26-02: En Banc-A-Palooza
A look back to the weeks of January 5 and 12, with help from Lollapalooza
Welcome back to 1910 & Beyond, your regular briefing on the ever-evolving world of appellate law in Houston and beyond. Each post spotlights notable developments from Houston’s two courts of appeals—the First and Fourteenth—as well as from other state and federal appellate courts across Texas and nationwide. From time to time, I also share practical tips on oral and written advocacy. I hope you find these posts useful to your practice and your understanding of what’s happening in Texas appellate law.
To those who have already subscribed, thank you. If you haven’t yet, I hope you’ll consider joining us!
Greetings from across the pond in London! I’m enjoying a trip to the Big Smoke—and now attempting to determine whether there’s any way to pro hac into the UK legal system so I can appear as a barrister.
The trip has been excellent, but it brought one unforeseen obstacle: the Texas courts’ website apparently doesn’t approve of British visitors. As a result, I’ve been unable to access some of my usual sources—including providing certain links and doing the normal dive into upcoming arguments. I intend to update this post once I’m back stateside. Thanks for your patience this week.
And now, joined by my excellent bandmates Kate Ring and Fraser Holmes, let’s get to the stage . . .
Opening Statement
The Fifth Circuit is kicking off 2026 like a festival-lineup drop: the full Court will be in New Orleans for seven en banc sittings from January 20–23—four days, seven headliners.1 If that sounds like a lot of main‑stage sets, it is. As Bloomberg Law’s Jacqueline Thomsen reports—in a story I was pleased to speak with her for—hearing seven cases in one sitting is “the most the full federal appeals court has taken up at one sitting in at least 25 years.”2
Admittedly, recent terms have trended toward more en banc grants. From 2010 to 2017, the Court averaged five grants a year; since 2018, it’s averaging 6.5. Even against that upswing, 2026 opens as an outlier: it’s already the third‑busiest en banc year of the last 15—and we haven’t even reached Valentine’s Day, much less the encore.
The Court’s growing use of en banc rehearing is noteworthy given that both the Federal and Circuit Rules generally disfavor it. As the Fifth Circuit has explained, every petition “must be studied by every active judge,” which is like asking the full festival crew to work every stage at once—a serious call on limited resources.3 So serious, in fact, that the Fifth Circuit has warned it is “fully justified in imposing sanctions on its own initiative” for a manifest abuse of the en banc process.4
So when is en banc review appropriate? Think of Rule 40 as the festival map: four stages—and only four—where your case can play:
Main Stage (Intra‑Circuit): When the panel decision conflicts with prior Fifth Circuit precedent.5
Headliner Guest Spot (Supreme Court): When the panel decision conflicts with Supreme Court precedent.6
Tour Clash (Sister Circuits): When the panel decision conflicts with a sister circuit.7
The Primetime Stage (Exceptional Importance): When the proceeding presents one or more questions of exceptional importance.8
That last stage is the most subjective—reasonable listeners disagree on what deserves the prime slot. But it appears to be the main ticket that the Court punched in convening this week’s seven‑show run. And these seven cases—the Court’s own festival lineup—have already drawn attention from court‑watchers and curious passersby alike. Grab your tickets: En Banc‑A‑Palooza is on.
Arguments
January 20
Roake v. Brumley, No. 24-30706, consolidated with Nathan v. Alamo Heights Independent School District, No. 25-050695: Does a plaintiff have standing under Article III to challenge a state law requiring all public school classrooms to post a Ten Commandments display before the law is implemented, and is such a law requiring the Ten Commandment’s display unconstitutional under the First Amendment’s Establishment Clause?
Roake Appellants: J. Benjamin Aguiñaga (Office of Louisiana Attorney General)
Nathan Appellants: William Peterson (Office of Texas Attorney General)
Appellees: Jonathan Youngwood (Simpson Thatcher & Bartlett)
January 21
Holberg v. Guerrero, No. 21-70010: Was the State required under Brady v. Maryland to disclose that a key witness was a paid confidential informant when other evidence demonstrated the defendant was guilty of the alleged offense—and was the finding that this fact was not required to be disclosed an unreasonable application of federal law that can support a claim for habeas relief under the Antiterrorism and Effective Death Penalty Act?
Appellant: David Abernethy (Faegre Drinker Biddle & Reath)
Appellee: William Cole (Office of Texas Attorney General)
Airlines for America v. Department of Transportation, No. 24-60231, consolidated with Spirit Airlines, LLC. v. Department of Transportation, No. 24-60373: After finding that a rule promulgated by the Department of Transportation failed the notice-and-comment requirements under the Administrative Procedure Act, was the panel required to vacate the Rule along with its order remanding the case?
Airlines for America Petitioners: Shay Dvoretzky (Skadden, Arps, Slate, Meagher & Flom)
Spirit Airlines Petitioners: Donald Crowell (Kirstein & Young)
Respondent: Brian Springer (Department of Justice)
January 22
United States v. Texas, No. 24-50149: Many issues relating to Texas S.B. 4, which creates state-law offenses related to immigration enforcement:
Does an immigration advocacy organization have Article III standing to enjoin the implementation of a state law that prohibits noncitizens from entering or reentering the state where the law allegedly impacts their ability to provide services to immigrants?
Is the determination that the State of Texas faces an actual invasion or is in imminent danger of an invasion a non-justiciable political question?
Is a suit against the Director of the Texas Department of Public Safety based on the implementation of a state law prohibiting noncitizens from entering or reentering the state barred by the Eleventh Amendment?
Does a facial challenge to a statute’s constitutionality fail if a single, hypothetical application of the law may be legitimately enforced?
Is state law regarding entry and reentry of noncitizens precluded by federal law under the Supremacy Clause?
Did the panel err in concluding the balance of equities supported preliminarily enjoining a state law prohibiting noncitizens from entering or reentering the state?
As of this posting, no arguing counsel has been definitively identified.
W.M.M. v. Trump, No. 25-10534: Does a court have authority to determine whether an “invasion” has occurred sufficient to trigger application of the Alien Enemies Act, or is that determination left to the Executive Branch? And did the panel err in issuing a preliminary injunction blocking the removal of Venezuelan nationals based on its conclusion that their removal was not supported because there was no “predatory invasion,” as required by the Alien Enemies Act?
Appellants: Lee Gelernt (American Civil Liberties Union)
Appellee: Drew Ensign (Department of Justice)
January 23
Spectrum WT v. Wendler, No. 23-10994: Does the First Amendment prohibit public university officials from barring an on-campus drag performance organized by a student organization?
Appellants: JT Morris (Foundation for Individual Rights and Expression)
Appellees: Joseph Mazzara (Department of Homeland Security); Allison Marie Collins (Foster Swift Collins & Smith)
Bay Area Unitarian Universalist Church v. Ogg, No. 23-20165: Does a party have Article III standing to challenge a statute that creates defenses against charges for trespass against individuals carrying firearms that do not exist against other charges for trespass?
Appellants: Charlotte Taylor (Jones Day)
Appellees: Donald Hightower (City of Houston); Moustapha Gassama (Harris County); Sean Higgins (Lewis Brisbois Bisgaard & Smith)
1910
Orders and Opinions
And now, to our local courts here in Houston. Below, I ordinarily highlight one notable opinion from the First and Fourteenth Courts, each court, followed by brief summaries of others worth noting.
Features
While usually I discuss one opinion from both the First and Fourteenth Courts, this week I’m going to do a deeper dive on one opinion that has been the talk of Texas attorneys who litigate high-stakes personal-injury disputes.
Exxon Mobil Corp. v. Brown, No. 14-24-00104-CV (Christopher, C.J., Wise, Jewell, JJ.): In the wake of a $27 million verdict from a plant explosion, the Fourteenth Court reversed and rendered in part and reversed and remanded in part—declining Exxon’s charge‑error challenges but correcting several noneconomic‑damages awards. The panel upheld some categories (including future medicals for two plaintiffs and one plaintiff’s future earning‑capacity award), rendered take‑nothing on others (notably physical‑impairment damages for two plaintiffs and future mental anguish for one), and sent the rest back for a new trial on liability and damages because liability was contested.
The charge. Exxon argued the liability question should have asked whether Exxon’s negligence proximately caused the injuries rather than the occurrence (the fire). The court disagreed, holding the “occurrence” submission permissible given the two‑step causation structure and the record. The panel also held that the trial court did not abuse its discretion by declining to bake Parkway’s “nature, duration, and severity” language into the mental‑anguish definition. The analysis here turns less on the normative question (should courts give the instruction?) and more on the legal standard (did the trial court abuse its discretion by refusing it?).
The headliner: noneconomic damages. The court distilled guideposts that will echo beyond this case. First, juries have discretion, but not “carte blanche”: there must be an evidentiary basis, and a number cannot be “simply pick[ed] . . . and put . . . in the blank.” Second, “large awards have historically received the most judicial scrutiny,” and seven‑figure mental‑anguish awards tend to be paired with shocking or catastrophic injuries. Third, case comparisons can serve as reasonable guideposts when assessing excessiveness. Fourth, though not required, time‑based formulas can help provide a rational basis for a mental‑anguish award—e.g., a “per waking hour” ask. (I have questions about this fourth guidepost.9)
Applying the guideposts. The court found two of the plaintiffs’ mental‑anguish awards excessive and rendered as to a third plaintiff, whose evidence did not meet the “nature, duration, and severity” threshold.
Other noneconomic categories. Two additional rulings stood out. On physical impairment, the charge used an atypically strict conjunctive definition—loss of a former lifestyle that is “substantial and extremely disabling.” Because plaintiffs did not object, the evidence was measured against that wording. While their proof may have satisfied the usual “substantial” test, it did not also prove “extremely disabling.” And on disfigurement, scars can speak without visual exhibits. The court declined to impose a rule requiring photos or an in‑court display of a scar; instead, the absence of visuals goes to the jury’s credibility assessment. Here, testimony about the scars supported the awards.
There’s more to the opinion—read the whole thing—but those are the highlights.
N.B.: For big‑ticket noneconomic asks, give the jury an evidentiary setlist—concrete nature/duration/severity proof plus some evidentiary framework, like a time‑based formula if it fits. For your verdict to survive the main-stage appellate spotlight, be prepared to offer case comparisons. And don’t take the stage without first rehearsing the charge: If your charge uses incorrect wording, you’ll be stuck with it on appeal.
In Brief
1COA
Rodeo Resources, Inc. v. RSM Production Corp., No. 01-24-00119-CV (Rivas-Molloy, Gunn, Caughey, JJ.): Reversing the denial of a motion to compel arbitration, the First Court first confirmed its jurisdiction over the appeal, despite the Rodeo defendants’ status as nonsignatories to the arbitration agreement. The court next held that direct‑benefits equitable estoppel requires RSM to arbitrate its money‑had‑and‑received claim against nonsignatory Rodeo defendants. RSM’s theory depends on (and cannot stand without) the broader agreements, which created and governed the joint account from which the challenged payments allegedly flowed. Because the dispute falls within the arbitration clauses’ scope, arbitration was required.
The University of Texas M.D. Anderson Cancer Center v. Bowman, No. 01‑24‑00634‑CV (Rivas‑Molloy, Guiney, Morgan, JJ.): Reversing the denial of M.D. Anderson’s plea to the jurisdiction and dismissing for lack of subject‑matter jurisdiction, the First Court held that the Texas Tort Claims Act’s limited waiver did not apply because the Bowmans tied their injury to chemotherapy. But undisputed jurisdictional evidence showed that M.D. Anderson did not administer chemotherapy, but immunotherapy—which was not shown to cause the complained‑of injury. Because the jurisdictional evidence conclusively negated any “use of tangible personal property” by M.D. Anderson causing the injury, M.D. Anderson’s plea should have been granted.
Li v. TGS‑NOPEC Geophysical Co., No. 01‑24‑00087‑CV (Rivas‑Molloy, Gunn, Caughey, JJ.): Did the trial court reversibly err by refusing to submit permissive “pretext” jury instructions in this Texas Labor Code discrimination/retaliation case, and was the verdict factually insufficient?
Majority (Caughey, J., joined by Rivas‑Molloy, J.; joined by Gunn, J. except as to Part I.B.): No and no. Trial courts have broad discretion over jury instructions, and even assuming the requested pretext instructions were proper, they were not reasonably necessary to enable the jury to render a proper verdict because the charge already set out the ultimate burden of proof and allowed the jury to draw reasonable inferences from circumstantial evidence—points counsel argued in closing. The court also rejected Li’s factual‑insufficiency challenge, emphasizing the jury’s role as sole judge of credibility and concluding the adverse findings were not against the great weight and preponderance of the evidence.
Concurrence (Gunn, J.): No and no. Pretext instructions should never be given in Texas courts: they “tilt” or “nudge” the jury, amount to impermissible comments on the weight of the evidence under Rule 277, and are unnecessary surplusage.
14COA
South China Management, LLC v. Lin, No. 14‑24‑00879‑CV (Jewell, McLaughlin, Antú, JJ.): Affirming in part and reversing and rendering in part in a wrongful-termination dispute, the Fourteenth Court dismissed three nonemployer defendants for lack of specific personal jurisdiction. The undisputed evidence showed that SCM alone hired and paid the plaintiff, and conclusory alter‑ego allegations did not justify imputing contacts. But it affirmed the special appearance’s denial as to SCM: SCM purposefully availed itself by operating in Texas, placing the plaintiff in Houston, and allegedly directing criminal acts in Texas, contacts substantially connected to the operative facts.
Harris Central Appraisal District v. LXMI Copper Cove Property Owner, LLC, No. 14‑24‑00624‑CV (Bridges, Boatman, Antú, JJ.): Affirming the trial court’s denial of HCAD’s plea to the jurisdiction in a property‑tax valuation suit, the Fourteenth Court held the owner presented competent proof that it timely mailed its tax payment by the delinquency date, satisfying the Tax Code’s mail‑deposit rule. HCAD’s hearsay and personal‑knowledge complaints were defects of form that it failed to preserve, and its “conclusory” challenge to the owner’s affidavits failed where the record included an agent’s affidavit, dated check, receipts, and internal payment documentation referencing an accepted postmark.
Abira Medical Laboratories, LLC v. Greater Houston Laboratory Services, L.L.C., No. 14‑24‑00194‑CV (Wise, Bridges, Antú, JJ.): Affirming in part and reversing and remanding in part, the Fourteenth Court first held that the plaintiff failed to preserve any legal‑sufficiency challenge to the jury’s no‑interference findings, so that verdict stands. Second, it affirmed sanctions under Chapter 10 because some evidence showed that the plaintiff sued an attorney without a reasonable pre‑filing inquiry. Third, it upheld the trial court’s order granting the defendants leave to amend post‑verdict to request attorneys’ fees—but found the amount awarded legally insufficient, requiring redetermination.
Arguments
1COA
Houston Int’l Mgmt. & Trade, Inc. v. Peacock Shipping & Trading, Inc., No. 01-24-00542-CV (Adams, C.J.; Gunn, Johnson, JJ.)
Argument: January 20 at 1:30 pm
Phipps v. Cord Largo, No. 01-25-00307-CV (Adams, C.J.; Gunn, Johnson, JJ.)
Argument: January 20 at 2:30 pm
Ortego v. State, Nos. 01-24-00878-CR, 01-24-00879-CR, 01-24-00880-CR, 01-24-00881-CR (Rivas-Molloy, Guiney, Morgan, JJ.)
Argument: January 21 at 1 pm
Kassab v. Pohl, No. 01-24-00220-CV (Rivas-Molloy, Guiney, Morgan, JJ.)
Argument: January 21 at 2:30 pm
Brown v. State, No. 01-24-00559-CR (Adams, C.J.; Gunn, Johnson, JJ.)
Argument: January 27 at 1:30 pm
14COA
Enterprise Houston Ship Channel, L.P. v. AOT Energy Americas LLC, No. 14-25-00022-CV (Christopher, C.J.; Wilson, Bridges, JJ.)
Argument: January 20 at 2 pm
Hart v. San Jacinto River Authority, No. 14-24-00786-CV (Jewell, McLaughlin, Antú, JJ.)
Argument: January 22 at 2 pm
McNair v. Palmetto Trust Co., No. 14-25-00072-CV (Jewell, Wilson, Boatman, JJ.)
Argument: January 22 at 2 pm
Levya v. State, No. 14-24-00960-CR (Jewell, McLaughlin, Bridges, JJ.)
Argument: January 29 at 2 pm
Cotton v. A&D Interests, Inc., No. 14-25-00120-CV (Jewell, McLaughlin, Antú, JJ.)
Argument: January 29 at 2 pm
& Beyond
Set break over: grab your wristband—next stop, & Beyond.
SCOTUS
Opinions
Main-stage alert: the Supreme Court of the United States has issued its first merits opinions of OT2025.
Bowe v. United States, No. 24-5438 (Eleventh Circuit): Does Section 2244(b)(1) of the Antiterrorism and Effective Death Penalty Act bar the Court’s review of a federal prisoner’s request to file a second or successive Section 2255 motion for postconviction relief, and does Subsection 2244(b)(1) apply to second or successive motions filed under Section 2255(h) by federal prisoners challenging their convictions or sentences?
Majority (Sotomayor, J., joined by Roberts, C.J.; Kagan, Kavanaugh, Jackson, JJ.): No and no.
On jurisdiction, Section 2244(b)(3)(E)’s ban on certiorari from panel‑authorization decisions does not clearly extend to federal prisoners. Section 2255(h)’s cross‑reference to Section 2244(b)(3) incorporates only the certification procedures in § 2244(b)(3)(A)–(D); it does not unambiguously include the separate post‑certification certiorari bar in § 2244(b)(3)(E). Congress must “speak clearly” to strip the Court’s certiorari jurisdiction, and it did not do so here.
On the merits, Section 2244(b)(1) by its plain text applies to “a second or successive habeas corpus application under Section 2254.” Only state prisoners file under Section 2254; federal prisoners proceed under Section 2255. Section 2255(h) supplies the two—and only two—gateways for federal prisoners (newly discovered evidence or a new, retroactive constitutional rule). The Eleventh Circuit erred in applying § 2244(b)(1)’s old‑claim bar to an application for panel authorization challenging a federal conviction.
Concurrence (Jackson, J.): No and no. On jurisdiction, Section 2244(b)(3)(E) is best read to insulate only a panel’s proper gatekeeping determination. Because the Eleventh Circuit dismissed for lack of jurisdiction under the wrong standard instead of applying § 2255(h)’s criteria, there was no “grant or denial” within the meaning of § 2244(b)(3)(E).
Dissent (Gorsuch, J., joined in full by Thomas and Alito, JJ., and as to Part I by Barrett, J.): Yes and yes.
On jurisdiction, Section 2255(h)’s cross‑reference incorporates all of Section 2244(b)(3)—including its certiorari bar. The Court thus cannot review panel denials in Section 2255 cases; circuit splits can be resolved via certified questions or original habeas proceedings.
On the merits, Section 2244(b)(1)’s “do‑over” bar applies to federal prisoners as well as state inmates because § 2244(b)(3)(C) requires second‑or‑successive filings to satisfy the “requirements of this subsection”—necessarily including subsection (b)(1).
Case v. Montana, No. 24‑624 (Montana Supreme Court): Must police officers have probable cause—rather than an objectively reasonable basis—before entering a home without a warrant to render emergency aid to an occupant threatening self‑harm?
Majority (Kagan, J., for unanimous Court): No. The Court reaffirms Brigham City v. Stuart, which permits warrantless entry when officers have “an objectively reasonable basis for believing” an occupant is seriously injured or imminently threatened with such harm. The probable‑cause standard is “peculiarly related to criminal investigations” and has no place in the emergency‑aid context, a non‑investigatory setting where officers must act to prevent serious injury. Here, based on the 911 call, a gunshot, prior suicidal behavior, silence at the door, and an empty holster plus a possible suicide note visible through an open window, the officers reasonably believed Case had shot himself or was about to—satisfying the objective‑reasonableness standard.
Concurrence (Sotomayor, J.): No. Responding to mental‑health crises poses heightened risks. In some situations—particularly where suicide‑by‑cop is a concern—entry may not be objectively reasonable, and officers should weigh de‑escalation, crisis‑intervention resources, or communication from outside the home. Here, despite indications of possible suicide‑by‑cop, the stronger evidence suggested an already‑occurred or imminent self‑inflicted shooting, justifying entry.
Concurrence (Gorsuch, J.): No. The emergency‑aid rule tracks longstanding common‑law necessity principles (including the Restatement (Second) of Torts), not a free‑floating balancing test. Historically, private citizens and officers may enter when reasonably necessary to prevent grave harm—and only to the extent needed—mirroring the Fourth Amendment’s limits. The decision aligns with that tradition.
Bost v. Illinois State Board of Elections, No. 24‑568 (Seventh Circuit): Does a political candidate have Article III standing to challenge a state rule requiring election officials to count mail‑in ballots postmarked by election day but received up to two weeks later?
Majority (Roberts, C.J., joined by Thomas, Alito, Gorsuch, Kavanaugh, JJ.): Yes. A candidate has a concrete, particularized interest in the lawful administration of the election in which he is competing. While all voters share an interest in accuracy, candidates have an “undeniably different—and more particularized—interest.” Unlawful vote counting can injure a candidate through added campaign costs, diminished vote share, reputational harm, and threats to the election’s integrity and legitimacy. The Court rejects the Seventh Circuit’s rule requiring a substantial risk of loss or inability to meet a vote threshold; that approach pushes litigation to the brink of, or just after, election day and invites speculative outcome predictions.
Concurrence in the Judgment (Barrett, J., joined by Kagan, J.): Yes, but on narrower grounds. Standing exists not because candidates enjoy a special interest in election outcomes, but because Bost plausibly alleged a traditional pocketbook injury: his campaign must spend money to monitor late‑arriving ballots to mitigate a reasonably probable risk of reputational or electoral harm from discrepancies or missing information. Such mitigation costs are a concrete injury. The majority instead crafts a “bespoke” standing rule for candidates that dispenses with real harm.
Dissent (Jackson, J., joined by Sotomayor, J.): No. A generalized interest in fair elections is shared by all voters and is not particular to candidates. The majority abandons longstanding Article III limits, adopting a “harm‑free” theory that permits suits without any allegation of substantial risk of loss, reputational injury, or financial harm. The concurrence’s pocketbook theory also fails; plaintiffs cannot manufacture standing by voluntarily incurring costs to guard against speculative future injuries. More broadly, the ruling invites widespread, destabilizing post‑election challenges by unsuccessful candidates.
Barrett v. United States, No. 24‑5774 (Second Circuit): When a single act violates both 18 U.S.C. § 924(c)(1)(A)(i) (using a firearm during a crime of violence or drug trafficking crime) and § 924(j) (causing death in the course of that § 924(c) violation), may the Government obtain two convictions—one under each subsection—or only one
Majority (Jackson, J., for unanimous Court as to Parts I, II, III, IV-A, and IV-B; and joined by Roberts, C.J.; Sotomayor, Kagan, JJ. as to Part IV-C)10: Only one. Under Blockburger, if two crimes define the same offense (neither requires proof of a fact the other does not), multiple convictions are barred absent a clear statement from Congress. Sections 924(c)(1)(A)(i) and 924(j) describe the same offense, and neither text nor structure clearly authorizes dual convictions. Congress used “in addition to” language in Section 924(c) to permit cumulative punishment with predicate offenses, but included no similar language allowing cumulative convictions between Sections 924(c)(1) and 924(j). The consecutive‑sentence mandate in Section 924(c) speaks to how sentences run after valid multiple convictions, not whether multiple convictions may exist at all. Structural and historical arguments do not overcome the Blockburger presumption. Section 924(j) is best read as an alternative penalty scheme, not an add‑on offense stacked atop Section 924(c).
Concurrence in Part (Gorsuch, J.): Only one—but the Court must eventually address confusion in its Blockburger jurisprudence. The Double Jeopardy Clause likely bars multiple convictions in the same proceeding for the “same offense,” regardless of congressional intent. If the Constitution forbids two convictions for the same offense in successive prosecutions, why tolerate them in concurrent prosecutions? The Court should consider abandoning the presumption.
The 1992 Lollapalooza Festival.
Orders
In addition to several GVRs, the Court granted certiorari in a number of cases over the last two weeks:
Cisco Systems, Inc. v. Doe I, et al., No. 24-856 (Ninth Circuit): Does the Alien Tort Statute allow a judicially-implied private right of action for aiding and abetting, and does the Torture Victim Protection Act allow a judicially-implied private right of action for aiding and abetting?
FCC v. AT&T, No. 25-406 (Fifth Circuit), consolidated with Verizon Communications, Inc. v. FCC, No. 25-567 (Second Circuit): Does the Communications Act of 1934 violate the Seventh Amendment and Article III by authorizing the FCC to order the payment of monetary penalties for failing to reasonably safeguard customer data, without guaranteeing the defendant carrier a right to a jury trial?11
Bondi v. Lau, No. 25-429 (Second Circuit): To remove a lawful permanent resident who committed an offense listed in Section 1182(a)(2) and was subsequently paroled into the United States, must the Government prove that it possessed clear and convincing evidence of the offense at the time of the lawful permanent resident's last reentry into the United States?
Stripetech v. SEC, No. 25-466 (Ninth Circuit): May the SEC seek equitable disgorgement under Sections 78u(d)(5) and (d)(7) without showing that investors suffered pecuniary harm?
Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., No. 24-889 (Federal Circuit): When a generic drug label fully carves out a patented use, are allegations that the generic drugmaker calls its product a “generic version” and cites public information about the branded drug (e.g., sales) sufficient to plead induced infringement of the patented use? And does a complaint state a claim for induced infringement of a patented method if it does not allege any instruction or other statement by the defendant that encourages, or even mentions, the patented use?
Monsanto Co. v. Durnell, No. 24-1068 (Missouri Court of Appeals.): Does the Federal Insecticide, Fungicide, and Rodenticide Act preempt a label-based failure-to-warn claim where EPA has not required the warning?
Chatrie v. United States, No. 25-112 (Fourth Circuit): Does the execution of a geofence warrant violate the Fourth Amendment?
Anderson v. Intel Corp. Investment Policy Committee, No. 25-498 (Ninth Circuit): For claims predicated on fund underperformance, does pleading that an Employee Retirement Income Security Act fiduciary failed to use the requisite “care, skill, prudence, or diligence” under the circumstances and thus breached ERISA’s duty of prudence when investing plan assets require alleging a “meaningful benchmark”?
The Court also summarily denied one pending application for stay.
PG Publishing Co. v. NLRB, No. 25A725 (Third Circuit): Should the Supreme Court stay an injunction requiring changes to the Pittsburgh Post-Gazette’s employee health insurance plan?
And finally, the Court called for the views of the Solicitor General in two cases:
Wells Pharma of Houston, LLC v. Zyla Life Sciences, LLC, No. 25-257 (Fifth Circuit): Does the Federal Food, Drug, and Cosmetic Act preempt private state-law unfair competition and consumer protection claims premised on the marketing of compounded drugs without premarket approval?12
General Dynamics Corp. v. Scharf, No. 25-293 (Fourth Circuit): For purposes of tolling the Clayton Act’s statute of limitations, do plaintiffs adequately plead that defendants engaged in fraudulent concealment by alleging that defendants maintained an unwritten agreement?
Arguments
The Court will hear three cases the week of January 19 before taking a break from oral argument until late February.
January 20
Wolford v. Lopez, No. 24-1046 (Ninth Circuit): May Hawaii presumptively prohibit the carry of handguns by licensed concealed-carry permitholders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier?
M & K Employee Solutions, LLC V. Trustees of the IAM Pension Fund, No. 23-1209 (D.C. Circuit): Does 29 U.S.C. § 1391’s instruction to compute withdrawal liability “as of the end of the plan year” require the plan to base the computation on the actuarial assumptions most recently adopted before the end of the year, or does it allow the plan to use different actuarial assumptions that were adopted after, but based on information available as of, the end of the year?
January 21
Trump v. Cook, No. 25A312 (D.C. Circuit): Should the Supreme Court stay a district court’s ruling preventing the President from firing a member of the Federal Reserve Board of Governors?
All oral arguments can be livestreamed here.
SCOTX
We travel next to Austin, where the Supreme Court of Texas takes the stage.
Opinions
The Court issued one opinion from its merits docket:
Shamrock Enterprises, LLC v. Top Notch Movers, LLC; No. 24-0581 (Thirteenth Court): In a restricted appeal from a no‑answer default judgment, did the record affirmatively show strict compliance with Texas’s substituted‑service statute—specifically the requirement that process be forwarded to the defendant’s “most recent address on file with the Secretary of State” under Texas Business Organizations Code § 5.251(1)(A)?
Majority (Devine, J., for unanimous Court): No. Even assuming (without deciding) that Shamrock—a foreign LLC providing services in Alabama and Louisiana—was amenable to substituted service under Section 5.251(1)(A), the record did not show that the Secretary of State actually forwarded process to the most recent address on file as the statute requires. A Whitney certificate is conclusive only as to the fact of forwarding, not the correctness of the forwarding address. Here, the certificate reflected forwarding to a Foley, Alabama address but did not state that the address was the one “on file” with the Secretary, and nothing else in the record supplied that missing fact. Because strict compliance is required, the lower courts erred by presuming the Whitney certificate was irrebuttable proof of proper service.
Concurrence (Blacklock, C.J., joined by Lehrmann, Busby, Young, and Sullivan, JJ.): No. While the record fails to show strict compliance with the substituted‑service statute, even perfect statutory compliance does not satisfy constitutional due process if the plaintiff does not take reasonable steps to provide the defendant with actual notice. Rooted in longstanding principles of natural justice, a person cannot be bound without meaningful notice. When a plaintiff learns service has failed—as Top Notch did when its certified mailing was returned “Vacant, Unable to Forward”—due process requires additional reasonable efforts, not mere box‑checking. Top Notch had multiple alternative contacts (a prior address, a Louisiana address from invoices, a phone number, and an email) but pursued none. Texas courts should require default‑judgment seekers to explain what further steps they took after an initial attempt failed—a rule the Court should consider making explicit in a future case.
The Supreme Court also issued two opinions without oral argument:
4 Families of Hobby, LLC v. City of Houston, No. 24-0796 (First Court): Is jurisdictional discovery warranted in a suit by entities that lost out in their bid to oversee concessions at Hobby Airport alleging, among other claims, that the City of Houston violated Section 252.021(a) of the Texas Local Government Code by entering into a contract that required an expenditure of more than $50,000 without following one of the statute’s prescribed procedures?13
Majority (per curiam): Yes. Texas courts routinely consider evidence when a plea to the jurisdiction challenges the existence of jurisdictional facts. Here, the City’s plea contested whether the concessions agreement “requires an expenditure of more than $50,000” by the City. Because the contract can reasonably be read to require City expenditures exceeding $50,000, plaintiffs are entitled to jurisdictional discovery.
1 Coventry Court, LLC v. The Downs of Hillcrest Residential Assoc., Inc., No. 24-1047 (Fifth Court): Did the court of appeals err in dismissing Coventry’s appeal on the grounds that Coventry had waived its appellate rights pursuant to a settlement agreement?
Majority (per curiam): Yes. Appellate courts not only have the inherent power to determine their own jurisdiction; they have the obligation to do so. When jurisdiction is challenged, the court should, when necessary, review the entire record to see if any evidence supports jurisdiction. Coventry contested the settlement agreement’s validity in the trial court. The court required Coventry’s management to sign The Downs’ version of the agreement under threat of contempt. Given these facts, the trial court erred by treating the agreement (and its appellate waiver) as conclusive without considering Coventry’s validity challenge.
Finally, the Court answered a certified question from the Fifth Circuit:
Umphress v. Steel, in his Capacity as Chair of the State Commission on Judicial Conduct, No. 25-0288: Under the Texas Constitution, does Canon 4A(1) of the Texas Code of Judicial Conduct (concerning a judge’s extra-judicial activities) prohibit judges from publicly refusing, for moral or religious reasons, to perform same-sex weddings while continuing to perform opposite-sex weddings?
Majority (per curiam): No. During the appeal’s pendency, the Court adopted a comment to Canon 4, clarifying that “[i]t is not a violation of these canons for a judge to publicly refrain from performing a wedding ceremony based upon a sincerely held religious belief.”
Orders
As usual, the Court’s customary Friday orders lists were dominated by denials of petitions for review and for writs of mandamus.14 But the Court granted several petitions for review, setting the following cases for argument:
Fasken Oil & Ranch, Ltd., et al. v. Puig, et al., No. 24-1033 (Fourth Court): Did the court of appeals err in holding, as a matter of law, that the phrase “free of cost forever” in an oil and gas royalty agreement, without more, constitutes the parties’ agreement that the royalty is free from postproduction costs?
Staub. v. BBVA USA, No. 24-1057 (Fifth Court): Is forfeiture of all payments and interest on a home equity loan an available remedy where (a) the parties’ contract incorporates the terms of Article XVI, Section 50(a)(6) of the Texas Constitution; (b) the lender admits it breached the parties’ home equity agreement by charging an excessive interest rate and misapplying certain payments; (c) the lender did not offer to refinance the loan; and (d) the lender allegedly failed to timely cure its breaches in accordance with the terms of the contract?
State v. City of McAllen, No. 24-1060 (Third Court): Did the Cities establish subject-matter jurisdiction over their claims, and do two Senate Bills allowing wireless network providers to install network nodes in public rights-of-way and setting up a structure for the providers to pay annual right-of-way costs to the affected cities violate the Gift Clause of the Texas Constitution?
Laboratory Corporation of America Holdings v. State, No. 25-0127 (First Court): Does Subsection (2) of the Texas Medicare Fraud Prevention Act require proof of materiality, and can the State survive summary judgment on materiality grounds when it allegedly paid a defendant’s claims for years with knowledge of the alleged fraud and offered no proof of materiality?15
Wang v. Whittenburg, No. 25-0350 (Seventh Court): When attorney’s fees in other litigation result from a parties’ breach of a settlement agreement, are those fees recoverable as actual damages?
The Court also set two original proceedings for argument. The key legal issues presented by each petition are:
In re Searcy, No. 25-0098 (Fifth Court): Did the trial court err in compelling the disclosure of communications purportedly protected by the attorney-client privilege?
In re Reed, No. 25-0149 (First Court): Under Loper Bright v. Raimondo, should the Supreme Court abrogate—or substantially narrow—the primary-jurisdiction doctrine?16
Arguments
The Court’s next oral argument sitting begins February 10.
CA5
We return to New Orleans for a festive jazz set at the John Minor Wisdom Courthouse.
Opinions
United States v. Quintanilla‑Matamoros, No. 25‑20191 (Clement, Graves, Ho, JJ.):
Did the district court plainly err in classifying the defendant as a SORNA tier III offender for Guidelines purposes?
Majority (Clement, J., joined by Graves, J.): Yes. Applying the categorical approach, the majority held that Texas Penal Code § 22.011(a)(2) (sexual assault of a child) sweeps more broadly than the federal “sexual abuse” and “aggravated sexual abuse” statutes (§§ 2242, 2241) because it does not require force, threats, fear, or lack of consent and covers victims up to age 16. It also exceeds the scope of § 2244’s “abusive sexual contact” (including § 2243(a) and § 2241(c)) due to age‑range and age‑differential mismatches. Because these errors are clear under existing law and affected the Guidelines range, the defendant has established reversible plain error.
Concurrence in the Judgment (Ho, J.): Yes. But the opinion raises prudential concerns about issuing precedential rulings on uncontested issues, cautioning that lack of robust adversarial presentation can impair law‑making. Even so, the parties’ agreement does not preclude Article III jurisdiction.
Awe v. Harris Health System, No. 25‑20144 (Elrod, C.J.; Smith, Wilson, JJ.): Did the district court err in granting summary judgment to Harris Health System on Awe’s ADEA discrimination/retaliation and Title VII retaliation claims?
Majority (per curiam): No. Awe failed to make a prima facie case of age discrimination; his “older‑hire was pretext” theory lacked record support. Awe’s ADEA retaliation claim likewise failed at the prima facie stage because his internal complaints concerned pay of minority chaplains, not age. On Title VII retaliation, even assuming a prima facie case, the defendant offered a legitimate, non‑retaliatory reason—preference for internal candidates—and Awe did not show pretext or that he was clearly better qualified.
Concurrence (Elrod, C.J.): No. But McDonnell Douglas should be reconsidered, especially at summary judgment. Its burden-shifting framework deviates from Rule 56, improperly wresting issues from a jury.
United States v. Wilson, No. 24‑10633 (Wiener, Willett, Ho, JJ.): Does Section 922(o)’s machinegun ban violate the Second Amendment, and did the district court err by using the second‑degree‑murder cross‑reference to calculate Wilson’s Guidelines range?
Majority (Willett, J.): No and no. The Court’s earlier decision in Hollis binds the panel’s Second Amendment analysis, notwithstanding the defendant’s efforts to get around the rule of orderliness. Nor did the district court plainly err in applying the second‑degree murder cross‑reference. The defendant armed himself with a machinegun conversion device, retrieved a 31‑round magazine, confronted the victim, and fired multiple rounds—facts supporting malice aforethought.
Concurrence (Willett, J.): No and no—but Section 922(o) raises enumerated‑powers concerns, potentially exceeding Congress’s Commerce Clause authority. The Fifth Circuit’s prior decision upholding the statute’s constitutionality merits reconsideration in the proper case.
Dubitante (Ho, J.): Maybe. Noting another pending panel that kept a similar § 922(o) appeal in abeyance for this case—despite that case being first in line—he did not wish to delay any further resolution, instead inviting en banc review to revisit Hollis.
Endure Industries, Inc. v. Vizient, Inc., No. 24‑10995 (Smith, Stewart, Ramirez, JJ.): Affirming summary judgment for the defendants, the Fifth Circuit agreed that Endure’s antitrust case failed at market definition. Both markets were too narrowly drawn: The proposed “GPO DMS” market improperly excluded non‑GPO purchasing (with record evidence that a significant share of hospital buying occurs outside GPOs), while the proposed Vizient‑only submarket lacked evidence of lock‑in sufficient to justify a single‑brand market. Because Endure couldn’t show a legally sufficient market, its antitrust claims failed as a matter of law.
Allstate Indemnity Co. v. Bhagat, No. 25‑20020 (Barksdale, Willett, Duncan, JJ.): The district court improperly granted summary judgment to defendants based on RICO claims associated with purportedly fraudulent medical bills in personal-injury litigation. Proof of reliance was not required, because Allstate’s RICO claims were predicated on mail fraud—not common-law fraud. Allstate’s settlements did not serve as an intervening cause to bar their claims. And Allstate satisfied Rule 9(b) with detailed billing allegations. Finaly, Allstate also sufficiently stated claims for Texas common‑law fraud, unjust enrichment, and money‑had‑and‑received.
Rx Solutions, Inc. v. Caremark, L.L.C., No. 25‑60084 (Southwick, Higginson, Wilson, JJ.): Affirming in part and reversing in part, and remanding, the Fifth Circuit first affirmed dismissal of Rx Solutions’ federal antitrust claims for failure to plead a coherent relevant market (product and geographic) and antitrust injury (harm to consumers, not a competitor). But it reversed the district court’s conclusion that diversity was lacking, relying on defendants’ admission establishing Caremark’s Rhode Island citizenship, and reinstated jurisdiction over state claims. The court affirmed dismissal of the Mississippi antitrust claim (analyzed like federal antitrust), but remanded the “any willing provider” claim and tortious interference for the district court to address in the first instance.
South Texas Environmental Justice Network v. Texas Commission on Environmental Quality, No. 24‑60580 (Higginbotham, Ho, Douglas, JJ.): Denying the petition for review, the Fifth Circuit upheld TCEQ’s approval of a third construction‑deadline extension for the Texas LNG project in Brownsville. After affirming STEJN’s associational standing to bring the claim, the court held 30 Tex. Admin. Code § 116.120—not the more general Chapter 50 procedures—governed the request and empowered the executive director to grant it. Section 116.120(c) requires only two conditions for a third extension—(1) a prior litigation‑based second extension and (2) proof of the requisite expenditures—both of which were supported by substantial evidence. And even under STEJN’s stricter view, the record showed that Texas LNG met that burden.
In re Genesis Marine, LLC, No. 25‑30205 (Smith, Stewart, Haynes, JJ.): Affirming summary judgment for the claimant, the Fifth Circuit held that Genesis’s limitation action was untimely under 46 U.S.C. § 30529(a) because Genesis had written notice of a reasonable possibility that Darrow’s claim would exceed the Vessel’s $12.5 million value more than six months before it filed in federal court. Section 30529(a)’s six-month clock can be triggered by litigation documents—here, including a petition alleging severe, career‑ending injuries; and expert reports quantifying multi‑million‑dollar life‑care and economic losses—and Genesis’s own answer asserting that the damages “greatly exceed” the Vessel’s value—well before a demand letter. Though the six-month deadline is a claim‑processing (not jurisdictional) rule, it remains mandatory when timely invoked.
Sirius Solutions, L.L.L.P. v. Commissioner of Internal Revenue, No. 24‑60240 (Graves, Engelhardt, Oldham, JJ.): Did the Tax Court improperly interpret 26 U.S.C. § 1402(a)(13)’s “limited partner” exception as reaching only passive investors in a limited partnership?
Majority (Oldham, J., joined by Engelhardt, J.): Yes. Based on the text and contemporaneous, longstanding interpretations, the term “limited partner” simply means a partner in a state‑law limited partnership who enjoys limited liability—not a partner who is merely a “passive investor.”
Dissent (Graves, J.): No. Consistent with text, longstanding Tax Court decisions, and legislative history, Section 1402(a)(13)’s exemption for limited partners only applies to those functioning as passive investors.
Orders
The Court’s en banc activity isn’t limited to its massive sitting this week. The en banc Court granted rehearing in another major case: Texas v. Bondi, No. 24-10386. There, a divided panel held that the House’s proxy-voting rule—used in passing the Pregnant Workers Fairness Act— didn’t violate the Constitution’s Quorum Clause because that clause doesn’t require physical presence.
Next, by a 9 to 7 vote, the Fifth Circuit denied en banc rehearing in Johnson v. Guerrero, No. 23-70002. In that case, the panel affirmed the district court’s ruling allowing a capital defendant’s successive federal habeas Atkins claim (based on intellectual disability) because that claim was previously unavailable. Judge Ho authored a dissental—joined by Judges Jones, Smith, and Englehardt—to emphasize that reliance on new scientific evidence merely constituted new “facts,” not a new rule of constitutional law.
Finally, a divided panel denied panel rehearing in Hershey v. City of Bossier City, No. 21-30754—the badly splintered panel opinion in which the en banc Court recently denied full Court rehearing. Judge Ho authored a short—but notable—dissent, which is reprinted in full below:
I would have granted panel rehearing, and taken the en banc dissental at its word, regarding its sudden and profoundly surprising change of heart on qualified immunity. Panel rehearing would have given Richard Hershey the opportunity to brief the qualified immunity issues that the dissental purportedly welcomed him to present. But I’m now reminded that “dissents . . . carry no legal force.” Georgia v. Public.Resource.Org, Inc., 590 U.S. 255, 273 (2020). So whatever assurances Hershey thought he was getting, it turns out that “comments in a dissenting opinion about legal principles and precedents are just that: comments in a dissenting opinion.” Id. (cleaned up). I regret that things have come to this. The judiciary possesses neither the sword nor the purse. All we have is our word.
15COA
Finally, for the encore, we go to the statewide court of appeals.
Opinions
In re TikTok Inc., No. 15‑25‑00209‑CV (Brister, C.J.; Field, Farris, JJ.) (per curiam) (orig. proceeding): Denying mandamus in a summary order, the Fifteenth Court held the relators failed to establish entitlement to extraordinary relief arising from its challenge to a trial court’s ruling allowing the State of Texas’s claims to proceed against TikTok under the Securing Children Online Through Parental Empowerment (“SCOPE”) Act and the Deceptive Trade Practices Act.
Texas State Board of Veterinary Medical Examiners v. Messonnier, No. 15‑24‑00102‑CV (Brister, C.J.; Field, Farris, JJ.): Reversing and rendering, the Fifteenth Court rejected an as‑applied due‑process challenge to former Occupations Code § 801.207(b) and related rules that kept complaints confidential before an informal conference. Because the informal conference cannot adjudicate or revoke a license and any discipline must proceed to a State Office of Administrative Hearings contested‑case hearing with notice, discovery, and the right to present and test evidence, the existing procedures provided all the process due at that stage. The court thus reversed the trial court’s contrary judgment declaring the statute and its associated rules to be unconstitutional.
Argument
Finally, the Fifteenth Court has two arguments scheduled for January 21 at 1:30 pm:
Appraisal Review Board of Harris County Appraisal District v. Texas Workforce Commission, No. 15-25-00041-CV
Hays County v. Carnes, No. 15-25-00121-CV
Red Light
House lights up—we’ve reached the end of a long festival.
As always, I welcome your feedback and suggestions for 1910 & Beyond. Please don’t hesitate to leave a comment or email me with thoughts, topic ideas, or tips on interesting cases.
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Until next time, enjoy En Banc‑A‑Palooza—and the aftershow.
Thank you to my law firm, Hicks Johnson PLLC, for their support of 1910 & Beyond. Hicks Johnson is a premier trial and appellate boutique with offices in Houston and Chicago, known for delivering successful outcomes in high-stakes, complex litigation. We provide superior results for clients by combining elite legal talent and real courtroom experience with cutting-edge technology and strategic client collaboration.17
Technically, this number could be eight. The Court granted both Texas and Louisiana’s separate en banc petitions concerning their States’ Ten Commandments laws, but consolidated them for argument.
Many thanks to Jacqueline for sharing the underlying data on the Court’s en banc arguments.
5th Cir. R. 40.2.1.
Id.
Fed. R. App. P. 40(b)(2)(A).
Id. R. 40(b)(2)(B).
Id. R. 40(b)(2)(C).
Id. R. 40(b)(2)(D).
Although practitioners should welcome clearer guidance on supporting noneconomic damages, Gregory v. Chohan warns against “unsubstantiated anchoring”—numerical asks untethered to record evidence. Is a time-based framework truly different? If a person testifies that their pain is worth $10, $100, or $1,000 a day, isn’t there a risk that this is materially the same as simply plucking a number out of thin air? Perhaps plaintiffs might thread the needle by explaining how they arrived at that number, tied to nature/duration/severity. But I still see this possible tension with Gregory, potentially creating a real issue moving forward.
Part IV-C resolved legislative-history arguments.
Judge Duncan authored the Fifth Circuit’s panel opinion, joined by Judge Wilson. Judge Haynes concurred in the judgment.
Judge Oldham authored the Fifth Circuit’s panel opinion, joined by Judges Ho and Duncan.
Chief Justice Adams authored the First Court’s panel opinion, joined by Judges Kelly and Goodman.
The Court also granted stays in two proceedings.
Justice Kelly authored the First Court’s panel opinion, joined by Chief Justice Adams and Justice Rivas-Molloy.
Disclaimer: I previously represented the relator in these proceedings.
Chief Justice Adams authored the First Court’s panel opinion, joined.by Justice Goodman. Justice Kelly dissented.
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Great post! I discovered last summer in Italy that a VPN is essential for accessing Texas court websites.