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

The Court calendar shows a private conference scheduled for next Monday and Tuesday.

With today’s orders, the Texas Supreme Court issued one opinion. The Court did not choose any new cases for oral argument.

The opinion was in The State of Texas and the Texas Department of Transportation v. NICO-WF1, L.L.C., No. 11-0312 , which was argued barely two weeks ago (on October 16, 2012).

Dedication of land for public use: In for a penny, in for a pound

THE STATE OF TEXAS AND THE TEXAS DEPARTMENT OF TRANSPORTATION v. NICO-WF1, L.L.C., No. 11-0312

Opinion of the Court

The word of the day is “purpresture.”

The dispute comes from Los Fresnos, Texas (Google Map), and involves a street dedication made in 1928. The dedication was for a swath of land 100 feet wide, and it specified that the 15 outermost feet of the dedication was for sidewalks. When the road was built, it stayed within the 70 feet that the dedication left available for the center street.

Now, the State has plans to widen the roadway beyond the 70 feet — but within the full 100 feet that was part of this overall dedication. Some of the buildings adjacent to this street had, in the intervening decades, expanded out into this outermost “sidewalk” area. They argued in response that the dedication for street use was only 70 feet, so that if the State wants to make the street wider (and thus require them to alter the buildings), it would have to condemn the land.

The court of appeals agreed with the landowners, concluding that the original dedication had limited how each portion of the easement could be used.

The Texas Supreme Court reversed. It based its decision on the rule that, while landowners can impose “reasonable” conditions on land dedicated for public use, they cannot impose any condition that is “inconsistent with the grant.” As is often the case, how the case ends up depends on the Court’s starting assumption. Here, that assumption was about whether the purpose of this dedication was centered on the street itself (giving more flexibility to the State) or was for sidewalks as well as streets (each of which has some different public use that might have motivated a dedication).

The Court concluded that this particular dedication, despite any conditions written into its text, was really about the street, not the sidewalks. For that reason, a condition purporting to limit the width of that street to just 70 feet was void. And, thus, the State already holds the easement for the full 100 feet — and need not condemn any additional property or (perhaps more important to everyone here) pay any additional compensation to the landowner whose building will now have to be adjusted or removed.

I’m not sure if a future landowner could accomplish the objective by having two separate dedications — one for a street and a separate one for a sidewalk. But until the Court provides a little clarity about how to distinguish “reasonable” conditions from void ones, I would seek careful advice when choosing how close to an existing street you can place new construction.

With Friday’s orders list, the Texas Supreme Court issued six per curiam opinions. The Court granted review in one new case and dismissed another as moot.

Among this week’s petition denials was Susan Elaine Bostic, individually and as Personal Representative of the Heirs and Estate of Timothy Shawn Bostic, Deceased; Helen Donnahoe; and Kyle Anthony Bostic v. Georgia-Pacific Corporation, No. 10-0775 , which drew two dissenting votes. Both the Chief Justice and Justice Lehrmann publicly noted their dissent to the denial of review on the orders list.

Shareholder oppression

The Court granted review in a petition about a hot topic, the tort of shareholder oppression in a closely held corporation: Lee C. Ritchie, et al. v. Ann Caldwell Rupe, As Trustee For the Dallas Gordon Rupe, Iii 1995 Family Trust, No. 11-0447 . This case comes from the Dallas Court, which has seen its fair share of this litigation. One of the issues presented in this petition is about a proper measure of damages for the tort.

Petition about expert witnesses dismissed as moot

On the motion of the parties, the Court dismissed as moot the mandamus petition in In re Specialty Rental Tools & Supply, LP and Coy Frank Kuykendall, Jr., No. 12-0035 , which was about whether attorney-client privilege still protects consulting expert witnesses who acquire “first-hand knowledge” about a case. The case had been set for oral argument next January.

This week’s per curiam opinions

The Craddock test: Even a poor excuse will do

MILESTONE OPERATING, INC. AND DSTJ, L.L.P. v. EXXONMOBIL CORPORATION, No. 11-0647

Per Curiam

This petition is about what is needed to satisfy the first prong of the Craddock test, for a new trial after a default judgment.

The Court repeats its guidance that “[a]n excuse need not be a good one to suffice.” Here, the defendant “did not recall being served with [the] petition on March 19, 2009, even after reviewing his office notes and speaking to the people with whom he works about that day’s events.” The testimony was that it was his routine to turn over legal papers to his counsel, but that he did not remember this service of process.

The plaintiff here introduced evidence (from the fiancee of the process server) that the papers had, in fact, been handed to the defendant. But the Court noted that this evidence went to the fact of service — it “did not controvert [the defendant]’s testimony that he does not recall being served.” (emphasis added). The Court thus reversed and remanded.

A new trial for damages should also reopen the question of liability

RANCHO LA VALENCIA, INC. AND CHARLES R. "RANDY" TURNER v. AQUAPLEX, INC. AND JAMES EDWARD JONES, JR., No. 12-0038

Per Curiam

This appeal is on its second trip to the Texas Supreme Court. In the first, the Court remanded back to the court of appeals so that it could consider some issues, including whether to order a new trial. In that part of its opinion, the Court said “a new trial on damages.”

The court of appeals determined that a new trial was needed and so remanded for a new trial limited to damages — not liability. Rancho argues in this second petition for review that Texas Rule of Appellate Procedure 44.1 applies so that, because Rancho disputed liability, the new trial must be for both liability and damages.

The Texas Supreme Court agreed that was the proper result, reversing and ordering that the upcoming new trial also revisit whether Rancho is liable at all.

Whether the government’s conduct after a tax foreclosure can support a takings claim

WEST HARDIN COUNTY CONSOLIDATED INDEPENDENT SCHOOL DISTRICT v. WALLACE MAURY POOLE D/B/A L&B PRODUCTION, No. 11-0362

Per Curiam

This was a dispute between a school district and a former property owner (Poole) whose mineral lease had been seized for failure to pay property taxes. (( Disclosure: I wrote an amicus brief on behalf of the TASB Legal Assistance Fund supporting the school district. )) Poole contended that, after the school district became the property’s owner, it prevented him from accessing the property so as to smoothly wind down his operation of the wells and comply with directives of the Texas Railroad Commission.

Based on this conduct, Poole sued the school district, alleging both a takings and a deprivation of due process. The court of appeals ruled against him on the due process claim, but it concluded that he could assert a takings claim.

The Texas Supreme Court reversed and dismissed, concluding that this was not a proper takings claim. The Court characterized Poole’s claims as being “only that the District has injured him, not that it has taken his property without compensation. … Poole’s allegations do not assert a taking for which immunity from suit is waived.”

Can a taxing authority put an end to a tax protest by non-suit?

NED B. MORRIS III, ET AL. v. HOUSTON INDEPENDENT SCHOOL DISTRICT, ET AL., No. 11-0650

Per Curiam

A landowner was sued over unpaid property taxes for 10 acres. The landowners contended that 1 acre of that land was not theirs — and they tried to pay for just the 9 acres that they conceded they owned. The taxing authority refused.

Ultimately, the landowner paid taxes (under protest) for the full 10 acres and asserted the affirmative defense that they did not own that disputed 1 acre of property. The district then dismissed the suit, arguing that the affirmative defense should die with the underlying suit.

The Texas Supreme Court disagreed. Its holding is that the statute was meant to provide taxpayers with a meaningful way to dispute whether the taxes paid under protest were really owed. In this case, that meant permitting them to continue to dispute whether they should have been taxed on this 1 acre even after the district dismissed its suit.

Intentional torts under the Texas Tort Claims Act

TEXAS DEPARTMENT OF CRIMINAL JUSTICE-COMMUNITY JUSTICE ASSISTANCE DIVISION v. LUZELMA CAMPOS, BETTY JO GONZALEZ, AND MISTY VALERO, No. 11-0728

Per Curiam

This case under the Texas Tort Claims Act involves the intersection between two quirks of the Texas statute — that that statute bars claims for intentional torts against the State and that any negligence claims for personal injury against the State generally must flow from the use of “tangible personal property.”

Here, the plaintiffs allege that they were sexually assaulted while in a state facility and that, while this assault was taking place, the employees committing the assault used a piece of property (a cart) to block the door.

The Texas Supreme Court held that this fact pattern was really about the intentional tort, not the incidental use of personal property, which “was only used with intent to accomplish the assaults of which the Plaintiffs complain.” For that reason, the Court held that the suit was barred.

An application of Ruttiger

TEXAS MUTUAL INSURANCE COMPANY v. P. LANCE MORRIS, No. 09-0495

Per Curiam

The Court presented this as an application of its recent decision in Texas Mutual Insurance Company v. Timothy J. Ruttiger, No. 08-0751 , holding that the claims here were barred.

As for the plaintiff’s claim of insurance fraud, the Court concluded that “the dispute … was the extent of [the] injury, not what the policy said or whether it covered [this condition].”

The most recent challenge to the Texas franchise tax system comes up short on today’s orders list. That was the only decision issued by the Court; it did not grant review in any new cases.

IN RE NESTLE USA, INC., No. 12-0518

Opinion of the Court

Dissenting

Divided 6-2, the Texas Supreme Court upheld the state franchise tax (now known as the “margins tax”) against a constitutional challenge brought by Nestle.

Read (much) more

With this week’s orders list, the Texas Supreme Court issued one opinion and did not grant any new cases for review.

The opinion was in In re E.N.C., J.A.C., S.A.L., N.A.G. and C.G.L., No. 11-0713 , a case that was argued last month. The opinion, by Justice Green, is the first signed opinion of the term.

The Court will hear oral arguments in Austin beginning on Monday morning. The next scheduled private conference is a week from Monday (Oct. 22, 2012).

Parental termination after deportation

IN THE INTEREST OF E.N.C., J.A.C., S.A.L., N.A.G. AND C.G.L., No. 11-0713

Opinion of the Court

This was a parental-termination case with complicated facts, involving a parent who had been deported to Mexico. The Texas Supreme Court held that the State had not established the predicate to terminate parental rights by clear and convincing evidence.

Along the way, the opinion discusses the intersection between (increasingly strict) federal immigration law and (constitutionally protected) parental rights. The Court noted that, under the lower court’s reasoning, “the mere threat of deportation or incarceration resulting from an unlawful act, regardless of severity, would establish endangerment.” As to that:

We disagree with that analysis. Many offenses can lead to an immigrant’s deportation, including entering the country unlawfully. See, e.g., 8 U.S.C. §§ 1227, 1325. Under the court’s reasoning, virtually any offense that could lead to deportation — even a minor one committed long before the parent’s children were born — would create such an unstable and uncertain environment as to establish endangerment, subjecting countless immigrants to the potential loss of their children.

The Texas Supreme Court reversed the order of parental termination and remanded to the trial court for further proceedings.

With today’s orders list, the Texas Supreme Court issued an opinion about the standing of grandparents to be included in trial court proceedings about child custody.

ANN WOOD SHOOK v. DAVID GRAY, No. 11-0155

Opinion

The Texas Supreme Court originally denied review of this petition, but today the Court granted rehearing and issued a per curiam opinion.

The petition was brought by a child’s grandmother (Shook), with whom the child had lived during the years preceding a custody hearing between the child’s parents.

The trial court named the grandparent as the sole managing conservator. The court of appeals reversed, holding that the grandparent had failed to carry her heavy substantive burden of overcoming the presumption in favor of a parent having custody.

But one aspect of the court of appeals’s decision attracted attention: It remanded to the trial court with instructions that it revisit the question of custody as between the two parents only — excluding any possibility that the grandparent might (again) be given any level of custody.

That is the narrow issue on which the Texas Supreme Court reversed. The Court held that it was improper to exclude this grandparent from a future hearing:

Even assuming Shook previously failed to present evidence capable of overcoming the parental presumption, it does not follow that she will necessarily be unable to overcome the parental presumption under the present circumstances. …

The Court went on to distinguish between the substantive question of whether Shook had presented enough evidence in the earlier hearing and whether she should have standing to try again:

Shook’s inability to overcome the parental presumption [in the prior hearing] does not deprive her of standing to be considered for conservatorship or access. If Shook fails to overcome the presumption that a parent should be named managing conservator on remand, the trial court may still name Shook as a possessory conservator or grant her access if that would be in G.W.’s best interest.

The Texas Supreme Court did not issue any opinions or grant any new cases for oral argument with today’s orders list.

Today marks Justice Wainwright’s last Friday on the Court. Some court watchers have been asking me if there might be one more opinion that he wanted to put his signature on. Justice Wainwright’s last four signed opinions were issued on August 31, 2012:

• the 6-3 decision in Hearts Bluff Game Ranch, Inc. v. The State of Texas and the Texas Water Development Board, No. 10-0491

• the 8-1 decision in U-Haul International, Inc. d/b/a U-Haul, U-Haul Co. of Texas... v. Talmadge Waldrip, Bernice Waldrip, Dinah Simington..., No. 10-0781

• the 9-0 decision in Wendell Reeder v. Wood County Energy, LLC; Wood County Oil & Gas, Ltd.; Nelson Operating..., No. 10-0887

• a solo concurring opinion in In re United Scaffolding, Inc., No. 10-0526

The Court’s public calendar is light over the next couple of weeks. Its next oral argument sitting is October 15-17, 2012. The next scheduled internal conference is not until October 22-23, 2012.

With today’s orders list, the Texas Supreme Court selected six cases for oral argument in January 2013.

Among the other orders, the Court denied rehearing in Texas Mutual Insurance Company v. Timothy J. Ruttiger, No. 08-0751 , a 5-4 decision from June in which the Court held that workers compensation insurers did not owe a common-law duty of good faith and fair dealing to workers, supplementing the statutory requirements.

Petitions chosen for argument

January 9, 2013

• The City of Houston, Texas v. Roger Bates, Michael L. Spratt and Douglas Springer, No. 11-0778 – dispute over how to calculate termination benefits paid to firefighters (including whether unpaid leave is computed at overtime rates)

• El Dorado Land Company, L.P. v. City of McKinney, No. 11-0834 – the issue presented: “Is a reversionary interest consisting of a right to repurchase property (a/k/a ‘a right of reentry’) a compensable interest in the property sufficient to support an inverse condemnation claim?”

• In the Matter of L.D.C., a child, No. 12-0032 – when there is a jury-charge error in a juvenile justice case, is harmless error determined under the standard for civil cases or for criminal cases?

January 10, 2013

• Carla Strickland v. Kathryn and Jeremy Medlen, No. 12-0047 – which damages Texas law allows for loss of a pet

• Phillips Petroleum Company, Gpm Gas Corporation, Phillips Gas Marketing Company... v. Royce Yarbrough, No. 12-0198 , consolidated for argument with,

• In re ConocoPhillips Company f/k/a Phillips Petroleum Company, Dcp Midstream, Lp f/k/a Gpm Gas Corporation..., No. 12-0199 :

  These petitions involve an ongoing class action that the Court has seen once before (and remanded) in KATHRYN AYLOR BOWDEN, BEULAH POORMAN VICK, OMER F. POORMAN... v. PHILLIPS PETROLEUM COMPANY, GPM GAS CORPORATION, PHILLIPS GAS MARKETING COMPANY..., No. 03-0824 .