The appellate court concluded that the trial court did not abuse its discretion in awarding sanctions absent evidence of the plaintiff’s income.
Pisharodi v. Columbia Valley Healthcare Sys., L.P.
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Procedure
Texas 13th Court of Appeals
May 07, 2020
13-18-00364-CV
Gregory T. Perkes
Published
The plaintiff appealed the judgment of the trial court which dismissed the suit pursuant to the Texas Citizens Participation Act (TCPA), alleging breach of contract and malicious civil prosecution. On appeal, the plaintiff argued that the defendant breached its contract with him by violating the confidentiality clause of the bylaws, citing two provisions in the hospital’s medical staff bylaws in his petition. The appellate court noted that any statements made during the peer review process constituted protected free speech because the provision of medical services by a health care professional constituted a matter of public concern. The appellate court found that because the defendant successfully demonstrated the applicability of the Act, the court would consider whether the plaintiff met the prima facie burden the Act required. The appellate court concluded that the trial court did not abuse its discretion in awarding sanctions absent evidence of the plaintiff’s income. Accordingly, judgment of the trial court was affirmed in part, reversed in part, and remanded.

The appellate court concluded that the trial court did not abuse its discretion in admitting the diagram over the defendant’s hearsay objection.
Boudreaux v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
May 07, 2020
14-18-00891-CR
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which convicted him of felony murder and assessed punishment at 80 years in prison. On appeal, the defendant challenged the trial court’s conviction and sentence. The appellate court noted that because the defendant did not object to the witness testimony about the first two accidents under Rules 401, 403 or 404(b), the defendant failed to preserve the issue for appellate review. The appellate court found that reviewing the record as a whole, the court did not harbor grave doubts that the error affected the outcome of the trial and the police officer was at the scene and took all the measurements required to create the diagram. The appellate court further determined that the police officer adopted the diagram as his own based on his direct knowledge of the accident scene. The appellate court concluded that the trial court did not abuse its discretion in admitting the diagram over the defendant’s hearsay objection. Accordingly, the judgment of the trial court was affirmed.    

The former version of article 102.0185 of the Code of Criminal Procedure was facially unconstitutional because neither the statute nor its attendant statutes explicitly directed that the court’s cost collected be used for a criminal-justice purpose.
Richardson v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 07, 2020
01-18-00945-CR
Peter Kelly
Published
The defendant appealed the judgment of the trial court which convicted him of driving while intoxicated. On appeal, the defendant challenged the trial court’s conviction as a violation of his due process rights. The appellate court noted that the record did not clearly demonstrate bias or a violation of the defendant’s due process rights, and the defendant had not met his burden to prove that his counsel’s performance was deficient or that he was prejudiced by his counsel’s performance. The appellate court found that the defendant failed to show that he was prejudiced by his attorney’s failure to file a written motion. The appellate court concluded that the former version of article 102.0185 of the Code of Criminal Procedure was facially unconstitutional because neither the statute nor its attendant statutes explicitly directed that the court’s cost collected be used for a criminal-justice purpose. Accordingly, the judgment of the trial court was affirmed.  

The appellate court erred in holding that reliance on the statutory good-faith exception was automatically precluded based on an illegible magistrate’s signature in violation of Code of Criminal Procedure Article 18.04(5).
State v. Arellano
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
May 06, 2020
PD-0287-19
Michelle Slaughter
Published
The State appealed the judgment of the appellate court which granted the defendant’s motion to suppress all evidence stemming from the blood draw. On appeal, the defendant argued that the search warrant to obtain the blood specimen was facially invalid because the magistrate’s signature was illegible in violation of the requirements of Code of Criminal Procedure Article 18.04(5). The criminal appellate court noted that the case fell within the reasoning of Dunn v. State and held that a warrant containing an illegible magistrate’s signature in violation of Article 18.04(5) did not automatically preclude application of the statutory good-faith exception in Article 38.23(b). The criminal appellate court found that although the court had sometimes addressed matters in the first instance on discretionary review where their resolution was straightforward, some of the issues presented raised novel arguments which would be more appropriately addressed first by the appellate court. The criminal appellate court concluded that the appellate court erred in holding that reliance on the statutory good-faith exception was automatically precluded based on an illegible magistrate’s signature in violation of Code of Criminal Procedure Article 18.04(5). Accordingly, the judgment of the appellate court was vacated and remanded.  

The record did not demonstrate the existence of a fact issue precluding summary judgment on that claim, and thus, the trial court’s order granting the defendant’s motion for summary judgment was proper.
Herrera v. Resignato
Appellate: Civil, Employment, Evidence, Procedure
Texas 8th Court of Appeals
May 06, 2020
08-17-00254-CV
Gina M. Palafox
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for summary judgment dismissing the plaintiff’s claim for wrongful termination. On appeal, the plaintiff challenged the trial court’s grant of summary judgment against it. The appellate court found that the evidence in the case concerning two essential elements of the plaintiff’s Sabine Pilot claim—that the first defendant instructed her to perform an illegal act and that she refused to perform an illegal act—did not rise to a level that would enable reasonable and fair-minded people to differ in their conclusions. The appellate court concluded that the record did not demonstrate the existence of a fact issue precluding summary judgment on that claim, and thus, the trial court’s order granting the defendant’s motion for summary judgment was proper. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that no probable cause existed to tow the plaintiffs’ vehicle for violating the Towing and Booting Act’s 10-day notice requirement.
Yeater v. H-Town Towing LLC
Appellate: Civil, Damages, Gov't/Administrative, Procedure, Torts
Texas 1st Court of Appeals
May 05, 2020
01-18-00981-CV
Sarah Beth Landau
Published
The plaintiffs appealed the judgment of the trial court which ruled against them in a suit alleging improper towing. The appellate court noted that the parking and towing addendum was void and may not be enforced because the plain language of section 2308.253(e) required at least 10 days written notice before the vehicle was towed. The appellate court found that because the defendant towed the plaintiffs’ vehicle before the required notice period had elapsed, the trial court erroneously concluded that probable cause existed to tow the plaintiffs’ vehicle. The appellate court concluded that no probable cause existed to tow the plaintiffs’ vehicle for violating the Towing and Booting Act’s 10-day notice requirement. Accordingly, the judgment of the trial court was reversed and remanded for additional proceedings.              

The appellate court concluded that the trial court’s error was harmful given that the child support obligation imposed on the appellant clearly factored into the equation the retained earnings of the Subchapter S corporation.
In re Tuttle
Appellate: Civil, Family, Procedure, Real Property
Texas 7th Court of Appeals
May 04, 2020
07-19-00016-CV
Brian Quinn
Published
The appellant appealed the judgment of the trial court which issued a final divorce decree and ordered the appellant to pay child support. The appellate court noted that coupling that with the other bits of evidence itemized above provided the trial court with basis to form a firm conviction and belief not only that he had the requisite intent to make a gift but also that he delivered and she accepted the gift. The appellate court found that upon construing the evidence in a light most favorable to the trial court’s finding of a gift, the trial court’s decision was not an instance of abused discretion. The appellate court further determined that the trial court abused its discretion by giving inadequate information before it upon which to exercise that discretion. The appellate court concluded that the trial court’s error was harmful given that the child support obligation imposed on the appellant clearly factored into the equation the retained earnings of the Subchapter S corporation. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.

The Supreme Court concluded that the trial court considered such evidence and correctly determined that it conclusively showed collusive fraud.
Loya In. Co. v. Avalos
Appellate: Civil, Consumer, Contracts, Damages, Gov't/Administrative, Insurance, Procedure, Torts
The Supreme Court of Texas
May 01, 2020
18-0837
J. Brett Busby
Published
The petitioner appealed the judgment of the trial court which granted the respondents’ motion for summary judgment, awarding the respondents a monetary award in a suit, seeking coverage from the petitioner claiming damages resulting from the negligent operation of her vehicle. On appeal, the petitioner filed counterclaims for breach of contract, fraud, and a declaratory judgment that it owed no coverage and had no duty to defend because the respondent's husband, an excluded driver, was driving at the time of the accident. The Supreme Court found that in determining the petitioner's duty to defend, a court may consider extrinsic evidence regarding whether the insured and a third party suing the insured colluded to make false representations of fact in that suit for the purpose of securing a defense and coverage where they would not otherwise exist. The Supreme Court concluded that the trial court considered such evidence and correctly determined that it conclusively showed collusive fraud. Accordingly, the judgment of the trial court was reversed.

The petitioner could not agree to permit an arbitrator to decide questions of governmental immunity and chapter 271 waived the petitioner’s immunity from suit for the respondent’s breach-of-contract claim.
San Antonio River Auth. v. Austin Bridge & Rd., L.P.
ADR, Appellate: Civil, Contracts, Gov't/Administrative, Procedure
The Supreme Court of Texas
May 01, 2020
17-0905
Jane N. Bland
Published
The petitioner appealed the judgment of the trial court which denied its motion for summary judgment on the basis of immunity. On appeal, the petitioner contended that it lacked any authority to agree to the contract’s arbitration provisions, finding that the arbitration provisions in the construction contract were enforceable. The Supreme Court noted that Local Government Code Chapter 271 authorized the petitioner to agree to arbitrate disputes arising from its construction contract with the respondent. The Supreme Court found that a court must decide a local government’s immunity from suit and liability, notwithstanding a contractual agreement to the contrary. The Supreme Court concluded that the petitioner could not agree to permit an arbitrator to decide questions of governmental immunity and chapter 271 waived the petitioner’s immunity from suit for the respondent’s breach-of-contract claim. Accordingly, the judgment of the trial court was affirmed.  

Since the defendant did not object in the trial court to the amendment of the indictments based on Code of Criminal Procedure article 28.10, lack of notice, or on any other basis, the defendant waived her complaints on appeal regarding the trial court’s granting of the motion to amend.
Vasquez v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 07, 2020
01-19-00351-CR
Richard Hightower
Published
The defendant appealed the judgment of the trial court which convicted her of first-degree felony offenses of possession with intent to deliver methamphetamine weighing more than 4 grams and less than 200 grams and possession with intent to deliver cocaine weighing more than 4 grams and less than 200 grams. On appeal, the defendant challenged the trial court’s sentence to 10 years in prison for each offense with the sentences to run concurrently. The appellate court noted that the record showed that the defendant offered mitigating evidence to support her request for deferred adjudication community supervision. The appellate court found that the defendant did not make a record to show what additional mitigating statements or pleas for leniency she would have made to the trial court had she addressed the court. The appellate court concluded that since the defendant did not object in the trial court to the amendment of the indictments based on Code of Criminal Procedure article 28.10, lack of notice, or on any other basis, the defendant waived her complaints on appeal regarding the trial court’s granting of the motion to amend. Accordingly, the judgment of the trial court was affirmed.

The Supreme Court concluded that the receipts from the sales of the aircraft were not properly sourced to Texas under either party’s interpretation of the apportionment statute.
Lockheed Martin Corp. v. Hegar
Appellate: Civil, Gov't/Administrative, Tax
The Supreme Court of Texas
May 01, 2020
18-0566
Justice Lehrmann
Published
The petitioner appealed the judgment of the trial court in a franchise tax dispute action after the U.S. government contracted with the petitioner. On appeal, the Supreme Court was asked to consider whether the petitioner’s receipts from the sales of those jets were properly sourced to Texas for purposes of calculating its Texas franchise tax. The Supreme Court noted that the Comptroller contended that the place of delivery was the petitioner’s manufacturing facility, where title to the F-16s was transferred to the U.S. government. The Supreme Court found that because the foreign governments were the buyers for franchise-tax purposes, even under the Comptroller’s interpretation, the sales were properly sourced to Texas only if the aircraft were delivered to the foreign governments in Texas. The Supreme Court concluded that the receipts from the sales of the aircraft were not properly sourced to Texas under either party’s interpretation of the apportionment statute. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.    

Since the mother made her own request for a change of the child’s first name, the court remanded the matter to the trial court to consider that request in light of the court's opinion.
In re I.D.Z.
Appellate: Civil, Family, Procedure
Texas 8th Court of Appeals
April 30, 2020
08-18-00202-CV
Jeff Alley
Published
The mother appealed the judgment of the trial court which granted the father’s request to change the child’s name. On appeal, the mother contended that the father did not meet his burden of demonstrating that it was in the child’s best interest, or that good cause existed to change his first and middle names. The appellate court noted that because the court agreed that the father did not meet his burden, the court reversed the trial court’s order changing the child’s name. The appellate court found that the children were not named in a piecemeal fashion. The appellate court concluded that since the mother made her own request for a change of the child’s first name, the court remanded the matter to the trial court to consider that request in light of the court's opinion. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.  

The appellate court concluded that the jury’s adverse finding on the defendant’s liability was supported by legally sufficient evidence.
Collins v. Vivanco
Appellate: Civil, Health Care, Procedure, Torts
Texas 8th Court of Appeals
April 30, 2020
08-17-00213-CV
Gina M. Palafox
Published
The plaintiffs appealed the judgment of the trial court which rendered a take-nothing judgment in a medical malpractice suit against the defendant-doctor. On appeal, the plaintiffs asserted that the evidence was legally insufficient to support the jury’s failure to find that the defendant’s negligence proximately caused his injury. The plaintiffs further argued that the evidence established as a matter of law that the defendant breached a nondelegable duty. The appellate court noted that it involved a two-step inquiry, whereby the court first examined the record to determine whether there was any evidence supporting the finding, disregarding all evidence to the contrary. The appellate court found that the plaintiffs’ assertion that the defendant was vicariously liable under a nondelegable duty theory was overruled. The appellate court further determined that there was evidence in the record from which the jury could reasonably have concluded that the defendant did not breach the standard of care. The appellate court concluded that the jury’s adverse finding on the defendant’s liability was supported by legally sufficient evidence. Accordingly, the judgment of the trial court was affirmed.

Since the trial commenced before expiration of the trial court’s jurisdiction, the court overruled the parents’ jurisdictional challenge terminating the parents’ parental rights.
In re Z.S.
Appellate: Civil, Family, Procedure
Texas 14th Court of Appeals
April 28, 2020
14-19-00891-CV
Kevin Jewell
Published
The parents appealed the judgment of the trial court which issued a final order terminating their parental rights to four children. On appeal, the mother challenged the portion of the order terminating her parental rights to the fifth child. The appellate court noted that the legislature, however, was free to address the concern and could have done so in recent amendments by stating for example that a trial court’s jurisdiction expired on a date certain unless the court signed a final order by that date. The appellate court found that Tex. Fam. Code Section 263.401 required only that trial on the merits commenced by the deadline, and there trial commenced before that deadline and before the trial court lost jurisdiction. The appellate court concluded that since the trial commenced before expiration of the trial court’s jurisdiction, the court overruled the parents’ jurisdictional challenge terminating the parents’ parental rights. Accordingly, the judgment of the trial court was affirmed.   

Since the trial court did not consider the merits of the defendant’s counterclaims in the first instance, the court would remand for further consideration.
Reeves v. Harbor Am. Cent., Inc.
Appellate: Civil, Contracts, Damages, Employment, Procedure, Torts
Texas 14th Court of Appeals
April 28, 2020
14-18-00594-CV
Ken Wise
Published
The plaintiff appealed the judgment of the trial court which ruled in favor of the defendant in the plaintiff’s suit for breach of contract, alleging that the defendant failed to pay the plaintiff commissions. On appeal, the plaintiff challenged the denial of the motion to dismiss the defendant’s counterclaims under the Texas Citizens Participation Act (TCPA), arguing that the defendant’s legal action was in response to the plaintiff’s exercise of the right of association. The appellate court noted that the trial court did not actually consider the plaintiff’s motion as it pertained to the merits of the defendant’s claims. The appellate court found that the order denying the plaintiff’s motion maintained that having ruled that the TCPA did not apply, there was no second step analysis where the burden was shifted to the defendant to make a prima facie case on the elements of its claims. The appellate court concluded that since the trial court did not consider the merits of the defendant’s counterclaims in the first instance, the court would remand for further consideration. Accordingly, the judgment of the trial court was reversed and remanded.  

The trial court erred in awarding the taxpayer a refund for the additional tax resulting from the amount by which the State’s apportionment factors exceeded the taxpayer’s apportionment factors, and the taxpayer was not entitled to a partial refund.
Hegar v. Sirius XM Radio, Inc.
Appellate: Civil, Business, Contracts, Corporations, Gov't/Administrative, Procedure, Real Property, Tax
Texas 3rd Court of Appeals
May 01, 2020
03-18-00573-CV
Chari L. Kelly
Published
The State appealed the judgment of the trial court which ruled that the State’s adjustment to the taxpayer’s apportionment factor was incorrect and that the taxpayer was entitled to a refund. On appeal, the State challenged the trial court’s order that the State issue a refund to the taxpayer. The appellate court noted that because the evidence did not establish that the taxpayer sold “goods,” the trial court did not err in concluding that its Revenue Share and Hardware Subsidies expenses were not includable in its cost-of-goods-sold deduction. The appellate court found that the trial court erred in concluding that the apportionment factors reported by the taxpayer accurately reflected the fair value of services performed in Texas during the tax years. The appellate court concluded that the trial court erred in awarding the taxpayer a refund for the additional tax resulting from the amount by which the State’s apportionment factors exceeded the taxpayer’s apportionment factors, and the taxpayer was not entitled to a partial refund. Accordingly, the judgment of the trial court was reversed.

The personal representative had not demonstrated error in the trial court’s summary judgment rulings or by its award of attorney’s fees to the corporation.
McGehee v. Endeavor Acquisitions, LLC
Appellate: Civil, Contracts, Procedure, Wills/Trusts/Probate
Texas 8th Court of Appeals
April 29, 2020
08-18-00166-CV
Gina M. Palafox
Published
The personal representative of the Estate of the deceased appealed the judgment of the trial court which rendered a take-nothing judgment in favor of the corporation. The appellate court noted that the summary judgment record conclusively established that the corporation did not breach the Purchase and Sale Agreement by stopping payment on the second set of tendered checks, and the trial court did not err by granting summary judgment that the personal representative take nothing on their claim for breach of contract. The appellate court found that the summary judgment record conclusively established that the corporation did not breach the Agreement by stopping payment on the second set of tendered checks. The appellate court further determined that the trial court did not err by granting summary judgment that the personal representative take nothing on their claim for breach of contract. The appellate court concluded that the personal representative had not demonstrated error in the trial court’s summary judgment rulings or by its award of attorney’s fees to the corporation. Accordingly, the judgment of the trial court was affirmed.      

The defendant was required to prove by clear and convincing evidence that the defendant’s expert witness testimony was relevant to helping the jury reach accurate results and he failed to meet the standard.
Buford v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
April 30, 2020
01-18-01134-CR
Richard Hightower
Published
The defendant appealed the judgment of the trial court which convicted him of murder and assessed his punishment at 30 years’ imprisonment. The appellate court noted that the instruction, as given, properly allowed the jury to consider all the circumstances facing the defendant in determining the reasonableness of his belief that the use of deadly force was necessary under the circumstances he faced, including his apparent danger from the complainant’s alleged conduct. The appellate court found that the trial court did not err in refusing to submit the defendant’s additional charge language in the jury charge. The appellate court concluded that the defendant was required to prove by clear and convincing evidence that the defendant’s expert witness testimony was relevant to helping the jury reach accurate results and he failed to meet the standard. Accordingly, the judgment of the trial court was affirmed.  

The record did not conclusively establish all elements required to demonstrate that Chapter 95 was applicable to the claims asserted.
Wallace v. Energen Res. Corp.
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
April 24, 2020
08-17-00248-CV
Gina M. Palafox
Published
The plaintiffs appealed the judgment of the trial court which granted a take-nothing summary judgment on their negligence claims against the defendant. On appeal, the plaintiffs challenged the trial court’s order on the basis that the defendant was liable under Chapter 95 of the Texas Civil Practice and Remedies Code because the defendant exercised or retained control over the work performed by the plaintiffs as a matter of law. The appellate court found that the defendant had not conclusively established that the claims asserted by the plaintiffs arose from a condition or use of the Water Well where the plaintiffs constructed, repaired, renovated, or modified the Water Well as required by Chapter 95’s applicability provision. The appellate court concluded that the record did not conclusively establish all elements required to demonstrate that Chapter 95 was applicable to the claims asserted. Accordingly, the judgment of the trial court was reversed and remanded.  

The appellate court concluded that there were fact issues on the plaintiffs’ affirmative promissory estoppel claim and unjust enrichment claim, requiring reversal of the trial court’s summary judgment on those claims.
Walker v. Walker
Appellate: Civil, Contracts, Damages, Procedure, Real Property
Texas 14th Court of Appeals
April 23, 2020
14-18-00569-CV
Frances Bourliot
Published
The plaintiffs appealed the judgment of the trial court which granted summary judgment in a suit regarding ownership of a beach house. On appeal, the plaintiffs asserted claims for monetary damages based on promissory estoppel and unjust enrichment and filed a notice of lis pendens against the property. The appellate court agreed that the trial court erred in rendering summary judgment on the affirmative claim of promissory estoppel. The plaintiffs further alleged that they had an interest in the property even though it was never legally transferred to them. The appellate court found that the plaintiffs did not have an opportunity to amend their petition in response to the motion to expunge to seek any other damages available for unjust enrichment because the brothers did not raise the issue. The appellate court concluded that there were fact issues on the plaintiffs’ affirmative promissory estoppel claim and unjust enrichment claim, requiring reversal of the trial court’s summary judgment on those claims. Accordingly, the judgment of the trial court was reversed and remanded.        

The defendant failed to carry his burden to prove by a preponderance of the evidence that he had a constitutional right to counsel for the protective order proceeding.
Ex parte Garza
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
April 23, 2020
13-18-00502-CV
Dori Contreras
Published
The defendant appealed the judgment of the trial court which dismissed his petition for writ of habeas corpus. On appeal, the defendant argued that the trial court erred when it dismissed his petition. The State asserted that no constitutional rights were implicated in the protective order proceeding. The appellate court noted that for the constitutional right to appointed counsel to apply, an individual must face the threat of actual imprisonment rather than a mere future threat of imprisonment. The appellate court found that in cases regarding protective orders, Texas appellate courts had concluded that such a defendant was not constitutionally entitled to counsel. The appellate court concluded that the defendant failed to carry his burden to prove by a preponderance of the evidence that he had a constitutional right to counsel for the protective order proceeding. Accordingly, the judgment of the trial court was affirmed.      

Since the online impersonation statute was applied to conduct that was not entitled to constitutional protection, the defendant’s overbreadth challenge must fail.
Dupuy v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 23, 2020
14-19-00119-CR
Tracy Christopher
Published
The defendant appealed the judgment of the trial court which convicted him of online impersonation. On appeal, the defendant argued that the evidence was legally insufficient, the trial court abused its discretion by denying a motion for mistrial and by admitting certain evidence, and the statute defining the offense was unconstitutional. The appellate court noted that the point had not been preserved for appellate review because it was never presented to the trial court, and the defendant’s bare objection on the basis of constitutionality was not sufficiently specific to apprise the trial court that he was lodging a complaint under the Confrontation Clause. The appellate court found that the trial court’s interjection to the defense’s characterization of Backpage.com as a criminal enterprise further supported the conclusion. The appellate court concluded that since the online impersonation statute was applied to conduct that was not entitled to constitutional protection, the defendant’s overbreadth challenge must fail. Accordingly, the judgment of the trial court was affirmed.  

The mother’s counsel informed the trial court that the mother disputed some portions of the father’s proposed final order, but the mother did not bring to the trial court’s attention the specific disputes she raised in the case.
In re M.E.H.
Appellate: Civil, Family, Juvenile, Procedure
Texas 14th Court of Appeals
April 23, 2020
14-18-00281-CV
Kevin Jewell
Published
The mother appealed the judgment of the trial court which entered a final order based on a mediated settlement agreement (MSA) in a child custody dispute. On appeal, the mother contended that the MSA and the trial court’s order incorporating its terms contained provisions conditioning her rights of possession and access on payment of child support in violation of public policy. The appellate court found that the mother failed to show that the provisions she challenged were not severable and therefore the MSA was void. The appellate court concluded that the mother’s counsel informed the trial court that the mother disputed some portions of the father’s proposed final order, but the mother did not bring to the trial court’s attention the specific disputes she raised in the case. Accordingly, the judgment of the trial court was affirmed.   

The rational jury could have found based on the cumulative effect of all the evidence, not just the use of a finger gun, that the defendant committed retaliation by threatening to assault the second officer.
Barnes v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 28, 2020
14-18-00689-CR
Frances Bourliot
Published
The defendant appealed the judgment of the trial court which convicted him of retaliation by threatening to assault second officer. On appeal, the defendant challenged the legal sufficiency of the evidence in support of the jury’s finding that he committed retaliation by threatening to assault a police officer. The appellate court noted that the defendant’s First Amendment challenge was an “as applied” challenge to the constitutionality of the retaliation statute. The appellate court found that the State was not required to show an imminent threat to harm the second officer to establish retaliation by threat of assault, the State needed to show only that the defendant intentionally or knowingly threatened to harm the second officer with bodily injury. The appellate court concluded that the rational jury could have found based on the cumulative effect of all the evidence, not just the use of a finger gun, that the defendant committed retaliation by threatening to assault the second officer. Accordingly, the judgment of the trial court was affirmed.              

The appellate court concluded that the law required the defendant to preserve error in the trial court as to his third issue, and by failing to do so, the defendant waived the complaint.
Richardson v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 28, 2020
14-18-00433-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault of a child and sentenced him to sixty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. The appellate court noted that the defendant preserved his speedy-trial complaint in the trial court, and the reason for delay factor weighed in favor of finding that the State violated the defendant’s right to a speedy trial, although not heavily. The appellate court found that the weight of the four factors, balanced together, went against finding a violation of the defendant’s right to a speedy trial. The appellate court concluded that the law required the defendant to preserve error in the trial court as to his third issue, and by failing to do so, the defendant waived the complaint. Accordingly, the judgment of the trial court was affirmed.      

The appellate court concluded that the law permitted the appellee's no-evidence ground challenging the essential element of duty as to the negligence claim.
Purvis v. Stoney Creek Cmty. Ass'n, Inc.
Appellate: Civil, Contracts, Damages, Evidence, Procedure, Real Property, Torts
Texas 14th Court of Appeals
April 28, 2020
14-18-00436-CV
Kem Thompson Frost
Published
The homeowner appealed the judgment of the trial court which granted the appellee's no-evidence motion for summary judgment, alleging that by failing to maintain the drainage pipe the appellee breached its contractual obligations under a declaration of covenants and restrictions and that the homeowner’s property suffered damage as a result. On appeal, the homeowner asserted claims for breach of contract and negligence. The appellate court noted that the summary-judgment evidence raised genuine fact issues as to whether the appellee had a duty to maintain the Drainage Pipe under article X, Section 2 because the Drainage Pipe fells within the Declaration’s definition of “Common Facilities” and whether the appellee failed to maintain the Drainage Pipe. The appellate court found that the trial court erred in granting summary judgment as to the contract claim on the ground of no evidence of breach of contract. The appellate court concluded that the law permitted the appellee's no-evidence ground challenging the essential element of duty as to the negligence claim. Accordingly, the judgment of the trial court was reversed and remanded.    

Even if a conspiracy claim against the defendant were available under New York law, the plaintiff made no persuasive argument that the legal barriers to an award of rescissory damages would not apply with equal force to the claim.
Credit Suisse AG v. Claymore Holdings, LLC
Appellate: Civil, Contracts, Creditor/Debtor, Damages, Procedure, Securities, Torts
The Supreme Court of Texas
April 24, 2020
18-0403
James D Blacklock
Published
The defendant appealed the judgment of the trial court which ruled in favor of the plaintiff, seeking recovery of the plaintiff’s investment losses under various legal theories. The Supreme Court noted that the trial court’s award for fraud followed none of the well-established approaches to damages; instead, it substituted an amount that was five times the jury’s verdict and bore no relationship to properly measured fraud damages. The Supreme Court found that even if a conspiracy claim against the defendant were available under New York law, the plaintiff made no persuasive argument that the legal barriers to an award of rescissory damages would not apply with equal force to the claim. The Supreme Court concluded that rescissory damages under other theories of liability were not available. Accordingly, the judgment of the trial court was partly affirmed and partly reversed and remanded.

Under Texas law, a lender who discharged a prior, valid lien on the borrower’s homestead property was entitled to subrogation, even if the lender failed to correct a curable defect in the loan documents under section 50 of the Texas Constitution.
Fed. Home Loan Mortgage Corp. v. Zepeda
Appellate: Civil, Banking and Finance, Constitution, Contracts, Procedure, Real Property
The Supreme Court of Texas
April 24, 2020
19-0712
Nathan L. Hecht
Published
The petitioner appealed the judgment of the trial court which ruled in favor of the respondent in a suit to quiet title on a theory that because the petitioner failed to cure the constitutional defect in the loan documents within 60 days of notification, the petitioner did not possess a valid lien on her property. On appeal, the petitioner claimed that it was subrogated to the company’s lien because its predecessor paid off the balance of the company’s loan to the respondent. The Supreme Court concluded that under Texas law, a lender who discharged a prior, valid lien on the borrower’s homestead property was entitled to subrogation, even if the lender failed to correct a curable defect in the loan documents under section 50 of the Texas Constitution. Accordingly, the court answered the certified question affirmatively.  

Even if a threat of prosecution could give a judge standing to challenge a substantive legal standard, the alleged threat of criminal prosecution in the case did not give the judges standing to seek the invalidation of GA-13.
In re Abbott
Appellate: Civil, Constitution, Criminal, Gov't/Administrative, Procedure
The Supreme Court of Texas
April 23, 2020
20-0291
Per Curiam
Published
The State appealed the judgment of the trial court, seeking a mandamus petition for review of the issued temporary restraining order (TRO) for the State’s Executive Order GA-13. On appeal, the State challenged the TRO on the ground that the Executive Order could suspend certain statutes authorizing trial judges to release jail inmates with violent histories during the current state of disaster. In response, the plaintiffs maintained that GA-13 was unconstitutional and exceeded the governor’s statutory emergency powers. The Supreme Court noted that the judges’ alleged that they faced a threat of criminal prosecution if they did not follow the executive order, and any threat to prosecute a judge for his or her judicial decisions raised grave separation-of-powers concerns. The Supreme Court found that the judges, however, did not explain why well-established principles of judicial immunity were insufficient to counter such threats. The Supreme Court concluded that even if a threat of prosecution could give a judge standing to challenge a substantive legal standard, the alleged threat of criminal prosecution in the case did not give the judges standing to seek the invalidation of GA-13. Accordingly, the State’s petition was conditionally granted.

The Credit Union failed to satisfy its burden of proving by a preponderance of the evidence the claims asserted by the plaintiff were based on, related to, or in response to its exercise of the right of free speech.
Sec. Serv. Fed. Credit Union v. Rodriguez
Appellate: Civil, Civil Rights, Employment, Procedure
Texas 8th Court of Appeals
April 24, 2020
08-19-00154-CV
Yvonne T. Rodriguez
Published
The Security Service Federal Credit Union (the Credit Union) appealed the judgment of the trial court which denied, by operation of law, its motion to dismiss pursuant to the Texas Citizens Participation Act. On appeal, the plaintiff alleged that the Credit Union wrongfully terminated the plaintiff based on age discrimination. The appellate court noted that even if the Credit Union had been robbed while the vault was unsecured, logically it may have subjected the Credit Union to a greater financial loss, but the court could not reasonably surmise the sole fact of the unsecured vault alone would have increased the risk of violence to employees or customers. The appellate court found that there were no communications regarding a recurrent breach of protocol by the plaintiff that would imply a continued threat to the security or communications suggesting the security policies were not sound. The appellate court concluded that the Credit Union failed to satisfy its burden of proving by a preponderance of the evidence the claims asserted by the plaintiff were based on, related to, or in response to its exercise of the right of free speech. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that having determined that the TCPA did not apply to the plaintiff’s action, the trial court properly denied the defendants’ motion to be dismissed.
Ridge Petroleum, Inc. v. Energy OPS, LLC
Appellate: Civil, Contracts, Gov't/Administrative, Procedure
Texas 8th Court of Appeals
April 24, 2020
08-19-00078-CV
Yvonne T. Rodriguez
Published
The defendants appealed the judgment of the trial court which denied its motion to dismiss filed pursuant to the Texas Citizens Participation Act (TCPA). On appeal, the defendants challenged the plaintiff’s efforts in seeking payment of alleged unpaid and underpaid royalties as well as termination of its obligations under an existing agreement. The appellate court noted that it believed the allegations in the plaintiff’s petition demonstrated only that any communications made by the defendants in the form of statements, checks, and division orders relate only to absent or incorrect mathematical calculations of royalties owed to a private party pursuant to the Disposal Agreement. The appellate court found that any statements, checks and division orders referenced in the plaintiff’s petition were not a matter of public concern as that phrase was defined in the TCPA. The appellate court concluded that having determined that the TCPA did not apply to the plaintiff’s action, the trial court properly denied the defendants’ motion to be dismissed. Accordingly, the judgment of the trial court was affirmed.     

The Supreme Court concluded that the trial court’s legal error was harmless, and the appellate court erred in reversing and remanding for a new trial.
In re Jones
Appellate: Civil, Criminal, Evidence, Procedure
The Supreme Court of Texas
April 24, 2020
19-0260
Per Curiam
Published
The defendant appealed the judgment of the trial court which convicted him of several attempted sexual-assault offenses. On appeal, the defendant challenged the civil suit against him to commit him as a sexually violent predator (SVP) under Texas Health and Safety Code chapter 841. The Supreme Court was further asked to decide whether a final verdict for the defendant declining to find that the defendant was a sexually violent predator must likewise be unanimous. The Supreme Court noted that the appellate court held that the trial court committed harmful error when it declined to submit an instruction explaining that a verdict for the defendant required only ten votes. The Supreme Court found that because it was apparent from the face of the record that the trial court’s failure to submit the requested 10–2 instruction did not probably cause the rendition of an improper judgment. The Supreme Court concluded that the trial court’s legal error was harmless, and the appellate court erred in reversing and remanding for a new trial. Accordingly, the judgment of the trial court was reversed.  

The trial court did not abuse its discretion by overruling the defendant’s objections to the admission of the test results showing his blood–alcohol concentration.
Jacobson v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
April 23, 2020
02-19-00307-CR
Dabney Bassel
Published
The defendant appealed the judgment of the trial court which convicted him of driving while intoxicated and assessed his punishment at ninety days’ confinement in the county jail and a fine. On appeal, the defendant challenged the trial court’s imposition of a community supervision for a period of sixteen months. The appellate court noted that the Fourth Amendment did not require the State to obtain a second warrant to test a blood sample that was seized based on probable cause that a person was driving while intoxicated, and the State provided the justification and had been given the means of obtaining the blood to use as evidence against the defendant. The appellate court found that a de novo review of the legal issue raised by the defendant was without merit. The appellate court concluded that the trial court did not abuse its discretion by overruling the defendant’s objections to the admission of the test results showing his blood–alcohol concentration. Accordingly, the judgment of the trial court was affirmed.

The petitioner's dismissive attitude and intermittent obstinance at the sanctions hearing undoubtedly taxed the trial court’s patience and was relevant to what sanctions should be imposed but did not itself justify the imposition of sanctions.
Brewer v. Lennox Hearth Products, LLC
Appellate: Civil, Ethics, Gov't/Administrative, Procedure
The Supreme Court of Texas
April 24, 2020
18-0426
Eva M. Guzman
Published
The petitioner appealed the judgment of the trial court which sanctioned the petitioner for commissioning a pretrial survey that commenced in the county of suit shortly before trial, in the underlying products-liability and wrongful-death suit. The Supreme Court noted that there was no rule, statute, or applicable court order categorically prohibiting or specifically constraining the use of a pretrial survey in the case or otherwise. The Supreme Court found that the survey the petitioner commissioned was not a model of perfection, and its execution was not flawless. The Supreme Court concluded that the petitioner's dismissive attitude and intermittent obstinance at the sanctions hearing undoubtedly taxed the trial court’s patience and was relevant to what sanctions should be imposed but did not itself justify the imposition of sanctions. Accordingly, the judgment of the trial court was reversed and vacated.  

The Supreme Court concluded that there were factual disputes to be resolved regarding whether the bayou was a navigable stream within the scope of the statutory conveyance.
Bush v. Lone Oak Club, LLC
Appellate: Civil, Environmental, Gov't/Administrative, Procedure, Real Property
The Supreme Court of Texas
April 24, 2020
18-0264
J. Brett Busby
Published
The State appealed the judgment of the trial court in a title dispute between the State and the respondent (private landowner) over portions of the submerged bed of the bayou, a navigable body of water located near the Gulf of Mexico. On appeal, the State contended that the statute did not validate the respondent’s title to the bayou’s bed because the term “navigable stream” referred only to portions of the stream not subject to the ebb and flow of the tide, and the tide entered the bayou. The Supreme Court found that because the plain and settled meaning of the statutory term “navigable stream” under both the civil and the common law included portions of the stream below the tide line, the beds underlying those portions were properly conveyed. The Supreme Court concluded that there were factual disputes to be resolved regarding whether the bayou was a navigable stream within the scope of the statutory conveyance. Accordingly, the judgment of the trial court was reversed and remanded.  

Since there was no authority that suggested the respondent had the discretion to order the State to pay attorney fees or other monetary sanctions to counsel for RPI and given that the State had no adequate remedy by appeal, the court conditionally granted the petition.
In re Texas
Constitution, Damages, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
April 23, 2020
01-19-00688-CR
Russell Lloyd
Published
The State appealed the judgment of the trial court, seeking mandamus relief from the trial court’s order that it pay $500 in attorney fees to defense counsel as a sanction following a discovery dispute. The appellate court noted that the real party in interest (RPI) asserted the award of monetary sanctions was a discretionary act that was supported by the State’s record of discovery abuse, and the respondent had inherent authority to impose the sanctions. The appellate court found that the State had no adequate remedy by appeal as to the imposition of the monetary sanction and its only remedy was to seek a writ of mandamus. The appellate court concluded that because there was no authority that suggested the respondent had the discretion to order the State to pay attorney fees or other monetary sanctions to counsel for RPI and given that the State had no adequate remedy by appeal, the court conditionally granted the petition. Accordingly, the judgment of the trial court was vacated.  

Since the record showed that there was no final judgment in the case and the plaintiff was seeking to appeal a non-appealable interlocutory order, the court lacked jurisdiction over the appeal.
Frausto v. RC Indus. LLC
Appellate: Civil, Damages, Employment, Procedure, Workers' Compensation
Texas 4th Court of Appeals
April 22, 2020
04-19-00166-CV
Luz Elena D Chapa
Published
The plaintiff appealed the judgment of the trial court, alleging that the defendant took an adverse employment action against him because he sought worker’s compensation benefits. On appeal, the plaintiff contended that the adverse employment action was that the defendant terminated his employment. The plaintiff further asserted that he was unable to go to work as a result of the defendant’s refusal to provide him with transportation to work as promised. The appellate court found that because the order granting the summary judgment motion was not a final judgment, the court need not address whether the plaintiff’s amended pleading presented a separate cause of action for the trial court’s consideration, and whether the order granting the defendant’s motion actually disposed of that other cause of action. The appellate court concluded that since the record showed that there was no final judgment in the case and the plaintiff was seeking to appeal a non-appealable interlocutory order, the court lacked jurisdiction over the appeal. Accordingly, the judgment of the trial court was affirmed.  

The trial court did not abuse its discretion by finding that the plaintiff failed to carry his burden under TEX. R. CIV. P. Rule 145 and was therefore not unable to afford payment of court costs.
Emerson v. Holly Lake Ranch Ass'n
Appellate: Civil, Banking and Finance, Contracts, Employment, Evidence, Procedure, Real Property, Securities
Texas 6th Court of Appeals
April 20, 2020
06-20-00020-CV
Scott E. Stevens
Published
The plaintiff appealed the judgment of the trial court which denied the plaintiff’s claim of inability to afford payment of court costs. On appeal, the plaintiff challenged the trial court’s decision to sustain the contest and issue an order denying the plaintiff’s claim of inability to afford payment of court costs. The appellate court noted that the plaintiff relied on the fact that his bank statement reflected a balance, significant deposits and steady withdrawals. The appellate court found that the evidence indicated that the plaintiff had an accounting degree, had worked as a flood claims adjuster at which he earned significant money, and attended law school, and thus, he was able to afford certain expenses that could perhaps be viewed as discretionary. The appellate court concluded that the trial court did not abuse its discretion by finding that the plaintiff failed to carry his burden under TEX. R. CIV. P. Rule 145 and was therefore not unable to afford payment of court costs. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the portion of the trial court’s order denying the movants’ joint motion for leave to designate responsible third parties constituted an abuse of discretion.
In re Bertrand
Appellate: Civil, Constitution, Procedure
Texas 2nd Court of Appeals
April 16, 2020
02-20-00028-CV
Mike Wallach
Published
The movants appealed the judgment of the trial court, filing a writ of mandamus for leave to designate responsible third parties. On appeal, the plaintiffs objected to the motion, contending that the movants had not complied with their obligation to timely disclose the two doctors named in the motion as responsible third parties under Rule 194.2(l) of the Texas Rules of Civil Procedure, as required by Section 33.004(d). The appellate court found that the movants’ conduct, in failing to respond and seasonably supplement disclosure responses regarding potential responsible third parties after the plaintiffs’ limitations had expired against the potential responsible third parties, was immaterial to whether the movants failed to timely disclose potential responsible third parties for purposes of Tex. Civ. Prac. & Rem. Code Ann. Section 33.004(d). The appellate court concluded that the portion of the trial court’s order denying the movants’ joint motion for leave to designate responsible third parties constituted an abuse of discretion. Accordingly, the court conditionally granted the writ of mandamus.

Since the respondent failed to timely file his lawsuit, he failed to satisfy a jurisdictional statutory prerequisite to suit.
City of Madisonville v. Sims
Appellate: Civil, Employment, Gov't/Administrative, Procedure
The Supreme Court of Texas
April 17, 2020
18-1047
Per Curiam
Published
The City appealed the judgment of the appellate court which reversed the trial court’s grant of its jurisdictional plea, claiming that the respondent’s suit was time-barred because it was filed after the Whistleblower Act’s ninety-day filing deadline. The Supreme Court noted that the appellate court misapplied State v. Lueck because the case dealt with a governmental entity’s challenge to the lack of “jurisdictional facts” pleaded by a former employee to satisfy the substantive elements of a Whistleblower Act claim. The Supreme Court found that because the Whistleblower Act’s immunity-waiver provision said the former employee must allege a violation of the chapter, the court considered whether the employee’s claims amounted to a violation of the Whistleblower Act to determine whether immunity had been waived. The Supreme Court concluded that because the respondent failed to timely file his lawsuit, he failed to satisfy a jurisdictional statutory prerequisite to suit. Accordingly, the judgment of the appellate court was reversed.  

The appellate court concluded that it could not find that, beyond a reasonable doubt, the trial court’s ruling did not contribute to the defendant’s guilty plea and resulting judgment of deferred adjudication.
Lamb v. State
Constitution, Criminal, Evidence, Juvenile, Procedure
Texas 6th Court of Appeals
April 17, 2020
06-19-00203-CR
Ralph Burgess
Published
The defendant appealed the judgment of the trial court which denied the three pretrial motions to suppress evidence, resulting in the court placing him on deferred adjudication community supervision for a period of ten years and imposed a fine. On appeal, the defendant alleged that the trial court erred in denying his motion to suppress the cell phones seized from his person and vehicle. The appellate court noted that the affidavit described the defendant as having a special connection with the premises because he was alleged to have been in control of the premises, and because of the “special connection,” the defendant was clearly subject to detention incident to the execution of the search warrant. The appellate court found that the trial court erred in denying the defendant’s motion to suppress evidence of the cell phone taken from his back pocket during a warrantless search. The appellate court concluded that it could not find that, beyond a reasonable doubt, the trial court’s ruling did not contribute to the defendant’s guilty plea and resulting judgment of deferred adjudication. Accordingly, the judgment of the trial court was reversed and remanded.  

The Supreme Court concluded that it could not be blind to the possibility for such gamesmanship if appellate court opinions on issues of public importance could be insulated from Supreme Court review by strategically timed non-suits.
Morath v. Lewis
Appellate: Civil, Education, Gov't/Administrative, Procedure
The Supreme Court of Texas
April 17, 2020
18-0555
Per Curiam
Published
The petitioner appealed the judgment of the trial court which denied its plea to the jurisdiction in an action against the petitioner, in his official capacity as the Commissioner of the Texas Education Agency (TEA), alleging TEA administered the standardized STAAR exams in violation of the governing statutes. Thereafter the petitioner filed in the Supreme Court a “Notice of Nonsuit Without Prejudice” and moved to dismiss the appeal as moot. The Supreme Court noted that mootness was wholly the result of voluntary action by the party who prevailed, and the legal issues involved were potentially of consequence to schools across Texas and to the government’s defense of ultra vires claims in other contexts. The Supreme Court found that the non-suit came only after at least three judges of the Court decided the case was sufficiently worthy of further examination to request merits briefs. The Supreme Court concluded that it could not be blind to the possibility for such gamesmanship if appellate court opinions on issues of public importance could be insulated from Supreme Court review by strategically timed non-suits. Accordingly, the court granted the respondents’ motion to dismiss.

To the extent that the trial court’s earlier ruling precluded a determination of whether any of the production from the horizontal well was, at the time the corporation acquired its interest, coming from an interval that was open to production in the wellbore of the existing vertical wells.
Jones Energy, Inc. v. Pima Oil & Gas, L.L.C.
Appellate: Civil, Contracts, Corporations, Procedure
Texas 7th Court of Appeals
April 14, 2020
07-17-00456-CV
Patrick A. Pirtle
Published
The defendant appealed the judgment of the trial court in a suit filed by the plaintiffs, alleging that the defendant, as operator of the horizontal well, failed to properly account to the plaintiff for its overriding royalty interest (ORRI) acquired by virtue of that assignment. On appeal, the plaintiff sought recovery of ORRI payments it claimed were due and unpaid. The appellate court found that it must remand the proceeding to the trial court for a determination of the intervals of the formations that were open to production in the wellbore of the vertical wells, at the time assignor corporation acquired its interest. The appellate court concluded that to the extent that the trial court’s earlier ruling precluded a determination of whether any of the production from the horizontal well was, at the time the corporation acquired its interest, coming from an interval that was open to production in the wellbore of the existing vertical wells. Accordingly, the judgment of the trial court was remanded for further proceedings.  

The trial court’s conclusion that the petitioner failed to satisfy Section 101.101’s notice requirement was erroneous.
Reyes v. Jefferson Cnty.
Appellate: Civil, Damages, Employment, Evidence, Gov't/Administrative, Litigation: Personal Injury, Torts
The Supreme Court of Texas
April 17, 2020
18-1221
Per Curiam
Published
The petitioner appealed the judgment of the appellate court which reversed the trial court’s denial of the respondent’s plea on the specific grounds presented. On appeal, the petitioner challenged the appellate court’s reversal and dismissal of the suit with prejudice for lack of statutory notice under the Texas Tort Claims Act (TTCA) for injuries he allegedly sustained. The Supreme Court noted that the respondent and its authorized claims administrator knew about the petitioner's allegations that a specifically identified county employee had injured him in an automobile accident. The Supreme Court found that because the undisputed evidence in the record established actual notice, dismissal of the petitioner's lawsuit was improper on the basis of noncompliance with Tex. Civ. Prac. & Rem. Code Section 101.101. The Supreme Court concluded that the trial court’s conclusion that the petitioner failed to satisfy Section 101.101’s notice requirement was erroneous. Accordingly, the judgment of the appellate court was reversed and remanded.    

The Supreme Court concluded that if the final judgment was deficient, the remedy came by appeal, not by the deprivation of appellate jurisdiction.
Bella Palma, LLC v. Young
Appellate: Civil, Corporations, Damages, Procedure, Torts
The Supreme Court of Texas
April 17, 2020
19-0204
Per Curiam
Published
The petitioner appealed the judgment of the trial court, seeking declaratory judgment and monetary damages arising from a commercial construction project. On appeal, the Supreme Court noted that the appellate court abated the appeal and asked the trial court to clarify the judgment’s finality. The Supreme Court found that the trial court replied in its Clarifying Order Confirming Final Judgment, explaining in no uncertain terms that the order was intended to be a final judgment. The Supreme Court further determined that having received a clear and unequivocal statement that the trial court had intended to render a final judgment, the appellate court had no authority to review the record and arrived at a contrary conclusion. The Supreme Court concluded that if the final judgment was deficient, the remedy came by appeal, not by the deprivation of appellate jurisdiction. Accordingly, the judgment of the trial court was reversed and remanded.

The trial court did not abuse its discretion in denying the defendant’s motion to suppress the complainant’s in-court identification.
McGuire v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 16, 2020
14-18-00403-CR
Meagan Hassan
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated robbery with a deadly weapon. The appellate court noted that the defendant did not establish by clear and convincing evidence that the complainant’s pretrial identification of the defendant was inadmissible, and thus, the trial court did not err in denying the defendant’s motion to suppress evidence regarding the complainant’s pretrial identification. The appellate court found that considering the totality of the circumstances, the identification procedure that preceded the complainant’s in-court identification did not give rise to a substantial likelihood of misidentification. The appellate court concluded that the trial court did not abuse its discretion in denying the defendant’s motion to suppress the complainant’s in-court identification. Accordingly, the judgment of the trial court was affirmed.  

The trial court had subject matter jurisdiction over the plaintiff’s suit against the defendant and it properly denied the defendant’s plea to the jurisdiction.
Collier v. Suhre
Appellate: Civil, Evidence, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
April 16, 2020
01-19-00444-CV
Russell Lloyd
Published
The defendant appealed the judgment of the trial court which denied his plea to the jurisdiction in the suit brought against him by the plaintiff. On appeal, the defendant contended that the trial court erred in denying his plea because the plaintiff failed to plead that the defendant acted without legal authority or failed to perform a purely ministerial act. The appellate court noted that if the evidence created a fact question regarding the jurisdictional issue, then the trial court could not grant the plea to the jurisdiction, and the fact issue would be resolved by the fact finder. The appellate court found that if the pleadings were not sufficient to demonstrate jurisdiction, an opportunity to re-plead should be given unless the pleadings affirmatively negated jurisdiction. The appellate court concluded that the trial court had subject matter jurisdiction over the plaintiff’s suit against the defendant and it properly denied the defendant’s plea to the jurisdiction. Accordingly, the judgment of the trial court was affirmed.    

The combined force of the facts known to the officer supported the trial court’s conclusion that the officer had reasonable suspicion to detain the defendant for an investigation into possible narcotics trafficking.
Villarreal v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 16, 2020
14-18-00406-CR
Ken Wise
Published
The defendant appealed the judgment of the trial court which denied the defendant’s motion to suppress after he plead guilty to possession of a controlled substance. On appeal, the defendant challenged the trial court’s denial. The appellate court noted that the possibility of an innocent explanation for the no-record return did not prevent the officer from reasonably suspecting that the vehicle was unregistered based on the no-record return. The appellate court found that the officer justifiably stopped the defendant to resolve the ambiguity. The appellate court concluded that the prior encounter between the officer and the defendant would not necessarily establish reasonable suspicion in isolation, however, the combined force of the facts known to the officer supported the trial court’s conclusion that the officer had reasonable suspicion to detain the defendant for an investigation into possible narcotics trafficking. Accordingly, the judgment of the trial court was affirmed.

The defendant failed to meet his burden to show the statute was unconstitutional as applied to him.
Singleton v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 16, 2020
14-18-00320-CR
Frances Bourliot
Published
The defendant appealed the judgment of the trial court which convicted him of continuous sexual abuse of a young child. The appellate court noted that despite the waiver, the trial court would not have abused its discretion in admitting evidence of the defendant’s prior extraneous offense under article 38.37 of the Code of Criminal Procedure because the defendant received notice of the State’s intention to introduce the evidence. The appellate court found that the defendant had not shown that he was surprised or unable to mount an effective defense. The appellate court further determined that the defendant had not shown on the record that he was deprived of due process based on the application of article 38.37. The appellate court concluded that the defendant failed to meet his burden to show the statute was unconstitutional as applied to him. Accordingly, the judgment of the trial court was affirmed. 

Since the defendant did not seek to suppress his admission that he was carrying a firearm in the trial court, he had not preserved the issue for the court's review.
Stringer v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
April 16, 2020
01-19-00343-CR
Gordon Goodman
Published
The defendant appealed the judgment of the trial court which convicted him of unlawful possession of a firearm by a felon after the trial court denied his motion to suppress the evidence. On appeal, the defendant contended that the trial erred in denying his motion. The appellate court noted that the trial court’s ruling was supported by the evidence, and it correctly applied the law to its findings of fact. The appellate court found that the trial court did not err in denying the defendant’s motion to suppress. The appellate court further determined that the State stipulated that it did not intend to introduce any of those statements into evidence, and the defendant admitted that he was armed immediately before the officer searched him, which occurred before the defendant was detained in a peace officer’s vehicle. The appellate court concluded that since the defendant did not seek to suppress his admission that he was carrying a firearm in the trial court, he had not preserved the issue for the court's review. Accordingly, the judgment of the trial court was affirmed.  

The trial court reasonably could have found that presentation of the evidence would not consume an inordinate amount of time or be needlessly cumulative the State spent a comparatively small amount of time developing this evidence at trial.
Metcalf v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 16, 2020
14-19-00101-CR
Frances Bourliot
Published
The defendant appealed the judgment of the trial court which convicted him of capital murder. On appeal, the defendant contended that the trial court erred in refusing to instruct the jury on the law of parties and the lesser included offense of attempted capital murder. The appellate court noted that there was no evidence in the record that the defendant was a party, as opposed to a principal, to capital murder. The appellate court found that the trial court was not required to instruct the jury on the law of parties because the defendant was indicted and charged as a principal to capital murder, and thus, the trial court did not err in failing to submit the instruction. The appellate court further determined that the trial court did not err in refusing the defendant’s requested instruction on the lesser included offense of attempted capital murder because there was no evidence from which a jury could rationally find that the defendant had the specific intent to commit capital murder but failed to do so. The appellate court concluded that the trial court reasonably could have found that presentation of the evidence would not consume an inordinate amount of time or be needlessly cumulative the State spent a comparatively small amount of time developing this evidence at trial. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the trial court abused its discretion by denying the defendant’s motion for new trial.
MM&J Investments LLC v. KTH Investments, LLC
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 7th Court of Appeals
April 08, 2020
07-18-00396-CV
Judy C. Parker
Published
The defendant appealed the judgment of the trial court which overruled, by operation of law, their motion for a new trial. On appeal, the plaintiff alleged claims for breach of contract, tortious interference with contract, tortious interference with a business relationship, and fraud. The appellate court found that because the defendant’s affidavit and testimony that he did not receive the notice was uncontroverted, the evidence established that the defendant did not receive notice of the trial setting. The appellate court concluded that the trial court abused its discretion by denying the defendant’s motion for new trial. Accordingly, the judgment of the trial court was reversed and remanded for a new trial.

The mother lacked standing to challenge the trial court’s appointment of the appellee as the children’s managing conservator because that determination could not injuriously affect her rights.
In re J.M.
Appellate: Civil, Family, Juvenile, Procedure
Texas 6th Court of Appeals
April 09, 2020
06-19-00106-CV
Scott E. Stevens
Published
The mother appealed the judgment of the trial court which terminated the mother’s parental rights to her two minor children. On appeal, the mother challenged the trial court’s finding that termination was warranted pursuant to Section 161.001(b)(1), grounds (D), (E), (L), and (O) and in the children’s best interests. The appellate court noted that the investigator confirmed that, based on her investigation, the children’s physical and emotional well-being was endangered by the mother’s actions and by their home environment. The appellate court found that considering those factors, and considering all the evidence, the trial court could have reasonably formed a firm belief or conviction that termination of the mother’s parental rights was in the best interests of the children. The appellate court concluded that the mother lacked standing to challenge the trial court’s appointment of the appellee as the children’s managing conservator because that determination could not injuriously affect her rights. Accordingly, the judgment of the trial court was affirmed.

There was both factually and legally sufficient evidence to support the jury’s finding that the deceased signed the wills as the result of the petitioners’ undue influence.
In re Estate of Scott
Appellate: Civil, Procedure, Wills/Trusts/Probate
Texas 8th Court of Appeals
April 07, 2020
08-19-00011-CV
Jeff Alley
Published
The petitioners appealed the judgment of the trial court which found that they did not act in good faith in opposing the will contest and were not entitled to attorney’s fees. On appeal, the petitioners argued that the evidence was both factually and legally insufficient to support the jury’s findings. The appellate court noted that because there was sufficient evidence to support the jury’s finding that all three wills were signed as the result of undue influence, the petitioners did not act in good faith in defending the wills. The appellate court found that there was both factually and legally sufficient evidence for the jury to choose the respondents’ theory that the deceased was in fact influenced by the petitioners’ plan to take control of his estate, and that the deceased would not have drafted the Holographic Will disinheriting his cousins but for the petitioners’ undue influence. The appellate court concluded that there was both factually and legally sufficient evidence to support the jury’s finding that the deceased signed the wills as the result of the petitioners’ undue influence. Accordingly, the judgment of the trial court was affirmed.  

Viewing the evidence in the light most favorable to the trial court’s ruling, the trial court did not abuse its discretion by denying the defendant’s motion for new trial.
Olsen v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
April 14, 2020
01-18-00281-CR
Sarah Beth Landau
Published
The defendant appealed the judgment of the trial court which convicted her of driving while intoxicated with a child passenger. On appeal, the defendant challenged the trial court’s sentence to one year in a state jail facility. The appellate court noted that because the defendant failed to contest all facts material to the lawfulness of her arrest in the case, the defendant had not raised a fact issue essential to the determination of probable cause. The appellate court found that the trial court did not err by denying the defendant’s request to submit an Article 38.23 of the Texas Code of Criminal Procedure instruction to the jury. The appellate court further determined that the trial court could have reasonably determined that the strength of the State’s case was such that the new evidence identified by the defendant, even if true, was not compelling enough to probably bring about a different result in a new trial. The appellate court concluded that viewing the evidence in the light most favorable to the trial court’s ruling, the trial court did not abuse its discretion by denying the defendant’s motion for new trial. Accordingly, the judgment of the trial court was affirmed.   

There was nothing in the record before the court indicating that the defendant sought nunc pro tunc relief from the trial court or that a county detainer was lodged while he was held.
Lewis v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
April 14, 2020
06-19-00171-CR
Ralph Burgess
Published
The defendant appealed the judgment of the trial court which convicted him of failure to register as a sex offender and sentenced him to eight years imprisonment. The appellate court noted that because there was nothing indicating that the State subsequently established that there was a material change in the defendant’s financial circumstances, the State was not entitled to reimbursement for attorney fees for appellate counsel. The appellate court found that the statement in the judgment that the trial court-appointed attorney fees could later be assessed was erroneous. The appellate court concluded that there was nothing in the record before the court indicating that the defendant sought nunc pro tunc relief from the trial court or that a county detainer was lodged while he was held. Accordingly, the judgment of the trial court was affirmed.    

The detective’s testimony was reliable and relevant to the issue of whether the defendant engaged in reckless conduct, in part by speeding.
Brantley v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
April 07, 2020
01-18-01078-CR
Evelyn Keyes
Published
The defendant appealed the judgment of the trial court which convicted him of the felony offense of manslaughter and sentenced him to fifty years imprisonment. The appellate court noted that based on the amount of damage to the vehicle and the barriers, the police department testified that the defendant was speeding and the detective's testimony was not dispositive. The appellate court found that it did not believe that the detective’s lack of knowledge of the manufacturing process of the black box and its accelerometer or of the black box’s error rate affected the reliability of his testimony. The appellate court further determined that the principles and methods the detective used to explain the functioning of the black box were adequately acquired through his training, and the detective’s testimony was not conclusory or subjective. The appellate court concluded that the detective’s testimony was reliable and relevant to the issue of whether the defendant engaged in reckless conduct, in part by speeding. Accordingly, the judgment of the trial court was affirmed.  

The appellate court concluded that the trial court’s order denying habeas relief for the defendant was proper.
Ex parte Gallow
Constitution, Criminal, Evidence, Procedure
Texas 9th Court of Appeals
April 08, 2020
09-19-00218-CR
Hollis Horton III
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault and denied him habeas relief from the decision he made to plead guilty and take deferred adjudication on the indictment. The appellate court noted that the habeas court’s written findings showed that the trial court ruled without ordering a formal hearing because the defendant signed a judicial confession and he never alleged in his petition or swore in the affidavit he filed to support his petition that he did not commit each element of the crime and was not in fact guilty of the crime. The appellate court found that given the defendant’s guilty plea and his failure to explain why he never challenged the accuracy of the statements he made when he pleaded guilty, the habeas court did not abuse its discretion when it failed to conduct a formal hearing on the defendant’s petition. The appellate court concluded that the trial court’s order denying habeas relief for the defendant was proper. Accordingly, the judgment of the trial court was affirmed.    

When the court considered the testimony from the hearings, along with the results of the individual’s evaluation, it had sufficient information upon which to exercise its discretion and it did not err when it found that it was in the child’s best interest for the respondent to adopt him.
In re T.E.R.
Appellate: Civil, Family, Procedure
Texas 6th Court of Appeals
April 09, 2020
06-19-00073-CV
Ralph Burgess
Published
The petitioner appealed the judgment of the trial court which denied her motion to dismiss for lack of standing and granted the respondent’s petition for adoption. On appeal, the petitioner filed a motion to dismiss the respondent’s petition for adoption for lack of standing. The appellate court noted that the evidence showed that the respondent continued to care for the child and the contact that the respondent had with child constituted “substantial past contact” under Section 102.005(5) of the Texas Family Code. The appellate court found that the trial court conducted its hearings on the matter, entered an order requiring the individual, a licensed clinical social worker, to perform an adoption evaluation. The appellate court concluded that when the court considered the testimony from the hearings, along with the results of the individual’s evaluation, it had sufficient information upon which to exercise its discretion and it did not err when it found that it was in the child’s best interest for the respondent to adopt him. Accordingly, the judgment of the trial court was affirmed.  

The trial court erred by providing in the injunction order that the plaintiff would be entitled to recover its attorney’s fees if the defendant violated the injunction, and the court modified the judgment to delete that provision.
Sandberg v. STMicroelectronics, Inc.
Appellate: Civil, Contracts, Damages, Employment, Evidence, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 5th Court of Appeals
April 09, 2020
05-18-01360-CV
Lana Myers
Published
The defendant appealed the judgment of the trial court, seeking damages and injunctive relief, alleging he had been wrongfully discharged for refusing to violate the law. On appeal, the defendant challenged the trial court’s grant of the plaintiff’s motion, denial of the defendant’s motion, and order that the defendant take nothing on his counterclaim. The appellate court found that the evidence was factually insufficient to support the award of attorney’s fees for representation before the Supreme Court, and the court remanded that issue to the trial court for further proceedings. The appellate court concluded that the trial court erred by providing in the injunction order that the plaintiff would be entitled to recover its attorney’s fees if the defendant violated the injunction, and the court modified the judgment to delete that provision. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.

Since the plaintiffs’ motion was legally sufficient with respect to the location of the boundary line, the defendants could not defeat it without controverting the motion’s supporting evidence or raising a genuine issue of material fact as to their claim of adverse possession.
Ray v. Dennis
Appellate: Civil, Procedure, Real Property
Texas 6th Court of Appeals
April 07, 2020
06-19-00072-CV
Scott E. Stevens
Published
The defendants appealed the judgment of the trial court in a suit where the plaintiffs filed a declaratory judgment action, seeking a declaration of the boundary line between the lots that was established by the subdivision’s plat, a declaration that a barbed-wire fence was encroaching on their property, and an injunction preventing the defendants from interfering with the fence’s removal and attorney fees. On appeal, the defendants argued that they owned the property in dispute through adverse possession. The appellate court noted that because the plaintiffs submitted evidence entitling them to summary judgment on the issue of the location of the boundary line, the burden of proof shifted to the defendants to raise a genuine issue of material fact with respect to that issue or any affirmative defense they asserted. The appellate court concluded that since the plaintiffs’ motion was legally sufficient with respect to the location of the boundary line, the defendants could not defeat it without controverting the motion’s supporting evidence or raising a genuine issue of material fact as to their claim of adverse possession. Accordingly, the judgment of the trial court was affirmed.

The mother showed that the trial court abused its discretion by ordering, without a finding of good cause, the mother to pay the expense of producing items responsive to production requests.
Tolbert v. Taylor
Appellate: Civil, Discovery, Evidence, Family, Procedure, Torts
Texas 14th Court of Appeals
April 07, 2020
14-18-00001-CV
Margaret Poissant
Published
The mother appealed the judgment of the trial court, asserting that her electronic communications were illegally intercepted, used, and disclosed in a child-custody modification suit and against the ex-husband and his expert. On appeal, the mother challenged the trial court’s orders granting two summary judgment motions in favor of the husband and expert, and one of the trial court’s discovery orders. The appellate court noted that the mother showed that the trial court erred in granting the ex-husband summary judgment. The appellate court found that the mother showed that the trial court abused its discretion by ordering, without a finding of good cause, the mother to pay the expense of producing items responsive to production requests. Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded.  

The appellate court found that it need not address the defendant's additional contention that a trial court’s inherent power to require a registry deposit arose only when a specific, identifiable asset or fund was in danger of loss or depletion.
In re Warrior Energy Services Corp.
Appellate: Civil, Constitution, Contracts, Damages, Procedure, Technology, Torts
Texas 14th Court of Appeals
April 07, 2020
14-19-01010-CV
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which ruled against it in a breach of contract action. On appeal, the plaintiff contended that the defendant owed 25% of gross revenue to the first individual and a separate 25% to the second individual. The defendant contended that it paid lesser amounts for seven years until the plaintiff “reversed course” and claimed that the defendant was required to pay a total of 50% of gross revenue. The appellate court noted that because the plaintiff presented no legally sufficient evidence to demonstrate that the “disputed funds” were in danger of being “lost or depleted,” the trial court’s order was improper and an abuse of discretion under Castilleja. The appellate court found that it need not address the defendant's additional contention that a trial court’s inherent power to require a registry deposit arose only when a specific, identifiable asset or fund was in danger of loss or depletion. The appellate court concluded that an ordinary appeal was an inadequate remedy for such an order. Accordingly, the court conditionally granted the petition for writ of mandamus.  

The appellate court noted that because whether there was legally sufficient evidence supporting the alleged contract’s existence was now before the court, it would proceed to conduct that review.
Dixie Carpet Installations, Inc. v. Residences at Riverdale, LP
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 5th Court of Appeals
April 01, 2020
05-18-01479-CV
Bill Whitehill
Published
The plaintiff appealed the judgment of the trial court which ruled against the defendant in the plaintiff’s suit alleging breach of contract, fraud, conspiracy, and quantum meruit. On appeal, the plaintiff claimed that the defendant waived the agency issue by not raising the issue in its pleadings and not objecting to agency being absent in the charge. The plaintiff further argued that agency was not an independent ground of recovery but was subsumed in the contract formation element and a Rule 279 deemed finding was supported by the evidence. The appellate court noted that because whether there was legally sufficient evidence supporting the alleged contract’s existence was now before the court, it would proceed to conduct that review. The appellate court found that the defendant converted the plaintiff’s property by voiding the check made payable to the plaintiff. The appellate court concluded that the check was the vehicle by which the defendant was going to perform its contract duty to pay the plaintiff the promised discounted sum. Accordingly, the judgment of the trial court was reversed and remanded.  

The trial court did not err in denying the plaintiff’s motion to dismiss and the plaintiff failed to meet his burden to establish by a preponderance of the evidence that the TCPA applied to the defendant’s counterclaims.
Casey v. Stevens
Appellate: Civil, Constitution, Gov't/Administrative, Procedure, Torts
Texas 7th Court of Appeals
April 02, 2020
07-19-00175-CV
Judy C. Parker
Published
The plaintiff appealed the judgment of the trial court which overruled, by operation of law, his motion to dismiss the defendant’s counterclaims for tortious interference with existing and prospective business relations and injunctive relief. The appellate court noted that the communications expressly addressed in the defendant’s counterclaim were made prior to the plaintiff filing suit. The appellate court found that the defendant’s claims were based on the plaintiff, with knowledge of the defendant’s claim of right to a distribution from the account, willfully and intentionally interfering with the defendant’s interest by contacting the individual beneficiary to prevent it from making any such distributions. The appellate court further determined that since defendant’s claims were limited to the plaintiff’s pre-suit communications with the individual beneficiary, the communications were not made in or pertaining to a judicial proceeding and the plaintiff failed to establish that the claims were subject to the TCPA. The appellate court concluded that the trial court did not err in denying the plaintiff’s motion to dismiss and the plaintiff failed to meet his burden to establish by a preponderance of the evidence that the TCPA applied to the defendant’s counterclaims. Accordingly, the judgment of the trial court was affirmed.

Since there was no evidence to support a direct negligence finding against the defendant, the trial court did not abuse its discretion by denying the plaintiff’s motion for leave to amend her pleadings to add a direct negligence cause of action.
Edwards v. Chevrolet
Appellate: Civil, Damages, Employment, Evidence, Litigation: Personal Injury, Procedure, Torts
Texas 2nd Court of Appeals
April 02, 2020
02-19-00058-CV
Bonnie Sudderth
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for judgment notwithstanding the verdict (JNOV) and rendered a take-nothing judgment, in a suit under a theory of vicarious liability for the negligence. On appeal, the plaintiff sought damages, including medical expenses and past and future physical pain and mental anguish, for injuries to her neck, back, and shoulders as a result of the collision. The defendant argued that the plaintiff had failed to establish its vicarious liability because the plaintiff presented no evidence that the collision was caused by one of its employees. The appellate court found that because the evidence was legally insufficient to support the jury’s finding of direct negligence against the defendant, the trial court did not err by granting JNOV on that ground. The appellate court concluded that because there was no evidence to support a direct negligence finding against the defendant, the trial court did not abuse its discretion by denying the plaintiff’s motion for leave to amend her pleadings to add a direct negligence cause of action. Accordingly, the judgment of the trial court was affirmed.  

The respondent was not entitled to subtract its costs related to the exhibitions as the Cost of Goods Sold for the tax years.
Hegar v. Am. Multi-Cinema, Inc.
Appellate: Civil, Business, Entertainment, Gov't/Administrative, Procedure, Real Property, Tax
The Supreme Court of Texas
April 03, 2020
17-0464
J. Brett Busby
Published
The petitioner appealed the judgment of the appellate court which affirmed the trial court’s conclusion that Tax Code Section 171.1012 permitted the respondent to subtract exhibition costs as the Cost of Goods Sold (COGS) because the theater produced goods for sale in the ordinary course of business by exhibiting films to paying customers. On appeal, the petitioner challenged the appellate court’s holding that film exhibitions qualified as tangible personal property under the “film” prong of the statutory definition. The Supreme Court found that because no tangible personal property was transferred through the respondent's film exhibitions, the exhibitions were not goods under Section 171.1012(a)(1). The Supreme Court concluded that the respondent was not entitled to subtract its costs related to the exhibitions as COGS for the tax years. Accordingly, the judgment of the appellate court was reversed.

The Supreme Court concluded that the respondent was not entitled to include costs under subsection 171.1012(i) in calculating its COGS subtraction.
Hegar v. Gulf Copper & Mfg. Corp.
Appellate: Civil, Gov't/Administrative, Procedure, Tax
The Supreme Court of Texas
April 03, 2020
17-0894
Debra Ann H. Lehrman
Published
The petitioner appealed the judgment of the appellate court which rendered judgment in favor of the respondent after the petitioner determined that a taxable entity paid an insufficient amount for the tax year. On appeal, the parties disagreed about whether the respondent, in calculating the amount of franchise tax owed, could exclude certain payments from its revenue under Texas Tax Code subsection 171.1011(g)(3) and include certain costs in its “cost of goods sold” (COGS) subtraction under section 171.1012. The Supreme Court agreed with the appellate court that the petitioner incorrectly disallowed the revenue exclusion. The Supreme Court found that with regard to the COGS subtraction, the subtraction must be calculated on a cost-by-cost basis and that the calculation method accepted by the trial court was improper. The Supreme Court concluded that the respondent was not entitled to include costs under subsection 171.1012(i) in calculating its COGS subtraction. Accordingly, the judgment of the appellate court was in affirmed part, reversed it in part, and remanded.  

Under subsection (i), the petitioner did not furnish labor or materials to a project for the construction, improvement, remodeling, repair, or industrial maintenance of real property, and therefore, did not qualify as an entity entitled to subtract COGS.
Sunstate Equip. Co., LLC v. Hegar
Appellate: Civil, Contracts, Gov't/Administrative, Procedure, Real Property, Tax
The Supreme Court of Texas
April 03, 2020
17-0444
Paul W. Green
Published
The petitioner appealed the judgment of the appellate court which reversed the trial court’s denial of the respondent’s motion and granted the petitioner’s motion, ordering a full refund of the amount paid, including interest, in the underlying tax dispute. The Supreme Court noted that neither section 171.1012(k-1) of the Texas Tax Code nor section 171.1012(i) authorized the petitioner to subtract as the Cost of Goods Sold (COGS) any of its costs associated with the delivery and pick up of its rental equipment. The Supreme Court found that under section 171.1012(k-1), the Legislature authorized heavy equipment rental or leasing companies to subtract COGS, but the COGS subtraction was limited to the costs allowed under section 171.1012(c) through (f). the Supreme Court further determined that while the petitioner qualified as an entity authorized to subtract COGS under subsection (k-1), its costs at issue were not for acquisition or production of the equipment it rented to customers and did not fall within the allowable direct, related, or administrative overhead costs provided in the statute. The Supreme Court concluded that under subsection (i), the petitioner did not furnish labor or materials to a project for the construction, improvement, remodeling, repair, or industrial maintenance of real property, and therefore, did not qualify as an entity entitled to subtract COGS. Accordingly, the judgment of the appellate court was affirmed.  

The appellate court concluded that it could not find beyond a reasonable doubt that the jury verdict would have been the same absent the constitutional error.
Do v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 02, 2020
14-18-00600-CR
Charles Spain
Published
The defendant appealed the judgment of the trial court which convicted him of the Class A misdemeanor of driving while intoxicated (DWI) with an alcohol concentration of 0.15 or more at the time the analysis was performed. On appeal, the defendant challenged the trial court’s assessment of punishment at a $250 fine and one-year confinement in the county jail, but suspended the sentence, and placed the defendant on community supervision for one year and imposed a $250 fine. The appellate court noted that having been presented with the information, the trial court was vested with jurisdiction of the cause and over the defendant. The appellate court found that lacking knowledge beyond a reasonable doubt that the jury unanimously found the intoxication element based on the per se theory, the additional 0.15 element of Class A misdemeanor DWI was either inherent in the elements the jury found or logically encompassed by its guilty verdict. The appellate court concluded that it could not find beyond a reasonable doubt that the jury verdict would have been the same absent the constitutional error. Accordingly, the judgment of the trial court was reversed in part, affirmed in part, and remanded for further proceedings.  

The trial court erred in removing the decision on negligence from the jury and directing a verdict in favor of the respondent.
Douglas v. Aguilar
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
April 02, 2020
14-18-00900-CV
Jerry Zimmerer
Published
The petitioner appealed the judgment of the trial court which ruled against the plaintiff in an automobile accident case. On appeal, the petitioner contended that the trial court erred when it granted the respondent’s motion for directed verdict on the issue of negligence. The appellate court noted that the petitioner testified that she checked her surroundings and looked in her mirrors before she changed lanes but did not see the respondent’s car before she moved over, and there was some evidence that the petitioner did what a person of ordinary prudence would have done under the same or similar circumstances. The appellate court found that the evidence in the case was not such that no other verdict on negligence could be rendered, and the respondent was not entitled, as a matter of law, to a finding of negligence. The appellate court concluded that the trial court erred in removing the decision on negligence from the jury and directing a verdict in favor of the respondent. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.  

The record showed the defendant waived his right to a jury trial in writing and with the approval of the State and the trial court.
Jones v. State
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
April 01, 2020
05-19-00414-CR
Erin A. Nowell
Published
The defendant appealed the judgment of the district court which convicted him of evading arrest or detention with a vehicle and two charges of aggravated assault with a deadly weapon. On appeal, the defendant challenged the trial court’s decision to place him on deferred adjudication community supervision in each case. The Fifth Circuit noted that because the defendant used a motor vehicle in his flight, the offense was a third-degree felony regardless of whether he had a prior conviction for evading arrest or detention. The Fifth Circuit found that defense counsel informed the trial court he was satisfied his client was mentally competent at the plea hearing, and the trial court found the defendant was mentally competent to enter the pleas. The Fifth Circuit further determined that the record showed the defendant waived his right to a jury trial in writing and with the approval of the State and the trial court. The Fifth Circuit concluded that the parties agreed there would be no deadly-weapon findings in the deferred-adjudication orders, and since those orders incorrectly include deadly-weapon findings, the court deleted them in trial court cause numbers. Accordingly, the judgment of the district court was affirmed.  

Since there was no evidence to support a direct negligence finding against the defendant, the trial court did not abuse its discretion by denying the plaintiff’s motion for leave to amend her pleadings to add a direct negligence cause of action.
Edwards v. Chevrolet
Appellate: Civil, Damages, Employment, Evidence, Litigation: Personal Injury, Procedure, Torts
Texas 2nd Court of Appeals
April 02, 2020
02-19-00058-CV
Bonnie Sudderth
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for judgment notwithstanding the verdict (JNOV) and rendered a take-nothing judgment, in a suit under a theory of vicarious liability for the negligence. On appeal, the plaintiff sought damages, including medical expenses and past and future physical pain and mental anguish, for injuries to her neck, back, and shoulders as a result of the collision. The defendant argued that the plaintiff had failed to establish its vicarious liability because the plaintiff presented no evidence that the collision was caused by one of its employees. The appellate court found that because the evidence was legally insufficient to support the jury’s finding of direct negligence against the defendant, the trial court did not err by granting JNOV on that ground. The appellate court concluded that because there was no evidence to support a direct negligence finding against the defendant, the trial court did not abuse its discretion by denying the plaintiff’s motion for leave to amend her pleadings to add a direct negligence cause of action. Accordingly, the judgment of the trial court was affirmed.  

The respondent was not entitled to subtract its costs related to the exhibitions as the Cost of Goods Sold for the tax years.
Hegar v. Am. Multi-Cinema, Inc.
Appellate: Civil, Business, Entertainment, Gov't/Administrative, Procedure, Real Property, Tax
The Supreme Court of Texas
April 03, 2020
17-0464
J. Brett Busby
Published
The petitioner appealed the judgment of the appellate court which affirmed the trial court’s conclusion that Tax Code Section 171.1012 permitted the respondent to subtract exhibition costs as the Cost of Goods Sold (COGS) because the theater produced goods for sale in the ordinary course of business by exhibiting films to paying customers. On appeal, the petitioner challenged the appellate court’s holding that film exhibitions qualified as tangible personal property under the “film” prong of the statutory definition. The Supreme Court found that because no tangible personal property was transferred through the respondent's film exhibitions, the exhibitions were not goods under Section 171.1012(a)(1). The Supreme Court concluded that the respondent was not entitled to subtract its costs related to the exhibitions as COGS for the tax years. Accordingly, the judgment of the appellate court was reversed.

The Supreme Court concluded that the respondent was not entitled to include costs under subsection 171.1012(i) in calculating its COGS subtraction.
Hegar v. Gulf Copper & Mfg. Corp.
Appellate: Civil, Gov't/Administrative, Procedure, Tax
The Supreme Court of Texas
April 03, 2020
17-0894
Debra Ann H. Lehrman
Published
The petitioner appealed the judgment of the appellate court which rendered judgment in favor of the respondent after the petitioner determined that a taxable entity paid an insufficient amount for the tax year. On appeal, the parties disagreed about whether the respondent, in calculating the amount of franchise tax owed, could exclude certain payments from its revenue under Texas Tax Code subsection 171.1011(g)(3) and include certain costs in its “cost of goods sold” (COGS) subtraction under section 171.1012. The Supreme Court agreed with the appellate court that the petitioner incorrectly disallowed the revenue exclusion. The Supreme Court found that with regard to the COGS subtraction, the subtraction must be calculated on a cost-by-cost basis and that the calculation method accepted by the trial court was improper. The Supreme Court concluded that the respondent was not entitled to include costs under subsection 171.1012(i) in calculating its COGS subtraction. Accordingly, the judgment of the appellate court was in affirmed part, reversed it in part, and remanded.  

Under subsection (i), the petitioner did not furnish labor or materials to a project for the construction, improvement, remodeling, repair, or industrial maintenance of real property, and therefore, did not qualify as an entity entitled to subtract COGS.
Sunstate Equip. Co., LLC v. Hegar
Appellate: Civil, Contracts, Gov't/Administrative, Procedure, Real Property, Tax
The Supreme Court of Texas
April 03, 2020
17-0444
Paul W. Green
Published
The petitioner appealed the judgment of the appellate court which reversed the trial court’s denial of the respondent’s motion and granted the petitioner’s motion, ordering a full refund of the amount paid, including interest, in the underlying tax dispute. The Supreme Court noted that neither section 171.1012(k-1) of the Texas Tax Code nor section 171.1012(i) authorized the petitioner to subtract as the Cost of Goods Sold (COGS) any of its costs associated with the delivery and pick up of its rental equipment. The Supreme Court found that under section 171.1012(k-1), the Legislature authorized heavy equipment rental or leasing companies to subtract COGS, but the COGS subtraction was limited to the costs allowed under section 171.1012(c) through (f). the Supreme Court further determined that while the petitioner qualified as an entity authorized to subtract COGS under subsection (k-1), its costs at issue were not for acquisition or production of the equipment it rented to customers and did not fall within the allowable direct, related, or administrative overhead costs provided in the statute. The Supreme Court concluded that under subsection (i), the petitioner did not furnish labor or materials to a project for the construction, improvement, remodeling, repair, or industrial maintenance of real property, and therefore, did not qualify as an entity entitled to subtract COGS. Accordingly, the judgment of the appellate court was affirmed.  

The defendant’s complaints regarding the admission of extraneous wrongful acts evidence were forfeited in some instances and, as for the preserved complaints, the trial court did not abuse its discretion in admitting the evidence.
Davison v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
April 02, 2020
06-19-00092-CR
Ralph Burgess
Published
The defendant appealed the judgment of the trial court which convicted him of two counts of aggravated kidnapping and assessed a punishment of fifty-four years’ imprisonment after finding the State’s enhancement allegations to be true. On appeal, the defendant challenged the trial court’s conviction and sentence. The appellate court found that legally sufficient evidence supported the defendant’s conviction, and that the defendant was not egregiously harmed by the trial court’s jury-charge error. The appellate court concluded that the defendant’s complaints regarding the admission of extraneous wrongful acts evidence were forfeited in some instances and, as for the preserved complaints, the trial court did not abuse its discretion in admitting the evidence. Accordingly, the judgment of the trial court was affirmed.  

The appellate court concluded that since it found the evidence legally and factually sufficient to support the trial court’s best-interest finding, it would overrule the respondent's points of error.
In re H.C.
Appellate: Civil, Family, Gov't/Administrative, Juvenile, Procedure
Texas 6th Court of Appeals
April 01, 2020
06-19-00097-CV
Scott E. Stevens
Published
The Department appealed the judgment of the trial court which found that the ground for terminating the respondent's parental rights existed and that termination of her parental rights was in the child's best interests. On appeal, the Department claimed that the respondent’s rights to her child must be terminated on the ground that she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the child's return after he had been in the temporary managing conservatorship of the Department for not less than nine months as a result of his removal for abuse or neglect. The appellate court noted that the Holley factors weighed in favor of terminating the respondent's parental rights to the child. The appellate court found that as a result, despite the respondent's seeming turn-around, the totality of the evidence was such that a reasonable fact-finder could form a firm conviction or belief that termination of the respondent's parental rights was in the child's best interest. The appellate court concluded that since it found the evidence legally and factually sufficient to support the trial court’s best-interest finding, it would overrule the respondent's points of error. Accordingly, the judgment of the trial court was affirmed.    

The appellate court concluded that although it could not say the trial court erred by rejecting the father’s argument that Section 231.211(a) of the Texas Family Code barred an award of attorney’s fees, the award of attorney’s fees remained improper because the father was not a party.
In re Z.O.M.
Appellate: Civil, Family, Juvenile, Procedure
Texas 4th Court of Appeals
April 01, 2020
04-18-00918-CV
Luz Elena D Chapa
Published
The father appealed the judgment of the trial court which awarded attorney’s fees against the father in a child-custody enforcement action. The appellate court noted that the father presented no evidence of a governor-approved contract with the Office of the Attorney General (OAG), at the motion for new trial hearing, and asked the court to take judicial notice of OAG webpages appearing to show the father provided Title IV-D visitation enforcement. The appellate court found that it was reluctant to take judicial notice of matters that went to the merits of a dispute. The appellate court concluded that although it could not say the trial court erred by rejecting the father’s argument that Section 231.211(a) of the Texas Family Code barred an award of attorney’s fees, the award of attorney’s fees remained improper because the father was not a party. Accordingly, the judgment of the trial court was reversed.   

The appellate court concluded that the trial court did not err by granting summary judgment on the quantum-meruit claim.
Fuller v. Wholesale Elec. Supply Co. of Hous., Inc.
Appellate: Civil, Contracts, Employment, Gov't/Administrative, Procedure, Torts
Texas 14th Court of Appeals
March 31, 2020
14-18-00328-CV
Kem Thompson Frost
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for summary judgment dismissing his claims against his former employer based on an alleged decades-old oral promise made to him by the company’s founder. On appeal, the plaintiff asserted a claim for breach of the Two-Percent Agreement, and in connection with that claim the plaintiff set out the communications between the owner, founder, President, and Chairman of the Board of Directors of the defendant. The appellate court noted that the trial court did not err by implicitly concluding that promissory estoppel did not provide a basis for not applying the statute of frauds to the Two-Percent Agreement. The appellate court found that because the summary-judgment evidence on the element of intent did not raise a genuine fact issue as to whether the defendant had no intent to perform the promise when he allegedly made it, the trial court did not err in granting summary judgment as to the fraud claim. The appellate court concluded that the trial court did not err by granting summary judgment on the quantum-meruit claim. Accordingly, the judgment of the trial court was affirmed.  

The evidence was sufficient for the jury to have found that the Facility Incident Report was a governmental record, and the defendant knew his statement that he inadvertently struck the inmate was false.
Fernandez v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
April 01, 2020
04-19-00248-CR
Patricia O. Alvarez
Published
The defendant appealed the judgment of the trial court which convicted him with making a false entry in a County Adult Detention Center Facility Incident Report, which was a governmental record. On appeal, the defendant challenged the trial court’s conviction and sentence. The appellate court noted that as a county-employed deputy working at the County Detention Center, the defendant was required to generate, complete, and submit a Facility Incident Report after any issue or altercation. The appellate court found that based on the testimony of corporal and sergeant, the defendant was acting in his official capacity as a detention officer when he completed the report about his altercation with the individual, and the purpose of the report was to keep accurate and credible records at the detention center. The appellate court further determined that a rational jury could infer that the defendant falsely reported the incident to avoid being sanctioned for using excessive force under the circumstances. The appellate court concluded that the evidence was sufficient for the jury to have found that the Facility Incident Report was a governmental record, and the defendant knew his statement that he inadvertently struck the inmate was false. Accordingly, the judgment of the trial court was affirmed.

The expert reports served to show that the plaintiff’s health-care-liability claim was neither frivolous nor lacking in expert support, but an expert opinion was fundamentally unsupported when the only link between the expert’s conclusion and the underlying facts was the expert’s “own say-so.”
Hall v. Davies
Appellate: Civil, Evidence, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
March 31, 2020
14-18-01013-CV
Tracy Christopher
Published
The defendants appealed the judgment of the trial court which denied their respective motions to dismiss the claims against them in the plaintiff’s suit alleging medical malpractice and negligence. On appeal, the defendant argued that the expert’s supplemental expert report insufficiently addressed causation. The appellate court noted that it would review the trial court’s ruling on an expert report’s sufficiency for abuse of discretion and defer to the trial court’s factual determinations if they were supported by evidence, but the court review the trial court’s legal determinations de novo. The appellate court found that the trial court did not abuse its discretion in denying the defendants’ motion to dismiss, as the expert's causation opinion rested entirely on the difference in the stage of the plaintiff's cancer as reported pathology reports. The appellate court concluded that the expert reports served to show that the plaintiff’s health-care-liability claim was neither frivolous nor lacking in expert support, but an expert opinion was fundamentally unsupported when the only link between the expert’s conclusion and the underlying facts was the expert’s “own say-so.” Accordingly, the judgment of the trial court was reversed and remanded.

The trial court abused its discretion in overruling the defendants’ objection and in denying the defendants’ motion to dismiss.
Baylor Coll. of Med. v. Davies
Appellate: Civil, Health Care, Procedure, Torts
Texas 14th Court of Appeals
March 31, 2020
14-18-01014-CV
Tracy Christopher
Published
The defendants appealed the judgment of the trial court which ruled in favor of the plaintiff in the underlying health-care-liability action arising from the seven-month delay in diagnosing and treating the plaintiff’s ovarian serous borderline tumor. On appeal, the defendants challenged the trial court’s denial of their respective motions to dismiss the claims against them on the ground that the doctor’s supplemental expert report insufficiently addressed causation. The appellate court agreed that the doctor’s report was conclusory in that his statement that the plaintiff had only a stage I tumor when her condition should have been diagnosed was supported only by ipse dixit. The appellate court concluded that the trial court abused its discretion in overruling the defendants’ objection and in denying the defendants’ motion to dismiss. Accordingly, the judgment of the trial court was reversed and remanded.  

There was factually insufficient evidence to support a finding that termination of the mother’s parental rights was in the children’s best interest.
In re L.C.L.
Appellate: Civil, Family, Juvenile, Procedure
Texas 14th Court of Appeals
March 31, 2020
14-19-00062-CV
Meagan Hassan
Published
The mother appealed the judgment of the trial court which terminated her parental rights to her children on predicate grounds of endangerment and failure to comply with the service plan for reunification. On appeal, the mother challenged the trial court’s finding that termination of the mother’s parental rights was in the children’s best interest. The appellate court noted that the evidence was legally insufficient to support termination of the mother’s parental rights under Texas Family Code section 161.001(b)(1)(D) and (E). The appellate court found that there was legally and factually sufficient evidence to support termination of the mother’s parental rights under Texas Family Code section 161.001(b)(1)(O), and (2) legally sufficient evidence to support a finding that termination of the mother’s parental rights was in the best interest of the children. The appellate court concluded that there was factually insufficient evidence to support a finding that termination of the mother’s parental rights was in the children’s best interest. Accordingly, the judgment of the trial court was affirmed in part and reversed in part and remanded for further proceedings.  

Since the plaintiff’s claim was not a heath care liability claim, but rather one based on premises liability, the trial court properly denied the defendant’s motion to dismiss and request for attorney’s fees and costs.
S. Place SNF, LP v. Hudson
Appellate: Civil, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 12th Court of Appeals
March 31, 2020
12-19-00405-CV
James T. Worthen
Published
The defendant appealed the judgment of the trial court which denied its motion to dismiss the plaintiff’s suit against it. On appeal, the defendant contended that the trial court should have dismissed the plaintiff’s suit because it was a heath care liability claim (HCLC), the plaintiff failed to file the required expert report within 120 days of filing its original answer, and the trial court should have awarded it reasonable attorney’s fees and costs. The appellate court noted that the standards to prevent infection were no doubt important, but there was nothing about those standards to prevent infection that were substantively connected to the basis for the plaintiff’s claim separate and apart from any other premises owner’s duty to prevent slip and falls by maintaining a dry floor. The appellate court found that although an instrumentality might have been generally involved, there was no substantive nexus between the safety standards allegedly violated and the provision of health care that implicate the defendant’s duties as a health care provider. The appellate court concluded that since the plaintiff’s claim was not an HCLC, but rather one based on premises liability, the trial court properly denied the defendant’s motion to dismiss and request for attorney’s fees and costs. Accordingly, the judgment of the trial court was affirmed.    

The appellate court declined to impose an affirmative duty on prosecutors, defense attorneys, and trial judges to sua sponte disclose that they had a familial relationship with a prospective juror.
Hicks v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
March 31, 2020
01-18-00603-CR
Evelyn V. Keyes
Published
The defendant appealed the judgment of the district court which convicted him of the third-degree felony of driving while intoxicated and assessed his punishment at sixteen years’ confinement and a $10,000 fine. On appeal, the defendant challenged the trial court’s denial of his motion for new trial on the basis that the guilty verdict was obtained through juror misconduct. The appellate court agreed with the State that Brady—which applied to the disclosure of exculpatory and impeachment evidence that was material and favorable to the accused—was not applicable in the case involving the relationships between a juror and one of the prosecutors and a juror and the trial judge. The appellate court found that an article 39.14(a) did not obligate the State to disclose that a prosecutor had a familial relationship with a prospective juror. The appellate court further declined to impose an affirmative duty on prosecutors, defense attorneys, and trial judges to sua sponte disclose that they had a familial relationship with a prospective juror. The appellate court concluded that the trial court did not abuse its discretion in denying the defendant’s motion for new trial. Accordingly, the judgment of the trial court was affirmed.  

There was more than a scintilla of evidence raising a fact issue concerning whether the defendant had actual or constructive knowledge of an unreasonably dangerous condition on its premises, yet failed to warn or protect the plaintiff.
Daniels v. Allsup's Convenience Stores, Inc.
Appellate: Civil, Consumer, Corporations, Damages, Litigation: Personal Injury, Procedure, Torts
Texas 7th Court of Appeals
March 26, 2020
07-18-00333-CV
Patrick A. Pirtle
Published
The plaintiff appealed the judgment of the trial court which entered an order of dismissal following a directed verdict granted in favor of the defendant in his premises liability suit. On appeal, the plaintiff alleged that he exited the defendant’s convenience store through the front doors after making several purchases and was suddenly struck by a plywood facia board that had come loose from a storefront awning. The appellate court noted that the defendant was aware of the condition, yet, even with all of the knowledge, the defendant did not take any steps to reduce the risk of harm to invitees by repairing or replacing the defective facia board, nor did it take any steps to reduce the risk of harm to its invitees by providing an adequate written or verbal warning or by constructing any type of barrier that would prevent an invitee from walking inside the zone of danger. The appellate court found that there was some evidence that the condition of the premises presented an unreasonable risk of harm to the defendant’s invitees and the defendant was aware of that risk. The appellate court concluded that there was more than a scintilla of evidence raising a fact issue concerning whether the defendant had actual or constructive knowledge of an unreasonably dangerous condition on its premises, yet failed to warn or protect the plaintiff, an invitee, and therefore, the trial court erred in granting a directed verdict. Accordingly, the judgment of the trial court was reversed and remanded.

Since the communications at issue did not implicate a matter of public concern, the defendants did not meet its burden of showing, by a preponderance of the evidence, that the plaintiffs’ suit was based on, related to, or was in response to an exercise of the defendants’ right of free speech.
Newparks Mats & Integrated Serv., LLC v. Cahoon Enterprises, LLC
Appellate: Civil, Constitution, Contracts, Gov't/Administrative, Procedure, Torts
Texas 1st Court of Appeals
March 26, 2020
01-19-00409-CV
Russell Lloyd
Published
The defendants appealed the judgment of the trial court which denied its motion to dismiss all of the plaintiffs’ claims pursuant to the pursuant to the Texas Citizens Participation Act (TCPA). The appellate court noted that the communications at issue, as the defendants acknowledged, were related to the plaintiffs’ alleged fraudulent billing of the defendants for services the plaintiffs had provided to the defendants pursuant to the MSA and the defendants’ audit and investigation into the specific practices, which the defendants contended were authorized by the MSA. The appellate court found that whether the defendants were communicating internally or with the plaintiffs or its employees regarding the accuracy of the plaintiffs’ invoices or matters associated with the investigation and audit, the communications concerned a private business dispute between the parties. The appellate court concluded that since the communications at issue did not implicate a matter of public concern, the defendants did not meet its burden of showing, by a preponderance of the evidence, that the plaintiffs’ suit was based on, related to, or was in response to an exercise of the defendants’ right of free speech. Accordingly, the judgment of the trial court was affirmed.  

The Supreme Court concluded that the cities’ governmental immunity did not bar an Expedited Declaratory Judgment Act suit, which was brought in rem to adjudicate interests in property.
City of Conroe v. San Jacinto River Auth.
Appellate: Civil, Contracts, Gov't/Administrative, Procedure, Real Property
The Supreme Court of Texas
March 27, 2020
18-0989
J. Brett Busby
Published
The River Authority appealed the judgment of the trial court, seeking declarations regarding the contracts and specific water rates set under them. On appeal, the Supreme Court was asked to consider the scope of the Expedited Declaratory Judgment Act (EDJA) which permitted issuers of bonds and other public securities to resolve certain disputes regarding their securities as to all interested parties on an expedited basis. The Supreme Court found that the EDJA gave the trial court jurisdiction to declare whether the execution of the contracts which met the statutory definition of public security authorization was legal and valid, but not whether the River Authority complied with the contracts in setting specific rates. The Supreme Court concluded that the cities’ governmental immunity did not bar an EDJA suit, which was brought in rem to adjudicate interests in property. Accordingly, the judgment of the trial court was reversed in part and remanded.    

The appellate court concluded that since the forfeiture did not violate the Excessive Fines Clause, the appellant failed to preserve his remaining points of error.
1812 Franklin St. v. State
Appellate: Civil, Constitution, Criminal, Gov't/Administrative, Procedure, Real Property
Texas 6th Court of Appeals
March 27, 2020
06-19-00065-CV
Josh Morriss, III
Published
The appellant appealed the judgment of the trial court which found that a home owned by the appellant and his wife was effectively a flophouse in the underlying civil forfeiture action. On appeal, the appellant argued that the State failed to meet its burden of proof to show that the home was contraband, that he proved the innocent-owner defense because he was in prison while the appellant’s wife was using the property to commit the drug-related offenses without his knowledge, and that the forfeiture violated the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. The appellate court found that legally and factually sufficient evidence supported the finding that the appellant’s property was contraband, and legally and factually sufficient evidence supported the rejection of the appellant’s innocent-owner affirmative defense. The appellate court concluded that since the forfeiture did not violate the Excessive Fines Clause, the appellant failed to preserve his remaining points of error. Accordingly, the judgment of the trial court was affirmed.  

The appellate court erred in holding that the juvenile’s lack of knowledge of his inability to consent to sex required the trial court to grant his motion to withdraw his plea and for a new trial.
State v. R.R.S.
Criminal, Evidence, Juvenile, Procedure
The Supreme Court of Texas
March 27, 2020
17-0819
Jeffrey S. Boyd
Published
The State appealed the judgment of the appellate court which reversed the trial court’s denial of the juvenile’s motion to withdraw his plea and request for a new trial, finding that the trial court abused its discretion because the juvenile was not adequately informed about his potential defenses when he entered his plea, particularly the defense that he could not have committed aggravated sexual assault because he could not legally “consent to sex.” On appeal, the State alleged that the juvenile caused his sexual organ to penetrate the victim and such conduct constituted aggravated sexual assault under Tex. Penal Code section 22.021(a) regardless of whether either party consented or “agreed” to the conduct. The Supreme Court noted that the statute only required that the respondent desired to engage in the conduct or cause the result or was aware that his conduct was reasonably certain to cause the result. The Supreme Court found that unlike the offense of prostitution, which required proof that the accused reached an agreement with another person to engage in sexual conduct or offered to reach such an agreement, the juvenile’s legal inability to “consent to sex” did not render him illegally incapable of committing the offense of aggravated sexual assault. The Supreme Court concluded that the appellate court erred in holding that the juvenile’s lack of knowledge of his inability to consent to sex required the trial court to grant his motion to withdraw his plea and for a new trial. Accordingly, the judgment of the appellate court was reversed.

The appellate court concluded that the trial court abused its discretion by disqualifying counsel from representing the defendant.
Love v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
March 26, 2020
02-19-00052-CR
Elizabeth S. Kerr
Published
The defendant appealed the judgment of the trial court which convicted him of organized criminal activity, with murder as the predicate offense and imposed a punishment of 50 years’ imprisonment. On appeal, the defendant challenged the trial court’s conviction and sentence. The appellate court found that the defendant’s wife and defense counsel recalled comments made at the file drop-off slightly differently did not create a conflict of interest nor did it made defense counsel a necessary witness on an essential fact. The appellate court concluded that the trial court abused its discretion by disqualifying counsel from representing the defendant. Accordingly, the judgment of the trial court was reversed and remanded for a new trial.  

The UCCJEA expressly controlled over any other provisions within Title 5 of the Family Code, and therefore, the parents challenge of the termination order was void for lack of subject-matter jurisdiction.
In re J.P.
Appellate: Civil, Family, Procedure
Texas 2nd Court of Appeals
March 26, 2020
02-19-00360-CV
Elizabeth S. Kerr
Published
The parents appealed the judgment of the trial court which terminated the parental rights to their children. The appellate court noted that Texas Family Code Ann. Section 262.202 provided that if at the conclusion of the full adversary hearing the court rendered a temporary order, the governmental entity shall request identification of a court of continuing, exclusive jurisdiction as provided by Chapter 155, and Section 262.203(a) addressed transferring suits, something governed by the procedures provided by Chapter 155. The appellate court found that both provisions directed the court to Chapter 155 and its intrastate applications, making them inapplicable to the parents’ UCCJEA jurisdictional argument. The appellate court concluded that the UCCJEA expressly controlled over any other provisions within Title 5 of the Family Code, and therefore, the parents challenge of the termination order was void for lack of subject-matter jurisdiction. Accordingly, the judgment of the trial court was affirmed.

The trial court did not err in denying the City’s motion for summary judgment and granting the appellee’s cross-motion for summary judgment.
City of Dallas v. Thompson
Appellate: Civil, Employment, Insurance, Procedure, Workers' Compensation
Texas 12th Court of Appeals
March 25, 2020
12-19-00036-CV
Brian Hoyle
Published
The City appealed the judgment of the trial court which granted partial summary judgment in a suit for judicial review of a final decision and order of the Texas Department of Insurance, Division of Workers’ Compensation (DWC). On appeal, the City contended that the trial court erred in granting the appellee’s cross-motion for summary judgment and denying the City’s motion for summary judgment. The appellate court noted that the City did not meet its burden to show as a matter of law that the administrative law judge erroneously added the waiver issue. The appellate court found that the trial court did not err in denying the City’s motion for summary judgment and granting the appellee’s cross-motion for summary judgment. The appellate court concluded that it need not address the City’s first issue wherein it asserted it was relieved of liability because the appellee failed to timely file a claim for compensation with DWC within one year of the injury. Accordingly, the judgment of the trial court was affirmed.  

The trial court’s ruling was supported by legally sufficient evidence, and therefore, it did not abuse its discretion when it rendered a money judgment.
Gomez v. Gomez
Appellate: Civil, Damages, Family, Procedure
Texas 8th Court of Appeals
March 25, 2020
08-18-00136-CV
Michael Massengale
Published
The husband appealed the judgment of the trial court which rendered a ruling in a dispute over the division of retirement funds in a divorce. On appeal, the husband challenged the money judgment entered against him and in favor of the wife. The appellate court noted that based on the evidence presented in the enforcement proceeding, the trial court would have acted within its discretion to find that by withdrawing and spending all of the funds in the retirement accounts, the husband violated the court’s order prohibiting him from depleting the community’s assets while the divorce was pending. The appellate court found that under those circumstances, the wife was entitled to seek, and the trial court was authorized to render, a money judgment as enforcement of the property division in the divorce decree. The appellate court further determined that the trial court acted within its discretion because it could have determined that the discovery of the husband’s withdrawal and expenditure of the retirement funds in violation of the court’s order rendered the decree as written inadequate to ensure that the wife received the property to which she was entitled and which she had been awarded. The appellate court concluded that the trial court’s ruling was supported by legally sufficient evidence, and therefore, it did not abuse its discretion when it rendered a money judgment. Accordingly, the judgment of the trial court was affirmed.      

Since the plaintiff failed to serve an expert report, the trial court erred in denying the defendant’s motion to dismiss under the Texas Medical Liability Act.
The Univ. of Tex. Med. Branch at Galveston v. Jackson
Appellate: Civil, Damages, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
March 26, 2020
14-18-00887-CV
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which denied its motion to dismiss under the Texas Medical Liability Act for injuries the plaintiff sustained from a slip and fall while a patient there. On appeal, the defendant contended that the plaintiff’s claims were health care liability claims under Texas Civil Practice and Remedies Code chapter 74, the defendant filed a motion to dismiss because the plaintiff failed to serve an expert report as the code required. The appellate court noted that the plaintiff’s claim was based on an alleged departure from accepted standards of patient safety and was a health care liability claim under chapter 74. The appellate court found that the plaintiff was required to comply with section 74.351(a)’s expert report requirements. The appellate court concluded that because the plaintiff failed to serve an expert report, the trial court erred in denying the defendant’s motion to dismiss under the Texas Medical Liability Act. Accordingly, the judgment of the trial court was reversed in part and remanded in part.

The trial judge abused his discretion in deciding not to rule on the relator’s motion, and therefore, mandamus relief was warranted to compel the trial judge to rule on the motion.
In re Ramos
Constitution, Criminal, Procedure
Texas 14th Court of Appeals
March 26, 2020
14-20-00045-CR
Kem Thompson Frost
Published
The relator appealed the judgment of the trial court, filing a petition for writ of mandamus asking the appellate court to compel the trial judge to rule on the relator’s motion for judgment nunc pro tunc. The appellate court found that the relator brought the motion to the trial judge’s attention for a ruling, yet, the trial judge had not ruled on the motion within a reasonable time after the relator requested a ruling. The appellate court found that the trial judge abused his discretion in deciding not to rule on the relator’s motion, and therefore, mandamus relief was warranted to compel the trial judge to rule on the motion. Accordingly, the relator’s petition for writ was conditionally granted.   

Section 21.15(b)(1) satisfied strict scrutiny, was not facially overbroad, and did not violate the First Amendment. The appellate court concluded that the trial court did not err in denying the defendant’s request for habeas relief.
Ex Parte Hamilton
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 26, 2020
14-18-00534-CR
Charles Spain
Published
The defendant appealed the judgment of the trial court which charged him under current Tex. Penal Code Ann. Section 21.15(b)(1) with the state jail felony offense of invasive visual recording. On appeal, the defendant filed a pretrial application for writ of habeas corpus and motion to quash the indictment, arguing that subsection (b)(1) was overbroad under the First Amendment of the United States Constitution, which the trial court denied the requested relief. The appellate court found that Section 21.15(b)(1) satisfied strict scrutiny, was not facially overbroad, and did not violate the First Amendment. The appellate court concluded that the trial court did not err in denying the defendant’s request for habeas relief. Accordingly, the defendant’s application was denied.

Since the communications at issue did not implicate a matter of public concern, the defendants did not meet its burden of showing, by a preponderance of the evidence, that the plaintiffs’ suit was based on, related to, or was in response to an exercise of the defendants’ right of free speech.
Newparks Mats & Integrated Serv., LLC v. Cahoon Enterprises, LLC
Appellate: Civil, Constitution, Contracts, Gov't/Administrative, Procedure, Torts
Texas 1st Court of Appeals
March 26, 2020
01-19-00409-CV
Russell Lloyd
Published
The defendants appealed the judgment of the trial court which denied its motion to dismiss all of the plaintiffs’ claims pursuant to the pursuant to the Texas Citizens Participation Act (TCPA). The appellate court noted that the communications at issue, as the defendants acknowledged, were related to the plaintiffs’ alleged fraudulent billing of the defendants for services the plaintiffs had provided to the defendants pursuant to the MSA and the defendants’ audit and investigation into the specific practices, which the defendants contended were authorized by the MSA. The appellate court found that whether the defendants were communicating internally or with the plaintiffs or its employees regarding the accuracy of the plaintiffs’ invoices or matters associated with the investigation and audit, the communications concerned a private business dispute between the parties. The appellate court concluded that since the communications at issue did not implicate a matter of public concern, the defendants did not meet its burden of showing, by a preponderance of the evidence, that the plaintiffs’ suit was based on, related to, or was in response to an exercise of the defendants’ right of free speech. Accordingly, the judgment of the trial court was affirmed.  

The appellate court concluded that the evidence was legally sufficient to support the jury’s verdict as to the deadly-weapon finding regarding the defendant’s conviction.
Osorio-Lopez v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
March 27, 2020
06-18-00198-CR
Ralph Burgess
Published
The defendant appealed the judgment of the trial court which convicted him of evading arrest or detention with a vehicle and aggravated assault with a deadly weapon. On appeal, the defendant challenged the trial court’s sentence to a concurrent ten-year and twenty-year sentences. The appellate court noted that there was no evidence of any threatening words from the defendant, although the record reflected that his general demeanor was hostile. The appellate court found that the defendant had been repeatedly hurling his lunch tray at the door of his cell and refused to place it in the door slot, and the jury was free to infer that the defendant was aggressive and hostile at the time of the incident. The appellate court concluded that the evidence was legally sufficient to support the jury’s verdict as to the deadly-weapon finding regarding the defendant’s conviction. Accordingly, the judgment of the trial court was affirmed.

The appellate court erred in finding that the plaintiff’s allegations were sufficient to establish standing and invoke the trial court’s jurisdiction.
Farmers Tex. Cnty. Mut. Ins. Co. v. Beasley
Appellate: Civil, Contracts, Insurance, Litigation: Personal Injury, Procedure
The Supreme Court of Texas
March 27, 2020
18-0469
Paul W. Green
Published
The defendant appealed the judgment of the appellate court which reversed the trial court’s conclusion that the plaintiff did not suffer any threatened or actual harm when the insurer paid the amount of medical expenses that the plaintiff’s medical insurer actually paid the medical providers pursuant to an agreement with those providers. On appeal, the Supreme Court was asked to decide whether an injured plaintiff had standing to bring suit against his personal injury protection (PIP) policy insurer after the insurer paid the incurred medical expenses pursuant to the PIP policy, but the amount the PIP insurer paid was the negotiated rate between the plaintiff’s health care insurer and the medical providers—not the medical providers’ list rate. The Supreme Court noted that the standing question in both cases was exactly the same of whether the litigant plead an injury sufficient to invoke the trial court’s jurisdiction. The Supreme Court found that the plaintiff failed to allege an actual or threatened injury. The Supreme Court concluded that the appellate court erred in finding that the plaintiff’s allegations were sufficient to establish standing and invoke the trial court’s jurisdiction. Accordingly, the judgment of the appellate court was reversed.  

Since the trial court recited that it had considered the pleadings, evidence, and arguments of counsel, the appellate court should have considered that evidence as well in its review of the trial court’s summary judgment.
B.C. v. Steak N Shake Operations, Inc.
Appellate: Civil, Employment, Procedure, Torts
The Supreme Court of Texas
March 27, 2020
17-1008
Per Curiam
Published
The plaintiff appealed the judgment of the appellate court which affirmed the trial court’s summary judgment ruling in favor of the defendant in a suit where the plaintiff alleged that the supervisor had sexually assaulted her during her employment. On appeal, the Supreme Court was asked to consider whether the trial court’s recital in a final summary-judgment order that it considered the pleadings, evidence, and arguments of counsel included a late-filed response and attached evidence. The Supreme Court agreed with the appellate court that the plaintiff waived the argument by waiting to raise the issue until after the appellate court issued two opinions based on the unchallenged assertion that her response was untimely. The Supreme Court found that although the defendant objected to the timeliness of the plaintiff’s response, it neither sought nor obtained a ruling on that objection before or after the trial court’s order; thus, the court had no basis to conclude the trial court did not consider all summary-judgment evidence on file at the time the motion was heard. The Supreme Court concluded that since the trial court recited that it had considered the pleadings, evidence, and arguments of counsel, the appellate court should have considered that evidence as well in its review of the trial court’s summary judgment. Accordingly, the judgment of the appellate court was reversed and remanded.  

The Supreme Court concluded that evidence of a failure to meet a district policy that implemented state law supported a good cause determination.
North East Indep. Sch. Dist. v. Riou
Appellate: Civil, Contracts, Education, Employment, Gov't/Administrative, Procedure, Torts
The Supreme Court of Texas
March 27, 2020
18-0986
Jane N. Bland
Published
The School District appealed the judgment of the appellate court which reversed the Commissioner of Education’s (the Commissioner) decision that the respondent's conduct was “good cause per se” for termination. On appeal, the respondent argued that the Education Code had no “good cause per se” standard and that the School District failed to adduce evidence of accepted standards from similarly situated districts to show good cause. The Supreme Court noted that the appellate court agreed with the respondent that “good cause per se” had no basis in Section 21.156(a)’s good cause definition, and the School District’s decision must be reversed because it adduced no evidence of generally accepted standards of professional conduct from similarly situated school districts. The Supreme Court found that the respondent's argument that the School District excused that lack of evidence by relying on an improper “per se” standard fell within that challenge. The Supreme Court concluded that evidence of a failure to meet a district policy that implemented state law supported a good cause determination. Accordingly, the judgment of the appellate court was reversed.  

The relator established that the trial court had a ministerial duty to dismiss the charges against relator upon completion of his deferred adjudication community supervision and that he did not have an adequate remedy at law.
In re Leger
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 24, 2020
14-20-00128-CR
Per Curiam
Published
The relator appealed the judgment of the trial court which convicted him of the offense of unauthorized use of a motor vehicle and entered an order deferring adjudication of guilt in accordance with the terms of the plea agreement. The appellate court noted that the relator showed that he did not have an adequate remedy at law. The appellate court found that the trial court did not address either prong necessary for mandamus relief, but instead conditionally granted the relator’s petition and ordered the trial court to dismiss the proceedings and discharge the relator. The appellate court further determined that the relator established that the trial court had a ministerial duty to dismiss the charges against relator upon completion of his deferred adjudication community supervision and that he did not have an adequate remedy at law, thus, it would conditionally grant the relator’s petition for writ of mandamus and order the trial court to dismiss the charges against relator. The appellate court concluded that the writ would issue only if the trial court failed to comply with the opinion. Accordingly, the relator’s writ was conditionally granted.    

Since the defendant was entitled to a new trial on the issue of punishment, and because the State would be entitled to present notice of intent to enhance under the applicable habitual offender statute before such a hearing was held, the State’s issue was moot.
Meals v. State
Criminal, Evidence, Procedure
Texas 7th Court of Appeals
March 23, 2020
07-19-00078-CR
Patrick A. Pirtle
Published
The defendant appealed the judgment of the trial court which convicted him of tampering with evidence by concealment with intent to impair its availability as evidence in an investigation, a third degree felony. On appeal, the defendant challenged the trial court’s assessment of his sentence at the maximum period of confinement authorized—twenty years. The appellate court noted that by failing to establish concealment of the cocaine, the only item allegedly tampered with and the only form of tampering alleged in the indictment, the State failed to meet its burden of proof. The appellate court found that the defendant did not commit the offense of tampering with evidence by concealment. The appellate court further determined that based on the principles of Bowen and Thornton, the defendant’s conviction was reformed to reflect a conviction for attempted tampering with evidence, a state jail felony. The appellate court concluded that since the defendant was entitled to a new trial on the issue of punishment, and because the State would be entitled to present notice of intent to enhance under the applicable habitual offender statute before such a hearing was held, the State’s issue was moot. Accordingly, the judgment of the trial court was reversed and remanded.  

The “policy-language exception” to the eight-corners rule articulated by the district court, under which the eight-corners rule did not apply unless the policy contained a groundless-claims clause, was not a permissible exception under Texas law.
Richards v. State Farm Lloyds
Appellate: Civil, Contracts, Insurance, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
March 20, 2020
19-0802
James D Blacklock
Published
The insurer appealed the judgment of the district court which granted the insureds’ motion for summary judgment on the grounds that the plaintiff’s claims did not fall within the policy’s coverage in a suit alleging negligent failure to supervise and instruct the deceased. On appeal, the insurer sought a declaration that it had no duty to defend against the claims or indemnify the insureds against the plaintiff. The Supreme Court noted that it was often the case that the petition stated a claim that could trigger the duty to defend, but the petition was silent on facts necessary to determine coverage. The Supreme Court found that in such cases, some courts often allowed extrinsic evidence on coverage issues that did not overlap with the merits in order to determine whether the claim was for losses covered by the policy. The Supreme Court concluded that the “policy-language exception” to the eight-corners rule articulated by the district court, under which the eight-corners rule did not apply unless the policy contained a groundless-claims clause, was not a permissible exception under Texas law. Accordingly, the exception did not apply.

The appellate court concluded that the decision to prosecute was, in most cases, beyond the trial court’s capacity to review.
Mason v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
March 19, 2020
02-18-00138-CR
Wade J. Birdwell
Published
The defendant appealed the judgment of the trial court which convicted her of illegal voting, a second-degree felony, and sentenced her to five years confinement. The appellate court noted that the trial counsel’s knowledge that the individual had told her that she would not be able to vote after being convicted of a felony was not relevant to her defense that she did not know that being on supervised release made her ineligible under the law a defense that was not based on the statute, which as the court have explained did not require the State to show the defendant’s subjective knowledge of the law absent evidence raising a mistake-of-law affirmative defense. The appellate court found that the defendant had not shown that her trial counsel was laboring under an actual conflict of interest. The appellate court concluded that the decision to prosecute was, in most cases, beyond the trial court’s capacity to review. Accordingly, the judgment of the trial court was affirmed.  

The mother was represented by counsel during the bench trial and presented nothing to refute the trial court’s determination that she did not have a probability of success on the merits due to the felony conviction of abandonment or endangerment to the child.
In re M.S.
Appellate: Civil, Criminal, Family, Juvenile, Procedure
Texas 6th Court of Appeals
March 20, 2020
06-19-00110-CV
Scott E. Stevens
Published
The mother appealed the judgment of the trial court which convicted her of abandoning or endangering a child and possession of a controlled substance and sentenced her to two years’ imprisonment for each offense. Thereafter, the mother’s parental rights to her child were terminated. On appeal, the mother challenged the trial court’s findings that sufficient grounds existed or that termination of her parental rights to the child was in the child’s best interests. The appellate court noted that because of the her repeated refusals to submit to the Department’s requests for drug testing during the case, her criminal convictions, her pending charges of possession of a controlled substance, injury to a child, and endangering a child, the trial court could determine that the mother failed to show how it would be in the child’s best interests for the extension to be granted. The appellate court found that the mother’s request for a bench warrant showed that she failed to provide sufficient factual information necessitating her personal appearance at the final hearing. The appellate court concluded that the mother was represented by counsel during the bench trial and presented nothing to refute the trial court’s determination that she did not have a probability of success on the merits due to the felony conviction of abandonment or endangerment to the child. Accordingly, the judgment of the trial court was affirmed.

Since the summary judgment evidence established that the deputy was operating the marked patrol car with the respondent’s permission and under its authority at the time of his death, the deputy was engaged in a law-enforcement activity within the course and scope of his employment.
Orozco v. El Paso
Appellate: Civil, Employment, Gov't/Administrative, Procedure, Torts, Workers' Compensation
The Supreme Court of Texas
March 20, 2020
17-0381
John P. Devine
Published
The respondent appealed the judgment of the trial court which rendered summary judgment for the petitioner, concluding that the deputy was in the course and scope of his duties with the County at the time of his death. On appeal, the Supreme Court was asked to consider whether a deputy sheriff, who died in a vehicular accident while driving his assigned patrol car, was in the course and scope of his employment. The Supreme Court disagreed and found that the deputy was not in the course and scope because the accident occurred during his travel home from an extra-duty assignment with a private employer. The Supreme Court concluded that because the summary judgment evidence established that the deputy was operating the marked patrol car with the respondent’s permission and under its authority at the time of his death, the deputy was engaged in a law-enforcement activity within the course and scope of his employment. Accordingly, the judgment of the trial court was reversed. 

The trial court incorrectly denied the County’s plea to the jurisdiction challenging the plaintiff’s claim for retaliation for engaging in opposition to disparate treatment and dismissed that claim for lack of jurisdiction.
Cnty. of El Paso v. Aguilar
Appellate: Civil, Civil Rights, Employment, Gov't/Administrative, Procedure
Texas 8th Court of Appeals
March 19, 2020
08-19-00082-CV
Gina M. Palafox
Published
The County appealed the judgment of the trial court which denied its plea to the jurisdiction in an employment discrimination lawsuit brought against it by the plaintiff. On appeal, the plaintiff alleged she suffered discrimination based on her sex—to include disparate treatment and hostile work environment—and retaliation for engaging in protected activity. The County asserted that the plaintiff failed to make out neither a prima facie case of discrimination nor retaliation. The appellate court noted that the trial court improperly denied the County’s plea to the jurisdiction challenging the plaintiff’s claims for sex discrimination based on disparate treatment, to the extent that those claims were based on the assertion that the plaintiff was similarly situated. The appellate court found that those claims must be dismissed for lack of jurisdiction. The appellate court concluded that the trial court incorrectly denied the County’s plea to the jurisdiction challenging the plaintiff’s claim for retaliation for engaging in opposition to disparate treatment and dismissed that claim for lack of jurisdiction. Accordingly, the judgment of the trial court was affirmed. 

The plaintiff fit within the plain language of the waiver of immunity for claims that the public official charged with the duty of collecting the tax or fee may not legally demand or collect the tax or fee.
Hegar v. J.D. Fields & Co., Inc.
Appellate: Civil, Corporations, Gov't/Administrative, Procedure, Tax
Texas 3rd Court of Appeals
March 19, 2020
03-19-00351-CV
Edward Smith
Published
The Comptroller of Public Accounts (the Comptroller) appealed the judgment of the trial court which denied its motion for summary judgment in a tax dispute. On appeal, the Comptroller argued sovereign immunity barred the plaintiff’s suit. The appellate court noted that it did not agree that the Comptroller’s discretion was absolute, and as the source of its unreviewable discretion, the Comptroller cited to subsection 111.103(a) of the Tax Code. The appellate court found that the Comptroller may settle a claim for a tax penalty or interest on a tax imposed by this title if the taxpayer exercised reasonable diligence to comply with the provisions of the title. The appellate court concluded that the plaintiff fit within the plain language of the waiver of immunity for claims that the public official charged with the duty of collecting the tax or fee may not legally demand or collect the tax or fee. Accordingly, the judgment of the trial court was affirmed.              

By listing “effectiveness” in the notice of proposed termination, the board put the appellee on notice that her current and future effectiveness was at issue.
Edinburg Consol. Indep. Sch. Dist. v. Esparza
Appellate: Civil, Constitution, Contracts, Education, Employment, Evidence, Procedure
Texas 13th Court of Appeals
March 19, 2020
13-18-00412-CV
Dori Contreras
Published
The appellants appealed the judgment of the trial court which reversed the appellants’ decision upholding the termination of the appellee's contract as the principal for the school. The appellate court noted that the appellants’ conclusion that the school district's board was allowed to reject or modify the effectiveness impairment finding, without regard to whether the finding was supported by substantial evidence, was not erroneous. The appellate court found that the appellants did not err when it implicitly concluded that the school district's decision was not arbitrary, capricious, or unlawful. The appellate court further determined that, by listing “effectiveness” in the notice of proposed termination, the board put the appellee on notice that her current and future effectiveness was at issue. The appellate court concluded that the appellee argued that there was no evidence that she was ineffective as a result of the photo because the photo was in circulation on social media and the internet long before she was suspended and before the end of the prior school year. Accordingly, the judgment of the trial court was reversed.

The appellate court concluded that the trial court's denial of the defendant’s motion to suppress evidence was not improper.
Sullivan v. State
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
March 18, 2020
10-18-00231-CR
Tom Gray
Published
The defendant appealed the judgment of the trial court which convicted him of possession of a controlled substance with intent to deliver of at least four but less than 200 grams and possession of a controlled substance less than one gram. The appellate court noted that the defendant failed to make any showing that he was deprived of a fair trial or was denied the ability to ask any particular questions during the voir dire process. The appellate court found that it did not find that the trial court's denial of the defendant’s motion to quash the jury panel was erroneous. The appellate court further determined that giving the trial court the appropriate deference, the court's review of the record demonstrated that the trial court's finding that the defendant consented to the search was not clearly erroneous. The appellate court concluded that the trial court's denial of the defendant’s motion to suppress evidence was not improper. Accordingly, the judgment of the trial court was affirmed.  

Since the record did not support the petitioner’s contention that the psychologist's and the psychiatrist opinions were based on an incorrect definition of “behavioral abnormality,” the complaint was without merit.
In re Metcalf
Appellate: Civil, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
March 18, 2020
06-19-00043-CV
Scott E. Stevens
Published
The petitioner appealed the judgment of the trial court which imposed an order to civilly commit him as a sexually violent predator (SVP) for treatment and supervision as coordinated by the Texas Civil Commitment Office. On appeal, the petitioner challenged the legal and factual sufficiency of the evidence supporting the jury’s finding that he had a behavioral abnormality that made him likely to engage in a predatory act of sexual violence and complained that the State’s experts based their opinions on an incorrect definition of “behavioral abnormality.” The appellate court noted that when viewed in the light most favorable to the jury verdict, on the evidence any rational jury could have found beyond a reasonable doubt that the petitioner had a behavioral abnormality that made him likely to engage in a predatory act of sexual violence. The appellate court found that legally sufficient evidence supported the jury’s finding, and considering all the evidence in a neutral light, the jury was rationally justified in determining, beyond a reasonable doubt, that the petitioner was a sexually violent predator. The appellate court concluded that since the record did not support the petitioner’s contention that the psychologist's and the psychiatrist opinions were based on an incorrect definition of “behavioral abnormality,” the complaint was without merit. Accordingly, the judgment of the trial court was affirmed.    

The defendant did not sustain his summary judgment burden to conclusively negate at least one essential element of the plaintiff’s claim of implied dedication.
Townsend v. Hindes
Appellate: Civil, Procedure, Real Property, Torts
Texas 4th Court of Appeals
March 18, 2020
04-18-00548-CV
Irene Rios
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for summary judgment in a suit, requesting declaratory relief establishing his right to use a road on the defendant’s property on theories of express dedication to the public, implied dedication to the public, implied easement by necessity, and easement by estoppel. On appeal, the plaintiff challenged the granting of summary judgment on his claims for easement by necessity and implied dedication, and the award of attorney’s fees. The appellate court noted that even if an easement by necessity had existed at one time, it terminated when the necessity ceased. The appellate court found that the trial court did not err by granting the defendant’s motion for summary judgment on the plaintiff’s claim to establish an easement by necessity. The appellate court concluded that the defendant did not sustain his summary judgment burden to conclusively negate at least one essential element of the plaintiff’s claim of implied dedication. Accordingly, the judgment of the trial court was affirmed in part, reversed and remanded in part.  

The trial court erred in denying the defendant’s motion to dismiss because the plaintiff failed to establish with clear and specific evidence a prima facie case on each essential element of its claims against the defendant for knowing participation in breach of fiduciary duty.
Crossroads Hospice, Inc. v. FC Compassus, LLC
Appellate: Civil, Contracts, Employment, Gov't/Administrative, Procedure, Torts
Texas 1st Court of Appeals
March 17, 2020
01-19-00008-CV
Russell Lloyd
Published
The defendant appealed the judgment of the trial court which denied its motion to dismiss pursuant to the Texas Citizens Participation Act (TCPA). On appeal, the plaintiff alleged causes of action for knowing participation in breach of duty of loyalty/fiduciary duties, tortious interference with contract, and conspiracy. The appellate court noted that the plaintiff had not established by clear and specific evidence a prima facie case that the defendant knowingly participated in the executive director's alleged unlawful solicitations of the doctor and the other plaintiff’s at-will employees. The appellate court found that the trial court erred in denying the defendant’s motion to dismiss the plaintiff’s knowing participation in breach of fiduciary duty claim against the defendant. The appellate court concluded that the trial court erred in denying the defendant’s motion to dismiss because the plaintiff failed to establish with clear and specific evidence a prima facie case on each essential element of its claims against the defendant for knowing participation in breach of fiduciary duty, tortious interference with contract, and conspiracy. Accordingly, the judgment of the trial court was reversed and remanded.  

The appellate court concluded that the plaintiffs alleged viable ultra vires claims implicating the defendant.
Patino v. Tex. Dep’t of Ins.-Div. of Workers’ Comp.
Appellate: Civil, Contracts, Employment, Gov't/Administrative, Insurance, Procedure, Torts, Workers' Compensation
Texas 14th Court of Appeals
March 17, 2020
14-18-00274-CV
Frances Bourliot
Published
The plaintiffs appealed the judgment of the trial court which granted summary judgment in favor of the defendant in the plaintiffs’ suit, seeking declaratory and injunctive relief in response to the order denying him admission to the approved doctor list. On appeal, the plaintiffs challenged the trial court’s dismissal of their claims for lack of jurisdiction. The appellate court noted that the plaintiffs suffered an actual restriction under the Act because the defendant removed them from the approved doctor list under the statute and initiated regulatory proceedings against them. The appellate court found that the plaintiffs had standing to bring their constitutional claims and the available remedies on appeal from administrative findings were limited to reversal of the particular orders at issue. The appellate court concluded that the plaintiffs alleged viable ultra vires claims implicating the defendant. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.  

The plaintiff’s pleadings coupled with the unrefuted evidence negated jurisdiction, and the trial court correctly dismissed the plaintiff’s claims for lack of subject matter jurisdiction.
Fox v. Fox
Appellate: Civil, Contracts, Damages, Procedure, Real Property, Torts, Wills/Trusts/Probate
Texas 14th Court of Appeals
March 17, 2020
14-18-00672-CV
Kevin Jewell
Published
The plaintiff appealed the judgment of the probate court which granted the defendant’s plea to the jurisdiction. On appeal, the plaintiff argued that the probate court erroneously determined it lacked subject matter jurisdiction over his claims. The appellate court noted that the alleged deed lay at the core of the plaintiff’s purported right to recover judgment against the estate, and ownership of the property was placed in dispute by the plaintiff’s amended petition because his core complaint was that he had been deprived of his claimed interest. The appellate court found that the plaintiff contended that he owned the property and sought a declaration to that effect. The appellate court further determined that the plaintiff’s claims were based on the purported validity of the deed and sought resolution of the disagreement between the parties as to who owned the property, which was a matter decided a decade ago in Louisiana. The appellate court concluded that the plaintiff’s pleadings coupled with the unrefuted evidence negated jurisdiction, and the trial court correctly dismissed the plaintiff’s claims for lack of subject matter jurisdiction. Accordingly, the judgment of the probate court was affirmed.  

The trial court lacked the statutory, constitutional, or inherent authority to order the complaining witness in the case to turn her cell phone over to the Public Defender’s Office for inspection and copying of limited data as pretrial discovery.
In re State
Appellate: Civil, Constitution, Criminal, Evidence, Family, Gov't/Administrative, Procedure
Texas 8th Court of Appeals
March 13, 2020
08-19-00183-CR
Gina M. Palafox
Published
The State appealed the judgment of the tria court, filing a mandamus petition in a family violence assault case, challenging two related orders by the trial court pertaining to pretrial discovery. On appeal, the State contended that the trial court exceeded its statutory, constitutional, or inherent authority by issuing the two orders at issue. The real party in interest asserted that the trial court’s ratification of the subpoena duces tecum was proper, and in any event, the State lacked standing to bring the mandamus petition. The appellate court concluded that without the proper procedural predicated being first satisfied, the trial court lacked the statutory, constitutional, or inherent authority to order the complaining witness in the case to turn her cell phone over to the Public Defender’s Office for inspection and copying of limited data as pretrial discovery. Accordingly, the State’s writ of mandamus was conditionally granted.  

The trial court correctly granted summary judgment for the defendant on the plaintiff’s premises-liability claim.
Hillis v. McCall
Appellate: Civil, Litigation: Personal Injury, Procedure, Real Property, Torts
The Supreme Court of Texas
March 13, 2020
18-1065
Debra Lehrmann
Published
The defendant appealed the judgment of the appellate court which held that the defendant failed to conclusively establish the absence of a duty, reversing the trial court’s summary judgment. On appeal, the defendant alleged that the presence of brown recluse spiders on the defendant’s property constituted an unreasonably dangerous condition, that the defendant knew or should have known of the condition, that the defendant owed the plaintiff a duty to adequately warn him of the condition or make the property safe, and the plaintiff suffered damages as a result. The Supreme Court noted that the record conclusively negated a determination that the defendant knew or had reason to know of an unreasonable risk of harm presented by brown recluse spiders inside the bed and breakfast. The Supreme Court found that even with respect to wild animals found inside, an owner’s duty to invitees did not extend beyond warning about or making safe from unreasonably dangerous conditions about which the owner knew or had reason to know but the invitee did not. The Supreme Court concluded that the trial court correctly granted summary judgment for the defendant on the plaintiff’s premises-liability claim. Accordingly, the judgment of the appellate court was reversed.

The jury could not have found that the complainant became the victim of conduct prohibited by Section 43.05 when as a matter of law the jury could not have found that the child committed prostitution as an essential element under section 43.05.
Turley v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 12, 2020
14-18-00235-CR
Charles Spain
Published
The defendant appealed the judgment of the trial court which convicted him of compelling prostitution of a child younger than 18 and of trafficking a child based on compelling prostitution. On appeal, the defendant challenged the trial court’s assessment of punishment at imprisonment for a term of 30 years and a fine for each offense. The appellate court noted that there was no dispute that the trial evidence showed the child at issue to be four-years old at the time of defendant’s alleged offenses. The appellate court found that, as a matter of law, the complainant could not have committed prostitution as “the offense defined in Section 43.02” as an essential element of subsection (a)(2) of the Compelling-Prostitution Statute. The appellate court concluded that regardless of the disturbing nature of the evidence, the jury could not have found that the complainant became the victim of conduct prohibited by Section 43.05 when as a matter of law the jury could not have found that the child committed prostitution as an essential element under section 43.05. Accordingly, the judgment of the trial court was reversed.

The Supreme Court concluded that without hearing oral argument, it would conditionally grant the relator’s petition for writ of mandamus and direct the trial court to vacate its order denying the relator’s motion to designate the contractor as a responsible third party.
In re Mobile Mini, Inc.
Appellate: Civil, Constitution, Damages, Procedure, Torts
The Supreme Court of Texas
March 13, 2020
18-1200
Per Curiam
Published
The relator appealed the judgment of the trial court, seeking to grant its motion to designate a responsible third party in a construction worker’s personal-injury suit. The Supreme Court noted that an adequate appellate remedy was ordinarily lacking because allowing a case to proceed to trial without a properly requested responsible-third-party designation would skew the proceedings. The Supreme Court found that it could potentially affect the outcome of the litigation and compromise the presentation of the relator’s defense in ways unlikely to be apparent in the appellate record. The Supreme Court concluded that without hearing oral argument, it would conditionally grant the relator’s petition for writ of mandamus and direct the trial court to vacate its order denying the relator’s motion to designate the contractor as a responsible third party. Accordingly, the relator’s writ was denied.  

The trial court found that clear and convincing evidence supported termination of the father’s parental rights under Section 161.001(b)(1)(D) and (E), among other grounds.
In re L.G.
Appellate: Civil, Constitution, Family, Juvenile, Procedure
The Supreme Court of Texas
March 13, 2020
19-0488
Per Curiam
Published
The father appealed the judgment of the appellate court which affirmed the trial court’s termination of his parental rights under Section 161.001(b)(1)(O) without detailing its analysis of the findings of violations of Section 161.001(b)(1)(D) and (E). On appeal, the father challenged each of the statutory grounds upon which the trial court terminated his rights, including the findings under Section 161.001(b)(1)(D) and (E). On appeal, the Supreme Court was asked to determine whether the trial court terminated the father’s parental rights because of his indigence, in violation of his constitutional rights, and whether the appellate court erred in failing to provide a detailed analysis of the trial court’s findings that clear and convincing evidence supported parental termination under Texas Family Code Section 161.001(b)(1)(D) and (E). The Supreme Court agreed with the appellate court and found that the father had not presented an error that warranted reversal as to termination of his rights to parent the child at issue in the proceeding. The Supreme Court concluded that the trial court found that clear and convincing evidence supported termination of the father’s parental rights under Section 161.001(b)(1)(D) and (E), among other grounds. Accordingly, the judgment of the appellate court was affirmed in part and reversed in part.    

The probate court had subject-matter jurisdiction over the underlying proceedings and the probate court did not err in denying the petitioner’s motion to dismiss pursuant to the TCPA.
In re Guardianship of Fairley
Appellate: Civil, Gov't/Administrative, Procedure
Texas 4th Court of Appeals
March 11, 2020
04-19-00196-CV
Liza A. Rodriguez
Published
The petitioner appealed the judgment of the probate court which denied her motion to dismiss filed pursuant to the Texas Citizens Participation Act (TCPA), also known as Texas’s anti-SLAPP statute. The appellate court noted that the minor was served in conformity with section 1051.103(a) of the Texas Estates Code, and thus the probate court acquired subject-matter jurisdiction over the guardianship proceeding. The appellate court found that looking at the plain meaning of legal action as used in section 27.001(6), the catch-all provision for “legal action” followed a list of other covered “legal actions” and “a lawsuit, cause of action, petition, complaint, cross-claim, or counter-claim.” The appellate court concluded that given the expansive reading appellate courts have given issues relating to interpretation of the TCPA, it could not conclude that the petitioner’s issue had no basis in law. The appellate court further determined that the probate court had subject-matter jurisdiction over the underlying proceedings and the probate court did not err in denying the petitioner’s motion to dismiss pursuant to the TCPA. Accordingly, the judgment of the probate court was affirmed.

Since an unconditional award provided the defending party with the financial resources to file a brief without subjecting the children to any financial hardship, the relator had not established the judge abused her discretion by awarding the RPI immediate unconditional attorney’s fees.
In re Mansour
Appellate: Civil, Courts, Family, Procedure
Texas 4th Court of Appeals
March 11, 2020
04-19-00899-CV
Patricia O. Alvarez
Published
The relator appealed the judgment of the trial court, filing a motion asking that the real party in interest (RPI) pay for his fees and expenses pending appeal. On appeal, the relator asked to the appellate court to dismiss the RPI’s motion for temporary orders in which he raised the affirmative defense of res judicata. The appellate court noted that the record was insufficient to enable the court to conclude the judge could have reached only one decision on the issue of res judicata. The appellate court found that the relator had not established the judge abused her discretion by granting a claim the relator contended was barred by res judicata. The appellate court concluded that since an unconditional award provided the defending party with the financial resources to file a brief without subjecting the children to any financial hardship, the relator had not established the judge abused her discretion by awarding the RPI immediate unconditional attorney’s fees pending the relator’s appeal pursuant to Section 109.001. Accordingly, the relator’s petition for writ of mandamus was denied.  

To the extent that the trial court’s ruling granting the defendants’ plea to the jurisdiction was based on the plaintiffs’ lack of standing to bring their Chapter 245 claim, it was in error.
Hatchett v. W. Travis Cnty. Pub. Util. Agency
Appellate: Civil, Contracts, Gov't/Administrative, Procedure, Real Property
Texas 3rd Court of Appeals
March 11, 2020
03-18-00668-CV
Thomas J. Baker
Published
The plaintiffs appealed the judgment of the trial court which granted the defendant’s plea to the jurisdiction and dismissed the plaintiffs’ petition. On appeal, the defendants contended that the plaintiffs did not have standing and that it was immune from suit. The plaintiffs maintained that it sought declarations invalidating the defendants’ policies, rules, and regulations limiting density and impervious coverage on their property and granting them vested-rights protection under Chapter 245 of the Local Government Code (LGC) due to a prior permit application for water service. The appellate court noted that rights vested in a particular project, not in the property itself; therefore, subsequent changes in ownership of the property did not affect the vested rights. The appellate court found that because the dispute was not between the plaintiffs and the defendants, and there was no allegation of an executory contract or contract for deed, neither doctrine was applicable. The appellate court concluded that to the extent that the trial court’s ruling granting the defendants’ plea to the jurisdiction was based on the plaintiffs’ lack of standing to bring their Chapter 245 claim, it was in error. Accordingly, the judgment of the trial court was reversed and remanded.  

The appellate court found that the "as-is" clause severed the causal link between the seller's misrepresentation and the buyer's damages.
Pogues v. Williamson
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Insurance, Procedure, Real Property, Torts
Texas 1st Court of Appeals
March 12, 2020
01-17-00844-CV
Richard Hightower
Published
The defendants appealed the judgment of the trial court which rendered judgment in favor of the plaintiffs in their suit alleging fraudulent-inducement, common-law-fraud, statutory-fraud, negligent-misrepresentation, and Deceptive Trade Practice Act (DTPA) claims. On appeal, the appellate court was asked to consider whether an unambiguous "as-is" and disclaimer-of-reliance provision precluded a buyer's fraudulent-inducement, common-law fraud, statutory-fraud, negligent-misrepresentation, and DTPA claims. The appellate court noted that because the disclaimer-of-reliance clause was enforceable, it negated the essential element of reliance in the buyer's fraudulent-inducement claim, which in turn rendered the "as-is" clause enforceable. The appellate court found that the "as-is" clause severed the causal link between the seller's misrepresentation and the buyer's damages. The appellate court concluded that the buyer's claims were contractually barred. Accordingly, the judgment of the trial court was reversed.

The trial court had no discretion but to confirm the arbitration award even though the Texas Arbitration Act (TAA)’s 90-day provision had not expired, and the appellant’s post-trial challenge to the arbitration award was waived.
First Tex. Homes, Inc. v. Provost
ADR, Appellate: Civil, Courts, Procedure
Texas 10th Court of Appeals
March 11, 2020
10-18-00202-CV
Tom Gray
Published
The appellant appealed the judgment of the trial court which confirmed the arbitration award and denied the appellant’s motion for continuance. On appeal, the appellant contended that it was not contesting the confirmation of the award at the trial court. Further, although the trial court told the parties that the court was “going to sign this Final Judgment Confirming the Arbitration Award, today on the 1st day of June,” the appellant did not file anything contesting the arbitration award until one month after the trial court signed the order confirming the award. The appellate court noted that the record did not show that the appellant challenged the arbitration award in the trial court before the trial court confirmed the award. The appellate court found that the appellant had no motion to vacate, modify, or correct the arbitration award on file with the trial court prior to the trial court’s ruling on the appellees’ motion to confirm. The appellate court concluded that the trial court had no discretion but to confirm the arbitration award even though the Texas Arbitration Act (TAA)’s 90-day provision had not expired, and the appellant’s post-trial challenge to the arbitration award was waived. Accordingly, the judgment of the trial court was affirmed.  

The trial court did not err in waiving the petitioner’s appearance at the hearing on the State’s petition for an order to administer psychoactive medications.
In re J.B.
Appellate: Civil, Constitution, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
March 12, 2020
01-19-00037-CV
Julie Countiss
Published
The petitioner appealed the judgment of the trial court which granted the State’s petition to administer psychoactive medications to the petitioner. The appellate court noted that the type of proceeding against the petitioner in the case—one involving a petition for an order to administer psychoactive medications—was civil, not criminal, in nature. The appellate court found that the petitioner did not have a constitutional right to be heard under Article I, Section 10 of the Texas Constitution which required that he be present at the hearing on the State’s petition. The appellate court further determined that because the petitioner’s counsel did not assert in the trial court that the petitioner’s presence in the courtroom was required under Texas Rule of Civil Procedure 267, the petitioner had not preserved his argument for appellate review. The appellate court concluded that the trial court did not err in waiving the petitioner’s appearance at the hearing on the State’s petition for an order to administer psychoactive medications. Accordingly, the judgment of the trial court was affirmed.  

Since the jury assessed the defendant’s sentence at seven years confinement and a fine, as to each count, the sentences were not illegal.
Scales v. State
Criminal, Evidence, Procedure
Texas 7th Court of Appeals
March 11, 2020
07-18-00208-CR
Patrick A. Pirtle
Published
The defendant appealed the judgment of the trial court which convicted him of two counts of cruelty to non-livestock animals alleged to have been committed. The appellate court noted that under the facts of the case, where the offense was punishable under section 12.35(c), and the State was able to establish that the defendant had previously been convicted of the felony offense of burglary of a habitation, the appropriate range of punishment for the offense was the range of punishment applicable to a second degree felony. The appellate court found that the range of punishment for that offense was enhanced by the use of a deadly weapon and that enhanced punishment was further enhanced to that of a second degree felony by virtue of a prior felony conviction to which the defendant pleaded true. The appellate court further determined that an offense punished as a second degree felony was punishable by imprisonment in the Department of Criminal Justice for any term of not more than twenty years or less than two years and by a fine not to exceed $10,000. The appellate court concluded that because the jury assessed the defendant’s sentence at seven years confinement and a fine, as to each count, the sentences were not illegal. Accordingly, the judgment of the trial court was affirmed.  

The appellate court noted that as for the court’s authority to act upon what allegedly may be perceived as likely changes to binding precedent, the Supreme Court also spoke to that.
City of Spearman v. Tex. Muni. League Intergovernmental Risk Pool
Appellate: Civil, Contracts, Gov't/Administrative, Insurance, Real Property, Torts
Texas 7th Court of Appeals
March 11, 2020
07-18-00402-CV
Brian Quinn
Published
The City appealed the judgment of the trial court which granted the plaintiff’s motion for summary judgment and dismissed the City’s breach of contract claim with prejudice. On appeal, the City challenged the trial court’s grant of the plaintiff’s motion for summary judgment. The appellate court noted that as for the court’s authority to act upon what allegedly may be perceived as likely changes to binding precedent, the Supreme Court also spoke to that. The appellate court found that the policy at bar assigned greater significance to submitting a proof of loss than initially reporting a loss also swayed the court against ignoring both American Teachers and Lubbock Cty. v. Trammel’s Lubbock Bail Bonds. The appellate court concluded that the evidence served as a key domino in the procedural structure for adjusting claims built into the policy. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that it was not error for the trial court to consider the entire contents of the PSI in sentencing the defendant.
Herrera v. State
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
March 12, 2020
05-18-01149-CR
Leslie Lester Osborne
Published
The defendant appealed the judgment of the trial court which convicted him of the offense of indecency with a child and sentenced him to twenty years imprisonment. On appeal, the defendant challenged the trial court’s conviction and sentence. The appellate court noted that the purported error about which the defendant complained did not rise to the level of structural error, nor was it a waivable-only right that must be implemented unless expressly waived. The appellate court found that because the defendant failed to make the trial court aware of any objection to its consideration of the pre-sentence investigation (PSI) report, his complaint presented nothing for the court review on appeal. The appellate court concluded that it was not error for the trial court to consider the entire contents of the PSI in sentencing the defendant. Accordingly, the judgment of the trial court was affirmed.