The headliners from today’s orders lists were the two denials of rehearing in previously argued cases. In both, the Court issued new opinions that addressed concerns that amicus groups raised on rehearing.

If you advise amicus groups, this is an interesting study of the power, and limits, of having outside groups weigh in on rehearing.

A particular contrast between the two is the Court’s approach to hypothetical future scenarios. In Finance Commission, the Court entertained the questions raised on rehearing and offered clarifying thoughts about how its holding applied to future scenarios. In Neely, the Court noted a question raised by amicus media groups but, as the facts before it did not raise the precise scenario, “[w]e thus, as we must, leave open the question.”

The contrast here could reflect the procedural difference between what was (effectively) a prospective rules challenge in Finance Commission and a narrow summary-judgment appeal about one person’s concrete claim in Neely.

Opinions

Added clarity about the future of home-equity lending

This case applied the Texas Constitution’s unique and very detailed protections of home-equity lending to a set of Finance Commission rules that were challenged by lenders and borrowers, coming from different directions. I wrote a substantive overview of the opinion last summer.

Today, the Court issued a supplemental opinion that addresses questions raised by various amici and the lenders about how the Court’s guidance will apply to future loans.

The two major points were:

• The Court clarified a substantive footnote in its original opinion distinguishing “front-end fees” from “interest paid in time.” The lenders and amici asked what happens to interest paid at the front-end rather than over time, such as “per diem interest” or “discount points.” The Court agreed that both of these categories are still “interest” under its definition and, therefore, not subject to the strict 3% cap on fees.

• The Court reiterated that the the power of attorney often signed to facilitate closing is a part of the process that must be executed in a formal location (at the lender’s office, a title company, or an attorney’s office). Imposing that formality was the intent behind requiring that closing documents be signed in such a location, and balancing that consumer inconvenience against the gain in consumer protection was up to those who drafted the provision.

No(t yet any) defamation immunity for third-party allegations

BYRON D. NEELY, INDIVIDUALLY, AND BYRON D. NEELY, M.D., P.A. v. NANCI WILSON, CBS STATIONS GROUP OF TEXAS, L.P., D/B/A KEYE-TV AND VIACOM, INC., No. 11-0228

Opinion
^*Corrected Opinion

Dissenting

Dissenting

In June, the Court’s original 5-3 decision in the Neely case led to protests that it was not doing enough to protect journalists who report on ongoing investigations. Media groups, as amicus, argued that a robust “third-party allegation rule” was needed.

A motion for rehearing was filed, along with two more amicus briefs. Today, the Court denied rehearing, but issued two new opinions — a corrected majority opinion and a new dissent from denial of rehearing by Justice Lehrmann.¹

The corrected opinion has a number of textual edits, but the substantive changes center on new footnote 3. The Court first notes that it has not, yet, reached the question of whether a media defendant would be protected if it made a perfectly accurate report about a third-party investigation. But then it goes on to explain why this is not the case for such a pronouncement:

We conclude there is a fact issue as to the truth or falsity of the gist of the media defendant’ broadcast indicating the physician was disciplined for operating on patients while taking dangerous drugs or controlled substances. Importantly, this fact issue as to truth is likewise a fact issue as to accuracy. Though the media defendants advocate for accuracy as the test for truthfulness of the gist, given our holding concerning the gist, such a rule would not shield the media defendants here. We thus, as we must, leave open the question of whether a broadcast whose gist is merely that allegations were made is substantially true if the allegations were accurately repeated. See Heckman v. Williamson Cnty., 369 S.W.3d 137, 147 (Tex. 2012) (discussing prohibition on rendering advisory opinions).

Because announcing a new rule of law would not actually affect these claims, the Court stated that it “must[] leave open the question.”

One’s feeling about the modal auxiliary verb might depend on philosophy or temperament. But the Court certainly can, when it wishes, wait to decide thorny questions until a case presents those facts squarely enough.