The court conditionally granted mandamus relief and directed the trial court to vacate its order denying the appellant's plea to the jurisdiction and motion to transfer signed by the trial court and to grant the plea to the jurisdiction and motion to transfer the case to the trial court.
In re H&S Hoke Ranch, LLC
Damages, Real Property
Texas 10th Court of Appeals
May 28, 2021
10-20-00237-CV
Tom Gray
Published
The appellant sought a writ of mandamus compelling the trial court to set aside an order denying its plea to the jurisdiction and motion to transfer pursuant to Section 21.002 of the Property Code. The appellate court noted that having concluded that the county court at law in which the case was pending did not have subject matter jurisdiction over the appellant's counterclaims because the appellant alleged an amount in controversy in excess of the jurisdictional limits of the county court at law, mandamus relief was appropriate to spare the parties and the public the time and money spent on fatally flawed proceedings in the county court at law. Therefore, the court conditionally granted mandamus relief and directed the trial court to vacate its order denying the appellant's plea to the jurisdiction and motion to transfer signed by the trial court and to grant the plea to the jurisdiction and motion to transfer the case to the trial court within twenty-one days of the opinion.  


The Supreme Court held that the relators had no adequate remedy by appeal.
In re K & L Auto Crushers, LLC
Appellate: Civil, Damages, Employment, Health Care, Insurance, Litigation: Personal Injury, Torts
The Supreme Court of Texas
May 28, 2021
19-1022
Jeffrey S. Boyd
Published
The plaintiff alleged he was injured in a motor-vehicle collision with a tractor-trailer rig driven by the relator individual. The plaintiff sued the relators, the company and the individual. After the plaintiff served medical-expense affidavits under Section 18.001 of the Civil Practice and Remedies Code, the relators served counter-affidavits challenging the amounts billed as unreasonable. The relators then served subpoenas on the plaintiff's healthcare providers, requesting production of information related to their billing practices and rates over a period of several years. The subpoenas included multiple requests, some with multiple sub-requests, and sought a wide array of information. The trial court sustained the providers’ objections and quashed the subpoenas without explaining the basis for its ruling. The trial court denied the motion for reconsideration without explanation. The Supreme Court noted that the trial court abused its discretion by denying the requested discovery, as narrowed in the relators motion for reconsideration and explained at the hearing, considering the circumstances and the applicability of our reasoning in North Cypress to the case. Further, the court held that the relators had no adequate remedy by appeal. Accordingly, the court conditionally granted the writ of mandamus and ordered the trial court to vacate its order denying the relators motion for reconsideration.  


The grievances were timely filed with the school district and the court did not resolve the parties’ disputes about the legality of the respondent school's teacher evaluation system.
Davis v. Morath
Contracts, Education, Gov't/Administrative
The Supreme Court of Texas
May 28, 2021
19-1035
James D Blacklock
Published
The respondent denied the grievances as untimely, concluding that their untimely presentation to the local school board deprived him of jurisdiction. The teachers appealed to trial court, which affirmed the respondent commissioner's decision. The appellate court held that the respondent commissioner had jurisdiction over the grievances. It further held that some of the grievances were untimely and must be dismissed but that others were timely and could proceed. The Supreme Court agreed with the appellate court that the commissioner had jurisdiction to hear the teachers’ appeal. Further, the court held that the grievances were timely filed with the school district and the court did not resolve the parties’ disputes about the legality of the respondent school's teacher evaluation system. Accordingly, the decision of the appellate court was affirmed in part and reversed in part, and the matter was remanded to the commissioner.  


The trial court erred in denying the petitioner's motion to compel arbitration.
Aerotek, Inc. v. Boyd
ADR, Civil Rights, Contracts, Employment, Gov't/Administrative, Technology
The Supreme Court of Texas
May 28, 2021
20-0290
Nathan L. Hecht
Published
The petitioner hired employees globally by the hundreds of thousands to work as contractors for client companies. To keep hiring efficient, the petitioner worked with a software developer to build an online-only hiring application. The respondents each completed the petitioner's computerized hiring application on his own. The petitioner hired all four respondents to work as contractors on a construction project for the petitioner's client, the company. All four were terminated not long after starting work and sued the petitioner, the company, and others for racial discrimination and retaliation. The Supreme Court noted that the petitioner's evidence of the security procedures for its hiring application and its operation was such that reasonable people could not differ in concluding that the respondents could not have completed their hiring applications without signing the MAAs. The respondents' simple denials were no evidence otherwise. Further, the petitioner conclusively established that the respondents signed, and therefore consented to, the MAAs. Lastly, the trial court erred in denying the petitioner's motion to compel arbitration. Accordingly, the judgment of the appellate court was reversed and the case was remanded to the trial court for further proceedings.  


Because the appellant accepted benefits under the deceased's will, the trial court properly dismissed her challenge to its validity.
In re Estate of Johnson
Gov't/Administrative, Real Property, Wills/Trusts/Probate
The Supreme Court of Texas
May 28, 2021
20-0424
Jane N. Bland
Published
The appellant, a beneficiary under a will, sought to circumvent the rule by contending that the bequest she accepted was worth less than the inheritance she would receive should she succeed in nullifying the will. The trial court rejected the argument and dismissed the contestant’s suit for lack of standing. The appellate court reversed. The Supreme Court noted that the appellant was put to an election: either sought to set the will aside or accept the benefits the deceased bequeathed to her. She chose the latter. As a result, she must adopt the whole contents of the instrument, so far as it concerns her, conforming to its provisions, and renouncing every right inconsistent with it. Further, because the appellant accepted benefits under the deceased's will, the trial court properly dismissed her challenge to its validity. Accordingly, the court reversed the judgment of the appellate court and rendered judgment dismissing the suit.                  


The appellate court determined that the State failed to meet its burden of showing that the Judge continued to have authority to sit in the underlying cases past the expiration of the assignment orders.
In re State ex rel. Wice
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 27, 2021
01-20-00477-CR
Julie Countiss
Published
The relator, on behalf of the State, filed a petition for writ of mandamus, requesting that the appelate court vacate an order signed by the Honorable Judge of the 177th District Court of Harris County, Texas that vacated a previous change of venue order and returned the underlying cases to Collin County, Texas. The relator also requested that the court compel the trial court to rule on certain motions. The appellate court found that because the Dallas Court of Appeals did not resolve whether the Judge had the authority to order a change of venue after the expiration of his assignment to the underlying cases, the law of the case doctrine did not prevent the court from resolving that issue. The appellate court concluded that they could be reasonably read to agree that Judge’s assignment to the 416th District Court of Collin County was to end. Finally, the appellate court determined that the State failed to meet its burden of showing that the Judge continued to have authority to sit in the underlying cases past the expiration of the assignment orders. Accordingly, the court denied the petition for writ of mandamus. 


Because the court plainly failed to apply the relevant penal law to the facts of the case, the charge was erroneous.
Durden v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
May 27, 2021
14-19-00388-CR
Randy Wilson
Published
The appellant challenged her murder conviction that resulted in a 35-year prison sentence. The appellate court noted that the evidence that a rational jury could have concluded beyond a reasonable doubt that the appellant intentionally or knowingly caused the appellant’s death using a knife or sharp object, and was not justified in using deadly force. The appellate couirt found that the trial court’s charge excluded from the jury’s consideration the theory for which there was some evidence: self-defense to the prevention of a sexual assault. Because the court plainly failed to apply the relevant penal law to the facts of the case, the charge was erroneous. The record showed that the charge error resulted in some harm to appellant because her entire case was based on her theory of self-defense to prevent the vicitm’s sexual assault (or aggravated sexual assault) such that that was the only contested issue and the court’s charge effectively deprived the jurors’ consideration of that theory, making the rejection of that defense inevitable. Finally having jurisdiction to consider the argument, the court overruled the State’s cross complaint. Accordingly the trial court’s judgment was reversed and the case was remanded for a new trial.  


The appellate court upheld the ruling by the trial court overruling the appellant’s Batson challenge.
Gomez v. Austin
Civil Rights, Employment, Procedure
Texas 8th Court of Appeals
May 26, 2021
08-19-00250-CV
Yvonne T. Rodriguez
Published
The appellant appealed the trial court’s decision overruling his Batson challenge on a peremptory strike exercised by the City at trial. The appellant sued for discrimination based on ethnicity and national origin after the appellee terminated his employment. The appellate court held that it appeared that the trial court exercised proper discretion, guided by the law outlined in Batson, and their progeny and ruled reasonably based on their principles. While a different trial judge may have ruled differently based on the same assessment, it was improper as the reviewing court, to substitute the opinion for the trial court’s where it did not act arbitrarily, unreasonably, or without reference to guiding principles. Therefore, the court upheld the ruling by the trial court overruling the appellant’s Batson challenge. Accordingly, the judgment was affirmed.      


The appellate court concluded that the appellant had not raised a fact issue as to the existence of a reasonable accommodation that would have allowed him to do his job.
Dillard v. SNC-Lavalin Engineers & Constructors Inc.
Civil Rights, Employment, Procedure
Texas 1st Court of Appeals
May 27, 2021
01-20-00372-CV
Gordon Goodman
Published
The appellant sued the appellee his former employer, for disability discrimination, alleging that the appellee unlawfully refused to reasonably accommodate his diabetes. The appellee moved for summary judgment, which the trial court granted. The appellate court found that because the appellant has not introduced any evidence that his diabetes substantially limited his endocrine function or another of major life activity, he had not raised a genuine issue of material fact as to whether he was disabled under the Texas Commission on Human Rights Act (TCHRA). Further, given that alcohol testing was time-sensitive, and delay will alter its results, an employee’s notice of disability and request for an alternative method of testing was untimely if made only after another method has yielded a positive result. The appellate court concluded that the appellant had not raised a fact issue as to the existence of a reasonable accommodation that would have allowed him to do his job. Accordingly, the judgment was affirmed.                        


The appellant’s own construction of the statute allowed for meaning beyond a waiver of immunity because it granted the appellant the authority to condemn both public and private land.
Hidalgo Cnty. Water Improvement Dist. No. 3 v. Hidalgo Cnty. Water Irrigation Dist. No. 1
Gov't/Administrative, Procedure, Real Property
Texas 13th Court of Appeals
May 27, 2021
13-20-00355-CV
Gina M. Benavides
Published
In the case, the appellate court must decide whether a governmental entity was immune from suit to condemn its property. The appellant filed a condemnation proceeding against the appellee seeking a permanent subterranean easement for the purpose of installing a water pipeline. The appellate court found that the appellant attempted to distinguish trespass-to-try-title suits from condemnation proceedings but, in the end, both were “suits for land.” To be sure, a trespass-to-try-title suit was also a quasi in rem proceeding to the extent that it adjudicated the parties’ competing title claims. To the contrary, the appellant’s own construction of the statute allowed for meaning beyond a waiver of immunity because it granted the appellant the authority to condemn both public and private land. Accordingly, the trial court’s judgment was affirmed.              


The appellant did not otherwise conclusively establish as a matter of law that the appellee in fact signed the purported note.
Silverio v. Silverio
Contracts, Family
Texas 8th Court of Appeals
May 26, 2021
08-20-00038-CV
Gina M. Palafox
Published
The appellant appealed the trial court’s final judgment in favor of the appellee in a suit brought by the appellant for payment on a defaulted unsecured promissory note. The appellate court noted that there was some evidence to support the trial court’s implied finding that the appellee did not sign the promissory note based on the evidence provided and deferring to the trial court’s resolution of the conflicts and inconsistencies in the evidence and testimony. The appellant did not otherwise conclusively establish as a matter of law that the appellee in fact signed the purported note. Accordingly, the judgment was affirmed.  


Because the trial court did not err granting appellees' summary judgment on the appellants’ civil barratry claims based on the statute of limitations, the trial court did not err in granting appellees summary judgment on appellants’ breach of fiduciary duty claims.
Brumfield v. Williamson
Appellate: Civil, Procedure, Torts
Texas 1st Court of Appeals
May 27, 2021
01-19-00336-CV
Julie Countiss
Published
The appellants challenged the trial court’s rendition of summary judgment in favor of appellees in the appellants’ suit against appellees for civil barratry, civil conspiracy, aiding and abetting, and breach of fiduciary duty. The appellate court found that appellees conclusively proved that appellants’ civil barratry claims brought under the original version of Texas Government Code section 82.0651(a) accrued more than four years before appellants filed suit and appellees established that neither the discovery rule, the Hughes tolling doctrine, nor the McClung tolling doctrine applied to appellants’ claims. The appellate court determined that because the trial court properly granted appellees summary judgment on appellants’ civil barratry claims, the trial court did not err in granting appellees summary judgment on appellants’ derivative civil conspiracy and aiding and abetting claims. Because the trial court did not err granting appellees' summary judgment on the appellants’ civil barratry claims based on the statute of limitations, the trial court did not err in granting appellees summary judgment on appellants’ breach of fiduciary duty claims. Accordingly, the court affirmed in part and dismissed in part.  


A new punishment hearing was required to allow the trial court to assess punishment under the correct range.
Flowers v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 27, 2021
01-18-01059-CR
Gordon Goodman
Published
The appellant appealed from two judgments of conviction, one for aggravated robbery and one for possession of a controlled substance in a drug-free zone, contending that the trial court erred in assessing his punishment for the latter offense by failing to apply the correct punishment range. The appellate court observed that the record lacked any indication as to what punishment the trial court would have assessed for the drug offense had the trial court correctly analyzed the law. Further, the trial court thought the range of punishment was between 15 to 99 years when it actually was between 10 to 99 years. In assessing punishment at 15 years’ imprisonment, the trial court assessed a punishment that lies within the permissible range of punishment. But the record did not disclose whether the trial court would have assessed the same or a different punishment had it understood the correct punishment range. Thus, a new punishment hearing was required to allow the trial court to assess punishment under the correct range. Accordingly, the judgment was affirmed, reversed and remanded.  


As to the appellant’s conviction for sexual assault of a child, the court concluded that the record presented no arguably meritorious grounds for review and that the appeal was frivolous.
Whillhite v. State
Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
May 27, 2021
03-18-00766-CR
Chari L. Kelly
Published
The appellant was charged with two offenses, sexual assault of a child, and online solicitation of a minor, section 33.021(b). After the appellant pled guilty to both offenses, the trial court placed him on deferred-adjudication community supervision for ten years. The appellant did not appeal from the trial court’s deferred-adjudication order. The appellate court observed that a deferred-adjudication order based on Section 33.021(b) of the Penal Code a statute that had been declared unconstitutional by the criminal appellate court was void and under the void judgment exception, may be collaterally attacked as such in a revocation-proceedings appeal, based on the precedent from the Court. Because there was no valid law upon which to base the appellant’s conviction for online solicitation of a minor, the court reversed the judgment of adjudication as to the conviction and rendered a judgment of acquittal for the offense. Further, as to the appellant’s conviction for sexual assault of a child, the court concluded that the record presented no arguably meritorious grounds for review and that the appeal was frivolous. Accordingly, the judgment was affirmed in part, reversed, and rendered in part on remand.  


Because the court held that the trial court did not err granting the appellees' summary judgment on the appellants’ civil barratry claims based on the statute of limitations, the trial court did not err in granting the appellees' summary judgment on the breach of fiduciary duty claims.
Gandy v. Williamson
Contracts, Gov't/Administrative, Torts
Texas 1st Court of Appeals
May 27, 2021
01-19-00335-CV
Julie Countiss
Published
The appellants challenged the trial court’s rendition of summary judgment in favor of the appellees, in the appellants’ suit against the appellees for civil barratry, civil conspiracy, aiding and abetting, and breach of fiduciary duty. The appellate court observed that the appellees conclusively proved that the appellants’ civil barratry claims brought under the original version of Texas Government Code section 82.0651(a) accrued more than four years before the appellants filed suit and the appellees established that neither the discovery rule, the Hughes tolling doctrine, nor the McClung tolling doctrine applied to the appellants’ claims. Further, because the court has held that the trial court properly granted the appellees summary judgment on the appellants’ civil barratry claims, the court held that the trial court did not err in granting the appellees summary judgment on the appellants’ derivative civil conspiracy and aiding and abetting claims. Finally, because the court held that the trial court did not err granting the appellees' summary judgment on the appellants’ civil barratry claims based on the statute of limitations, the trial court did not err in granting the appellees' summary judgment on the appellants’ breach of fiduciary duty claims. Accordingly, the court affirmed the judgment of the trial court.  


The court noted that the appellant failed to preserve error in the case because he failed to point to the specific evidence in the record that raised the lesser-included offense, even after he was asked to do so by the trial court.
Williams v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
May 26, 2021
PD-0477-19
David C. Newell
Published
After a jury trial, the appellant was found guilty of continuous trafficking of persons and was sentenced to fifty years in prison. The appellant had testified that he committed no offense at all. The appellate court held that the trial court erred in denying his request for a jury instruction on the lesser-included offense of human trafficking of persons, reversed the judgment of the trial court, and remanded the cause for a new trial. The Texas Court of Criminal Appeals noted that the court have previously held that a trial court had no duty to sua sponte instruct on a lesser-included offense. Requested for such instructions were matters of trial strategy that were treated like defensive instructions. Accordingly, it was incumbent upon defense counsel to preserve error on his requested instruction. Further, the appellant failed to preserve error in the case because he failed to point to the specific evidence in the record that raised the lesser-included offense, even after he was asked to do so by the trial court. Accordingly, the court reversed and remanded.


The appellate court concluded that there was sufficient evidence to support a conviction for serious mental injury and Section 22.04 (a) (2) provided explicit standards for those who apply them.
Ex Parte Hammons
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
May 26, 2021
10-19-00362-CR
John E. Neill
Published
The appellant was charged under Tex. Penal Code Ann. Section 22.04 (a) (2) with the offense of injury to a child. The appellant filed an Application for Writ of Habeas Corpus arguing that Section 22.04 (a) (2) was unconstitutional on its face. The appellant appealed the trial court’s order denying relief. The appellate court noted that “serious mental deficiency, impairment, or injury” was not impermissibly vague. Ordinary citizens understand the meaning of “deficiency” “impairment” and “injury.” Modifying those words with “mental” did not create an ambiguity because ordinary citizens would be able understand those terms as they relate to the mind. Further, the statute required that the mental deficiency, impairment, or injury be serious. The appellate court concluded that there was sufficient evidence to support a conviction for serious mental injury and Section 22.04 (a) (2) provided explicit standards for those who apply them. Accordingly, the court affirmed the trial court’s judgment.  


The plain language of Section 3.406(b) of the Family Code allowed for a “court to impose an equitable lien on the property of a benefited marital estate to secure a claim for reimbursement.”
In re Estate of Baker
Real Property, Wills/Trusts/Probate
Texas 10th Court of Appeals
May 26, 2021
10-18-00215-CV
Matt Johnson
Published
The deceased died survived by his wife and two appellant daughters from a prior marriage. His last will and testament disposed of his one-half of the community property and all of his separate property and the will directed that his wife receive a life estate in one-third of the minerals and the entire surface of the 32.8-acre separate property tract of land the deceased had inherited. The appellate court noted that the reimbursement claims may be waived by premarital or marital property agreements that satisfy the requirements of Chapter 4 of the Family Code. There was no reference in the record that a premarital or marital property agreement existed between the deceased and his wife. As such his wife was entitled to assert her claim for reimbursement, and the trial court had statutory authority to grant a claim for reimbursement. Further, pursuant to Section 3.402(c), the deceased's separate property estate was prohibited from claiming an offset against community estate contributions for the wife's use and enjoyment of the residence because it was owned by the deceased separate property estate. Additionally, the plain language of Section 3.406(b) of the Family Code allowed for a “court to impose an equitable lien on the property of a benefited marital estate to secure a claim for reimbursement.” Accordingly, the judgment was affirmed in part and reversed in part.  


The appellate court concluded that the evidence was legally insufficient to support a finding that the video depicted a “lewd exhibition of the genitals” as defined in the jury’s charge.
Romo v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
May 26, 2021
04-19-00772-CR
Liza A. Rodriguez
Published
Following a jury trial, the appellant was convicted in Count I of continuous sexual abuse of a child younger than fourteen years of age, in Count II of indecency with a child, and in Count III of possession of child pornography. The appelate court observed tht the appellant did not object at trial to the admission of the “Nudist HDV” DVD. To preserve error, “a party must object each time the inadmissible evidence is offered or obtain a running objection.” Because the appellant failed to object at the time the video was admitted, he waived any error on appeal. Further, given the evidence presented at trial, the jury could have reasonably believed the victim’s testimony that she was sexually abused and concluded that her behavioral issues were the result of sexual abuse. The appellate court concluded that the evidence was legally insufficient to support a finding that the video depicted a “lewd exhibition of the genitals” as defined in the jury’s charge. Accordingly, the judgment was affirmed in part, reversed, and rendered in part.  


Even assuming arguendo that the appellants agreed to the substance of the Application, his agreement was immaterial because a party who agreed to a void order has agreed to nothing.
Grounds v. First Groundrock Royalties, LLC
Appellate: Civil, Business, Contracts, Procedure
Texas 4th Court of Appeals
May 26, 2021
04-20-00567-CV
Patricia O. Alvarez
Published
In the interlocutory appeal of a business opportunity usurpation case, the appellants alleged the temporary injunction order was void for failure to follow TEX. R. CIV. P. 683’s requirements, and the trial court abused its discretion by denying the motion to dissolve the temporary injunction. The appellate court held that the order’s reference to the Application did not satisfy TEX. R. CIV. P. 683’s requirement that the order specifically stated “the reasons why injury will be suffered if the interlocutory relief is not ordered.” Therefore, the order was void, and the trial court abused its discretion by failing to apply the law correctly. Finally, even assuming arguendo that the appellants agreed to the substance of the Application, his agreement was immaterial because a party who agreed to a void order has agreed to nothing. Accordingly, the court declared the temporary injunction order void, dissolved the temporary injunction, and remanded the cause.      


The trial court was without jurisdiction to grant the appellee’s motion for shock probation.
State v. Bronson
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
May 26, 2021
06-20-00135-CR
Josh Morriss, III
Published
The appellee pled guilty to theft of at least $150,000.00, but less than $300,000.00, a second degree felony. The State appealed from the trial court’s order suspending execution of the appellee’s prison sentence and placing her on community supervision (shock probation). The appellate court agreed with its sister court’s reasoning in Temple, and likewise concluded that the Texas Supreme Court’s emergency orders did not allow a court to create jurisdiction for itself when jurisdiction would otherwise be absent. As a result, the trial court was without jurisdiction to grant the appellee’s motion for shock probation. Accordingly the court vacated the trial court’s order of shock probation, leaving in place the original judgment. 


The trial court did not abuse its discretion by denying the relator’s plea to the jurisdiction or Rule 39 motion to abate.
In re Occidental W. Tex. Overthrust, Inc.
Appellate: Civil, Constitution, Procedure, Torts
Texas 8th Court of Appeals
May 24, 2021
08-20-00130-CV
Yvonne T. Rodriguez
Published
The relator filed a motion for permission to file an interlocutory appeal, which was also denied. The relator filed a petition for writ of mandamus, complaining that the trial court abused its discretion by denying its plea to the jurisdiction and its motion to abate. In the following mandamus proceeding, the relators challenged the trial court’s denial of their plea to the jurisdiction and, in the alternative, motion to abate the proceedings pursuant to TEX.R.CIV.P. 39(a). The appellate court observed that the relator was not entitled to mandamus relief for the trial court’s denial of its plea to the jurisdiction because it had failed to demonstrate that it lacked an adequate remedy by appeal. Absent an extraordinary situation, mandamus would not issue to correct a trial court’s denial of a plea to the jurisdiction, as an appeal would generally be an adequate remedy. Further, because the existence of necessary parties under Rule 39 was an evidentiary issue for the trial court, in order to succeed on mandamus, the relator must show that the evidence before the trial court dictated only one possible outcome as a matter of law. Lastly, the trial court did not abuse its discretion by denying the relator’s plea to the jurisdiction or Rule 39 motion to abate. Accordingly, the petition for writ of mandamus was denied.


That deletion removed the broadest category of connection, thereby requiring future TCPA movants to establish a closer nexus between the claims against them and the communications they point to as their exercise of protected rights.
ML Dev, LP v. Ross Dress For Less, Inc.
Appellate: Civil, Constitution, Contracts, Corporations, Evidence, Procedure, Torts
Texas 1st Court of Appeals
May 25, 2021
01-20-00773-CV
Sarah Beth Landau
Published
The following was a Texas Citizens Participation Act (TCPA) case decided under the version of the statute, where a group of the first appellants, developer entities, were sued to force them to grant easement rights. They moved for dismissal on the argument that they were sued based on or in response to their exercise of the right of free speech and the right to petition. The appellate court observed that that the first appellants could not draw an adequate connection between their statements and the appellee’s legal claims to invoke the TCPA. Their alleged statements may have accompanied the denial of easement access. Furthermore, the court could not agree that the appellee’s suit for easement rights was based on or in response to these communications. Instead, they were based on and in response to the first appellants’ block of easement access. Lastly, that deletion removed the broadest category of connection, thereby requiring future TCPA movants to establish a closer nexus between the claims against them and the communications they point to as their exercise of protected rights. Accordingly, the judgment was affirmed.


The Supreme Court found that the Texas courts have long required parties to bear their own attorney’s fees under the American Rule by “prohibiting fee awards unless specifically provided by contract or statute.”
Allstate Ins. Co. v. Irwin
Appellate: Civil, Contracts, Damages, Insurance, Litigation: Personal Injury, Torts
The Supreme Court of Texas
May 21, 2021
19-0885
John P. Devine
Published
The petitioner appealed the judgment of the trial court which acknowledged the petitioner's payment of its policy limits and court costs and awarded the respondent his attorney’s fees. The petitioner appealed the award of attorney’s fees. The appellate court affirmed the award, holding that the UDJA was properly invoked to determine the respondent's entitlement to UIM benefits under the policy and a proper basis for the award of attorney’s fees. The Supreme Court noted that while the court agreed that the respondent's suit was not for breach of contract and that Chapter 38 did not apply, the court did not agree that the award there was erroneous or otherwise violated the American Rule. Further, the court found that the Texas courts have long required parties to bear their own attorney’s fees under the American Rule by “prohibiting fee awards unless specifically provided by contract or statute.” The appellate court did not err in affirming the trial court’s judgment. Accordingly, the judgment was affirmed.      


The Supreme Court confirmed that attorney immunity provided a defense to a non-client’s claims based on an attorney’s conduct that constituted the provision of “legal” services involving the unique office, professional skill, training, and authority of an attorney.
Haynes & Boone, LLP v. NFTD, LLC
Contracts, Damages, Intellectual Property, Patents/Trademarks, Torts
The Supreme Court of Texas
May 21, 2021
20-0066
Jeffrey S. Boyd
Published
The respondent appealed the judgment of the trial court which granted the petitioners' summary judgment and dismissed all the claims against them. The Supreme Court confirmed that attorney immunity provided a defense to a non-client’s claims based on an attorney’s conduct that constituted the provision of “legal” services involving the unique office, professional skill, training, and authority of an attorney and the attorney engaged in to fulfill the attorney’s duties in representing the client within an adversarial context in which the client and the non-client did not share the same interests. Further, in light of the defense’s purposes, the court held that it applied to claims based on conduct the attorney performed in a non-litigation context, so long as the conduct qualified as this “kind” of conduct. Accordingly, the court reversed the appellate court's judgment holding that attorney immunity did not apply in the non-litigation context, and the court remanded the case to that court to consider whether the summary-judgment evidence conclusively established that the conduct at issue there qualified as that “kind” of conduct.  


The Supreme Court concluded that the child's father did not contest that termination of his parental rights was in the child's best interest.
In re J.F.-G.
Gov't/Administrative, Juvenile
The Supreme Court of Texas
May 21, 2021
20-0378
Jane N. Bland
Published
When the child was born, her father was a fugitive, having failed to report to prison to serve a four-year sentence for selling drugs. The child's father emerged from prison when the child was a pre-teen, happily situated with her foster family and her half-sisters. And although the child's father took strides to reintegrate into the community and the child's life, the trial court shortly thereafter terminated his parental rights. The court found that the child's father had “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.” It further found that termination of her father’s parental rights was in the child's best interest. The appellate court affirmed, holding that sufficient evidence supported the trial court’s decision. The Supreme Court found that although her father’s strides toward overcoming his past conduct were important in evaluating the child's best interests, his rehabilitation did not negate his past criminal conduct and incarceration such that a trial court could not consider them to have been endangering to the child. Further, based on the evidence before it, the trial court reasonably could have formed the firm belief that the child's father engaged in endangering conduct under subsection (E). The Supreme Court concluded that the child's father did not contest that termination of his parental rights was in the child's best interest. Accordingly, the court affirmed the judgment of the appellate court.


The Supreme Court declined to review the sanctions award at that time, as it was entirely possible the court decision would have no effect on the ultimate outcome.
Landry's, Inc. v. Animal Legal Defense Fund
Appellate: Civil, Business, Constitution, Damages, Evidence, Procedure, Torts
The Supreme Court of Texas
May 21, 2021
19-0036
James D Blacklock
Published
The plaintiff appealed the judgment of the trial court which granted the Texas Citizens Participation Act (TCPA) motions to dismiss and denied the plaintiff’s request for discovery. The trial court also awarded attorney’s fees to the defendants. The Supreme Court observed that because neither the judicial-proceedings privilege nor the attorney immunity defense applied there, the court remand the defamation claims to the appellate court to determine whether the plaintiff’s met its burden to establish by clear and convincing evidence each essential element of its defamation per se claims. Further, although the plaintiff’s challenged the remitted award in the Court, resolved the sanctions dispute at that time would be premature. Furthermore, because the court reversed the dismissal of the plaintiff’s defamation claims, the possibility now exists that those claims would survive the TCPA motion to dismiss. The Supreme Court declined to review the sanctions award at that time, as it was entirely possible the court decision would have no effect on the ultimate outcome. Accordingly, the judgment was reversed in part, affirmed in part, and remanded.


The relator lacked an adequate remedy by appeal and conditionally granted the mandamus directing the trial court to sustain the plea to the jurisdiction and dismiss the suit.
In re Roman Catholic Diocese of El Paso
Constitution
Texas 8th Court of Appeals
May 17, 2021
08-19-00244-CV
Jeff Alley
Published
The relator filed a plea to the jurisdiction contending that the suit should be dismissed under the ecclesiastical abstention doctrine. In the mandamus proceeding the court decided whether a court could hear claimed arose out of the reduction of a priest’s payments from the local the relator. The claims were premised on the application of Texas’s statutory age discrimination law and common law fraud. The appellate court found that the Bishop looked to canon law to guide his discretion in setting that amount. So whether the payment was called a salary, wage, non-employee compensation, or charity, its amount was determined by the Bishop applying canon law. Further, because the decisional process in the case strikes at the core of the the relator’s internal governance and turned on the application of canon law, the trial court below should have abstained from the dispute. Lastly, the relator lacked an adequate remedy by appeal and conditionally granted the mandamus directing the trial court to sustain the plea to the jurisdiction and dismiss the suit. Accordingly, the court concluded the claims were barred by ecclesiastical abstention.  


Without the benefit of any further authority favorable to the respondent, the court could not find the trial court abused its discretion.
In re A.N.G.
Family, Juvenile
Texas 8th Court of Appeals
May 19, 2021
08-19-00088-CV
Gina M. Palafox
Published
The respondent father and the petitioner mother were the parents of a minor child. The respondent complained the trial court committed reversible error in granted a directed verdict favorable to the petitioner on matters pertaining to the parties’ joint managing conservatorship. The respondent also complained the trial court erred in modifying the geographic restriction imposed on the child’s primary residency, erred in failing to consider the report of the court-appointed counselor, erred in determining awards for child support and medical support, and erred in awarding attorney’s fees. The appellate court found that the evidence presented by the respondent failed to raise triable issues of fact for the jury’s determination of a modification of the terms and conditions of conservatorship; and thus, the trial court did not err in granting a directed verdict against the respondent on his request for modification of the parties’ conservatorship. Further, the trial court did not invade issues within the province of the jury. Without the benefit of any further authority favorable to the respondent, the court could not find the trial court abused its discretion. Accordingly, the judgment was affirmed.  


The appellate court concluded that the evidence was factually sufficient to support the jury’s damages awards for past and future physical pain and mental anguish.
Four J's Cmty. Living Ctr., Inc. v. Wagner
Appellate: Civil, Damages, Torts
Texas 1st Court of Appeals
May 20, 2021
01-19-00346-CV
Julie Countiss
Published
The appellants challenged the trial court’s judgment, entered after a jury trial, in favor of the appellee incapacitated adult, in the appellee’s suit for negligence. In three issues, the appellants’ contended that the evidence was legally insufficient to support the jury’s finding that the first appellant was personally liable for negligence either as a landlord or as an agent of the second appellant’s, the evidence was factually insufficient to support the jury’s award of damages for past and future disfigurement and past and future physical pain and mental anguish, and the trial court erred in not applying the damages cap under Texas Civil Practice and Remedies Code section 74.301 as to the second defendant’s. The appellate court found that the court need not consider whether the evidence supported a finding of negligence against the first appellant as an owner, employee, and agent of the second defendant’s. The appellate court concluded that the evidence was factually sufficient to support the jury’s damages awards for past and future physical pain and mental anguish. Accordingly, the judgment was affirmed.  


The appellate court found that the court determined the proceeding was properly considered a petition for writ of mandamus , however, the court dismissed the first relator from the proceeding for lack of standing.
In re DEK-M-Nationwide, Ltd.
Constitution, Creditor/Debtor, Real Property, Tax
Texas 14th Court of Appeals
May 20, 2021
14-19-00571-CV
Tracy Christopher
Published
The appellant appealed the judgment of the trial court, filing a petition for writ of mandamus challenging two orders which granted summary judgments in post-judgment proceedings in a delinquent-tax suit. After the delinquent-tax suit was filed, the first relator became a judgment debtor of the original tax debtor and later obtained a security interest in certain of the debtor’s property. The first relator allegedly foreclosed on its lien and sold the properties to the second relator, but in accordance with the final judgment in the case, Colorado County Central Appraisal District (CCCAD) foreclosed the tax lien on the same properties, which were sold to the buyers. The appellate court found that the court determined the proceeding was properly considered a petition for writ of mandamus , however, the court dismissed the first relator from the proceeding for lack of standing. Accordingly, the court denied the second relator’s petition for writ of mandamus.  


The appellate court concluded that because the same or similar allegedly hearsay testimony was admitted elsewhere, without objection, any error in admitting the detective sergeant’s testimony regarding statements made by the juvenile was cured.
Rodriguez v. State
Criminal, Evidence, Procedure
Texas 10th Court of Appeals
May 20, 2021
10-18-00253-CR
John E. Neill
Published
The appellant challenged her conviction for hindering apprehension or prosecution. The appellate court observed that the appellant had the opportunity to avoid the prejudice and impairment but chose not to, and therefore, the court held that the appellant waived her article 39.14(a) of the Code of Criminal Procedure complaint in the issue. Further, the appellant’s conviction for felony hindering apprehension or prosecution was supported by sufficient evidence. The appellate court concluded that because the same or similar allegedly hearsay testimony was admitted elsewhere, without objection, any error in admitting the detective sergeant’s testimony regarding statements made by the juvenile was cured. Accordingly, the court affirmed the judgment of the trial court.  


Without the inadmissible hearsay evidence, there was no evidence presented to satisfy the preponderance of the evidence standard to deny bond, and the trial court abused its discretion by remanding the appellant without bond.
Ex parte Trevino
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
May 19, 2021
04-20-00544-CR
Patricia O. Alvarez
Published
The appellant was charged with aggravated assault with a deadly weapon. While on release, the appellant allegedly violated his release conditions, and the trial court revoked bond. The appellant filed a motion to set bail and a pretrial application for writ of habeas corpus. At the hearing on the motion to set bail, the appellant objected to the trial court considering any hearsay testimony, but the trial court overruled his objections. After the hearing, the trial court denied the appellant’s application. The appellate court found that the trial court erred when it admitted hearsay evidence to deny the appellant’s bond. Without the inadmissible hearsay evidence, there was no evidence presented to satisfy the preponderance of the evidence standard to deny bond, and the trial court abused its discretion by remanding the appellant without bond. Accordingly, the court denied the appellant’s request that it set bond and remanded.  


The criminal appellate court concluded that a rational trier-of-fact could have inferred the appellant knew of the order at issue and that retaining his child violated that order.
Hammack v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
May 19, 2021
PD-0636-19
David C. Newell
Published
The State charged the appellant with interference with child custody and a jury convicted him and sentenced him to two years’ confinement in state jail. The trial court placed the appellant on community supervision for a term of five years and the terms and conditions of his probation specified that the appellant could not live with the child (or any of his children) or have unsupervised access to any child under eighteen years of age. The Texas Court of Criminal Appeals found that the State presented sufficient evidence that the appellant knew about the existence and relevant terms of the emergency protection order even though the evidence showed he had successfully avoided service. The criminal appellate court concluded that a rational trier-of-fact could have inferred the appellant knew of the order at issue and that retaining his child violated that order. Accordingly, the judgment was affirmed.


The relator lacked an adequate remedy by appeal and conditionally granted the mandamus directing the trial court to sustain the plea to the jurisdiction and dismiss the suit.
In re Roman Catholic Diocese of El Paso
Constitution
Texas 8th Court of Appeals
May 17, 2021
08-19-00244-CV
Jeff Alley
Published
The relator filed a plea to the jurisdiction contending that the suit should be dismissed under the ecclesiastical abstention doctrine. In the mandamus proceeding the court decided whether a court could hear claimed arose out of the reduction of a priest’s payments from the local the relator. The claims were premised on the application of Texas’s statutory age discrimination law and common law fraud. The appellate court found that the Bishop looked to canon law to guide his discretion in setting that amount. So whether the payment was called a salary, wage, non-employee compensation, or charity, its amount was determined by the Bishop applying canon law. Further, because the decisional process in the case strikes at the core of the the relator’s internal governance and turned on the application of canon law, the trial court below should have abstained from the dispute. Lastly, the relator lacked an adequate remedy by appeal and conditionally granted the mandamus directing the trial court to sustain the plea to the jurisdiction and dismiss the suit. Accordingly, the court concluded the claims were barred by ecclesiastical abstention.  


Without the benefit of any further authority favorable to the respondent, the court could not find the trial court abused its discretion.
In re A.N.G.
Family, Juvenile
Texas 8th Court of Appeals
May 19, 2021
08-19-00088-CV
Gina M. Palafox
Published
The respondent father and the petitioner mother were the parents of a minor child. The respondent complained the trial court committed reversible error in granted a directed verdict favorable to the petitioner on matters pertaining to the parties’ joint managing conservatorship. The respondent also complained the trial court erred in modifying the geographic restriction imposed on the child’s primary residency, erred in failing to consider the report of the court-appointed counselor, erred in determining awards for child support and medical support, and erred in awarding attorney’s fees. The appellate court found that the evidence presented by the respondent failed to raise triable issues of fact for the jury’s determination of a modification of the terms and conditions of conservatorship; and thus, the trial court did not err in granting a directed verdict against the respondent on his request for modification of the parties’ conservatorship. Further, the trial court did not invade issues within the province of the jury. Without the benefit of any further authority favorable to the respondent, the court could not find the trial court abused its discretion. Accordingly, the judgment was affirmed.  


The appellate court concluded that the evidence was factually sufficient to support the jury’s damages awards for past and future physical pain and mental anguish.
Four J's Cmty. Living Ctr., Inc. v. Wagner
Appellate: Civil, Damages, Torts
Texas 1st Court of Appeals
May 20, 2021
01-19-00346-CV
Julie Countiss
Published
The appellants challenged the trial court’s judgment, entered after a jury trial, in favor of the appellee incapacitated adult, in the appellee’s suit for negligence. In three issues, the appellants’ contended that the evidence was legally insufficient to support the jury’s finding that the first appellant was personally liable for negligence either as a landlord or as an agent of the second appellant’s, the evidence was factually insufficient to support the jury’s award of damages for past and future disfigurement and past and future physical pain and mental anguish, and the trial court erred in not applying the damages cap under Texas Civil practice and Remedies Code section 74.301 as to the second defendant’s. The appellate court found that the court need not consider whether the evidence supported a finding of negligence against the first appellant as an owner, employee, and agent of the second defendant’s. The appellate court concluded that the evidence was factually sufficient to support the jury’s damages awards for past and future physical pain and mental anguish. Accordingly, the judgment was affirmed.  


The appellate court found that the court determined the proceeding was properly considered a petition for writ of mandamus , however, the court dismissed the first relator from the proceeding for lack of standing.
In re DEK-M-Nationwide, Ltd.
Constitution, Creditor/Debtor, Real Property, Tax
Texas 14th Court of Appeals
May 20, 2021
14-19-00571-CV
Tracy Christopher
Published
The appellant appealed the judgment of the trial court, filing a petition for writ of mandamus challenging two orders which granted summary judgments in post-judgment proceedings in a delinquent-tax suit. After the delinquent-tax suit was filed, the first relator became a judgment debtor of the original tax debtor and later obtained a security interest in certain of the debtor’s property. The first relator allegedly foreclosed on its lien and sold the properties to the second relator, but in accordance with the final judgment in the case, Colorado County Central Appraisal District (CCCAD) foreclosed the tax lien on the same properties, which were sold to the buyers. The appellate court found that the court determined the proceeding was properly considered a petition for writ of mandamus , however, the court dismissed the first relator from the proceeding for lack of standing. Accordingly, the court denied the second relator’s petition for writ of mandamus.  


The appellate court concluded that because the same or similar allegedly hearsay testimony was admitted elsewhere, without objection, any error in admitting the detective sergeant’s testimony regarding statements made by the juvenile was cured.
Rodriguez v. State
Criminal, Evidence, Procedure
Texas 10th Court of Appeals
May 20, 2021
10-18-00253-CR
John E. Neill
Published
The appellant challenged her conviction for hindering apprehension or prosecution. The appellate court observed that the appellant had the opportunity to avoid the prejudice and impairment but chose not to, and therefore, the court held that the appellant waived her article 39.14(a) of the Code of Criminal Procedure complaint in the issue. Further, the appellant’s conviction for felony hindering apprehension or prosecution was supported by sufficient evidence. The appellate court concluded that because the same or similar allegedly hearsay testimony was admitted elsewhere, without objection, any error in admitting the detective sergeant’s testimony regarding statements made by the juvenile was cured. Accordingly, the court affirmed the judgment of the trial court.  


The trial court should issue any necessary bench warrant within ten days from the date of the Court’s mandate.
Ex parte Grant
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
May 19, 2021
WR-84, 021-04
Per Curiam
Published
The applicant was convicted of murder and sentenced to life imprisonment. The applicant filed the application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to the Court. The criminal appellate court found that the Court initially remanded the application because the habeas record did not support the agreed recommendation to grant actual innocence relief. The entirety of the record now supported the agreed recommendation to grant actual innocence relief. The trial court should issue any necessary bench warrant within ten days from the date of the Court’s mandate. Finally, the copies of the opinion should be sent to the Texas Department of Criminal Justice Correctional Institutions Division and the Board of Pardons and Paroles.  


Without the inadmissible hearsay evidence, there was no evidence presented to satisfy the preponderance of the evidence standard to deny bond, and the trial court abused its discretion by remanding the appellant without bond.
Ex parte Trevino
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
May 19, 2021
04-20-00544-CR
Patricia O. Alvarez
Published
The appellant was charged with aggravated assault with a deadly weapon. While on release, the appellant allegedly violated his release conditions, and the trial court revoked bond. The appellant filed a motion to set bail and a pretrial application for writ of habeas corpus. At the hearing on the motion to set bail, the appellant objected to the trial court considering any hearsay testimony, but the trial court overruled his objections. After the hearing, the trial court denied the appellant’s application. The appellate court found that the trial court erred when it admitted hearsay evidence to deny the appellant’s bond. Without the inadmissible hearsay evidence, there was no evidence presented to satisfy the preponderance of the evidence standard to deny bond, and the trial court abused its discretion by remanding the appellant without bond. Accordingly, the court denied the appellant’s request that it set bond and remanded.  


The criminal appellate court concluded that a rational trier-of-fact could have inferred the appellant knew of the order at issue and that retaining his child violated that order.
Hammack v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
May 19, 2021
PD-0636-19
David C. Newell
Published
The State charged the appellant with interference with child custody and a jury convicted him and sentenced him to two years’ confinement in state jail. The trial court placed the appellant on community supervision for a term of five years and the terms and conditions of his probation specified that the appellant could not live with the child (or any of his children) or have unsupervised access to any child under eighteen years of age. The criminal appellate court found that the State presented sufficient evidence that the appellant knew about the existence and relevant terms of the emergency protection order even though the evidence showed he had successfully avoided service. The criminal appellate court concluded that a rational trier-of-fact could have inferred the appellant knew of the order at issue and that retaining his child violated that order. Accordingly, the judgment was affirmed.


The appellate court concluded that viewing any harm in light of the entire jury charge, the state of the evidence, and the argument of counsel, the court found that any error in the jury charge was harmless.
Campbell v. State
Criminal, Evidence, Procedure
Texas 10th Court of Appeals
May 19, 2021
10-19-00191-CR
John E. Neill
Published
The appellant was convicted of the offense of murder and assessed his punishment at confinement for life. The appellate court observed that the jury returned a general verdict that did not indicate on which alternative theory of murder it convicted the appellant. The jury was authorized to convict the appellant of murder if they found he knowingly caused the death of the victim. Although the abstract portion of the charge defined intentionally in relation to both the result of conduct and the nature of conduct, the charge limited the definition of knowingly to result of conduct. The jury could have convicted the appellant by finding that he intentionally caused the death of the victim in that he intended the result of his conduct or that he knowingly caused the death of the victim. The appellate court concluded that viewing any harm in light of the entire jury charge, the state of the evidence, and the argument of counsel, the court found that any error in the jury charge was harmless. Accordingly, the court affirmed the trial court’s judgment.  


The appellate court concluded that because the appellant failed to state a justiciable claim for injunctive relief that would remedy an actual or imminent harm, the trial court did not have subject-matter jurisdiction over his claim for injunctive relief.
Conroy v. Wilkerson
Constitution, Gov't/Administrative
Texas 8th Court of Appeals
May 14, 2021
08-19-00160-CV
Gina M. Palafox
Published
The appellant filed the lawsuit against the appellee and Texas Department of Public Safety (TDPS), asserting that he had only recently learned of the existence of the interrogation video, which had never been provided to him or to his criminal defense counsel. The appellant later filed an amended complaint, in which he repeated and expanded upon his allegations against the appellee individual, asserted claims against the appellee office, and dropped his claims against TDPS. The appellate court observed that because the appellant’s federal constitutional claims were clearly inconsistent with the validity of his conviction and the appellant had not shown that his conviction had been reversed, expunged, invalidated, or called into question by a federal habeas writ, those claims were barred by the favorable termination rule and the trial court did not have jurisdiction to consider them. The appellate court found that the trial court did not err in granting the appellees’ plea to the jurisdiction as to those claims. The appellate court concluded that because the appellant failed to state a justiciable claim for injunctive relief that would remedy an actual or imminent harm, the trial court did not have subject-matter jurisdiction over his claim for injunctive relief. Accordingly, the court affirmed the trial court’s order of dismissal.  


The Supreme Court disagreed with the appellate court’s interpretation of the "if applicable" clause as the statute’s method for protecting the property interests of subsequent purchasers.
Broadway Nat'l Bank v. Yates Energy Corp.
Contracts, Real Property
The Supreme Court of Texas
May 14, 2021
19-0334
John P. Devine
Published
The appellant appealed the judgment of the trial court when the Texas Property Code authorized the correction of a material error in a recorded original instrument of conveyance by agreement. To be effective, the instrument correcting the error must be executed by each party to the original instrument or, if applicable, a party’s heirs, successors, or assigns. The issue there was when were an original party’s heirs, successors, or assigns applicable, such that their agreement was necessary to make the correction. The Supreme Court found that the trial court held that a validly executed correction instrument under section 5.029 must be signed by the property’s current owners. Further, the court did not agree that a correction instrument’s validity under 5.029 invariably depended on the consent of an assign or subsequent purchaser. Rather, the court understood the if applicable clause to provide a substitute person or entity to sign when a party to the original conveyance was unavailable to sign a correction instrument for a material error. The Supreme Court disagreed with the appellate court’s interpretation of the "if applicable" clause as the statute’s method for protecting the property interests of subsequent purchasers. Accordingly, the judgment was reversed and remanded.  


The Supreme Court concluded that the appellate court erred in holding that the ex parte individual’s DWI arrest records were not eligible for expunction under Article 55.01(a)(2).
Ex parte R.P.G.P.
Criminal, Evidence, Procedure
The Supreme Court of Texas
May 14, 2021
19-1051
Eva M. Guzman
Published
The appellant appealed the judgment of the trial court where the expunction case presented a straightforward, but confounding, statutory-construction issue of whether an arrest involving multiple offenses was divisible for purposes of expunging arrest records under Article 55.01 of the Texas Code of Criminal Procedure. The Supreme Court found that subarticles (a)(2) and (a)(2)(A) of Article 55.01 of the Texas Code of Criminal Procedure were offense-based provisions with regard to misdemeanors but arrest-based with respect to felonies. The statute expressly provided that misdemeanors and felonies were to be treated differently and used materially different language depending on the severity of the offense. Further, the record reflected that the ex parte individual was charged with alcohol intoxication, not marijuana intoxication and the expunction statute was linguistically complex and presented a statutory construction challenged that courts at all levels have grappled with, but that was all the more reason to stick to the statute’s language wherever it leads and adhere to principles the court precedents have established rather than relying on extrinsic constructs to advance presumed policy objectives. The Supreme Court concluded that the appellate court erred in holding that the ex parte individual’s DWI arrest records were not eligible for expunction under Article 55.01(a)(2). Accordingly, the judgment was reversed and remanded. 


The Supreme Court determined that because the petitioner was a “party” to the judgment, its timely filing of the new-trial motion extended the deadline for filing a notice of appeal until ninety days after the trial court signed the judgment.
Eichner v. Dominguez
Appellate: Civil, Procedure, Real Property
The Supreme Court of Texas
May 14, 2021
20-0263
Per Curiam
Published
The issue in the case was whether TEX. R. APP. P. rule 26.1(a) applied to an intervenor’s new-trial motion when the trial court strikes the intervenor’s petition before it rendered the final judgment. The appellate court held that rule 26.1(a) did not apply, but the court disagreed. The Supreme Court found that it disagreed with the appellate court's construction of rule 26.1(a). As the court acknowledged, the petitioner could not appeal the trial court’s interlocutory order striking his intervention petition until after the trial court signed a final judgment. Further, the petitioner filed its intervention petition, the trial court orally rendered and signed an order striking the intervention, and the trial court then signed a final judgment. The Supreme Court determined that because the petitioner was a “party” to the judgment, its timely filing of the new-trial motion extended the deadline for filing a notice of appeal until ninety days after the trial court signed the judgment. Accordingly, the court granted its petition for review and, without hearing argument, the court reversed the judgment of the appellate court and remanded the cause to trial court for further proceedings.  


The appellate court overruled the appellant’s first issue and sustained in part and overruled in part its second issue.
Reg'l Specialty Clinic, P.A. v. S.A. Randle & Associates, P.C.
Ethics, Health Care, Litigation: Personal Injury, Professional Responsibility
Texas 14th Court of Appeals
May 04, 2021
14-19-00145-CV
Kevin Jewell
Published
The appellant responded to the hybrid motion, asserting special exceptions, and objected to some of the lawyer’s summary-judgment evidence. The appellate court found that because the summary judgment granted the lawyer full relief on the claim when the motion argued that only one contract was not breached, the trial court erred, and because the lawyer did not address any other element of the contract claim, including whether the clinic could establish its status as a third-party beneficiary, the court concluded that he did not establish a right to summary judgment as a matter of law. The trial court erred in rendering summary judgment on the the appellant’s third-party beneficiary of a contract claim. The court sustained the the appellant’s second issue in part as to its third-party beneficiary of a contract claim, and overrule the remainder of the issue. The appellate court overruled the appellant’s first issue and sustained in part and overruled in part its second issue. Accordingly, the court affirmed the remainder of the trial court’s judgment as challenged on appeal. 


The appellate court overruled the appellee's issues because it failed to preserve them in the trial court.
4922 Holdings, LLC v. Rivera
Appellate: Civil, Contracts, Damages, Evidence, Torts
Texas 14th Court of Appeals
May 04, 2021
14-19-00922-CV
Kevin Jewell
Published
The appeal arose from a contract dispute between the appellee subcontractor and the appellants, an owner/general contractor following a construction renovation project. A jury found that both parties materially breached the contract, but that the appellants breached first and that its breach was not excused. The trial court signed a judgment awarding the appellee $3,875 in breach-of-contract damages found by the jury, $52,300 in attorney’s fees (plus conditional appellate attorney’s fees), and pre- and post-judgment interest. The appellate court noted that the legally and factually sufficient evidence supported the verdict and the judgment, and the court overruled the appellants three issues. The appellate court overruled the appellee's issues because it failed to preserve them in the trial court. Accordingly, the court affirmed the trial court’s judgment.  


The appellant waived its right to arbitration, and thus, the trial court did not abuse its discretion in denying the appellant's motion to compel arbitration.
Accord Bus. Funding, LLC v. Ellis
ADR, Appellate: Civil, Business, Damages
Texas 14th Court of Appeals
May 04, 2021
14-19-00279-CV
Frances Bourliot
Published
The appellant challenged the trial court’s denial of its motion to compel arbitration which the appellant filed after the appellee filed a petition for bill of review to set aside the judgment. The trial court denied the motion and subsequently declared the judgment void for lack of service of process. The appellate court noted that the appellant manipulated the exercise of its arbitral rights to its own advantage and to the appellant's detriment. The appellee established that the appellant's inconsistent conduct caused him to suffer detriment or prejudice. Further, the appellant concluded that the nonwaiver of remedies clause did not prevent the appellant from waiving its right to arbitration based on the appellant's affirmative actions in substantially invoking the judicial process. Furthermore, considering the totality of circumstances, the court concluded that the appellee established on the record that the appellant substantially invoked the judicial process and caused the appellee to suffer detriment or prejudice. Lastly, the appellant waived its right to arbitration, and thus, the trial court did not abuse its discretion in denying the appellant's motion to compel arbitration. Accordingly, the court affirmed the trial court’s order denying the motion to compel.          


Since the appellee relied solely on the absence of tolling in its motion for summary judgment, it failed to establish its limitation defense as a matter of law, and the trial court erred in granting summary judgment.
El Pistolon II, Ltd. v. Levinson Alcoser Associates, L.P.
Appellate: Civil, Contracts, Procedure, Torts
Texas 13th Court of Appeals
May 13, 2021
13-19-00303-CV
Leticia Hinojosa
Published
The appellant sued the appellee, alleging claims for negligence and breach of contract. The appellee moved to dismiss the suit because the appellant failed to include a certificate of merit as required by Section 150.002 of the Texas Civil Practice and Remedies Code. The trial court denied the motion to dismiss. The appellant filed the present lawsuit, alleging the same material allegations, but it filed a revised certificate of merit. The appellate court observed that the absence of tolling would create an arbitrary distinction between the plaintiffs whose cases were immediately dismissed without prejudice and those who successfully defend a motion to dismiss in the trial court but not on appeal. The first class of the plaintiffs would typically be able to refile their suit immediately within the statute of limitations. Further, the legal impediment rule applied to the narrow circumstances presented in the case and that the applicable limitations periods were tolled during the pendency of the appeal in the second suit through the date of the trial court’s order of dismissal without prejudice. Lastly, because the appellee relied solely on the absence of tolling in its motion for summary judgment, it failed to establish its limitation defense as a matter of law, and the trial court erred in granting summary judgment. Accordingly, the judgment was reversed and remanded.


The appellate court concluded that the appellant did not complain to the trial court that the award of the car and spousal support were not supported by the appellee’s pleading.
Yang v. Cao
Family, Procedure
Texas 1st Court of Appeals
May 13, 2021
01-19-00605-CV
Sherry Radack
Published
The appellant appealed the judgment of the trial court which issued a protective order that the trial court granted to the appellee against the appellant. The appelate court found that there was insufficient evidence to support a lifetime restraining order under the basis specified in the trial court’s finding and there was insufficient evidence of serious bodily injury to the appellee. Further, because there was insufficient evidence to support the trial court’s affirmative finding of “serious bodily injury,” the court modified the judgment to delete the “serious bodily injury” finding and reduce the period for the restraining order from the “life of the respondent” to the maximum-allowed period of two years. The appellate court concluded that the appellant did not complain to the trial court that the award of the car and spousal support were not supported by the appellee’s pleading. Accordingly, the judgment was affirmed as modified.  


The appellate court construed the plain language used by the legislature in Section 154.001(a–1) to authorize the trial court to order the appellant to pay child support.
In re C.J.C.
Family, Gov't/Administrative, Juvenile
Texas 11th Court of Appeals
May 13, 2021
11-20-00260-CV
W. Bruce Williams
Published
The appeal was from an order in which the trial court ordered the father of the child to pay child support after the appellant’s parental rights were terminated. In his sole issue on appeal, the appellant asserted that Section 154.001(a–1) of the Texas Family Code did not authorize a trial court to order post-termination child support under the circumstances present in the case. The appellate court observed that the record showed that the child was in substitute care in a residential treatment center and that the Department had been appointed as the child’s permanent managing conservator. Also, the trial court found that the appellant was financially able to support the child in the manner specified, which was $339.27 per month until the child either turned eighteen or graduated from high school, whichever occurred later. The appellate court construed the plain language used by the legislature in Section 154.001(a–1) to authorize the trial court to order the appellant to pay child support. Accordingly, the court affirmed the order of the trial court.  


The appellate court concluded that the appellant had no legal authority to initiate or prosecute the underlying suits.
State v. Shahan
Appellate: Civil, Constitution, Gov't/Administrative, Procedure
Texas 4th Court of Appeals
May 12, 2021
04-19-00714-CV
Patricia O. Alvarez
Published
The appellant, acting in his official capacity as Kinney County Attorney, filed three civil suits against Kinney County officials on behalf of the State of Texas. The suits claimed, inter alia, that when Kinney County officials reduced his salary, they violated provisions of the Open Meetings Act, the Local Government Code, and the appellant’s due process rights. The appellate court found that although the notices of appeal conclusively established that the appellant did not file notices of appeal in his individual capacity, we also note that the appellant’s docketing statements and post-notice motions were consistent with only one appellant—the State of Texas. Because the appellant failed to file notices of appeal in his individual capacity, his complaints about the trial court’s assessment of costs and attorney’s fees against him in his individual capacity were not properly before the court, and the court could not grant him any more favorable relief than did the trial court. The appellate court concluded that the appellant had no legal authority to initiate or prosecute the underlying suits. Accordingly, the judgment was affirmed.  


The criminal appellate court decided that the appellant preserved the matter for appeal, and remanded the cause for the court of appeals to consider the appellant’s issue on the merits.
Williams v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
May 12, 2021
PD-0124-20
Per Curiam
Unpublished
The appellant was tried on the attempted capital murder count and the continuous family violence count, and the jury found him guilty of both charges. The jury assessed punishment at 99 years on the attempted capital murder charge and 10 years on the continuous family violence charge. The criminal appellate court held that if the error was the trial court’s failure to hold a hearing on a motion for new trial, when that motion was overruled by operation of law, no timely and specific objection to the trial court can be made. The criminal appellate court found that there was no dispute that the appellant timely filed and presented his motion for new trial to the trial court and that the motion requested a hearing. The criminal appellate court determined that the appellant told the trial court what he wanted at a time that the trial court was able to do something about it. The criminal appellate court decided that the appellant preserved the matter for appeal, and remanded the cause for the court of appeals to consider the appellant’s issue on the merits. Accordingly, the judgment was reversed and remanded.  


The criminal appellate court concluded that the appellant had not been shown to be categorically ineligible for the imposition of the death penalty.
Petetan v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
May 12, 2021
AP-77,038
David C. Newell
Published
The appellant was convicted of the capital murder of his wife and the jury rejected, in a special issue, the appellant's claim that he was intellectually disabled and therefore categorically ineligible for the death penalty. The criminal appellate court noted that Atkins v. Virginia and its progeny did not require a pre-trial determination of intellectual disability as a matter of federal constitutional law. The criminal appellate court found that because the pre-trial determination was neither constitutionally nor statutorily required, the trial court did not err inrefusing to hold a pre-trial hearing on the issue of intellectual disability. The evidence in the case was legally sufficient for the jury to reject the appellant’s intellectual disability claim. The criminal appellate court concluded that the appellant had not been shown to be categorically ineligible for the imposition of the death penalty. Accordingly, the court vacated the appellant’s death sentence and remanded the cause for a new punishment hearing.  


The appellate court concluded that the trial court did not abuse its discretion by awarding prejudgment interest on a recovery of attorney’s fees and the appellant did not establish that it was entitled to a new trial on its separate claims for relief against the appellee.
Apache Corp. v. Castex Offshore, Inc.
Contracts, Corporations
Texas 14th Court of Appeals
May 11, 2021
14-19-00605-CV
Tracy Christopher
Published
The appellant sued the appellee, alleging breaches of the Potomac agreement and the contracts, and those claims were based on the appellee’s alleged failure to pay its proportionate share under the agreements. On appeal, the appellant challenged the trial court's entry of a judgment based on those findings. The appellate court held that willful misconduct meant deliberate mismanagement committed without regard for the consequences. The appellate court found that there was sufficient evidence that the appellant engaged in such willful misconduct with respect to one of the appellee’s counterclaims, but not both of them. The appellate court concluded that the trial court did not abuse its discretion by awarding prejudgment interest on a recovery of attorney’s fees and the appellant did not establish that it was entitled to a new trial on its separate claims for relief against the appellee. Accordingly, the court affirmed the judgment as so modified.  


The appellate court concluded that the trial court did not err in granting a no-evidence summary judgment as to the premises-liability theory.
Gregg v. Walgreen Co.
Torts
Texas 14th Court of Appeals
May 11, 2021
14-19-00335-CV
Randy Wilson
Published
The appellant appealed the judgment of the trial court which granted a no-evidence summary judgment in a slip-and-fall case, asserting that the trial court erred in granting summary judgment despite the existence of fact issues on two essential elements challenged in the motion and despite the appellee's alleged spoliation of evidence. The appellate court observed that the appellee did not amend its summary-judgment motion to seek a traditional summary judgment based on the video, and the trial court granted the appellee’s no-evidence motion eight days after the appellee filed its reply. Further, the trial court’s refusal to grant the spoliation relief the appellant requested could not possibly be an abuse of discretion. The appellate court concluded that the trial court did not err in granting a no-evidence summary judgment as to the premises-liability theory. Accordingly, the court affirmed the trial court’s judgment.


The appellate court could not say that there was an abuse of discretion on the part of the trial court in awarding attorney’s fees, attorney ad litem fees, and costs under Sections 1155.054(d) and 1155.151(c) of the Texas Estates Code.
In re Guardianship of A.B.
Family, Juvenile
Texas 11th Court of Appeals
May 13, 2021
11-19-00185-CV
W. Bruce Williams
Published
The mother filed an Application for Appointment of Permanent Guardian of the Person and Estate of the incapacitated person and the trial court granted the appellee’s application and named her guardian of the person and estate of the incapacitated person. The following was an appeal from an Order Authorizing Payment of Attorney’s Fees and an Order Authorizing Payment of Attorney Ad Litem’s Fees and Expenses in a guardianship proceeding. The appellate court observed that it was difficult to articulate what just cause the appellant actually forwarded and factually supported. He even admitted that his ex-wife, the applicant, was qualified and that it would be in the incapacitated person’s best interest that she serve as guardian. The appellate court noted that the record before the court reflected insufficient direct or circumstantial evidence of dishonest, malicious, or discriminatory motivation on the part of the appellant, as was necessary for a finding of bad faith. The appellate court could not say that there was an abuse of discretion on the part of the trial court in awarding attorney’s fees, attorney ad litem fees, and costs under Sections 1155.054(d) and 1155.151(c) of the Texas Estates Code. Accordingly, the judgment was affirmed.


The appellate court concluded that weighing the severity of his forty-year sentences against the gravity of his offenses, the appellant's sentences were well within the bounds of the Eighth Amendment’s proportionality guarantee.
Bolar v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
May 13, 2021
02-19-00357-CR
Mike Wallach
Published
The appellant was sentenced to forty years’ concurrent confinement for each of his seven felony convictions. The appellate court noted that in the rare case in which the threshold analysis indicated gross disproportionality, the court proceeded to steps two and three by comparing the defendant’s sentence with those received by similar offenders in the jurisdiction and with those imposed for the same crime in other jurisdictions. The appellate court found that the record indicated that the appellant was simply unable to bring his conduct within the social norms prescribed by the criminal law of the State, and the habitual-offender statute itself reflected the legislature’s desire and the trial court’s authority to place upon the appellant the corresponding onus. The appellate court concluded that weighing the severity of his forty-year sentences against the gravity of his offenses, the appellant's sentences were well within the bounds of the Eighth Amendment’s proportionality guarantee. Accordingly, the judgment was affirmed. 


The appellate court concluded that the trial court did not err by refusing to include a Rule 201(f) limiting instruction in the jury charge.
Flores-Garnica v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
May 13, 2021
02-20-00016-CR
Mike Wallach
Published
The jury convicted the appellant of driving while intoxicated (DWI) and the trial court sentenced him to 120 days’ confinement, probated for fifteen months, plus a $600 fine. On appeal, the appellant challenged the sufficiency of the evidence supporting his conviction and the trial court’s refusal to include a Tex. R. Evid. 201(f) limiting instruction in the jury charge. The appellate court held that the jury was free to read may to indicate possibility. The appellate court found that the evidence showed that the appellant drove the ATV to the store for beer and then drove it to the mobile home park on roads, and the court therefore held the evidence sufficient to support the jury’s finding that the ATV was a motor vehicle. The appellate court concluded that the trial court did not err by refusing to include a Rule 201(f) limiting instruction in the jury charge. Accordingly, the judgment was affirmed.  


The appellate court concluded that because a reasonable probability existed that the jury could have assessed a lower sentence with a punishment range between two to 20 years, the court's confidence in the conviction was undermined.
Hart v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
May 13, 2021
14-19-00591-CR
Charles Spain
Published
The jury convicted the appellant of first-degree murder and assessed punishment at 30-years imprisonment, including a fine in the amount of $5,000.00. The appellate court observed that though the appellant did not file a motion for new trial alleging ineffective assistance of counsel, there was a record of his counsel’s reasoning that the parties rely on in their arguments. The appellate court found that the appellant’s claim of ineffective assistance of counsel based on failure to bring a motion to suppress could not be sustained on the record. Next, the record did not support a sound trial strategy in the mistaken belief of the appellant’s counsel. However, viewing the record as a whole, including the jury’s sentence, a reasonable probability existed that the jury could have rejected the appellant’s self-defense claim, yet found that he acted under the influence of sudden passion arising from an adequate cause. The appellate court concluded that because a reasonable probability existed that the jury could have assessed a lower sentence with a punishment range between two to 20 years, the court's confidence in the conviction was undermined. Accordingly, the judgment was affirmed, reversed, and remanded.  


The appellate court concluded that the trial court’s finding that the officer had no cause to disbelieve the false report given by the mechanic was supported by the record.
Salinas v. State
Constitution, Criminal, Evidence, Juvenile, Procedure
Texas 13th Court of Appeals
May 13, 2021
13-19-00504-CR
Dori Contreras
Published
The appellant appealed the judgment of the trial court which denied the appellant's motion to suppress following his convictions for two counts of possession of child pornography. The appellate court rejected the appellant’s arguments and found that the thumb drive there was not a “computer” for purposes of Section 33.02(a). As a result, the company’s employees did not commit a crime when they accessed it, and the Texas exclusionary rule was not implicated. The appellate court found that the private search doctrine applied there, and therefore, law enforcement did not violate the Fourth Amendment of the United States Constitution or Article I, Section 9 of the Texas Constitution when they viewed the images, and the evidence did not violate the Texas exclusionary rule. The appellate court concluded that the trial court’s finding that the officer had no cause to disbelieve the false report given by the mechanic was supported by the record. Accordingly, the judgment was affirmed.


The criminal appellate court concluded that the appellate court erred in concluding that the sergeant lacked reasonable suspicion to conduct an investigative detention.
Johnson v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
May 12, 2021
PD-0561-20
Sharon Keller
Published
The appellant appealed the judgment of the appellate court which concluded that a seizure had occurred before the appellant rolled down his car window. The criminal appellate court noted that the officer had reasonable suspicion to conduct an investigative detention because the parking lot had a significant association with criminal activity and because the occupants of the vehicle engaged in activity that appeared secretive and was unusual for the time and place. The criminal appellate court concluded that the appellate court erred in concluding that the sergeant lacked reasonable suspicion to conduct an investigative detention. Acccordingly, the court reversed the judgment of the court. 


The appellate court concluded that because there was no disputed factual issue presented, the trial court did not err by failing to include the appellant’s requested jury instruction under Article 38.23.
Yoda v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
May 06, 2021
11-19-00191-CR
W. Bruce Williams
Published
The appellant appealed the judgment of the trial court which convicted the appellant of the offense of felony driving while intoxicated as enhanced by two prior misdemeanor DWI convictions. The trial court assessed the appellant’s punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of thirty-five years. The appellate court found that while it was true that Deputy couched his opinion in miles per hour and described the appellant as traveling at “highway speeds” estimated at 60 to 70 miles per hour, the evidence allowed the trial court to view the opinion as an estimate and not a precise mathematical calculation of the appellant’s speed. The appellate court determined that the trial court did not err in denying the appellant’s motion to suppress. The appellate court concluded that because there was no disputed factual issue presented, the trial court did not err by failing to include the appellant’s requested jury instruction under Article 38.23. Accordingly, the judgment was affirmed.  


The appellants' claims to quiet title in the mineral estate were not barred by their failure to deposit funds into the registry that correlate to unpaid taxes on the royalty interest under a former lease.
Ridgefield Permian, LLC v. Diamondback E & P LLC
Appellate: Civil, Constitution, Creditor/Debtor, Real Property, Tax
Texas 8th Court of Appeals
May 05, 2021
08-19-00156-CV
Gina M. Palafox
Published
The appellants disputed the scope of property interests foreclosed upon by the tax suit pursuant to Texas real property and tax law. On cross-motions for summary judgment, the trial court declared that the appellee company—as successor to the tax-sale purchaser—held superior title to the interest at issue there, a one-fourteenth mineral estate in the subject tract. On appeal, the appellants argued that the tax judgment foreclosed upon—and the sheriff’s deed conveyed—only the tax debtor’s royalty interest then existing under a producing mineral lease but not lessor’s possibility of reverter. The appellate court noted that when both sides move for summary judgment on the same issue, each bore the burden of establishing that it was entitled to judgment as a matter of law. Furthermore, because only the royalty interest was foreclosed, that was all that could be conveyed by the Tax Deed, as evidenced by the limiting language in the body of the Deed, as well as the exhibit to the Deed, which continued to describe the interest conveyed as being under the Meriwether Lease. The appellate court concluded that the appellants' claims to quiet title in the mineral estate were not barred by their failure to deposit funds into the registry that correlate to unpaid taxes on the royalty interest under a former lease. Accordingly, the court reversed the judgment of the trial court and rendered judgment in favor of the appellants.  


Since the appellant did not exhaust her administrative remedies and has not shown that an exception applies that would allow her to bring her UDJA claim without meeting the exhaustion requirement, the trial court lacked jurisdiction over the appellant’s UDJA claim.
Harris Cnty. Appraisal Dist. v. Braun
Civil Rights, Damages, Gov't/Administrative, Tax, Torts
Texas 14th Court of Appeals
May 06, 2021
14-19-00382-CV
Charles Spain
Published
The appellant appealed the judgment of the trial court which denied its plea to the jurisdiction after the appellant denied the appellee's requested homestead exemption. The appellate court held that because taxpayer suits for damages under section 1983 were barred in Texas courts if the state provided an adequate legal remedy, and as the state provided an adequate legal remedy to address the claims the appellant seeks to bring under section 1983, the court concluded the trial court lacked subject-matter jurisdiction over the appellant’s section-1983 claims. Further, the appellant did not file an appeal to the appraisal review board and accordingly did not preserve any issues the trial court could consider on trial de novo, thereby depriving the district court of jurisdiction to consider the second claim. The appellate court concluded that because the appellant did not exhaust her administrative remedies and has not shown that an exception applies that would allow her to bring her UDJA claim without meeting the exhaustion requirement, the trial court lacked jurisdiction over the appellant’s UDJA claim. Accordingly, the judgment was reversed and rendered. 


The appellate court granted the appellant’s petition for permission to appeal to address the controlling questions of law, and the court addressed them in analysis of the appellant’s first issue.
City of Houston v. Houston Prof'l Fire Fighters' Ass'n
Constitution, Employment, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
May 06, 2021
14-18-00976-CV
Meagan Hassan
Published
The appellant appealed the denial of its interlocutory plea to the jurisdiction based on governmental immunity in first case and the interlocutory denial of its motion for summary judgment based on the unconstitutionality of Texas Local Government Code section 174.252 in second case. The appellate court noted that the government’s waiver of immunity did not require as a condition precedent that the parties engaged in good faith collective bargaining based on prevailing private sector comparators for compensation and other employment conditions, therefore, the appellee was not required to present evidence of collective bargaining based on private sector labor standards to establish a waiver of governmental immunity under the Act. Therefore, the court held the trial court did not err in denying the appellant’s plea to the jurisdiction because the appellee properly pled a waiver of the appellant's governmental immunity and invoked the trial court’s jurisdiction. The appellate court granted the appellant’s petition for permission to appeal to address the controlling questions of law, and the court addressed them in analysis of the appellant’s first issue. Accordingly, the judgment was affirmed.  


The appellate court concluded that there was no evidence in the record that the appellant did not know at the time of the offense that his conduct was wrong.
McBurnett v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
May 06, 2021
02-19-00418-CR
Brian Walker
Published
The appellant appealed the judgment of the trial court which convicted the appellant of aggravated sexual assault of a child and assessed punishment at 55 years’ confinement and a $10,000 fine. The appellate court found that in contrast to the judge’s comments in Blue v. State, the reference in the case to the appellant’s incarceration was uninvited and unembellished and mirrored those references typically cured by an instruction to disregard. The appellate court determined that the trial court’s prompt instruction to disregard the officer’s reference to the appellant’s incarceration cured the error, and as a result, the court did not abuse its discretion by denying the appellant’s motion for mistrial. The appellate court concluded that there was no evidence in the record that the appellant did not know at the time of the offense that his conduct was wrong. Accordingly, the trial court’s judgment was affirmed.  


The criminal appellate court concluded that the trial court did not abuse its discretion in personally questioning the venire members who answered yes to the two questions at issue.
Spielbauer v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
May 05, 2021
PD-0245-20
Mary Lou Keel
Published
The appellant was charged with capital murder, but the State did not seek the death penalty, so the trial court conducted voir dire primarily under Article 35.17(1). On appeal, the criminal appellate court was asked to consider whether the trial court must dismiss a potential juror under Texas Code of Criminal Procedure Article 35.16(a)(10) based solely on answers to a questionnaire? The criminal appellate court observed that even if the wording exactly tracked the statutory language, a questionnaire answered before voir dire would not by itself support a challenge for cause under Article 35.16(a)(10), and a trial court did not abuse its discretion in questioning the potential juror about his answers to the questionnaire. Further, the appellant argued that Gonzales v. State was distinguishable from the case because it addressed a challenge for cause based on bias or prejudice under Article 35.16(a)(9) rather than a conclusion about guilt or innocence under Article 35.16(a)(10). The criminal appellate court concluded that the trial court did not abuse its discretion in personally questioning the venire members who answered yes to the two questions at issue. Accordingly, the judgment was reversed and remanded.


The appellate court concluded that the appellant had not met TEX. CODE CRIM. PROC. Article 64.03(a)(2)(A)’s requirements and the trial court properly denied DNA testing.
Ramirez v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
May 05, 2021
AP-77,084
Bert Richardson
Published
The appellant was convicted and sentenced to death for intentionally and knowingly causing the deaths of five by shooting them with a firearm during the same criminal transaction. The appellate court found that under the circumstances, the appellant had not established by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing of the two items at issue. The appellate court determined that given the number of accomplices, murdered victims, party liability, the testimony of the Aunt, admitted physical evidence, and the appellant’s confession, the hats could not have produced true exculpatory evidence in the case. The appellate court concluded that the appellant had not met TEX. CODE CRIM. PROC. Article 64.03(a)(2)(A)’s requirements and the trial court properly denied DNA testing. Accordingly, the court affirmed the trial court’s order denying testing. 


The trial court did not err in granting the appellee’s motion to suppress the videotape recording of the appellee’s oral statement to law enforcement officers.
State v. Negrete
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 04, 2021
01-19-00357-CR
Julie Countiss
Published
The appellee was charged with unlawfully, intentionally and knowingly committing the felony offense of deadly conduct by knowingly discharging a firearm at and in the direction of a vehicle, namely a motor vehicle, and the appellee was reckless as to whether the vehicle was occupied, and while in the course of and furtherance of said offense did commit an act clearly dangerous to human life, to-wit by shooting with a firearm and did thereby cause the death of the victim the complainant. On appeal, the appellant challenged the trial court’s order granting the pretrial motion to suppress filed by appellee. In its sole issue, the State contended that the trial court erred in granting appellee’s motion to suppress the videotape recording of the appellee’s oral statement to law enforcement officers. The appellate court found that appellee articulated his desire for the assistance of counsel sufficiently clear that a reasonable law enforcement officer in the circumstances would have understood that the statement was a request for an attorney. Further, the appellee unambiguously and unequivocally invoked his right to counsel and the law enforcement officers conducting the interview had a duty to terminate their interrogation. The appellate court concluded that the trial court did not err in granting the appellee’s motion to suppress the videotape recording of the appellee’s oral statement to law enforcement officers. Accordingly, the judgment was affirmed.      


The appellate court concluded that any declaration against interest in which the defendant was the declarant of the statement would virtually always be admissible under Rule 801(e)(2), as an admission by a party opponent.
Templeton v. State
Constitution, Criminal, Evidence, Procedure
Texas 11th Court of Appeals
April 30, 2021
11-19-00192-CR
W. Stacy Trotter
Published
The appellant appealed the judgment of the trial court which convicted him of the third-degree felony offense of assault family violence by strangulation. The jury convicted the appellant of the charged offense, found an enhancement allegation to be true, and assessed the appellant’s punishment at eight years’ imprisonment in the Texas Department of Criminal Justice, Institutional Division. The appellate court observed that assuming that although not raised on appeal by either the appellant or the State, and despite the trial court’s lack of clarity in its admissibility determination, the court held that the admissibility of the statements and admissions made by the appellant during the “buttdial” phone call was more akin to the requirements of Rule 801(e)(2)(A) of the Texas Rules of Evidence. Further, because the appellant’s statements, and thus his admissions, qualified as an opposing party’s statement under Rule 801(e)(2)(A), those challenged statements would not be hearsay by definition and would, therefore, be admissible. The appellate court concluded that any declaration against interest in which the defendant was the declarant of the statement would virtually always be admissible under Rule 801(e)(2), as an admission by a party opponent. Accordingly, the judgment was affirmed.


The court held that the volunteers were licensees and that with respect to the other issues, the trial court did not commit reversible error
Catholic Diocese of El Paso (San Lorenzo Church) v. Porter
Litigation: Personal Injury, Torts
The Supreme Court of Texas
May 07, 2021
19-0190
Nathan L. Hecht
Published
The appellant appealed the judgment of the trial court, asking the Supreme Court to consider whether volunteers working in a third-party vendor’s booth at a festival were invitees of the landowner or only licensees. The Supreme Court found that none of those rulings, made over the course of a month-long trial featuring testimony from 35 fact and expert witnesses, probably caused the rendition of an improper judgment or probably prevented the petitioner from properly presented the case to the appellate courts. Further, even if the trial court erred in made any or all of those decisions, the errors would be harmless and not reversible. The Supreme Court concluded that because the families had not shown either that the evidence conclusively established that the Church breached the duty that it owed the volunteers as licensees or that the trial court otherwise committed reversible error. Accordingly, the court reversed the appellate court’s judgment in part and affirmed in part.


The appellate court determined that because granting mandamus relief to correct a trial judge’s clear abuse of discretion was agreeable to the governing principles of law, the court conditionally granted the relators’ petition and order the Judge to vacate the spoliation sanctions rendered.
In re Larsen
Appellate: Civil, Constitution
Texas 4th Court of Appeals
May 05, 2021
04-21-00046-CV
Patricia O. Alvarez
Published
The mandamus proceeding arose out of a civil suit filed by the real parties in interest against the relators. The appellate court found that the relators’ petition for writ of mandamus and the mandamus record showed a clear abuse of discretion for which there was no adequate remedy by appeal. The appellate court determined that because granting mandamus relief to correct a trial judge’s clear abuse of discretion was agreeable to the governing principles of law, the court conditionally granted the relators’ petition and order the Judge to vacate the spoliation sanctions rendered against the relators. Accordingly, the writ would issue only if the sanctions were not timely vacated as per the court's order. 


The petitioner owed the respondent no duty as a matter of law, and the appellate court erred in reversing summary judgment in the petitioner's favor on the respondent's negligence claim.
JLB Builders, L.L.C. v. Hernandez
Appellate: Civil, Contracts, Employment, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
May 07, 2021
20-0368
Debra Lehrmann
Published
The petitioner moved for traditional and no-evidence summary judgment, asserting in its no-evidence motion that the respondent could not provide any evidence to support the negligence elements of duty, breach, and causation. The appellate court initially affirmed, holding that the petitioner owed the respondent no duty because it did not control the manner, method, or means of the company's injury-causing work. The Supreme Court found that the respondent failed to raise a fact issue as to whether the petitioner exercised actual control over the company with respect to the injury-causing work. The Supreme Court held as a matter of law that the contract did not provide a basis for imposing a duty of care on the petitioner to ensure the safe performance of the company's work, and the court thus rejected the respondent's argument that the contract provided an alternative basis to affirm the appellate court's judgment. The Supreme Court concluded that the petitioner owed the respondent no duty as a matter of law, and the appellate court erred in reversing summary judgment in the petitioner's favor on the respondent's negligence claim. Accordingly, the court reversed the appellate court's judgment and rendered judgment that the respondent take nothing from the petitioner.


The Supreme Court concluded that the trial court abused its discretion when it concluded that the nurse’s counter affidavit failed to comply with the requirements of section 18.001(f).
In re Allstate Indem. Co.
Appellate: Civil, Constitution, Consumer, Damages, Insurance, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
May 07, 2021
20-0071
Rebeca Huddle
Published
The relator petitioned the appellate court for a writ of mandamus compelling the trial court to vacate its order. On appeal, the relator then petitioned the Supreme Court for a writ of mandamus. The Supreme Court observed that the trial court clearly abused its discretion, both by erroneously holding that a registered nurse’s counter affidavit failed to comply with Civil Practice and Remedies Code section 18.001(f) requirements and by precluding the relator from controverting the plaintiff’s medical expenses through evidence or argument based on an erroneous reading of section 18.001. The Supreme Court found that the mere fact that the relator could present different, possibly less compelling, arguments did not minimize the crippling effect the trial court’s order would have on the relator’s ability to challenge the reasonableness of the plaintiff’s medical expenses, a central component of her claimed damages. The Supreme Court concluded that the trial court abused its discretion when it concluded that the nurse’s counter affidavit failed to comply with the requirements of section 18.001(f). Accordingly, the court granted the writ.


The appellate court erred in holding that the petitioner was entitled to summary judgment on the respondent’s claims for injuries to its interests in the PCQ lease.
Regency Field Services, LLC v. Swift Energy Operating, LLC
Appellate: Civil, Damages, Evidence, Litigation: Personal Injury, Procedure, Real Property, Torts
The Supreme Court of Texas
May 07, 2021
19-0545
Jeffrey S. Boyd
Published
The appellant appealed the judgment of the trial court in an appeal concerning the specific issue of when, for purposes of the statute of limitations, the respondent’s claims accrued. On appeal, the issue was whether the pleadings and summary judgment evidence conclusively established that the respondent’s claims accrued at least two years before the respondent first filed them. The Supreme Court observed that the pleadings and evidence did not conclusively establish that the respondent sustained a legal injury by that date. The Supreme Court found that the statute of limitations may very well bar the respondent’s claims. The Supreme Court concluded that the appellate court erred in holding that the petitioner was entitled to summary judgment on the respondent’s claims for injuries to its interests in the PCQ lease. Accordingly, the judgment was reversed and remanded.


Since the sale had already taken place, the appellant's substantive complaints regarding the propriety of the sale order were moot.
Antolik v. Antolik
Creditor/Debtor, Damages, Procedure, Real Property, Torts, Wills/Trusts/Probate
Texas 6th Court of Appeals
May 07, 2021
06-20-00082-CV
Ralph Burgess
Published
The appellant appealed the post-judgment order granting a receiver’s motion for authority to sell the receivership estate’s interest in certain property in the trial court. The appellate court noted that although the appellate court concluded that the trial court had jurisdiction over the trust at issue, the court nevertheless concluded that, because the sale had already taken place, the appellant's substantive complaints regarding the propriety of the sale order were moot. Accordingly, the court dismissed the appellant’s complaints regarding the propriety of the Sale Order as moot.    


The relator could no more bind its insured to the verdict than could the motorist against whom it was rendered.
In re USAA Gen. Indem. Co.
Constitution, Damages, Insurance, Procedure
The Supreme Court of Texas
May 07, 2021
20-0075
Eva M. Guzman
Published
The relator declined to participate in the jury trial to establish the motorist’s liability and demanded a separate trial on its liability under the UIM policy. After the insured’s negligence suit against an at-fault motorist settled and the claim had been dismissed without rendition of judgment on the jury’s verdict, the relator consented to be bound to a judgment on the negligence verdict. On appeal, the relator argued that the jury verdict and settlement payment collectively negated its liability to the insured for UIM benefits, the relator sought a writ of mandamus compelling the trial court to render judgment in its favor on the jury’s verdict. The Supreme Court found that the trial court did not abuse its discretion in declining to render judgment on the verdict for at least two reasons: (1) collateral estoppel did not bind the insured to a verdict that was not reduced to judgment; and (2) the relator’s post-dismissal consent to be bound by the negligence suit’s outcome did not make the negligence verdict enforceable against the insured in the contract suit. The Supreme Court concluded that the relator could no more bind its insured to the verdict than could the motorist against whom it was rendered. Accordingly, the writ was denied.  


The appellees failed to present clear and specific evidence that the motion to compel arbitration was groundless or filed in bad faith or for an improper purpose.
KB Home Lone Star Inc. v. Gordon
ADR, Damages, Procedure, Torts
Texas 4th Court of Appeals
May 05, 2021
04-20-00345-CV
Luz Elena D Chapa
Published
The appellant challenged the denial, by operation of law, of its motion to dismiss under the Texas Citizens Participation Act (TCPA). On appeal, the appellant argued the motion for sanctions by the appellees was a legal action filed in response to the appellant’s exercise of its right to petition. The appellate court found that the term “procedural actions or motions” was not defined in the TCPA. However, the “procedural actions or motions” that were excluded from the definition of “legal action” were only those that did not “amend or add claims for legal, equitable, or declaratory relief.” The appellate court determined that the appellees had not pointed to any provision in the FTC order or the consent decrees that prohibits enforcement of the arbitration clause in the contract in the case. The appellate court concluded that the appellees failed to present clear and specific evidence that the motion to compel arbitration was groundless or filed in bad faith or for an improper purpose. Accordingly, the court reversed.  


Because the jury heard the very evidence that the defendant urged it should have heard, albeit from a different witness, and that evidence was limited in scope and general in nature, the appellate court held that the trial court did not abuse its discretion in refusing to reopen the evidence.
Golatt v. State
Criminal, Evidence, Juvenile, Procedure
Texas 1st Court of Appeals
May 11, 2021
01-19-00904-CR
Gordon Goodman
Published
A jury found the appellant guilty of two charges of aggravated sexual assault of a child and assessed his punishment at 65 years’ confinement for each offense. The appellate court observed that it analyzed those factors under an admissibility standard that essentially required the trial court to reopen the evidence if the proffered evidence was admissible. Further, in Peek v. State, the Court abrogated that relatively lenient admissibility standard and adopted a more stringent one, which required the trial court to reopen the evidence only if the proffered evidence “would materially change the case in the proponent’s favor.” Furthermore, the four-part test stated in Huskey v. State and Landrian v. State was not dispositive. The defendant could not establish the trial court erred in refusing to reopen the evidence simply by showing the proposed evidence satisfies the four-factor test. He must also show that the evidence would have materially changed the case in his favor as required by Peek. Lastly, because the jury heard the very evidence that the defendant urged it should have heard, albeit from a different witness, and that evidence was limited in scope and general in nature, the court held that the trial court did not abuse its discretion in refusing to reopen the evidence. Accordingly, the judgment was affirmed.


The appellate court concluded that there remained a genuine issue of material fact as to whether the appellee was diligent in discovering any alleged mistake and whether his failure to file a motion for new trial or appeal of the judgment was caused by his own negligence.
Alvizo v. Walker
Procedure, Real Property, Torts
Texas 6th Court of Appeals
May 03, 2021
06-20-00080-CV
Scott E. Stevens
Published
The appellant appealed the judgment of the trial court which granted the appellee's motion for summary judgment based on mutual mistake and modified the judgment based on an “equitable division survey” of the common boundary so that the appellee’s tract would include the irrigation well, irrigation equipment, and blueberry plants. The appellate court found that the appellee did not offer sufficient summary judgment proof to establish that both parties were acting under the same misunderstanding regarding whether the judgment’s metes and bounds description of the 21.75-acre tract included the well, the irrigation equipment, and the blueberry patch. As a result, the appellee failed to conclusively establish that there was a mutual mistake of the parties that caused him to not file a motion for new trial or appeal. The appellate court concluded that there remained a genuine issue of material fact as to whether the appellee was diligent in discovering any alleged mistake and whether his failure to file a motion for new trial or appeal of the judgment was caused by his own negligence. Accordingly, the judgment was reversed and remanded.  


The Supreme Court concluded that the appellate court erred in holding that the petitioner’s motion to dismiss those new claims was untimely.
Montelongo v. Abrea
Contracts, Corporations
The Supreme Court of Texas
April 30, 2021
19-1112
Jeffrey S. Boyd
Published
The Texas Citizens Participation Act (TCPA) provided for the dismissal of certain “legal actions” that were based on or in response to a party’s exercise of the right of free speech, petition, or association. Absent an extension by agreement or for good cause, the party seeking dismissal must file a motion within sixty days after the party was served with the legal action. In the case, the defendants did not file a TCPA dismissal motion in response to the plaintiffs’ original petition but did file one within sixty days after the plaintiffs served an amended petition adding new legal claims based on the same essential facts alleged in the original petition. The Supreme Court found that the trial courts that have held that an amended or supplemental petition that added new parties or new essential factual allegations did assert a new legal action and started a new sixty-day period as to the new parties and the claims based on the new factual allegations. The Supreme Court concluded that the appellate court erred in holding that the petitioner’s motion to dismiss those new claims was untimely. Accordingly, the court reversed the appellate court's judgment and remanded the case to that trial court.      


Texas strongly favored parties’ freedom of contract, under which parties may bargain for mutually agreeable terms and allocate risks as they see fit.
Waste Mgmt. of Tex., Inc. v. Stevenson
Business, Contracts, Damages, Employment, Evidence, Litigation: Personal Injury, Torts, Workers' Compensation
The Supreme Court of Texas
April 30, 2021
19-0282
James D Blacklock
Published
The respondent applied for benefits under the agency’s workers compensation policy, asserting claims against the petitioners' alleged common-law negligence. The trial court granted summary judgment for the petitioner and the appellate court reversed and remanded, holding that a genuine fact issue existed on whether the respondent was the petitioner’s employee. The Supreme Court observed that the respondent had the benefit of sought workers compensation benefits from the agency and then taking his chances in a lawsuit against the petitioner. Further, the Agreement stated that both the agency and its personnel should be independent contractors, but there was no indication that the respondent ever saw the Master Agreement or agreed to be bound by it. If two employers could bargain away their employees rights in that way without an examination of how the employment operated in practice, workers provided by staffing agencies could be cut out of the Act’s protections altogether, even if the client company provided coverage for its other workers. The Supreme Court agreed with the concurrence that Texas strongly favored parties’ freedom of contract, under which parties may bargain for mutually agreeable terms and allocate risks as they see fit. Accordingly, the judgment was reversed and rendered a take-nothing judgment against the respondent.


The appellate court observed that to the extent the appellant’s notice of appeal was premature, the later rendition of a final judgment in the trial court cured any defect.
Fusion Indus., LLC v. Edgardo Madrid & Associates, LLC
Contracts, Corporations, Employment
Texas 8th Court of Appeals
April 30, 2021
08-20-00105-CV
Jeff Alley
Published
The appellee filed suit against the appellant and another party in the trial court, alleging that it entered into a written contract with another party to provide labor, materials, and equipment necessary to construct a well and water plant at a 20-acre site owned by another party known as the Lakeview Suites near Orla, Texas. The appellee filed a motion for default judgment against the appellant, which the trial court granted the appellee’s motion for default judgment against the appellant and issued a judgment. The appellate court observed that to the extent the appellant’s notice of appeal was premature, the later rendition of a final judgment in the trial court cured any defect. Thus, under either theory, the court had jurisdiction over the the appellant appeal.The appellate court concluded that abating the another party appeal to allow the court to clarify the scope of the the appellant default judgment and whether it was intended to reach another party as well will materially aid the court in the resolution of another party’s jurisdictional motion in the another party appeal. Accordingly, the motions were granted in part and denied in part.  


The Supreme Court concluded that because the trial court failed to apply the non-displaced provisions of Rule 76a in ruling on the motion to reconsider, it abused its discretion in granting that motion.
HouseCanary, Inc. v. Title Source, Inc.
Appellate: Civil, Business, Constitution, Contracts, Evidence, Procedure, Technology, Torts
The Supreme Court of Texas
April 30, 2021
19-0673
J. Brett Busby
Published
The petitioner entered into a licensing agreement that allowed the respondent company to evaluate and ultimately use the petitioner’s appraisal technology. The parties later disputed the terms of the agreement, and the respondent sued for breach of contract, claiming the petitioner failed to deliver what it promised. The trial court denied a motion to seal brought under Rule 76a, then granted a motion to reconsider that relied exclusively on section 134A.006a of the Texas Uniform Trade Secrets Act (TUTSA). The Supreme Court observed that the respondent and the intervenors therefore offered a collection of reasons for denying the motion to seal on grounds that were not displaced by TUTSA’s presumption favoring protective orders. The Supreme Court noted that the trial court was in the best position to determine whether the exhibits’ unsealed admission into evidence and the extent to which they were discussed at trial made the secret information generally known to or readily ascertainable by competitors, as well as whether the measures taken by the petitioner and the court itself to protect the exhibits were reasonable. The Supreme Court concluded that because the trial court failed to apply the non-displaced provisions of Rule 76a in ruling on the motion to reconsider, it abused its discretion in granting that motion. Accordingly, the judgment was affirmed in part, reversed in part, and remanded.


The appellate court need not reach whether the appellant’s claims were barred by the limitation and notice requirements because as a threshold matter, they were barred by governmental immunity.
Carrasco v. El Paso
Constitution, Gov't/Administrative, Torts
Texas 8th Court of Appeals
April 30, 2021
08-20-000062-CV
Yvonne T. Rodriguez
Published
The appellant appealed the trial court’s order granting of the appellees’ plea to the jurisdiction, which dismissed the appellant’s claims with prejudice. In four issues, the appellant asserted waiver of governmental immunity contending his claims of inverse condemnation, nuisance, and negligence and/or intentional failure and refusal to take corrective action under the Takings Clause of the Texas Constitution and the Texas Tort Claims Act should not have been dismissed with prejudice. The appellate court observed that there was no waiver of the appellees’ governmental immunity under the Texas Tort Claims Act, therefore, the appellees retain governmental immunity. Further, the appellant failed to establish a specific, intentional act to plead a viable takings claim that would constitute waiver of the appellees’ governmental immunity. The appellate court need not reach whether the appellant’s claims were barred by the limitation and notice requirements because as a threshold matter, they were barred by governmental immunity. Accordingly, the judgment was affirmed.  


The trial court’s Final Decree terminated the appellants parental rights was not void because the trial court properly extended the initial dismissal date under Section 263.401(b) and thus retained jurisdiction over the case beyond the initial dismissal date and through the date of the decree.
In the Interest of G.X.H.
Gov't/Administrative, Juvenile
The Supreme Court of Texas
April 30, 2021
19-0959
Rebeca Huddle
Published
The Texas Legislature enacted Texas Family Code section 263.401 to encourage prompt resolution of suits in which the appellee department requests termination of the parent-child relationship or requests that the appellee be named conservator of a child. The appellants appealed from the trial court’s Final Decree terminating their parental rights to two children. They argued the Final Decree was void because the trial on the merits did not commence before the dismissal date and the Texas Family Code section 263.401 divested the trial court of jurisdiction months before the Final Decree was signed. The appellate court agreed and held the Final Decree void. The Supreme Court observed that because the appellants failed to preserve them in the case, the court held their complaints regarding the timing and form of the order resetting the trial and dismissal dates were waived. The trial court’s Final Decree terminated the appellants parental rights was not void because the trial court properly extended the initial dismissal date under Section 263.401(b) and thus retained jurisdiction over the case beyond the initial dismissal date and through the date of the Final Decree. Accordingly, the judgment was reversed and remanded.


The Supreme Court held that the petitioner’s TCPA motion to dismiss was timely filed.
Kinder Morgan Sacroc, LP v. Scurry Cnty.
Appellate: Civil, Contracts, Gov't/Administrative, Procedure, Real Property, Tax, Torts
The Supreme Court of Texas
April 30, 2021
19-1122
Eva M. Guzman
Published
The respondents filed petitions before the Scurry County Appraisal Review Board challenging the appraisal value of a “category of property” in the county but not the appraised value of a single taxpayer’s property and the exclusion of property from the appraisal records. The Texas Citizens Participation Act (TCPA) motion was filed 110 days after service of the original petition for judicial review, 53 days from the first amended petition, and 34 days from the second amended petition. The Supreme Court observed that the petition asserted a broad claim for reappraisal without any of the facts that must be alleged or proved to obtain relief. The original petition did not fairly plead a cause of action for reappraisal based on taxpayer fraud. Based on the allegations in the original petition alone, the petitioner could not have ascertained that the basic issue of the controversy was its alleged misrepresentations to the Scurry County Appraisal District appraiser. The Supreme Court held that the petitioner’s TCPA motion to dismiss was timely filed. Accordingly, the judgment was reversed and remanded.


The Supreme Court conditionally granted mandamus relief to the individual in part, holding that the appellate court erred in ordering the trial court to dismiss her claim for breach of the contractual obligation to indemnify.
In re Farmers Tex. Cnty. Mut. Ins. Co.
Appellate: Civil, Contracts, Damages, Torts
The Supreme Court of Texas
April 23, 2021
19-0701
J. Brett Busby
Published
The relator filed mandamus petitions, challenging the rulings on a Texas Rule of Civil Procedure Rule 91a motion to dismiss, requiring the court to examine the legal basis of claims against a liability insurer that solicited its insured to fund part of a settlement. The Supreme Court found that the court did not determine what the policy as a whole required, whether Farmers breached it by consenting to settle within policy limits but making the insured’s release contingent on her contribution, or whether the individual could prove damages. The Supreme Court noted that the trial court properly denied the Farmers’ Rule 91a motion to dismiss the individual’s cause of action for breach of the contractual obligation to indemnify. The Supreme Court directed the trial court to grant the motion in part and dismiss that claim, and the writ would issue only if the trial court failed to act in accordance with this opinion. The Supreme Court conditionally granted mandamus relief to the individual in part, holding that the appellate court erred in ordering the trial court to dismiss her claim for breach of the contractual obligation to indemnify. Accordingly, the court conditionally granted mandamus relief. 


The appellate court determined that the appellant had not shown the trial court abused its discretion in denying his application for habeas relief.
Ex Parte Ubadimma
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 22, 2021
14-20-00670-CR
Kevin Jewell
Published
The appellant challenged the trial court’s order denying his application for writ of habeas corpus for reduction of bail in charges against him for capital murder, assault of a public servant, and violation of a condition of bond. The appellate court noted that Ex parte Holliday had not shown the trial court abused its discretion in denying his habeas applications to reduce bail. Further, the court found that as in Ex parte Holliday, counsel’s statements were not evidence and the counsel did not discuss the majority of the article 17.15 factors or Rubac factors. The appellate court determined that the appellant had not shown the trial court abused its discretion in denying his application for habeas relief. The appellate court concluded that Stocker was not entitled to release under article 17.151, and rather than consider an issue neither side had briefed, the court remanded for further proceedings. Accordingly, the court affirmed the trial court’s denial of the appellant’s habeas applications.  


The appellant contended that the “time payment” fee assessed in the trial court’s bill of costs was unconstitutional and that the court should delete the fee assessed as court costs.
Jimerson v. State
Criminal, Evidence, Procedure
Texas 12th Court of Appeals
April 21, 2021
12-20-00067-CR
James T. Worthen
Published
The appellant appealed her conviction for possession of a controlled substance with intent to deliver in an amount of four grams or more but less than two hundred grams. The appellate court noted that the appellant requested a speedy trial not long after her arrest and indictment that went unheeded by numerous acts of the State’s negligence. The appellant further contended that the methamphetamine should be suppressed because the officer lacked reasonable suspicion to stop her vehicle, his decision to seize, inventory, and impound her vehicle was improper, and he lacked a basis to conduct the warrantless search of the vehicle without her consent following her arrest. The appellate court concluded that the appellant contended that the “time payment” fee assessed in the trial court’s bill of costs was unconstitutional and that the court should delete the fee assessed as court costs. Accordingly, the court reversed the trial court’s judgment and rendered judgment dismissing the case against the appellant.  


The appellate court concluded that the appellant’s confession had been corroborated and the corpus delicti rule satisfied.
Miranda v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
April 21, 2021
PD-1340-18
Barbara Hervey
Published
The appellant appealed the judgment of the trial court which found the appellant guilty of improper relationship by engaging in sexual intercourse with the first individual, improper relationship by engaging in sexual intercourse with the second individual, sexual assault of a child by penetration of the sexual organ of the second individual by means of the sexual organ of the defendant, and sexual performance by a child by inducing the first individual to engage in sexual intercourse. The appellate court found that there was more corroborating evidence and the detective testified that an individual alleged during her forensic interview that the appellant engaged in improper sexual contact with her. The appellate court determined that according to the detective, despite the allegation and her belief that police could obtain an arrest warrant for sexual assault, they decided not to because, although the victim was 16 years old at the time of the assault, she was 17 years old at the time of the interview and did not want to proceed with the charge. The appellate court concluded that the appellant’s confession had been corroborated and the corpus delicti rule satisfied. Accordingly, the judgment was reversed.  


The appellate court determined that the appellant had not shown the trial court abused its discretion in denying his application for habeas relief.
Ex Parte Ubadimma
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 22, 2021
14-20-00670-CR
Kevin Jewell
Published
The appellant challenged the trial court’s order denying his application for writ of habeas corpus for reduction of bail in charges against him for capital murder, assault of a public servant, and violation of a condition of bond. The appellate court noted that Ex parte Holliday had not shown the trial court abused its discretion in denying his habeas applications to reduce bail. Further, the court found that as in Ex parte Holliday, counsel’s statements were not evidence and the counsel did not discuss the majority of the article 17.15 factors or Rubac factors. The appellate court determined that the appellant had not shown the trial court abused its discretion in denying his application for habeas relief. The appellate court concluded that Stocker was not entitled to release under article 17.151, and rather than consider an issue neither side had briefed, the court remanded for further proceedings. Accordingly, the court affirmed the trial court’s denial of the appellant’s habeas applications.  


The trial court erred in denying the appellant's motion to rescind because the trial court had no authority to sign the withdrawal order to collect cost assessed in a dormant judgment.
Bledsoe v. State
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
April 21, 2021
10-19-00274-CV
Thomas W. Gray
Published
The appellant was convicted of three felony offenses and assessed costs in each case. On appeal, the appellant filed a motion to rescind the withdrawal order in the trial court in each case. The appellate court noted that because the trial court judge was disqualified, the Order to Withdraw Funds and the Order which denied the appellant's motion to rescind were void. The appellate court found that because the trial court’s orders relating to the appeal were void, the court had no jurisdiction to address any other issue that may pertain to the particular appellate case number. The appellate court concluded that the trial court erred in denying the appellant's motion to rescind because the trial court had no authority to sign the withdrawal order to collect cost assessed in a dormant judgment. Accordingly, the trial court’s orders were reversed and judgments in favor of the appellant were rendered.  


Since the Indecency with a Child by Contact offense did not occur outside the period in which the Continuous Sexual Abuse of a Young Child offense was committed, the appellant’s dual convictions for both offenses violated Section 21.02(e)(2).
Allen v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
April 21, 2021
PD-0203-19
Scott Walker
Published
The appellant appealed the judgment of the trial court which convicted him of committing Continuous Sexual Abuse of a Young Child, Indecency with a Child by Exposure, and Indecency with a Child by Contact. The appellant challenged the sufficiency of the evidence, and the appellate court upheld the convictions for Continuous Sexual Abuse of a Young Child and Indecency with a Child by Contact but reversed the Indecency with a Child by Exposure conviction. The criminal appellate court noted that because the Indecency with a Child by Contact offense did not occur outside the period in which the Continuous Sexual Abuse of a Young Child offense was committed, the appellant’s dual convictions for both offenses violated Section 21.02(e)(2). Accordingly, the judgment of the appellate court was affirmed in part and reversed in part. 


The criminal appellate court concluded that the corpus delicti rule had been satisfied and the evidence was legally sufficient because it tended to show that someone operated a motor vehicle in a public place while intoxicated.
Harrell v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
April 21, 2021
PD-0985-19
Barbara Hervey Parker
Published
The appellant was charged by information with a Class A misdemeanor, driving under the influence (DWI). On appeal, the appellant challenged the conviction and sentence to 365 days’ confinement, probated for twenty-four months, and fine of $1,000.00. The criminal appellate court observed that the evidence was sufficient under Jackson v. Virginia because a rational jury could find each essential element of the offense beyond a reasonable doubt when considering all the admitted evidence, including the appellant’s extrajudicial confession. The criminal appellate court found that the evidence was also sufficient to show the corpus delicti of DWI. The criminal appellate court concluded that the corpus delicti rule had been satisfied and the evidence was legally sufficient because it tended to show that someone operated a motor vehicle in a public place while intoxicated. Accordingly, the judgment was reversed and remanded.


The appellate court concluded that the motion to transfer venue was not properly before the court because it was not filed prior to entry of the Agreed Final Judgment and thus not considered nor ruled upon by the trial court.
CQuentia Series Holdings, LLC v. Luminex Corp.
Contracts, Procedure
Texas 8th Court of Appeals
April 16, 2021
08-20-00033-CV
Yvonne T. Rodriguez
Published
The appellant appealed the judgment of the trial court after the appellee filed suit against it and sought entry of the Agreed Judgment, which it obtained. The appellate court expressed no opinion regarding whether the appellant consented to the entry of the Agreed Judgment at the time it was actually entered because it does not change the unambiguous terms of the supplement indicating the appellant’s consent to waive any right to receive notice or to be heard prior to entry of the Agreed Judgment or to appeal the entry after it occurred. The appellate court must hold the appellant to its agreement, finding the appellant waived its right to appeal the entry of the Agreed Judgment by agreement. The appellate court concluded that the motion to transfer venue was not properly before the court because it was not filed prior to entry of the Agreed Final Judgment and thus not considered nor ruled upon by the trial court. Accordingly, the judgment was affirmed. 


The criminal appellate court concluded that even if the court assumed that the trial court erred in denying the appellant’s challenge for cause to the remaining venire member at issue, another member, the appellant could not show harm.
Love v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
April 14, 2021
AP-77, 085
Mary Lou Keel
Unpublished
The appellant appealed the judgment of the trial court which convicted the appellant of capital murder for murdering the first victim and the second victim in the same criminal transaction. On appeal, the appellant challenged the trial court's sentence to death. The criminal appellate court found that the trial court did not abuse its discretion in denying the appellant’s challenge for cause to venire members. The criminal appellate court noted that the member did not express the belief that death was the presumptively appropriate sentence for a person convicted of capital murder. The criminal appellate court concluded that even if the court assumed that the trial court erred in denying the appellant’s challenge for cause to the remaining venire member at issue, another member, the appellant could not show harm. Accordingly, the trial court's judgment was affirmed. 


The appellate court concluded that the appellant had not provided any affidavit testimony controverting the appellee’s testimony that he paid the contract in full.
Sanchez v. Barragan
Contracts, Real Property
Texas 8th Court of Appeals
April 14, 2021
08-20-00027-CV
Yvonne T. Rodriguez
Published
The appellant appealed the trial court’s summary judgment against her on the appellee's action for declaratory judgment. The appellate court found that it was unreasonable to infer that a notation on a check stub provided greater evidence of a payment’s purpose than the sworn testimony of the person who signed the check. The appellate court noted that it was especially true considering the three checks in question were for $600, the same amount as each of the previous and subsequent monthly payments under the Agreement. The appellate court concluded that the appellant had not provided any affidavit testimony controverting the appellee’s testimony that he paid the contract in full. Accordingly, the court found no error in the trial court’s determination that the appellee performed fully under the agreement.  


The trial court abused its discretion by denying the relators’ motion for separate trials and abatement, and the relators lacked an adequate remedy by appeal.
In re State Farm Mut. Auto. Ins. Co.
Constitution, Damages, Insurance, Procedure
Texas 5th Court of Appeals
April 15, 2021
05-20-00815-CV
Craig Smith
Published
The relators filed a petition for writ of mandamus contending the trial court abused its discretion by denying their motion for separate trials and abatement of real party in interest (RPI)’s claims concerning underinsured motorist (UIM) insurance. The appellate court noted that the RPI had not alleged an injury independent of a right to policy benefits. The appellate court found that the trial court was required to bifurcate the proceeding and first determine whether the RPI was entitled to UIM policy benefits before determining whether he could recover those amounts as damages for violations of the Insurance Code. The appellate court concluded that the trial court abused its discretion by denying the relators’ motion for separate trials and abatement, and the relators lacked an adequate remedy by appeal. Accordingly, the court conditionally granted the relators’ petition for writ of mandamus.  


The Supreme Court concluded that it was really a merits challenge and that the petitioner had demonstrated standing to bring the singular preemption claim it had pled.
Tex. Propane Gas Ass'n v. Houston
Appellate: Civil, Oil, Gas, & Mineral, Procedure
The Supreme Court of Texas
April 16, 2021
19-0767
Nathan L. Hecht
Published
The respondent appealed the judgment of the trial court, challenging the petitioner's suit for a declaratory judgment that its ordinances regulating the LPG industry, to include imposing criminal fines for violations, were preempted by state law. The Supreme Court found that the petitioner’s claim was not a criminal law matter that must be raised in defense to prosecution. The Supreme Court noted that the respondent argued that the petitioner could not challenge the respondent’s LPG regulations en masse but only those that had injured at least one of its members. The Supreme Court concluded that it was really a merits challenge and that the petitioner had demonstrated standing to bring the singular preemption claim it had pled. Accordingly, the court reversed the judgment of the appellate court and remanded the case to the trial court for further proceedings. 


The Supreme Court agreed with the court of appeals that the allegations constituted claims based on the departure from accepted standards of health care and therefore fell within the TMLA’s scope.
Rogers v. Bagley
Civil Rights, Procedure
The Supreme Court of Texas
April 16, 2021
19-0634
Rebeca Huddle
Published
The appellant appealed the judgment of the trial court, asking the Supreme Court to consider whether claims asserted against a state mental health facility and its employees arising from the death of a patient, pled as claims under 42 U.S.C. Section 1983, were health care liability claims under the Texas Medical Liability Act (TMLA); and if so, whether section 1983 preempted the TMLA’s requirement to timely serve an expert report. The Supreme Court found that the respondent’s section 1983 claims were based on several allegations. The Supreme Court agreed with the court of appeals that the allegations constituted claims based on the departure from accepted standards of health care and therefore fell within the TMLA’s scope. Accordingly, the court reversed the court of appeals’ judgment and remanded.  


The Supreme Court concluded that the trial court granted summary judgment for the defendants, but the appellate court reversed, holding that the boundary stipulation was void and thus might not be ratified.
Concho Res., Inc. v. Ellison
Contracts, Damages, Torts
The Supreme Court of Texas
April 16, 2021
19-0233
Debra Ann H. Lehrman
Published
The plaintiff appealed the judgment of the trial court, alleging that the defendants drilled several wells either on the plaintiff’s leasehold or closer to the lease line than Railroad Commission rules allowed. On appeal, the defendants, relying on a boundary stipulation between the fee owners of the two mineral estates and the plaintiff’s written acceptance of the stipulation, claimed that the plaintiff ratified the agreed boundary line, foreclosing the trespass claims. The Supreme Court found that with respect to the trial court’s judgment for the first defendant on its counterclaims for breach of contract and declaratory judgment, the court of appeals reversed that portion of the judgment because of the court’s erroneous holding regarding the plaintiff’s title. The Supreme Court determined that the appellate court did not address the first defendant’s cross-appeal regarding the portion of the trial court’s judgment that declined to award the first defendant some of the damages and attorney’s fees found by the jury. The Supreme Court concluded that the trial court granted summary judgment for the defendants, but the appellate court reversed, holding that the boundary stipulation was void and thus might not be ratified.   


The Supreme Court held that legally sufficient evidence supported the jury’s design-defect findings and the trial court’s jury instructions did not cause an improper verdict in the case.
Emerson Elec. Co. v. Johnson
Appellate: Civil, Damages, Evidence, Litigation: Personal Injury, Procedure, Technology, Torts
The Supreme Court of Texas
April 16, 2021
18-1181
Jane N. Bland
Published
The petitioner appealed the judgment of the trial court, finding that it failed to provide adequate warnings about the risk of terminal venting. On appeal, the petitioner challenged the finding the respondent partly responsible for his injuries. The Supreme Court observed that the petitioner did not address how the omission of the remaining four American Tobacco Co. v. Grinnell factors caused an improper verdict. The Supreme Court found that the petitioner had not shown that the omission of the Grinnell factors from the charge in the case required a new trial. The Supreme Court held that legally sufficient evidence supported the jury’s design-defect findings and the trial court’s jury instructions did not cause an improper verdict in the case. Accordingly, the judgment was affirmed.


The Supreme Court concluded that the respondent failed to overcome the sovereign immunity of the petitioner and its employees acting in their official capacities.
Tex. S. Univ. v. Villarreal
Constitution, Contracts, Education, Gov't/Administrative, Procedure
The Supreme Court of Texas
April 16, 2021
19-0440
J. Brett Busby
Published
The petitioner appealed the judgment of the appellate court which reversed the trial court's grant of a plea to the jurisdiction invoking sovereign immunity. On appeal, the Supreme Court addressed whether a state university’s dismissal of a student for poor academic performance implicated a liberty or property interest protected by the Texas Constitution’s guarantee of due course of law. The Supreme Court held that an academic dismissal from higher education carried insufficient stigma to implicate a protected liberty interest and assuming without deciding that the respondent had a protected property right in his continuing education, the procedures followed by the petitioner in connection with his dismissal were constitutionally adequate. The Supreme Court found that notification of the reason for dismissal and the ability to respond was sufficient, and it was undisputed that the respondent had those opportunities here. The Supreme Court concluded that the respondent failed to overcome the sovereign immunity of the petitioner and its employees acting in their official capacities. Accordingly, the court reversed the appellate court's judgment. 


Because immunity had been waived, the trial court had jurisdiction over the appellant's suit and, thus, erred in dismissing the suit.
Qatar Found. for Educ., Science & Cmty. Dev. v. Zachor Legal Inst.
Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
April 15, 2021
03-20-00129-CV
Darlene Brown
Published
The appellant appealed the trial court’s order sustaining the Legal Institute’s plea to the jurisdiction in the appellant's suit under the Texas Public Information Act (TPIA). The appellant filed suit against the Attorney General to prevent the disclosure of information in response to a request for public information that Zachor Legal Institute had submitted to Texas University. The appellate court based on the text of the TPIA and the supreme court’s decision in Boeing Co. v. Paxton, held that the TPIA waived sovereign immunity for the appellant's suit against the Attorney General. Because immunity had been waived, the trial court had jurisdiction over the appellant's suit and, thus, erred in dismissing the suit. Accordingly, the judgment was reversed and remanded.  


The criminal appellate court reviewed the defendant's challenge for cause to one of those two potential jurors, first potential juror, and found no trial court error.
Hudson v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
April 14, 2021
AP-77, 077
Scott Walker
Published
The defendant appealed the judgment of the trial court which convicted the defendant of capital murder for murdering two victims in the same criminal transaction. On appeal, the defendant challenged the sentence to death. The criminal appellate court found that the trial court did not abuse its discretion in denying the challenge for cause to first potential juror. The criminal appellate court noted that the first potential juror’s answers were vacillating or contradictory, and in such circumstances, the court deferred to the trial court’s decision. The criminal appellate court reviewed the defendant's challenge for cause to one of those two potential jurors, first potential juror, and found no trial court error. Accordingly, the court affirmed the trial court’s judgment and sentence of death.  


When there was a close causal connection between the illegal seizure and the confession, not only was exclusion of the evidence more likely to deter similar police misconduct in the future, but use of the evidence was more likely to compromise the integrity of the courts.
Martinez v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
April 14, 2021
PD-1215-19
Mary Lou Keel
Published
The appellant appealed the judgment of the trial court which denied his motion to suppress his confession after he pled guilty to murder and was sentenced to 30 years in prison. The criminal appellate court held that three of the four Brown factors weighed in the appellant's favor, and like Brown’s statement, the appellant was separated from his illegal arrest by very little time and there was no intervening circumstance. The criminal appellate court found that the defendant's arrest had a quality of purposefulness; it was for investigation, embarked upon in the hopes that something might turn up, and the arrest seemed to have been calculated to cause surprise, fright, and confusion. The criminal appellate court concluded that when there was a close causal connection between the illegal seizure and the confession, not only was exclusion of the evidence more likely to deter similar police misconduct in the future, but use of the evidence was more likely to compromise the integrity of the courts. Accordingly, the judgment was reversed and remanded.  


The criminal appellate court disagreed with the appellate court's determination that the evidence that some of the gates in the fence were not locked was evidence from which a rational jury could infer that the playground was “open to the public.”
Curlee v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
April 14, 2021
PD-0624-20
Scott Walker
Published
The appellant appealed the judgment of the trial court which convicted him of possession of a controlled substance within 1,000 feet of a drug-free zone, namely, a playground. On appeal, the appellant challenged the sufficiency of the evidence showing a playground, specifically, the requirement that the playground was “open to the public.” The criminal appellate court found that the evidence relating to the fence showed that multiple entrances were effectively locked, and all of the gates could be locked, either directly or indirectly. The criminal appellate court determined that the fact that the church’s attempt to secure the playground area was inadequate did not mean that the church’s playground was therefore “open to the public.” The criminal appellate court disagreed with the appellate court's determination that the evidence that some of the gates in the fence were not locked was evidence from which a rational jury could infer that the playground was “open to the public.” Accordingly, the judgment was reversed and remanded.  


The criminal appellate court concluded that because the appellant’s objection, motion for mistrial, and motion for new trial were timely, the appellate court erred by failing to reach the merits of the appellant’s statutory and constitutional claims.
Becerra v. State
Constitution, Criminal, Procedure
Texas Court of Criminal Appeals
April 14, 2021
PD-0804-19
Jesse McClure
Published
The appellant appealed the judgment of the trial court, asking the criminal appellate court to determine if an alternate juror retired with the jury and was present during deliberations, at what point was an appellant’s objection to the thirteenth juror’s presence timely made: when the jury retired to deliberate, or when an appellant became aware that the alternate was present during deliberations? The criminal appellate court found that the grounds for the appellant’s objection to the alternate juror being sent into the jury room were not apparent until counsel became aware of the error. The criminal appellate court concluded that because the appellant’s objection, motion for mistrial, and motion for new trial were timely, the appellate court erred by failing to reach the merits of the appellant’s statutory and constitutional claims. Accordingly, the judgment was reversed and remanded. 


The appellate court concluded that the dismissal of the appellee’s suit did not affect the grandmother’s affirmative claims for relief and did nothing to affect the grandmother’s possession of the child.
In re Interest of A.W
Family, Juvenile, Procedure
Texas 10th Court of Appeals
April 14, 2021
10-20-00336-CV
Matt Johnson
Published
The appellant appealed the termination of her parental rights to the child, asserting that the trial court’s order of termination was void because the trial on the merits occurred after the trial court lost jurisdiction when it failed to make the mandatory findings in its order granting an extension of the trial and dismissal dates. The appellate court found that the requirements of Section 263.401(b) Texas Family Code were still applicable even if the deadlines were extended as a result of the COVID pandemic, which was the appellee’s only basis for requesting an extension. The appellate court determined that because the court’s order did not meet the requirements of Section263.401(b), the court’s jurisdiction ended. The appellate court concluded that the dismissal of the appellee’s suit did not affect the grandmother’s affirmative claims for relief and did nothing to affect the grandmother’s possession of the child. Accordingly, the judgment was partly affirmed, partly reversed, and remanded. 


The appellate court did not reach the appellants’ remaining issues.
Steven Painter v. Amerimex Drilling I, Ltd.
Employment, Litigation: Personal Injury, Torts, Workers' Compensation
Texas 8th Court of Appeals
April 12, 2021
08-19-00226-CV
Yvonne T. Rodriguez
Published
The appellant appealed the judgment of the trial court which determined the Workers’ Compensation Act (the Act) barred the negligence claims brought against the appellee by the appellants who alleged it was vicariously liable for the passengers. The appellate court found that the facts standing alone were insufficient to demonstrate as a matter of law the passengers members were acting in the course and scope of their employment for purposes of the Act at the time of the collision. The appellate court noted that was especially true in light of the CFO’s testimony in the case that the passengers were free to do what they pleased as soon as they left the jobsite. The appellate court did not reach the appellants’ remaining issues. Accordingly, the court reversed the grant of summary judgment and remanded to the trial court for further proceedings.  


The appellate court concluded that the appellant’s attorney must comply with all the requirements of Rule 48.4.
David v. State
Criminal, Evidence, Procedure
Texas 8th Court of Appeals
April 12, 2021
08-18-00059-CR
Yvonne T. Rodriguez
Published
The defendant appealed the judgment of the trial court which convicted the defendant of tampering with physical evidence. On appeal, the defendant challenged the jury's assessed punishment at thirty years in prison. The appellate court found that the evidence adduced at trial was legally insufficient to support a finding, first, the defendant was the individual that destroyed or altered the marijuana and second, the marijuana was in fact, altered or destroyed. The appellate court ordered the appellant’s attorney, pursuant to Rule 48.4, to send the appellant a copy of the opinion and the court’s judgment, to notify the appellant of his right to file a pro se petition for discretionary review, and to inform the appellant of the applicable deadlines. The appellate court concluded that the appellant’s attorney must comply with all the requirements of Rule 48.4. Accordingly, the court reversed the judgment. 


Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the court granted the relator's petition for writ of habeas corpus and ordered that the relator was and should remain discharged from custody.
In re Luther
Appellate: Civil, Constitution, Criminal, Evidence, Procedure
The Supreme Court of Texas
April 09, 2021
20-0363
Per Curiam
Published
The relator appealed the judgment of the trial court, seeking relief from the trial court’s Judgment of Contempt and Order of Confinement, holding the relator and her solely owned business—a cosmetology salon—guilty of criminal and civil contempt. On appeal, the relator was jailed and the salon was fined for violating the trial court’s temporary restraining order, which required them to cease and desist from operating the salon for in-person services in violation of State of Texas's emergency regulations related to the COVID-19 pandemic. The Supreme Court noted that the temporary restraining order failed to set forth the conduct required and the legal basis for its issuance in clear, specific, and unambiguous terms. The Supreme Court found that the temporary restraining order’s lack of specificity regarding the conduct to be restrained renders it and the Judgment of Contempt and Order of Confinement void. The Supreme Court concluded that pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the court granted the relator's petition for writ of habeas corpus and ordered that the relator was and should remain discharged from custody.  


The appellate court concluded that the appellant had not demonstrated error concerning the trial court’s findings of fact and conclusions of law.
Gutierrez v. Rios
Appellate: Civil, Contracts, Damages, Evidence, Procedure, Real Property, Torts
Texas 8th Court of Appeals
April 08, 2021
08-19-00085-CV
Gina M. Palafox
Published
The appellant appealed from a take-nothing judgment on his breach of contract suit against the appellee. The appellate court noted that the basis of that suit was an alleged oral agreement for the appellant to purchase a house from Rios. The appellate court found that the evidence was legally and factually sufficient to support the trial court’s finding that there was no contract for the purchase and sale of the house because there was no meeting of the minds concerning such a sale. The appellate court concluded that the appellant had not demonstrated error concerning the trial court’s findings of fact and conclusions of law. Accordingly, the judgment of the trial court was affirmed.  


The appellate court concluded that the trial court did not err by granting the hospitals and the appellees' motions for summary judgment and the assignments were overruled.
Janaki v. C.H. Wilkinson Physician Network
Appellate: Civil, Contracts, Damages, Health Care, Torts
Texas 13th Court of Appeals
April 08, 2021
13-20-00125-CV
Clarissa Silva
Published
The appellant appealed the judgment of the trial court, asserting claims against the appellees for retaliation and for reporting potential Medicare fraud. On appeal, the appellee sought summary judgment on the basis that the Texas Health and Safety Code Section 161.134 only protected against retaliation by “hospitals, mental health facilities, and treatment facilities” none of which described the appellee group. The appellate court was unpersuaded by the appellant’s urged application of the single, integrated enterprise theory to her Section 161.134 retaliation claim. The appellate court found that having considered the unambiguity of the statute, the existence of a separate statute addressing retaliation claims by non-employees, and because the legislature had not expressly guided the court to consider federal law in applying Section 161.134 or to interpret it broadly, the court declined to extend the single, integrated enterprise theory to Section 161.134. The appellate court concluded that the trial court did not err by granting the hospitals and the appellees' motions for summary judgment and the assignments were overruled. Accordingly, the judgment was affirmed.  


The appellate court concluded that the writ would issue only if the trial court failed to act in accordance with the Court's opinion and all other requested relief was denied.
In re Robbins
Constitution, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
April 08, 2021
14-21-00129-CV
Per Curiam
Published
The relator appealed the judgment of the trial court asking the appellate court to compel the presiding judge to: (1) direct the trial court to rule on pending motion(s) to compel discovery and other discovery motions; (2) order the real party in interest, DDRG Physicians, PLLC, to appear for deposition; and (3) have a status conference to discuss a new scheduling order which will account for time lost and place case back on the docket. The appellate court found that the record reflected the relator’s motions were properly filed and have been pending a reasonable time, relator requested rulings on the motions, and the trial court has failed to rule. The appellate court determined that it would conditionally grant the requested relief in part and directed the trial court to rule on the following motions within thirty days of the date of the opinion. The appellate court concluded that the writ would issue only if the trial court failed to act in accordance with the Court's opinion and all other requested relief was denied. Accordingly, the writ was conditionally granted in part and denied in part.  


The trial court’s proper refusal to charge the jury on the even lesser offense of assault did not, and could not, harm the defendant or violate his rights to due process or to a fair trial.
Ybarra v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
April 08, 2021
11-19-00126-CR
W. Stacy Trotter
Published
The defendant appealed the judgment of the trial court which convicted the defendant of the aggravated kidnapping and murder of the victim. On appeal, the defendant challenged the trial court's sentence to run concurrently. The appellate court observed that the trial court was not required to submit, and did not err when it correctly refused to instruct the jury on, the requested lesser included offense of unlawful restraint. The appellate court found that the defendant contended that the “lies between” rule should not foreclose an assault instruction in the case because the evidence that supports an assault submission differs from the evidence that would support an aggravated assault submission. The appellate court concluded that the trial court’s proper refusal to charge the jury on the even lesser offense of assault did not, and could not, harm the defendant or violate his rights to due process or to a fair trial. Accordingly, the judgment was affirmed.


The appellate court concluded that the relator had not met his burden of providing that quantum of evidence on the record.
In re Dominguez
Constitution, Education, Election, Gov't/Administrative, Wills/Trusts/Probate
Texas 8th Court of Appeals
April 06, 2021
08-21-00046-CV
Per Curiam
Published
The relator filed a petition for a writ of mandamus invoking the appellate court's election supervision jurisdiction in connection with the race for El Paso Independent School District (EPISD) School Board Trustee. On appeal, the relator, a candidate for EPISD trustee for District #1, asked the appellate court to compel EPISD Election Official to issue an administrative declaration that the relator's opponent, was ineligible to run for the District #1 school board seat because she did not meet the six-month in-district residency requirements set by the Texas Election Code. The appellate court found that the court could only grant mandamus relief directing an election official to administratively disqualify a candidate based on the existence of conclusively established proof of ineligibility. The appellate court concluded that the relator had not met his burden of providing that quantum of evidence on the record. Accordingly, the petition for a writ of mandamus was denied.  


The appellate court concluded that the defendant's complaints about gaps in the chain of custody were matters that go to the weight of the testimony about the blood tests, not its admissibility.
Dugar v. State
Constitution, Criminal, Evidence, Procedure
Texas 9th Court of Appeals
April 07, 2021
09-19-00098-CR
Hollis Horton III
Published
The defendant appealed from his conviction for driving while intoxicated (DWI), a Class A misdemeanor. The appellate court observed that because the Fourth Amendment tolerates reasonable mistakes whether the mistake was one of law or of fact the court could not say the trial court erred by denying the defendant's motion to suppress on a record that shows that if the officer was mistaken, the mistake was one that was objectively reasonable. The appellate court concluded that the defendant's complaints about gaps in the chain of custody were matters that go to the weight of the testimony about the blood tests, not its admissibility. Accordingly, the trial court’s judgment was affirmed.  


The appellate court affirmed the trial court’s ruling that the appellee failed to meet its burden on its statute of limitations defense to the appellant’s claims and the court reversed the trial court’s judgment and remanded for further proceedings.
Joe Frank Muzquiz/Para Todos, Inc. v. Para Todos, Inc.
Contracts, Corporations, Real Property, Tax
Texas 8th Court of Appeals
March 31, 2021
08-19-00005-CV
Yvonne T. Rodriguez
Published
The appellant appealed the judgment of the trial court, filing a declaratory judgment action and breach of contract claim, seeking a declaration of his rights as lessor under a lease which, as written, contained a perpetual lease term, was terminable only at the will of the appellee except in the event of default, contained no provision for increasing the rent amount, and required the appellant to pay for property taxes, insurance, and common area maintenance. The appellate court found that Cosgrove v. Cade and other cases like it distinguishable and the appellant was not seeking to add a terminable-at-will provision to the Lease, or even correct a mistake in the Lease. The appellate court determined that the declaration sought did not become a live controversy until the appellant attempted to terminate the lease and the lawsuit was filed well within the four-year period from the time a claim accrued under the Declaratory Judgment Act. The appellate court affirmed the trial court’s ruling that the appellee failed to meet its burden on its statute of limitations defense to the appellant’s claims and the court reversed the trial court’s judgment and remanded for further proceedings. Accordingly, the judgment was affirmed, reversed, and remanded.         


The taxing authorities had no actual or constructive notice of the tax lien transfer from the second company to the third company or the subsequent recorded transactions occurring outside the chain of title.
Ovation Services, LLC v. Richard
Appellate: Civil, Gov't/Administrative, Procedure, Real Property, Tax
Texas 12th Court of Appeals
March 31, 2021
12-20-00011-CV
James T. Worthen
Published
The appellant appealed the judgment of the trial court which granted the appellee's motion for summary judgment, alleging that the lien was extinguished. The appellate court noted that the appellant admitted in its discovery responses that the second company was a party, the second company was properly served citation in that lawsuit, and that the lien held by the appellant as servicer for the first company was derived from the second company. The appellate court found that the second company failed to exercise those remedies, and the trial court extinguished the lien in its judgment. The appellate court determined that although the taxing units had no obligation to discover the transactions, even those documents evidencing the transactions contained inaccurate information. The appellate court concluded that the taxing authorities had no actual or constructive notice of the tax lien transfer from the second company to the third company or the subsequent recorded transactions occurring outside the chain of title. Accordingly, the judgment of the trial court was affirmed.      


The appellate court noted that the summary judgment evidence showed no genuine issue of material fact and, accordingly, the appellee was entitled to judgment as a matter of law.
Lopez v. Rocky Creek Partners, llc.
Contracts, Corporations, Damages, Torts
Texas 4th Court of Appeals
March 31, 2021
04-19-00722-CV
Patricia O. Alvarez
Published
The appellant appealed the judgment of the trial court which granted the motion for summary judgment. On appeal, the appellant filed a motion for new trial, which was denied by operation of law, arguing that his trial attorney withdrew days before the hearing on the motion for summary judgment without proper notice to him, that the trial court abused its discretion by granting the withdrawal, and that the trial court improperly granted the appellee’s motion for summary judgment and attorney’s fees. The appellate court found that the appellant waived his Rule 10 of the Texas Rules of Civil Procedure complaint by failing to raise it in his motion for new trial. The appellate court noted that the summary judgment evidence showed no genuine issue of material fact and, accordingly, the appellee was entitled to judgment as a matter of law. The appellate court vacated the award of attorney’s fees and remanded for a redetermination consistent with the opinion. Accordingly, the trial court’s judgment was partly affirmed and partly reversed.   


Since the findings regarding the appellant's pre-settlement misrepresentations were immaterial, as was the evidence on which those findings were based, those findings and evidentiary rulings were harmless and were not grounds for reversal.
Wells v. Wells
Contracts, Real Property
Texas 14th Court of Appeals
March 30, 2021
14-19-00824-CV
Tracy Christopher
Published
The appellant appealed the judgment of the trial court, attesting that he had no non-exempt assets that could be used to wholly or partially satisfy a judgment against him, and he agreed that if his attestation included false information or omitted material information, an agreed judgment for $1 million could be rendered against him. On appeal, the appellant challenged the trial court's conclusion that those conditions were satisfied because the appellant owned a share of a corporation that granted him membership in, and access to, a family campground. The appellate court noted that the evidence was legally sufficient if it would enable reasonable and fair-minded people to reach the verdict under review. The appellate court found that because execution on the appellant's share of the real estate would not require a court to “interfere with the corporation’s internal management,” the trial court did not abuse its discretion in declining to apply the judicial nonintervention doctrine. The appellate court concluded that since the findings regarding the appellant's pre-settlement misrepresentations were immaterial, as was the evidence on which those findings were based, those findings and evidentiary rulings were harmless and were not grounds for reversal. Accordingly, the court affirmed the trial court’s judgment.  


The appellate court concluded that the evidence was neither so weak nor the findings so against the great weight and preponderance of the evidence as to make them clearly wrong or unjust.
Ononiwu v. Eisenbach
Appellate: Civil, Health Care, Litigation: Personal Injury
Texas 1st Court of Appeals
March 30, 2021
01-20-00131-CV
Gordon Goodman
Published
The appellant appealed the judgment of the trial court, contending that the verdict should have been better in a suit for negligence seeking damages for past and future physical pain, physical impairment, and mental anguish. The appellate court found that the largely subjective nature of the evidence and the evidentiary conflicted as to the existence, severity, and cause of the injuries in the case arising from a low-speed collision without contemporaneous indicia of injury, the jury’s findings of no damages for past physical pain and impairment should not be overturned. The appellate court concluded that the evidence was neither so weak nor the findings so against the great weight and preponderance of the evidence as to make them clearly wrong or unjust. Accordingly, the trial court's judgment was affirmed.   


The appellate court concluded that the trial court’s findings of fact did not support the judgment.
Clinton v. Gallup
Appellate: Civil, Contracts
Texas 14th Court of Appeals
March 30, 2021
14-19-00202-CV
Charles Spain
Published
The appellant appealed the judgment of the trial court which ruled in the appellee’s favor and awarded damages against the appellant plus court costs and prejudgment interest. The appellate court found that when the trial court did not make findings that would control the case under a correct legal interpretation, and the proper findings could not be presumed, the proper disposition was to reverse the judgment and remand the case for further proceedings. The appellate court concluded that the trial court’s findings of fact did not support the judgment. Accordingly, the judgment was reversed and remanded for further proceedings.      


The appellate court concluded that the evidence was weak and did no more than create a mere surmise or suspicion of material fact.
Martinez v. Boone
Appellate: Civil, Contracts, Employment, Gov't/Administrative, Litigation: Personal Injury, Torts
Texas 8th Court of Appeals
March 29, 2021
08-19-00086-CV
Yvonne T. Rodriguez
Published
The appellants appealed the judgment of the trial court, alleging that the appellees were both vicariously and directly liable for the first individual's conduct as the court described. The appellate court noted that based on the master service agreement (MSA) and the right to control balancing under the Limestone factors, the court recognized the evidence was sharply conflicting. The appellate court found the appellants have raised a fact issue as to whether the first individual was the first appellee's employee at the time of the accident and the conflicting testimony, coupled with the basic notion that obtaining drinking water and food for the crew could very likely constitute a necessary service in furtherance of the first appellee's business, led the court to conclude a fact issue existed as to whether the first individual was within the course and scope of his employment at the time of the accident. The appellate court concluded that the evidence was weak and did no more than create a mere surmise or suspicion of material fact. Accordingly, the court reversed in part, affirmed in part, and remanded for further proceedings consistent with the opinion.      


In the absence of a complete record, it was impossible to review all the evidence presented to the fact-finder or to apply the appropriate evidentiary sufficiency standard of review.
Coplin v. Mann
Business, Contracts, Torts
Texas 6th Court of Appeals
March 29, 2021
06-20-00076-CV
Ralph Burgess
Published
The appellant appealed the judgment of the trial court which ruled in favor of the appellees on his claim of breach of contract and on the appellees’ counterclaims for violation of the Texas Deceptive Trade Practices Act. The appellate court observed that the appellant could not reasonably be expected to show exactly how much testimony was missing or the precise nature of the missing testimony. The appellate court found that in the absence of a complete record, it was impossible to review all the evidence presented to the fact-finder or to apply the appropriate evidentiary sufficiency standard of review. The appellate court concluded that it was apparent that the lost portion of the record could not be replaced by agreement of the parties and a significant portion of the timely requested record necessary to the appeal’s resolution has been lost through no fault of the appellant and could not be replaced by agreement of the parties. Accordingly, the court reversed the judgment of the trial court and remanded for a new trial.      


The Supreme Court concluded that relying mainly on the absence of “independent, retrospective analyses,” the appellate court erred in rejecting the evidence that supported the first petitioner’s findings.
Pub. Util. Comm'n of Tex. v. Tex. Indus. Energy Consumers
Business, Consumer, Contracts, Corporations, Evidence
The Supreme Court of Texas
March 26, 2021
18-1061
Jane N. Bland
Published
The respondents challenged the first petitioner’s ruling in the trial court, arguing that the first petitioner’s decision to allow part of the construction costs was arbitrary and lacked evidence to support it because the second petitioner did not provide an outside expert’s assessment of the decision to continue construction. On appeal, the respondents challenged the trial court's decision to uphold the first petitioner’s decision in all respects. The Supreme Court observed that the parties also presented an issue that the appellate court did not reach: whether the first petitioner erred in permitting the second petitioner to include financing costs that exceeded the project’s initial cap on capital costs in its rate base. The Supreme Court found that the first petitioner applied the standard it set forth in concluding that completing construction was a prudent decision. The Supreme Court concluded that relying mainly on the absence of “independent, retrospective analyses,” the appellate court erred in rejecting the evidence that supported the first petitioner’s findings. Accordingly, the judgment was reversed and remanded.


The appellate court vacated the trial court’s orders, reinstated the judgments of conviction, and remanded to the trial court to execute the sentences previously assessed.
State v. Temple
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 30, 2021
14-20-00388-CR
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which convicted him of the felony offenses of possession with intent to deliver methamphetamine and cocaine. On appeal, the defendant challenged the trial court's deferment of an adjudication of guilt and placed him on community supervision for nine years. The appellate court agreed with the State that the trial court lacked jurisdiction to place the defendant on shock probation because the court granted that relief more than 180 days after the appellee began serving his sentences. The appellate court vacated the trial court’s orders, reinstated the judgments of conviction, and remanded to the trial court to execute the sentences previously assessed. Accordingly, the judgment of the trial court was affirmed. 


The appellate court concluded that under the binding authority of Porath v. State, the court rejected the defendant's contention that section 43.26 unconstitutionally criminalized simulated sexual conduct.
Ex parte Fusselman
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 30, 2021
14-20-00549-CR
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which convicted him of three counts of possession of child pornography in violation of section 43.26 of the Texas Penal Code. On appeal, the defendant appealed from the orders denying him the relief he requested in his pretrial applications for writ of habeas corpus. The appellate court rejected the defendant's argument that section 43.26 was overbroad because it prohibited possession of pornography that depicted 17-year-olds. The appellate court noted that the Supreme Court of Texas had not interpreted article I, section 8 of the Texas Constitution more broadly than the First Amendment in any case that did not involve an issue of prior restraint on free speech. The appellate court concluded that under the binding authority of Porath v. State, the court rejected the defendant's contention that section 43.26 unconstitutionally criminalized simulated sexual conduct. Accordingly, the judgment was affirmed.   


The defendant refused to assist in clarifying his identity after he was under arrest and the evidence was sufficient for the trial court to conclude beyond a reasonable doubt that the defendant was lawfully arrested when he refused to provide his correct name to the officer.
Rodgers v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 30, 2021
14-19-00216-CR
Randy Wilson
Published
The defendant appealed the judgment of the trial court which convicted him of the failure-to-identify offense. On appeal, the defendant complained that his misdemeanor failure-to-identify conviction was not supported by legally sufficient evidence at trial. The appellate court noted that a jury could reasonably conclude that when the officer commanded the defendant to sit, after informing of his Miranda rights, this additional act of limiting the appellant’s mobility, constituted a restraint that was more than merely necessary to safeguard his safety, and more than necessary to merely assure the presence during a period of investigation. The appellate court concluded that the defendant refused to assist in clarifying his identity after he was under arrest and the evidence was sufficient for the trial court to conclude beyond a reasonable doubt that the defendant was lawfully arrested when he refused to provide his correct name to the officer. Accordingly, the judgment was affirmed.          


The Supreme Court concluded that although Chapter 95 applied to the respondents’ negligence claims against the petitioner, the court nevertheless concluded that the evidence and jury answers supported the judgment against the petitioner in the case.
Los Compadres Pescadores, L.L.C. v. Valdez
Appellate: Civil, Contracts, Employment, Health Care, Litigation: Personal Injury, Procedure, Real Property, Torts
The Supreme Court of Texas
March 26, 2021
19-0643
Jeffrey S. Boyd
Published
The petitioner challenged the judgment of the trial court on the grounds that the respondent failed to submit legally sufficient evidence and failed to obtain jury findings necessary to establish liability, particularly as required under chapter 95 of the Texas Civil Practice and Remedies Code. The Supreme Court observed that although the presence of the power line was open and obvious as a matter of law, the fact that it was energized (and thus the dangerous condition it presented) was not. The Supreme Court noted that under the evidence, the obvious nature of the danger was not sufficient to make the premises reasonably safe as a matter of law and the evidence established that the power line snapped at the moment the respondents were injured, and as the petitioner’s expert witness agreed, photos entered into evidence showed a discoloration near the tip of the rebar that was consistent with its contact with the power line. The Supreme Court concluded that although Chapter 95 applied to the respondents’ negligence claims against the petitioner, the court nevertheless concluded that the evidence and jury answers supported the judgment against the petitioner in the case. Accordingly, the judgment was affirmed.


The appellate court concluded that the police officers’ activity in the case failed short of that which was necessary to invoke the defense of outrageous government conduct.
Perales v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 25, 2021
14-19-00236-CR
Frances Bourliot
Published
The defendant challenged his conviction for online solicitation of a minor. The appellate court found that the court similarly did not reach the defendant's argument that he was entitled to an entrapment instruction even though he pleaded not guilty. The appellate court noted that the trial court did not abuse its discretion in admitting the evidence and the court had already noted that the online solicitation statute was meant to permit police officers to do just what they did in the case: pose as a minor to intercept a sexual predator before he meets a minor to engage in sexual activity. The appellate court concluded that the police officers’ activity in the case failed short of that which was necessary to invoke the defense of outrageous government conduct. Accordingly, the judgment was affirmed.  


The appellate court concluded that any error in the admission of the officer’s hearsay testimony regarding the victim’s out-of-court statements was rendered harmless and effectively forfeited.
Redmond v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
March 25, 2021
02-19-00381-CR
Mike Wallach
Published
The defendant appealed his convictions for aggravated assault of a family member with a deadly weapon, evidence tampering, and retaliation. The appellate court found that the evidence of the defendant's abusive relationship with another woman constituted evidence that the defendant had on other occasions committed similar offenses to the one he was charged with which served to reduce the possibility that the act in question was done with innocent intent, to reduce the possibility that the injuries were accidental, and to reduce the possibility that the victim was fabricating her claims. The appellate court determined that the admissibility of evidence regarding the defendant's three extraneous bank robberies was thus within the zone of reasonable disagreement. The appellate court concluded that any error in the admission of the officer’s hearsay testimony regarding the victim’s out-of-court statements was rendered harmless and effectively forfeited. Accordingly, the judgment was affirmed.


The appellate court concluded that because the condition set forth in Article 27.18(a)(1) was not met, the trial court was not authorized to accept the defendant's guilty plea.
Huddleston v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
March 25, 2021
11-20-00149-CR
W. Stacy Trotter
Published
The defendant appealed the judgment of the trial court which convicted him of the offense of assault on a public servant. On appeal, the defendant challenged the assessed punishment pursuant to the terms of the plea agreement at imprisonment for eight years in the Institutional Division of the Texas Department of Criminal Justice and a fine of $3,000. The appellate court found that the defendant’s right to appear in person and in open court was not merely a procedural matter but, rather, was a substantive right provided for by statute. The appellate court noted that the Texas Code of Criminal Procedure provided that the defendant in a criminal prosecution (other than one involving the possibility of the death penalty) had the right, upon entering a plea, to waive the right of trial by jury if the waiver was made in person by the defendant in open court with the consent of the prosecutor and the trial court or if the provisions of Article 27.19 have been met. The appellate court concluded that because the condition set forth in Article 27.18(a)(1) was not met, the trial court was not authorized to accept the defendant's guilty plea. Accordingly, the judgment was reversed and the case was remanded to the trial court for further proceedings.          


Since the appellee was immune from suit based on the emergency exception, the court need not address the parties’ disputes about whether the firefighters have official immunity and whether that defeated the appellant's suit against the appellee.
White v. Houston
Appellate: Civil, Damages, Gov't/Administrative, Litigation: Personal Injury, Torts
Texas 1st Court of Appeals
March 25, 2021
01-20-00415-CV
Gordon Goodman
Published
The appellant appealed the judgment of the trial court which granted the appellee's petition for a plea to the jurisdiction. The appellate court noted that the appellant had alleged a claim that was legally sufficient to invoke the statutory waiver of governmental immunity for injuries caused by a condition or use of tangible personal property and that the summary-judgment evidence relevant to that issue did not foreclose the applicability of the waiver as a matter of law. The appellate court held that the emergency exception to the Tort Claims Act’s waiver of governmental immunity applied to the appellant's claim. The appellate court further determined that the trial court did not err in granting the appellee's jurisdictional plea based on governmental immunity. The appellate court concluded that because the appellee was immune from suit based on the emergency exception, the court need not address the parties’ disputes about whether the firefighters have official immunity and whether that defeated the appellant's suit against the appellee. Accordingly, the court affirmed the trial court’s judgment.      


The appellate court agreed with the appellant that the Court’s order clearly granted him the authority to prosecute the claims in his individual capacity.
Ramirez v. Bank of Am.
Appellate: Civil, Banking and Finance, Bankruptcy, Constitution, Contracts, Creditor/Debtor, Litigation: Personal Injury, Procedure, Real Property, Torts
Texas 13th Court of Appeals
March 25, 2021
13-19-00548-CV
Gina M. Benavides
Published
The appellant appealed the judgment of the trial court, alleging that the appellee instructed him to ignore the foreclosure warnings he would receive and, relying on the appellee’s representations, the appellant defaulted on the note. On appeal, the appellant challenged the dismissal of the claims without prejudice. The appellate court observed that the appellant’s allegations satisfied constitutional standing and he had alleged concrete injuries to himself and a real controversy between the parties that would be resolved by the trial court. The appellate court determined that the appellant responded that the court’s order, which had become final, cured any defect in his capacity that may have existed at the time he filed his petition. The appellate court agreed with the appellant that the Court’s order clearly granted him the authority to prosecute the claims in his individual capacity. Accordingly, the judgment was reversed and remanded.


The mandamus relief could not be granted as to the bonus incentive item because the trial court’s ruling was conditional and had not been fully consummated, making the dispute unripe for mandamus action.
In re Walmart, Inc.
Appellate: Civil, Criminal, Evidence, Procedure
Texas 8th Court of Appeals
March 26, 2021
08-20-00191-CV
Jeff Alley
Published
The relators appealed the judgment of the trial court, filing a writ of mandamus against the judge contending that the trial court erred by ordering the relators to disclose documents. The appellate court noted that the trial court did not clearly abuse its discretion, or the relators were not denied an adequate remedy by appeal, by the trial court’s order pertaining to the Amarillo Hostage Incident, the security budgets for El Paso and San Antonio stores, the Tax-Free/Black Friday Weekend transaction and security information for the store, and the corporate minutes. The appellate court found that mandamus would be denied as to those items and the trial court did abuse its discretion by ordering the disclosure of crime-driven policy changes made at Texas stores, and third-party information. The appellate court concluded that the mandamus relief could not be granted as to the bonus incentive item because the trial court’s ruling was conditional and had not been fully consummated, making the dispute unripe for mandamus action. Accordingly, the court conditionally granted mandamus relief.


The appellate court concluded that the appellant had not demonstrated that the trial court abused its discretion by sustaining the appellees' objections to her summary judgment affidavit.
Lockhart v. Chisos Minerals, LLC
Appellate: Civil, Family
Texas 8th Court of Appeals
March 24, 2021
08-19-00153-CV
Gina M. Palafox
Published
The appellant, in her capacities as Trustee of the Family Bypass Trust and Independent Executor of the Estate of the deceased, appealed the summary judgment quieting title to certain mineral and royalty interests in favor of the appellees. The appellate court found that the record established that the deceased, as Executor of the Estate, had both capacity and authority to execute the Deeds, the Section 38 Interest fell within her power of sale as Executor, the Deeds affected a sale rather than a gift, and the Correction Deeds were not void for lack of the deceased signatures. The appellate court noted that the record conclusively negated the deceased’s claim to superior title and defeated her trespass to try title action. The appellate court concluded that the appellant had not demonstrated that the trial court abused its discretion by sustaining the appellees' objections to her summary judgment affidavit. Accordingly, the judgment was affirmed. 


The appellate court concluded that because the trial court was not authorized to accept the defendant's guilty plea, that plea was voidable.
Lira v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
March 25, 2021
11-20-00148-CR
John Bailey
Published
The defendant appealed the judgment of the trial court which convicted him of assault on a public servant. On appeal, the defendant challenged the trial court's conviction and finding that the enhancement allegation to be true, and assessed punishment pursuant to the terms of the plea agreement at imprisonment for eight years in the Institutional Division of the Texas Department of Criminal Justice and a fine of $5,000. The appellate court found that because the condition set forth in Article 27.18(a)(1) Texas Code of Criminal Procedure was not met, the trial court was not authorized to accept the defendant's guilty plea. The appellate court concluded that because the trial court was not authorized to accept the defendant's guilty plea, that plea was voidable. Accordingly, the court reversed the judgment of the trial court and remanded.


The appellate court concluded that the jury found that the appellant suffered from a behavioral abnormality that made him likely to engage in a predatory act of sexual violence was supported by legally and factually sufficient evidence.
In re the Commitment of K.S.
Appellate: Civil, Criminal, Evidence, Juvenile, Procedure
Texas 10th Court of Appeals
March 24, 2021
10-18-00277-CV
John E. Neill
Published
The appellant appealed the judgment of the trial court which entered an order of civil commitment as a sexually violent predator under the Sexually Violent Predator Act (the Act). The appellate court noted that the record provided support for the expert’s opinions and her opinions could not be characterized as wholly conclusory or without any foundation. The appellate court found that a rational jury could have found, beyond a reasonable doubt, that the appellant was a repeat, sexually violent offender and suffered from a behavioral abnormality that made him likely to engage in a predatory act of sexual violence. The appellate court concluded that the jury found that the appellant suffered from a behavioral abnormality that made him likely to engage in a predatory act of sexual violence was supported by legally and factually sufficient evidence. Accordingly, the judgment was affirmed.


The appellate court concluded that the warrant was not a general warrant and the doctrine of severability was properly applied.
Howard v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
March 23, 2021
01-19-00083-CR
Sherry Radack
Published
The defendant appealed the judgment of the trial court which convicted him of possession with intent to deliver between four and 400 grams of 3,4-methylenedioxymethamphetamine. On appeal, the defendant challenged the trial court's assessment of punishment at 8 years confinement, which it then suspended, placing the defendant under community supervision for ten years. The appellate court found that the trial court applied the rule of severability to the search warrant and did not suppress the evidence seized pursuant to the warrant that did not fall into the above categories. The appellate court noted that the warrant specifically detailed that it was to search for marijuana and firearms, and there was probable cause for both of those items based on the defendant's statements to police. The appellate court concluded that the warrant was not a general warrant and the doctrine of severability was properly applied. Accordingly, the judgment was affirmed. 


The Supreme Court concluded that because the respondent in the case did not pay the amount that “must be paid” on the claim before the statutory deadline, it was not entitled to summary judgment.
Hinojos v. State Farm Lloyds
Consumer, Insurance, Procedure
The Supreme Court of Texas
March 19, 2021
19-0280
Jane N. Bland
Published
The petitioners appealed the judgment of the trial court after the appraisers awarded the petitioner substantially more than the amount the respondent had paid. On appeal, the petitioners challenged the trial court's grant of summary judgment on the petitioner’s Chapter 542 claim, contending that its payment of the appraisal award precluded liability. The Supreme Court held that payment of an appraisal award did not absolve the respondent of statutory liability when a respondent accepted a claim but paid only part of the amount it owed within the statutory deadline. The Supreme Court concluded that because the respondent in the case did not pay the amount that “must be paid” on the claim before the statutory deadline, it was not entitled to summary judgment. Accordingly, the court reversed the judgment of the appellate court and remanded the case to the trial court.


The Supreme Court concluded that mandamus relief was the only adequate remedy in similar cases.
In re State Farm Mut. Auto. Ins. Co.
Appellate: Civil, Damages, Insurance, Torts
The Supreme Court of Texas
March 19, 2021
19-0791
James D Blacklock
Published
The relator appealed the judgment of the appellate court, filing a petition for writ of mandamus. The Supreme Court found that the insured could not recover for the relator’s alleged Insurance Code violations under an independent injury theory, and because the Insurance Code claims at issue required the individuals to make the very same showings as the many other plaintiffs whose UIM claims were routinely subject to bifurcated trials, the trial courts abused their discretion by denying the relator’s motions to bifurcate Rule 174(b). The Supreme Court determined that when a bifurcated trial was denied in those circumstances, the insurer lacked an adequate appellate remedy for the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings. The Supreme Court concluded that mandamus relief was the only adequate remedy in similar cases. Accordingly, the court granted the relator’s petitions for writ of mandamus and directed the trial courts to bifurcate the trials of the Insurance Code claims as described.


The Supreme Court concluded that the trial court’s entry of a final judgment mooted the respondent’s mandamus petition.
Elec. Reliability Council of Texas, Inc. v. Panda Power Generation Infrastructure Fund, LLC
Appellate: Civil, Contracts, Corporations
The Supreme Court of Texas
March 19, 2021
18-0781
Jeffrey S. Boyd
Published
The respondent appealed the judgment of the trial court, challenging the appellate court's review of a trial court’s interlocutory order presenting a medley of jurisdictional issues. The Supreme Court found that because the mandamus petition challenged the appellate court's judgment addressing the trial court’s second order, the court disagreed and held that the proceeding was not moot, despite the trial court’s entry of its third order. The Supreme Court determined that because the respondent was fully briefed and argued in the appellate court and had been abated pending only order from the court on the petitions could not say that the parties lacked an adequate appellate remedy here. The Supreme Court concluded that the trial court’s entry of a final judgment mooted the respondent’s mandamus petition. Accordingly, the petition was dismissed.    


The Supreme Court denied the relators request for mandamus relief because Section 22.004(i)’s prohibition on counter-supersedeas referred to a particular procedural process, not an appellate court’s temporary orders under other authority.
In re Tex. Educ. Agency
Constitution, Education
The Supreme Court of Texas
March 19, 2021
20-0404
Eva M. Guzman
Published
The state regulators appealed an adverse temporary injunction after the trial court allowed the school district to counter-supersede the injunction so the regulators could not undertake any unauthorized actions absent success on appeal. The Supreme Court found that the statute only prohibited counter-supersedeas orders, which occurred within a specific procedural context, and did not apply to orders issued by an appellate court under separate and distinct procedural mechanisms. The Supreme Court granted the State’s motion for temporary relief in State, but the court never reached the merits of the mandamus petition because the court opinion on the Election Code issue resolved the merits of the dispute. The Supreme Court denied the relators request for mandamus relief because Section 22.004(i)’s prohibition on counter-supersedeas referred to a particular procedural process, not an appellate court’s temporary orders under other authority. Accordingly, the appellate court was not without power to issue temporary relief. 


The appellate court concluded that the trial court erred by denying the appellant's motion to dismiss the appellee's bill of review.
State v. Navarrette
Appellate: Civil, Damages, Gov't/Administrative, Litigation: Personal Injury, Torts, Transportation
Texas 8th Court of Appeals
March 19, 2021
08-18-00017-CV
Gina M. Palafox
Published
The appellants appealed the judgment of the trial court which granted the appellants' plea to the jurisdiction and dismissed the appellee's claims against it under TEX. CIV. PRAC. & REM. CODE ANN. Section 101.101 for failure to provide statutory notice of claim. On appeal, the appellants moved to dismiss the bill of review again on the ground that the trial court lacked jurisdiction, but that time the trial court denied its motion. The appellate court found that the record established that the appellee did not satisfy the notice of claim requirement contained in the Texas Tort Claims Act. The appellate court determined that because that requirement was jurisdictional, failure to satisfy it barred the appellee's claims as a matter of law. The appellate court concluded that the trial court erred by denying the appellant's motion to dismiss the appellee's bill of review. Accordingly, the judgment was reversed. 


The choice to use a present-tense verb in the restrictive clause had no temporal bearing and did not limit the application of section 97.002 to injuries only occurring during ongoing construction or repairs.
A.S. Horner, Inc. v. Navarrette
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
March 19, 2021
08-18-00044-CV
Gina M. Palafox
Published
The appellant appealed the denial of its motion for summary judgment seeking dismissal of claims brought against it by the appellee. On appeal, the appellant sought summary judgment on the ground that it was exempted from liability for the appellee’s injuries pursuant to section 97.002 of the Texas Civil Practice and Remedies Code. The appellate court noted that the choice to use a present-tense verb in the restrictive clause had no temporal bearing and did not limit the application of section 97.002 to injuries only occurring during ongoing construction or repairs. The appellate court found that giving the plain language of the statute its ordinary meaning, and considering the text as a whole, the phrase arising from the performance of the construction did not limit section 97.002’s application only to those cases in which an injury was sustained during ongoing highway construction or repairs. The appellate court disagreed with the appellee’s proposed interpretation of the statute’s text. Accordingly, the court reversed the trial court’s order denying the appellant’s motion for summary judgment and rendered judgment.