The Texas Supreme Court’s orders list had some real activity today, denying a large number of pending rehearing requests and petitions for review.
The Court also chose seven cases for oral argument (scheduled for December) and issued a per curiam opinion in a case about premises liability for the government.
No more guidance about Texas Rice Land Partners
Among other orders, the Court denied the motion for rehearing in Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, No. 09-0901, which held that a pipeline company’s eminent domain authority depends on it being able to prove that the pipeline being built would not be operated solely for its own use. On this second motion for rehearing, the pipelines had asked the Court to clarify how much of the public would have to be served to qualify. In particular, they asked about footnote 23 of the March 2012 opinion:
We further note that the pipeline does not serve a public use if it only transports gas for a corporate parent or affiliate. Hence, we see no significance to the fact that Denbury Green Pipeline-Texas, LLC, the owner of the pipeline here, is a wholly owned subsidiary of the company engaged in the tertiary recovery operations. Transporting gas solely for the benefit of a corporate parent or other affiliate is not a public use of the pipeline. Moreover, even if the Legislature included findings and an explicit declaration of public purpose, such material, while undeniably instructive, would not be entitled to insurmountable deference.
Today, the Court declined to narrow that language about “affiliates.” Justice Wainwright, joined by Justice Johnson, issued what is styled as a concurrence but appears to be more of a dissent to the denial of rehearing. (“I, therefore, respectfully disagree and would address the concerns raised on rehearing by Denbury.”). The opinion discusses several ways that the Court could have narrowed the reach of the term “affiliate.” Its concluding footnote observes that, given the public concern reflected in amicus briefs, “[t]his is a matter the Legislature could address.”
Which road conditions trigger government liability
CITY OF DENTON v. RACHEL PAPER, No. 11-0596
The only merits decision issued today was in City of Denton v. Rachel Paper, 11-0596 (per curiam). The key question was whether a defective road condition allegedly caused by the sloppiness of the government’s work qualified as a “special defect” that would trigger heightened responsibility. The Court held that the allegation that the government had caused this condition was irrelevant; what mattered is whether the government knew of the condition.
New petitions chosen for oral argument
With this week’s orders, the Court has already filled up its oral-argument schedule through December.
December 4, 2012
- Enterprise Products Partners, L.P., et al. v. Catherine Mitchell, et al., 11-0366 (Justice Guzman not sitting)
December 5, 2012
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Jose L. Elizondo and Guillermina Elizondo v. Ronald D. Krist, The Krist Law Firm, P.C., Kevin D. Krist and William T. Wells, 11-0438 (Justice Hecht not sitting)
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Christus Health Gulf Coast, et al. v. Aetna, Inc. and Aetna Health, Inc., 11-0483
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Joseph E. Hancock v. Easwaran P. Variyam, 11-0772