May 25, 2007 - Court Strikes Petition in Property Tax Appeal

The Texas Supreme Court denied six petitions for review this Friday and struck one. It did not grant any. No opinions were issued.

The Court struck the petition for review in a property tax appeal from Houston, in which the Fourteenth Court of Appeal dismissed for lack of jurisdiction based on the exclusive remedy provision of the property tax statute. The case was assigned Supreme Court Cause No. 07‑0390
Opinion below: 1615 Corporation, Lance Dreyer and S.R. Dreyer v. Houston Independent School District (HISD), City of Houston, and Harris County, No. 14‑04‑00859‑CV, ___ SW3d ___, Nov. 30, 2006) (op. on reh'g)

Frozen Embryo Case in Limbo

The Texas Supreme Court granted yet another extension of time for briefing in Roman v. Roman, 193 S.W.3d 40 (Tex. App.—Houston [1st Dist.] 2006, pet. filed), in which the state's highest court for civil appeals is asked to decide the validity and enforceability of a frozen embryo agreement between former spouses. The case is starting to attract national media attention, and may yet reach the U. S. Supreme Court on the constitutional reproductive rights issues that courts have so far skirted.

May 18, 2007 Supreme Court Activity

The Texas Supreme Court did not release any opinions this Friday. It denied nine petitions for review and three requests for mandamus relief, without comment.

One of the rejected appeals involves a civil complaint about a panhandling arrest in Houston, which was dismissed on sovereign immunity grounds by the Fourteenth Court of Appeals. See Cronen v. City of Houston (Tex.App.- Houston [14th Dist.] Sep. 5, 2006, pet. denied)(Opinion by John S. Anderson). The Plaintiff had brought common law claims of wrongful arrest and imprisonment, rather than asserting a federal constitutional claim under Section 1983. The panel held that the wrongful arrest and imprisonment claims were barred by the intentional tort exclusion of the Texas Tort Claims Act.

Frozen Embryo Appeal On Its Way to the Supreme Court

In other supreme court news, a further motion for extension of time was filed in Cause No. 06-0554, the frozen embryo case from Houston, which is bound to yield a noteworthy decision if the Supremes agree to hear it. Randy Roman v. Augusta Roman, 193 S.W.3d 40 (Tex. App.—Houston [1st Dist.] 2006, pet. filed)(former spouses' in vitro fertilization agreement providing that the couple's fertilized eggs be discarded in the event of divorce found enforceable; family court judge's award of eggs to the wife reversed as error). Pending under No. 06-0554).

May 11, 2007 - Texas Supreme Court Issues Another Opinion in Dram Shop Act Case

F.F.P. Operating Partners v. Duenez, No. 02-0381 (Tex. May 11, 2007)(subst. op. by Wainwright)(November 3, 2006 opinion withdrawn)

Dram Shop Act: 2006 Duenez Opinion Withdrawn and Replaced With a New One

The Texas Supreme Court substituted its most recent opinion in F.F.P. Operation Partners v. Duenez with a new one today. The Court had granted review in 2002, and revisited the issues in the case several times on multiple and successive motions for rehearing.

Justice Wainwright wrote the opinion for the court, joined by Justice Hecht, Justice Brister, Justice Medina, Justice Green, Justice Johnson, and Justice Willett.
Chief Justice Wallace B. Jefferson dissented, as did Justice Harriet O'Neill.

The Court did not hand down any other opinions on May 11, 2007. In issuing its weekly orders, the Court announced the denial of six petitions for review. It did not grant any.

May 4, 2007 Texas Supreme Court Opinions

The Texas Supreme Court issued three per curiam opinions and three signed opinions today.

In Re Bexar County Criminal DA's Office, No. 05-0613 (Tex. May 4, 2007)(Willett)(mandamus) (testimonial privileges, work-product privilege)
Justice Willett issued a second concurring opinion. Justice Johnson dissented, joined by Chief Justice Jefferson and Justice Medina. Justice Green did not participate.

The Court characterizes the issue presented in this mandamus proceeding as one of first impression: Whether work product privilege protects prosecutors from having to testify in a malicious prosecution case when they have already released the prosecution file. The civil suit arose from a protracted feud between neighbors that culminated in a charge of terroristic threat, which was investigated by the DA's Office, and ultimately dropped. The trial court granted the DA's motion to quash and for protective order. The court of appeals disagreed and ordered that the trial court withdraw its order. On petition for mandamus relief, the Supreme Court, in an opinion written by Justice Don R. Willett, sides with the DA, and orders the trial court's order to quash the witness subpoenas reinstated. The Court holds that direct testimony by the prosecutor is not required to prove causation and malice in malicious prosecution suits, and that the DA did not waive work-product privilege for live testimony and exposure of mental processes of its investigators by producing the documents in its file. The Court suggests that the plaintiff has enough evidence to prove his case by alternative means, and that exceptions to the hearsay rule may also be available.

State of Texas v. Fidelity and Deposit Co. of Maryland, No. 04-0180 (Tex. May 4, 2007)(per curiam)(sovereign immunity case; waiver by filing suit)

In this construction dispute the Court adds finishing touches to its holding in Reata Construction v. City of Dallas, a new version of which was handed down last year following withdrawal of its original opinion and a long hiatus and corresponding period of suspense on the part of court watchers and the appellate bar. The Court, without dissent, holds that a state agency (here TxDoT) waives its sovereign immunity to counterclaims arising from the same underlying facts by suing a private party for breach of contract or indemnification. Utilization and exhaustion of the administrative dispute resolution process was not required here because the statute in effect at the time did not cover the type of construction project at issue, and the subsequent legislative amendment only had prospective effect.

City of San Antonio v. Ytuarte, No. 05-0991 (Tex. May 4, 2007)(per curiam)(official immunity)

This case stems from hot pursuit by police of a suspect fleeing in a stolen car, and injury to a bystander, who then brought suit against those involved in the chase. Supreme Court chides court of appeals for not engaging in the proper analysis of the officer's official immunity defense, and the summary judgment evidence on the issue of good faith. Resolving the appeal per curiam, the Court renders judgment that police officer acted in good faith, and is thus immune to liability. Case dismissed.

Seagull Energy v. Railroad Commission of Texas, No. 03-0364 (Tex. May 4, 2007)(Medina)(government entities, agency authority)

This case involves a challenge by Seagull Energy to the Railroad Commission's action with respect to one of its mineral leases. The Court holds that the Commission did not act arbitraily or exceed the scope of its authority in the regulation of drilling and production from commingled oil/gas deposits when it denied an exception to one of its rules.

Equistar Chemicals v. Dresser-Rand Co., No. 04-0121 (Tex. May 4, 2007)(Johnson) (jury)

In this suit stemming from the failure of commercial equipment the Supreme Court disagrees with the court of appeals that error in the instruction and charge to the jury as to the economic loss rule and measure of damages was properly preserved.

Young v. Qualls, No. 05-1091 (Tex. May 4, 2007)(per curiam)(attorney's fees)

In the case, the appellate court reduced the damages the jury had awarded in the court below. The Supremes remand to the trial court for a redetermination of the proper amount of attorney's fees in light of diminished results produced by counsel for the prevailing party.

Also see 2007 Texas Supreme Court Cases 2007 Texas Supreme Court Per Curiam Opinions