It looks to be a typical conveyor-belt week at the Court. (( It typically only takes the interest of one Justice to keep a petition alive for the next conference. With that in mind, most of the petitions denied during the next several weeks will be petitions that no Justice wanted to hold over for the Court’s big August conference. )) With no conference scheduled, the Court’s only event this week is its regular Friday order list.

This Friday, I expect to be away from the internet, so I suggest checking out Todd Smith’s Texas Appellate Law Blog for any updates.

Articles from the Past Week

• Order List of 7-18-2008. Last week was a pretty quiet week, too.

Restlessness over a long-pending oil and gas case

“Dispute has industry, mineral owners nervous”.

The Fort Worth Business Press takes a closer look at a long-pending oil and gas case out of Corpus Christi, which is apparently causing uncertainty among the companies involved in developing the Barnett Shale.

Here’s the first sentence: “One name above others strikes fear into the hearts of Texas oil and gas operators: Garza, or more specifically, the Supreme Court of Texas case No. 05-0466, Coastal Oil & Gas Corp. … v. Garza Energy Trust, et al.”

This Week’s “We’re Taking It to the Supreme Court!” Case

“Coach Plans To Take Libel Suit to State Supreme Court”.

The dispute concerns a high school football rivalry. After a close game, the losing city’s sports editor had some unkind words about the other side’s coach:

Jacksonville High defensive coordinator Mark Zimmer said he was defamed when the sports editor of the Palestine Herald-Press wrote that the coach had made an “obscene gesture” after a hotly contested game against Palestine in 2006. In the column, sports editor Scott Tyler called Zimmer’s actions the worst display of sportsmanship he’d ever seen.

The court of appeals’s description was much less colorful:


Jacksonville’s postgame celebration was recorded by video cameras. Zimmer turned toward the Palestine sideline, raised his fists to the sides of his head and “abruptly thrust his arms downward to his hips three times while slightly bending his knees,” the ruling said. “Zimmer was yelling with elevated excitement as he motioned.”

Even so, the court of appeals ruled in favor of the newspaper. But perhaps we’ll eventually get to see the videotape to figure out what happened:

“We’re appealing, of course,” said Zimmer’s lawyer, Charles Clark. “We’re taking it to the supreme court to see if they will take a look at it.”

Two legislative races have sparked what sound like twin cases that might wind their way up to the Texas Supreme Court. Both turn on the same provision of Texas law — the prohibition against holding two public offices. And both lawsuits ask how early in a campaign that prohibition attaches to a person who holds a municipal office before seeking state office.

Fort Worth

Earlier this year, three Fort Worth firefighters tried to get Wendy Davis disqualified from the Democratic primary. They argued that Davis had not formally resigned her city council position before filing paperwork to run for state office and thus was ineligible.

The firefighters unsuccessfully sought mandamus from the Texas Supreme Court and from the Fort Worth Court of Appeals. The Fort Worth Court explained in its very brief opinion that the firefighters lacked standing.

Now, Davis’s opponent in fall, incumbent Kim Brimer, has filed his own lawsuit seeking to have Davis’s name removed from the fall ballot.

Coverage: Fort Worth Star-Telegram Dallas Morning News

Midland

The same legal dispute has arisen between Speaker Craddick and his opponent in the fall, Bill Dingus in a state district courtroom in Austin.

This second case should also be familiar to readers of this blog. That’s because a federal suit between the Texas Democratic Party and Texas Republican Party was litigated in district court in Waco. In that lawsuit, the district court ruled that Dingus was ineligible.

Now, Dingus has gone to state court against Texas Democratic Party seeking to establish his own eligibility for the fall. Last Monday, Judge Margaret Cooper ruled for Dingus, declaring him eligible for the fall ballot.

Two judgments, involving two slightly different sets of parties, at two different times, in two different court systems, all turning on one question of state law — about which the facts have arguably changed since the first ruling (since Dingus did not resign his seat on the Midland City Council until after that time).

This strikes me as a pretty good civil procedure exam question. I suppose how good an exam question would depend on what is happening on appeal from that federal district court judgment.

Osler McCarthy has just sent out an email advisory announcing Kennon Peterson as the Court’s new rules attorney. She has been working at Baker Botts since clerking for the Chief Justice in 2004-2005.

The current rules attorney, Jody Hughes, is returning to the Office of the Solicitor General.

I’ll update this post with a link to the Court’s advisory (which has some quotes, a photo, and a little more info) when it shows up on the Court’s website.

Spanking

“Justice of peace has immunity over spankings” from today’s Houston Chronicle.

State District Judge Abel Limas issued the ruling after a one-hour hearing involving Los Fresnos families complaining of spankings in Justice of the Peace Gustavo “Gus” Garza’s courtroom. Limas said they cannot recover damages in a civil suit filed against Garza.

The lawsuit alleges that Garza told a 14-year-old girl’s stepfather that she would be found guilty of a criminal offense and fined $500 for truancy unless the stepfather spanked her in the courtroom. The lawsuit filed by Mary Vasquez and her husband, Daniel Zurita, described the paddle provided by Garza as large and heavy and fashioned from a thick piece of lumber.

“The freedom of decision is part of the judicial system,” said Limas, who presides over the 404th state District Court, the Brownsville Herald reported Friday in an online edition.

Here’s the Brownsville Herald article.

The Onion’s Legal Coverage

That image of a judge demanding to witness corporal punishment in the courtroom is only slightly more dignified than the Onion’s coverage of the Supreme Court’s Baze v. Rees decision, in which it upheld the legality of the method of capital punishment used by most states.

I won’t embed the video here (you can find it on Sophistic Miltonian Serbonian Blog), and it’s not for anyone who would have been offended by George Carlin’s seven dirty words. But what’s striking (to me, as an appellate geek) is how effectively the Onion subverted the very devices that the Court uses to shield the “dignity” of its oral arguments. The dignified courtroom drawings (because the Court prohibits video) were turned into cartoonish grotesques. The written transcript of the argument (which is often all the court releases on argument day) itself becomes a punch line.

Insurance Disclosure Rules

“Texas Supreme Court to decide on lawyer disclosure proposal: Proposed rule would compel lawyers to tell clients whether they have malpractice insurance”, from today’s Austin American-Statesman.

Are there lawyers who currently advertise this as a way to draw clients? Are there clients who choose lawyers based on their malpractice carrier or limits? I’ve just never seen ads of that nature. (Would such ads even be allowed?) If the market doesn’t demand (or even reward) this, does that say anything about the information’s value to the process of choosing lawyers?

Legal malpractice insurers estimate that at least half of all Texas lawyers — and about two-thirds of sole practitioners — don’t have insurance. That leaves clients who been harmed by malpractice without much recourse.

This makes more sense. “At least half of all Texas lawyers” is a bunch of new customers.

The sad news that former Justice James A. Baker has passed away has just been reported by Quorum Report. (Here is coverage from the Houston Chronicle.)

My thoughts are with his family and members of his Court family.

Fort Worth Court Grants Newspapers Access To Sealed Court Records in Settled Sex-Abuse Case

Today’s Fort Worth Star-Telegram has a story titled “Sex abuse records on priest who served in Arlington and Bedford should be released, court says”.

Nguyen v. Dallas Morning News out of the Fort Worth Court. ( docket sheet ).

This is not the usual sex-abuse case — that part of the case was already settled. After that settlement, two local newspapers intervened seeking to have the Diocese’s records (which were at one point considered by the district judge in camera) declared to be court records and unsealed so they can be publicly revealed.

At the hearing, the parties presented
arguments and evidence in the form of newspaper articles and affidavits. The
newspapers and the Doe intervenors argued that the files should be unsealed
because the public was exposed to a continuing threat, the clerics had no right
of privacy in actions of sexual misconduct, and there was a legitimate public
interest in the information. The Diocese, Father Tu, and the other six clerics
asserted that the files should remain sealed because they had personal privacy
rights in the files and that the “voluminous” newspaper articles about the clerics
showed that the public was already aware of the allegations.

The Doe plaintiffs, although they had settled the underlying lawsuit, joined the newspapers in arguing for the release of these materials. In fact, they submitted affidavits recounting their side of the underlying story in some detail. The trial court ruled that the materials should be released.

The court of appeals determined that the documents originally submitted under seal were court records because they were filed with the district court (although sealed at the time) for in camera inspection at the summary-judgment phase. And the court of appeals rejected the reverend’s due process claim (for lack of preservation) and his First Amendment / privacy claim (because it concluded the subject matter was of legitimate public concern).

One wonders if the court of appeals could have reached the same result if the Doe plaintiffs had opposed release (that might have changed the privacy interests at stake). But what if the Doe plaintiffs had been silent, perhaps pursuant to different settlement terms? Interesting questions here about newspapers and the ability of settlements to keep disputes private.

“On the Internet, Nobody Knows You’re a Dog”.

Perhaps not in the court system, either.

There has been a remarkably contentious “dog custody” dispute between a New Orleans resident who lost track a dog (named Jazz) in the chaos following Hurricane Katrina and an Austin resident who adopted a dog around the same time (and named it Hope).

A suit for “conversion” was brought in Hays County. (You don’t see “conversion” suits much these days, but they do permit a court to award possession of property to its rightful owner.)

The trial court heard — and I’m not kidding — mitochondrial DNA evidence from an expert that attempted to link the disputed dog to some of Jazz’s canine relatives. And the trial court also heard veterinary evidence about the types of medical conditions present in the disputed dog (which was an older dog) and whether those were consistent with Jazz’s prior condition and the stress of the Hurricane evacuation.

The trial court didn’t buy it and after a bench trial rendered summary judgment in favor of the Austin resident, keeping the dog as “Hope.” The court of appeals reversed, concluding that the trial court’s conclusion was legally insufficient and thus rendered judgment the other way. The court of appeals concluded that the DNA evidence (among other evidence) was conclusive proof that this dog was “Jazz.”

Justice Henson wrote the opinion of the court. Justice Patterson concurred in judgment only.

Justice Henson’s majority opinion concludes with this footnote, commenting on the legal framework governing pet “custody,” which is actually the same body of property law applicable to any chattel:

We also note the obvious dissonance between the emotional investment at the heart of
the human-pet relationship and the current legal system, which identifies this eleven-year-old cocker
spaniel with chronic health problems as “property,” subject to suit for conversion and identified in
terms of her economic worth. Given the parties’ considerable expenditure in this case, it goes
without saying that Jazz’s significance as a cherished member of Augillard’s family—as well as her
importance to her caretakers of almost three years, Tiffany Madura and Richard Toro—far exceeds
her market value. Thus, while resolving this appeal in accordance with the applicable law governing
ownership of chattel, we recognize that there are important non-economic interests at stake in this
case. As one commentator has remarked,

People do not plan memorial services, or invest in serious medical treatment for their
books or lawnmowers. They don’t plan to pay more in insurance premiums than the
purchase price or replacement cost of the property they seek to protect. Individuals
do not leave money for their bicycles in their wills, or seek visitation arrangements
for their televisions upon the termination of their marriages.

Kathy Hessler, Mediating Animal Law Matters, 2 J. Animal L. & Ethics 21, 28 (2007).

This week’s “We’re taking it to the Supreme Court!” case

The Times Record News of Wichita Falls has an article today titled “Sent back: Court reverses employee pay increase plan”.

It reports that the Fort Worth Court of Appeals has reversed a declaratory judgment “that would have forced the county to adopt a six-year/six-step pay increase plan for employees of the Wichita County Sheriff’s Department.” Wichita County v. Bonnin, No. 02-07-00156-CV (Tex. App.—Fort Worth)

What happens next?

“We will obviously seek an opportunity for the Texas Supreme Court to review this,” said Steve Briley, who with Wichita Falls attorney Harold White has represented the WCSDEA pro bono. “County employees aren’t being greedy; they barely make a living wage. Voters made it clear they want them to get this increase.”

It may have just been the exuberance of the moment, but one of the county commissioners also seems to think this is a case that has broader significance.

Commissioner Bill Preston, who said he was “just tickled” with the ruling, said the case is being closely watched by commissioners’ courts all over the state.

“They have a vested interest in what happens here,” he said.

There is of course still plenty of time between now and filing that Response to the Petition for his lawyers to think of the prudential reasons for the Court to deny review.

Dole banana litigation moved back to Harris County

“Appeals Court grants writ forcing Judge Floyd to transfer venue on Dole suit”, from the Southeast Texas Record

It’s not actually toxic tort litigation involving Provost Umphrey — it’s litigation about toxic tort litigation. In this suit, the law firm itself is the named plaintiff suing Dole and its general counsel for tortiously “negotiating directly” with the firm’s clients who had claims against Dole.

The original suit, Provost Umphrey vs. Dole Food et al, alleges Dole and its lawyers of negotiating directly with its clients in Nicaragua to settle pesticide exposure claims, and that Dole general counsel Michael Carter and Dole attorney James Teater of Houston conspired to interfere with client contracts.

Provost Umphrey sued Dole, Carter and Teater two years ago for tortious interference with the business relationship between Provost Umphrey and its Nicaraguan clients. The suit also alleges defamation and business disparagement.

The article reports that the firm previously won a tort suit in Nicaragua on behalf of about 150 workers for approximately $97 million.

Last week, the Beaumont Court granted mandamus relief to Dole to force this lawsuit to move from Jefferson County to Harris County. Dole had previously failed in its efforts to remove the case to federal court, but now will apparently get its second-choice venue.

In Re Dole Food Company, Inc., No. 09-08-056 CV

Coming Sooner or Later

Paul Burka has a piece online this week titled “Stop Bashing the Business Tax”.

He begins his article by noting the simmering dispute among Texas Republicans over how to structure a business tax:

One of the handouts I picked up at the state Republican convention was another attack on the Republican leadership and the “Perry Business Tax” from the “Conservative Republicans of Texas.” The organization’s president is longtime conservative activist Steven Hotze. The handout says:

The Perry Business Tax, which passed with the help of the Texas House and Senate Republican leadership, is a state income tax which violates the Texas Constitution. Its constitutionality will be tested shortly in the courts after the first payments are made.

Now there’s a fun lawsuit. I can’t wait to see what the Texas Supreme Court does with that one. If they bust the tax, the school districts will file a school finance lawsuit the next day. If they uphold the constitutionality of the tax, the Dan Patricks and the Steven Hotzes will go after the court.

I agree with Burka that this would be “a fun lawsuit” — but on its merits. The Texas Constitution has some interesting quirks that still shape the broad outlines of Texas fiscal policy and provide the backdrop for our unique brand of politics.

As for the link to school funding … I think Burka’s post overstates it. It’s true that a court ruling about school finance helped lead to changes in the business tax. But unwinding the one would not unwind the other — a new tax decision, even a sweeping one, would just force the Legislature to divide a smaller pie (or to find other ways to augment it). If recent trends continue, the “winners and losers” from that next round of legislative process would then become plaintiffs in the next round of cases seeking to shape shape state fiscal policy.

Whatever you think about this cycle in terms of your political, economic, or judicial philosophy, I do know this: These cases keep the pundits in business (and the bloggers busy).