There were no opinions issues with today’s orders list.

The Court’s next internal conference begins January 23rd.

In today’s orders list, the Texas Supreme Court chose a new case for argument later this year — a (rare) direct appeal, this one raising constitutional questions about how courts can decide property disputes that arise within a church.

The case is The Episcopal Diocese of Fort Worth, et al. v. The Episcopal Church, et al, No. 11-0265. You can read the jurisdictional statement or see other briefs and filings.

The dispute arose after the Forth Worth diocese of the Episcopal Church broke away from the national entity over doctrinal differences. The question was: Who owns the property held by the Fort Worth diocese?

After The Episcopal Church (“TEC”) began departing from traditional church practices and beliefs, both clergy and lay delegates of the Episcopal Diocese of Fort Worth (“the Diocese”) voted by a 4-to-1 margin to remove references to TEC from the Diocese’s Constitution. (28CR5962 (¶7)). Whether a diocese can withdraw from TEC is not a matter for the courts. But property ownership is, and the deeds, church constitutions, and state statutes show the Diocese is entitled to keep property that it has bought, built, and maintained for decades without TEC contributing a dime.

The lower court determined that it had no power to determine this property dispute without offending the First Amendment. By noting probable jurisdiction over this direct appeal, it will take up the underlying constitutional question of when courts can resolve property disputes that involve church entities.

The Court did not issue weekly orders today. The last orders were issued on December 22, 2011.

There was something interesting in that last list. The Court resolved two motions asking it to re-set an oral argument date. In one, it granted the motion. In the other, it denied the motion.

In Ashford Partners, Ltd. v. Eco Resources, Inc., No. 10-0615, the Court denied a motion by the Respondents to move the argument date from February 8, 2011. The order list does not explain in more detail, but it does note that Justices Medina and Guzman “would grant the motion to reset oral argument”. There was at least some contention within the Court about how to proceed.

I haven’t seen a copy of the motion in Ashford Partners, but I’m curious what grounds were advanced.

Meanwhile, in In re E.R., No. 11-0282, the Court granted a request to move the argument date to February 28, 2012. The argument had originally been scheduled for February 9, 2012 — the Court’s sitting in the courtroom at the University of Texas school of law.

The Court’s orders list today did not include any opinions or choose any new cases for oral argument.

According to the Court’s online calendar, next Friday will bring the last regular orders list of 2011.

With today’s orders
list, the Texas Supreme Court did not issue any opinions or choose new cases for argument.

It did grant one motion for divided argument by a private amicus curiae (in
Oncor Electric Delivery Company LLC v. Dallas Area Rapid Transit and Fort Worth Transportation Authority, No. 11-0079, to be argued on January 11, 2011) and granted a motion to dismiss in In re Ascension Martinez, Jr., No. 11-0007, which asked when it was proper to require a defendant to disclose net-worth information. That case would have been argued December 7th.

In re Allcat Claims Service, L.P. and John Weakly, No. 11-0589

The Texas Constitution prohibits the Legislature from imposing an income tax unless the voters of the state have approved it through a statewide referendum. Tex. Const. art. VIII, § 24(a).

Allcat argues that the current Texas franchise tax violates this prohibition because it is calculated based on the margins earned by partnerships. Normally, tax challenges must be brought in Travis County district courts. But the bill creating this new franchise tax also contained a provision purporting to vest “original and exclusive jurisdiction” over constitutional challenges in the Supreme Court of Texas. The bill put no time limit on when taxpayers could file suit — this one was brought about five years into the new system — but it gives the Texas Supreme Court only 120 days from when suit is filed to resolve a challenge.

The Texas Supreme Court issued its decision around 4:00 today, the last day by that clock. Here’s what the orders list says about the outcome:

The Court denies Allcat’s requests for relief relating to its facial challenge because the Act [creating the Texas business-margins tax] does not violate Article VIII, Section 24 of the Constitution. The Court dismisses the as-applied challenge and attorney’s fees claim for lack of jurisdiction.

The vote breakdown was either 7-2 or 9-0, depending on how you frame it. The majority upheld the tax on the merits. The dissent would have dismissed the appeal for want of jurisdiction (also leaving the tax in place). The Justices disagreed about why, but none of them would have struck down the margins tax today.

Read more about the decision, the dissent, and when the Legislature can authorize this kind of special expedited review

With today’s orders list, the Texas Supreme Court issued one opinion, dismissed a case that had been set for argument, and granted a motion to permit an amicus to argue.

Next week is a short week, so the next full list should be released on December 2. The next round of oral arguments begins December 6.

Cities could not directly challenge gas-rate increases under the GRIP statute

Atmos Energy Corporation, Centerpoint Energy Resources Corporation, and Texas Gas Service Company v. The Cities Of Allen, et al. and Railroad Commission of Texas, No. 10-0375 (Wainwright, J.) PDF

The narrow question here is the validity of rate increases by some gas utilities under a special statute providing for interim repayments of certain costs (referred to by the shorthand “GRIP”). The utilities filed these rate increases, and these 51 cities took formal action to refuse the increases. But the applicable statute gave the Railroad Commission exclusive appellate jurisdiction. The utilities took those appeals, and the Commission set aside the city’s objections to the rate increases.

With today’s holding, the Texas Supreme Court concluded:

1. The statute’s grant of exclusive appellate jurisdiction gave the Commission power to override city determinations.

2. No evidentiary hearing (“contested case”) was required here because the GRIP statute did not contemplate that detailed factual review. Instead of that normal process, the Court explained, the GRIP statute provided different protections, including possible refunds in later rate cases. (( See page 12: “[A] municipality could file a rate case on its own motion whenever it perceives the need after a GRIP filing. Tex. Util. Code § 104.151. These protections further reinforce our view that the interim GRIP filings are subject only to a ministerial review of the statutory requirements by the Commission.” ))

The latest wrongful-imprisonment case has been settled

In re Larry Charles Fuller, No. 11-0018

The Court had agreed to hear oral argument in a new challenge to how the Comptroller handled a compensation claim for wrongful imprisonment. The parties reached a settlement and, with today’s orders list, the Court has formally dismissed the case.

Amicus argument in a (potentially) big products-liability case

Centocor, Inc. v. Patricia Hamilton and Thomas Hamilton, No. 10-0223 (to be argued Dec. 8, 2011)

Today, the Court granted leave for an amicus to appear at argument in this case about how advertising interacts with the normal tort duties for makers of prescription drugs. One question is the extent to which drug makers can still rely on a doctor (the “learned intermediary”) to provide disclaimers when the maker has directly advertised the drug to consumers.

The amicus brief was a joint filing by the Texas Medical Association, Texas Medical Liability Trust and Texas Alliance for Patient Access. The Court’s order does not say which amicus group is appearing (I’ll update this post when I know), but it does suggest that And extra time is being devoted to this case. The order shows a time division of 20/20/10 rather than the usual 40 minutes total.

The Texas Supreme Court will not be releasing its regular weekly orders today because the state courts are closed for Veterans Day.

Next Monday, the Justices meet for a private conference. Next Friday, the Court should release its only remaining orders list for the month of November.