All three of these were chosen for argument with last week’s orders (blog post):

• The Court chose an argument date for In re Stephanie Lee, No. 11-0732: February 28, 2012.

• It granted a motion to “reset” the argument in Combs v. Roark Amusement and Vending, L.P., No. 11-0261 (the case about arcade claw machines). It had been scheduled for February 28, 2012. No new date has been assigned.

• And — for the second in the past two months — it denied a party’s request to reschedule oral argument. Without comment, the orders list notes that a request was filed in In re the Office of the Attorney General, No. 11-0255. It remains set for oral argument on February 27, 2012. (A similar request was denied on December 22, 2011 in Ashford Partners, Ltd. v. Eco Resources, Inc., No. 10-0615. On that orders list, Justice Guzman noted her dissent to the denial of the motion.)

In at least one regard, U.S. Supreme Court advocates have it easy. They know about the grant of review before the merits briefs are even filed, so they can block out preparation time — many go to the elaborate ends of participating in outside moot courts.

In the Texas Supreme Court, by contrast, there can be just a few weeks between the grant of review and the oral argument date. The lawyers in the four cases mentioned above were originally given about four weeks notice of the argument date.

With two of these motions being denied in recent months, I’m curious to know what reasons for rescheduling the Court is finding persuasive — and unpersuasive.

February 27, 2012

• Wendell Reeder v. Wood County Energy, LLC; Wood County Oil & Gas, Ltd.; Nelson Operating, Inc.; Dekrfour, Inc.; Bobby Noble; Exzena Oil Corporation; David Fry And Patricia Fry, No. 10-0887. A case about the standard of care required of oilfield operators in relation to the mineral-rights holders.

• Enbridge Pipelines (East Texas) L.P. v. Avinger Timber, LLC, No. 10-0950. A takings case about how the value of the property is measured. How do courts distinguish value that was already present in the property before the taking was announced versus any value added by the added to the property from the project itself?

• In re the Office of the Attorney General, No. 11-0255. In this child support case, the question is whether the contempt remedy is still available when the parent makes payment after an enforcement hearing is noticed but before it is held. The State argues that the statute favors an ongoing punishment for those who did not pay timely before notice rather than the notice offering an additional incentive to submit payment before the hearing.

February 28, 2012

• Susan Combs, Comptroller of Public Accounts of The State of Texas, and Greg Abbott, Attorney General of the State of Texas v. Roark Amusement and Vending, L.P., No. 11-0261. If you’ve been waiting for a case about those coin-operated machines where you try to maneuver a crane arm to grab a small plush toy, this really is your lucky day. Just don’t get too excited: it’s a tax case about whether the owner of a machine gets a refund on the sales tax they paid on the plush toys.

• City Of North Richland Hills, Texas v. Laura Friend, Individually and as personal representative of the estate Of Sarah Friend, deceased and Luther Friend, individually, No. 11-0367. A case about the scope of the Tort Claims Act. Does it immunize government the against a claim that a defibrillator was not provided at a city water park?

Date to be determined

• In re Stephanie Lee, No. 11-0732. The case asks about what discretion a trial court has to refuse to enter a mediated settlement agreement in a family-law case. (earlier post) The Court issued a stay, granting temporary relief. An oral argument date has not been announced.

Opinions

Do the findings of a city nuisance panel foreclose a takings claim in court? No, but the suit must be brought promptly.

Today the Court denied rehearing in City of Dallas v. Stewart, No. 09-0257, in which it had held that a citizen whose property was taken by a city administrative body should be able to challenge that finding in court.

A number of cities and government groups had filed amicus briefs, arguing that the new rule was unworkable. Justice Guzman noted many of those critics in her opinion today dissenting from the denial of rehearing (opinion).

Chief Justice Jefferson also reworked his five-vote majority opinion, adding a new section to respond to those critics. He noted how rare it is for property owners to file these suits for judicial review, both because of the short time window available and because the property owner bears the risk of paying the city’s legal costs if it loses.

In a related case, the Court today resolved Patel v. Everman, No. 09-0506 by per curiam opinion. In that case, the property owner had filed a suit for judicial review — but then non-suited it. Later, he filed a separate suit to challenge the taking. The Court rejected this as an attempt to circumvent the time limits: “Patel cannot attack collaterally what he declined to challenge directly.”

Workers Comp coverage extends to temporary workers, even if neither the employer nor the insurance carrier intend it to do so

Port Elevator-Brownsville, L.L.C. v. Rogelio Casados and Rafaela Casados, No. 10-0523 (Guzman, J.)

Casados was a temporary worker who was killed on the job. Port Elevator (the company that had hired him through the temp agency) did have workers compensation coverage, although it had not separately paid to cover its temporary workers. Its workers comp carrier (Texas Mutual) also denied coverage to Casados.

When Casados filed a lawsuit, Port Elevator invoked the workers-comp bar as a defense. Today’s opinion for a unanimous Texas Supreme Court holds that his lawsuit was barred by the Texas Workers Compensation statute because Port Elevator had obtained coverage for at least part of its workforce.

The key to the Court’s reasoning was its conclusion that Texas law did not permit an employer to “split” its workforce with regard to workers comp. Either all the workers are covered, or none are covered. For this reason, the Court concluded that it did not matter if Texas Mutual had actually charged or collected a premium for temporary workers — they were covered the same as full employees.

Here, Casados offered several reasons why the Court should, in its words, “adopt an additional, intent-based exception to the rule against splitting workforces.” That framing sounds a little ominous. Really, the Court is asking if the statute restricts the freedom of contract by carriers and employers to choose a narrower range of coverage. The Court’s holding is, yes, it does. Whether the parties wanted narrower coverage is irrelevant; the statute makes coverage all or nothing.

In this case, that’s very bad for Casados — perhaps doubly so because his workers comp claim has already been denied. In the longer term, this holding may cut both ways for employers. A bar to suit is nice, but firms that employ a significant number of temporary workers may see higher premiums to compensate.

How does supersedeas apply to the decisions of state licensing bodies?

In re Carl Bass, Patricia Grutzmacher, and Thomas Bauer, No. 11-0245

We don’t know the answer to that question just yet. But the Texas Supreme Court is showing some interest in it, today ordering that a trial court provide more detail about its reasoning.

A state board suspended the license of three accountants. They sued to invalidate those suspensions under the Open Meetings Act. The district court agreed with them on the merits of that claim — but allowed the state to supersede that judgment pending appeal without posting any sort of security (which had the practical effect of reinstating the suspensions).

The accountants argued that Texas Rule of Appellate Procedure 24.2(a)(3) should give the trial court discretion to deny supersedeas, even when a state agency is involved that normally does not have to post a bond. The district court and court of appeals rejected that argument.

With today’s order, the Texas Supreme Court paused its own proceedings to ask the trial court to formally state its conclusions of law and findings of fact.

The State is urging an absolute rule that it can supersede all judgments, regardless of trial court discretion.

The order by the Texas Supreme Court asks the trial court to state whether that is the principle on which it ruled for the State, or whether it did so under its general discretion over supersedeas. If the former, then the case presents a pure question of law. If the latter, then t is a much more challenging mandamus.

The case is In re Stephanie Lee, No. 11-0732. It’s a mandamus challenging a trial court’s decision not to approve a mediated settlement agreement in a custody dispute.

According to the article, this case is the first time in about twenty years that the family law section of the state bar has weighed in with a Texas Supreme Court amicus brief.

The State Bar argues in its amicus brief (PDF) that the statute allowing these mediated settlement agreements limits the trial court’s discretion to second-guess the decisions made about the child’s best interests. The practical concern is that litigants are less likely to choose mediation if they fear that the trial court will simply reject the conclusions.

The State itself (through OSG) filed an amicus brief (PDF) last month taking the opposite view, arguing that the trial court has an overarching duty to look out for the best interest of the child when entering family-law orders.

Hat tip: Disputing

Circuit Splits

Newly minted attorney Nicholas Wagoner has hit the ground running with Circuit Splits a blog focused on the U.S. Supreme Court. Well, to be more precise, it’s focused on cases in lower courts that show the kind of circuit split that might tempt the high court to grant review. The updates also flow through to the blog’s Twitter feed.

It’s reminiscent, both in name and content, of the “Split Circuits” blog by Professor Benjamin Spencer, which has been running since 2005.

It’s good to have multiple eyes on the same problem, and the early output is impressive. More importantly, the authors of Circuit Splits makes an effort (in the right-hand column) to break the cases down by circuit of origin and by topic — which is, after all, what a reader would care about. Will that scale? I don’t know. But I’m glad that the new blog is already focused on that key problem.

Texas Appellate Watch

The other new blog is Texas Appellate Watch, started by Scott P. Stolley and Richard B. Phillips Jr. of Thompson & Knight.

The emphasis so far is on the Texas Supreme Court (its weekly orders are noted) and the Fifth Circuit. The authors also pass along some articles they have written on more general appellate topics (like what words to avoid in a brief).

John Ganim v. J. Farouk (Frank) Alattar, No. 10-0592.

Two business partners discussed entering a real-estate transaction together to buy some property, and one of them signed for it as “Trustee” (of an unidentified trust). The two later had a falling out, disagreeing about whether the land was bought for them collectively or just by one of them.

In June, the Texas Supreme Court held that the statute of frauds did not bar enforcement of the parties’ oral agreement about this real estate purchase (opinion).

Rehearing was sought, and an amicus brief was submitted by former Justice Brister on behalf of the Episcopal Diocese of Fort Worth — which had its direct appeal about the ownership of church property accepted by the Court two weeks ago.

The amicus brief suggests that the diocese is concerned about how a broad reading of Ganim v. Alattar might affect its pending direct appeal:

… the opinion’s suggestion that a claimant to property can plead around the statute of frauds and the Texas Trust Code by asserting nothing but an oral agreement for joint acquisition of land. Can a third party — who has no title, no signed writing, and no money at risk — become owner of real estate simply by convincing a jury that an oral promise of joint ownership was made many years ago? If that is Texas law, then claimants from Rome, Canterbury, or anywhere else might ask a jury to award interests in Texas church properties based on nothing but oral testimony about “understandings” from long ago.

The Court’s grant of rehearing in Ganim gives it a little more time to sort through the broader implications.

The amicus strategy here is also instructive. Although many groups have some interest in how this rule applies to partnerships or trusts, this amicus brief had the secondary (or perhaps primary?) goal of highlighting the importance of the diocese’s pending direct appeal. Nicely done.

If you have questions for the panel, Todd Smith is collecting suggestions on his blog post about this panel.

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

When the Texas Supreme Court takes up a direct appeal, it uses the language that it “notes probable jurisdiction” — a phrase that parallels U.S. Supreme Court practice for its direct appeals. The Court only has limited power to take these cases, and when a litigant seeks a direct appeal, they file a “jurisdictional statement” urging the Court to accept jurisdiction. Once it has done so, the Court then requests merits briefs and can set the case for oral argument.

Generally, only injunctive relief against a state statute can support a direct appeal

What type of cases can support this narrow type of jurisdiction?

Looking for guidance, a litigant might turn to Texas Rule of Appellate Procedure 57 (“Direct Appeals to the Supreme Court”). The rule explains some of the procedure for handling “direct appeals … that are authorized by the Constitution and by statute.” Tex. R. App. P. 57.1. Discerning which appeals are “authorized” is left to the reader.

The Court’s appellate jurisdiction over a direct appeal flows ultimately from the Texas Constitution, which sets the outer boundaries for the Legislature and Court to work within:

Sec. 3-b. APPEAL FROM ORDER GRANTING OR DENYING INJUNCTION. The Legislature shall have the power to provide by law, for an appeal direct to the Supreme Court of this State from an order of any trial court granting or denying an interlocutory or permanent injunction on the grounds of the constitutionality or unconstitutionality of any statute of this State, or on the validity or invalidity of any administrative order issued by any state agency under any statute of this State.

Tex. Const. art. V, §3-b. That focus is quite narrow — just the handful of situations when an injunction turns on the constitutionality of a state statute or administrative order.

The Legislature, in turn, has further narrowed the boundaries. The statute describing the Texas Supreme Court’s appellate jurisdiction speaks only about cases in which a statute’s constitutionality is questioned — not mere administrative orders. See Tex. Gov’t Code §22.001(c) (“An appeal may be taken directly to the supreme court from an order of a trial court granting or denying an interlocutory or permanent injunction on the ground of the constitutionality of a statute of this state.”)

Although administrative orders are omitted from this general grant of authority, the Legislature has sometimes made specific grants of power to hear direct appeals, such as during electric deregulation in the late 1990s.

Direct appeals are therefore very rare

While I was at OSG, I came across two situations in which the Texas Supreme Court heard a direct appeal — the state-level challenges to the 2001 redistricting process, and the 2004-2005 round of school-finance litigation.

To double check, I recently cranked up the docket database behind DocketDB and filtered it down to just direct appeals filed since 2000.

In those 10 years, I found just two other examples:

• In 2000, a set of electric-deregulation appeals came before the Court under a statute specifying that direct appeals could be taken for that class of orders.

• In 2002, the Court heard a direct appeal in an election challenge to the eligibility of a judge to be on the ballot for one party after running in the other party’s primary.

That’s it.

I did find one other time when the Court at least took the step of requesting briefing by the parties. But in that case, as in every other direct appeal in the past decade, the Court ultimately declined to hear the case.

When can private litigants file a direct appeal?

Notably, all of these successful direct appeals — before today, at least — involved the state on one side or the other. Each directly involved the legality of some state action.

The direct appeal in Episcopal Diocese of Fort Worth represents the unusual case where a dispute between two private litigants raises the right kind of constitutional question about a state law. The Court’s decision to accept jurisdiction may also have been motivated by the other pending cases in the state raising similar questions. By taking this direct appeal, the Court may hope to remove some broader uncertainty in Texas law.

So I would think twice (or more) about raising a direct appeal. Remember that the intermediate court of appeals can grant the same relief as the Texas Supreme Court, and (because of a quirk familiar to Texas appellate lawyers) those courts actually have more power to reverse when facts are disputed. If your concern is truly the speed of the answer, then having a direct appeal dismissed by the Texas Supreme Court doesn’t advance that goal.

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.