Earlier this week, I saw a blog post over at Reverse and Render, an appellate blog focused on the Dallas Court of appeals, titled “Laser Hair Care Removal Is Not a Health Care Liability Claim”. Knowing that the scope of the health-care-liability statute is a hot-button issue up at the Texas Supreme Court, I decided to read on.

The post talks about Bioderm Skin Care, LLC v. Sok, No. 10-05-00044-CV (Tex. App.—Dallas Jun. 28, 2011). In that case, the Dallas Court sided with the Fort Worth Court and the Corpus Christi–Edinburg Court in concluding that Texas’s health-care-liability reform statute did not include claims related to laser hair removal. (( Here’s a link if you’re really wanting to read more about laser hair removal. )) The opinion noted that the opposite result had been reached by the Fourteenth Court and the Amarillo Court.

With that in mind, the blog post concludes:

Given the conflict between the intermediate courts of appeals, this case would seem to be a likely candidate for review by the Texas Supreme Court.

After doing a little poking around in the Court’s docket, it looks like the Court is one step ahead. It turns out, one of the cases cited favorably by the Dallas Court (Ghazali v. Brown, out of Fort Worth) is already the subject of a petition for review — and asks about the question of laser hair removal. The Court granted that petition last spring and has just set it for the first date on the fall argument calendar, September 13, 2011. Ghazali v. Brown, No. 10-0232.

If the Bioderm Skin Care case makes it to the Texas Supreme Court, it will almost certainly spend some time in the “hold” pile as we await the outcome of Ghazali.

The Texas Supreme Court recently requested full briefing in Andrade v. Venable, No. 11-0008, in which a voter challenges how straight-ticket voting is conducted in Texas.

Voter standing: Hey, didn’t the Court just hear a case about this?

Well, yes it did. On July 1st, the Texas Supreme Court decided Andrade v. NAACP of Austin, No. 09-0420, a challenge to Travis County’s procedures for handling a recount using electronic voting machines. Over the objections of the Secretary of State, the Court concluded that the voters who brought an equal-protection claim against those procedures did have sufficient standing. (I wrote it up here.) (( The voters ultimately lost that claim on substantive grounds. The Court concluded that the government’s decision fell within the bounds of reasonableness and, thus, did not violate equal protection. ))

With that opinion issued, the Court moves forward in this case

On the same day it announced NAACP of Austin, the Court referred the Venable case to the State Bar’s pro bono committee to see if an appellate counsel could be found for Mr. Venable (who has been representing himself). (( The Court often issues briefing requests or similar orders on the same day it decides a related case. The briefs can then focus on the questions raised, or left open, by the Court’s new opinion. )) On July 13th, the Court requested full briefing on the merits.

The standing question here

Venable challenges the use of straight-ticket ballots in Dallas County, claiming that it violates various provisions of the Texas Election Code. He claims “taxpayer standing” to bring this challenge — alleging that public funds were used to collect information about each candidate’s party affiliation and to print straight-ticket ballots, in contravention of state law.

The defendants (a Dallas County election official and the Secretary of State) challenged whether Venable had standing. They filed a plea to the jurisdiction to challenge standing, on which the trial court held a hearing. Venable came forward with some evidence showing the Dallas County budgets. The defendants did not offer their own evidence, but rather claimed that Venable had not introduced enough evidence to carry his burden to establish standing. The trial court agreed with the defendants, granted the plea, and dismissed.

Venable took his own appeal to the Dallas Court of Appeals, which agreed with him. The Dallas Court focused on the standards for a plea to the jurisdiction, concluding that once Venable had introduced evidence to support his view, the defendants then had the burden to present contrary evidence.

Like NAACP of Austin, might this also turn into a case about immunity rather than standing?

The real fight in this case might turn out to be about a subtle procedural point rather than taxpayer standing.

That’s because Dallas County took an interesting gambit. It apparently refused to put on evidence about its own expenditures. Instead, it waited for Venable to offer what evidence he had been able to gather about the County’s expenditures — and then claimed that he had failed to meet his burden of proof:

[The Dallas County defendant] Sherbet did not attach any evidence to his plea to the jurisdiction or offer any evidence during the hearing. Instead, he merely provided argument. During the hearing, Sherbet argued, without offering evidence, that there is “no expenditure involved” because the majority of voting in Dallas County occurs on electronic voting systems, and in the event that there are printing costs, the cost of the ballot is not affected by the inclusion of a straight-party voting option or the identification of the candidates’ political party affiliation. The trial court specifically asked Sherbet’s counsel if there was any evidence to support these arguments. She responded that there is no evidence of an expenditure and it is Venable’s burden to prove that he is a taxpayer and the funds are expended on the alleged illegal activity.

The court of appeals was not impressed. It disagreed with Dallas County’s (and the trial court’s) legal conclusions about how to evaluate the burden of proof here. In particular, it distinguished Williams v. Lara, 52 S.W.3d 171 (Tex. 2001), a which also involved taxpayer standing, because this was a plea to the jurisdiction.

That distinction is the procedural question that might ultimately decide this case. How much evidence must a plaintiff put forward to survive a plea to the jurisdiction on taxpayer standing? Is what the defendants filed here the jurisdiction world’s equivalent of a “no evidence” summary-judgment motion, where offering at least some evidence lets a plaintiff survive?

Stay tuned to see how these arguments develop.

Texas Department of Public Safety v. Cox Texas Newspapers, L.P., No. 09-0530 (Tex. July 1, 2011) (majority) (concurrence)

A few days ago, I saw this story in the Texas Tribune about a new open-records request about Governor Perry’s traveling security detail. The gist of the Tribune story was that DPS had actually destroyed older records, including all records for fiscal year 2007. (From the story: “Those records include documents that had been the subject of a controversial court case and previous freedom of information requests from news outlets, officials said.”)

This piqued my curiosity because — if those records had, indeed, already been destroyed — then the agency’s big win in the Texas Supreme Court just a few weeks ago might have been in a moot controversy. I wouldn’t want to be the state lawyer who had to explain that one, either to the Supreme Court (if this revelation led to a rehearing motion) or to the trial court on remand.

Now, the Tribune reports that it has been given a clarification:

While accounting records are indeed gone, the agency said Monday that it had erroneously described the extent of the records destruction. The department now says that any records that had been the subject of a lawsuit brought by newspapers trying to get more information about the expenses had been preserved.

That makes much more sense to me, given how open-records requests work. When an agency objects to a request, they are (so far as I understand) supposed to forward the documents to the Attorney General. It would be quite unusual for records in the hands of the AG to be destroyed while litigation is ongoing.

So, the jurisprudential crisis seems to be avoided. The open-records crisis? That’s now for the trial court to sort out.

Evanston Insurance Co. v. Legacy of Life, Inc., No. 11-0519 DB

The Fifth Circuit has sent a certified question to the Texas Supreme Court asking it, once again, to construe an insurance policy under Texas law.

The insurance policy covered Legacy of Life, which specialized in organ donations. Here is how the Fifth Circuit’s order (PDF) describes the facts of the underlying case:

In that underlying lawsuit, plaintiff Debra Alvarez alleged that in December 2006 while her mother, Alicia Garza, was terminally ill, she consented to Legacy’s harvesting some of her mother’s organs and tissues (including corneas, skin, bone, and arterial tissue) after her mother’s death. Ms. Alvarez alleges that she consented to the harvesting because Legacy, a non-profit corporation, represented to her that the harvested tissues would be distributed on a nonprofit basis, and that, contrary to these representations, Legacy instead transferred the tissues to a for-profit company, which sold the tissues to hospitals at a profit.

The opinion notes that the plaintiff in that lawsuit, Alvarez, did not herself suffer a physical injury.

That fact becomes central to how the Fifth Circuit frames the certified questions, which ask whether the type of injury at issue in this suit falls within the policy’s definition of “personal injury” or “property damage”:

1. “Does the insurance policy provision for coverage of ‘personal injury,’ defined therein as ‘bodily injury, sickness, or disease including death resulting therefrom sustained by any person,’ include coverage for mental anguish, unrelated to physical damage to or disease of the plaintiff’s body?”

2. “Does the insurance policy provision for coverage of ‘property damage,’ defined therein as ‘physical injury to or destruction of tangible property, including consequential loss of use thereof, or loss of use of tangible property which has not been physically injured or destroyed,’ include coverage for the underlying plaintiff’s loss of use of her deceased mother’s tissues, organs, bones, and body parts?”

The next step in the process is for the Texas Supreme Court to formally accept the question (which seems likely) and to set a briefing schedule for the parties. Depending on the briefing schedule, this case might be set for oral argument around November or December.

With today’s orders list, the Texas Supreme Court decided eleven pending cases.

Here’s an overview:

The Court recognizes a “personal safety” exemption to disclosure under the Public Information Act

Texas Department of Public Safety v. Cox Texas Newspapers, L.P. and Hearst Newspapers, L.L.C., No. 09-0530 (DB). This is the open-records case about the travel records for the Governor’s security detail. (( Going forward, this particular answer might be found in statute. ))

The Court divided 5-2 on this question, with a majority concluding that there is a common-law right against having this information disclosed if it threatens a person’s personal safety. Chief Justice Jefferson wrote for the majority:

But information does not exist in a vacuum. When disclosure carries with it a serious risk of bodily harm, we cannot ignore those consequences when deciding whether common law protections apply. … Our common law protects individuals from physical harm, and, consistent with the PIA, that protection extends to the disclosure of information that substantially threatens such harm.

The opinion acknowledges that it is expanding the common-law understanding of what information is private, and it therefore remands for the trial court to apply the new law.

Justice Wainwright delivered a concurring opinion, in which Justice Johnson joined. The concurrence disagreed with expanding the common-law here, noting that personal safety “is a sound policy argument in drafting legislation. … But the policy decision of how to satisfy that objective is not ours. The Legislature has made nondisclosure of the core public information at issue dependent on it being specifically designated confidential by rules or statutes outside of the PIA.”

Note for Court watchers: This is the same 5-2 vote pattern (with the same two recusals) that emerged from Texas Comptroller of Public Accounts v. Attorney General of Texas, No. 08-0172 DB, in which the Court held that public employee birthdates could be withheld over concerns that those individuals might be put in danger of identity theft.

Electronic voting machines: Not a violation of equal protection

Esperanza Andrade v. NAACP of Austin, et al., No. 09-0420 (DB). This was a challenge by a group of voters to Texas’s electronic-voting equipment, which they contended prevented accountability in recounts. The State contended that the voters lacked standing. Chief Justice Jefferson delivered an opinion for the Court, concluding that the voters did have standing to raise this type of equal-protection challenge but that, on this record, the State’s choice to use electronic voting machines was reasonable.

“Actually paid or incurred”: What about when hospitals bill for more than they’re entitled?

Aaron Glenn Haygood v. Margarita Garza de Escabedo, No. 09-0377 (DB). The issue was about the limitation in a recent tort-reform package that restricts recovery for medical expenses to the amount “actually paid or incurred.” By a 7-2 vote, the Court held that this meant the amount a medical provider had a true legal entitlement to be paid — not some inflated amount that they might bill an insurer, expecting a downward adjustment. Justice Hecht wrote the majority opinion. Justice Lehrmann delivered a dissenting opinion, concluding that “one consequence of the Court’s decision is that juries may deliver insupportably divergent results as between those plaintiffs who are insured and those who are not…”

What counts as an expert report under the medical-malpractice statute?

Tyler Scoresby, M.D. v. Catarino Santillan, No. 09-0497 (DB). The medical-malpractice statute provides a 120-day deadline for filing an expert report, but it lets trial courts grant extensions if an inadequate report has been filed. This case is about what it takes to qualify for that extension — what’s the line between a merely inadequate report and something that’s not a report at all?

Justice Hecht, speaking for the majority in a 7-2 case, concluded: “Based on the Act’s text and stated purposes, we hold that a document qualifies as an expert report if it contains a statement of opinion by an individual with expertise indicating that the claim asserted by the plaintiff against the defendant has merit. An individual’s lack of relevant qualifications and an opinion’s inadequacies are deficiencies the plaintiff should be given an opportunity to cure if it is possible to do so. This lenient standard avoids the expense and delay of multiple interlocutory appeals and assures a claimant a fair opportunity to demonstrate that his claim is not frivolous.”

Justice Johnson delivered a dissenting opinion, in which Justice Wainwright joined. Justice Willett joined with the majority and also delivered a concurring opinion.

Administrative proceedings to condemn property as a nuisance do not foreclose later takings actions

City of Dallas v. Heather Stewart, No. 09-0257 (DB). By a 5-4 vote, the Court concluded that an administrative procedure used to condemn someone’s house as a nuisance did not foreclose a later takings claim. The Court reasoned that the “substantial evidence” review that would have been available from that administrative process was insufficient, in constitutional terms, because administrative agencies do not have power to make fact determinations that are bound up into constitutional questions:

As a general matter, we have held that some agency determinations are entitled to preclusive effect in subsequent litigation. See, e.g., Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78 (Tex. 2007) (applying res judicata to orders of the Texas Workforce Commission). Today, we must decide whether the Board’s determination that Stewart’s house was an urban nuisance, and the affirmance of that decision on substantial evidence review, precludes a takings claim based on the demolition of that property. Because substantial evidence review of a nuisance determination resulting in a home’s demolition does not sufficiently protect a person’s rights under Article I, Section 17 of the Texas Constitution, we hold that the determination was not preclusive.

Chief Justice Jefferson wrote the majority opinion. Justice Johnson delivered a dissenting opinion, and Justice Guzman also wrote a dissenting opinion.

When the police take private property, the first line of recourse is not a takings claim

City of Dallas v. VSC, LLC, No. 08-0265 (DB). By a 6-3 vote, the Court held that a towing company whose property was seized by the City of Dallas should have sought relief under a statutory provision of the Code of Criminal Procedure rather than bringing a takings suit against the City. The Court concluded that any problems with that statute could have been litigated in due process terms (challenges against the statute) rather than as takings claims. Justice Wainwright wrote a dissent, contending that the towing company had sufficiently invoked this statute that the Court should not have dismissed the complaint.

Suing over a spider bite in a medical facility requires submission of a medical expert report

Omaha Healthcare Center, LLC v. Wilma Johnson, on behalf of the estate of Classie Mae Reed, No. 08-0231 (DB). By a 7-2 vote, the Court held that a brown-recluse spider bite, suffered while in a nursing home, fell within the scope of the medical-malpractice statute. Justice Johnson wrote for the Court. Justice Lehrmann wrote a dissent. (( Court watchers might note: This was a Rule 59.1 case, which means it was decided without holding oral argument. ))

Open records: SOAH must disclose more records; an attorney suing in his own name cannot recover attorney’s fees if they prevail

Samuel T. Jackson v. State Office of Administrative Hearings, et al., No. 10-0002 (DB). In response to an open-records request, SOAH refused to disclose certain information from license-revocation hearings (where people who were delinquent on child support would lose other professional licenses). Justice Johnson wrote for a unanimous Court, concluding that the records should have been disclosed (with appropriate redactions). But the Court also concluded that Jackson could not recover attorneys fees for winning this suit because, even though he was a licensed attorney, he was suing on his own behalf and thus did not “incur” legal expenses.

When nonlawyers move between firms, disqualification is not always required

In re Guaranty Insurance Services, Inc., No. 10-0364 (per curiam) (DB): “What happens when a law firm’s efforts to screen a conflict fail, permitting a nonlawyer who worked on one side of a case at one firm to work on the other side of the same case at the opposing firm? Here, the trial court disqualified the second firm, reasoning there was a conclusive presumption that the nonlawyer had shared confidential information, despite evidence he had not. A divided court of appeals denied mandamus relief. … [W]e conclude disqualification was not warranted. Further, because the improper disqualification was a clear abuse of discretion for which there is no adequate remedy by appeal, mandamus relief is warranted.”

The Court walked through the screening and conflicts-check procedures used by the firm — and used them as part of the reason why the firm should not have automatically been disqualified:

these additional steps further distinguish this case from others where we have disqualified firms for a nonlawyer’s actual work on both sides of a case. For example, in In re Columbia, the paralegal had similarly performed limited work on both sides of the same case. 320 S.W.3d at 823. But the second law firm did not have any formal screening measures in place and, upon realizing a conflict existed, did not immediately remove the nonlawyer’s access to the case. Id. … Strasburger’s efforts after discovering the conflict parallel and reinforce its thorough attempts to preempt the conflict in the first place.

If you work in law-firm management, this should be a great example of the benefits of having a thorough conflicts-check and screening process in place. Expect to hear about it at your next ethics CLE.

Scope of automobile insurance doesn’t extend to the driver being a disease carrier

Lancer Insurance Co. v. Garcia Holiday Tours, et al., No. 10-0096 (DB). The question was whether a bus company’s automobile-insurance policy covered the risk that a bus driver would spread a communicable disease (here, tuberculosis) to passengers. Justice Medina delivered the opinion of the Court, concluding that this insurance policy did not cover that particular risk.

Another electric-deregulation true-up case

AEP Texas Central Co. v. Public Utility Commission of Texas, et al., No. 08-0634 (DB). This is one of the cases still percolating through the system in which a utility challenge how the electric-deregulation process was handled about a decade ago. Applying its holdings in two recent similar cases, the Court affirmed in part and reversed in part the PUC’s determination, sending the case back down. Justice Willett delivered the opinion of the Court. (( Like the Omaha Healthcare Center case today, this was also a Rule 59.1 case that resulted in a signed decision rather than a per curiam. ))

CMH Homes, et al. v. Adam Perez, No. 10-0688 (Wainwright, J.) (DB)

To challenge a trial court’s arbitration order, can you file an interlocutory appeal or must you file for a writ of mandamus?

It used to be that you had to file both if there was any uncertainty about whether your agreement fell under the Texas statute or the federal statute. Those days are behind us, thanks to a 2009 amendment to Civil Practice and Remedies Code §51.006, which gives Texas appellate courts equal jurisdiction over both kinds of cases.

But CMH Homes shows that some confusion still remained. Read the summary

*Patrick O. Ojo, On Behalf of Himself and All Others Similarly Situated v. Farmers Group, Inc., et al.*, No. 10-0245 ([DB](http://docketdb.com/public/dockets/10-0245))

This was a [certified question from the federal Ninth Circuit](http://www.scotxblog.com/case-notes/ninth-circuit-certifies-a-question-about-texas-insurance-law-to-the-texas-supreme-court/). A Texas statute prohibits insurers from setting rates in a way that discriminates based on race. The narrower question was whether Texas recognizes a “disparate impact” theory that would permit a plaintiff to show that insurance credit scoring was discriminatory by looking at its effect (how people of different races are affected by the policy) rather than having to show direct discrimination that used race as a direct factor. … Show me the good stuff! (The dueling concurrences about judicial philosophy)

With today’s [orders list](http://www.supreme.courts.state.tx.us/historical/2011/may/052711.htm), the Texas Supreme Court decided four pending cases and chose two new cases for oral argument this fall.

Read summaries of this week’s cases and the two new grants