Texas Supreme Court Orders and Opinions (6/19/15 and 6/26/15)

Posted by Rich PhillipsThis post will cover the Texas Supreme Court’s orders and opinions both from last Friday and today. As of today, for the first time since they started keeping records, the Court has decided every case that has been argued. There will be no cases carried over to the next term.(Apologies for the length of the post. There are 11 opinions to summarize and many of them have concurrences or dissents.)June 19, 2015 OrdersLast Friday, the Court issued three opinions, granted review in one case, and accepted a certified question from the Fifth Circuit. Access the full order list here.OpinionsThe Court issued the following opinions:No. 11-0114, State of Texas v. Naylor and No. 11-0222, In re State of Texas – These consolidated cases arose from a suit seeking divorce in a same-sex marriage performed in Massachusetts. After the trial court orally granted the divorce, the State attempted to intervene in the proceedings to argue that the court lacked jurisdiction. The trial court struck the State’s intervention and the State appealed and sought mandamus relief. In an opinion by Justice Brown (joined by Chief Justice Hecht and Justices Green, Johnson, and Boyd), the Court found that the State lacked standing to appeal the divorce judgment because the State’s intervention came too late. Justice Boyd delivered a concurring opinion to emphasize that the State is not bound by the divorce decree. Justice Willett delivered a dissenting opinion (joined by Justices Guzman and Devine). Justice Willett would have held that the equities weighed in favor of letting the State intervene post-judgment and that the Court can address the merits of the State’s arguments. Justice Willett did not comment on those merits. Justice Devine issued a separate dissenting opinion. Justice Devine would have held that the State should be allowed to intervene, that the trial court lacked jurisdiction to grant the divorce, and that the state’s ban on same-sex marriage does not violate the federal constitution. Justice Lehrmann did not participate in the case. (The Court also dismissed the other same-sex divorce case, No. 11-0024, In the Matter of the Marriage of J.B. and H.B. as moot because one of the parties has died).No. 12-1007, The Boeing Company v. Paxton – This case arises from a dispute about the reach of the Texas Public Information Act. The Boeing Company entered into a contract with Port Authority of San Antonio to lease space on the former Kelly Air Force Base to operate a commercial-refit facility. After Boeing had been using the space for several years, a former Boeing employee filed a Public Information Act request with the City seeking various documents, including the lease between Boeing and the port authority. Boeing objected that the financial terms of the lease were confidential and that its competitors could use that information to obtain an advantage. In an opinion by Justice Devine (joined by Chief Justice Hecht and Justices Green, Willett, Guzman, Lehrmann, and Brown, the Court held that the information fell within an exception to the Public Information Act for information that is competitively sensitive and will give an advantage to competitors. Justice Boyd dissented. He agreed that the exception for competitively sensitive information could be asserted by persons who are not governmental bodies. But he would have held that Boeing did not conclusively establish that the contract information fell within the exception. Justice Johnson did not participate in the case.No. 13-0947, Suarez v. City of Texas City – This interlocutory appeal arose from a premises-liability suit against the City of Texas City. The plaintiff asserted that the City was liable for the drowning death of the plaintiff’s three family members at a man-made beach. The City filed a plea to the jurisdiction, and the plaintiff argued that immunity was waived under the Texas Tort Claims Act. In a unanimous opinion by Justice Guzman, the Court found that there was no evidence that Texas City was grossly negligent. Therefore, the Court held that the plaintiff could not invoke the immunity waiver in the Tort Claims Act.GrantsThe Court granted the petition in No. 14-0379, Campbell v. Wilder. In the case, indigent parties challenge the Tarrant County District Clerk’s practice of sending collection notices demanding payment of court costs by parties who are indigent under Rule 145. The court of appeals held that only the court that issued the underlying judgments has jurisdiction over a dispute regarding costs. The petitioners argue that the district court in this case has jurisdiction to enjoin the clerk’s practice.The Court also accepted a certified question from the Fifth Circuit in No. 15-0437, Garofolo v. Ocwen Loan Servicing, L.L.C. The issue relates to the home-equity loan provision of the Texas Constitution. The question is whether a lender forfeits principal and interest where the loan agreement incorporates the protections required by the constitution but the lender fails to return the cancelled note and release of lien upon full payment within 60 days of notice of its failure to comply. A second question is whether (if the answer to the first question is “no”) forfeiture can be granted as a breach-of-contract remedy where the lender files the release of lien but fails to send the cancelled note and release of lien.June 26, 2015 OrdersThis morning, the Court issued seven opinions. The Court did not grant any new petitions for review. Access the full order list here.OpinionsNo. 12-0657, Patel v. Texas Department of Licensing and Regulation – This case involves a challenge to the Department of Licensing and Regulation’s regulation the practice of eyebrow threading as “cosmetology.” In an opinion by Justice Johnson (joined by Justices Green, Willett, Lerhmann, and Devine), the Court held that regulating eyebrow threading as cosmetology was unconstitutional. The Court clarified the operation of the “due course of law” provision of the Texas Constitution. There is a presumption that laws are constitutional. To overcome that presumption, a party asserting a challenge under the due-course-of-law clause must show either that “(1) the statute’s purpose could not arguably be rationally related to a legitimate governmental interest; or (2) when considered as a whole, the statute’s actual, real-world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the governmental interest.” Justice Willett issued a concurring opinion (joined by Justices Lehrmann and Devine). Justice Boyd issued a separate concurrence. And Chief Justice Hecht issued a dissent (joined by Justices Guzman and Brown). Finally, Justice Guzman issued a separate dissent.No. 13-0745, Greater Houston Partnership v. Paxton – This dispute arises from a request for the records of the Greater Houston Partnership. The primary issue is whether the Greater Houston Partnership is a “governmental body” for the purposes of the Texas Public Information Act. Under that Act, an entity is a “governmental body” if it “is supported in whole or in part by public funds.” In an opinion by Justice Guzman (joined by Chief Justice Hecht and Justices Green, Lehrmann, Devine, and Brown), the Court construed “supported” to mean “sustained.” That is, “the term properly includes only those entities that could not perform similar services without public funds.” Justice Boyd filed a dissenting opinion (joined by Justices Johnson and Willett). The dissenters would have adopted a broader meaning of “supported.”No. 13-0861, Cantey Hanger, LLP v. Byrd – This case addresses attorneys’ immunity from suits by non-clients. After the conclusion of a divorce proceeding, one of the parties sued the other party’s counsel for fraud. In an opinion by Justice Lehrmann (joined by Justices Guzman, Boyd, Devine, and Brown), the Court held that preparing a bill of sale to facilitate transfer of property awarded in a divorce decree fell within the scope of the attorney’s immunity for actions taken in connection with representing a client in litigation. Justice Green filed a dissenting opinion (joined by Chief Justice Hecht and Justices Johnson and Willett). The dissenters would have held that the law firm did not conclusively establish that the conduct was taken “in litigation.”No. 13-0867, Beeman v. Livingston – This case challenges the lack of accommodations for deaf inmates by the Texas Department of Criminal Justice. They sued the executive director of the Texas Department of Criminal Justice. To overcome sovereign immunity, the plaintiffs asserted jurisdiction based on their contention that the executive director had acted ultra vires in refusing to comply with the Human Resources Code’s accommodation requirements. In a unanimous opinion by Justice Johnson, the Court held that the Texas Human Resources Code does not apply to prisons because they are not “public facilities.” Because the Human Resources Code does not apply to prisons, the director could not have acted ultra vires in refusing to apply it. Therefore, the Court found that there was no jurisdiction over the inmates’ suit.No. 13-1026, Royston, Rayzor, Vickery & Williams, LLP v. Lopez & No. 14-0109, In re Royston, Rayzor, Vickery & Williams, LLP – The Petitioner law firm seeks to enforce an arbitration agreement contained in its engagement agreement with its former client. The respondent client contends that the law firm had an ethical obligation to explain the effect of the arbitration provision and that the provision is illusory and unconscionable. In a unanimous opinion by Justice Johnson, the Court held that the client did not show that the provision is substantively unconscionable or prove any other defense to arbitration. Justice Guzman filed a concurring opinion (joined by Justices Lehrmann and Devine). The concurrence urges that new disciplinary rules are needed to more clearly and specifically address attorneys’ obligations to explain to their clients the effect of arbitration provisions included in the engagement agreement.No. 14-0346, Cosgrove v. Cade – The primary issue in this case is whether the discovery rule delays limitations on a suit to reform a deed based on mutual mistake. In an opinion by Justice Willett (joined by Chief Justice Hecht and Justices Green, Lehrmann, and Brown), the Court held that obvious and material omissions from a deed are not inherently undiscoverable, and therefore the discovery rule cannot apply. The Court also held that recording a deed under Property Code section 13.002 provides all people (including the grantor) with notice of the deed’s contents. In short, “[a] grantor who signs an unambiguous deed is presumed as a matter of law to have immediate knowledge of material omissions.” Justice Boyd (joined by Justices Johnson, Guzman, and Devine) dissented in part. The dissenters agreed that the suit to reform the deed is barred by limitations. But they would have held that the separate claim for breach of the closing agreement was not barred.No. 14-0465, McGinnes Industrial Maintenance Corp. v. The Phoenix Insurance Company – The Fifth Circuit certified a question regarding insurance coverage. The issue is whether certain actions by the EPA constitute a “suit” within the meaning of McGinnes’s commercial general liability policy. In an opinion by Chief Justice Hecht (joined by Justices Green, Willett, Devine, and Brown), the Court held that the EPA proceedings constituted a suit for purposes of the insurance policy. Justice Boyd filed a dissenting opinion (joined by Justices Johnson, Guzman, and Lehrmann). The dissenters argued that expanding the meaning of “suit” to include the EPA’s conduct improperly re-wrote the terms of the insurance contract.