Earlier this week, the Texas Supreme Court requested full briefing on the merits in Brenda Hatton v. D.R. Horton, Inc., No. 10-0221 (DDB). That was the Court’s first such request of the new term. (As of this writing, it stands alone in the sidebar, as the only such request. That will surely change in the next few weeks.)

The Hatton case concerns the enforceability of arbitration clauses in employee handbooks. In this case, the employer is alleged to have disclaimed any attempt to bind itself by the handbook, and stated that it reserved the right to change those terms unilaterally and without prior notice.

The legal question is whether that forms a binding arbitration agreement, or whether it is illusory. The court of appeals concluded that it was binding.

Although arbitration clauses are sometimes treated differently than more mundane contract provisions, interest in this case seems to follow on last term’s decision in Vanegas v. American Energy Services, No. 07-0520 (DDB), about when a promise made to at-will employees can be enforced, as well as the case that will be heard at oral argument this about what consideration is needed to support a non-compete provision in an employment agreement, Marsh USA, Inc. v. Rex Cook, No. 09-0558 (DDB).

A request for briefing on the merits in Hatton means at least three Justices thought this question was interesting enough to hear more. So stay tuned.

This is the second of three posts about the Texas Supreme Court’s recent decision in Marks v. St. Luke’s Hospital, No. 07-0783 (DDB). The first post puts the case in context and discusses how a rehearing like this fits into the Court’s practice. The third post will discuss “zombie opinions,” the opinions that linger as controlling law after rehearing is granted.

This post is about the holding — or lack of one — in Marks v. St. Luke’s, which was last term’s most divided case. If you’re looking for more background on the case, you should see the first post of this series.

Part 2: Is there a holding here at all?

To be sure, we know who won and lost the case. The judgment of the court of appeals was affirmed (with five votes), which affirms the underlying dismissal of Marks’s claim against the hospital.

That is perhaps everything that matters to the litigants. But what matters to the rest of us, and the jurisprudence, is the holding to be applied in future cases.

This is how the Court broke down:

• The lead opinion was written by Justice Medina, who also announced the judgment of the Court. His opinion was joined in full by Justice Hecht, and in part by Justice Johnson, Justice Wainwright, and Justice Willett.

• Justice Wainwright wrote a concurring opinion

• Justice Johnson also wrote a concurring opinion, joined in full by Justice Willett and in part by Justices Hecht and Wainwright.

• Chief Justice Jefferson wrote an opinion concurring and dissenting opinion, joined by Justice Green, Justice Guzman, and Justice Lehrmann.

• And Justice Guzman also wrote a concurring and dissenting opinion.

Although five Justices joined Justice Medina’s lead opinion, at least in part, this is a case where those pesky “joined in part” descriptions are critical.

The only parts of this opinion with five votes were the description of the procedural history (Part I) and the discussion about remedy (part IV). The substantive heart of the opinion — the part that construed the statute — had only two votes. (( I’m not completely sure how to reconcile Justice Hecht joining this portion of the opinion with him also joining with Justice Johnson’s concurrence. ))

So is this a “majority” opinion at all? Perhaps in name, but not in the main holding. Justice Johnson and Justice Wainwright, in their concurring opinions, and Chief Justice Jefferson in dissent call the lead opinion a “plurality.” (( That nomenclature also doesn’t quite fit, if “plurality” carries its usual meaning of the opinion in favor of the judgment that attracted the most votes. That would be Justice Johnson’s concurring opinion, which had four votes. ))

Read more about Marks and split opinions

This is the first of three posts about the Texas Supreme Court’s recent decision in Marks v. St. Luke’s Hospital, No. 07-0783 (DDB).

The Marks decision was the most divided case from the Texas Supreme Court’s 2009 Term — after being the most divided case from its 2008 Term.

The split was 5-4 each time, with the Court reaching an opposite judgment on rehearing. And the lead opinion, both times, was written by the same Justice.

In gathering my thoughts about the case, I realized that they do not fit neatly in a single post. So I am writing three.

• This first post gives the background and discusses whether this grant of a rehearing fits into the Court’s practice (and why I think the criticism it is receiving for granting rehearing in this case may be misplaced).

• The second post tries to pin down the substantive holding of the case (which proves to be elusive).

• The third post is about “zombie opinions,” the opinions of the Texas Supreme Court that still linger as nominally controlling law between the time rehearing is granted and the time a new opinion is issued.

Let’s get started.

read the first Part of this series

Today is the first day of the Court’s long conference after returning from a short summer break. And it wasted no time issuing a decision in a high-profile case.

Today the Texas Supreme Court denied the request for relief filed by the Presiding Judge of the Texas Court of Criminal Appeals. In re The Honorable Sharon Keller, No. 10-0566 (DDB).

The one-order order list does not elaborate, beyond noting that Justice Hecht was recused.

In re The Honorable Sharon Keller, No. 10-0566

Today, Judge Sharon Keller filed a petition asking the Texas Supreme Court to vacate and expunge the “public warning” she was given by the State Commission on Judicial Conduct.

You can read an annotated copy of her petition for mandamus relief online. It outlines her basic theories, which are:

• the remedy imposed by the Commission was not among those listed in the Texas Constitution;

• any sanction required a vote of seven members, not six;

• some of the members of the Commission were not eligible to serve together because of requirements for geographic diversity; and

• that the Court should issue mandamus relief because there is no adequate appeal available to Judge Keller.

I’m sure more will be written about this case. But not by me tonight. (I have a short-deadline brief due tomorrow.)

O. Lee Tawes III v. Doris Barnes (In re Moose Oil & Gas Co.), No. 08-40840 (5th Cir.) (per curiam)
certified as
O. Lee Tawes III v. Doris Barnes, No. 10-0581 (DDB)

Today, the Fifth Circuit certified a set of questions to the Texas Supreme Court about the construction of some oil & gas pooling agreements.

You can view the Fifth Circuit’s opinion and order certifying these questions (PDF). (Link now fixed!)

From within the governing contracts, the Fifth Circuit identifies this provision (which it calls the Royalty Provision) as “the language principally at issue here”:

“During the period of time Consenting Parties are entitled to receive Non-Consenting Party’s share of production, or the proceeds therefrom, Consenting Parties shall be responsible for the payment of all production, severance, excise, gathering and other taxes, and all royalty, overriding royalty and other burdens applicable to Non-Consenting Party’s share of production ….”

Barnes argues that Tawes, as a Consenting Party, is responsible for “all royalty” owed to her.

As with all respectable oil & gas cases, this one features its share of property transfers, side contracts, and payments disputes. It eventually took a detour through bankruptcy court and up to the Fifth Circuit, and now back to the Texas Supreme Court for a definitive construction of these oil & gas contracts under Texas law.

With that combination of messy facts, unsettled law, and procedural wrinkles, the only surprise is that it didn’t show up as the oil & gas question on this week’s Texas Bar Exam. (There’s always next year.)

In re Deb Shafto, Herb Gonzales, Jr., Edward Lindsay, Art Browning, Christine Morshedi, and the Green Party of Texas, No. 10-0487 (docket)

This afternoon, the Texas Supreme Court issued a stay to the Green Party of Texas, suspending the injunction that was preventing it from certifying candidates for today’s general-election ballot deadline.

The mandamus petition remains pending, and the Texas Supreme Court apparently will accept expedited merits briefs and issue a final decision soon. There is plenty of press coverage; see the docket page above for my most current list.

In re Deb Shafto, Herb Gonzales, Jr., Edward Lindsay, Art Browning, Christine Morshedi, and the Green Party of Texas, No. 10-0487 (docket)

Last week, a district court ruled in favor of the Texas Democratic Party in a challenge to the Green Party’s attempt to get its nominees on the fall statewide ballot. The clock is running; Friday is the deadline to certify candidate names for the ballot.

The mandamus petition is not yet available in electronic form online. But the docket sheet indicates that the Court has already requested a response from the Texas Democratic Party by tomorrow at 3:00 pm.

The Green Party is represented, among others, by former Texas Supreme Court Justice Steven W. Smith (wikipedia), who served from 2002-2004 and also ran for the Court in 1998, 2004, and 2006.

Some more background on the ballot dispute is in this Wall Street Journal link (get it while it’s still there) or this story printed in the Statesman. The core issue seems to be whether corporate funding that supported signature-gathering efforts was permitted under Texas law.