The Texas Supreme Court issued opinions in three cases with today’s orders list. It also chose one new petition to be argued this fall.

The issues the Court addressed today included: (1) when the constitutional ratio for exemplary damages has to be applied and when it can be exceeded (the cattle-rustling case), (2) when litigation has to be stayed for arbitration of a related issue, and (3) another application of City of Waco v. Kirwan, about the government’s duties as a landowner.

Justice Lehrmann, who was sworn in on Monday, did not participate in these three decisions.

Read all the details

The Texas Supreme Court issued two opinions and accepted one new case for oral argument with today’s orders list.

Today’s list was Justice O’Neill’s last on the Court. Her last day as a Justice will be Sunday; Debra Lehrmann has been appointed by Governor Perry to replace her and will be sworn in on Monday morning. Appropriately, today’s only signed majority opinion is by Justice O’Neill.

Can a child under 14 commit the offense of prostitution?

In re B.W., No. 08-1044 (docket and briefs)

I wrote about this case when it was argued in January. The title of my post: “On the docket: Can a child too young to consent to sex have the requisite intent to commit prostitution?”.

By a 6-3 vote, the Texas Supreme Court holds that, no, the statute defining the crime of prostitution cannot be applied to juveniles under 14 years of age.

The split came down to first principles of statutory construction. Writing for the majority, Justice O’Neill looked first to the Legislature’s intent, placing emphasis on the overall design of the statute and avoiding unreasonable results:

It is difficult to reconcile the Legislature’s recognition of the special vulnerability of children, and its passage of laws for their protection, with an intent to find that children under fourteen understand the nature and consequences of their conduct when they agree to commit a sex act for money, or to consider children quasi-criminal offenders guilty of an act that necessarily involves their own sexual exploitation. In the context of these laws, and given the blanket adoption of the Penal Code into the Family Code, it is far more likely that the Legislature intended to punish those who sexually exploit children rather than subject child victims under the age of fourteen to prosecution.

Writing for the dissent, Justice Wainwright placed all emphasis on the text of the statute, explaining that the Legislature chose its policy with its words.

The language of the prostitution statute includes thirteen-year-olds, and the Juvenile Justice Code makes them subject to juvenile delinquency proceedings for committing that offense; and neither the Court nor B.W. point to any language in the Juvenile Justice or Penal Codes that changes the prostitution statute to mean something other than what it says. . . .

The Legislature easily could have created the exception that the Court proclaims today. It expressly excluded “traffic offense[s]” from the definition of delinquent conduct. TEX. FAM. CODE §51.03(a)(1). All it needed to do was add a few words to section 51.03(a)(1) to compel the result the Court desires, but the Legislature did not exclude “prostitution” from the list of offenses constituting delinquent conduct. Alternatively, the Legislature could have limited application of the prostitution statute to persons fourteen and older, rather than any “person.” Tex. Penal Code §43.02(a). Yet, it opted not to do so.

Justice O’Neill was joined by Chief Justice Jefferson, Justice Hecht, Justice Medina, Justice Green, and Justice Guzman.

Justice Wainwright was joined in dissent by Johnson and Justice Willett.

No evidence of causation between a halogen lamp and a (particular) fire

Wal-Mart Stores, Inc. v. Charles T. Merrell, Sr. and Jane Ceverny, No. 09-0224 (per curiam) (docket and briefs)

In a per curiam opinion, the Court concluded that a plaintiffs’ expert witness had not offered legally sufficient evidence that a halogen lamp caused a particular fire that killed two people. The Court noted that Wal-Mart’s expert had testified that the more likely cause was “careless disposal of smoking materials” also found at the scene.

In this case, the experts were dueling at the summary-judgment stage, so the question was whether the plaintiff had enough evidence to proceed to trial. The district court said no, the court of appeals said yes, and today the Texas Supreme Court says no.

Justice Green did not sit on this case.

Accepted for Argument: What showing is required before a plaintiff can secure net-worth discovery from a defendant?

In re Mark A. Jacobs, M.D., Debra C. Gunn, M.D. and Obstetrical and Gynecological Associates, P.A., No. 09-0942 (docket and briefs)

As framed in the mandamus petition (available as a rather portly PDF file here), the issue is what pleading or initial proof is required before a plaintiff can get discovery of a defendant’s net worth.

In most contexts, the only relevance of net worth would be to an eventual punitive damages calculation. The relators’ theory is that — with the greater restrictions placed on punitive damages over the years — the corresponding discovery should also be reined in to prevent abuse.

Small correction to an opinion on rehearing

Leila Regenia Brown Hidalgo v. Alvin Steve Hidalgo, No. 09-0415 (docket and briefs)

As noted in Osler’s email today, the Court’s corrected opinion:

Changes sentence on page 2 to read “This order effectively granted Leila a new trial.” from “The parties appear to agree this order effectively granted Leila a new trial.”

Alvin had filed a motion for rehearing that pointed this issue out to the Court and asked the Court to “issue a new opinion correctly reflecting that Alvin disputes that [this order] granted Leila a new trial.” He might have wanted the Court to leave that question open. Instead, the Court made clear with today’s correction that it was resolved against him.

The Texas Supreme Court issued opinions in six cases today. The Court did not accept any new cases for review.

With Justice O’Neill’s final day approaching on the 20th, this was her penultimate Friday orders list. She wrote one of today’s signed majorities and today’s only dissenting opinion.

Which tort claims related to sexual harassment are preempted by the TCHRA, and which are not?

Waffle House, Inc. v. Cathie Williams, No. 07-0205

The “issue of first impression” identified by the Court is whether a person who has been sexually harassed at work can bring a private tort suit against his or her employer for the same conduct that might also be covered by the statutory scheme in the Texas Commission on Human Right Act (TCHRA).

Both the majority and dissent agreed that there was some preemption, but they disagreed about its breadth.

The majority opinion was written by Justice Willett. The answer to this question was that, no, the TCHRA “is preemptive when the complained-of negligence is entwined with the complained-of harassment.” Thus, “[w]here the gravamen of a plaintiff’s case is sexual discrimination that lies at the heart of the TCHRA, allowing negligence damages for a TCHRA violation would eclipse the Legislature’s prescribed scheme.”

That resulted in a broader preemption than the dissent would have embraced. Justice O’Neill’s dissenting opinion begins:

Sexual harassment is not a tort recognized under the common law, therefore I agree with the Court that such behavior cannot support a claim for negligent supervision. But assaultive behavior surely can, whether or not it has sexual overtones. The Court’s denial of common law protection for a subset of sexual assault that is sexually motivated adds insult to injury. In my view, the [TCHRA] preempts negligent-supervision claims based on harassment, but it does not preempt assault-based claims merely because the perpetrator sexually harassed the victim too.

The disagreement is focused on that “subset” of cases — those with “sexual assault that is sexually motivated” (in the dissent’s phrasing). As the majority notes, even its broader view of preemption would not include assault that doesn’t accompany harassment or claims brought against the harasser individually (instead of agains the employer):

The issue before us, however, is not whether Williams has a viable tort claim against a coworker. The issue is whether a common-law negligence action should lie against her employer for allowing the coworker’s tortious or criminal conduct to occur, or whether, instead, a statutory regime comprehensively addressing employer-employee relations in this context should exclusively govern.

The dissent agreed that “[n]egligence damages cannot arise from conduct constituting sexual harassment.” But the dissent thought the proper cure was an instruction and would have remanded to the court of appeals for a review that excluded the preempted conduct.

The standard Texas homeowners policy does not cover damage that mold from a water leak causes to the dwelling (but it does cover incidental damage to personal property)

State Farm Lloyds and Erin Strachan v. Wanda M. Page, No. 08-0799

This was Justice O’Neill’s other opinion on today’s orders list, for a unanimous Court. The case (“once again”) asked the Court to settle an question of interpretation about the Texas Standard Homeowners Policy, Form B.

The question: “whether it affords coverage for mold contamination resulting from plumbing leaks.”

The answer: “the policy covers mold damage to personal property but not to the dwelling.”

A “purely defensive request” for attorney’s fees does not waive the State’s sovereign immunity under Reata

Texas Department of Criminal Justice v. Kirk Wayne McBride, Sr., No. 08-0832

The procedural background of this case is complex, but ultimately did not bear on the outcome. (It involves an inmate suing TDCJ after failing to get relief in an internal grievance procedure.)

The question answered was much broader: When a government agency is a defendant in a lawsuit, does it waive sovereign immunity against any claims brought against by asking for attorney’s fees? The Thirteenth Court of appeals held in this case that it did, relying on the principles of Reata Construction Co. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006).

(Disclosure: I represented the State as an amicus in the Reata case and some related cases. But I did not work on the McBride case.)

The Texas Supreme Court, speaking through a unanimous opinion by Chief Justice Jefferson, disagreed.

In this case, McBride, not the department, filed suit. In its answer, the Department denied McBride’s allegations and prayed for attorney’s fees and costs incurred in defending the case. Other than fees and costs, the Department asserted no claims for relief. Unlike Reata, in which the City injected itself into the litigation process and sought damages, the Department’s request for attorney’s fees was purely defensive in nature, unconnected to any claim for monetary relief. When that is the case, a request for attorney’s fees incurred in defending a claim does not waive immunity under Reata, and the court of appeals incorrectly held otherwise.

The Court’s holding is fairly narrow. It plainly applies to the standard “and all attorney’s fees and costs” language that many litigants throw into their standard pleadings — that is not a waiver of immunity. But it leaves open the possibility that the State might waive immunity if it pursues a cause of action for which attorney’s fees is the remedy. The question might come down to whether the request is, in the Court’s words, “purely defensive.”

How to restart a Texas state case after it is remanded from federal court

Maria Del Carmen Gulbot Serros de Gonzalez et al. v. Miguel Angel Gonzalez Gulbot, Carlos A. Gonzalez Gulbot, and Maria Rosa del Arenal de Gonzalez, No. 08-0961

This case was remanded back to the Texas state courts from a federal district court. The remand order was signed and hand-delivered back to the state court.

The defendant argued that this failed to re-establish jurisdiction in Texas state courts because 28 U.S.C. §1447(c) refers to the order being mailed, not hand-delivered. Indeed, they argued that this gotcha ended the case:

Defendants therefore contend that jurisdiction has been destroyed in both courts because the ‘key jurisdictional event’ did not, and can never, occur.

The Court, through an opinion by Justice Willett, rejected this “strange procedural twilight zone.” The Court held that hand-delivery satisfied the rule in this case. (It should be noted that this case did not involve conflicting actions by state and federal courts; here, the federal court executed and delivered its order before the state court took any action.)

The second issue in the case was how to interpret the phrase “tertiary recusal motion” in Texas Civil Practice and Remedies Code §30.016, which permits a judge to continue to hear a case — without referring that recusal motion to someone else to resolve — if a third motion for recusal has been filed.

The court of appeals held that this exception was limited to the third recusal motion a party files against the same judge. Because this was not such a motion, it held that all subsequent actions by the judge in the case were void.

The Texas Supreme Court disagreed, holding that this language properly referred to a third recusal motion filed against any judge. Once you have filed two recusal motions, the third one will not necessarily freeze the case.

(Justice Guzman did not sit on this case.)

Application of State v. Lueck: Whistleblower Act requirements are jurisdictional

The University of Houston v. Stephen Barth, No. 08-1001 (per curiam)

Barth sued the University of Houston under the Texas Whistleblower Act. The court of appeals, reviewing the University’s arguments, refused to consider some of them on waiver grounds.

The Texas Supreme Court reversed in a per curiam opinion, applying its 2009 decision in State v. Lueck, 290 S.W.3d 876, 883 (Tex. 2009), which held that these provisions of the Whistleblower Act were jurisdictional in nature and thus could not be waived.

Remand in light of Lawton‘s clarification of the 60-day period for a carrier to challenge compensability

Zenith Insurance Co. v. Carmen Ayala, No. 09-0292 (per curiam)

In a per curiam opinion), the Court remanded so that the court of appeals could apply its recent decision in Lawton:

In this workers’ compensation case, the court of appeals concluded that the carrier waived its right to dispute the extent of the claimant’s compensable injury by failing to adhere to Texas Labor Code section 409.021(c)’s sixty-day deadline. We recently held that the sixty-day period for challenging compensability does not apply to a dispute over extent of injury. State Office of Risk Mgmt. v. Lawton, 295 S.W.3d 646, 649-50 (Tex. 2009). In light of Lawton, we reverse the court of appeals’ judgment and remand this case to the trial court for further proceedings.

The Texas Supreme Court issued one opinion with today’s orders list.

Today’s opinion was in Gilbert Texas Construction, L.P. v. Underwriters at Lloyd’s London, No. 08-0246 (docket and briefs), about whether an insurer is bound to pay for property damage to a third party that its insured (by contract) agreed to assume [under this policy language, it wasn’t]. Justice Johnson wrote the opinion for a unanimous Court. (My apologies that I can’t write more today; I’m still attending the appellate conference I mentioned yesterday.)

With today’s orders list, the Texas Supreme Court issued per curiam opinions in two pending cases.

• Leila Regina Brown Hidalgo v. Alvin Steele Hidalgo, No. 09-0415 (per curiam) (briefs). The Texas Supreme Court gave some relief to a litigant that had chosen a losing appellate strategy. The appellant advanced a procedural argument in the court of appeals that was correct under then-existing precedent. But during the pendency of the appeal, the Texas Supreme Court changed course, announcing the opposite rule in In re Baylor Medical Center at Garland.

  The Court noted its general power under Rule 60.2(f) to remand for further proceedings “in light of changes in the law.” The Court chose today to make sure a remand: “Due to the timing of events, Leila is confronted with a trial court judgment that she believes is substantively defective, but she has not had the opportunity to have those arguments heard on appeal. In light of a change in the law and in the interest of justice, Leila should be allowed to argue to the court of appeals the substantive reasons she believes the trial court’s judgment was erroneous.”

• Texas Health Insurance Risk Pool v. Sharon B. Sigmundik, Benjamin J. Sigmundik and Zachary P. Sigmundik, et al., No. 09-0772 (per curiam) (briefs). The Court held that part of the settlement should have been allocated to the Risk Pool under its contractual subrogation rights. The Texas Supreme Court held that the trial court, which relied on equitable principles to deny subrogation, had confused contractual subrogation with equitable subrogation.

Five new cases chosen for argument

The Court also selected five petitions for next year’s argument calendar. No date or time has been set for argument in these cases:

• Anglo-Dutch Petroleum International, Inc., et al v. Greenberg Peden, P.C. and Gerard J. Swonke, No. 08-0833 (docket and briefs)

• Hyde Park Baptist Church v. Tara Turner and Terry Curtis, No. 09-0191 (docket and briefs))

• American Home Assurance Co. and Illinois National Insurance Co. v. Maryland Casualty Co., No. 09-0226 (docket and briefs))

• In re Coy Reece, No. 09-0520 (docket and briefs))

• Jeremy Molinet v. Patrick Kimbrell, M.D. and John Horan, M.D., No. 09-0544 (docket and briefs))

This is the week of the American Law Institute conference. Most of the Texas Supreme Court Justices are members of ALI, so it is not surprising that this week brought a very quiet orders list.

But this slow orders day is a perfect opportunity for me to catch up on summaries from last Friday’s list. You might already have seen this much more timely summary over at The Appellate Record.

Follow this link for my summaries of last week’s two opinions

With today’s orders list, the Texas Supreme Court granted one new petition for review and issued opinions in seven others.

New grant: How to calculate child support obligations when one parent chooses a career path below their maximum income potential

James Derwood Iliff v. Jerilyn Trije Iliff, No. 09-0753 (briefs and docket)

This case involves a split between the Austin Court and other courts of appeals over when a child-support order can look to a parent’s “potential income” instead of their “actual income” when calculating a child-support obligation.

As explained in the petition for review, the Austin Court did not require a showing that the parent had chosen a lower income with the purpose of evading child support.

By contrast, several other courts of appeals have interpreted the phrase “intentional unemployment or underemployment” to encompass an intent to evade child-support obligations, rather than just a voluntary choice of career path.

The Texas Supreme Court has granted the petition but has not yet chosen an argument date this fall to hear the case.

Motion to recuse a Justice denied

The orders list also reflects that the Court denied a recusal motion for Justice Wainwright in Southwestern Bell Telephone Co. v. Marketing on Hold, Inc., No. 05-0748.

If Marketing on Hold sounds familiar, it’s the case that was at the center of the lawsuit filed against the Court for not deciding a case more quickly. The Court soon ruled, and the losing party sought rehearing.

Read more about this motion and quick recaps of today’s seven opinions on the merits

Today the Texas Supreme Court issued a quiet orders list. It did not issue any opinions or grant any petitions for review.

The Court’s public calendar shows that the Justices will be holding a two-day private conference next week to discuss pending cases.