The brief is available for download from a Civil Procedure blog hosted by two (other) Baylor law professors.

The general thrust of Professor Beal’s argument is that the common-law doctrine of claim preclusion does not apply when the forum that heard the first case had limited jurisdiction that would not have included the supposedly barred claim — that, if you couldn’t raise it in the first forum, you can’t be penalized for not having done so.

The professor then weaves that point into a broader argument that common-law causes of action should not be extinguished by agency decisions that were outside the scope of the agency’s subject-matter jurisdiction, unless the Legislature so states:

This Court acknowledged that the legislature did not intend to abolish the common law debt action and it did not intend to vest the TEC/TWC with exclusive, original jurisdiction to force the petitioner to first exhaust his administrative remedies before seeking relief in the district court. (Opinion at page 2-3)….

This writer humbly requests this Court to clarify how a common law cause of action can be merged in an executive agency order when such agency did not have the constitutional or statutory subject matter jurisdiction to hear and resolve such common law claim. Further, this writer humbly requests this Court to clarify how such an executive agency order may thereby bar the right of a Texas citizen to assert a common law cause of action in a constitutional district court when this Court admits that the legislature demonstrated no express or implied intent to abolish the common law cause of action.

[At least as of the date of this posting, the online docket sheet does not yet show that the parties themselves have filed a motion for rehearing in Igal.]

Updated 12/19/2007: According to this article in Texas Lawyer, counsel for Igal does indeed plan to file a motion for rehearing.

Updated 12/21/2007: I understand that counsel for Igal has just filed an unopposed motion to extend his time to seek rehearing until January 17th. The Court routinely grants such motions, and there is no reason to think that it will not in this case.

It will be a white Christmas whenever this flurry of briefs gets filed.

The Court requested full briefing in at least sixteen cases at its conference yesterday. ((That the Court made these requests on one of the conference days shown on its public calendar suggests I should amend my prior post about the Court’s recent tendency to make these decisions outside of the scheduled conferences.))

A list of those cases follows the break. Details about the more noteworthy cases will follow in future postings.
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In an interesting decision today, the Texarkana Court issued a writ of mandamus protecting the anonymity of a blogger who had been critical of a local hospital. The case is In re Does 1-10. The full opinion can be found at this link. [Docket sheet]

While these Doe defendants won the day, the decision is not a landmark in free speech or internet anonymity. Indeed, the court did not even reach the constitutional questions. Its main holdings were that:

• The federal Cable Communications Policy Act of 1984 does permit private parties to make discovery requests against ISPs to reveal the identities of subscribers — a result in line with the federal Seventh Circuit and the Supreme Court of Maine, but opposed to the result reached by two federal district courts. ((I have not independently researched this split; these are the courts cited in the Texarkana Court’s opinion.))
• Even so, these particular plaintiffs failed jump through the right hoops of Texas discovery procedure to actually obtain those identities. For that reason, the discovery order below was clear error.

Under In re Does 1-10, it remains very possible that these hospitals will ultimately uncover the identity of these bloggers. They just must follow the appropriate procedures under Texas law to do so.

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The recent decision in Entergy Gulf States v. Summers has been the subject of much interest lately. It was given featured treatment in the Dallas Morning News article suggesting that the outcomes of the Court’s decisions tended to favor employers. It was singled out by the Legislature in the interim charges to committees. As noted in a previous posting, Entergy is the subject of a pending motion for rehearing. The parties are pitching the case as an epic conflict over the respective role of the courts and the Legislature. I’m not yet convinced — I’ll have more to say about that in a future posting. For now, I’ll share some documents that are not (yet) available on the Court’s website for those of you scoring along at home:

• The amicus curiae brief filed back in February by the Texas Trial Lawyers Association. Certainly in comparison to the recent flurry of attention, this brief reads like a level-headed discussion of how to construe the statute. ((I haven’t yet reached any conclusion about the proper construction of this particular statute. My interest is in the modes of argument being used by the parties — which tactics worked, which didn’t, and why.))
• The Respondent’s motion for rehearing.  This document doesn’t seem to advance any new legal arguments, instead relying on the force of the press reaction to suggest that the Court reconsider. It ends with an admonition from Deuteronomy about the role of public officials.
• An amicus curiae brief from four state legislators that has gotten some press notice. You’ll notice that this is not a very amicable amicus filing. After two very quick pages discussing the Legislature’s intent in the first person (“we intended…”), ((I have not verified whether these members were in the Texas Legislature when the relevant bills were passed. I expect, from experience reviewing similar amicus filings in the past, that some were and some weren’t.)) the brief moves on to a fairly aggressive five-page discussion of how the Court’s opinion ignores the legislature’s intent and is thus null and void. ((The particular rule of statutory construction being discussed — the rule in Texas describing how to treat recodified statutes — will be discussed more in a later post. In short, the legislators seem to be arguing for the view that, if the statute had originally said simply “a person has a claim” and was then changed to say “a person has no claim,” that the plain language of that change in the statute would yield to a separate proviso of the enactment that characterized the change as nonsubstantive. If I understand the argument correctly, they are saying that the words the Court should be construing are not the ones enacted in 1993 but instead the ones from 1989, and thus the printed, codified statute books are themselves incorrect. I’m not sure that’s what they are advocating, but, like I said — worthy of a follow-up post later.))
• Excerpts from an amicus curiae pro se ((That’s a mouthful of Latin!)) brief filed today by Steve Bresnen, who describes himself as a registered lobbyist with 27 years of experience who is not representing any particular client in this matter. His brief was rather voluminous compared to the other fairly short filings in this case — 42 pages — and I did not get a chance to copy it all. I’ve attached the opening portion.

According to Harvey Kronberg, the Texas Legislature may be studying legislation that would address a frequent and contentious question of statutory construction — how to treat the Legislature’s “recodifications” of existing statutes when those recodifications, along the way, make other textual changes to the statute.

From the part of Quorum Report available to mere mortals and non-subscribers:

The decision caused immediate shockwaves among some lawmakers who believed the Court was disregarding legislative intent with its opinion. Labor groups and plaintiffs’ attorneys interpreted the decision as an attempt to further close access to the courts for people injured at work.

The chairman of the House Insurance Committee told QR late last week that he was one of those lawmakers taken surprise by the Court’s decision. And with the Entergy decision [Entergy Gulf States v. Summers (No. 05-0272), see page 7 of the pdf] now listed as an interim charge for his committee, he’d like to take a look at how the Court treats recods in its opinions. ((This was taken from the “Daily Buzz” section of the website on December 3, 2007. I apologize that I am not including a proper hyperlink to the passage, but I do not see an obvious way to do so (and Quorum Report has not yet responded to my email asking what citation they would prefer).))

A motion for rehearing was filed in the Entergy case on November 19, 2007 and remains pending before the Court. [See current docket sheet.]