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.

Three of the programs are specific to the Texas Supreme Court:

• Thursday at 9:40, Pam Baron will be presenting a talk near to my heart, “Supreme Court Trends and Statistics.” ¹

• On Friday afternoon, former Justice Brister will be presenting the formal Texas Supreme Court update at 1:00.

• That will be followed by a panel discussion with Chief Justice Jefferson, Justice Hecht, Justice Johnson, and Justice Guzman at 1:30 (with former Justice Hankinson moderating).

I enjoyed the conference last year, and I’m sorry to miss it this year. (I’m leaving in the morning to visit family out of state. Luckily or not, they have internet access, so don’t be too surprised to get a blog post on Friday.)

1. When speaking about Texas Supreme Court cases, it’s always nicer to have the Thursday speaking slot — no one expects you to have already digested the Friday morning orders.

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).

On rehearing, the Marks decision breaks the other way

The Texas Supreme Court granted rehearing in Marks v. St. Luke’s Episcopal Hospital, No. 07-0783 (DDB) and withdrew its previous opinions — which had been issued in last August’s end-of-August orders.

The court now divides 5-4 (in a quite fragmented way) in favor of the hospital, concluding that the tort falls within the medical-malpractice statute and thus must meet those added procedural requirements.

Justice Medina wrote last year’s opinion, and he writes this year’s opinion on rehearing.

Marks was last term’s most divided case, and the rehearing is perhaps even more. Here’s how the opinion describes the break:

Justice Medina delivered the Court’s judgment and an opinion, in which Justice Hecht joined, and in which Justice Wainwright, Justice Johnson and Justice Willett joined as to Parts I & IV.

Justice Wainwright filed a concurring opinion.

Justice Johnson filed a concurring opinion, in which Justice Willett joined, and in which Justice Hecht joined as to Parts II and III-A, and in which Justice Wainwright joined as to Parts I, II, and III-A.

Chief Justice Jefferson filed an opinion concurring in part and dissenting in part, in which Justice Green, Justice Guzman, and Justice Lehrmann joined.

Justice Guzman filed an opinion concurring in part and dissenting in part.

The official Texas court statistics run from September to September, so the end of August marks the last chance to get an opinion off the books before it rolls over.

Last September, I created some charts with Texas Supreme Court opinion statistics that lets you click through to see exactly which opinions caused a particular Justice to pen a dissent, concurrence, or majority.

Since then, I’ve added data for the current year, as well as a few previous years. The 2010 opinion statistics are up-to-date and ready for the last set of opinions.¹

It’s true that counting up each Justice’s opinions is a rather poor measure of their contribution to the work of the Court (as the Chief Justice has noted at recent conferences). As outsiders, we don’t see the collaborative work that Justices do helping each other.

But the opinion breakdown remains one of the most popular sets of court statistics.

As you’re starting up your office pool about which Justices will distinguish themselves in different categories, I would echo David Letterman’s admonition: “Remember, this is not a competition, it is only an exhibition — please, no wagering.”

1. If you still see a column of question marks, that represents the per curiam opinions. We are never told precisely which Justice wrote each one, but the official statistics include the total number of per curiams each Justice wrote. Once the Office of Court Administration releases those totals, I add them to my chart.

I received this email, too. I didn’t know quite what to make of it — the return address was mysterious, and you could tell by the email headers that it had been sent through a bulk-email system (Campaigner).

The Texas Lawyer article hints, but does not quite say, that the bar’s disclosure excluded lawyers who had made an affirmative election under Government Code §552.1176 to keep their email addresses private.²

I don’t much mind a stray email or two; if you want to get all sorts of interesting emails, you should start a law blog. But if for some reason you don’t want your email address included in the next data dump that the state bar provides to a marketing company (and I’d expect that within the next few weeks), this might be a good time to check your email privacy settings on the State Bar website.

Court-watchers might also note that the State Bar won a previous lawsuit about releasing attorney records that made its way to the Austin Court of Appeals. Looking at the law prior to the enactment of §552.1176, the Austin Court concluded that the bar’s attorney records were judicial records not subject to the open-records act. The Texas Supreme Court denied review in that case (DDB).

1. The email asks recipients to vote against the proposed new disciplinary rules about sex with clients because the rules are not strict enough, which so far as I can tell, would leave in place the relatively more lax rules we have today. The ways of politics are mysterious to me.
2. Sec. 552.1176. CONFIDENTIALITY OF CERTAIN INFORMATION MAINTAINED BY STATE BAR.
   (a) Information that relates to the home address, home telephone number, electronic mail address, social security number, or date of birth of a person licensed to practice law in this state that is maintained under Chapter 81 is confidential and may not be disclosed to the public under this chapter if the person to whom the information relates:
   (1) chooses to restrict public access to the information; and
   (2) notifies the State Bar of Texas of the person’s choice, in writing or electronically, on a form provided by the state bar.
   (b) A choice made under Subsection (a) remains valid until rescinded in writing or electronically by the person.
   (c) All documents filed with a county clerk and all documents filed with a district clerk are exempt from this section.

• issued two decisions, including one about the jury charge in deficiency-judgment cases, which should be of interest to many lawyers these days;

• chose three new cases to be argued this fall, including the case about press access to travel vouchers submitted for the Governor’s out-of-state travel; and

• denied a large number of petitions after its end-of-summer conference this week. (The petitions that had been carried forward to today’s list were those marked for discussion at conference by at least one Justice.)

Buried within the orders list is a small news item I didn’t know: The Texas Supreme Court’s November 10, 2010 argument sitting will be in Amarillo, Texas, at the Globe-News Center.

Today’s two decisions

The jury instructions on “commercial reasonableness” under U.C.C. Article 9

Regal Finance Company, Ltd. & Regal Finance Company II, Ltd. v. Tex Star Motors, Inc., No. 08-0148 (DDB)

This is a case about the deficiency that remained after a lender repossessed a vehicle under Article 9 of the U.C.C. and sold it at auction. The lender sued for the difference; the borrower contended that the lender had not followed “commercially reasonable” practices in the auction.

On appeal, the dispute boiled down to the jury instructions. They included this item (with emphasis added here by the Court):

Every aspect of the disposition, including method, manner, time, place and other terms must be commercially reasonable. A sale is commercially reasonable if it conforms to reasonable commercial practices among dealers in the type of property that was the subject of the sale.

The court of appeals concluded that this jury instruction made compliance with industry practice a requirement, not merely a safe harbor.

Voting 8-1, the Court reversed, holding that the word “if” in this instruction provided merely another way that a dealer could prove compliance. As such, the Court held that it matched the U.C.C.’s substantive provisions and that this dealer had introduced legally sufficient evidence. Justice Medina wrote the majority opinion.

Justice Johnson wrote a dissenting opinion. He would have interpreted the jury instruction to require proof of industry standards. For that reason, he would have held the lender to that standard even if the U.C.C. does not require it. (“[T]he Court does not adhere to the rule that sufficiency of the evidence must be measured against definitions as they are given in the jury charge, even if the definitions are incomplete or incorrect.”)

A contractor that installs a product on a house can sue the manufacturer for indemnity under Chapter 82 of the Civil Practice and Remedies Code

Fresh Coat, Inc. v. K-2, Inc., No. 08-0592 (DDB)

Texas law requires a “product” manufacturer to indemnify a “seller” of that product in certain circumstances when the seller has been sued by a buyer. This provision is embodied in Chapter 82 of the Texas Civil Practice and Remedies Code.

The dispute in this case involved synthetic stucco affixed to a house by a contractor. The question is whether the stucco attached in this way was still a “product” and whether the contractor (who provided installation services) was a “seller.”

The Court, writing through Justice Willett, concluded:

We answer yes to both, meaning Chapter 82 applies.

…

Chapter 82′s text does not limit “product” to exclude items that may later become part of a house wall. Also, a “seller” under Chapter 82 may include those who sell both products and services, so that a person who contracts to both provide and install a single product may be considered a seller of that product.

The Court also had to decide whether Chapter 82 applies when the contractor had agreed, by contract, to assume responsibility for the damage without being subjected to a typical product-liability tort suit.

On this issue, too, the Court sided with the contractor:

We also conclude that the manufacturer’s statutory obligation to indemnify the contractor covers a settlement payment made by the contractor to the homebuilder where the contractor may have been independently obligated by contract to indemnify the homebuilder.

Three new cases set for argument

On September 15, 2010

Out of today’s orders, I expect this to get the most news coverage. (The argument date falls before the election, which should also increase press interest.)

• Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers, L.P., & Hearst Newspapers, L.L.C., No. 09-0530 DDB. An open-records case about the travel records of state troopers submitted for the Governor’s out-of-state trips.

On November 10, 2010 (in Amarillo)

• Genesis Tax Loan Servs., Inc. & M. Suzanne Frossard v. Kody & Janet Kothmann & Kody Kothmann, No. 09‑0828 DDB. A case about lien foreclosures.

• In re Billy James Smith, No. 10‑0048 DDB. A case about the reach of the Texas statute that compensates people who were wrongfully convicted.

The First Court of Appeals has three job postings up:

• A law clerk position, open to new graduates and others.¹ (PDF) The listing says “Ideally, the applicant will be available to begin training with other Law Clerks on August 31, 2010.” So if you’re a new graduate and the kind of person who reads this blog, you might want to send them a resume. Now.

• A staff attorney position for an attorney with some experience (PDF). The term “staff attorney” is the Texas terminology for a more permanent, more senior law clerk.²

• A central staff attorney position, which would involve tasks for the Court as a whole more than any particular Justice (PDF).

I’ve written before about the benefits of a clerkship to start your legal career. And I have met quite a few attorneys that used used a well-timed stint as a staff attorney to shift the focus of their career toward appellate law.

I hope that three of my readers are about to do the same.

After I heard about these openings, I looked through the other court of appeals websites for similar postings. All I saw was a staff attorney position open in the Waco Court (PDF).

1. Update: This job listing says that a Texas license is required for this law clerk position, but I’ve been told that it is open to new graduates. I would not worry about that language. I suspect the court just recycled that part of the listing they normally use for staff attorneys. The application packet for 2011-2012 law clerks makes clear that “A license to practice is not a requirement, although applicants are encouraged to take the Texas Bar.” (PDF). There’s no reason this law clerk position should be any different.
2. Much as Texas eventually changed the term “briefing attorney” to “law clerk,” they probably should change staff attorney to something more befitting the position.

Today the Texas Supreme Court denied the request for relief filed by the Presiding Judge of the Texas Court of Criminal Appeals. In re The Honorable Sharon Keller, No. 10-0566 (DDB).

The one-order order list does not elaborate, beyond noting that Justice Hecht was recused.

The Texas Supreme Court can issue emergency relief even without the filing of a petition for review

There was one interesting order for those of you in the emergency-stay business. In The University of Texas Southwestern Medical Center at Dallas v. Larry M. Gentilello, M.D., No. 10-0582 (DDB), the Petitioner sought an emergency stay — and requested one without having first filed a petition for review.¹

The Respondent objected, arguing (PDF) that

the rules do not contemplate that any proceeding exists here until a party has filed a Petition for Review.

and that

A motion for extension of time to file a Petition for Review gives this Court nothing to review, and therefore, cannot initiate the proceeding that must exist before this Court may grant emergency relief.

With today’s order, the Texas Supreme Court implicitly disagreed. It granted the requested emergency relief and set a deadline to receive the formal petition for review.²

1. The petition had, however, filed a motion to extend time, opening a docket entry for the case.
2. The notation from the orders list:

   emergency motion to enforce statutory stay and vacate court of appeals’ order granted in part

   stay order issued

   [Note: The petition for review is due to be filed on or before September 22, 2010.]