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.

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.

[Read more →]

The Chief Justice of the Texas Supreme Court Wallace B. Jefferson, the president of the state bar, and the dean of the UT school of law (Lawrence G. Sager) have written this opinion piece expressing support for the judiciary of Pakistan.

Jefferson, Walton and Sager: Think like a Pakistani lawyer:”

To be sure, the age of terrorism may occasionally require extraordinary measures. But the wholesale destruction of constitutional government is a price too precious to pay for it purchases despotism at liberty’s expense.

We see all of this and feel a kinship with the lawyers of Pakistan. But it is difficult to stop just there; it is difficult to avoid reflecting upon our own responsibilities as lawyers in our own backyard.

It’s hard, if not impossible, to dispute the sentiment. But it’s a little odd, especially for a former state lawyer, to see the enactment of the federal Eleventh Amendment suggested elsewhere in the same article as being a similarly “harrowing” moment in American history. I would have suggested the court-packing plans of the 1930s or perhaps Andrew Jackson’s reputed statement about the Court’s judgment about Cherokee lands. By contrast, the enactment of an amendment through the normal constitutional process seems to me to just be the normal constitutional process.

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.]

On Monday, the U.S. Supreme Court granted certiorari in Rothgery v. Gillespie County to review a decision of the Fifth Circuit about when the Sixth Amendment right to counsel is triggered. This appeal grows out of a civil suit filed in federal district court seeking money damages from the county.

Here is an Austin American-Statesman article about the case.

Some of the pleadings can be accessed through
this page on SCOTUSblog.