After hearing oral arguments this week, the Texas Supreme Court issued a quiet orders list today, with no opinions or new petitions chosen for oral argument.

Next week, the Justices will hold an internal conference to discuss petitions and pending cases.

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

The Court has an argument sitting that begins next Tuesday.

Today, the Texas Supreme Court issued its first opinions of the new term. All were unanimous; all but one were per curiam opinions. It’s early yet, but this fits the general pattern from last term.

The Court also granted three new petitions to be argued in December. Those are listed at the end of the post; details will follow, as appropriate.

Lottery winnings assignable

Texas Lottery Commission v. First State Bank of DeQueen, Stone Street Capital, Inc., and Cletius L. Irvan (DDB)

In this case, a lottery winner and financing company challenged a provision of the Lottery Act that restricted the ability to assign the last two years’ worth of payments on a multi-year lottery payout. (Disclosure: I represented the Lottery Commission in the court of appeals while I was at OSG.)

The statutory conflict arose from two bills, passed in the same legislative session, amending different statutes. In the first bill, the Legislature amended the U.C.C. to permit assignment of lottery winnings. Thirteen days later, the Legislature passed amendments to the Lottery Act that would restrict the assignment of the last two years’ winnings.

The court of appeals divided 2-1, with a majority concluding that the U.C.C. contained a provision making lottery winnings assignable and a dissenting Justice concluding that the more specific and later-enacted provisions of the Lottery Act controlled.

Today, the Texas Supreme Court affirms. Writing for the Court, Justice Johnson concludes that the plain text of the Texas U.C.C. expresses an intent that the U.C.C. win all of these conflicts with other state statutes, to the exclusion of any other canons of statutory construction.

The Court also rejected arguments that the Lottery Act provision fits into a carve-out made in the U.C.C. that permits certain consumer protection laws, and it rejected the argument that the Declaratory Judgments Act does not permit this sort of suit to be filed against the Lottery Commission.

The Tort Claims Act requirement of notice within six months doesn’t mean pre-suit notice — the lawsuit itself can work

Glenn Colquitt v. Brazoria County, No. 09-0369 (per curiam) (DDB)

This might be a significant case for plaintiffs against the government.

The Texas Tort Claims Act requires that a potential claimant give a formal written notice to the government within six months of the incident.

With today’s case, the Texas Supreme Court holds that this need not be a pre-suit notice. Instead, if a claimant files a lawsuit quickly, the lawsuit itself can satisfy the statute.

The issue in this case is whether the lawsuit itself, served on the governmental unit within six months of the incident and containing all the requisite information, constitutes proper notice under the Act. The court of appeals concluded it did not and dismissed the case. We conclude that it does and, accordingly, reverse and remand to the trial court.

This may be a little extra incentive for plaintiffs to file suit quickly. If the lawsuit itself comes within six months, there will be no question about whether the required notice encompasses the claims. (( It might make subsequent amendments to the complaint tricky. But that’s an appellate question for another day. ))

If you use a Ford F-250 to help hoist workers, an injury to them falls into the “auto use” exclusion in a worksite insurance policy

Mid-Continent Casualty Co. v. Global Enercom Management, Inc., No. 09-0744 (per curiam) (DDB)

Yes, that’s a strange headline. But…

As part of the repairs, the employees set up a rope-and-pulley system on the [cell phone] tower. One end of the rope was anchored on a spool and was run through a pulley attached to the “towing point,” or eye hooks, on the front bumper of a 2000 Ford F-250 Super Duty truck. The truck was parked some distance away from the tower on the opposite side of an outbuilding. The rope also ran through pulleys installed on the top and bottom of the 280-foot cell tower and was finally anchored to a headache ball on the other end of the rope. Three workers were instructed by the foreman to climb the tower to take measurements. They tried to reach the top of the tower by attaching themselves to the headache ball at the end of the rope and signaling the foreman to back the truck away from the tower to pull the rope through the pulleys and raise the headache ball. The foreman driving the truck did not see the workers until they had been raised approximately fifteen to twenty feet in the air, over the building obstructing his view. The foreman gave a hand signal, communicating “What’s going on?” The workers, attached to the headache ball, gave another “up” signal, indicating to the foreman to continue driving the truck. Although the foreman knew this was not common practice and potentially unsafe, he nevertheless continued to drive the truck in reverse, away from the tower, lifting the three workers to a height of eighty feet. The rope broke, and the workers fell to their deaths.

This is how an automobile can be part of the cause of workers falling from a cell phone tower.

The Texas Supreme Court concluded that this falls within the terms of the “auto use” exclusion in the primary CGL (Commercial General Liability) policy with the higher limits ($1,000,000) and must be pursued, if at all, against the automotive policy that, in this case, has a lower policy limit ($100,000).

Read the opinion if you want to know more about how “it is in the inherent nature of a 2000 Ford F-250 Super Duty pickup truck on a cell tower job site that it will be used to haul and tow materials.”

Whistleblower Act

City of Elsa, Texas v. Joel Homer Gonzalez, No. 09-0834 (per curiam) (DDB)

Gonzalez brought suit under the Texas Whistleblower Act, which requires a plaintiff show that he has reported a violation of law to an “appropriate law enforcement authority.”

Here, Gonzalez claimed that he made such a report to the city council by objecting a meeting that it had been convened in violation of the Texas Open Meetings Act. The Texas Supreme Court disagreed, concluding that a “law enforcement entity” must have some enforcement or investigatory authority distinct from its own “ability to comply with a law by acting or refusing to act.” In other words, just pointing out to someone that their own actions violate the law may not satisfy the statute.

Gonzalez also claimed that his action in forwarding an opinion letter written by the city attorney met the statute. But the Court concluded that the record did not support the assertion that this was meant to report a violation of law: “Gonzalez’s testimony and affidavit reflect that when he circulated the city attorney’s letter…, Gonzalez did not believe the mayor had violated any laws. [Thus], it does not follow that he made a good-faith report of an existing or past violation of law.”

The Texas Supreme Court reversed and dismissed Gonzalez’s claims.

There must be a “complete diagnostic evaluation” before a juvenile offender is transferred to stand trial as an adult

In re B.T., a juvenile, No. 10-0383 (per curiam) (DDB)

In this mandamus proceeding, we consider whether the juvenile court abused its discretion when it did not obtain a complete diagnostic evaluation of a juvenile prior to a hearing to transfer the juvenile to adult criminal court. The Family Code mandates a “complete diagnostic study,” and the psychologist who performed this report emphasized it was incomplete. We hold the trial court abused its discretion, a determination the State does not dispute, and we conditionally grant the petition for writ of mandamus.

New Grants

The Texas Supreme Court also set three new cases for oral argument this December.

• BP America Production Co., et al. v. Stanley G. Marshall, Jr., et al., No. 09-0399 (DDB). Set for argument on December 7, 2010.

• Samuel T. Jackson v. State Office of Administrative Hearings and Sheila Bailey Taylor in her official capacity as Chief Administrative Law Judge, Stte Office of Administrative Hearings, No. 10‑0002 (DDB). Set for argument on December 8, 2010.

• In re Universal Underwriters of Texas Insurance Co., No. 10‑0238 (DDB). Set for argument on December 8, 2010.

There were no opinions or new petitions granted with today’s Texas Supreme Court orders list.

The Court’s calendar shows a two-day conference of the Justices next Monday and Tuesday.

Although the Court did not issue any opinions with today’s orders list, it did grant rehearing of a previously denied petition for review and set it for oral argument in December.

The newly granted petition is Allen Keller Co. v. Barbara Jean Foreman, et al., No. 09-0955 (DDB), which is about the duty that a city construction contractor might owe to a member of the public later injured by a dangerous condition.

The Texas Supreme Court had denied review in March, without requesting full briefing.

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

The Court did grant motions to participate in oral argument by amicus curiae in two cases:

• Anglo-Dutch Petroleum International, Inc. and Anglo-Dutch (Tenge) L.L.C. v. Greenberg Peden, P.C. and Gerard W. Swonke, No. 08-0833 (DDB). There were two amici in this case, both supporting the petitioner. My guess (and it’s just a guess) is that the argument time is for Professor Linda S. Eads of SMU (her brief) was wrong — the argument time is actually for the other amicus, the firm of Abrams Scott & Bickley, L.L.P.

• James Derwood Iliff v. Jerilyn Trije Iliff, No. 09-0753 (DDB). In this case to be argued in October about calculating child support when a parent chooses a career that pays less than their maximum earning potential (see this earlier post), the Office of the Attorney General has been permitted argument time.

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

But one order of note was the (unopposed) dismissal of XTO Energy v. Smith Production, Inc., No. 09-0270 (DDB), which the petition described as being “an oil and gas case of first impression, in any jurisdiction, involving the legal construction of the ‘subsequent operations’ clause of the very commonly used AAPL Form 610-1982, Model Form Operating Agreement.”

The Court had recently granted review and scheduled the case for oral argument on September 15, 2010.

One of the reasons that people study the Texas Supreme Court statistics is to understand how their odds change as a petition moves through the process.

While the overall reversal rate for petitions is very low — the odds of the Court even granting review to consider reversal are in roughly the 12% range, according to a recent paper by Pam Baron — those odds change as a case moves through each stage of having a response requested, having briefs requested, and then being chosen for argument.

Sometimes an awareness of the changing odds leads clients and counsel to agree to settlements shortly before oral argument, as may well have happened in XTO Energy.

The Texas Supreme Court has just released its final Friday set of opinions for the fiscal year (which ends in August).

I’m at a conference today, so I can’t provide longer case summaries. I will do that where it seems appropriate. I’ll also have a post about the 2010 opinion statistics as soon as those are digested. (I will amend this post to add a link to the order list itself, once that is available on the Court’s site.)

Among the issues in today’s list of opinions:

• The most divided case of last term, Marks v. St. Luke’s Episcopal Hospital, No. 07-0783 (DDB), becomes (on rehearing) the most divided case of this term: read down for more about this one;

• Whether it is a taking for the State to repurpose the dirt it removes for a pond to use in a highway project (it is): State v. Brownlow, No. 08-0551 (DDB);

• When a law firm must be disqualified because it hired a legal assistant who worked at an opposing law firm (when “reasonable steps” are not taken to shield them from the matter, as was not here) (In re Columbia Health;

• Whether a water authority must seek voter approval for “every” bond election (here, at least, yes): Kirby Lake Development, Ltd. v. Clear Lake City Water Authority, No. 08-1003 (DDB);

• Causation in workers compensation cases: Transcontinental Insurance Co. v. Crump, No. 09-0005 (DDB);

• Whether attorneys fees are mandatory when a plaintiff fails to file an expert report under the medical-malpractice statute, and what proof is needed (divided 6-3, the Court held that yes the fees are mandatory and not much proof is needed): Garcia v. Gomez, No. 09-0159 (DDB) (Justice Medina wrote the majority; Chief Justice Jefferson wrote a dissent; Justice Johnson joined the Chief and also wrote his own dissent.); and

• Whether an estate administrator has a duty to timely report unauthorized transactions to the bank, even if those transactions occurred before the descedent’s death (the statute imposes such a duty): Jefferson State Bank v. Lenk, No. 09-0269 (DDB).

Read a little more about the Marks case