chief Justice Terry Adams of the First Court of Appeals previously said that the courts planned to ask the Legislature for help. We now know what that help looks like.
In a follow-up article, Mr. Autullo reports that Texas’s 14 regional courts of appeals are requesting 76 additional staff members for the 2028–29 biennium. The proposed additions primarily consist of staff attorneys, at a total cost of $23.3 million.
Make no mistake: This isn’t some institutional wish list. It’s a measured response to a workload that has changed substantially in a short time.
New filings since 2024 are on pace to increase by nearly 30%. Appeals by self-represented litigants have risen 36%, while original proceedings, including mandamus petitions, have increased 83%.
Indisputably, one of the main drivers is generative AI.1 A litigant who once lacked the time, money, or legal knowledge to prepare an appellate filing can now produce something resembling a brief with a few prompts. (And self-represented litigants aren’t alone, as I’ve already seen in opposing briefs.)
But making appeals easier to pursue doesn’t make them easier to decide. Meritless or not, each filing requires the Justices and their staffs to review the record, assess the arguments, research the law, and determine the proper disposition. Put another way: A court must spend judicial resources on a meritless appeal before it can explain why the appeal is meritless.
Staff attorneys are essential to that work. They help the Justices analyze records, resolve difficult issues, and prepare orders and opinions that decide the parties’ dispute while guiding trial courts and future litigants. When filings rise but staffing doesn’t, cases take longer and opinions receive less attention. And existing employees—who don’t have private-sector salaries—shoulder an increasingly unsustainable load.
Yet the courts’ request has collided with a directive requiring them to reduce their base appropriation requests by 3%. That would remove approximately $3.4 million from their current budget. Because most appellate-court funding pays salaries, compliance could require layoffs.
Layoffs? You kidding me? Layoffs!?
That gets things exactly backward. The courts are asking to add staff because filings have increased dramatically. The proposed cut could instead leave them with fewer people to handle substantially more cases.
The reduction shouldn’t apply to the courts—full stop. But avoiding that reduction is only the beginning. Preserving current staffing would merely maintain a level of capacity the filing surge has already overtaken. The Legislature should also fund the additional positions.
Even then, relief won’t arrive soon. Funding for fiscal year 2027 has already been appropriated, so the new positions couldn’t be funded until fiscal year 2028. That means the courts must manage another year of elevated filings with the staff they already have. Chief Justice Darlene Byrne of the Third Court of Appeals has warned that the requested additions may offer only temporary relief: “We’ll be under water again in three years, even with this ask.” But it’s at least a start.
If AI has permanently lowered the barriers to appellate filings—and that seems a safe bet—Texas will need a more regular way to align judicial staffing with workload. At least for now, the immediate answer is straightforward.
The courts have asked for $23.3 million over two years. For Texas, that’s a drop in the budgetary bucket. But that number will translate into faster case disposition and opinions receiving the full attention they deserve—and, ultimately, a better system of justice.
The Legislature should give the courts what they’re asking for. Texas shouldn’t settle for a Judiciary that merely makes the playoffs. It should fund one that’s built to play to win the game.
1910
Orders and Opinions
And now, to our local courts here in Houston. Below, I highlight one notable opinion from the First and Fourteenth Courts, each court, followed by brief summaries of others worth noting.
Features
Harper v. Spencer & Associates, P.C., No. 01-25-00736-CV (Guerra, Gunn, Morgan, JJ.): A jury largely rejected claims that Vicki Harper and her company committed fraud, participated in conspiracies, made fraudulent transfers, and operated as alter egos. The trial court disregarded about a dozen favorable answers, replacing the jury’s findings of “No” with “Yes” and one zero-dollar finding with over $300,000. The First Court reversed the resulting liability against Vicki Harper, rendered a take-nothing judgment on the damage claims against her, and remanded the fee dispute.
The First Court’s consistent play-call was that the evidence didn’t conclusively require the answers the trial court supplied. Fraudulent intent, knowledge, agreement, and alter ego are ordinarily fact questions, and the testimony here gave the jury a reasonable basis to reject them. The court emphasized that evidence suggesting fraud, including statutory “badges of fraud,” doesn’t become conclusive merely because it could support a different verdict.
The opinion also offers a useful reminder about burdens of proof. Spencer & Associates argued in part that ZO Energy Corporation hadn’t identified evidence disproving fraud, but a defendant’s failure to prove innocence doesn’t conclusively establish liability. When the party with the burden fails to eliminate conflicting evidence, the jury’s answer controls.
N.B.: The jury is who we thought it was: the factfinder. If you ask the trial court to overturn its verdict, showing that the evidence favored your side isn’t enough; you must show that reasonable jurors had no room to make the call they made.
Patriot Contracting, LLC v. HERC Solutions USA, LLC, No. 14-24-00395-CV (Christopher, C.J.; Jewell, McLaughlin, JJ.): A five-week commercial-construction trial ended with a verdict against Patriot Contracting, LLC, its owner, and its surety on an array of contract, statutory, and tort claims. The Fourteenth Court rendered judgment against one tortious-interference claim for legally insufficient evidence, but the opinion’s broader lesson concerns what happened around the merits: Inflammatory evidence, witness questions, and closing arguments so infected the proceedings that the remaining claims required a new trial.
The court considered the entire trial, from pretrial evidentiary rulings through closing argument. Counsel repeatedly injected accusations of racial and gender bias into a dispute about alleged contract breaches and tortious interference, even though those accusations had no legitimate bearing on whether the contracts were breached. Closing argument then labeled one party a racist, compared the defendants or their conduct to Nazis, thugs, drug dealers, and murderers, and accused parties or counsel of lying, fabricating evidence, and witness tampering.
Incurable jury argument remains rare. But appeals to racial prejudice and unsupported, extreme personal attacks strike at the integrity of the trial itself, and their harm may be too deep for an objection or instruction to remove. After assessing the cumulative effect of the evidence, questioning, and argument, the Fourteenth Court concluded that the “strong medicine” of a new trial was necessary, even though appellants hadn’t contemporaneously objected to every remark.
N.B.: Closing argument isn’t the place for an all-time coaching rant. Argue the evidence hard, but keep inflammatory labels, irrelevant prejudice, and personal attacks off the play sheet, or you may win the verdict and still lose the game.
For more analysis of Patriot Contracting, see my colleague Rob Rankin’s post on Hicks Johnson’s Perspectives page.
In Brief
1COA
Pat Black Properties, LLC v. Murff, No. 01-24-00941-CV (Gunn, Caughey, Morgan, JJ.): Affirming summary judgment, the First Court held that limitations barred the property owner’s claim based on under Water Code Section 11.086. The wrongful act alleged was the diversion of surface water, which—under recent Supreme Court precedent—is governed by the two-year limitations period for injury to real property governed despite the request for equitable relief.
Aderemi v. Massandra KV Vineyards Owner, LLC, No. 01-24-00600-CV (Gunn, J.) (order): Denying an emergency motion to set aside and stay an increased supersedeas bond, Justice Gunn concluded that the trial court retained continuing jurisdiction under Appellate Rule 24.3(a)(2) to modify the security required to suspend enforcement of its judgment. The absence of a mandate and the unexpired deadline for seeking en banc reconsideration didn’t affect that authority, and any complaint about the trial court’s shorter deadline for posting the additional security had become moot.
MC Hotels, LLC v. Yeluh, LLC, No. 01-24-00614-CV (Guerra, Gunn, Morgan, JJ.): Reversing in part and rendering a take-nothing judgment for the hotel buyer, the First Court held that an as-is clause defeated the buyer’s fraud and contract claims because there was no evidence of fraudulent inducement. The purchase agreement’s requirement that the property be delivered as a fully operating Holiday Inn built to Holiday Inn standards was a condition precedent, not an actionable representation, and witness testimony could not alter the unambiguous contract. The court otherwise affirmed the judgment denying the seller’s counterclaims and attorney’s fees because the evidence didn’t conclusively establish completion of the escrow punch list or compensable work, and the seller offered no fee evidence at trial.
Weltin v. Homeport Insurance Co., No. 01-25-00155-CV (Gunn, Caughey, Morgan, JJ.): Reversing and rendering dismissal, the First Court held that the trial court lacked personal jurisdiction over a California attorney sued for claims arising from his representation of a client in California proceedings. His appearance as defense counsel before being named as a party did not constitute a general appearance, and neither his Texas law license nor that representation made him essentially at home in Texas.
In re Triple C Project Services, LLC, No. 01-26-00594-CV (Adams, C.J.; Rivas-Molloy, Guiney, JJ.) (orig. proceeding): Conditionally granting mandamus relief, the First Court held that post-incident interview notes and internal meeting minutes were privileged non-core work product because Triple C prepared them in anticipation of litigation arising from an employee’s workplace death. Nonlawyers may prepare protected work product, and notes from witness interviews are not witness statements under Rule 192.3(h). Because the plaintiffs didn’testablish substantial need and undue hardship under Rule 192.5(b)(2), the trial court abused its discretion by compelling production, and disclosure of the privileged materials couldn’t be remedied on appeal.
Allstate Vehicle and Property Insurance Co. v. Smith, No. 01-23-00856-CV (Adams, C.J.; Rivas-Molloy, Guiney, JJ.): Reversing and rendering a take-nothing judgment, the First Court held that the insureds’ contract claims were barred by the policy’s two-year-and-one-day limitations period because they accrued when Allstate unequivocally denied coverage. Allstate’s later payment to the mortgagee didn’t withdraw or change its denial of the insureds’ claim. The trial record didn’t establish when that payment occurred, and the insureds also failed to preserve their argument that Allstate judicially admitted the payment date.
Empower Clinic Services, L.L.C. v. Pray, No. 01-25-00410-CV (Guerra, Caughey, Dokupil, JJ.): Reversing the denial of Empower’s TCPA motion, the First Court held that the TCPA applied to its former employee’s False Claims Act retaliation and state antitrust counterclaims because both were based at least in part on Empower’s exercise of the right to petition. Neither the fraud exemption nor the employer-employee exemption applied, and the employee failed to present clear and specific evidence that he engaged in protected False Claims Act activity or suffered an antitrust injury affecting competition in a relevant market.
Tusker Capital Fund LLC v. Southside Development Project, LLC, No. 01-24-00310-CV (Rivas-Molloy, Gunn, Caughey, JJ.): Reversing and rendering on cross-motions for summary judgment, the First Court declared Southside’s lis pendens invalid and rendered a take-nothing judgment on its claims against Tusker. A suit seeking specific performance of a promise to provide a deed of trust neither establishes a direct interest in real property nor enforces an existing encumbrance, as Property Code Section 12.007 requires. Because Tusker wasn’t a party to Southside’s agreed judgment against Bella Terra, that judgment didn’t bind Tusker, and the undisputed evidence otherwise established Tusker’s superior interest through its deed of trust and foreclosure.
City of Houston v. Robinson, No. 01-24-00495-CV (Adams, C.J.; Rivas-Molloy, Guiney, JJ.): Reversing and rendering judgment, the First Court held that no legally sufficient evidence showed the City had actual knowledge of the sinkhole that caused Robinson’s injuries. For premises-liability purposes, the relevant condition is the condition at the time and place of injury—not the antecedent situation that produced it. So the sinkhole, rather than the broken water main or flooded street, was the relevant condition. Because the evidence showed that the roadway collapsed under Robinson’s truck and the City lacked actual knowledge of the sinkhole beforehand, the Texas Tort Claims Act didn’t waive the City’s governmental immunity.
Hale v. Lanesborough Corp., No. 01-24-00976-CV (Gunn, Caughey, Morgan, JJ.): Affirming no-evidence summary judgment, the First Court held that Hale’s expert designation alone wasn’t evidence that persistent fire alarms at his apartment complex caused his hearing loss. Because Hale needed expert evidence of medical causation but submitted no affidavit, deposition testimony, or other admissible expert proof, he failed to raise a fact issue on causation. The trial court also acted within its broad discretion by considering the defendants’ summary-judgment motion after the docket-control-order deadline.
14COA
Texas Department of Transportation v. Gamez, No. 14-25-01102-CV (Christopher, C.J.; McLaughlin, Boatman, JJ.): Reversing and rendering dismissal with prejudice, the Fourteenth Court held that sovereign immunity barred a bicyclist’s premises-liability claim arising from an uncovered utility box on a sidewalk maintained by TxDOT. Because bicycling qualifies as recreation regardless of the bicyclist’s subjective purpose, the recreational-use statute required evidence that TxDOT acted intentionally or with gross negligence. Evidence that the cover had been missing for years and that missing utility-box covers were a general problem showed, at most, constructive knowledge—not TxDOT’s actual, subjective awareness of an extreme risk followed by conscious indifference.
Zemonek v. Aptive Environmental, LLC, No. 14-25-01127-CV (Wise, Wilson, Antú, JJ.): Affirming in a restricted appeal, the Fourteenth Court held that an attorney’s affidavit listing the parties’ last known addresses satisfied the Uniform Enforcement of Foreign Judgments Act even though it did not expressly state that its contents were based on personal knowledge or were true and correct. Section 35.004 imposes no personal-knowledge requirement because the affidavit serves a procedural notice function rather than an evidentiary one. The affidavit was legally sufficient because it was written, signed, sworn, and notarized, and its language unequivocally showed that the attorney made the statements under oath.
Sharp v. AK Hometown Veterinary Services PLLC, No. 14-25-00958-CV (Wilson, Boatman, Bridges, JJ.): Affirming a take-nothing summary judgment in a suit arising from a vehicle’s collision with an escaped horse, the Fourteenth Court held that Sharp failed to challenge every ground supporting the no-evidence ruling. Her appellate brief did not address two arguments raised in support of no-evidence summary-judgment—the proximate-cause and knowingly elements—thus requiring affirmance.
Avant First Assistants, LLC v. Mendoza Valencia, No. 14-25-00269-CV (Jewell, Wilson, Boatman, JJ.): Reversing an attorney’s-fees award under Business and Commerce Code Section 15.51(c), the Fourteenth Court held that an employee who defeated enforcement of a noncompete did not conclusively establish that his former employer knew the covenant’s restrictions were unreasonable when the agreement was executed. Evidence that the covenant was unreasonable did not in of itself establish the employer’s contemporaneous knowledge of that fact. The court remanded the fee claim and otherwise left the take-nothing summary judgment undisturbed.
Fidelis J.B. v. Schlumberger Limited, No. 14-25-00580-CV (Christopher, C.J.; Wise, Hart, JJ.): Affirming in part, reversing in part, and modifying in part, the Fourteenth Court held that the plaintiff couldn’t avoid Rule 91a by waiting until after the hearing to repackage his challenged severance-pay claim under new legal theories. But Rule 91a didn’t authorize dismissal of genuinely new claims added in the amended petition, and without an evidentiary hearing, Section 13.001 allowed their sua sponte dismissal only if the pleading itself showed no arguable basis in law. Applying that standard, the court reinstated the severance-pay claims against the individual defendants, affirmed dismissal of the claim that the defendants breached an email agreement by not signing it, and modified dismissal of the workers’ compensation claim to be without prejudice for lack of exhausted administrative remedies.
Donalson v. Thiel, Nos. 14-24-00511-CV, 14-24-00516-CV, 14-24-00517-CV (Christopher, C.J.; McLaughlin, Boatman, JJ.): Affirming as modified, the Fourteenth Court upheld summary judgment establishing Thiel’s superior title to the disputed property. The deed records showed an unbroken chain of title, and the appellants produced no evidence that their use was hostile or exclusive enough to establish adverse possession. Their prescriptive and implied-easement claims also failed because the record showed neither hostile use nor unity of ownership, and no owner had represented that an easement existed. But rather than rendering a take-nothing judgment, the trial court should have dismissed the claims left unresolved by partial summary judgment. So the court modified the judgment to dismiss those claims without prejudice while leaving the resolved claims dismissed with prejudice.
Occidental Petroleum Corp. v. Black Mountain CarbonLock, LLC, No. 14-24-00794-CV (Jewell, Wilson, Boatman, JJ.): Must non-signatories seeking to enforce an arbitration agreement accept the contract’s choice-of-law provision, and did British Columbia law require the arbitrator to decide whether the agreement covered the parties and claims?
Majority (Wilson, J., for unanimous Court): Yes. The Fourteenth Court held that the Oxy parties couldn’t invoke the contract’s arbitration provision while avoiding its choice of British Columbia law. Under British Columbia law, an arbitrator ordinarily decides jurisdiction when it is arguable that a non-signatory may enforce the agreement or that the dispute falls within its scope. Because Black Mountain’s pleadings made it arguable that estoppel bound it to arbitrate its claims against the Oxy parties, the majority reversed and remanded with instructions to compel arbitration and stay the litigation under the Federal Arbitration Act.
Concurrence (Boatman, J., joined by Jewell, J.): Yes. A contract’s choice-of-law provision ordinarily cannot determine whether a non-signatory is bound because that issue precedes enforcement of any contractual term. But the posture here was different: the Oxy parties affirmatively sought the benefit of the arbitration clause while resisting the accompanying choice-of-law provision. That inconsistent position justified applying British Columbia law in this narrow circumstance, leaving arbitrability to the arbitrator.
Kim v. Daly & Black, P.C., No. 14-25-00171-CV (Jewell, Wilson, Boatman, JJ.): Affirming in part and reversing and remanding in part, the Fourteenth Court upheld a declaration that the public-adjusting contract was void because its fee, though labeled a flat fee, was calculated in part as a percentage of the adjuster’s estimated damages in violation of Louisiana law. Daly & Black had standing because Mosaic’s payment demand created direct pecuniary exposure for the firm, and the trial court acted within its discretion by denying Kim’s continuance request after he failed to explain why he hadn’t obtained new counsel. But Daly & Black’s fee affidavits lacked task-level time allocations and other information necessary to support the lodestar calculation, requiring a remand limited to attorney’s fees. [0827 Kim | PDF]
The Tahar Group, LLC d/b/a BuildTechz Construction v. Palomar Investment Group, LLC, No. 14-25-00886-CV (Jewell, McLaughlin, Antú, JJ.): Affirming a judgment on a jury verdict, the Fourteenth Court rejected BuildTechz’s challenges to the findings that it materially breached the construction contract first and that Palomar suffered damages because BuildTechz failed to provide a reporter’s record. Without that record, the court had to presume the trial proceedings supported the judgment and couldn’t review the sufficiency of the evidence, the exclusion of deposition testimony, or whether allegedly unpleaded damages were tried by consent. BuildTechz also failed to preserve its evidentiary complaint by making an offer of proof.
Arguments
1COA
The First Court resumes arguments on September 15.
14COA
Griffin v. Hood, No. 14-25-00523-CV (Jewell, Wilson, Bridges, JJ.): Among other issues, whether sufficient evidence supports contract and fraud claims arising from a “highly irregular and dysfunctional romantic relationship.”
Appellant: David Sacks (Sacks Law Firm)
Appellee: Marianne Robak (Shackelford, McKinney & Norton)
Argument: September 1 at 2 pm
& Beyond
Having covered the home field, let’s move & Beyond.
SCOTUS
In Washington, D.C., the Supreme Court’s depth chart may be thin, but the emergency docket remains in the game.
Opinions and Orders
Trump v. California., No. 26A139 (First Circuit): Should the Court stay an injunction barring federal agencies from implementing an executive order that would work changes to federal election procedure?
Majority (per curiam): Yes. First, the Government is likely to prevail on its challenge to the district court’s jurisdiction. The executive order imposes no obligations on the States and has yet to be implemented, meaning both that the States lack standing to complain of the order and that the dispute is not yet ripe for resolution. Second, the Government is likely to suffer irreparable harm absent a stay because the injunction improperly intrudes into the sphere of the Executive’s authority. And third, the balance of equities does not counsel against a stay because the executive order “makes no demand of the States,” which is “why th[e] suit was not justiciable in the first place.”
Dissent (Sotomayor, J., joined by Kagan, J.): No. The States have alleged a credible threat of prosecution by the Government for their refusal to use lists created under the executive order, as the Government’s own admissions prove. The Government suffers no harm from a stay of this injunction: If, as the per curiam majority suggests, the executive order imposes no demand of the States, then there can be no harm from staying a toothless injunction.
Dissent (Jackson J.): No. The executive order contemplates “a fundamental overhaul of the States’ existing mail-in ballot systems,” and the Government has not demonstrated that the president has the constitutional authority to issue such an order. Through this failure, the Government is unable to establish irreparable harm. And even assuming for arguments’ sake there is harm to the Government, a proper evaluation of the public interest demonstrates a stay supports that interest.
National Park Service v. National Trust for Historic Preservation in the United States, No. 26A203 (D.C. Circuit): Should an injunction entered by the District Court for the District of Columbia halting construction on the East Wing of the White House be stayed?
Order (Roberts, C.J.): Stay granted.
Arguments
Arguments resume at the beginning of October Term 2026.
SCOTX
Meanwhile, our State’s Supreme Court offered no bulletin-board material this week, only its usual round of denials.
Orders
Nothing noteworthy from the Court’s usual orders lists, which largely consist of the standard denials.
Arguments
Oral arguments for the new Term begin September 15.
CA5
In New Orleans, by contrast, the judges were emptying the playbook before the annual law-clerk roster change.
Opinions
Texas Medical Association v. United States Department of Health & Human Services, No. 23-40605 (en banc): Does the No Surprises Act permit insurers to include nonnegotiated “ghost rates,” exclude bonus and incentive payments, and exclude one-off agreements when calculating the qualifying payment amount, and is vacatur the proper remedy?
Majority (per curiam):2 No and yes. The Act’s reference to services actually “provided” or “furnished” precludes ghost rates for services a provider doesn’t perform, and its requirement to use the “total maximum payment” requires inclusion of bonus and incentive payments tied to an item or service. But one-off agreements, including single-case air-ambulance arrangements, may be excluded because they don’t establish generally applicable rates recognized under an insurance plan. Under circuit precedent, vacatur is the APA’s default remedy.
Concurrence (Ho, J.): No, but universal vacatur of agency rules raises the same Article III concerns as universal injunctions because it grants relief to nonparties and may exceed the traditional judicial power to resolve disputes between the litigants.
Concurrence in Part (Oldham, J.): No, and the agencies unlawfully adopted the July Rule without notice and comment and couldn’t correct its inclusion of zero-dollar ghost rates through an informal FAQ that effectively amended a legislative rule. The case should have been resolved on that procedural ground rather than by reaching the remaining substantive challenges.
Concurrence in Part and Dissent in Part (Haynes, J., joined by Stewart, Graves, Higginson, Douglas, and Ramirez, JJ.): Yes. The Act permits insurers to include contracted rates regardless of whether claims were paid at those rates because “provided” means made available, and it authorizes the agencies to decide how bonus and incentive payments affect the calculation. The exclusion of one-off agreements was permissible, and any unlawful portions of the rule should have been remanded without vacatur.
State of Mississippi v. Department of Energy, No. 24-60529 (Haynes, Ho, Oldham, JJ.): Did the States timely seek review of the Department of Energy’s Direct Final Rule governing cooking-appliance efficiency, and did their adverse comments require the Department to withdraw it?
Majority (Oldham, J., joined by Ho, J.): Yes. A direct final rule is “prescribed” for purposes of the Energy Policy and Conservation Act’s 60-day review period when the Department completes its decision-making process by adhering to the rule after considering adverse comments, not when it initially publishes the rule. The States timely petitioned after the Department rejected their comments, which provided a reasonable basis to question whether the participating stakeholders fairly represented relevant viewpoints and whether the required power supplies would reduce appliance reliability. The Department therefore had a mandatory duty to withdraw the rule, so the panel granted the petition and remanded.
Concurrence in Part (Haynes, J.): Yes and maybe. The petition was timely because the rule became final when the Department adhered to it, although the Department’s jurisdictional arguments had some force. But on the merits, the better course was simply to remand so the Department could reconsider its decisions in light of the issues raised on appeal.
Citizens for Clean Air & Clean Water in Brazoria County v. United States Department of Transportation, No. 25-60202 (Clement, Southwick, Engelhardt, JJ.): Granting the petition for review, the Fifth Circuit held that the Deepwater Port Act requires an application area to encompass a proposed port’s offshore pipelines because the statute expressly includes pipelines within its definition of a deepwater port. Properly drawn, Texas GulfLink’s application area would intersect another deepwater port’s pipeline, violating the statutory limit of one deepwater port per application area. Because the defect affected a fundamental part of the licensing process and couldn’t be corrected or justified on remand, the court vacated the approval and remanded for further proceedings.
United States ex rel. Doe v. Planned Parenthood Federation of America, Inc., No. 23-11184 (en banc): Does the collateral-order doctrine permit an interlocutory appeal from the denial of attorney immunity when the asserted immunity would not remove the defendant from the litigation or conclusively resolve a separable issue?
Majority (Elrod, C.J. and Graves, J., joined by Jones, Smith, Barksdale, Stewart, Richman, Southwick, Haynes, Higginson, Willett, Ho, Duncan, Engelhardt, Wilson, Douglas, and Ramirez, JJ.): No. Dismissing the appeal, the en banc court concluded that neither Texas nor Louisiana law clearly treats attorney immunity as a true immunity from suit rather than a defense to liability. Federal common law also didn’t support interlocutory review because Planned Parenthood would remain subject to trial on claims based on its own conduct even if its attorneys’ conduct were protected. Resolving the asserted immunity therefore would neither end the litigation nor conclusively determine a separable issue that would meaningfully advance it.
Judge Oldham concurred in the judgment without opinion.
La Union del Pueblo Entero v. Abbott, No. 25-50246 (Higginbotham, Smith, Oldham, JJ.): Reversing permanent injunctions against nine provisions of Texas S.B. 1, the Fifth Circuit held that the organizational plaintiffs lacked standing to challenge the law’s mail-ballot identification and voter-assistance requirements under the Americans with Disabilities Act and Rehabilitation Act. The record didn’t show a substantial risk of future injury to any identified member; diversion of organizational resources didn’t create standing; and speculative fears of prosecution were insufficient. Although the plaintiffs had standing to challenge compensation restrictions against local prosecutors, that claim failed because prosecutors don’t administer or provide voting services and thus didn’t exclude anyone from those services because of disability.
W.M.M. v. Trump, No. 25-10534 (en banc): Did the named petitioners’ removal under the Immigration and Nationality Act moot their appeal seeking to prevent removal under the Alien Enemies Act?
Majority (Elrod, C.J., joined by Jones, Smith, Stewart, Richman, Southwick, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Wilson, Douglas, and Ramirez, JJ.): Yes. Because the Government had since removed all three named petitioners under the Immigration and Nationality Act, an injunction against removal could no longer provide them effectual relief. As no class had been certified, the court declined to substitute proposed class representatives for the now-absent named petitioners on appeal. The appeal was therefore moot.
Concurrence (Ho, J.): Yes, but the court could and should have reached the preliminary-injunction merits and upheld the President’s actions under the AEA and the Due Process Clause. Presidential determinations that an invasion exists under the AEA is not subject to judicial review, and the Government’s seven-day notice procedure afforded sufficient due process.
Concurrence in the Judgment (Oldham, J.): No. The petitioners weren’t entitled to injunctive relief because their AEA claims failed on the merits, which the court could reach at the preliminary-injunction stage without first resolving jurisdiction.
Judge Haynes also concurred in the judgment, but without opinion.
In re Highland Capital Management, L.P., No. 25-11185 (Stewart, Graves, Wilson, JJ.): Affirming an $825,940.55 inherent-power sanction, the Fifth Circuit held that clear and convincing evidence showed HCRE filed and litigated a baseless bankruptcy claim in bad faith. HCRE’s officers knew the governing agreement accurately reflected the parties’ ownership interests, HCRE misrepresented its counsel’s role while resisting disqualification, and it later sought to withdraw the claim to avoid depositions while preserving the dispute for another forum. The sanction properly included fees incurred after the attempted withdrawal because HCRE’s conduct caused the continued litigation needed to obtain a preclusive merits ruling.
Holberg v. Guerrero, No. 21-70010 (en banc): In a gruesome murder case, is a capital defendant entitled to federal habeas relief under Brady, based on the prosecution’s suppression of impeachment evidence about a jailhouse witness?
Majority (per curiam): No. Affirmed by equally divided Court.
Concurrence (Oldham, J., joined in full by Jones, Smith, Ho, Duncan, Engelhardt, and Wilson, JJ.; and joined in part by Willett, J.): No. AEDPA does not authorize federal courts to correct state-court errors, or even clear errors, but only “extreme malfunctions” beyond any possibility of fairminded disagreement. Reasonable jurists could conclude that the witness’s informant work in unrelated cases was immaterial because her testimony was peripheral, the prosecution had substantial independent evidence of robbery and future dangerousness, and the defense had already impeached her credibility on other grounds. AEDPA also barred Holberg’s ineffective-assistance claim because reasonable jurists could find that counsel conducted an extensive mitigation investigation and made a defensible strategic choice about how to present her background.
Concurrence (Southwick, J., joined in part by Richman, J.): No. While the prosecution committed a serious Brady violation by failing to disclose impeachment evidence concerning the jailhouse witness, AEDPA still foreclosed relief. Given the other evidence supporting capital murder and the death sentence, not every fairminded jurist would find the suppressed evidence material.
Concurrence in Part and Dissent in Part (Haynes, J.): Yes, but only in part. The evidence of Holberg’s guilt was sufficient to preclude habeas relief from the conviction. But the jailhouse witness supplied much of the evidence supporting a death sentence, and disclosing her pending charges and paid-informant work likely would have changed the jury’s punishment decision. The case should have been remanded for a noncapital sentence or a new punishment trial.
Dissent (Higginbotham, J., joined by Stewart, Graves, Higginson, Douglas, and Ramirez, JJ.): Yes. The prosecution suppressed material evidence that its jailhouse witness had worked as a compensated police informant and had incentives to assist the State. Her testimony supplied critical evidence concerning robbery, lack of remorse, moral culpability, and future dangerousness, so the nondisclosure undermined confidence in the death sentence and satisfied AEDPA. At minimum, the writ should have issued conditionally to permit Texas to impose a noncapital sentence or conduct a new punishment hearing.
Dissent (Elrod, C.J., joined by Richman and Ramirez, JJ.): Yes. The jailhouse witness provided the only direct evidence that Holberg intended to rob or burglarize the victim, an aggravating element required for capital murder. Because her compensated-informant status was suppressed, favorable, and material to that element, no fairminded jurist could uphold the state court’s rejection of the Brady claim.
Dissent (Higginson, J., joined by Higginbotham, Stewart, Richman, Graves, Douglas, and Ramirez, JJ.): Yes. The prosecution’s failure to disclose its compensated relationship with a key witness deprived the defense of the evidence needed to test her account of Holberg’s alleged confession. That testimony uniquely contradicted self-defense and directly established robbery, while also influencing the punishment determination. The state court unreasonably applied Brady by finding the suppressed evidence immaterial, so AEDPA did not bar relief.
In re M/V MS Adalyn, No. 25-20584 (Elrod, C.J.; Clement, Oldham, JJ.): Affirming summary judgment, the Fifth Circuit held that a commercial workboat carrying eight employees of its charterer was a covered small passenger vessel excluded from the Limitation of Liability Act. A vessel under 100 gross tons qualifies as a small passenger vessel if it carries more than six passengers, including one passenger for hire, and an individual need not personally furnish the consideration for carriage. Because the charterer’s daily payment indirectly supplied consideration for transporting its employees, they were passengers for hire.
Quadvest, L.P. v. San Jacinto River Authority, No. 25-20415 (King, Smith, Ramirez, JJ.): Affirming after a bench trial, the Fifth Circuit held that a contract requiring Quadvest to pay groundwater-pumpage fees and potentially purchase surface water from the River Authority didn’t violate Section 1 of the Sherman Act. Although the contract was concerted action affecting interstate commerce, it wasn’t subject to per se condemnation because the parties were not competitors when they contracted; the agreement did not fix prices charged to third parties; and it allowed the River Authority to require only Quadvest, not Quadvest’s potential customers, to purchase surface water. The rule-of-reason claim also failed because Quadvest didn’t prove the relevant product or geographic market .
R J Reynolds Tobacco Co. v. Food & Drug Administration, No. 25-40137 (Southwick, Willett, Ho, JJ.): Affirming interim relief under APA Section 705, the Fifth Circuit upheld the postponement of an FDA rule requiring new cigarette warnings because the manufacturers were substantially likely to show that Congress authorized only the nine warnings enumerated in the Tobacco Control Act. The FDA’s authority to “adjust” warning text didn’t include increasing the number of warnings from 9 to 11, and the Act’s preemption provision didn’t independently expand the agency’s substantive authority. Section 705 authorized postponement of the rule itself rather than party-specific relief (a conclusion Judge Ho didn’t join).
NicQuid, L.L.C. v. Food & Drug Administration, Nos. 24-60272, 24-60304, 24-60332, 24-60424, 24-60628, 25-60098, 25-60369 (Smith, Higginbotham, Oldham, JJ.): Granting the petitions for review, the Fifth Circuit held that the FDA’s comparative-efficacy standard for flavored electronic nicotine products was a substantive rule that required notice-and-comment rulemaking under the APA. The standard bound agency reviewers, applied prospectively to an open-ended class of applicants, and effectively required comparative-efficacy evidence rather than leaving reviewers free to assess each application on its merits. Because the FDA developed that generally applicable policy internally and imposed it through informal adjudications, the court vacated the marketing denial orders and remanded for further proceedings.
Hamm v. Ochsner-Acadia, L.L.C., No. 25-30603 (Stewart, Graves, Wilson, JJ.): Dismissing in part and affirming in part, the Fifth Circuit first held that it lacked pendent appellate jurisdiction to review certification of an FLSA collective action because that ruling was neither inextricably intertwined with nor necessary to review the Rule 23 class-certification order. It next affirmed certification of the Louisiana-law unjust-enrichment and conversion claims because the employees’ theory that common policies and professional duties left them effectively on call during unpaid meal breaks presented common questions capable of class-wide resolution. Differences in actual interruptions did not defeat predominance, typicality, adequacy, or superiority under the plaintiffs’ theory, regardless of whether that theory would ultimately establish liability.
Kipp Flores Architects, L.L.C. v. AMH Creekside Development, L.L.C., No. 23-50750 (Haynes, Willett, Oldham, JJ.): Did an order erroneously dismissing only some claims under Rule 41(a)(2) produce an appealable final judgment, and did the complaint state viable copyright and DMCA claims?
Plurality (Willett, J.): Yes and no. Although the district court erred by using Rule 41(a)(2) to dismiss individual claims, its dismissal order remained effective and created appellate jurisdiction because a court-ordered dismissal is not a nullity merely because it misapplies the rule. On the merits, Section 120(a)’s safe harbor applies to architectural works, but not pictorial, graphic, and sculptural works; and it covers functional floorplans and renderings after the building has been constructed. Because Section 120(a) is an affirmative defense and the complaint did not establish when the challenged acts occurred, dismissal of the infringement claims was premature, but the DMCA claims failed because copyright-management information never placed on the newly created materials could not have been removed or altered.
Judge Haynes concurred in the judgment without opinion.
Dissent (Oldham, J.): No. Rule 41(a)(2) authorizes dismissal of an action, not selected claims, so the district court’s purported dismissal of the remaining claims was invalid under circuit precedent. Those claims therefore remained pending, leaving no final judgment and no appellate jurisdiction.
Norcave Properties, L.L.C. v. Internal Revenue Service, No. 25-30542 (Smith, Willett, Ramirez, JJ.): Affirming dismissal for lack of subject-matter jurisdiction, the Fifth Circuit held that the Anti-Injunction Act and the Declaratory Judgment Act barred Norcave’s prepayment challenge to IRS accuracy-related penalties. Section 6665 treats those penalties as taxes, and Norcave’s requested relief objectively sought to stop an assessment already underway rather than challenge a separate reporting or regulatory mandate. Norcave could pursue prepayment review in the Tax Court, but the statutory scheme did not entitle it to a prepayment jury trial in federal district court.
National Infusion Center Association v. Kennedy, No. 25-50661 (Southwick, Higginson, Wilson, JJ.): Affirming summary judgment for the Government, the Fifth Circuit rejected facial constitutional challenges to the Inflation Reduction Act’s Medicare Drug Price Negotiation Program. The statute satisfied the nondelegation doctrine because its pricing objective, ceiling formulas, required considerations, and negotiation procedures supplied an intelligible principle, and the limits on judicial review and notice-and-comment rulemaking didn’t make the delegation unconstitutional. Although the Anti-Injunction Act did not bar the Excessive Fines Clause claim because a refund suit was not a practical alternative, the excise tax was not a punitive fine tied to criminal conduct, and the program didn’t deprive manufacturers, providers, or patients of protected property or liberty interests.
Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 25-60550 (King, Higginson, Duncan, JJ.): On interlocutory appeal involving a news aggregator’s use of embedded articles, the Fifth Circuit supplied new standards for both public-display infringement and the DMCA’s protection of copyright-management information. Rejecting the Ninth Circuit’s server test, the Fifth Circuit adopted a “transmit requirement” that turns on the source and authorization of the transmission, under which a linking site ordinarily doesn’t directly infringe when the copyright owner’s server delivers the displayed content. The court also declined to exclude URLs categorically from copyright-management information, leaving the district court to decide whether Emmerich’s URLs clearly conveyed protected information and, if so, whether Particle intentionally removed or altered it.
M. v. Aledo Independent School District, No. 25-10824 (Richman, Duncan, Oldham, JJ.): Does the IDEA permit parents to “partially” consent to selected parts of a school district’s validly proposed initial evaluation, and can a duplicative ADA claim proceed if the IDEA claim fails?
Majority (Duncan, J., joined by Richman, J.): No. The IDEA requires parental consent to a validly proposed full and individual initial evaluation and doesn’t permit parents to select only particular assessments. The record supported including formal cognitive tests because evaluators might need them if informal testing didn’t yield sufficient cognitive data, and the district made reasonable efforts to obtain informed consent. Because the parents withheld consent, the district’s obligation to provide a free appropriate public education never arose. As a result, their duplicative ADA claim also failed.
Dissent (Oldham, J.): No. The IDEA’s cooperative structure permits parents to consent to particular evaluations so long as the permitted testing covers all areas of suspected disability. Requiring blanket consent was unwarranted because the district’s representative had indicated that the disputed formal cognitive tests likely wouldn’t be administered, and removing them wouldn’t impair the evaluation. The ADA claim also warranted separate consideration because the IDEA and ADA provide independent protections, and omitting the disputed tests could qualify as a reasonable accommodation.
Orders
W.M.M. v. Trump, No. 25-10534 (en banc): In light of the removal of the three named petitioners, should the Fifth Circuit grant the petitioners’ motion to add five new class representatives?
Majority (Elrod, C.J., joined by Jones, Smith, Stewart, Richman, Southwick, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, Douglas, and Ramirez, JJ.): No. The en banc court denied the motion without prejudice because no class had been certified and the proposed representatives appeared uniquely situated based on their differing immigration statuses. The district court had not determined whether they satisfied Rule 23, and it was better positioned to resolve the necessary factual questions. But the ruling did not preclude the district court from later certifying a class or permitting new representatives to be added or substituted.
Judge Haynes concurred in the denial, but without opinion.
Meeks v. Ray, No. 25-40542 (Jones, Ho, Engelhardt, JJ.): Denying leave to appeal in forma pauperis, the Fifth Circuit held that the Prison Litigation Reform Act’s three-strikes bar applies when the dismissal serving as the third strike is itself on appeal. The statute counts a qualifying dismissal as a strike even while appellate review is pending, and the Supreme Court’s decision in Coleman abrogated circuit precedent postponing a strike until appeals were exhausted or waived.
United States v. Augillard, No. 25-30192 (en banc): Should the Fifth Circuit grant rehearing en banc to reconsider its rule requiring a defendant to identify an actual state prosecution before establishing that a facially broader state offense fails the categorical approach?
Majority (per curiam): Petition denied by 4–10 vote.3
Concurral (Oldham, J.): No. Duenas-Alvarez requires a defendant challenging a state-law predicate to show a realistic probability of overbreadth by identifying an actual case in which the state applied its statute nongenerically. Taylor didn’t displace that rule because it addressed a federal predicate and reaffirmed the federalism concerns that justify consulting state courts’ actual applications of state law.
Dissental (Elrod, C.J., joined by Higginson, J.): Yes. Taylor clarified that the actual-case requirement does not apply when statutory text itself establishes the mismatch, and every other regional circuit has rejected the Fifth Circuit’s contrary rule.
Arguments
The Fifth Circuit’s September sitting begins the week of August 31, with one additional argument on September 9.
15COA
Statewide, the Fifteenth Court gave us only a quick trip to the replay booth.
Opinions
Texas Association of School Boards Risk Management Fund v. Southwest Texas Junior College, No. 15-25-00134-CV (Brister, C.J.; Field, Farris, JJ.): Affirming a ruling on the Fund’s plea to the jurisdiction, the Fifteenth Court held that governmental immunity didn’t bar the College’s affirmative defenses to enforcement of conditions in the parties’ property-coverage agreement because those defenses were part of its breach-of-contract claim and fell within the same statutory immunity waiver. Mere references to fraud and bad faith in the petition’s factual allegations didn’t provide fair notice that the College was asserting those theories as separate claims. But immunity barred consequential damages because the Fund administered, rather than owned, the risk-management program, so the statutory exception for increased costs caused by owner-caused delays did not apply.
Hawkes v. Zwerneman, No. 15-25-00185-CV (Brister, C.J.; Field, Farris, JJ.): Affirming in part and reversing and rendering in part, the Fifteenth Court allowed fraud and conversion claims arising from alleged online impersonation of a dog-boarding business to proceed, while dismissing five other claims under the TCPA. The fraud claim fell within the common-law-fraud exemption, and the conversion claim was based on alleged control of online identities rather than protected communications. But as to the remaining claims, while online statements about a dog’s death concerned a matter of public interest, the plaintiffs failed to establish prima facie cases for defamation, business disparagement, intentional infliction of emotional distress, or tortious interference; their evidence didn’t address all of the requisite elements.
Argument
The Fifteenth Court resumes arguments on September 17.
Red Light
That’s triple zeros on the clock. Time for the postgame press conference.
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In this author’s opinion, the continued loosening of mandamus’s availability is another.
Chief Judge Elrod and Judges Jones, Smith, Richman, Willett, Ho, Duncan, Englehardt, and Wilson joined the per curiam opinion in full, while Judges Southwick and Oldham concurred in different parts.
Based on the per curiam opinion’s writing style, I’ll wager that Judge Oldham—despite only his partial concurrence—was at least the principal author.
Chief Judge Elrod and Judges Richman, Graves, and Higginson voted in favor of en banc rehearing. Judges Jones, Smith, Stewart, Southwick, Haynes, Willett, Ho, Duncan, Englehardt, Oldham, Wilson, Douglas, and Ramirez voted against.
