On Wednesday March 28th, the Texas Supreme Court granted a judicial candidate’s request to be restored to the ballot.

The case is In re Rebecca Ramirez Palomo, No. 12-0208, a mandamus petition that is the first elections case of this cycle. The Court granted relief by order, with a notation that the Court’s opinion will be issued at a later time. (( Also notable is that the Court granted relief based solely on the 15-page mandamus petition itself rather than following its practice (in less time-sensitive cases) of requesting full briefing on the merits. ))

The Interim Webb County Democratic Party Chair, Sylvia G. Palumbo, is directed to take all actions necessary under, or required by, the Texas Election Code to certify Rebecca Ramirez Palomo as a candidate for the 341st Judicial District Court and to place her name on the ballot for that office.

The Texas Constitution requires that a judicial candidate for the district court “has been a practicing lawyer or a Judge of a Court in this State, or both combined, for four (4) years next preceding his election.” Tex. Const. art. V, §7. Based on the parties’ briefs (candidate: PDF (13 MB); party official: PDF (15 MB) ), it looks like the main substantive dispute was whether the candidate had continuously practiced law for the previous four years (as required for district court judges). The main procedural dispute was whether the local party official had authority to strike a name from the ballot without stronger evidence.

We’ll find out what arguments persuaded the Court when it issues its opinion.

The Texas Supreme Court did not issue any opinions with today’s orders list.

The Court did issue two preliminary orders related to the El Paso mayor-recall case Tom Brown Ministries v. John F. Cook, No. 12-0193. (previous blog post) After challengers obtained enough signatures to force a recall election, the El Paso Court held that some of the signatures had been gathered in violation of Texas campaign-finance law and that the scheduled recall election should not be held. Today, the Texas Supreme Court denied a request to temporarily “stay” the judgment of the court of appeals (which would have had the effect of re-instituting the recall election). The Court also denied what the docket sheet describes as “respondent’s request for damages.” (( I am guessing that the Respondent (the mayor) included a request for sanctions or other damages in his response to the stay request. The electronic version of his brief is not online. )) The Court has not yet decided the merits of the petition, which remains pending.

With today’s orders list, the Texas Supreme Court requested the views of the Texas Solicitor General in a case about the constitutionality of a Texas law about parental termination.

The Court did not issue any opinions or select new cases for oral argument.

Six-Month Cutoff To Challenge Parental Termination

The Court has invited the Texas Solicitor General to offer views about the merits of In re E.R., No. 11-0282.

The dispute is about a Texas statute that cuts off challenges to a parental-termination order six months after the order is signed — even if the parent was notified only by publication rather than by personal service.

Texas Family Code §161.211(b) provides:

(b) . . . the validity of an order terminating the parental rights of a person who is served by citation by publication is not subject to collateral or direct attack after the sixth month after the date the order was signed.

This challenge was brought by the parent whose rights were terminated. Approximately two years after an order of termination, the parent filed a motion for new trial. The trial court denied the motion. The court of appeals affirmed, concluding that the statute barred any challenge after six months.

In the Texas Supreme Court, the parent argues that the way the court of appeals applied the statute renders it unconstitutional.

The Court heard oral arguments on February 28, 2012.

As it turns out, the only other “CVSG” (call for the views of the solicitor general) on the Texas Supreme Court’s active docket was also argued this same day. That case is In re Stephanie Lee, No. 11-0732, which also involved family-law issues. The issue is when a trial court can look beyond the parties’ mediated-settlement agreement if it disagrees about the best interests of the child.

All the action on this week’s orders list involved motions for rehearing.

The Court granted rehearing of two cases that it had previously declined to review, restoring them to its docket (but not yet granting review or scheduling argument). It also denied rehearing in a high-profile case about limits on the exercise of eminent domain power by private pipelines.

Private pipelines: Eminent domain cannot be used for purely private use

Texas Rice Land Partners Ltd., et al. v. Denbury Green Pipeline-Texas LLC, No. 09-0901 (op. on reh’g) (PDF)

The Court denied rehearing in this case, leaving intact its earlier judgment that a private pipeline had failed to prove its authority to condemn property under provisions of Texas law that lend the State’s eminent-domain authority to certain common carriers. The segment of pipeline at issue was to be used by Denbury Green to transport its own CO₂. The Court adhered to its earlier holding that a permit from the Railroad Commission authorizing the pipeline (after what the opinion calls “checking boxes on a one-page form”) was not conclusive proof of public use.

A new opinion issued on rehearing. Along with some technical changes to the text, its expanded conclusion is (perhaps) a response to critics of the original opinion:

Pipeline development is indisputably important given our State’s fast-growing energy needs, but economic dynamism — and more fundamentally, freedom itself — also demand strong protections for individual property rights. [John] Locke deemed the preservation of property rights “[t]he great and chief end” of government, a view this Court echoed almost 300 years later, calling it “one of the most important purposes of government.” Indeed, our Constitution and laws enshrine landownership as a keystone right, rather than one “relegated to the status of a poor relation.”

A private enterprise cannot acquire unchallengeable condemnation power under Section 111.002(6) merely by checking boxes on a one-page form and self-declaring its common-carrier status. Merely holding oneself out is insufficient under Texas law to thwart judicial review. While neighboring states impose fewer restrictions on the level of public use required for such takings, meaning companies may seize land to build pipelines for their exclusive use, the Texas Legislature enacted a regime more protective of landowners.

The opinion then provides a little guidance to pipeline companies who are trying to invoke the eminent-domain power — have a customer besides yourself:

If a landowner challenges an entity’s common- carrier designation, the company must present reasonable proof of a future customer, thus demonstrating that the pipeline will indeed transport “to or for the public for hire” and is not “limited in [its] use to the wells, stations, plants, and refineries of the owner.”

That phrase “future customer” does not appear in the original opinion. This seems to be the biggest substantive change. The old opinion suggested that the key moment was the time of the permit:

to qualify as a common carrier of CO₂ under Chapter 111, a reasonable probability must exist, at or before the time common-carrier status is challenged, that the pipeline will serve the public (p.13).

The new opinion makes more clear how pipelines can comply with the rule, by having evidence of a future market for its use:

to qualify as a common carrier under Section 111.002(6), a reasonable probability must exist that the pipeline will at some point after construction serve the public (p.14)

The opinion from August is still online here. The Court’s public information officer also emailed out an overview of the changes.

Petitions in which rehearing was granted

Grants of rehearing are rare, so it’s notable that the Court issued two today. Neither of these cases has (yet) been selected for oral argument.

• Commission for Lawyer Discipline v. Schaefer, No. 10-0609. The orders list notes that a motion for sanctions has been denied.

• Lee C. Ritchie, et al. v. Ann Caldwell Rupe, No. 11-0447. This case involves shareholder oppression in a closely-held corporation, which seems to be the specialty of the Dallas Court these days. The petition had (originally) been denied without a response being requested. The grant of rehearing now restores the case to the Court’s docket. The Court has not yet granted review (or even requested merits briefing, which seems likely given the grant of rehearing). (( The Court has sometimes requested a petition response, or even full merits briefing, with the rehearing still pending. )) You can read the Petition or the Response to Motion for Rehearing.

Over at Reverse and Render, Hilaree Casada has written about a new issue in the wake of Haygood v. Escabedo, No. 09-0377.

In Haygood, the Court concluded that Texas law only allowed the recovery of actual medical expenses, not the inflated amount that hospitals might bill insurers expecting it to be reduced. Along the way, it concluded that evidence of this inflated bills was inadmissible as not even probative of the true amount.

One remaining question is whether the trial court can cure Haygood problems (say, inadmissible evidence in the form of inflated bills) by reducing the jury’s damage award to the proper amount. The Amarillo Court concluded, in a divided decision, that reversal was required even though the trial court’s judgment was for the right amount.

Hilaree’s post is here: “41.0105 — post-judgment reduction does not cure error”. The Amarillo Court opinions are here: Majority (Hancock, J.); Concurrence (Pirtie, J.); Dissent (Quinn, C.J.).

With today’s orders list, the Texas Supreme Court issued one long-awaited decision about water rights in Texas. It did not grant any other cases for review.

Edwards Aquifer Authority v. Burrell Day and Joel McDaniel, No.  08-0964 (Hecht, J.).

This was one of the longest-pending cases on the Court’s docket and attracted two dozen amicus filings. It led to a 49-page slip opinion running through complicated administrative and constitutional questions. But the opinion’s opening sums up the new legal holding in two sentences:

We decide in this case whether land ownership includes an interest in groundwater in place that cannot be taken for public use without adequate compensation guaranteed by article I, section 17(a) of the Texas Constitution. We hold that it does.

That sounds simple enough. Texas recognizes a property interest of each landowner in any “groundwater in place” beneath their property.

The district court below had ruled for the aquifer authority, holding that there could be no taking as a matter of law. The court of appeals reversed that summary judgment and ordered a remand for further proceedings. Today, the Supreme Court affirmed the court of appeals’s disposition. These plaintiffs will be allowed to proceed on their takings claim.

Much of the opinion tries to place this rule in context, and in so doing, will set the framework for future water-rights litigation (and legislation) in Texas. [Read more →]

With today’s orders list (earlier post), the Court also chose six cases for oral argument.

February 27, 2012

• Wendell Reeder v. Wood County Energy, LLC; Wood County Oil & Gas, Ltd.; Nelson Operating, Inc.; Dekrfour, Inc.; Bobby Noble; Exzena Oil Corporation; David Fry And Patricia Fry, No. 10-0887. A case about the standard of care required of oilfield operators in relation to the mineral-rights holders.

• Enbridge Pipelines (East Texas) L.P. v. Avinger Timber, LLC, No. 10-0950. A takings case about how the value of the property is measured. How do courts distinguish value that was already present in the property before the taking was announced versus any value added by the added to the property from the project itself?

• In re the Office of the Attorney General, No. 11-0255. In this child support case, the question is whether the contempt remedy is still available when the parent makes payment after an enforcement hearing is noticed but before it is held. The State argues that the statute favors an ongoing punishment for those who did not pay timely before notice rather than the notice offering an additional incentive to submit payment before the hearing.

February 28, 2012

• Susan Combs, Comptroller of Public Accounts of The State of Texas, and Greg Abbott, Attorney General of the State of Texas v. Roark Amusement and Vending, L.P., No. 11-0261. If you’ve been waiting for a case about those coin-operated machines where you try to maneuver a crane arm to grab a small plush toy, this really is your lucky day. Just don’t get too excited: it’s a tax case about whether the owner of a machine gets a refund on the sales tax they paid on the plush toys.

• City Of North Richland Hills, Texas v. Laura Friend, Individually and as personal representative of the estate Of Sarah Friend, deceased and Luther Friend, individually, No. 11-0367. A case about the scope of the Tort Claims Act. Does it immunize government the against a claim that a defibrillator was not provided at a city water park?

Date to be determined

• In re Stephanie Lee, No. 11-0732. The case asks about what discretion a trial court has to refuse to enter a mediated settlement agreement in a family-law case. (earlier post) The Court issued a stay, granting temporary relief. An oral argument date has not been announced.

A recent issue of Texas Lawyer includes the article “Family Law Council Files Rare Amicus Over Mediation Issue”.

The case is In re Stephanie Lee, No. 11-0732. It’s a mandamus challenging a trial court’s decision not to approve a mediated settlement agreement in a custody dispute.

According to the article, this case is the first time in about twenty years that the family law section of the state bar has weighed in with a Texas Supreme Court amicus brief.

The State Bar argues in its amicus brief (PDF) that the statute allowing these mediated settlement agreements limits the trial court’s discretion to second-guess the decisions made about the child’s best interests. The practical concern is that litigants are less likely to choose mediation if they fear that the trial court will simply reject the conclusions.

The State itself (through OSG) filed an amicus brief (PDF) last month taking the opposite view, arguing that the trial court has an overarching duty to look out for the best interest of the child when entering family-law orders.

Hat tip: Disputing