The Texas Supreme Court did not release any opinions or choose new cases for oral argument with this week’s orders list.

Today’s Texas Supreme Court orders list did not include any opinions or new cases chosen for oral argument. The Court will return from its short summer break for a private conference on August 16, 2011.

Before then, I am planning two substantial blog posts — a preview of the Texas Supreme Court’s fall calendar and an update on my new tracking site for the U.S. Supreme Court docket.

iPad readers: I’ve also made some changes to improve (I hope) how SCOTXblog looks, with different views for landscape and portrait.

With today’s orders list, the Texas Supreme Court issued one opinion in a (still) pending case. It did not grant any new petitions for review.

Severance v. Patterson, No. 09-0387 (reh’g pending)

The Texas Supreme Court issued an interesting opinion today, announcing that it was formally abating this case. (( An appeal is commonly abated when the Court is waiting on some event in the outside world before proceeding. An example is when one party to an appeal files for bankruptcy. To accommodate the federal court’s jurisdiction, the Texas appeal is abated until the jurisdictional question can be resolved. Another example is when the parties notify the Court that a settlement negotiation is ongoing that would beenfit from an abatement. )) The opinion invites the Fifth Circuit to answer a question about the mootness of the case to resolve the Texas Supreme Court’s doubts about its own jurisdiction.

The Severance case was a high-profile challenge to the Texas Open Beaches Act, brought by a homeowner whose land was brought within the zone of open beaches by the moving shoreline. The lawsuit was brought in federal court. The Fifth Circuit certified a question about Texas law to the Texas Supreme Court. Last November, the Texas Supreme Court announced a complex decision largely siding with the landowner. The State filed a motion seeking rehearing, supported by many amicus groups. (( My DocketDB system shows 34 amicus filers in this case, and many of their briefs are available. How many is that? It’s the most of any currently active case. For comparison, the case in third place on that list has only 5 amicus filers. )) The Court granted rehearing in Severance and heard arguments in April.

Last month, the Court was notified by the State that Carol Severance had sold the land at the heart of this suit. It requested some briefing from the parties on the question of mootness — and whether it should vacate its opinion. (You can read a little more at Land Use Prof Blog, or you can read the State’s brief on mootness or the Severance brief on mootness.)

Musings about mootness

This mootness argument put the Texas Supreme Court in an unusual position. Because this is just a certified question from the Fifth Circuit, it only has a very limited kind of jurisdiction — to answer legal questions posed to it about a pending federal case. E.g., Lucas v. U.S., 757 S.W.2d 687 (Tex. 1988) (first certified question accepted by the Texas Supreme Court, explaining its jurisdiction to do so).

In one way of thinking about it, the questions that come to the Court as certified questions stand on a different jurisdictional footing than conventional appeals. They are always advisory in the sense that the Texas court cannot resolve the underlying merits of a federal lawsuit. On the other hand, judges still watch out for prudential reasons to limit what they say. Even in Lucas, the Court explained that it was declining to answer one of the federal court’s questions because it was “moot” in light of how it had answered the other question. (( There are different flavors of mootness. The use of the word “moot” in Lucas really seems to be about the prudential doctrine that courts should decline to answer questions not strictly necessary to their decision — in other words, that courts should avoid dicta. In this case, the State is arguing that the Texas court was deprived of jurisdiction to decide any part of the case when the land was sold. ))

If the Texas Supreme Court had been the one to declare the Severance case moot, it could have put the Fifth Circuit in an awkward position. What if the Fifth Circuit disagreed and concluded that, under the federal law governing the case, it was not moot? The Fifth Circuit would then have to answer this contentious question of Texas law without the benefit of the Texas Supreme Court’s guidance. (( Actually, it would be far more convoluted than that because there was an opinion issued. Would the Fifth Circuit look to the November 2010 opinion for guidance when making its Erie guess about Texas law, which asks it to speculate about how the Texas Supreme Court would decide the question? The Texas Supreme Court order granting rehearing did not withdraw the opinion. If a future order did withdraw the opinion, it would no longer be cited by judges — but surely would be the touchstone for commentators or others critical of whatever answer the Fifth Circuit reached. It would be a little cruel to ask the federal judges to cover their eyes to the opinion and still make an Erie guess what the Texas Supreme Court would have done. The Texas Supreme Court’s order today politely avoids that possibility. ))

The Fifth Circuit will get to decide

Today, the Texas Supreme Court decided to let the Fifth Circuit move first. The short per curium opinion does not hint as to the Court’s view about mootness (or the merits of the pending rehearing). Instead, it simply notes the procedural posture and concludes:

The determination whether the federal lawsuit is moot must be made by the Fifth Circuit. We abate our consideration on rehearing of the certified questions pending this mootness determination.

There really isn’t a procedure for a question to be certified in reverse, from the Texas courts to the Fifth Circuit. This per curiam opinion is about as close as you get.

If the Fifth Circuit rules that the federal case is not moot, then the Texas Supreme Court will resolve the pending rehearing motion.

With today’s orders list, the Texas Supreme Court released its fall argument calendar through mid-November.

The Court also formally accepted the Fifth Circuit’s invitation to answer a certified question about whether an insurer must cover mental anguish claims under a business’s liability policy.

Oral Arguments

September 13, 2011

• Thota: rescheduled for November 10, 2011

• The Finance Commission of Texas, The Credit Union Commission of Texas, and Texas Bankers Association v. Valerie Norwood, et al., No. 10-0121

• Basith Ghazali, M.D. v. Patricia Brown No. 10-0232

September 14, 2011

• City of Austin v. Harry M. Whittington, et al., No. 10-0316: rescheduled for December 6, 2011

• Texas Department of Public Safety v. Caruana, No. 10-0321

• Texas Department of Insurance, Hon. Mike Geeslin, Danny Saenz v. American National Insurance Co. and Americpublic/docketan Life Insurance Co., No. 10-0374 (Justice Hecht not sitting)

September 15, 2011

• Prarie View A&M University v. Diljit K. Chata, No. 10-0353

• Atmos Energy Corporation, Centerpoint Energy Resources Corp. and Texas Gas Service Co., v. The Cities of Allen, et al., No. 10-0375

• El Apple I, Ltd. v. Myriam Olivas, No. 10-0490

October 4, 2011

• SafeShred, Inc. v. Louis Martinez, III, No. 10-0426

• Shell Oil Company, et al. v. Ralph Ross, No. 10-0429

• Weeks Marine, Inc. v. Maximino Garza, No. 10-0435

October 5, 2011

• Natural Gas Pipeline Co. v. William Justiss, et al., No. 10-0451

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

• Matthew W. Wasserman, M.D. v. Christina Bergeron Gugel, No. 10-0513

October 6, 2011

• Port Elevator-Brownsville, LLC v. Rogelio Casados and Rafaela Casados, No. 10-0523

• In re United Scaffolding, Inc., No. 10-0526

• Rusk State Hospital v. Dennis Black and Pam Black, No. 10-0548

November 8, 2011

• Texas West Oaks Hospital, LP and Texas Hospital Holdings, LLC v. Frederick Williams, No. 10-0603

• In re the Commitment of Michael Bohannan, No. 10-0605

• Texas Electric Utility Construction, Ltd. v. Infrasource Underground Construction Services, LLC, No. 10-0628

November 9, 2011

• Kerry Heckman, et al. v. Williamson County, et al., No. 10-0671

• In re Frank Kent Motor Co. d/b/a Frank Kent Cadillac, No. 10-0687

• Jack Edward Milner v. Vicki Ann Milner, No. 10-0776

November 10, 2011

• Venkateswarlu Thota, M.D. and North Texas Cardiology Center v. Margaret Young, No. 09-0079 [Rescheduled from September 13, 2011]

• In re XL Specialty Insurance Co. and Cambridge Integrated Services Group, Inc., No. 10-0960

• Nicholas Traxler v. Entergy Gulf States, Inc., No. 10-0970

There were no opinions or cases chosen for a future argument on today’s orders list. The Court’s next scheduled conference is on August 16.

The Texas Supreme Court issued a relatively quiet orders list today, with no opinions or new cases chosen for oral argument.

The Court’s next internal conference is scheduled for August 16.

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. ))

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