The number of blogs that now cover Texas law combined with my work schedule has caused me to stop posting to the blog. Because the blog still receives many hits a day, I will keep it active for those looking for information on the Court.

The Texas Supreme Court announced today that Former Chief Justice John Hill died. The announcement begins: "Former Chief Justice of the Texas Supreme Court John Hill’s death Monday ended a remarkable legal and public service career spanning 60 years. He was 83. Hill died after complications resulting from surgery to implant a heart pacemaker. He was the only person in Texas state history to serve as secretary of state, attorney general and chief justice. He retired from the Court in 1988 after three years."

Don't perform surgery on me = consent to perform surgery: The Texas Supreme Court issued this Per Curiam opinion in Schaub v. Sanchez and rendered a take nothing judgment because although the Plaintiff told the doctor not to perform a stellate ganglion block, the patient knew of the risks of the procedure and therefore she could not seek relief under a theory of informed consent.

"Builder's PAC aided judge": Today's Dallas Morning News contains this article that begins: "A political committee funded by homebuilder Bob Perry contributed $16,000 to help Supreme Court Justice Nathan Hecht pay his legal bills as the court was preparing to hear arguments in a case against the company."

Over the River and Through the Woods, No Step-Grandfather's House for You: In the latest in a string of grandparent visitation rights decisions being heard across the country, the Texas Supreme Court decided In re Ricky Derzapf today holding that the trial court abused its discretion in awarding access to a step-grandfather that was neither a biological nor adoptive grandparent. This per curiam opinion also held that there was insufficient evidence for the grandmother to prove that denying her access to her grandchildren would cause the grandchildrens' emotional well-being to suffer.

"Justice Collects Gifts To Pay Fees": Today's Fort Worth Star-Telegram contains this article discussing how "Texas Supreme Court Justice Nathan Hecht personally collected more than $300,000 in private donations from some of the state's top lawyers to pay his legal bills."

The Poor Can Appeal Late Too: In an opinion issued on Friday, the Texas Supreme Court applied its recent holding in Higgins v. Randall County Sheriff's Office by holding that an indigence affidavit can be filed after the appellate court grants a party 10 extra days to pay the filing fee. The per curiam opinion is Hood v. Wal-Mart Stores, Inc. can be accessed here.

Another Case Off to Arbitration: In In re BankOne, the Texas Supreme Court issued this per curiam opinion holding that a dispute between a company and Bank One relating to the company's checking account should be arbitrated because of an arbitration clause in the account rules and regulations.

The City is Burning: In City of Houston v. Steve Williams, the Texas Supreme Court held in this per curiam opinion that whether firefighters can assert claims against the City presents issues that should be resolved by the trial court in light of revisions to the Local Government Code.

The Constables That Owned Their Jobs: In Dallas v. Wiland, the Texas Supreme Court held in this opinion that three deputy constables have a property interest in their continued employment and cannot be discharged without cause. Justice Hecht (joined by Justice Wainwright, Justice Green, Justice Johnson, and Justice Willett), writing for the majority, held that the constables that brought the action were denied procedural due process because they were discharged without a hearing and they therefore could recover damages for injuries resulting from their loss of employment.

Justice Brister (joined by Chief Justice Jefferson, Justice O'Neill, and Justice Medina) concurred in part and dissented in part in this opinion. The point of dissention focuses on whether Dallas County should be granted a "second chance to escape liability" that was afforded to it by the majority opinion.

Get Off My Floating Homestead: In Norris v. Thomas, the Texas Supreme Court was asked by the Fifth Circuit Court of Appeals to decide whether a boat (with four bedrooms, three bathrooms and galley) qualifies for the homestead exemption under the Texas Constitution. Justice Willett wrote the Court's majority opinion (joined by Chief Justice Jefferson, Justice Hecht, Justice Green, and Justice Johnson) and held that the 68 foot yacht in question did not constitute a homestead. Justice O'Neill dissented (joined by Justice Wainwright, Justice Brister, and Justice Medina) because of the difficulty distinguishing between a mobile home hooked up to land-based electricity and water, and a boat hooked up to land-based electricity and water, when it is the attachment itself that makes the dwelling habitable as a residence.

The City Took My Driveway: In City of San Antonio v. TPLP Office Park Properties, the Texas Supreme Court issued this per curiam opinion addressing questions resulting from the City of San Antonio's decision to block access from a private business driveway to a city street. The Court held that the "City's decision and actions to close access between the private driveway and the street constituted a proper exercise of the City's police power, the City is not estopped from closing the access, and closing the access would not constitute a compensable taking."

Jack Fell In the Box: In Jack in the Box Inc. v. Skiles, the Texas Supreme Court issued this per curiam opinion regarding whether an employer owed its truck driver a duty to warn of a danger. The truck driver, Skiles, was injured when he used a ladder to enter his truck because the lift did not work. Because dangers associated with the use of a ladder to climb over a lift gate are common and obvious, the Court held that Jack in the Box had no duty to warn Skiles about the dangers of using a ladder.

Late Interpleader: In State Farm Life Insurance Co. v. Martinez, the Texas Supreme Court issued this unanimous opinion authored by Justice Brister holding that (1) statutory penalties are proper for the delay before an interpleader is filed, but not for the time after the filing, and (2) prejudgment interest on proceeds in the court registry are barred as a double recovery.

Do Not Forward: In Wachovia Bank of Delaware v. Gilliam, the Texas Supreme Court issued this per curiam opinion addressing whether the record showed that substituted service papers were forwarded to the defendants "home office" or "principal office." The Court found no evidence that the papers were forwarded.

Too old to be in this Court (or not old enough): The Texas Supreme Court issued an opinion today in United States Automobile Association v. Brite discussing jurisdictional amounts for an age discrimination case filed in a county court of law -- more specifically, whether jurisdiction should be calculated by an amount in controversy based on what the plaintiff seeks to recover or whether the amount in controversy should be calculated without including damages that are uncertain in time and duration (such as future pay). Justice Medina, writing for a unanimous panel, issued this opinion holding that "amount in controversy" includes all damages the plaintiff seeks to recover at the time the suit is filed, regardless of whether such damages are uncertain in time and duration.

Trial by Jury Endangered: Barry Barnett's Blawgletter contains a post discussing (and containing a link) to an amicus brief filed in the Texas Supreme court by Professor Gerald R. Powell. As the post explain, "[w]riting as private citizen, Professor Gerald R. Powell regrets that the Court's recent 5-4 decision in an antitrust case "exemplifies another reason that trial by jury is endangered." (See the majority opinion in The Coca-Cola Co. v. Harmar Bottling Co., No. 03-0737 (Tex. Oct. 20, 2006) here.)"

"Dream home becomes legal nightmare": Sunday's edition of the Dallas Morning News contains this article about Bob and Jane Cull's legal battle with Perry Homes over the construction of their house. The legal question before the Texas Supreme Court will be "at what point in time does a consumer waive their right to arbitration?". The article also discusses political contributions to Texas Supreme Court Justices and the effect such contributions may or may not have on a case.

"Texas justices to tackle religious freedom law": Today's edition of the Dallas Morning News contains this article regarding the Texas Supreme Court's decision to consider a city's zoning ordinance which prohibits parolees from living within 1,000 feet of churches.

The Court issued this per curiam opinion today in Long Trusts v. Griffin discussing whether parties may share in a litigation recovery when, despite an agreement to pay ongoing litigation costs that were to be billed monthly, they refused to pay months of accumulated bills and whether the Statute of Frauds avoids the working-interest holder’s obligation to convey interests in producing gas wells in exchange for sharing drilling and operating costs because the interests could not be reasonably ascertained. The Court held that (1) the breach in failing to pay accumulated bills was not excused because a party, demanding to share in the litigation recovery, treated the agreement as continuing, not as terminated, and (2) the leases were not sufficiently identified, making past leases subject to the Statute of Frauds as well as future ones under the agreement. (part of the summary taken from the Texas Supreme Court Advisory).

The Texas Supreme Court issued two opinions on Friday. The first case, Coca-Cola Co. v. Harmar Bottling Co., is a 5 to 4 opinion with Justice Hecht writing this majority opinion. The case involved two issues: (1) whether Texas courts can adjudicate and remedy an anti-competitive injury occurring in another state, either under the TFEAA or the law of that state; and (2) whether the plaintiffs have shown substantial harm to competition because of defendants' conduct. On the first issue, the Court held that TFEAA will not support extraterritorial relief in the absence of a showing that such relief promotes competition in Texas or benefits Texas consumers. On the second issue, the Court held that there was a lack of evidence showing substantial harm to competition. As a result, the Court dismissed the plaintiffs' claims of injury occurring in other states.

Justice Brister, writing this dissenting opinion joined by Chief Justice Jefferson, Justice O'Neil, and Justice Medina, dissented because "[t]here is a line between competing and bullying, and the Jury found that Coke crossed it."

The second case, Alex Sheshunoff Management Servs. v. Kenneth Johnson and Strunk & Assoc., revisits the Court’s 1994 decision in Light v. Centel Cellular Co. and again considers the enforceability of covenants not to compete in the context of at-will employment. The case posed the question of "whether an at-will employee who signs a non-compete covenant is bound by that agreement if, at the time the agreement is made, the employer has no corresponding enforceable obligation. Under Light, the answer to that question was always 'no.'" Justice Willett, in this opinion, modified the Court's holding in Light and held that "an at-will employee’s non-compete covenant becomes enforceable when the employer performs the promises it made in exchange for the covenant." The Court clarified that the Covenants Not to Compete Act does not require the agreement containing the covenant to be enforceable the instant the agreement is made.

Chief Justice Jefferson delivered this concurring opinion, which was joined by Justice O'Neill and Justice Medina.

Justice Wainwright delivered this concurring opinion.

The Texas Supreme Court has started its Fall decision making season. Three opinions were announced today.

• In In re Texas Dep't of Fam. and Protective Servs., the Court addressed whether the Court of Appeals properly granted mandamus relief in a suit affecting the parent child relationship (SAPCR). Finding that mandamus relief was improper, this opinion ordered the Court of Appeals to vacate its order.

• In In re General Electric Capital Corp., the Court addressed, in a mandamus proceeding, whether a party who did not receive notice of a jury demand nevertheless waived its contractual right to a non-jury trial by failing to notice that the case had been moved to the jury docket. In this per curiam opinion, the Court held that General Electric did not knowingly waive its contractual right to a non-jury trial.

• In Cary v. Alford, the Court issued this per curiam opinion addressing whether a party's affidavit was sufficient to establish that his failure to answer was an accident rather than conscious indifference. Without much explanation, the Court remanded the case to the district court to reconsider the issue in light of Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571 (Tex. 2006).

In quest for election, Texas jurist walking across state: Monday’s San Antonio Express-News contains this article discussing how “Judge Bill Moody of El Paso is running one of the more unconventional races for a seat on the Texas Supreme Court: He's walking 1,017 miles — from the New Mexico border to Orange at the Louisiana border — in an effort to meet people the old-fashioned way.”

Election Time Approaches: With elections in November, the Dallas Morning News has this editorial endorsing the following candidates for the Texas Supreme Court: Chief Justice Wallace Jefferson, Judge William Moody, Justice David Medina, Justice Nathan Hecht, and Justice Phil Johnson.

BREAKING NEWS: The online edition of the Dallas Morning News contains this article about Texas Supreme Court Justice Nathan Hecht's testimony today regarding his support of his longtime friend Harriet Miers. The article indicates that White House adviser Karl Rove asked if Justice Hecht would talk to the media about Miers.

Hecht to Defend Support for Miers: Yesterday’s Fort Worth Star Telegram contains this article discussing how "Texas Supreme Court Justice Nathan Hecht will appear before a special tribunal in Fort Worth next week to defend his actions in speaking out in support of the nomination of his close friend Harriet Miers to the U.S. Supreme Court last year."

"Texas Supreme Court candidate to walk across state." The Dallas Morning News today contains this article that begins "The last time William "Bill" Moody ran for the Texas Supreme Court he campaigned the traditional way, handing out fliers and making speeches. This time he's taking his campaign to the streets — literally."

The Texas Supreme Court issued 23 new opinions today, most of which are short per curiam opinions that can be accessed here.

Included among the 23 cases that the Court decided today are many cases that the Court has been pondering for a long time. Including, Reata Construction Corp. v. City of Dallas, a case that involved withdrawing an opinion by the Court from April of 2004. Justice Johnson wrote this majority opinion discussing whether the City of Dallas has governmental immunity from suit for claims by Reata Construction Corporation arising from the City’s alleged negligence. The Court concluded that "the City does not have immunity from suit as to Reata’s claims which are germane to, connected with, and properly defensive to the City’s claims, to the extent Reata’s claims offset those asserted by the City."

Justice Brister wrote this concurring opinion, which was joined by Justices Hecht and O'Neill.

In another case, Dew v. Crown Derrick Erectors, the Court addressed the issue of whether, in a wrongful death and survival action, the trial court erred in refusing to submit an inferential rebuttal instruction on “new and independent cause.” Justice Medina delivered this plurality opinion, Justice Brister filed this concurring opinion, and Justice Johnson filed this dissenting opinion.

The Texas Supreme Court issued one new opinion last week. In the case of The State of Texas & the Texas Parks & Wildlife Dep't v. Shumake, Justice Medina wrote this majority opinion that discusses the effect of the recreational use statute on a premises liability claim against the state. The Court held that "[w]hile the recreational use statute raises the burden of proof by classifying the recreational user of state-owned property as a trespasser and requiring proof of gross negligence, malicious intent, or bad faith, it does not reinstate sovereign immunity but rather immunizes the state only to the extent of the elevated standard."

Justice Wainwright wrote this concurring opinion and Justice Brister wrote this dissenting opinion that includes this interesting paragraph: "Nature is not safe. In many instances, that is its beauty. We can make a river safer by removing every rock and posting warning signs every 50 feet, but it is no longer a river — it is a waterpark. We can make a bridge safer by creating higher and longer spans, but only at some cost in both dollars and scenic beauty."

"Ally of White House Counsel Is Under Fire in Texas": Today's Washington Post contains this article that begins, "In Texas, calling someone a 'spokesman' comes close to fighting words. Take the case of the Honorable Nathan L. Hecht, a justice of the Supreme Court of Texas and a well-known conservative jurist. A longtime friend of White House counsel Harriet Miers, Hecht gave more than 120 media interviews during her failed Supreme Court nomination."

Texas Monthly editor and host of Texas Monthly Talks Evan Smith’s interview of Texas Supreme Court Chief Justice Wallace Jefferson will air on Austin’s KLRU this Thursday, June 8th at 7:00 PM.

To read an introduction, click here.

To view clips, click here.

State justice's remarks on Miers were perfectly proper: This article appeared in Saturday’s Houston Chronicle providing a further look into last week’s public admonition of Texas Supreme Court Justice Nathan Hecht. Hecht’s appeal of this sanction will be decided by a three-judge panel appointed by Texas Supreme Court Chief Justice Wallace Jefferson.

Texas Justice Admonished for Miers Support: This article appeared in Tuesday’s edition of the Washington Post focusing on the accusation that Justice Nathan Hecht had used his position to support Harriet Miers when she was nominated for the U.S. Supreme Court last year.

The Texas Lawyer reports here that the State Commission on Judicial Conduct has issued a public admonition to Texas Supreme Court Justice Nathan Hecht regarding comments he made to the press last year in support of the nomination of White House Counsel Harriet Miers to the U.S. Supreme Court.

“Ex-firefighter's case goes to Texas Supreme Court”: Yesterday’s Fort Worth Star-Telegram included this article about a discrimination lawsuit against the City of Grapevine that has now landed in the Texas Supreme Court. An ex-firefighter has brought charges against the city stating that they failed to accommodate him after he had to leave his firefighting career due to a multiple sclerosis diagnosis.

It has been a big two weeks for Kroger -- winning two cases before the Texas Supreme Court in just as many weeks. On Friday, the Texas Supreme Court issued this per curiam opinion in Kroger Co. v. Elwood. The Court held that a courtesy clerk could not recover damages from injuries he suffered after a customer shut her vehicle door on the Kroger employee's hand while he was transferring items from a grocery cart into the customer's vehicle.

In the final home-stretch before the summer break, the Court released seven new opinions last week:

• In Kroger v. Suberu, a case involving a shop-lifting prosecution that went wrong, the Court held that a Kroger customer had insufficient evidence to support her claims of malicious prosecution and intentional infliction of emotional distress. Chief Justice Jefferson wrote the majority opinion and Justice Johnson wrote the dissenting opinion.
  
• In In the Interest of A.M. and B.M, the Court examined "under what circumstances a parent, who has been ordered to pay periodic child support, may raise the affirmative defense of Texas Family Code section 157.008", a statute allowing a parent to off-set child support if the parent cared for the child longer than the court-ordered possession. In an almost unanimous opinion, Justice Medina reversed the lower court by holding that "reimbursement remedies of offset or counterclaim are alternative, not cumulative." Justice Johnson wrote a concurring and dissenting opinion.
  
• In Evanston Ins. Co. v. Atofina Petrochem., Inc., Justice Green issued this unanimous opinion discussing the scope of insurance coverage that is provided to a third-party additional insured under an excess insurance policy.
  
• In Belt v. Oppenheimer, Blend, Harrison, & Tate, Inc., the Court addressed whether there is a legal bar preventing an estate's personal representative from maintaining a legal malpractice claim on behalf of the estate against the decedent's estate planners. In a unanimous opinion, Justice Jefferson wrote that there is no legal bar.
  
• In Shupe v. Lingafelter, the court issued this per curiam opinion holding that the failure to submit a negligent entrustment charge in this personal injury car crash case was harmless error.
  
• In Amer. Flood Research v. Jones, the Court issued this per curiam opinion regarding imposing sanctions on a lawyer for discovery abuses.
  
• In In re Ron Smith, the Court issued this per curiam opinion regarding a trial court's order setting aside a party's cash deposit in lieu of a supersedeas bond.

High court to decide if woman can sue pastor: Yesterday’s edition of the Fort Worth Star Telegram contained this article reporting that the "Texas Supreme Court will review a lower court ruling allowing a woman to sue her minister after he divulged details from her marriage counseling sessions to his congregation."