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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Thank you again to Chief Justice Terry Adams of the First Court of Appeals for helping me launch Questions Presented, and to the readers who shared such kind feedback. I’m looking forward to bringing you a new judicial conversation each month.
For now, grab a cup of coffee and settle in for your regularly scheduled programming . . .
1910
Orders and Opinions
We begin with our local courts here in Houston. Below, I highlight one notable opinion from the First and Fourteenth Courts, followed by brief summaries of others worth noting.
But first, a scheduling update: Thanks to those First Court judges who let me know that the court will now hand down opinions on Tuesdays and Fridays. As far as I’m aware, the Fourteenth Court will continue issuing opinions on Tuesdays and Thursdays, the same days as before.
Features
In re Thomas, No. 01-26-00795-CV (Guerra, Gunn, Morgan, JJ.) (per curiam) (orig. proceeding): The First Court summarily denied mandamus relief from orders denying Rule 91a motions to dismiss. But the writing that matters comes from Justice David Gunn—one of my favorite judicial baristas—who concurred to explain why some Rule 91a disputes are poor candidates for mandamus, even when they raise substantial legal questions.
Rule 91a and mandamus don’t always fit neatly together. Rule 91a asks whether a claim fails based on the pleadings, so the case generally has little-to-no factual development. But as our Supreme Court has instructed, whether the relator has an adequate remedy by appeal is a fact-specific inquiry. And, as Justice Gunn observed, “[s]ometimes a fact-specific inquiry would benefit from a larger bundle of facts.” Thomas involved detailed pleadings, unsettled questions about duties in the LLC context, and other claims that apparently would remain even if the challenged claim were dismissed. Justice Gunn viewed those circumstances as better suited for a summary-judgment record, perhaps followed by permissive appeal, than for mandamus.
Justice Gunn also confronted an institutional reality. Picking up on a theme from my prior posts, filings in the First Court increased by roughly 25 percent in the last year and by more than a third over two years. With that growing docket, Justice Gunn explained, the court can’t simply “police the pleadings” through an ever-increasing number of mandamus proceedings. So it isn’t enough for a relator to show that the court could correct a Rule 91a ruling immediately. The petition must show why the court should do so in this case: what continued litigation will require, how dismissal would materially change the case, and why an appeal after final judgment would come too late.
N.B.: Don’t serve the adequate-remedy prong as a shot of boilerplate next to a grande-sized merits argument. Build it for the particular case by showing what happens if review waits, what immediate dismissal would accomplish, and why ordinary appeal will arrive too late.
For even more analysis of Thomas, see my post on Hicks Johnson’s Perspectives page.
Umassor v. Bank of America, N.A., No. 14-25-01123-CV (Christopher, C.J.; McLaughlin, Boatman, JJ.): After a county court dismissed the plaintiff’s case for want of prosecution, he moved to reinstate and filed a notice of appeal identifying the dismissal order. The county court then granted reinstatement, vacated the dismissal, tried the case, and rendered a final judgment for Bank of America. But the plaintiff neither filed a separate notice of appeal from the final judgment nor amended his existing notice to identify it.
The Fourteenth Court dismissed the plaintiff’s appeal for want of jurisdiction. Reinstatement mooted the appeal from the dismissal order because that order no longer existed, and the court could grant no relief from it. And the later final judgment didn’t rescue the appeal because Rule 25.1 requires the notice of appeal to identify the particular judgment or order being appealed.
N.B.: An appellate notice isn’t a bottomless cup: It doesn’t automatically cover every judgment the trial court later signs. If the target changes, ask for a refill either by timely amending the notice to identify the new final judgment, or by filing a new notice of appeal altogether.
In Brief
1COA
Jones v. City of Missouri City, Texas, No. 01-23-00700-CV (Adams, C.J.; Morgan, Dokupil, JJ.): Affirming summary judgment, the First Court held that governmental immunity barred the homeowners’ declaratory-judgment claims because they challenged Missouri City’s actions without contesting a statute’s validity or suing an official for ultra vires conduct. The City, by contrast, could pursue its own declaration that it had no duty to maintain the subdivision’s private streets, and the evidence conclusively established that it had rejected the proposed public dedication and never appropriated the streets by entry, use, or improvement. Continued public access didn’t compel the City to accept the dedication or assume maintenance obligations.
Weems & Kelsey Management Co. No. 2, Ltd. v. Marathon Pipe Line LLC, No. 01-24-00110-CV (Rivas-Molloy, Johnson, Morgan, JJ.): Affirming a take-nothing judgment on a landowner’s trespass claim, the First Court concluded that legally sufficient evidence supported the jury’s finding that the pipeline operators had consent to remain on the property after their license expired. The landowner’s knowledge and inaction supported implied consent until it demanded removal, and the State obtained possessory rights by depositing the condemnation award into the court’s registry and could consent to the pipeline’s continued presence.
Harris County v. Gariet, No. 01-24-00175-CV (Rivas-Molloy, Guiney, Morgan, JJ.): Did the evidence raise a fact issue about whether an officer violated a law governing emergency driving or acted with reckless disregard, preventing application of the Texas Tort Claims Act’s emergency exception?
Majority (Morgan, J., joined by Guiney, J.): No. Reversing and rendering, the majority held that the evidence showed only inattentiveness or a momentary lapse in judgment—not the conscious indifference or subjective awareness of extreme risk required to establish recklessness. The officer activated his lights and siren, slowed as he entered the intersection, and believed traffic had stopped for him. The County’s disciplinary finding and the deputy’s post-accident characterization of his conduct didn’t create a material fact issue under Section 546.005. Because the plaintiff pleaded only a violation of that provision, the majority declined to consider whether the deputy failed to slow as necessary under Section 546.001.
Dissent (Rivas-Molloy, J.): Yes. The County invoked Section 546.001 to justify the deputy’s passage through the red light, making compliance with that provision part of the jurisdictional inquiry, even if the plaintiff failed to identify it specifically in her pleadings. The crash report, internal investigation, dash-camera video, and the deputy’s testimony created factual disputes about whether he slowed as necessary, properly cleared an obstructed intersection, and acted recklessly. The County also failed to conclusively establish official immunity because its evidence didn’t assess the particularized need and risk factors governing whether a reasonably prudent officer could have believed the emergency response justified the danger to the public.
Zaragoza v. Fuentes, No. 01-24-00497-CV (Gunn, Caughey, Morgan, JJ.): Did the trial court properly decline to proceed in a Texas divorce case under international-comity principles while related proceedings remained pending in Mexico, and was dismissal the appropriate remedy?
Majority (Caughey, J., for unanimous Court): Yes and no. Affirming in part and reversing in part, the First Court held that the trial court acted within its discretion by declining to proceed while Mexican litigation continued over a disputed divorce decree and the settlement and withdrawal of a proceeding challenging that decree. But dismissal required reconsideration because the Texas case would return regardless of the outcome in Mexico, and a stay or abatement might better preserve the parties’ work in the decade-long litigation. Any future decision to recognize the Mexican decree must separately determine under Rule 308b whether the decree satisfies American notions of due process and Texas public policy.
Concurrence (Morgan, J.): The trial court should conduct the Rule 308b hearing now, rather than await Mexican proceedings that may not resolve whether the divorce decree comports with American due process. If the decree fails that inquiry, the Texas divorce case can proceed immediately; if it passes, the parties are no worse off while awaiting the Mexican litigation’s outcome.
Mendoza v. Hacienda Services, Inc., No. 01-24-00620-CV (Rivas-Molloy, Johnson, Dokupil, JJ.): Affirming a take-nothing summary judgment, the First Court held that Chapter 95 applied to a contractor’s negligence and premises-liability claims arising from his fall while performing touch-up work as part of a home’s punch list. The painting and caulking constituted repair or renovation of an improvement, and the roof’s proximity to the dormer made its allegedly dangerous condition a condition of that improvement. The contractor produced no evidence that the homebuilder controlled the means, methods, or safety details of his work or actually knew he was working without required fall protection when he fell.
Oppidan Homes VI, Ltd. v. Work, No. 01-25-00414-CV (Rivas-Molloy, Johnson, Dokupil, JJ.): Reversing the order vacating an arbitration award and rendering judgment confirming it, the First Court held that the homeowner failed to establish evident partiality under the Federal Arbitration Act. The arbitrator disclosed his ongoing professional relationship with the homebuilder’s counsel, and his failure to identify a specific, unrelated arbitration involving that counsel or its outcome wouldn’t create a reasonable impression of partiality in an objective observer. And precedent foreclosed manifest disregard and complete irrationality as statutory grounds for vacatur.
14COA
Memorial Women’s Care, PLLC v. The Hanover Casualty Co., No. 14-24-00566-CV (Wilson, Hart, McLaughlin, JJ.): On permissive appeal, the Fourteenth Court held that Hanover had no duty to defend Memorial against claims arising from its alleged use of a competing medical practice’s name and mark. Even assuming the allegations potentially asserted an advertising-injury claim based on a similar website layout, the underlying petition alleged only knowing and intentional misconduct, bringing every claim within the policy’s unambiguous Knowing Violation exclusion.
Third Coast Services, LLC v. Castaneda, No. 14-22-00831-CV (Wise, McLaughlin, Antú, JJ.): On remand from the Supreme Court, the Fourteenth Court held that Third Coast established its statutory immunity from claims arising from a fatal collision at a highway-construction site, but SpawGlass didn’t. Third Coast conclusively proved that it performed the work within its subcontract, corrected the identified grounding problem, and lacked authority to obtain electrical service or activate the traffic signals itself. On the other hand, though SpawGlass followed the approved traffic-control plan, it didn’t conclusively establish compliance with contract provisions that may have required it to propose changes as conditions warranted.
Franco v. Texas Taco Cabana L.P., No. 14-25-00422-CV (Wise, McLaughlin, Bridges, JJ.): Affirming a take-nothing summary judgment, the Fourteenth Court held that the plaintiffs failed to present sufficient evidence to establish that Taco Cabana food caused the Francos’ gastrointestinal illnesses. The trial court properly excluded their medical expert because his opinion relied chiefly on the timing and similarity of their symptoms, didn’t identify a pathogen, and failed to address plausible alternative causes. The remaining lay and expert evidence established only that food poisoning was possible, not that contaminated tacos caused the illnesses within a reasonable medical probability.
Allison v. Borunda, P.C., No. 14-25-00417-CV (Bridges, Boatman, Antú, JJ.): Does a judgment debtor bear the burden of proving that property identified by a judgment creditor is exempt from execution under the turnover statute?
Majority (Bridges, J., for unanimous Court): Yes. Affirming a turnover order, the Fourteenth Court followed its earliest nonsuperseded precedent placing the exemption burden on the judgment debtor once the creditor presents some evidence that the debtor owns property. The Allisons admitted owning real-estate and fractional interests in business entities but offered no evidence that those assets were exempt. Their remaining challenges failed because an appellate stay prevented harm, the order reached only nonexempt property without adjudicating third-party rights, and they did not preserve their due-process complaint about receiving the proposed order.
Concurrence (Boatman, J.): Yes. The Fourteenth Court’s conflicting decisions require following the earliest nonsuperseded line of authority, which places the exemption burden on the debtor and accords with most Texas courts of appeals. But the turnover statute’s text and the usual rule assigning the burden to the party seeking to change the status quo leans toward placing it on the creditor. The Supreme Court should resolve the conflict and establish a uniform statewide rule.
Arguments
With a new fiscal year underway, Houston’s appellate courts are serving up a fresh round of oral arguments.
1COA
Cisneros v. State, No. 01-24-00719-CR (Gunn, Caughey, Dokupil, JJ.): Among other issues arising from a murder trial, were the defendant’s Fourth Amendment rights violated when law enforcement opened his cell phone’s SIM-card holder to obtain the phone’s IMEI number?
Appellant: Stanley Schneider (Schneider & McKinney)
Appellee: Shawna Reagin (Harris County District Attorney’s Office)
Argument: September 15 at 11 am
City of Houston v. Ramos, No. 01-24-00967-CV (Rivas-Molloy, Guerra, Gunn, JJ.): Did the trial court err in denying the City’s motion to dismiss based on the plaintiff’s purported failure to plead facts negating application of the Texas Tort Claims Act’s 911 and emergency exceptions?
Appellant: Christy Martin (City of Houston Legal Department)
Appellee: Misty Hataway-Cone (Cone PLLC)
Argument: September 16 at 1:30 pm
Wu v. Zhou Chen SL Vision, LLC, No. 01-25-00128-CV (Rivas-Molloy, Guerra, Gunn, JJ.): Among other issues, did the trial court err by granting no-evidence summary judgment on the claim that the parties’ buy-sell agreement was illegal under Texas law governing the ownership, control, and fee arrangements of optometry practices?
Appellant: Jillian Schumacher and Sarah Beck (Daniels & Tredennick)
Appellee: Steven Poock, Esq.
Argument: September 16 at 2:30 pm
Oasis Pipeline, LP v. Penn Virginia Oil & Gas, L.P., No. 01-24-00516-CV (Caughey, Morgan, Dokupil, JJ.): Did the trial court err by granting summary judgment for Penn Virginia based on force majeure when the parties’ customized natural-gas contract excluded force-majeure protection to the extent performance was affected by a “failure of production”?
Appellant: Dori Goldman (Yetter Coleman)
Appellee: Ronald Oran (Fletcher Held)
Argument: September 17 at 1:30 pm
DeBoise v. Fort Bend County, No. 01-25-0018-CV (Rivas-Molloy, Guerra, Gunn, JJ.): Did the trial court err by granting Fort Bend County’s plea to the jurisdiction and dismissing deputy constables’ employment-discrimination and retaliation claims on the ground that the County was not their employer under Chapter 21 of the Texas Labor Code?
Appellant: Scott Poerschke (The Poerschke Law Firm)
Appellee: Rolf Krueger (Fort Bend County Attorney’s Office)
Argument: September 23 at 2:30 pm
All arguments can be livestreamed at this link.
14COA
Brandhoff v. Niscavits, No. 14-25-00814-CV (Wise, Jewell, Wilson, JJ.): Among other issues, did the trial court err by granting traditional summary judgment for homebuyers on their fraud, breach-of-contract, and DTPA claims when the residential sales contract contained an “as is” clause but the buyers alleged that the seller had fraudulently concealed prior flooding and other latent defects?
Appellant: Mark Byrne (Robert D. Clements, Jr. Law Group)
Appellee: Christopher Johnson (Johnson & Associates)
Argument: September 15 at 2 pm
Aero-Rey Delaware, LLC v. U.S. Specialty Insurance Co., No. 14-25-01055-CV (Wise, Jewell, Wilson, JJ.): Among other issues arising from a bench trial, did the trial court err by finding that the theft and destruction of an aircraft was a covered loss under an agreed-value policy but denying the insured any recovery because payments received in connection with the aircraft’s proposed sale had made it whole?
Appellant / Cross-Appellee: Michael Matthews (McDowell Hetherington)
Appellee / Cross-Appellant: Michelle Robberson (Cooper & Scully)
Argument: September 15 at 2 pm
Harris County v. Harris Central Appraisal District, No. 14-25-01118-CV (Wise, Hart, Boatman, JJ.): Did the trial court err by granting the appraisal district’s plea to the jurisdiction because the taxing units failed to exhaust their administrative remedies before challenging property-tax exemptions granted to out-of-county housing finance corporations?
Appellant: Lori Yount (Harris County Attorney’s Office) and Donald Hightower (City of Houston Legal Department
Appellee: Denis Potvin (Olson & Olson)
Argument: September 22 at 2 pm
Union Pacific Railroad Co. v. Gozan, No. 14-25-00794-CV (Christopher, C.J., Bridges, Boatman, JJ.): Does sufficient evidence support the jury’s finding that a low-speed collision caused the plaintiff’s injuries, as well as its $1.7 million award of damages?
Appellant: Ryan Pitts (Haynes Boone)
Appellee: Sarah Landau (Roberts Markland)
Argument: September 23 at 2 pm
Performance Contractors, Inc. v. Equistar Chemicals, LP, No. 14-25-00199-CV (Christopher, C.J., Bridges, Boatman, JJ.): Among other issues, did the trial court err after a seven-week bench trial by offsetting the contractor’s $56.7 million recovery with $57.9 million awarded to the owner for alleged delays, poor productivity, and defective work, while denying the contractor prejudgment interest under the Texas Prompt Payment Act?
Appellant / Cross-Appellee: Mark Trachtenberg (Haynes Boone)
Appellee / Cross-Appellant: Warren Harris (Bracewell)
Argument: September 23 at 2 pm
All arguments can be livestreamed at this link.
& Beyond
That covers the local blend; now we turn to the appellate developments brewing beyond Houston.
SCOTUS
October Term 2026 is still weeks away, but construction disputes and election litigation to are already keeping the High Court busy.
Opinions
National Republican Congressional Committee v. Brown, No. 26A274 (Fourth Circuit): Should the Court stay the Fourth Circuit’s mandate setting aside a public notice from the Media Bureau of the Federal Communications Commission pending disposition of a writ of certiorari?
Majority (per curiam): Yes. The applicants meet each of the three required elements for a stay. First, the Fourth Circuit likely lacked statutory jurisdiction to address the underlying challenge to the public notice because the application for review before the FCC had not yet been resolved. This is sufficient to establish the “reasonable probability” that the issue presented is “sufficiently meritorious” to warrant a grant of certiorari and that there is a “fair prospect that a majority of the Court will vote to reverse the judgment below.” Second, the applicants have demonstrated they will likely suffer irreparable harm absent a stay because “broadcasters are already rescinding favorable rates,” which “hamper[s] . . . efforts to reach the electorate in the critical weeks leading up to the midterms.”
Dissent (Jackson, J.): No, because “the applicants are not likely to succeed on the merits of their argument that the Fourth Circuit lacked statutory jurisdiction.”
National Park Service v. National Trust for Historic Preservation in the United States, No. 26A203 (D.C. Circuit): Should the Court stay an injunction barring construction of the new East Wing of the White House?
Majority (per curiam): Yes. First, the Government is likely to prevail in showing the respondent lacks standing to challenge the project. The only basis for standing offered by the respondents is an affidavit from a single member complaining of offense to the continued construction, and the Court has consistently declined to find standing in those circumstances. Second, the Government is likely to suffer irreparable harm without a stay. As an initial matter, the district court likely exceeded its constitutional authority by enjoining the activities of a coordinate branch of government, and the Government has presented evidence attesting to the harms to national security that would result from enjoining the new East Wing’s construction. And third, the balance of harms also tilts decisively in favor of the Government, because the only harm to the Trust from continuing construction is being forced to observe an overly large project.
Dissent (Roberts, C.J., joined by Sotomayor, Kagan, Jackson, JJ.): No. The construction is likely unlawful, because only Congress can authorize construction on federal land within Washington, D.C., and Congress “has not passed any law resembling ‘express authority’” for the East Wing project. The respondent also possesses standing to challenge the construction, because the complained-of aesthetic injury is sufficiently concrete and particularized under this Court’s precedent “given the distinctive nature of the White House” and the member’s “focused and substantiated interest in viewing it in its traditional form.” In holding otherwise, the per curiam majority “fail[s] to appreciate” that “the White House is not just any building,” and threatens the separation of powers by permitting the executive to usurp authority that properly belongs to Congress.
Orders
Along with its typical denials and a capital-case denial, the Court issued three noteworthy orders.
People Not Politicians v. Onder, No. 26A326 (Eighth Circuit): Should the Court stay a temporary restraining order implementing Missouri’s new congressional district maps?
Order (per curiam): Stay granted.
Doe v. McDonald, No. 26A239 (Second Circuit): Should the Court grant an injunction pending appeal barring New York from enforcing its vaccination requirement against a kindergartener whose parents object on religious grounds?
Order (per curiam): Application denied.
Justices Alito and Gorsuch would grant the application.
Iowa v. Arizona, No. 164 (Orig.): Among other issues raised in an original proceeding arising from the Paramount-Warner Bros. merger, should the Court resolve precedentially whether its exclusive jurisdiction in State v. State cases is mandatory, not discretionary?
Order (per curiam): Defendants allowed to file responses to motion for leave to file bill of complaint.
Arguments
Oral arguments will resume when the Court returns for the 2026 October Term.
SCOTX
The Supreme Court of Texas is back in session, pouring the first cup of its 2026–27 Term.
Opinions
The Court released one per curiam opinion conditionally granting a writ of mandamus without oral argument and also issued a revised opinion in a case originally decided on April 10.
In re Rose, No. 26-0916 (Fourteenth Court):1 Could Galveston County permissibly redraw precinct boundaries between the primary and general elections and after the candidate filing deadline had passed?
Majority (per curiam):2 No. “Neither the Texas Constitution nor any statute authorizes the County to take the unusual and perhaps unprecedented step of choosing to conduct a general election using precinct lines that differ from those used in the corresponding primary election absent an overriding state or federal law obligating it to do so.” And while nothing expressly prohibits such line drawing changes, that doesn’t alter the result. Counties must find authorization for their actions in the Constitution or statute, and unsettling an electoral map during an ongoing election implicates serious constitutional concerns.
Spectrum Gulf Coast, LLC v. City of San Antonio, No. 24-0794 (Thirteenth Court): Did the court of appeals err in concluding the Public Utility Regulatory Act applied in a breach of contract action when the contract specifically stated it was subject to “laws, ordinances, and regulations” affecting the parties’ rights and obligations?
Majority (Young, J., for unanimous Court):3 Yes. PURA prevents municipally owned utilities from discriminating “for or against a certified telecommunications provider,” and violating this statute necessarily affects a telecommunications provider’s rights in the marketplace. Given the contract’s expansive language requiring adherence to “all laws, ordinances, and regulations” that may affect a parties’ rights, violating this statute results in a breach. And this answer doesn’t depend on whether the contract incorporates subsequent legal changes to the rights and obligations of the parties, because the “all laws” clause evinces the parties’ anticipation of future legal changes, a finding supported by the “intensely regulated nature of utilities.”
Orders
Beyond its usual lists of denials, the Court has begun filling out its merits docket for the upcoming Term by granting review in the following appeals and setting argument in the following original proceedings:
Lower Colorado River Authority v. Lost Pines Groundwater Conservation District, No. 24-0958 (Third Court): (1) Are proceedings concerning groundwater permitting conducted by the State Office of Administrative Hearings governed by the procedures outlined in the Texas Water Code or in the Administrative Procedure Act? (2) If the Water Code governs, did the petitioner timely file suit or subsequently cure any defect? (3) Does the court of appeals have appellate jurisdiction over an interlocutory appeal of an order denying a different party’s plea to the jurisdiction?
Wings v. Freedman, No. 25-0274 (Fifth Court): If a buy-sell agreement permits a member of a company to offer to buy another member’s interest at a price that includes both the value of the interest and a return of committed capital, may the counterparty in turn offer to buy the original offeror’s interest at a price that includes only a portion of the unreturned capital?
National Collegiate Athletic Association v. Kennedy, No. 25-0338 (Fifth Court): (1) Does the discovery rule in a latent-injury case require proof that a doctor advised the plaintiff of a likely link between claimed injuries and specific wrongdoing? (2) Does the summary-judgment record establish the discovery rule applies to preclude claims for neurological injuries allegedly caused by playing football?
Texas Public Policy Foundation v. Highland Park Independent School District, No. 25-0759 (Fifth Court): (1) Should the Court revisit In re City of Georgetown and hold that the attorney-client privilege does not override the Texas Public Information Act’s disclosure requirements? (2) If attorney-client privilege generally overrides the Texas Public Information Act, may a governmental body invoke the privilege by commissioning a factual investigative report through an attorney instead of through the governmental body? (3) Is the privilege waived if a high-ranking employee discloses the findings for the government’s benefit?
Great American Insurance Company of New York v. Williamson County, No. 25-1045 (Third Court): (1) What constitutes “termination” of a public work contract under the Texas Government Code, and did the court of appeals err by analyzing this question with a fact-intensive inquiry driven by post-termination conduct?
Garcia v. Dalals County Hospital District, No. 25-1077 (Fifth Court): (1) Is a contract that limits an at-will employee’s right to change employers a “restraint of trade”? (2) Does an employee’s resignation under an at-will employment agreement constitute a breach of that employment agreement?
Texas Law Shield, LLC v. Perez, No. 25-1108 (Fourteenth Court):4 Does the Texas Penal Code and the Disciplinary Rules for attorneys in Texas prohibit attorneys from making in-person communications about services for abstract legal needs, and do individuals who receive such communications have standing to sue for barratry?
In re Power, No. 25-1116 (Second Court): Did the court of appeals abuse its discretion in ordering an accounting from a trust based on a request from a party that is not a trust beneficiary?
In re Katten Muchin Rosenman LLP, No. 26-0152 (Fifth Court): Did the court of appeals abuse its discretion by refusing to dismiss claims complaining of attorney action brought by non-clients?
In re Colvin, No. 26-0242 (First Court):5 May a party that has been released from liability be compelled to provide discovery in a subsequent malpractice claim based on an allegedly inadequate settlement that included the release?
In re Shodrok, No. 26-0373 (Third Court): Did the district court abuse its discretion in refusing to release names of grand jurors requested under the Texas Public Information Act when such disclosure was allegedly mandated in a judgment from the court of appeals?
In re Novartis Pharmaceuticals Corporation, No. 26-0467 (Fifteenth Court): Does the Texas Medicaid Fraud Prevention Act violate the Texas Constitution by creating a regime where qui tam relators may sue for harms that they did not suffer and where private parties may sue for injuries to the State?
Arguments
The Court’s first arguments of the Term begin the week of September 14.
September 15
Comprehensive Training Center, LLC v. Edcouch-Elsa Independent School District, No. 24-0772 (Thirteenth Court): Was a contingent-fee contract signed by a school district superintendent securing a federal grant properly executed, or can the school board claim governmental immunity to avoid the contract?
Petitioner: Robert Gilbreath (Hawkins Parnell & Young)
Respondent: Edward Smith (O’Hanlon, Demerath & Castillo)
Conduent State Healthcare, LLC v. M&M Orthodontics, PA, No. 24-0802 (Third Court): Is the determination of whether an entity is an “employee” under the Texas Tort Claims Act properly reviewable by a jury? And did the court err by assuming the jurisdictional issue was intertwined with the merits?
Petitioner: Connie Pfeiffer (Yetter Coleman)
Respondent: Jason Ray (Riggs & Ray)
Morris v. Old Republic Insurance Company, No. 24-1034 (Twelfth Court): Did the court of appeals err by including a “settlement credit limitation” to the Worker’s Compensation Act, and should it have based its decision on this holding at all when the argument was not presented to the trial court and was not raised until reply?
Petitioner: Mike Love (Mike Love & Associates)
Respondent: Vaughan Waters (Thornton, Biechlin, Reynolds & Guerra)
September 16
Zody v. Aran & Franklin Engineering, No. 25-0374 (Thirteenth Court): Did the trial court abuse its discretion in denying a motion to dismiss when a certificate of merit required under Section 150.002 of the Civil Practice and Remedies Code came from a licensed engineer who was not specifically appointed as a qualified inspector by the department of insurance and when a separate certificate of merit from a different engineer had already been filed?
Petitioner: Kyle Giacco (Daw & Ray)
Respondent: Nadeen Abou-Hossa (Chiscano Hossa & Calve)
In re Bosco, No. 25-0421 (Third Court): Did the trial court abuse its discretion by permitting a property inspection when there was insufficient evidence demonstrating need and the information could have been obtained from less-intrusive sources, and does a party have an adequate remedy at appeal if a trial court erroneously permits inspection?
Relator: Jody Sanders (Kelly Hart & Hallman)
Real Parties in Interest: Steven Levatino (Levatino | Pace)
In re Simon Property Group, L.P., No. 26-0023 (Fifth Court): In a lawsuit arising after a mass shooting outside a shopping center, did the trial court abuse its discretion in denying a Rule 91a motion when the allegations purportedly don’t (1) demonstrate a duty, (2) establish a superseding cause for the sustained injuries, and (3) assert an ordinary negligence claim that in truth sounds in premises liability?
Relators: Monica Latin (Carrington Coleman Sloman & Blumenthal)
Real Parties in Interest: Byron Henry (Henry Hill)
September 17
Orleans Harbour Homeowners Ass’n, Inc. v. West Harbour, LLC, No. 24-1063 (Fourteenth Court):6 Did the court of appeals err in holding a vendor-vendee relationship was required to properly assert a claim based on an easement by estoppel, and did it err in alternatively finding insufficient evidence of an affirmative representation of permissive use?
Petitioner: Hannah Roblyer (Alexander Dubose & Jefferson)
Respondent: Melissa Lorber (Butler Snow)
Clark v. Rodriguez, No. 25-0182 (Thirteenth Court): Did the court of appeals err in applying the doctrine of taxpayer standing to certain individual members of the International Brotherhood of Electrical Workers, and did it further err in concluding there was a fact issue on whether Corpus Christi ISD complied with the Texas Prevailing Wages Act?
Petitioner: Philip Fraissinet (Thompson & Horton)
Respondent: Matt Bachop (Deats Durst & Owen)
In re Delta Equine Center, No. 25-0340 (Thirteenth Court): Is mandamus relief appropriate from the trial court’s order of mistrial when counsel allegedly requested information covered by an order in limine and allegedly created prejudice to the opposing party?
Relators: Jessica Z. Barger (Wright Close Barger & Guzman)
Real Party in Interest: Don Cruse, Esq.
All arguments can be livestreamed at this link.
CA5
The Fifth Circuit kept the coffee flowing, issuing a substantial slate of opinions and preparing for four en banc arguments. And with not one but two cases involving Starbucks, this week’s theme was practically written on the cup.
Opinions
Moreau v. Harris County, Texas, No. 25-20045 (Smith, Higginson, JJ.):7 Affirming the trial court’s judgment in a FLSA lawsuit, the Fifth Circuit held that a sheriff’s office’s lieutenants and captains were paid on a salary basis because they regularly received predetermined compensation and the record showed no actual practice of improper deductions. Criminal-justice lieutenants qualified for the administrative exemption because their primary duty was managing jail operations, and sufficient evidence supported the jury’s findings that the remaining lieutenants qualified for the administrative and executive exemptions. The magistrate judge properly used pattern instructions rather than the plaintiffs’ requested interrogatories, and allowing the jury to find both exemptions was not plain error because whether an employee may simultaneously have both exempt primary duties remains reasonably debatable.
Sterling v. City of Jackson, Mississippi, No. 24-60370 (en banc):8 Do residents state substantive-due-process claims by alleging that city officials caused lead contamination in the municipal water supply and misrepresented the water’s safety?
Majority (Engelhardt, J., joined by Elrod, C.J., and Jones, Smith, Richman, Willett, Ho, Duncan, Oldham, Wilson, JJ.): No. Affirming dismissal, the en banc court held that freedom from exposure to government-caused water contamination and receipt of truthful information from public officials aren’t rights deeply rooted in the Nation’s history and tradition. The alleged exposure didn’t amount to the physical intrusion required by the established right to bodily integrity, and the officials’ alleged misrepresentations couldn’t support a new constitutional right to truthful government information. And even if a cognizable right existed, the individual officials would receive qualified immunity because no controlling authority or robust consensus clearly established it.
Concurrence in Part and Dissent in Part (Haynes, J., joined by Stewart, Higginson, Douglas, Ramirez, JJ.): Yes and no. The residents plausibly alleged that the City violated their right to bodily integrity by worsening lead contamination, concealing the danger, and inducing them to consume contaminated water, and they were entitled to discovery on that claim. The Fifth Circuit also should adopt the state-created-danger doctrine, which ten other circuits recognize, because the allegations described affirmative governmental conduct that created or increased the residents’ exposure. But the individual officials were entitled to qualified immunity because neither asserted right was clearly established in this context.
Starbucks Corp. v. NLRB, No. 24-60650 (Wiener, Haynes, Graves, JJ.): Did substantial evidence support the National Labor Relations Board’s unfair-labor-practice findings against Starbucks; and were its consequential-damages, bargaining, reopening, and public-reading remedies permissible?
Majority (Wiener, J., joined by Graves, J.): Yes and no. Substantial evidence supported most of the Board’s Section 8(a)(1) findings, including that Starbucks solicited grievances and conferred benefits to discourage unionization, accelerated wage increases, and engaged in certain surveillance—but not findings based on one text-message incident, a manager’s question about a union pin, or asserted coercive threats about bargaining’s possible effects. Substantial evidence also supported the Section 8(a)(3), (4), and (5) findings concerning discriminatory discipline, discharges, a store closure, and unilateral changes in policy enforcement, although the Section 8(a)(1) order required revision on remand. As to remedies, while the Board could impose a bargaining order at the Camp Road store and require a public-notice reading, circuit precedent barred consequential damages, and reopening the Galleria kiosk would be unduly burdensome because Starbucks no longer controlled the location.
Concurrence in Part and Dissent in Part (Haynes, J.): Yes and no. Starbucks’s repairs and renovations responded to serious health-and-safety problems through ordinary business practices, and the nationwide wage increase was planned before the Buffalo organizing campaign. Those actions thus didn’t support Section 8(a)(1) liability. The Board also denied Starbucks due process by recasting employee promotions alleged under Section 8(a)(3) as Section 8(a)(1) violations without adequate notice, and its Section 8(a)(3) and (4) determinations should be denied enforcement or reconsidered after identifying which valid Section 8(a)(1) findings supported them. The majority, however, properly rejected the Board’s remedy of requiring Starbucks to reopen a kiosk it no longer owned or operated.
Starbucks Corp. v. NLRB, No. 24-60653 (Smith, Wiener, Higginson, JJ.):9 Granting enforcement in part, the Fifth Circuit concluded that substantial evidence supported the Board’s finding that a Starbucks manager unlawfully threatened reprisal by telling an employee that benefits could not be guaranteed if employees unionized, without explaining collective bargaining’s give-and-take or grounding the prediction in objective facts. But statements about reduced store hours and a closed hiring portal, when viewed in context, didn’t reasonably threaten employees for protected activity; and the Board otherwise failed to grapple with evidence showing staffing problems and active hiring. A manager’s general acknowledgment of union discussions also didn’t create a coercive impression of surveillance, particularly because the record showed that some organizing discussions occurred openly in the store.
Lucid Group USA, Inc. v. Johnston, No. 25-50319 (Elrod, C.J.; Higginbotham, Graves, JJ.): Does Texas’s prohibition on direct vehicle sales by manufacturers violate equal protection or substantive due process as applied to an electric-vehicle manufacturer with no franchised dealers?
Majority (Higginbotham, J., for unanimous Court): No. Affirming, the Fifth Circuit held that circuit precedent foreclosed Lucid’s constitutional challenges because the ban is rationally related to Texas’s legitimate interest in preventing vertical integration and resulting abuses. Lucid wasn’t similarly situated to independent dealers, and its direct-sales model did not meaningfully distinguish its claims from the as-applied arguments rejected in prior cases involving similar laws. The substantive-due-process claim failed under the same rational-basis analysis.
Concurrence Dubitante (Elrod, C.J.): No. While circuit precedent required affirmance, Lucid presented a genuine as-applied challenge based on differences between Texas and Louisiana law and between Lucid and other manufacturers. The asserted consumer-protection rationale sits uneasily with precedent rejecting economic protectionism as a legitimate state interest, but the breadth of the circuit’s controlling precedent drove the result.
Concurrence Dubitante (Higginbotham, J.): No. While binding precedent required affirmance, Texas’s dealer-protection rationale doesn’t rationally apply to an electric-car manufacturer like Lucid that has no franchised dealers and therefore poses no threat of intra-brand competition. Restricting Lucid’s direct-sales model instead protects existing dealers from inter-brand competition, may increase consumer prices, and ultimately leaves consumers with fewer choices.
IFG Port Holdings, L.L.C. v. Lake Charles Harbor & Terminal District, No. 24-30552 (Stewart, Graves, Oldham, JJ.): Does knowing consent to magistrate-judge jurisdiction require actual knowledge of the nature and extent of a judge’s potential conflict?
Majority (Graves, J., joined by Stewart, J.): Yes. Affirming the order vacating the magistrate-judge referral, the Fifth Circuit held that constructive knowledge cannot support waiver of the constitutional right to adjudication by an Article III judge. The Port consented after the magistrate judge disclosed only that lead counsel’s daughter was her law clerk—not that she and counsel had shared a close family friendship for nearly forty years—and the evidence didn’t show that the Port actually knew the relationship’s extent before judgment. Because waiver of a fundamental right must be knowing, voluntary, and intelligent, the Port had no duty to investigate the judge’s private affairs based on facts that might have supplied constructive notice.
Dissent (Oldham, J.): No. Section 636(c)(4)’s extraordinary-circumstances requirement demands diligence and shouldn’t allow a party to avoid its consent by claiming a lack of actual knowledge despite circumstantial evidence of the relationship. The social connections were ordinary in a small legal community, the Port knew that counsel’s daughter clerked for the magistrate judge, and its lawyers pursued the relationship only after receiving an adverse judgment. A constructive-knowledge standard would better align with recusal, juror-disqualification, and arbitration law while discouraging losing parties from investigating judges’ private lives after trial.
Arguments
The Fifth Circuit will need a full pot for four en banc arguments on September 23 and September 24.
Texas A&M Queer Empowerment Council v. Mahomes, No. 25‑20108, consolidated with Spectrum WT v. Wendler, No. 26‑10127: May public-university officials bar student-organized drag performances from campus event spaces under Christian Legal Society v. Martinez, and do drag performances qualify as inherently expressive conduct protected by the First Amendment in the first place?
Appellants: JT Morris (Foundation for Individual Rights & Expression)
Appellees: Billy Cole (Office of Texas Solicitor General)
Ayestas v. Harris County District Attorney’s Office, No. 25-70014: Among other issues in this capital habeas case, did the Fifth Circuit have appellate jurisdiction to review a magistrate judge’s discovery order under the collateral-order doctrine, even though the affected party failed to object to that judge’s order in the district court?
Appellants: Lee Kovarsky (University of Texas School of Law)
Appellees: Meagan Scott (Harris County District Attorney’s Office)
Amicus Curiae Texas Department of Criminal Justice-Correctional Institutional Division: William Peterson (Solicitor General of Texas)
Aramark Services, Inc. Group Health Plan v. Aetna Life Insurance Co., No. 24-40323: Did the district court correctly (1) retain the threshold decision on arbitrability under a clause with an equitable‑relief carve‑out and (2) treat a plaintiff’s ERISA fiduciary‑breach claims as seeking equitable relief, thus outside the scope mandatory arbitration?
Appellants: Charles McCloud (Williams & Connolly)
Appellees: Charles Fowler (McKool Smith)
Sosnava Rodriguez v. Ortega, Nos. 26-50183, 26-50219, 26-50221: 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?
Appellants: Drew Ensign (Department of Justice, Civil Division)
Appellees: Rebecca Cassler (American Immigration Council)
All arguments can be livestreamed at this link.
15COA
We close with the Fifteenth Court, which served up a divided mandamus decision and has three arguments brewing.
Opinion
In re Powered by People, No. 15-25-00140-CV (orig. proceeding): After the State obtained a temporary restricting order that restricted fundraising to support quorum-breaking Texas legislators but subsequently nonsuited its claims for injunctive relief, was the relators’ challenge to the TRO’s validity moot despite a pending criminal-contempt motion?
Majority (Brister, C.J., joined by Field, J.): Yes. The possibility of criminal contempt wasn’t sufficiently concrete because the contempt motion had not been heard or decided, and the TRO’s validity could be addressed on a fuller record if the State pursued contempt. The State’s nonsuit rendered moot the challenges to the TRO, the denial of expedited discovery, and the refusal to transfer the primarily injunctive suit, so those orders were vacated. Finally, the Tarrant County court properly entered its anti-suit TRO because both counties had proper venue and its action was filed 39 minutes before the El Paso County action, giving it dominant jurisdiction, but the order required modification to permit proceedings directed by the Fifteenth Court in the related appeal.
Concurrence in Part and Dissent in Part (Farris, J.): No. As other sister courts have held, the dispute remains live based on the State’s pending contempt motion. That motion depends on whether the TRO was valid, and a party can’t be held in contempt for violating a void order. On the merits, the TRO was void under Rule 683 because it offered only a conclusory finding of irreparable injury, and its restrictions on political fundraising and expenditures were an unconstitutional prior restraint unsupported by evidence of imminent and irreparable harm or narrow tailoring.
Arguments
The Court’s September sitting is scheduled for September 17 at 9:30 am:
City of Coppell v. Hancock, No. 15-25-00022-CV: Did the trial court err by invalidating Comptroller Rule 3.334, which governs where sales are consummated for local-sales-tax purposes, as contrary to the Tax Code and the Texas APA’s rulemaking requirements?
Appellant: Richard Phillips (Holland & Knight)
Appellee / Cross-Appellant: Kyle Counce (Texas Attorney General’s Office)
Cross-Appellee: Cindy Bourland (Bourland Law Firm)
Buckingham v. Lone Oak Club, LLC, No. 15-25-00133-CV: Did the trial court err in holding that Lone Oak Bayou is a navigable stream whose bed was conveyed to the private landowner, despite remand instructions from the Supreme Court of Texas?
Appellant: Debrorah Trejo (Kemp Smith)
Appellee: E.R. Norwood (The Norwood Law Firm)
In re Beard, No. 15-26-00136-CV: Does the Texas Business Court have subject-matter jurisdiction over an individual’s claims based on a “qualified transaction” between the defendant and a nonparty when the individual didn’t participate in that transaction, and when the petition asserts no derivative-liability claim?
Relator: Lawson Sadler (Burns Charest)
Real Parties in Interest: Ryan Paulsen (Haynes Boone)
All arguments can be livestreamed at this link.
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The Fourteenth Court’s opinion was issued per curiam from a panel consisting of Judges Hart, McLaughlin, and Antú.
Justice Hawkins didn’t participate in the decision.
Justices Bland and Sullivan didn’t participate in the decision.
Justice McLaughlin authored the Fourteenth Court’s opinion, joined by Chief Justice Christopher and Justice Jewell.
The First Court’s opinion was issued per curiam from a panel consisting of Justices Guerra, Guiney, and Johnson.
Justice Wise authored the Fourteenth Court’s opinion, joined by Chief Justice Christopher and Justice Hassan.
Judge Wiener was unable to participate, so the opinion was issued by a quorum.
Judges Southwick and Graves were recused.
Judge Wiener was unable to participate, so the opinion was issued by a quorum.