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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


The appellate court concluded that the trial court did not err in granting the defendants’ motion for summary judgment.
Cadence Bank v. Elizondo
Appellate: Civil, Banking and Finance, Contracts, Damages, Procedure, Torts
Texas 1st Court of Appeals
March 10, 2020
01-17-00886-CV
Gordon Goodman
Published
The plaintiff appealed the judgment of the trial court which entered judgment in favor of the defendants in a suit to recover the overdrawn funds. On appeal, the plaintiff asserted claims for breach of the parties’ underlying deposit agreement and breach of warranty under the Texas Uniform Commercial Code (UCC). The appellate court noted that by depositing the counterfeit check, the defendants breached the parties’ deposit agreement and UCC transfer warranties, thereby entitling the plaintiff to charge back the provisional settlement funds. The appellate court found that by failing to transfer the funds from a “verified collected balance,” the plaintiff subsequently breached the parties’ wire transfer agreement, thereby causing the overdraft and entitling the defendants to offset the chargeback by the amount of overdrawn funds. The appellate court concluded that the trial court did not err in granting the defendants’ motion for summary judgment. Accordingly, the judgment of the trial court was affirmed.     


The appellant unsuccessfully challenged the trial court’s prefiling order prohibiting him from filing any new litigation in a trial court of the State without first obtaining permission from a local administrative judge
Morgan v. Talley
Appellate: Civil, Gov't/Administrative
Texas 8th Court of Appeals
March 06, 2020
08-18-00103-CV
Gina M. Palafox
Published
In the pro se appeal, the appellant challenged two orders of the trial court an order naming the appellant a vexatious litigant and requiring him to furnish security before allowing him to proceed in the case; and an order prohibiting him from filing any new litigation without first obtaining permission from a local administrative judge. The appellate court found that because the appellant had not shown that he had complied with the administrative exhaustion requirements to properly present his claim, the court found the appellant could not show there was a reasonable probability that he would prevail in the lawsuit. Further, the Attorney General established that the appellant initiated at least five litigations that either were decided against him or dismissed for procedural reasons as required by TEX.CIV.PRAC. & REM. CODE ANN. Section 11.054(1). Both prong one and two have been established. As such, the court held that the trial court did not abuse its discretion in finding the appellant to be a vexatious litigant and thereafter rendering its prefiling restriction order. Because the court lacked jurisdiction over the appellant’s appeal from the order naming him a vexatious-litigant and ordering him to furnish security by a date certain to proceed with his case, the court dismissed that part of the appeal for lack of jurisdiction. Accordingly, the trial court's judgment was affirmed.


The court disagreed with the appellees contentions that their plea to the jurisdiction should have been granted in full and that the appellant’s constitutional due process and takings claims could never exist, were facially invalid, and are not viable
Matzen v. McLane
Appellate: Civil, Gov't/Administrative
Texas 3rd Court of Appeals
March 06, 2020
03-18-00740-CV
Gisela D. Triana
Published
The appellant, who was civilly committed under the sexually violent predator (SVP) statute challenged the portion of a district court’s order granting in part the appellees plea to the jurisdiction in the case involving his challenge to the SVP statute. The appellees, the Texas Civil Commitment Office (TCCO) and its director, filed a cross-appeal as to the portion of the order denying in part their plea. The appellate court found that despite his multiple amended pleadings, the appellant’s freedom-of-speech and peaceable-assembly claims contained no factual allegations supporting an ultra vires claim against the appellees and that the district court did not err by dismissing the ultra vires claims. Further, the court agree with the appellees that qualified immunity was inapplicable to the appellant’s suit against the director in her official capacity as Director of The Texas Civil Commitment Office (TCCO). Accordingly, the court overruled the appellant’s fifth issue. The court disagreed with the appellees’ contentions that their plea to the jurisdiction should have been granted in full and that the appellant’s constitutional due process and takings claims could never exist, were facially invalid, and are not viable. The appellant’s pleading of those claims did not affirmatively demonstrate incurable defects in jurisdiction. However, it was undisputed that the appellant received a jury trial in 2014 before the trial court adjudicated him an SVP and that he had a hearing in 2015 in which the requirements of his civil commitment were conformed to the most recent legislative amendments. Accordingly, the trial court’s judgment was affirmed.


Because the record contained merely a modicum of evidence of an essential element of the offense of possession of a Penalty Group 4 controlled substance, the evidence was insufficient to support the appellant’s conviction
Biggers v. State
Criminal, Evidence, Procedure
Texas 7th Court of Appeals
March 06, 2020
07-18-00374-CR
Patrick A. Pirtle
Published
The appellant appealed from his convictions by jury of the offenses of possession of a Penalty Group 4 controlled substance (codeine), in an amount over 400 grams, and tampering with physical evidence. The jury assessed the appellant’s sentence in each case at confinement for a term of sixty years and ninety-nine years, respectively, with the two sentences to be served concurrently. The appellate court observed that because the record contained no evidence of an essential element of the offense of possession of a Penalty Group 4 controlled substance or, alternatively, because the record contains merely a modicum of evidence of an essential element of the offense of possession of a Penalty Group 4 controlled substance, the court sustained the appellant’s issue and found the evidence insufficient to support his conviction as to that offense. However, the court agreed with the State that the evidence presented was sufficient to independently corroborate the appellant’s statement and found the evidence was sufficient for a reasonable juror to conclude the appellant, knowing that an investigation was in progress, altered, destroyed, or concealed an unknown substance, with the intent to impair its availability as evidence in the investigation. Accordingly, the court reversed the judgment finding the appellant guilty of possession of a Penalty Group 4 controlled substance, over 400 grams, and rendered a judgment of acquittal. The court affirmed the judgment finding the appellant guilty of the offense of tampering with evidence. 


The unambiguous Easement Agreement was a multiple pipeline blanket easement that did not require all pipelines to be laid along the same path as Line W, thus, the probate court erred by granting summary judgment and entering a final judgment that the appellant take nothing
Atmos Energy Corp. v. Paul
Contracts, Real Property
Texas 2nd Court of Appeals
March 05, 2020
02-19-00042-CV
Dabney Bassel
Published
The appeal involved a dispute over the interpretation of a 1960 easement agreement that grants a right-of-way for the grantee to construct, maintain, and operate pipelines over and through 137 acres of property. The appellee currently owned a portion of the property. The appellant corporation, the current owner of the easement, sued the appellee for violating the easement agreement after he denied the appellant access to construct a new pipeline. The appellant appealed the probate court’s granting of summary judgment in the appellee’s favor and rendering judgment that the appellant take nothing. The appellate court observed that the unambiguous Easement Agreement was a multiple pipeline blanket easement that did not require all pipelines to be laid along the same path as Line W and that the appellee did not conclusively establish that Line WD unreasonably burdens his property, the appellee did not conclusively negate the essential element of breach to the appellant’s breach-of-contract claim. Thus, the probate court erred by granting summary judgment and entering a final judgment that the appellant take nothing. Accordingly, the judgment was reversed and remanded.


The appellate court concluded that the trial court did not err in granting the defendants’ motion for summary judgment.
Cadence Bank v. Elizondo
Appellate: Civil, Banking and Finance, Contracts, Damages, Procedure, Torts
Texas 1st Court of Appeals
March 10, 2020
01-17-00886-CV
Gordon Goodman
Published
The plaintiff appealed the judgment of the trial court which entered judgment in favor of the defendants in a suit to recover the overdrawn funds. On appeal, the plaintiff asserted claims for breach of the parties’ underlying deposit agreement and breach of warranty under the Texas Uniform Commercial Code (UCC). The appellate court noted that by depositing the counterfeit check, the defendants breached the parties’ deposit agreement and UCC transfer warranties, thereby entitling the plaintiff to charge back the provisional settlement funds. The appellate court found that by failing to transfer the funds from a “verified collected balance,” the plaintiff subsequently breached the parties’ wire transfer agreement, thereby causing the overdraft and entitling the defendants to offset the chargeback by the amount of overdrawn funds. The appellate court concluded that the trial court did not err in granting the defendants’ motion for summary judgment. Accordingly, the judgment of the trial court was affirmed.     


The appellate court concluded that it must construe section 42.29 of the tax code strictly since the appellant did not establish as a matter of law that it could be awarded attorney’s fees.
McKinney Millennium, LP v. Collin Cent. Appraisal Dist.
Appellate: Civil, Gov't/Administrative, Procedure, Real Property, Tax
Texas 5th Court of Appeals
March 09, 2020
05-18-01113-CV
David Schenck
Published
The appellant appealed the judgment of the trial court which granted summary judgment in favor of the appellee and denied the appellant’s summary judgment motion. On appeal, the appellant complained that the trial court erred in concluding that the appellee properly assessed property taxes on the appellant’s property to include an additional tax following a change in use. The appellate court noted that the appellee failed to establish as a matter of law that it had the authority to assess additional taxes on the property in the “change of use” year. The appellate court found that the trial court erred in granting summary judgment in favor of the appellee and denied summary judgment in favor of the appellant. The appellate court concluded that it must construe section 42.29 of the tax code strictly since the appellant did not establish as a matter of law that it could be awarded attorney’s fees. Accordingly, the judgment of the trial court was reversed.  


The appellate court disagreed with the Department’s conclusion that the plaintiff did not plead a viable constitutional claim.
Tex. Dep’t of Ins. v. Tex. Ass’n of Health Plans
Appellate: Civil, Constitution, Gov't/Administrative, Health Care, Insurance, Procedure
Texas 3rd Court of Appeals
March 05, 2020
03-19-00185-CV
Melissa Goodwin
Published
The Department of Insurance Plans (the Department) appealed the judgment of the trial court which denied the Department’s plea to the jurisdiction on two claims brought by the plaintiff, in a suit asserting a claim under the Administrative Procedure Act (APA) and the Uniform Declaratory Judgments Act (UDJA). On appeal, the Department challenged the trial court’s denial of its plea. The appellate court noted that it declined the Department’s invitation in the appeal to interpret Section 2001.038’s waiver of sovereign immunity as excluding associations that satisfied the general standing doctrine. The appellate court found that the plaintiff’s constitutional UDJA claim was unviable in the court's jurisdictional inquiry; rather, that would go to the claim’s merits, which the court generally did not reach in a plea to the jurisdiction. The appellate court disagreed with the Department’s conclusion that the plaintiff did not plead a viable constitutional claim. Accordingly, the judgment of the trial court was affirmed.   


The transfer of the case to another county was mandatory under Section 155.201(b) of the Family Code and the trial judge abused her discretion when she failed to grant the relator’s amended motion to transfer venue within the statutory timeframe.
In re Venegas
Appellate: Civil, Family, Procedure
Texas 11th Court of Appeals
March 05, 2020
11-20-00039-CV
Keith Stretcher
Published
The relator appealed the judgment of the trial court, filing a petition for writ of mandamus in which he requested that the appellate court instruct the trial court to grant the motion to transfer venue. On appeal, the relator challenged the trial court’s decision not to rule on a motion to transfer venue, contending that transfer of the case was mandatory under Section 155.201(b) of the Texas Family Code. The appellate court noted that the real party in interest filed a petition to modify at a time when no motion to modify or motion to enforce was pending, and the relator timely filed a motion to transfer venue causing the case to fall under Section 155.201(b) of the Texas Family Code. The appellate court found that no authority permitted the judge to exercise discretion to act outside the parameters of the statutory deadline to transfer the case in order to hold a hearing on the real party in interest’s motion for temporary orders. The appellate court concluded that the transfer of the case to another county was mandatory under Section 155.201(b) of the Family Code and the trial judge abused her discretion when she failed to grant the relator’s amended motion to transfer venue within the statutory timeframe. Accordingly, the relator’s petition was conditionally granted.


The defendant failed to assert any factual allegations in its motion for a new trial to show that the plaintiff had an ownership interest in the property.
Reverse Mortgage Funding, LLC v. Robertson
Appellate: Civil, Banking and Finance, Contracts, Creditor/Debtor, Procedure, Real Property
Texas 6th Court of Appeals
January 03, 2020
06-19-00063-CV
Ralph Burgess
Published
The defendant appealed the judgment of the trial court which entered a default judgment against it for failing to answer the plaintiff’s suit to quiet title to the property. On appeal, the plaintiff claimed that because the deceased only owned a life estate in the property, she lacked authority to enter into the reverse mortgage loan agreement. The appellate court noted that to claim the status of a bona fide mortgagee, the defendant was bound to support its conclusory statements that it had no actual or constructive notice of the plaintiff’s claim to the property with verified allegations of fact. The appellate court found that because no such allegations appeared in the defendant’s motion for new trial, it failed to establish a prima facie meritorious defense. The appellate court concluded that the defendant failed to assert any factual allegations in its motion for a new trial to show that the plaintiff had an ownership interest in the property. Accordingly, the judgment of the trial court was affirmed.  


The evidence was legally and factually sufficient to support the trial court’s finding that each of them was an employee, agent, and/or apparent agent of the defendant.
Amec Foster Wheeler PLC v. Enter. Products Operating LLC
Appellate: Civil, Business, Contracts, Corporations, Employment, Torts
Texas 14th Court of Appeals
February 25, 2020
14-18-00133-CV
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which overruled its special appearance based on specific jurisdiction and the plaintiff’s alter-ego theory of personal jurisdiction in a suit where the plaintiff alleged that the defendant was jointly and severally liable for the defendant’s wrongful conduct. On appeal, the plaintiff asserted a fraudulent-inducement claim against the defendant only and claims against both of the defendants for breach of contract, breach of warranty, “string-along fraud,” professional negligence, unjust enrichment and money had and received. The appellate court noted that after carefully considering the record and all of the factors in the legal standard, the defendant had not made a compelling case that the exercise of personal jurisdiction over the defendant in the dispute would be unreasonable. The appellate court found that the evidence was legally and factually sufficient to support a finding that the individuals were acting as employees of the defendant. The appellate court concluded that the evidence was legally and factually sufficient to support the trial court’s finding that each of them was an employee, agent, and/or apparent agent of the defendant. Accordingly, the judgment of the trial court was affirmed.


Since there was no affirmative evidence controverting the defendant’s admission, the evidence conclusively established that the defendant was engaged in criminal activity at the time he used deadly force.
Reyna v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
February 25, 2020
14-19-00193-CR
Tracy Christopher
Published
The defendant appealed the judgment of the trial court which convicted him of murder where the jury implicitly rejected a claim of self-defense. On appeal, the defendant argued that the trial court erred by not instructing the jury to presume that his deadly force was reasonable. The appellate court noted that there was legally sufficient evidence to support a finding that the defendant had reason to believe that the complainant was attempting to commit a robbery and that the defendant did not prove the complainant, which was enough to satisfy the first two conditions of the presumption. The appellate court found that to satisfy the third and final condition, the record would have to contain some additional evidence that the defendant was not otherwise engaged in criminal activity at the time that he used his deadly force. The appellate court further determined that the defendant admitted that he was dealing cocaine, which showed that he was engaged in criminal activity. The appellate court concluded that since there was no affirmative evidence controverting the defendant’s admission, the evidence conclusively established that the defendant was engaged in criminal activity at the time he used deadly force. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that it would conditionally grant the relator’s petition for writ of mandamus, in part, and directed the trial court to modify the order so that the order applied to both attorney-client privileged materials and work product.
In re Cook
Appellate: Civil, Constitution, Discovery, Ethics, Gov't/Administrative, Procedure, Professional Responsibility, Torts
Texas 14th Court of Appeals
February 25, 2020
14-19-00664-CR
Frances Bourliot
Published
The relator appealed the judgment of the trial court, filing a petition for writ of mandamus compelling the trial judge to vacate her order and direct that the legal files be returned to the relator. The appellate court noted that the search warrant was not overly broad, and the court denied mandamus relief insofar as the relator sought immediate return of all her files. The appellate court found that the trial court abused its discretion by its oral ruling that the relator did not have standing to challenge the search warrant and assert her attorney-client and work product privileges. The appellate court further determined that the trial court abused its discretion by not including work product materials as part of the taint team procedures in the written order. The appellate court concluded that it would conditionally grant the relator’s petition for writ of mandamus, in part, and directed the trial court to modify the order so that the order applied to both attorney-client privileged materials and work product. Accordingly, the court conditionally granted the petition in part and denied it in part.  


The appellate court concluded that without counsel and without a continuance to secure new counsel, the wife went to trial unrepresented and unprepared, and thus, she suffered an adverse judgment.
Caddell v. Caddell
Appellate: Civil, Family, Procedure
Texas 14th Court of Appeals
February 25, 2020
14-18-00623-CV
Kem Thompson Frost
Published
The wife appealed the judgment of the trial court which entered a final decree of divorce. On appeal, the wife contended that the trial court abused its discretion by permitting her counsel to withdraw on the day of trial without a showing of good cause and then denying her motion for continuance. The appellate court noted that a trial court abused its discretion in granting a motion to withdraw if counsel failed to comply with the rules, and here, the trial court failed to do so. The appellate court found that the wife’s trial counsel did not show or even allege that the husband had taken reasonable steps to avoid foreseeable prejudice to the wife by giving due notice to her or giving her time to retain other counsel before seeking permission from the trial court to withdraw from the representation. The appellate court further determined that no evidence showed the wife’s counsel delivered to his client all papers and property to which she was entitled. The appellate court concluded that without counsel and without a continuance to secure new counsel, the wife went to trial unrepresented and unprepared, and thus, she suffered an adverse judgment. Accordingly, the judgment of the trial court was reversed and remanded.


Since the trial court had sufficient evidence on which to exercise its discretion, and that its application of its discretion was within the zone of reasonable disagreement, the trial court did not abuse its discretion in denying the petitioner’s petition to reinstate his law license.
Eggert v. The State Bar of Tex.
Appellate: Civil, Criminal, Ethics, Procedure, Professional Responsibility
Texas 1st Court of Appeals
February 25, 2020
01-19-00429-CV
Sarah Beth Landau
Published
The petitioner (attorney) appealed the judgment of the trial court which denied his petition to reinstate his license to practice law in the State of Texas. The appellate court noted that the trial court had sufficient evidence to exercise its discretion and did not abuse its discretion in determining those issues contrary to the expert’s position because the expert’s opinion testimony was not conclusive and the trial court was the sole judge of a witness’s credibility. The appellate court found that even if the expert provided some evidence to show that reinstatement would be in the best interest of the public and the profession, as well as the ends of justice, the petitioner did not demonstrate that the trial court erred in its application of its discretion in concluding otherwise. The appellate court concluded that having determined that the trial court had sufficient evidence on which to exercise its discretion, and that its application of its discretion was within the zone of reasonable disagreement, the trial court did not abuse its discretion in denying the petitioner’s petition to reinstate his law license. Accordingly, the judgment of the trial court was affirmed. 


The statute of limitations did not bar the respondent's malpractice claim against the petitioner.
Gray v. Skelton
Constitution, Criminal, Evidence, Procedure
The Supreme Court of Texas
February 21, 2020
18-0386
John P. Devine
Published
The petitioner appealed the judgment of the appellate court which reversed the trial court’s dismissal of the respondent’s legal-malpractice suit. On appeal, the parties disputed the exoneration requirement. The respondent maintained that her criminal-defense attorney was liable for malpractice after having her conviction vacated on the basis of ineffective assistance of counsel. The Supreme Court noted that the statute of limitations did not bar the respondent's malpractice claim against the petitioner. The Supreme Court found that the Peeler doctrine did not bar the respondent's malpractice claim, and she must obtain a finding of her innocence in the malpractice action to maintain that claim. The Supreme Court concluded that it agreed with the appellate court's decision to remand the case for trial. Accordingly, the judgment of the appellate court was affirmed.  


The petitioner was entitled to dismissal under section 128.053(b)(2), and the agreed discovery order did not extend the 90-day deadline and the respondent failed to timely serve their expert report.
Shinogle v. Whitlock
Appellate: Civil, Contracts, Damages, Discovery, Employment, Evidence, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
February 21, 2020
18-0703
Per Curiam
Published
The petitioner appealed the judgment of the trial court. On appeal, the Supreme Court was asked to consider whether an agreed scheduling order setting expert report deadlines, with no reference to section 128.053, extended the statutory deadline to serve an expert report; and whether the claimants’ failure to timely serve an expert report entitled the shooting range’s employee to seek dismissal. The Supreme Court noted that Section 128.053 of the Texas Civil Practice and Remedies Code required a claimant suing a sport shooting range to serve an expert report on each party within 90 days after the original petition was filed unless the deadline was extended by written agreement of the affected parties; and failure to comply with section 128.053’s mandate gave a defendant as to whom an expert report had not been served the right to dismissal with prejudice. The Supreme Court found that the Legislature chose the word defendant in its definition of expert report and did not expressly limit the expert report’s content to addressing only the actions of the shooting range itself. The Supreme Court concluded that the petitioner was entitled to dismissal under section 128.053(b)(2), and the agreed discovery order did not extend the 90-day deadline and the respondent failed to timely serve their expert report. Accordingly, the judgment of the trial court was affirmed as reversed.  


Based on the facts alleged in the petitioner’s petition, the trial courts correctly found that attorney immunity shielded the respondent from civil suit by a third party, whom the respondent did not represent, for conduct connected to the respondent’s representation of its client in litigation.
Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C.
Appellate: Civil, Damages, Ethics, Procedure, Torts
The Supreme Court of Texas
February 21, 2020
18-0595
John P. Devine
Published
The petitioner appealed the judgment of the trial court which granted the respondent’s motion and dismissed the case. On appeal, the Supreme Court was asked to consider whether an affirmative defense may be the basis of a Rule 91a motion to dismiss; and whether the alleged destruction of evidence was an action taken in connection with representing a client in litigation, thus entitling the respondent to attorney immunity. The Supreme Court noted that nothing in the court's attorney-immunity jurisprudence affected an attorney’s potential criminal liability if the conduct constituted a criminal offense. The Supreme Court found that other remedies such as sanctions, spoliation instructions, contempt, and disciplinary proceedings may be available even if immunity shielded an attorney’s wrongful conduct. The Supreme Court concluded that based on the facts alleged in the petitioner’s petition, the trial courts correctly found that attorney immunity shielded the respondent from civil suit by a third party, whom the respondent did not represent, for conduct connected to the respondent’s representation of its client in litigation. Accordingly, the judgment of the trial court was affirmed.  


The Supreme Court concluded that when the plaintiff’s suit was brought against a hospital, those allegations stated a health care liability claim under the Act.
Coming Attractions Bridal & Formal, Inc. v. Tex. Health Res.
Appellate: Civil, Business, Corporations, Damages, Employment, Gov't/Administrative, Health Care, Insurance, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
February 21, 2020
18-0591
Jane N. Bland
Published
The defendant appealed the judgment of the trial court which denied the defendant’s motion to dismiss the plaintiff’s suit, alleging that the hospital officials assured a nurse that it was safe for her to go out in public. On appeal, the defendant asserted that the plaintiff alleged a health care liability claim and did not provide a report. The Supreme Court noted that a substantive nexus existed between this health-care-provider duty and the plaintiff’s claimed injury that its store was exposed to the virus through a nurse, contaminated, and forced to close. The Supreme Court found that the plaintiff asserted a health care liability claim, and the expert testimony about lost business value was beyond the scope of the Act. The Supreme Court concluded that when the plaintiff’s suit was brought against a hospital, those allegations stated a health care liability claim under the Act. Accordingly, the judgment of the trial court was affirmed.


While there was testimony from detective that there may have been stolen merchandise inside of the defendant’s car, the trial court did not make a finding to this effect, and therefore, the officers did not conduct a search of the vehicle under the automobile exception.
State v. Whitman
Constitution, Criminal, Evidence, Procedure
Texas 11th Court of Appeals
February 21, 2020
11-18-00001-CR
John Bailey
Published
The State appealed the judgment of the trial court which granted the defendant’s motion to suppress the evidence in a suit charging him with the offenses of possession of a controlled substance and forgery of a government record. The appellate court noted that on the record, there was no evidence to support that detective had probable cause to believe that the defendant committed theft. The appellate court found that the defendant did not commit the alleged theft in the presence or view of the officers, and there was no evidence or finding by the trial court of any of the other statutory exceptions for a warrantless arrest. The appellate court further determined that the trial court found that the police officers searched the vehicle as a search incident to arrest and inventory after the officers arrested the defendant for theft. The appellate court concluded that while there was testimony from detective that there may have been stolen merchandise inside of the defendant’s car, the trial court did not make a finding to this effect, and therefore, the officers did not conduct a search of the vehicle under the automobile exception. Accordingly, the judgment of the trial court was affirmed.     


The evidence was both legally and factually sufficient to establish a firm conviction in the mind of the jury that termination of the parents’ parental rights was in the best interest of the children.
In re S.B.
Appellate: Civil, Gov't/Administrative, Juvenile, Procedure
Texas 7th Court of Appeals
February 21, 2020
07-19-00310-CV
Judy C. Parker
Published
The parents appealed the judgment of the trial court which terminated the parental rights to their three children. On appeal, the mother challenged the trial court’s termination of their parental rights. The appellate court noted that the evidence was legally and factually sufficient to support the subsections (D) and (E) endangerment findings with respect to the termination of the parents’ parental rights to the children. The appellate court found that it must also bear in mind that the children’s need for permanence through the establishment of a stable, permanent home has been recognized as the paramount consideration in determining best interest. The appellate court further determined that the jury could have found that the Department’s plan would allow the children to achieve stability and permanence in a safe environment that took into account the best interest of the children. The appellate court concluded that the evidence was both legally and factually sufficient to establish a firm conviction in the mind of the jury that termination of the parents’ parental rights was in the best interest of the children. Accordingly, the judgment of the trial court was affirmed.


The plaintiffs failed to conclusively establish any fraud or breach of a fiduciary duty in the preparation of the tax return by the defendant.
Fenenbock v. W. Silver Recycling, Inc.
Appellate: Civil, Contracts, Procedure, Tax, Torts
Texas 8th Court of Appeals
February 21, 2020
08-19-00093-CV
Jeff Alley
Published
The plaintiffs appealed the judgment of the trial court which ruled in favor of the defendant in a lawsuit asking the trial court to appoint an independent appraiser to determine the fair value of their share ownership. On appeal, the plaintiffs asserted a fraud claim, claiming that the defendant used a squeeze-out merger to perpetuate fraud and truncate minority shareholder rights. The appellate court noted that based on the fraud allegations, the plaintiffs asked the trial court to declare the merger null and void. The appellate court found that none of the plaintiffs’ claims about the defendant’s interactions with certified valuation analyst were shown to have actually influenced his opinion. The appellate court further determined that because injury was an element of a fraud claim, they failed to establish that element. The appellate court concluded that the plaintiffs failed to conclusively establish any fraud or breach of a fiduciary duty in the preparation of the tax return by the defendant. Accordingly, the judgment of the trial court was affirmed.


The burden remained on the defendant to develop a sufficient record to demonstrate error on appeal regarding the trial court’s ruling on juror disability.
Fernandez v. State
Criminal, Evidence, Procedure
Texas 8th Court of Appeals
February 20, 2020
08-17-00217-CR
Gina M. Palafox
Published
The defendant appealed the judgment of the trial court which convicted him of one count of aggravated assault with a deadly weapon and one count of family-violence assault against a household member after a previous conviction. The appellate court noted that there could be no reversible error based on the defendant’s failure to demonstrate probable prejudice on his alleged ground of judicial impropriety. The appellate court found that the defendant had not shown he had any standing to complain of the lack of a hearing on the State’s initial request for a writ of attachment against the victim nor of the trial court’s issuance of said writ. The appellate court further determined that the State’s deficient notice did not affect the defendant’s substantial rights and did not amount to harmful error requiring reversal of his conviction. The appellate court concluded that the burden remained on the defendant to develop a sufficient record to demonstrate error on appeal regarding the trial court’s ruling on juror disability. Accordingly, the judgment of the trial court was affirmed.


The Supreme Court concluded that because of the harmful error in the jury charge, it would grant the petitioner’s petition for review.
Glenn v. Leal
Appellate: Civil, Health Care, Procedure, Torts
The Supreme Court of Texas
February 21, 2020
18-0344
Per Curiam
Published
The petitioner appealed the judgment of the appellate court which ruled in favor of the respondent in the health care liability case. On appeal, the Supreme Court was asked to determine whether Texas Civil Practice and Remedies Code section 74.153’s standard of willful and wanton negligence applied to emergency medical care rendered to a patient in a hospital’s obstetrical unit, when the patient was not first attended to in a hospital’s emergency department. The Supreme Court noted that the appellate court erred in its application of the section 74.153 negligence standard. The Supreme Court found that the issue of whether the petitioner provided emergency care to the second respondent was critical and contested—it was a prerequisite for applying the section 74.153 negligence standard, and the respondents argued that the petitioner’s care was not emergency care. The Supreme Court concluded that because of the harmful error in the jury charge, it would grant the petitioner’s petition for review. Accordingly, the judgment of the trial court was reversed and remanded for a new trial.


The assignment unambiguously conveyed to the petitioner all of that interest that the oil owned at the time of the conveyance.
Piranha Partners v. Neuhoff
Appellate: Civil, Contracts, Procedure
The Supreme Court of Texas
February 21, 2020
18-0581
Jeffrey S. Boyd
Published
The respondent appealed the judgment of the trial court which ruled in favor of the petitioner, claiming the oil assigned to the petitioner its overriding royalty only in production. On appeal, the respondent challenged the court’s holding that the oil sold the overriding royalty in production not from all of the section. The Supreme Court noted that each of those documents disclaimed any of the reliance the parties place on them, and instead required the parties to look solely to the assignment to determine the interest sold. The Supreme Court found that construing the assignment in its entirety and harmonizing all of its provisions, the only reasonable construction was that the oil conveyed its 3.75% overriding royalty interest in all production under the lease. The Supreme Court concluded that the assignment unambiguously conveyed to the petitioner all of that interest that the oil owned at the time of the conveyance. Accordingly, the judgment of the trial court was reversed. 


The appellate court concluded that the defendant was served with both the application and notice of the hearing five days before the hearing.
Johnson v. Simmons
Appellate: Civil, Family, Procedure
Texas 2nd Court of Appeals
February 20, 2020
02-19-00071-CV
Lee Gabriel
Published
The defendant appealed the judgment of the trial court which entered a default family violence protective order issued in favor of the plaintiff, a former member of the defendant’s household. On appeal, the defendant argued that the trial court erred by granting the default family violence protective order because the proof of service of the application for protective order had not been on file for ten days prior to the entry of the protective order as allegedly required by Texas Rule of Civil Procedure 107(h). The appellate court noted that having determined that Rule 107(h) did not apply to family violence protective orders, the court turned to the provision of Title 4 authorizing default family violence protective orders. The appellate court found that the provision simply required a respondent to be served with a copy of the application for protective order and notice of the hearing on the application for protective order. The appellate court concluded that the defendant was served with both the application and notice of the hearing five days before the hearing. Accordingly, the judgment of the trial court was affirmed.


The trial court’s stated reasons for granting a new trial were unsupported by the record and the defendant had no adequate remedy by appeal.
In re Norton
Appellate: Civil, Constitution, Damages, Employment, Evidence, Litigation: Personal Injury, Procedure, Torts
Texas 6th Court of Appeals
February 21, 2020
06-19-00087-CV
Scott E. Stevens
Published
The defendant appealed the judgment of the trial court which granted the plaintiff’s motion for a new trial in a suit alleging that the plaintiff sustained injuries caused in a motor vehicle collision. On appeal, the defendant petitioned for a writ of mandamus claiming that the trial court abused its discretion in granting a motion for new trial because the stated rationale for vacating the jury’s verdict failed to comport with the trial record and there was no adequate remedy by appeal. The appellate court noted that the jury’s decision to award only part of the plaintiff’s past medical expenses while awarding her zero for past lost wages and past physical impairment was not against the great weight and preponderance of the evidence because there was evidence in the record to support such awards. The appellate court found that the trial court’s findings that “the only probative evidence” in the record was that the collision proximately caused the plaintiff to incur medical expenses, lost wages, and physical impairment were not supported by the record. The appellate court concluded that the trial court’s stated reasons for granting a new trial were unsupported by the record and the defendant had no adequate remedy by appeal. Accordingly, the court conditionally granted the petition for writ of mandamus.  


A rational jury could have concluded beyond a reasonable doubt that while acting under color of his office as a public servant, the defendant subjected the co-defendant to an arrest that he knew was unlawful.
Ratliff v. State
Constitution, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
February 14, 2020
03-18-00569-CR
Thomas J. Baker
Published
The defendant appealed the judgment of the trial court which convicted him of the two counts of official oppression and of the lesser misdemeanor offense of tampering with a governmental record. On appeal, the defendant challenged the trial court’s conviction and sentence to six months’ confinement in the county jail, suspended those sentences, and placed the defendant on community supervision for one year for all three offenses. The appellate court noted that a rational jury could have concluded that when the defendant affixed his initials to the offense report that contained omissions of events pertaining to the legality of the co-defendant’s arrest that the defendant himself witnessed, he made or used a governmental record knowing that the report was false. The appellate court found that there was legally sufficient evidence supporting the jury’s determination that exigent circumstances did not justify the warrantless entry into the co-defendant’s trailer to effect the subsequent arrest of the co-defendant. The appellate court concluded that a rational jury could have concluded beyond a reasonable doubt that while acting under color of his office as a public servant, the defendant subjected the co-defendant to an arrest that he knew was unlawful. Accordingly, the judgment of the trial court was affirmed.


The trial court erred in granting the defendant’s motion to quash the third indictment on the basis that the statute of limitations had expired.
State v. West
Criminal, Evidence, Procedure
Texas 8th Court of Appeals
February 14, 2020
08-18-00190-CR
Gina M. Palafox
Published
The State appealed the judgment of the trial court which granted the defendant’s motion to quash the indictment against the defendant for three counts of knowingly possessing or attempting to possess a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge. On appeal, the State challenged the trial court’s grant of the defendant’s motion to quash. The appellate court noted that all three counts of the third indictment fell well within the three-year statute of limitations for the charged offenses. The appellate court found that because the third indictment was timely filed based on the first indictment’s tolling of the limitations period, the trial court erred in granting the defendant’s motion to quash the third indictment on the basis that the statute of limitations had expired. Accordingly, the judgment of the trial court was reversed and remanded.


In light of the evidence presented at the disposition hearing, the trial court did not abuse its discretion in determining that the proper disposition for the juvenile was to be sent to the Juvenile Justice Department.
In re W.B.G.
Appellate: Civil, Gov't/Administrative, Juvenile, Procedure
Texas 6th Court of Appeals
February 13, 2020
06-19-00070-CV
Ralph Burgess
Published
The juvenile appealed the judgment of the trial court which placed him on probation after he was adjudged to have engaged in delinquent conduct that would constitute theft of property and unauthorized use of a motor vehicle. On appeal, the juvenile challenged the trial court’s finding that reasonable efforts were made to prevent or eliminate the need for his removal from his parents homes. The appellate court noted that the trial court had ample evidence to rely on in deciding the proper disposition for the juvenile. The appellate court found that in light of the juvenile’s probation officer testimony that she was unable to find a program that would accept the juvenile and the long record of incident reported, demonstrated the juvenile’s disruption of the programs, neglect of therapy, power struggles with staff, and failure to follow directives. The appellate court further determined that the trial court reasonably found that the juvenile would have similar problems in another residential treatment facility or boot camp. The appellate court concluded that in light of the evidence presented at the disposition hearing, the trial court did not abuse its discretion in determining that the proper disposition for the juvenile was to be sent to the Juvenile Justice Department. Accordingly, the judgment of the trial court was affirmed.


The trial record contained no evidence as to possible strategies employed by defense counsel regarding the defendant’s complaints on appeal.
Rubio v. State
Constitution, Criminal, Evidence, Procedure
Texas 5th Court of Appeals
February 11, 2020
05-18-00861-CR
Ken Molberg
Published
The defendant appealed the judgment of the trial court which convicted him of capital murder and assessed the mandatory punishment of life imprisonment without the possibility of parole. The appellate court noted that the record contained no evidence indicating defense counsel failed to sufficiently investigate a defense of insanity or that, if the defendant had asserted a defense of insanity, the outcome of the trial would have been different. The appellate court found that the defendant failed to overcome the presumption that his attorney’s investigation of a possible insanity defense was reasonable. The appellate court further determined that the trial record was devoid of any indication of any witness who, if called, would have been helpful to the defendant’s case. The appellate court concluded that the trial record contained no evidence as to possible strategies employed by defense counsel regarding the defendant’s complaints on appeal. Accordingly, the judgment of the trial court was affirmed.


The Supreme Court concluded that the Tort Claims Act did not waive the Department’s immunity in the plaintiff’s suit for personal injury.
Tex. Dep’t of Criminal Justice v. Rangel
Appellate: Civil, Damages, Employment, Gov't/Administrative, Litigation: Personal Injury, Procedure, Real Property, Torts
The Supreme Court of Texas
February 07, 2020
18-0721
Debra Ann H. Lehrman
Published
The Department of Criminal Justice (the Department) appealed the judgment of the trial court which denied its plea to the jurisdiction, asserting governmental immunity in the plaintiff’s action. On appeal, the Department claimed that it did not waive governmental immunity as to claims for personal injury proximately caused by a governmental unit’s use of tangible personal property. The Supreme Court noted that the Department “used” the tear-gas gun and skat shell when the warden authorized and instructed the security officer to use them to address the incident in the prison dormitory. The Supreme Court found that because the plaintiff failed to provide any proof that would “raise a fact question on the jurisdictional issue” of whether there was a riot, the riot exception applied as a matter of law. The Supreme Court concluded that the Tort Claims Act did not waive the Department’s immunity in the plaintiff’s suit for personal injury. Accordingly, the judgment of the trial court was reversed. 


The breaching party failed to demonstrate an “unbridgeable discrepancy” between liquidated and actual damages, measured at the time of the breach, to invalidate an otherwise valid contract provision.
Atrium Med. Ctr., LP v. Houston Red C LLC
Appellate: Civil, Contracts, Damages, Health Care, Procedure, Torts
The Supreme Court of Texas
February 07, 2020
18-0228
Jane N. Bland
Published
The petitioner appealed the judgment of the appellate court which affirmed the trial court’s ruling that the liquidated damages provision was not a penalty and that the respondent was entitled to its contractual profit. On appeal, the petitioner challenged the respondent's liquidated damages, which were calculated based on the remaining weeks of the contract term. The Supreme Court noted that at the time the parties’ agreement was made, the harm that would result from a breach was difficult to estimate and the liquidated damages provision reasonably forecast just compensation. The Supreme Court concluded that the breaching party failed to demonstrate an “unbridgeable discrepancy” between liquidated and actual damages, measured at the time of the breach, to invalidate an otherwise valid contract provision. Accordingly, the judgment of the appellate court was affirmed.  


The appellate court had authority under Rule 38.9 to request additional briefing in the case because the unbriefed issue was fairly included in or inextricably entwined with a briefed issue.
St. John Missionary Baptist Church v. Flakes
Appellate: Civil, Contracts, Procedure, Real Property, Torts
The Supreme Court of Texas
February 07, 2020
18-0513
Per Curiam
Published
The petitioner appealed the judgment of the appellate court which affirmed the trial court’s grant of the respondents’ motion but did not specify whether its decision rested on the standing issue, the ecclesiastical abstention issue, or both.  On appeal, the petitioner sought injunctive relief to prevent the respondents from selling the petitioner’s properties. The Supreme Court noted that to the extent the appellate court held that the petitioner failed to assign error by omitting the ecclesiastical-abstention issue, that holding was in error, and the appellate court had authority to request additional briefing under Texas Rules of Appellate Procedure 38.9. The Supreme Court found that the appellate court retained their authority to deem an unbriefed point waived in lieu of requesting additional briefing. The Supreme Court concluded that the appellate court had authority under Rule 38.9 to request additional briefing in the case because the unbriefed issue was fairly included in or inextricably entwined with a briefed issue. Accordingly, the judgment of the appellate court was reversed and remanded for further proceedings.


The tenant did not sustain his temporary injunction burden of demonstrating a likelihood of success on the merits, and the trial court did not abuse its discretion by denying the tenant’s application for a temporary injunction.
Hernandez v. Hernandez
Appellate: Civil, Contracts, Damages, Landlord and Tenant, Procedure, Real Property, Torts
Texas 8th Court of Appeals
February 06, 2020
08-19-00091-CV
Gina M. Palafox
Published
The tenant appealed the judgment of the trial court which denied his application for a temporary injunction in the bill of review proceeding initiated by the tenant. On appeal, the tenant alleged that he was prevented from making a meritorious claim, through no fault of his own, due to fraud and misrepresentation. The appellate court noted that the tenant did not present any evidence tending to sustain his claim of third-party beneficiary status. The appellate court found that the tenant did not sustain his temporary injunction burden of demonstrating a likelihood of success on the merits, and the trial court did not abuse its discretion by denying the tenant’s application for a temporary injunction. The appellate court concluded that the tenant’s third-party beneficiary argument lacked merit. Accordingly, the judgment of the trial court was affirmed. 


Any challenge the plaintiff wished to make to the sufficiency of the attorney’s fee award could be brought on appeal after the final judgment.
Eureka Holdings Acquisitions, L.P. v. Marshall Apartments, LLC
Appellate: Civil, Contracts, Procedure, Real Property, Torts
Texas 3rd Court of Appeals
February 06, 2020
03-19-00806-CV
Jeff Rose
Published
The plaintiff appealed the judgment of the trial court, seeking specific performance of a real-estate contract, whereby the defendant asserted counterclaims for tortious interference and breach of contract, breach of the original agreement, and breach of a settlement agreement. On appeal, the plaintiff filed a motion to dismiss the defendant’s counterclaims pursuant to the Texas Citizens Protection Act (TCPA). The appellate court noted that the wording of the TCPA allowed a trial court to sign an order ruling on the merits of a TCPA motion from which, in the event of a denial, an interlocutory appeal may be taken under section 51.014. The appellate court found that the time to appeal from the trial court’s partial denial of the TCPA motion to dismiss began to run, when the trial court signed its order addressing the merits of the plaintiff’s motion. The appellate court concluded that any challenge the plaintiff wished to make to the sufficiency of the attorney’s fee award could be brought on appeal after the final judgment. Accordingly, the judgment of the trial court was granted. 


The court reversed the judgment against Harris County, materially reduced the damages recoverable from the Deputy appellants, reversed the award of attorney’s fees, and the court remanded the case for reconsideration of attorney’s fees to be awarded against the Deputy appellants.
Harris Cnty., Texas v. Coats
Constitution, Damages, Evidence, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
February 06, 2020
14-17-00732-CV
Kevin Jewell
Published
In the instant civil rights action, a Texas county and a deputy constable appealed a judgment following a jury verdict awarding wrongful death and survival damages. The appellees asserted a section 1983 claim against Harris County and the Harris County Constable Precinct Four Deputy alleging that the defendants unconstitutional conduct caused the death of the appellees son. The appellees raised a cross-issue challenging the trial court’s decision to reduce their recovery of survival damages by 20% because the jury was not asked to apportion responsibility for the appellee son’s pain and anguish. The appellate court found that the appellees presented legally and factually sufficient evidence that the deputy used excessive force, and that he was not entitled to qualified immunity. The appellees failed to present legally sufficient evidence that the Deputy’s constitutional violations caused the appellee son’s death, so the court reversed that portion of the judgment awarding the appellees $10,000,000 in wrongful death damages. Because the deputy had not challenged the survival damages, and because the court had sustained the appellees cross-issue regarding those damages, the court modified the judgment to award appellee, in her capacity as personal representative of the appellees son’s estate, $1,000,000 in damages from the deputy appellants for the appellee son’s pain and mental anguish, plus applicable pre- and post-judgment interest. Legally and factually sufficient evidence supported the jury’s award of $5,000 in exemplary damages against tge Deputy appellants, and the court affirmed that portion of the judgment. The court reversed the judgment against Harris County, materially reduced the damages recoverable from the Deputy appellants, reversed the award of attorney’s fees, and the court remanded the case for reconsideration of attorney’s fees to be awarded against the Deputy appellants.


The Court’s recitation of the parties’ allegations should not be taken in any way to suggest that the annulment decree was void. That was not for the court to decide. The trial court did not abuse its discretion in denying the appellant’s motion to recuse. Affirmed.
Caballero v. Vig
Appellate: Civil, Family, Procedure
Texas 8th Court of Appeals
February 05, 2020
08-18-00033-CV
Jeff Alley
Published
The instant was an appeal from a final divorce decree. The issue before the Texas Court of Appeals, however, was not the substance of the decree, but instead whether the judge who decided it should have been recused. Specifically, the appellant wife challenged the denial of her post-trial motion to recuse the El Paso District Court Judge who presided over her divorce from the appellee husband. The appellate court found that although the appellee had addressed the issue of whether the appellant had standing to attack the validity of the Judge’s annulment decree, the appellant had not responded by asserting that she had any pre-existing or direct interest in the judge’s annulment proceedings that would give her standing to do so. The court did not find any evidence in the record to support a finding that the appellant had any such interest. Thus, the appellant lacked standing to collaterally attack the validity of Judge’s annulment decree, and that the Court thus lacked jurisdiction to consider the merits of her attack on the decree. Having agreed with the appellee on the standing question, the court needed not address the merits of the claim that the annulment decree was void. The Court’s recitation of the parties’ allegations should not be taken in any way to suggest that the annulment decree was void. That was not for the court to decide. The trial court did not abuse its discretion in denying the appellant’s motion to recuse. Accordingly, the court affirmed the trial court’s judgment.


After examining the record as a whole, the court concluded that any error in the trial court’s admission of the Officer’s testimony of the complainant’s answers during the hospital interview did not have a substantial and injurious effect or influence in determining the jury’s verdict. Affirmed.
Sanchez v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
February 06, 2020
14-18-00268-CR
Kem Thompson Frost
Published
The appellant challenged from his conviction for a felony assault offense involving strangulation. The trial court assessed the appellant’s sentence at 25 years’ incarceration. The appellate court noted that even without the presumed hearsay statements from the complainant, the jury had ample evidence to conclude that the appellant strangled the complainant. The court found reasonable assurance that any error in admitting the hearsay did not influence the jury's verdict, or had but a slight effect. The trial court did not abuse its discretion in overruling the appellant's objection and permitting the testimony. After examining the record as a whole, the court concluded that any error in the trial court’s admission of the Officer’s testimony of the complainant’s answers during the hospital interview did not have a substantial and injurious effect or influence in determining the jury’s verdict. Accordingly, the judgment was modified as affirmed.


Because the deceased’s will was neither susceptible to more than one reasonable interpretation nor uncertain, the court rejected the appellants' alternative position that the deceased’s will was ambiguous. The court affirmed the probate court's judgment.
In re Estate of Hunt
Real Property, Wills/Trusts/Probate
Texas 1st Court of Appeals
February 06, 2020
01-19-00216-CV
Gordon Goodman
Published
The appellants challenged from a summary judgment in which the probate court interpreted the deceased’s will as giving a large share of her personal property to her life partner, the appellee. The appellate court observed that the deceased’s bequest of “all of my remaining household and personal property” was unambiguous—it conveyed to the appellee all of the deceased’s personal property other than the family-related items that she gave to the appellant. Contrary to the appellants' contentions, the other provisions of the deceased's will would do not show a different intent. Because the deceased’s will was neither susceptible to more than one reasonable interpretation nor uncertain, the court rejected the appellants' alternative position that the deceased’s will was ambiguous. Accordingly, the court affirmed the probate court’s judgment.


With respect to any applicable settlement credit from the appellee’s daughter's settlement with the hospital pursuant to the common law’s one-satisfaction rule, the court concluded a benefits analysis should be conducted pursuant to Utts v. Short. Reversed in part and remanded.
Virlar v. Puente
Courts, Employment, Evidence, Litigation: Personal Injury, Torts
Texas 4th Court of Appeals
February 05, 2020
04-18-00118-CV
Liza A. Rodriguez
Published
The instant appeal arose from a medical malpractice action filed by the appellee against the appellant doctor and the appellant company. A jury found the appellant doctor liable for the appellee’s injuries, and judgment was rendered in favor of the appellee and against the appellant doctor and his employer, the appellant company. The appellate court held that the trial court did not err in excluding the expert testimony of the doctor, or in admitting evidence of the appellant doctor’s loss of privileges and alleged extraneous bad acts. The court held the evidence was legally and factually sufficient to support the jury’s award of loss of future earning capacity in the amount of $880,429.00, but not in the full amount awarded ($888,429.00). The court therefore suggested a remittitur decreasing the award for loss of future earning capacity by $8,000.00. The court affirmed the judgment in part conditioned on a remittitur of damages in the amount of $8,000.00. The court did not disturb any other damages awarded by the jury. The court found no error by the trial court in failing to award periodic payments for future loss of earning capacity under section 74.503(b). However, because the trial court did not order any part of the amount awarded for future medical care expenses to be paid in periodic payments, it abused its discretion under section 74.503(a). With respect to any applicable settlement credit from the appellee’s daughter's settlement with the hospital pursuant to the common law’s one-satisfaction rule, the court concluded a benefits analysis should be conducted pursuant to Utts v. Short, 81 S.W.3d 822 (Tex. 2002). Therefore, the court reversed the judgment in part and remanded the cause.


The relator asserted the trial court abused its discretion by failing to include a provision in its order requiring the RPI to repay the relator if his appeal was successful. The relator cited no authority for the argument. Petition for writ of mandamus denied.
In Re Corey Michael Mansour
Family, Juvenile, Procedure
Texas 4th Court of Appeals
February 05, 2020
04-19-00899-CV
Patricia O. Alvarez
Published
The trial court awarded the real party in interest (RPI) attorney’s fees pending the relator’s appeal of an underlying final judgment in a suit to modify the parent-child relationship. The relator asserted the trial court abused its discretion by doing so, because the issue of whether the RPI was entitled to fees pending appeal had already been decided and was now barred by res judicata, or alternatively, the trial court did not make the fees contingent on relator’s unsuccessful appeal, and the trial court did not order the fees reimbursed if relator’s appeal was successful. The appellate court found that the relator did not challenge whether the appellate fees awarded to the RPI were necessary to preserve and protect the safety and welfare of his children during the pendency of his appeal. Because an unconditional award provided the defending party with the financial resources to file an appellee’s brief without subjecting the children to any financial hardship, the court concluded the relator had not established the trial court abused its discretion by awarding the RPI immediate unconditional attorney’s fees pending relator’s appeal. The relator asserted the trial court abused its discretion by failing to include a provision in its order requiring the RPI to repay the relator if his appeal was successful. The relator cited to no authority for the argument. Accordingly, the court denied relator’s petition for writ of mandamus.


The trial court’s division of community assets was not so grossly disproportionate as to remove it from the realm of a just and right division. Accordingly the judgment was affirmed.
In re the Marriage of Collinsworth
Family, Juvenile, Procedure
Texas 6th Court of Appeals
February 05, 2020
06-19-00083-CV
Scott E. Stevens
Published
The trial court granted the appellee’s petition for divorce from the appellant and awarded her sole managing conservatorship of their children. On appeal, the appellant argued that the trial court erred in awarding the appellee the marital home after finding it to be community property, and in making an unequal disposition of the parties’ community assets, i.e., their retirement accounts and tax refund. The apellate court found that the appellee proved that the home was purchased several years before the marriage. The trial court properly concluded that the appellee sufficiently traced the funds used to acquire the home to her separate property. While the appellant’s name was included on the mortgage and settlement statement as a “borrower,” there was no deed introduced into evidence showing that the property was in his name. The appellant made no claim for reimbursement. The trial court found that the appellant contributed no funds to the acquisition of the separate property home. The trial court properly considered the appellant’s drug use and fault in the breakup of the marriage in awarding the appellee a disproportionate share of community assets. The trial court heard evidence that the appellant was a nurse, considered the cost of repairing the damage the appellant caused when he vandalized the family home, and the appellee’s continued payment of the cost of his health insurance throughout the separation. For those reasons, the appellant’s withdrawal of $15,000.00 from his retirement account, and the Rule 11 Agreement, the trial court awarded each party their own retirement accounts. The trial court’s division of community assets was not so grossly disproportionate as to remove it from the realm of a just and right division. Accordingly the judgment was affirmed.


Factually sufficient evidence supported the jury’s verdict. The trial court did not err in overruling the appellant’s evidentiary objections, and the appellant was not harmed by the denial of his proposed jury instruction. Therefore, the Court of Appeals affirmed the trial court’s judgment.
In re Commitment of Renshaw
Criminal, Evidence, Gov't/Administrative, Procedure
Texas 6th Court of Appeals
February 05, 2020
06-19-00069-CV
Josh Morriss, III
Published
A Wood County jury found, beyond a reasonable doubt, that the appellant was a sexually violent predator. The trial court ordered the appellant committed to supervision and treatment pursuant to Chapter 841 of the Texas Health and Safety Code, titled “Civil Commitment of Sexually Violent Predators.” The appellate court concluded that a rational jury could have found beyond a reasonable doubt that the appellant was a repeat sexually violent offender who suffered from a behavioral abnormality that made him likely to engage in a predatory act of sexual violence. The court did not find that the jury’s verdict reflected a risk of injustice that would compel ordering a new trial, and factually sufficient evidence supported the jury’s verdict that the appellant was a sexually violent predator. The court could not say that the trial court abused its discretion in refusing to find that the probative value of that evidence was substantially outweighed by the danger of unfair prejudice. The trial court could have reasonably concluded that the facts and details related to the appellant’s unadjudicated offenses would be helpful to the jury in weighing his testimony and the experts’ testimony, and in explaining the basis for the experts’ opinions that the appellant suffered from a behavioral abnormality. The trial court did not abuse its discretion by admitting evidence of uncharged offenses. Assuming without deciding that the trial court’s denial of the proposed instruction was erroneous, it was harmless under Rule 44.1 of the Texas Rules of Appellate Procedure. The trial court’s charge instructed the jury that it was required to have a unanimous verdict, and the jury certified on the record that its verdict was unanimous. Accordingly, the court affirmed.


The judge had jurisdiction to determine the counterclaim, as well as the ministerial duty to fix the amount of security to protect the Real Parties in Interest during the proceedings. The judge abused his discretion when he failed to do so. Accordingly, the court denied the relators' petition.
In re Lone Star NGL Pipeline LP
Contracts, Damages, Procedure, Real Property, Torts
Texas 11th Court of Appeals
February 03, 2020
11-20-00010-CV
John M. Bailey
Published
The real party in interest granted the relator an easement on certain real property to construct a pipeline for the transportation of natural gas and natural gas liquids only. Payments for the easement were made to the RPI and to the deceased. The pipeline that was constructed on the easement was part of a pipeline that extended for fifty miles. The relators had the same corporate parent and the relator conveyed the entire pipeline to the second relator co. The second relator intended to use the pipeline to transfer crude oil rather than natural gas and natural gas liquids. The RPIs sued the relator for breach of contract and the relators for trespass, fraudulent inducement, common law and statutory fraud, conspiracy, unjust enrichment, and quantum meruit. The Judge denied the relators’ motion to set security and to abate the injunctive proceedings. The appellate court found that the relators had failed to show that they were entitled to the requested relief. The court agreed with the Real Parties in Interest that there was little authority that addressed whether Chapter 21 required a condemnor to follow the Standard Procedure before it could file an Alternative Pleading under Section 21.017. Because the second relator filed a counterclaim that fell under Section 21.003, the relators were not required to complete the Standard Procedure for condemnation before they requested that the judge set security. The judge had jurisdiction to determine the counterclaim, and a ministerial duty to fix the amount of security to protect the Real Parties in Interest. The judge abused his discretion when he failed to do so. Accordingly, the court denied the relators’ petition for writ of mandamus.


The trial court’s summary judgment for the plaintiff on the breach of contract claim was proper.
Copano Energy, LLC v. Bujnoch
Appellate: Civil, Contracts, Procedure, Real Property, Torts, Wills/Trusts/Probate
The Supreme Court of Texas
January 31, 2020
18-0044
James D Blacklock
Published
The plaintiffs appealed the judgment of the trial court which granted the defendants’ motion for summary judgment in a suit, claiming the various e-mails, taken together, amounted to an enforceable written contract satisfying the statute of frauds. On appeal, the defendants argued that the statute of frauds barred the claims. The Supreme Court noted that the e-mails containing many of the alleged deal’s principal terms were part of a forward-looking request to negotiate a contract. The Supreme Court found that neither those e-mails nor any other writing evidenced the defendant’s agreement to the particular terms stated in the e-mails. The Supreme Court further determined that as a result, there was no written memorandum which was complete within itself in every material detail, as required by the statute of frauds. The Supreme Court concluded that the trial court’s summary judgment for the plaintiff on the breach of contract claim was proper. Accordingly, the judgment of the trial court was reversed.


Under Texas Rule of Civil Procedure 279, the petitioner was required either to obtain a jury finding on waiver or to prove it conclusively.
Energy Transfer Partners, L.P. v. Enter. Products Partners, L.P.
Appellate: Civil, Business, Contracts, Corporations, Damages, Procedure, Torts
The Supreme Court of Texas
January 31, 2020
17-0862
Nathan L. Hecht
Published
The petitioner appealed the judgment of the appellate court which reversed the trial court’s judgment and rendered it for the respondent. The Supreme Court noted that the parties could contract for conditions precedent to preclude the unintentional formation of a partnership under Chapter 152 and that, as a matter of law, they did so. The Supreme Court found that under Texas Rule of Civil Procedure 279, the petitioner was required either to obtain a jury finding on waiver or to prove it conclusively. The Supreme Court further determined that the only record evidence that the petitioner pointed to the parties held themselves out as partners and worked closely together on the project was not relevant to the issue of waiver of definitive, board-approved agreements. The Supreme Court concluded that there was no evidence that the respondent waived the conditions. Accordingly, the judgment of the appellate court was affirmed.


The Supreme Court concluded that the permissibility of such easements, at least under those facts, was an issue best left to the legislature and local governments.
Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass’n
Appellate: Civil, Litigation: Personal Injury, Procedure, Real Property, Torts
The Supreme Court of Texas
January 31, 2020
17-0736
Jane N. Bland
Published
The petitioner appealed the judgment of the trial court which enforced the respondent’s easement, ruling that the easement burdened the petitioner's property. On appeal, the petitioner asserted waiver and estoppel affirmative defenses, asserting that the restrictive easements that limited private access were void against public policy. The Supreme Court noted that the respondent had standing to sue to enforce the easement. The Supreme Court found that the evidence supported the trial court’s rejection of the petitioner's affirmative defenses. The Supreme Court concluded that the permissibility of such easements, at least under those facts, was an issue best left to the legislature and local governments. Accordingly, the judgment of the trial court was affirmed.


The plaintiff did not contend he could demonstrate the defendant violated section 143.102’s liability standard.
Pruski v. Garcia
Agricultural, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
January 31, 2020
18-0953
James D Blacklock
Published
The defendant appealed the judgment of the trial court which granted summary judgment for the plaintiff on all claims. On appeal, the defendant challenged the appellate court’s affirmation of summary judgment on all claims related to the petitioner’s alleged violation of section 143.102, the highway statute. The Supreme Court noted that the appellate court applied section 143.074, finding that the plaintiff could recover against the defendant for an accident on a state highway without showing the livestock owner knowingly permitted the bull to roam at large. The Supreme Court found that Section 143.102 required a “knowing” mental state as a prerequisite to livestock-owner liability for highway accidents. The Supreme Court concluded that the plaintiff did not contend he could demonstrate the defendant violated section 143.102’s liability standard. Accordingly, the judgment of the trial court was reversed.


The trial court did not abuse its discretion in transferring the case to the parties’ agreed venue.
In re Fox River Real Estate Holdings, Inc.
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Procedure, Torts
The Supreme Court of Texas
January 31, 2020
18-0913
Eva M. Guzman
Published
The relators appealed the judgment of the trial court which granted the respondents’ motion without substantive comment and transferred venue. On appeal, the relators filed a petition for mandamus relief. The Supreme Court noted that Section 15.020 of the Texas Civil Practice and Remedies Code required enforcement of the parties’ venue-selection agreement not because it was a super mandatory venue provision that superseded Section 65.023(a). The Supreme Court found that Section 65.023(a) did not apply in suits like that where injunctive relief was not the primary and principal relief requested. The Supreme Court concluded that the trial court did not abuse its discretion in transferring the case to the parties’ agreed venue. Accordingly, the court denied the relators’ petition for mandamus relief.


The Medicaid billing claim should have been dismissed, but that the federal claims were properly before the trial court, and therefore, the trial court’s order on the plea to the jurisdiction was correct.
Permiacare v. L.R.H.
Appellate: Civil, Contracts, Gov't/Administrative, Health Care, Procedure
Texas 8th Court of Appeals
January 31, 2020
08-19-00144-CV
Jeff Alley
Published
The State appealed the judgment of the trial court in the plaintiff’s suit claiming that the State failed to follow several mandated statutory and administrative duties, failed to provide services for which the contracting entity had billed Medicaid, and the contracting entity acted in a discriminatory manner in providing services in violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The appellate court noted that several of the plaintiff’s ultra vires claims lacked a properly pleaded factual foundation. The appellate court found that the plaintiff was entitled to an opportunity to re-plead, in the appeal from the denial of the entity’s and the official’s plea to the jurisdiction. The appellate court concluded that the Medicaid billing claim should have been dismissed, but that the federal claims were properly before the trial court, and therefore, the trial court’s order on the plea to the jurisdiction was correct. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.


A pension reform that abandoned a more flexible distribution scheme in favor of a more predictable scheme did not violate the constitutional prohibition.
Degan v. The Bd. of Trustees of the Dallas Police & Fire Pension Sys.
Appellate: Civil, Constitution, Gov't/Administrative, Procedure
The Supreme Court of Texas
January 31, 2020
19-0234
John P. Devine
Published
The appellants appealed the judgment of the trial court, challenging as unconstitutional the statutory amendments, which eliminated their ability to request lump-sum distributions from their respective Deferred Retirement Option Plan (DROP) accounts. On appeal, the appellants contended that the funds in DROP were accrued service retirement benefits and that the change to how those funds may be withdrawn effectively reduced or impaired the accrued benefit in violation of the Texas Constitution, article XVI, section 66(d). The Supreme Court noted that while Section 66 modified Texas’s former “gratuity” approach to pension benefits for non-statewide plans by protecting some benefits, Section 66 did not prohibit prospective pension reforms. The Supreme Court found that it did prohibit the reduction or impairment of an accrued service retirement benefit. The Supreme Court concluded that a pension reform that abandoned a more flexible distribution scheme in favor of a more predictable scheme did not violate the constitutional prohibition. Accordingly, the court answered both certified questions negatively.


The defendant failed to demonstrate by a preponderance of the evidence that the plaintiff’s suit to collect attorney’s fees was based on, related to, or in response to the defendant’s exercise of rights protected by the TCPA.
Wendt v. Weinman & Associates, P.C.
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Procedure, Torts
Texas 3rd Court of Appeals
January 31, 2020
03-19-00036-CV
Gisela D. Triana
Published
The defendant appealed the judgment of the trial court which denied his motion to dismiss the plaintiff’s suit to recover outstanding attorney’s fees, pursuant to the Texas Citizens Participation Act (TCPA). On appeal, the defendant asserted that the trial court erred in denying his motion to dismiss. The appellate court noted that every communication made by a client to his attorney was not a matter of public concern. The appellate court found that without knowing the nature of the communications that served as the basis for the plaintiff’s motion, the defendant failed to carry his burden of showing by a preponderance of the evidence that the plaintiff’s petition was based on, related to, or in response to a communication made in connection with a matter of public concern. The appellate court concluded that the defendant failed to demonstrate by a preponderance of the evidence that the plaintiff’s suit to collect attorney’s fees was based on, related to, or in response to the defendant’s exercise of rights protected by the TCPA. Accordingly, the judgment of the trial court was affirmed.


The relator had not shown that the only decision the trial court could have made was that the engineer was not the relator’s employee or otherwise under relator’s control, and the trial court did abuse its discretion in compelling the deposition of an engineer without a subpoena issued.
In re Total Petrochemicals & Refining USA, Inc., Relator
Constitution, Corporations, Employment, Evidence, Procedure
Texas 14th Court of Appeals
January 30, 2020
14-19-00585-CV
Charles Spain
Published
The relator corporation filed a petition for writ of mandamus in the court. In the petition, the relator corporation asked the court to compel the Honorable presiding judge of the 215th District Court of Harris County to vacate her June 28, 2019 order to the extent that it compelled the deposition of a non party witness without a subpoena having been served on the witness. The appellate court found that by its order compelling the deposition of an engineer without the defendants serving a subpoena on the engineer, the trial court made an implied finding that an engineer was an employee of the relator, or otherwise subject to the relator’s control. The relator had the burden to bring a record establishing that it was entitled to mandamus relief. The relator had not presented a record to show that evidence conclusively established that the engineer was not its employee, that it otherwise had control over an engineer, nor any evidence supported the trial court’s finding that an engineer was relator’s employee or that he was otherwise under relator’s control. The relator had not shown that the only decision the trial court could have made was that the engineer was not the relator’s employee or otherwise under relator’s control, and the trial court did abuse its discretion in compelling the deposition of an engineer without a subpoena having been issued. The relator had not shown that it was entitled to mandamus relief. Thus, the court denied the relator's petition for writ of mandamus.


The trial court abused its discretion because it did not have sufficient information concerning the appellant’s net resources to exercise its discretion. The judgment was affirmed, reversed, and remanded.
In re L.A.-K.
Family, Juvenile, Procedure
Texas 8th Court of Appeals
January 29, 2020
08-18-00066-CV
Gina M. Palafox
Published
The instant appeal was from an order in a suit to modify the parent-child relationship. The appellant father asserted that the trial court abused its discretion by designating the appellee mother as the person with the exclusive right to designate the primary residence of the child, and by ordering the appellant to pay child support and medical child support. The appellant also asserted that the trial court committed procedural errors both before and after entry of the final order from which he appealed. The appellate court observed that the trial court did not render judgment on July 7, 2017. For that reason, Section 156.102 of the Texas Family Code did not apply. In the context of the temporary restraining order, the trial court granted the appellant the relief he requested by quashing the order. As in the case of an expired temporary restraining order, the issue was moot. The trial court abused its discretion because it did not have sufficient information concerning the appellant’s net resources to exercise its discretion and, insofar as it was entitled to exercise its discretion based on the statutory wage and salary presumption, it erred in its application of that discretion. The court held that the trial court abused its discretion by ordering payment of cash medical support. The trial court’s decision to name the appellee as the person with the exclusive right to designate the child’s primary residence was supported by evidence of a substantive and probative character. Nothing in the record supported the appellant’s assertion that the trial court decided not to impose a geographic restriction because it was influenced by, or gave any consideration to, his race, ethnicity, country of origin, or fluency with Spanish. Accordingly, the judgment was affirmed, reversed, and remanded.


The trial court did not abuse its discretion in awarding attorney’s fees when the appellant filed suit in an attempt to enforce an illegal contract, and then attempted to prolong the litigation by filing a sham affidavit. Appellant did not have standing to assert derivative claims. Affirmed.
Winner v. Jarrah
Appellate: Civil, Contracts, Procedure, Torts
Texas 1st Court of Appeals
January 30, 2020
01-19-00115-CV
Gordon Goodman
Published
The instant was an appeal from the trial court’s summary judgment dismissing claims asserted by the appellant individually and derivatively on behalf of the company (co.). The co. was an entity formed by the appellee to own and operate a bar in Houston, Texas. The suit arose from the appellee’s alleged breach of a stock purchase agreement between he and the appellant. The appellant judicially admitted that, under the agreement, the appellee promised to transfer 10% of the co.’s stock to the appellant in exchange for the appellant’s promise to allow the co. to use his company’s liquor license. However, Texas law prohibited the holder of a liquor license from allowing another person to use the license. The trial court ruled that the agreement was void and unenforceable due to illegal consideration, and accordingly dismissed the appellant’s claims. The appellate court found that because the TEX. ALCO. BEV. CODE (TABC) prohibited the holder of liquor license from allowing another person to use the license, TABC Sections 11.05, 109.53, the appellant’s statements further proved that the Stock Purchase Agreement was supported by illegal consideration. Because the illegal portion of the Stock Purchase Agreement was part of the original consideration the appellant paid for the stock, it was not severable from the remainder of the agreement. Given the appellant’s consistent and repeated statement that he promised to allow the co. to use the second co.’s liquor license, and the appellant’s disavowal of that statement immediately after the appellee observed that the promise violated the TABC, the court could not say that the trial court abused its discretion in disregarding the appellant’s amended affidavit under the sham affidavit rule. The Stock Purchase Agreement was void. The appellant did not have standing to assert derivative claims on behalf of the co., as he never became a co. shareholder. The court affirmed.


The trial court’s error in admitting the testimony of multiple outcry witnesses did not have a substantial and injurious effect on the jury’s verdict. Accordingly, the judgment was affirmed.
Gibson v. State
Criminal, Evidence, Juvenile, Procedure
Texas 3rd Court of Appeals
January 29, 2020
03-18-00655-CR
Gisela D. Triana
Published
A jury convicted the appellant of the offense of aggravated sexual assault of a child. The trial court found that the appellant was a habitual offender and sentenced him to life imprisonment without parole. The appellant argued that the trial court abused its discretion in allowing multiple individuals to testify as outcry witnesses to the child’s statements. The State emphasized the child’s testimony in its closing argument. Also admitted into evidence during the child’s testimony was a drawing made by the child showing a male stick figure, which the child identified as the appellant, standing next to the child with what appeared to be an erect penis. A copy of the recording of the child’s forensic interview was admitted into evidence without objection. Thus, the jury heard for itself the same statements to which Wold had testified. Other evidence considered by the jury included a jail call between the appellant and his wife in which the appellant denied that he was “violent” with the child or that he “forced” her to do anything, which the jury could have reasonably construed as an admission that the appellant had done something with the child, but that he did not view it as non-consensual. The court had fair assurance that the trial court’s error in admitting the testimony of multiple outcry witnesses did not have a substantial and injurious effect on the jury’s verdict. Accordingly, the judgment was affirmed.


The trial court announced that it appointed the attorney because the husband's sister reported concerns over the husband’s health and safety during a time that the individual, his guardian, was out of the country. The court modified the trial court's judgment and affirmed.
In the Guardianship of Alford
Appellate: Civil, Family, Procedure
Texas 6th Court of Appeals
January 29, 2020
06-19-00060-CV
Ralph Burgess
Published
The individual was appointed guardian of the person and estate of her husband, an incapacitated person. The trial court appointed the attorney ad litem and requested that he check on the husband’s welfare. The individual challenged the order authorizing payment of the attorney’s fees. The individual filed an objection to the attorney’s appointment on behalf of husband, who refused to speak with the attorney ad litem appointee as he felt he was disrespectful to him in the past and did not communicate well. The appellate court found that the trial court’s docket listed the individual as the applicant in the case. The trial court’s order unambiguously required her to pay the attorney’s fee. The trial court announced that it appointed the attorney because the husband's sister reported concerns over the husband’s health and safety during a time that the individual, his guardian, was out of the country. The trial court also explained that it believed the individual had animosity toward the attorney, purposefully violated the trial court’s order by failing to allow the attorney to see the husband, and increased the attorney’s legal fees by her actions. The attorney’s itemized billing showed that while his paralegal’s work in revising and preparing discovery responses constituted work traditionally done by an attorney, answering and placing telephone calls and uploading documents did not. The charge of $68.00 for 0.8 hours spent by the attorney’s paralegal performing support services was not recoverable as a fee. Finally, the bill for professional services totaled $3,119.00, and the invoice showed that $6.40 was spent in copying expenses, for a total of $3,125.40. The court modified the trial court’s judgment by deleting $68.00 from the attorney fee award, leaving an award in the amount of $3,057.40. Accordingly, the court modified the trial court’s judgment and affirmed the trial court’s judgment.


The appellant failed to meet its burden of raising a fact issue on any of elements of the appellee’s affirmative defense. Because the appellee conclusively established his affirmative defense of no individual liability, he was entitled to summary judgment in his favor. Affirmed.
Valley Forge Motor Co. v. Sifuentes
Appellate: Civil, Contracts, Corporations, Damages, Procedure, Torts
Texas 8th Court of Appeals
January 28, 2020
08-17-00257-CV
Gina M. Palafox
Published
The appellant challenged the trial court’s finding that the appellee conclusively established an affirmative defense of no individual liability pursuant to Section 21.223 of the Texas Business Organizations Code. The appellate court found that given the appellee’s proof of transacting all business on behalf of the corporate entity, he met his evidentiary burden on summary judgment to establish his affirmative defense of no individual liability. Thus, the appellant’s evidence, at most, could arguably be relevant to the third element required by Section 21.223(a), which addressed whether the liability at issue arose from any contractual obligation of the corporation, or any matter relating to or arising from the obligation. The evidence put forth by the appellant failed to raise a fact issue on whether the appellee could properly rely on the statutory protection afforded by Section 21.223. None of the evidence presented by the appellant was relevant to defeating any of the elements addressing whether the co. was a corporation, whether the appellee was properly affiliated with the corporation, whether the appellant was an obligee of the corporation, or whether the appellee was an alter ego of the corporation. Thus, the appellant failed to meet its burden of raising a fact issue on any of the elements of the appellee’s affirmative defense. Because the appellee conclusively established his affirmative defense of no individual liability, he was entitled to summary judgment in his favor. Thus, the trial court’s order granting the appellee’s motion for summary judgment on his affirmative defense was not error. Accordingly, the trial court’s judgment was affirmed.


After a de novo review, the court concluded that the trial court did not err in granting the appellee's motion to dismiss. Thus, the court affirmed the judgment of the trial court.
Pape Partners, Ltd v. DRR Family Props. LP
Constitution, Gov't/Administrative, Procedure
Texas 10th Court of Appeals
January 29, 2020
10-17-00180-CV
Rex D. Davis
Published
The appellants attempted to record their purchase of the water rights with the Texas Commission on Environmental Quality (“TCEQ”). The TCEQ notified the appellee limited partnership and other potentially interested landowners that they might own an interest in the water rights. The appellee filed a change of ownership form, and the TCEQ eventually concluded that the appellee owned a portion of the water rights. The TCEQ changed its records to reflect the appellee's ownership. The appellants moved to reverse the TCEQ’s decision, and the motion was overruled by operation of law. The appellants did not pursue an administrative appeal, but brought the present suit seeking a declaration that it owned all of the water rights in the tract purchased from the individual and the company. The appellants asserted claims against the appellee for trespass to try title – adverse possession and to quiet title. The appellee moved to dismiss the appellants claims against it for lack of subject matter jurisdiction, asserting that the appellants had failed to exhaust their administrative remedies. The trial court granted the appellee's motion. The appellate court found that because the Legislature had vested the TCEQ with the exclusive jurisdiction to determine water rights, the appellants were required to exhaust their administrative remedies before resorting to the trial courts. The legislative scheme gave jurisdiction to the TCEQ to determine water rights did not violate the separation of powers clause in the Texas Constitution. After a de novo review, the court concluded that the trial court did not err in granting the appellee's motion to dismiss. Thus, the court affirmed the judgment.


The discharge of a criminal sentence did not, by itself, discharge the court costs owed by a defendant. After reviewing the mandamus petitions, the State’s response, and the case and statutory authority cited by the State, the individual’s petitions for writ of mandamus were denied.
In re Cain
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
January 29, 2020
10-19-00407-CR
Tom Gray
Published
The complaint in all three proceedings concerned the withdrawal of court costs from the individual’s inmate account. As the Court understood the individual’s complaints, the individual contended that the trial court could not order withholdings to be made from the individual’s inmate account on judgments that had been discharged. The individual specifically asserted that the judgments in those proceedings had each been discharged. The appellate court observed that because the obligation of a convicted person to pay court costs was established by statute, court costs were not part of a defendant's sentence, and the Code of Criminal Procedure provided the means and reasons to declare court costs uncollectable. The discharge of a criminal sentence did not, by itself, discharge the court costs owed by a defendant. After reviewing the mandamus petitions, the State’s response, and the case and statutory authority cited by the State, the individual’s petitions for writ of mandamus were denied.


Accordingly, the court dismissed those appeals for lack of jurisdiction, and the court denied as moot the State’s motion to dismiss, the appellant’s motion to strike the motion to dismiss, and the State’s motion to extend time to file its brief.
Lopez v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
January 28, 2020
14-19-00380-CR
Margaret Poissant
Published
The appellant pleaded guilty to and was convicted of aggravated assault against a public servant, and aggravated assault with a deadly weapon. The trial court sentenced him to 15 years’ imprisonment for each conviction. Despite the trial court’s certification that the appellant waived his right to appeal, the appellant filed a notice of appeal in each case. The appellate court notified the parties that the court would consider dismissal of the appeals on the court's own motion for lack of jurisdiction due to the appellant’s waiver of his right to appeal. The court invited the parties to file further briefing on the jurisdictional issue. No such briefing was received. The State gave consideration for the waiver in the form of waiving its own right to a jury trial. Ex parte Broadway compelled the court to conclude the appellant’s waiver of his right to appeal was valid. Accordingly, the court dismissed those appeals for lack of jurisdiction, and the court denied as moot the State’s motion to dismiss, the appellant’s motion to strike the motion to dismiss, and the State’s motion to extend time to file its brief.


Having concluded that the TCPA’s commercial-speech exemption applied, the court affirmed the trial court’s order denying the motion to dismiss.
Hawkins v. Fox Corporate Hous., LLC
Appellate: Civil, Business, Contracts, Employment, Gov't/Administrative
Texas 1st Court of Appeals
January 28, 2020
01-19-00394-CV
Sarah Beth Landau
Published
The appellee company sued its former employee, the appellant, for breach of a non-compete and a non-disclosure agreement, injunctive relief, and attorney’s fees. The appellant answered and moved to dismiss under the Texas Citizens Participation Act (the “TCPA”), and the trial court denied her motion. In five issues, the appellant challenged the trial court’s order denying her motion to dismiss. The appellate court found that in reviewing the allegations in the parties’ pleadings and recorded evidence in a light favorable to the appellee, the court concluded that the appellant was primarily engaged in the business of selling or leasing goods or services. Viewing the pleadings and TCPA record evidence in a light favorable to the appellee, the court concluded that the appellee established by a preponderance of the evidence that its lawsuit was exempt from the TCPA under the commercial-speech exemption. Because the trial court’s ruling could be affirmed on that basis, the court needed not address the parties’ remaining arguments. Accordingly, having concluded that the TCPA’s commercial-speech exemption applied, the court affirmed the trial court’s order denying the motion to dismiss.


The trial court lacked subject matter jurisdiction over the appellees constitutional inverse condemnation and due process claims. The appellees were not entitled to amend their pleadings.
San Jacinto River Auth. v. Ogletree
Appellate: Civil, Constitution, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
January 28, 2020
14-18-00043-CV
Frances Bourliot
Published
The appellee homeowners, whose properties allegedly flooded when water was released from Lake in the aftermath of Hurricane Harvey, sued the appellant authority and the Cross-Appellee development Board in trial court. The appellees asserted inverse condemnation claims under the Texas and United States constitutions, as well as claims for violations of procedural and substantive due process rights. The appellant filed a motion to dismiss pursuant to Texas Rule of Civil Procedure 91a and a plea to the jurisdiction, principally asserting governmental immunity. The trial court denied the motion and the plea. The Texas Water Board filed a Rule 91a motion asserting governmental immunity. The trial court granted that motion. In those interlocutory cross-appeals, the appellant challenged the denial of its plea to the jurisdiction, while the appellees challenged the dismissal of their claims against the Cross-Appellee. The appellate court found that the trial court lacked subject matter jurisdiction over the appellees constitutional inverse condemnation and due process claims, and that the appellees were not entitled to amend their pleadings. Thus, the court affirmed the trial court’s order dismissing the claims against the Cross-Appellee for lack of subject matter jurisdiction, reversed the trial court’s order denying the appellant's plea to the jurisdiction, and rendered judgment dismissing the appellees claims against the appellant for lack of subject matter jurisdiction. 


Because the relators had not demonstrated that their remedy by appeal was inadequate, they were not entitled to mandamus relief. Accordingly, the Court denied the petition.
In re Flores
Appellate: Civil, Constitution, Damages, Procedure, Torts
Texas 1st Court of Appeals
January 28, 2020
01-19-00484-CV
Peter Kelly
Published
The instant case was a suit for damages. The real party in interest (RPI) moved to strike the counter-affidavits on the grounds that they were untimely, the doctor was unqualified to furnish a counter affidavit on medical records under Rule 702, the counter-affidavits did not give proper notice under Tex. Civ. Prac. & Rem. Code Section 18.001(f), and the counter-affidavits were unreliable. The relators challenged the trial court’s order granting RPI’s motion to strike the counter-affidavit of the doctor. The relators also filed a motion to stay proceedings in the trial court. The appellate court observed that there was no indication that the relator established it was in danger of losing substantial rights, and neither had the relators in the case. They ware not denied the opportunity to develop the merits of their case. The counter-affidavit and the ruling excluded it could be made part of the record, and an appellate court could correct any error by reversing the trial court’s ruling excluding the counter-affidavit. Because the relators had not demonstrated that their remedy by appeal was inadequate, they were not entitled to mandamus relief. Nothing in section 18.001 prevented parties whose counter-affidavits had been erroneously stricken from assailing the original affidavits and ultimately prevailing at trial. Because the relators simply faced the non-unique burden of having to adjust their trial strategy to accommodate an adverse evidentiary ruling, the court concluded that the relators had not presented a situation involving a “manifest and urgent necessity,” but rather one involving “grievances that may be addressed by other remedies.” Accordingly, the court denied the petition.


However, because dismissal of those claims under the Family Code was clearly prohibited by Rule 91a.1, and the trial court stated no rationale for dismissing them under Rule 13, the court held that the trial court erred in dismissing them. Judgment reversed and remanded.
Guion v. Guion
Family, Juvenile, Procedure
Texas 1st Court of Appeals
January 28, 2020
01-18-00386-CV
Evelyn V. Keyes
Published
In the suit affecting the parent-child relationship (SAPCR), the appellant father petitioned for modification of the sole managing conservatorship of the appellee mother to impose a geographic restriction on her right to designate their child’s primary residence, as well as additional modifications affecting possession and access to the child and transfer of the child’s passport. the appellee filed a motion to dismiss the appellant’s petition, and the trial court granted her motion. In light of the plain language of Family Code section 153.132 and Texas public policy as expressed in sections 153.001(a) and 153.002, the Court concluded that the trial court was authorized, but not obligated, to impose a geographic restriction on the appellee ’s right as sole managing conservator to designate the child’s primary residence. The court agreed with the appellant that the divorce decree’s sole managing conservatorship decision was subject to modification to the extent of changed circumstances. Thus, the trial court’s legal conclusion that “the Court cannot impose a domicile restriction on a Sole Managing Conservator in a subsequent modification action” was incorrect. The trial court did not specifically rule on the additional modification claims in its order dismissing the suit under Texas Rule of Civil Procedure 13. However, because dismissal of those claims under the Family Code was clearly prohibited by Rule 91a.1, and the trial court stated no rationale for dismissing them under Rule 13, the court held that the trial court erred in dismissing them. The trial court should be given an opportunity to reconsider whether to assess attorney’s fees when it rendered a new judgment. Judgment was reversed and remanded.


The trial court could have reasonably rejected the defense’s claim of disparate treatment because the occupations of the two venirepersons were not exactly the same. Accordingly, the trial court's judgment was affirmed.
Granderson v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
January 28, 2020
14-19-00025-CR
Tracy Christopher
Published
The instant appeal was from a conviction for evading arrest or detention in a motor vehicle. The sole question presented was whether the trial court erred when it denied a challenge under Batson v. Kentucky. The defense pointed out that the appellant was an African American, and that the prosecution had exercised peremptory strikes against three of the four African Americans in the strike zone. The appellate court found that the trial court could have accepted the prosecution’s race-neutral explanation as genuine because, in a pre-trial hearing conducted outside the presence of the venire panel, the defense indicated that the appellant would plead guilty to the charged offense, and asked for the jury to assess his punishment. Because of the different stages, the venirepersons could reasonably be expected to draw on different professional experiences. That background would have been relevant to the current case, which might explain why the prosecution did not strike Venireperson 6, whereas the defense did. The trial court could have reasonably rejected the defense’s claim of disparate treatment because the occupations of the two venirepersons were not exactly the same. Having viewed the record in the light most favorable to the trial court’s ruling, the court concluded that the denial of the Batson challenge was not clearly erroneous. Accordingly, the trial court's judgment was affirmed.


The record indicated the trial court’s frustration, impatience, and even skepticism regarding the ultimate merit of the appellant’s claims. There was no error regarding the appellant's preserved complaints of bias. Judgment affirmed as modified.
Haynes v. Union Pac. R.R. Co.
Appellate: Civil, Employment, Evidence, Procedure
Texas 1st Court of Appeals
January 28, 2020
01-18-00181-CV
Richard Hightower
Published
The appellant was injured as he attempted to leave the Strang Railyard where he worked for the appellee corporation. The appellant sued the appellee under the Federal Employment Labor Act (FELA), and the jury ultimately concluded that the appellee was negligent, determining that the appellee was 35% responsible and the appellant was 65% contributorily negligent regarding his injuries. The appellate court found that the trial court denied the mistrial, but stated that he would reconsider it at the end of the case. The trial court also offered to instruct the jury that if they overheard anything to disregard it, clarifying that they were the judge of the facts. The record was unclear regarding what comments the judge made during the bench conference and what comments, if any, members of the jury heard. Accounts of the substance of the comments and their audibility were contradictory. The appellant had failed to bring forward a record clearly showing what comments, if any, the jury heard. The trial court indicated the trial court’s frustration, impatience, and even skepticism regarding the ultimate merit of the appellant’s claims. There was no error regarding the appellant’s preserved complaints of bias. Therefore, the court needed not undertake a cumulative-harm analysis. The court sustained the appellee’s request that the court modified the judgment to reduce the lost wages award by $14,648.40 as an offset to account for the taxes paid. The court affirmed the judgment as modified.


The failure of appellant’s appointed attorney to request that the judgment be reformed to correct clerical errors indicated that she did not perform a professional evaluation of the record. The court removed the appeal from the submission docket and abated the appeal.
Crowe v. State
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
January 28, 2020
05-18-01544-CR
Leslie Lester Osborne
Published
The appellant entered a not guilty plea before the trial court to the charge of intentionally and knowingly causing serious bodily injury to a child. The trial court found the appellant guilty of the lesser included offense of recklessly causing serious bodily injury to a child and, following a hearing on punishment, sentenced the appellant to twenty years’ imprisonment. The appellate court observed that the “Terms of Plea Bargain” field stated “Open Plea”; yet it was clear that whether the appellant entered a plea of not guilty and no plea bargain, either as to guilt/innocence or punishment, was operative. The failure of appellant’s appointed attorney to request that the judgment be reformed to correct those clerical errors further indicated that she did not perform a professional evaluation of the record. Accordingly, the court removed the appeal from the submission docket and abated the appeal for the trial court to comply with the dictate of the opinion.


The appellate court observed that the appellant did not argue that she was not required to show prejudice, and relied on McCoy only to show that her counsel’s performance was deficient. The court agreed that it was. The court reversed the judgment of the trial court and remanded.
Harrison v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
January 28, 2020
14-18-00372-CR
Frances Bourliot
Published
The appellant challenged from her conviction for felony injury to a child by omission and tampering with evidence. As a result of a plea agreement, the appellant pleaded no contest to injury to a child, and guilty to tampering with evidence without an agreed recommendation from the State on punishment. The trial court sentenced appellant to the maximum punishment for injury to a child, 20 years in prison, and two years in prison for tampering with evidence. The appellate court observed that the appellant did not argue that she was not required to show prejudice, and relied on McCoy only to show that her counsel’s performance was deficient. The court agreed that it was. Because appellant contended that she suffered prejudice by her counsel’s deficiency, the court would analyze whether she was correct. The proper remedy was to give the appellant an opportunity to reject her plea agreement and opt for a jury trial. Accordingly, the court reversed the judgment of the trial court and remanded.


There was no issue of material fact concerning the plaintiff’s claim of negligence and summary judgment was properly rendered in favor of the defendant.
Murray v. Nabors Well Serv.
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts, Transportation
Texas 8th Court of Appeals
January 24, 2020
08-18-00187-CV
Yvonne T. Rodriguez
Published
The plaintiff appealed the judgment of the trial court which ruled against him in a suit alleging negligence. On appeal, the plaintiff asserted that the defendant was negligent per se for violations of Sections 545.301(a) and 545.303(a) of the Texas Transportation Code. The appellate court noted that there was no legal basis to impute a duty to warn on a bystander who did not create the condition that contributed to the accident, did not exacerbate that condition, did not agree to assume a duty owed by the person who did create the condition, and in no way caused or contributed to causing the accident that forms the basis of the suit. The appellate court found that the defendant did not owe a duty to warn the public about the presence of the driver’s truck or trailer on the shoulder. The appellate court concluded that there was no issue of material fact concerning the plaintiff’s claim of negligence and summary judgment was properly rendered in favor of the defendant. Accordingly, the judgment of the trial court was affirmed.


Since all of the respondent’s claims were premised on an erroneous interpretation of the wife’s will, the petitioners were entitled to judgment as a matter of law.
ConocoPhillips Co. v. Ramirez
Appellate: Civil, Gov't/Administrative, Procedure, Real Property, Wills/Trusts/Probate
The Supreme Court of Texas
January 24, 2020
17-0822
Nathan L. Hecht
Published
The petitioners appealed the judgment of the trial court in a suit where the deceased made a will, which made identical dispositions of his limited surface estate and broader mineral estate but in separate paragraphs. On appeal, the Supreme Court was asked to consider whether a devise of all right, title and interest in and to the first individual referred only to a surface estate by that name as understood by the testatrix and beneficiaries at the time the will was made or also included the mineral estate. The Supreme Court noted that based on its rulings on several motions for summary judgment, and following a bench trial on attorney fees, the trial court signed a final judgment in favor of the first children and the second individual, awarding them each damages, prejudgment interest, a per diem for a span of about 80 days preceding the trial court’s signing of the final judgment, and attorney fees. The Supreme Court found that the evidence established that the wife, who shared ownership of the first individual surface with her son, gave him her interest in the surface for life, but gave her interest in the minerals in the family estate equally to her three children, who already had equal interests. The Supreme Court concluded that because all of the respondent’s claims were premised on an erroneous interpretation of the wife’s will, the petitioners were entitled to judgment as a matter of law. Accordingly, the judgment of the trial court was reversed.


The trial court retained jurisdiction to hold the adjudication hearing and acted within its discretion.
Porras v. State
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
January 24, 2020
05-18-01108-CR
Lana Myers
Published
The defendant appealed the judgment of the trial court which convicted him of the offense of aggravated sexual assault of a child under the age of fourteen. On appeal, the defendant challenged the trial court’s sentence to eighteen years’ imprisonment. The appellate court noted that there was nothing in the statutory provisions that deprived a court of jurisdiction to revoke a defendant’s community supervision simply because the revocation hearing was held after the maximum allowable period of community supervision for the offense had expired. The appellate court found that according to other provisions in the Code of Criminal Procedure, a trial court retained jurisdiction to hold a hearing on a State’s motion and to revoke, continue, or modify community supervision regardless of whether the period of community supervision imposed on the defendant had expired if the attorney representing the State filed a motion to revoke community supervision and a capias was issued for the arrest of the defendant before the expiration of the community supervision period. The appellate court concluded that the trial court accepted the defendant’s plea of true to the allegations in the State’s motion to adjudicate, found the allegations in the motion true, found him guilty, and sentenced him to eighteen years’ imprisonment. The appellate court further concluded that the trial court retained jurisdiction to hold the adjudication hearing and acted within its discretion. Accordingly, the judgment of the trial court was affirmed.


The broad-form submission was not feasible, given the parties’ disagreement as to whether the contract required the plaintiff to prove more than one distinct element to establish the defendant’s liability for the loss.
Zurich Am. Ins. Co. v. Coastal Cargo of Tex., Inc.
Appellate: Civil, Contracts, Corporations, Damages, Insurance, Procedure, Torts
Texas 1st Court of Appeals
January 23, 2020
01-18-01107-CV
Gordon Goodman
Published
The plaintiff appealed the judgment of the trial court which ruled in the defendant’s favor. On appeal, the plaintiff alleged that the piping was damaged when it was in the defendant’s custody and that the risk-of-loss provision in the contract between the parties made the defendant liable for the damaged piping and the plaintiff’s payment. The appellate court noted that the plaintiff’s brief was not a model of precision, but it left no doubt that the plaintiff’s complaint concerned the trial court’s jury instruction as to what it had to prove to show a breach of the risk-of-loss provision. The appellate court found that the provisions identified matters that were within the defendant’s control, but they were not exhaustive. The appellate court concluded that the broad-form submission was not feasible, given the parties’ disagreement as to whether the contract required the plaintiff to prove more than one distinct element to establish the defendant’s liability for the loss. Accordingly, the judgment of the trial court was reversed and remanded.


There were multiple record references to several attempts to deal with the thefts and trespassers at the property.
Meyers v. 8007 Burnet Holdings, LLC
Appellate: Civil, Constitution, Damages, Procedure, Real Property, Torts, Wills/Trusts/Probate
Texas 8th Court of Appeals
January 22, 2020
08-19-00108-CV
Jeff Alley
Published
The Trust appealed the judgment of the trial court which entered a judgment that the Trust take nothing. The appellate court noted that the party explicitly objected to the key term in the question as given and then called the trial court’s attention to its requested question that used the correct date. The appellate court found that given the importance of the date to the statute of repose defense, there was little doubt the trial court would have been aware of the significance of the date. The appellate court further found legally sufficient evidence to support the jury’s verdict, and by necessity did not find that the Trust proved the existence of a public nuisance as a matter of law. The appellate court concluded that there were multiple record references to several attempts to deal with the thefts and trespassers at the property. Accordingly, the judgment of the trial court was affirmed.  


Viewing the evidence in the light most favorable to the verdict, the evidence was legally sufficient to support the defendant’s conviction for aggregate theft in the amount of $100,000 or more.
Patterson v. State
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
January 23, 2020
13-18-00030-CR
Gregory T. Perkes
Published
The defendant appealed the judgment of the trial court which convicted him of capital murder, a first-degree felony, aggregate theft of $100,000 or more but less than $200,000 from a non-profit organization, a first-degree felony, misapplication of fiduciary property valued at $20,000 or more but less than $100,000, a third-degree felony, and attempted theft of $200,000 or more, a second-degree felony. On appeal, the defendant challenged the automatic life sentence for her capital murder conviction. The appellate court noted that the jury had sufficient evidence from which to conclude beyond a reasonable doubt that the defendant intentionally and knowingly solicited, encouraged, directed, aided, or attempted to aid co-defendant in the commission of the victim's murder for remuneration. The appellate court found that it presumed the jury followed the trial court’s instruction in the absence of evidence to the contrary. The appellate court concluded that viewing the evidence in the light most favorable to the verdict, the evidence was legally sufficient to support the defendant’s conviction for aggregate theft in the amount of $100,000 or more. Accordingly, the judgment of the trial court was affirmed.


The trial court did not abuse its discretion in finding that the sibling had been afforded a reasonable opportunity to conduct discovery or was not unfairly prejudiced without additional discovery.
In re Estate of Grogan
Appellate: Civil, Discovery, Employment, Procedure, Real Property, Wills/Trusts/Probate
Texas 6th Court of Appeals
January 23, 2020
06-19-00039-CV
Josh Morriss, III
Published
The petitioners appealed the judgment of the trial court, contesting the summary judgment upholding the probate in the respondent’s favor. The appellate court noted that at best, the evidence showed that the deceased had promised land to others, told others that the respondent was only getting a portion of his estate, and told the neighbor that he had made a new will. The appellate court found that there was, in the record, no evidence of personal knowledge of the existence of a will executed after the previous will, or of any statement from which such inference could be drawn. The appellate court concluded that the trial court did not abuse its discretion in finding that the sibling had been afforded a reasonable opportunity to conduct discovery or was not unfairly prejudiced without additional discovery. Accordingly, the judgment of the trial court was affirmed.


The trial court treated the married couple like any other married couple who separated after having a child, and in doing so, the trial court did not abuse its discretion.
Treto v. Treto
Appellate: Civil, Family, Juvenile, Procedure
Texas 13th Court of Appeals
January 23, 2020
13-18-00219-CV
Gina M. Benavides
Published
The appellant appealed the judgment of the trial court which entered a final divorce decree from the appellee that established the appellant as a parental conservator and ordered her to pay child support. On appeal, the appellant argued that the trial court erred by so ruling when she had no biological relationship to the child. The appellate court noted that the former policy that allowed men who fathered children outside of marriage to escape support of their children was held to violate the equal protection clause. The appellate court found that the Texas policy changed to recognize that all children deserved to be supported by their parents. The appellate court further found that the trial court gave effect to the Texas Family Code presumption that a child born of the marriage was the child of the mother’s spouse pursuant to Sections 160.106 and 160.204(a)(1). The appellate court concluded that the trial court treated the married couple like any other married couple who separated after having a child, and in doing so, the trial court did not abuse its discretion. Accordingly, the judgment of the trial court was affirmed.


The petitioners bore the burden of responding with evidence sufficient to create a fact question regarding their standing to contest the will.
In re Estate of Burns
Appellate: Civil, Gov't/Administrative, Procedure, Real Property, Torts, Wills/Trusts/Probate
Texas 4th Court of Appeals
January 22, 2020
04-19-00284-CV
Sandee Bryan Marion
Published
The petitioners appealed the judgment of the trial court which granted the respondent letters of administration and appointed her administratrix of the deceased’s estate. On appeal, the petitioners sought declaratory judgment. The respondent asserted that because all gifts to the late sister failed due to her predeceasing the deceased, the petitioners were not persons interested in the estate with standing to assert claims in the probate proceeding. The appellate court noted that because the will did not designate an alternate residuary beneficiary, the specific gifts to the late sister and the residuary estate passed to the deceased’s heirs rather than to the beneficiaries of and successors to the late sister’s estate. The appellate court found that there was no language within the four corners of the will compelling a different result, nor was there any relevant ambiguity in the will. The appellate court concluded that the petitioners bore the burden of responding with evidence sufficient to create a fact question regarding their standing to contest the will. Accordingly, the judgment of the trial court was affirmed.


The appellate court found that the portion of the time payment fee challenged by the defendant was facially unconstitutional.
Ovalle v. State
Constitution, Criminal, Evidence, Procedure
Texas 5th Court of Appeals
January 22, 2020
05-19-00136-CR
Amanda L. Reichek
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated assault with a deadly weapon. On appeal, the defendant challenged the trial court’s conviction. The appellate court agreed, and the State did not dispute, that the judgment should be reformed to show the defendant did not plead guilty with the benefit of a plea bargain agreement. The appellate court found that the portion of the time payment fee challenged by the defendant was facially unconstitutional. The appellate court concluded that it must modify the trial court’s judgment to reflect that the defendant entered an open plea of guilty and to delete a portion of the trial court costs. Accordingly, the judgment of the trial court was affirmed.