Early last year, I wrote about the split among the Texas courts of appeals on whether mandamus relief is available to challenge a trial court’s ruling striking a Section 18.001 counteraffidavit.  Civil Practice and Remedies Code Section 18.001 counteraffidavits are used by defendants to contest the reasonableness and necessity of a claimant’s affidavit proof of medical expenses in personal injury cases.  The Texas Supreme Court has now resolved the split of authority and held that mandamus relief is available because an appeal is not an adequate remedy since the defendant’s ability to present a viable claim or defense at trial is severely compromised.

In In re Allstate Indemnity Company, No. 20-0071, the trial court’s challenged order excluded the defendant’s damages expert from testifying on any issue and it prohibited the defendant from offering evidence, questioning witnesses, or arguing to the jury about the reasonableness of the plaintiff’s medical expenses.  The supreme court wrote that the order was “far from routine.”

The trial court had expressed a number of reasons for striking the defendant’s counteraffidavit.  One by one, the supreme court’s opinion addresses each reason provided by the trial court and holds that the trial court erred.  Many of the grounds addressed are commonly-used grounds for striking counteraffidavits.

Lack of expertise.  The supreme court rejected the trial court’s ruling that the affiant lacked the expertise to controvert the reasonableness of expenses.  The record showed that the affiant had extensive education and training in nursing and was a licensed registered nurse.  She had 21 years’ experience in healthcare, including 12 years reviewing medical bills.  The supreme court expressly rejected the contention that the nurse had to be in the same field of medicine as was reflected by the medical charge in order to attest to reasonableness of the charge.

Lack of “reasonable notice.”  The supreme court rejected the conclusion that the counteraffidavit failed to give reasonable notice of the charges that were being contested.  The court likened Section 18.001’s “reasonable notice” requirement to the “fair notice” requirement for pleadings.  In this case, the court held that the reasonable notice standard was met where the affiant itemized each charge being controverted and compared it to the median charges for the same service in the same time-frame and zip code.

Unreliability.  The supreme court held that the trial court abused its discretion by striking the affidavit due to the trial court’s conclusion that the affiant’s opinions were unreliable.  The supreme court held that Section 18.001 does not make reliability one of the threshold standards applicable to Section 18.001 counteraffidavits.

Limits on defendant’s evidence at trial.  The supreme court also held that the trial court abused its discretion by prohibiting the affiant from testifying at trial and by prohibiting the defendant from questioning the plaintiff’s witnesses, offering evidence, or arguing to the jury about the reasonableness of the plaintiff’s medical bills.  The court observed that Section 18.001 is purely procedural and designed to streamline a plaintiff’s proof.  The failure of a defendant to file a counteraffidavit under Section 18.001 has no impact on the defendant’s ability to challenge reasonableness and necessity of a plaintiff’s medical expenses at trial.  This last holding is consistent with the dissent in the earlier Dallas Court of Appeals case (In re Parks) that I wrote about last year.

Whether a defendant can be sued in the courts of a particular state depends upon the defendant’s presence in the state.  If the defendant lives there, or in the case of an entity, has its principal place of business there or is incorporated there, the defendant has availed itself of the state’s jurisdiction and may be sued there.  But what if the defendant simply engages in some level of business there?  The defendant must have taken some purposeful act by which it availed itself of the privilege of conducting business in the state in order to be subject to suit in the state.  The Supreme Court has required that there be some affiliation between the state, the defendant’s activity, and the controversy at hand in the lawsuit. The test recited for this analysis is whether the plaintiff’s claims “arise out of or relate to the defendant’s contacts” with the forum state.

Before last month’s decision in Ford Motor Co. v. Montana Eighth Judicial Dist. Court, No. 19-368, 221 U.S. LEXIS 1610 (Mar. 25, 2021), many courts had described this test as a but-for, causal nexus requirement between the plaintiff’s claims and the defendant’s contacts with the forum state.  But in the recent Ford Motor Company opinion, a majority of justices on the U.S. Supreme Court expressed a view of the test that broadens its scope.  Writing for herself and four other justices on the court, Justice Kagan wrote that the first half of the standard—arise out of—does indeed ask about causation.  However, she wrote that the second half of the standard—relate to—“contemplates that some relationships will support jurisdiction without a causal showing.”  She emphasized that the “relate to” standard does impose limits that protect defendant from being hauled into a jurisdiction when there would be no expectation of being sued there.

The facts of the two consolidated cases decided by the opinion in the Ford Motor Company case illustrate how the jurisdiction test now works.  Both lawsuits involved auto accidents where a Ford vehicle was being operated.  In one case, the plaintiff was driving a Ford Explorer in the state of Montana when the accident occurred.  The vehicle had originally been sold in Washington state.  It was designed in Michigan and manufactured in Kentucky.    Suit was brought against Ford in Montana for design defects, failure to warn, and negligence.

In the other suit, the plaintiff was a passenger in a Crown Victoria when the accident occurred in Minnesota.  This vehicle was designed in Michigan, manufactured in Canada, and originally sold in North Dakota.  Suit was brought against Ford in Minnesota for design defects, negligence, and breach of warranty.

In each of these suits, if the “arise out of or relate to the defendant’s contacts” test was a but-for, causal analysis, then it is difficult to see how the plaintiffs’ respective claims arise out of or relate to Ford Motor Company’s activities in Montana or Minnesota, given that the design, manufacture, and sale of the vehicles occurred elsewhere.  But Ford clearly markets, sells, and services these vehicles all over the country, including Montana and Minnesota.  Under Justice Kagan’s expanded view of the “relate to” portion of the test, the plaintiffs’ respective claims can now be said to relate to Ford’s broader activities in Montana and Minnesota, such that Ford may be sued in those states.

Justice Alito concurred in the result, but wrote separately to express his concern that the majority needlessly complicated the analysis by its reinterpretation of “relate to.”  He felt that the original “minimum contacts” test espoused in 1945 in International Shoe was sufficiently broad to allow Ford to be sued in Montana and Minnesota.

Justice Gorsuch, joined by Justice Thomas, also concurred in the result, but wrote separately to suggest that the majority was using new words to express old ideas.  They suggested that the jurisprudence of personal jurisdiction might need a remake from the top down to bring practical meaning and understanding to it.

The Dallas Court of Appeals has held that the Texas Commission on Human Rights Act (TCHRA) and its prohibition against unlawful employment practices because of sex, encompasses claims for unlawful employment practices because of sexual orientation.  This interpretation is the first for an appellate court in Texas and the court’s analysis follows the United States Supreme Court’s holding from last year in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020).

Discrimination Claim

The procedural posture in Tarrant County College District v. Sims, No. 05-20-00351-CV (Tex. App.—Dallas Mar. 10, 2021, n.p.h.), is a little unusual.  Plaintiff Amanda Sims filed suit against her former employer, Tarrant County College District (TCCD), claiming that she was discriminated against because of her sexual orientation, and alleging violations of the Texas Constitution and the Texas Whistleblower Act.  TCCD filed a plea to the jurisdiction and sought to dismiss Sims’ claims on the basis of sovereign immunity.  TCCD sought dismissal of Sims’ Whistleblower Act claims in part because it contended that the TCHRA provided the exclusive remedy of Sims’ discrimination and anti-retaliation claims.   In short, TCCD asserted that the TCHRA is applicable to claims for discrimination based upon sexual orientation.  Sims’, however, asserted that the TCHRA did not preempt her claims because she asserted that the TCHRA does not prohibit sexual orientation discrimination.

TCCD Appeal

In TCCD’s appeal of the denial of its plea to the jurisdiction, the Dallas Court of Appeals was presented with the jurisdictional question of whether the TCHRA preempts Sims’ sexual orientation discrimination claims because of the fact that the Act applies to unlawful employment acts “because of sex.”  Writing for the court of appeals, Justice Craig Smith noted that the TCHRA was enacted to address workplace discrimination and to conform with federal anti-discrimination and retaliation laws under Title VII of the Civil Rights Act.  After noting that the Texas Supreme Court has advised that Texas courts should look to federal law for guidance when the TCHRA and Title VII contain analogous language, the opinion turned to the U.S. Supreme Court’s interpretation of Title VII’s analogous language that was at issue in the Bostock case.

In Bostock, the U.S. Supreme Court observed that while the U.S. Congress likely did not have sexual orientation in mind when it enacted Title VII, the plain wording is controlling such that when an employer fires an individual for being gay or transgender, a violation of the act has occurred.  Bostock, 140 S. Ct. at 1737, 1754.   The Dallas Court of Appeals concluded that Bostock’s reasoning required that Texas’s law be construed in the same fashion to prohibit discrimination based on an individual’s status as a homosexual or transgender person.  Thus, the court held that the TCHRA was applicable and forecloses Sims’ claims for relief under the Texas Whistleblower Act.

Justice Schenck filed a concurring opinion in which he asserted that it was unnecessary for the majority to reach this question because he asserted that the issue had not arisen in an adversarial posture.  He further opined that the language of the TCHRA must be construed according to the language in use at the time and the language at the time would not have allowed for the construction given to it by the majority.  He further accused the majority of exceeding its role of interpreting the law.

Last year, I reported that the Texas Supreme Court granted a record number of petitions for review in cases where the court of appeals had issued an opinion designated as a “Memorandum Opinion.”   The statistics seem to dispel the notion that there is an inherent bias against review of “Memorandum Opinions.

In 2020, the number of petitions granted in cases where the court of appeals had issued a Memorandum Opinion returned to a level in line with prior years reviewed, at 35%.  In my view, this is still a hefty number when one considers that Memorandum Opinions (by court rule) are supposed to be reserved for more routine rulings and if the case is routine, it is less likely to be of interest to the Texas Supreme Court.

Cases involving a court of appeals Memorandum Opinion had a higher percentage of reversals (79%) than cases involving a court of appeals Opinion (74%).

This past year presented some unique challenges for the judiciary, and specifically for the Supreme Court of Texas.  The court confronted a pandemic, a ransomeware attack, and some unusual election-year court filings.  In spite of these challenges, the court persevered and performed.  Here’s what my initial calculations show:

  • During the 2020 calendar year, the court disposed of 97 causes, consisting of 82 petitions for review, 12 original proceedings, and 3 certified questions.  By comparison, last year, the court disposed of 88 causes, and in 2018, the court disposed of 98 causes.
  • 30 of the causes were disposed of by per curiam opinions (unsigned opinions).  Last year, the court issued 19 per curiam opinions.  In 2018, the court issued 24 per curiam opinions.
  • The number of opinions in original proceedings was higher than the prior year.  Some of the increase is due to election-year filings.
  • The reversal rate in causes from petitions for review remained steady at 77%.
  • One new statistic that I looked at was the number of causes with unanimous opinions.  Excluding per curiam opinions, there were 65 unanimous opinions in causes from petitions for review, 10 unanimous opinions in original proceedings, and 2 unanimous opinions in certified question causes.  Overall there was some disagreement in 20 percent of the court’s decisions.

I will be releasing additional statistics from the 2020 term in the coming weeks, so stay tuned…

Cases involving questions on the admissibility of evidence rarely rise to the level of importance that the Texas Supreme Court gets involved.  Yet these questions routinely arise in the trial courts and are fundamental to trial practice.  The Texas Supreme Court recently examined an evidence question involving the admissibility of public records.

In Fleming v. Wilson, the defendants moved for summary judgment on the defense of collateral estoppel.  They supported their motion by attaching a jury verdict form and a judgment from a prior case (tried by the same trial judge).  The verdict form and judgment were not certified or authenticated copies, but they bore a watermark stating that they were unofficial copies of the district clerk, they contained the district clerk’s initialed, file-stamp, and they each had the trial judge’s signature on them.

The plaintiffs objected on the grounds that the documents were not certified or authenticated.  The trial court overruled the objections and granted summary judgment in favor of the defendants.  The plaintiffs appealed.

On appeal, the court of appeals reversed the summary judgment after concluding that the judgment and jury verdict were not sufficiently authenticated.

The Texas Supreme Court reversed the court of appeals judgment and reinstated the trial court’s summary judgment.  The court rejected the idea that if a document is not self-authenticating (as some documents are) that the proponent of the document must necessarily introduce some additional, extrinsic evidence to authenticate the document.

Turning to Texas Rule of Evidence 901, the court observed that it contains a non-exclusive list of examples of documents and how those documents might be authenticated.  Some of those examples indicate a need for extrinsic evidence, but others do not.

With respect to the jury verdict and judgment that were the documents in question, the court held that they were properly authenticated based upon two separate examples found in Rule 901.

Paragraph (b)(4) states:

Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

Paragraph (b)(7) states:

Evidence About Public Records.

Evidence that:

(A) a document was recorded or filed in a public office as authorized by law; or

(B) a purported public record or statement is from the office where items of this kind are kept.

Because the jury verdict and judgment bore a diagonal watermark from the district clerk’s office, a stamp, and signature noting when they were filed in the clerk’s office, and the trial judge’s own signature, the court held that the trial court did not abuse its discretion by treating the documents as authentic under paragraph (b)(4).

Further the court noted that under paragraph (b)(7) an uncertified public record might be authenticated if it contains sufficient evidence that it was filed or kept in a public office.  Here, the court concluded that the watermark and file-stamp were sufficient such that the trial court could not be said to have abused its discretion by finding the documents authentic.

For the readers’ benefit, links to the documents at issue showing the watermark, file-stamp, and signature may be found at this link.

The breadth of the Fleming  holding remains to be seen.  In particular, suppose the documents had only the judge’s signature on them, or only the the clerk’s file-stamp (now usually electronic).  Would the either of those facts qualify the documents for authentication under Rule 901?

At a recent continuing education seminar, one of the presenters stated as a fact that amounts awarded in a judgment for prejudgment interest do not need to be included in the amount of a supersedeas bond.  The presenter cited the Texas Supreme Court’s opinion in In re Nalle Plastics Family Ltd. Partnership, 406 S.W.3d 168 (Tex. 2013), as support for this statement.  There’s just one problem with relying on Nalle Plastics for this proposition—the issue in that case is whether attorney’s fees must be included in the amount of a supersedeas bond.

Nevertheless, Nalle Plastics has been relied upon by at least two intermediate appellate courts for the proposition that prejudgment interest does not have to be included in the total amounts that must be superseded.  Moreover, two of the justices that served on the panels of the intermediate appellate courts that decided those cases are now Texas Supreme Court justices.

Let’s see how we got to this point.  Of course, the starting point of any analysis is to look at what the supersedeas statute says.  Texas Civil Practice and Remedies Code Section 52.006(a) provides:

when a judgment is for money, the amount of security must equal the sum of:

(1)  the amount of compensatory damages awarded in the judgment;

(2)  interest for the estimated duration of the appeal;  and

(3)  costs awarded in the judgment.

Tex. Civ. Prac. & Rem. Code § 52.006(a).  The issue in Nalle Plastics was whether attorney’s fees had to be included in the amounts to be superseded.  The opinion focused upon whether attorney’s fees are “compensatory damages” and whether they are “costs.”  In addressing the issue of whether attorney’s fees are compensatory damages, the court observes that not every amount can be considered damages, even if it is compensatory.  As examples of other recoveries that may be compensatory but still not be damages, the court states, “court costs make a claimant whole, as does pre-judgment interest. Yet it is clear that neither costs nor interest qualify as compensatory damages. Otherwise, there would be no need to list those amounts separately in the supersedeas bond statute.”  Thus, the Court concludes that except for attorney’s fees that are awarded as damages (such as when an attorney sues a client for non-payment of fees), fees are not “compensatory damages” damages under Section 52.006(a)(1) that must be included in the amount of security for a supersedeas bond.

The Nalle Plastics dicta that court costs and interest are not “compensatory damages” under Section 52.006(a)(1) gets picked up later by both Houston appellate courts to arrive at the conclusion that prejudgment interest does not have to be included in the amounts superseded.

In Kennedy Con., Inc. v. Forman, 493 S.W.3d 103 (Tex. App.—Houston [14th Dist.] 2014, opinion on motion), the court considered a challenge to the amount of a supersedeas bond due to the fact that the amount did not include prejudgment interest.  Quoting Nalle Plastics, the Kennedy Court holds that there was no abuse of discretion in omitting prejudgment interest because prejudgment interest is not compensatory damages.

Two years later, the Houston First District Court of Appeals, when faced with the same question, quotes Nalle Plastics and cites Kennedy in holding that there was no abuse of discretion in omitting prejudgment interest because it is not “compensatory damages.”  Eagle Oil & Gas Co. v. Shale Explor., LLC, 510 S.W.3d 92 (Tex. App.—Houston [1st Dist.] 2016, opinion on motion).

Before relying upon any of these three authorities, practitioners should consider two things.  First, the reason the  Nalle Plastics Court said that prejudgment interest would not be compensatory damages is because the legislature had separately itemized interest as something to be included in the amount superseded in Section 52.006(a)(2) of the Civil Practice and Remedies Code.  Thus, merely saying that it is not “compensatory damages” doesn’t end the inquiry.

Second, arguably Section 52.006(a)(2)’s use of the phrasing “interest for the duration of the appeal” might be said to be limited to post-judgment interest, since by definition this phrasing describes post-judgment interest.   Such a construction of Section 52.006(a)(2) might require determining whether the dicta in Nalle Plastics precludes prejudgment interest from being “compensatory damages.”  It may be helpful to look at the dozens of Texas Supreme Court opinions that have uniformly described prejudgment interest as “compensatory” and often described it as form of damages.  See, e.g., Columbia Hosp. Corp. v. Moore, 92 S.W.3d 470, 473 (Tex. 2002) (“Prejudgment interest was, and continues to be, ‘compensation allowed by law as additional damages for lost use of the money due as damages during the lapse of time between the accrual of the claim and the date of judgment.’”).

The Texas Supreme Court may ultimately hold that prejudgment interest is not an amount that must be superseded during an appeal, but for now, practitioners may want to be avoid advising clients that it is a foregone conclusion that prejudgment interest will not have to be superseded.

The Fifth Circuit and the Texas Supreme Court recently reaffirmed the high bar that must be met to find that the plain language of a statute violates the absurdity doctrine.

Under the absurdity doctrine a court will construe a statute by applying the plain meaning of the words used unless it would lead to absurd or nonsensical results that the legislature could not possibly have intended.  See, e.g., El Paso Educ. Initiative, Inc. v. Amex Props., LLC, 63 Tex. Sup. Ct. J. 1166, 2020 Tex. LEXIS 436, at *14 (May 22, 2020), citing Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm’n, 518 S.W.3d 318, 325 (Tex. 2017).   While the rule is frequently cited, one is hard pressed to find cases where a court has held the doctrine applicable.

In City of Forth Worth v. Rylie, 63 Tex. Sup. Ct. J. 1036, 2020 Tex. LEXIS 395, at *15 (May 8, 2020), the Texas Supreme Court was asked to untangle “a cobweb of issues” to decide whether a state statute regulating coin-operated machines preempts a Fort Worth ordinance regulating eight-liners.  Eight-liners are video slot machines that pay out in coupons that can be exchanged for a prize or right to replay on a different machine.  The machine operators argued that the city’s interpretation of the statute led to an absurd result.  The Texas Supreme Court found their argument did not satisfy the doctrine.  “We will not construe a statute’s language to produce ‘patently nonsensical results,’ but this absurdity bar ‘is high, and should be,’ because mere oddity does not equal absurdity.”  Id. at *15, citing Combs v. Health Care Servs Corp., 401 S.W.3d 623, 630 (Tex. 2013).

The Fifth Circuit recently interpreted 28 U.S.C. Section 1441(b)(2) to decide whether the statute allows a non-forum defendant to execute a “snap removal” of a state case to federal court before other defendants, who are residents of the forum and would preclude removal, are served.  The appellant accepted that the statute’s plain language allows snap removal, but argued that such a result is absurd and defeats Congress’s intent.   The circuit court disagreed, holding that for the absurdity doctrine to apply the “result must be preposterous” and one that “no reasonable person  could intend.”  Texas Brine Co.. v. Am. Arbitration Ass’n, 955 F.3d 482, 486 (5th Cir. 2020), citing Antonin  Scalia  &  Bryan  A.  Garner, Reading Law:  The Interpretation of Legal Texts 237 (2012).

The Fifth Circuit’s holding follows in a long line of federal cases.  See, e.g., Crooks  v.  Harrelson, 282 U.S. 55,  60 (1930) (“[T]o  justify  a departure from the letter of the law upon th[e] ground [of absurdity], the absurdity must be  so gross as to shock the general moral or common sense.”); United States v. Dison, 573 F.3d 204, 210 n.28 (5th Cir. 2009).

The bottom line for a practitioner is to realize that courts do not favor the absurdity doctrine and will rarely hold that it overrides the words chosen by the legislature.

Two years ago, I noted that the data shows that the Texas Supreme Court grants a disproportionate number of petitions for review that come through certain intermediate appellate courts.   One of those intermediate appellate courts is the Third Court of Appeals District, informally known as the Austin Court of Appeals.  That trend continues.

Focusing on granted petitions for review, I was curious about where some of these disputes started out, so I looked at what counties the cases originated in.   All things being equal, I would expect to see more cases coming from counties with higher populations, which also have a higher number of trial courts.  My assumption proved to be generally true.

Petitions for review granted for the 10 most populous counties

Isolating the ten most populous counties in Texas, I looked at the number of petitions actually granted that originated in each county versus the number that one might expect to come from that county if the grant rate was in proportion to the population.  This is what the data looks like in graph form:

The Texas Supreme Court grants a higher-than-expected number of petitions for cases originating in Harris County and Travis County.  Dallas County and Bexar County are about what would be expected.  The other counties fall below what might be expected. I also note that though Jefferson County is not one of the state’s top 10 most populous counties, the number of petitions that were granted where the case originated in Jefferson County far exceeds what would be expected based upon population.

Grant rate for Travis County cases is high

The most interesting thing, in my view, about the graph is the grant rate for cases that originate in Travis County.  At the county level, the discrepancy in expected grant rates for Travis County is more exaggerated than it is at the court of appeals level for the Austin Court of Appeals, where cases appealed from Travis County must go first.

The legislature establishes trial courts in counties according to the demands on the judicial system in a county.  Population within a county is a big factor in placing demands on the judicial system.  Travis County being the fifth most populous county in the state would be expected to have greater judicial needs than less populous counties.  But Travis County is special in another way in that the legislature has required that certain types of cases involving the State of Texas and its political subdivisions must be filed in Travis County.   This fact accounts for a higher number of cases starting out in Travis County than one might expect based upon the size of the county alone.  And it is notable that 2/3 of the granted petitions for cases that originate in Travis County involve the state or one of its political subdivisions.

“Importance to the Jurisprudence of the State” is the gatekeeper

Ultimately, there is an “equalizer” that presumably creates a level playing field across all petitions for review regardless of what county the case started in or who the parties to the lawsuit may be.  That equalizer is the Texas Supreme Court’s jurisdictional standard.  That standard requires that a petition must “present a question of law that is important to the jurisprudence of the state.”  Tex. Gov’t Code § 22.001(a).  All of this leads to the question of why such a disproportionate number of cases from Travis County are deemed to raise a question of law that is important to the jurisprudence of the state.  Do cases in which the state is a party or the state’s operations and business are at issue automatically qualify?  I have my own thoughts about the answer to this question, but I decided to take an unscientific, informal poll of some of my fellow board-certified appellate lawyers to get their perspectives.  I promised each of them anonymity in hopes of encouraging unfiltered responses.

There was near unanimity in the view that a petition does not present a question of law of importance to the jurisprudence of the state merely because the state or one of its subdivisions is a party or the issues involve state business.  To paraphrase one respondent, the focus should be on the legal issues, not the parties.  After all, the question is what is important to the jurisprudence, not what is important to the state.

But there was a healthy number of respondents that expressed the view that if the state or state’s business was involved, then there might be a  greater likelihood that the petition was one that presented legal issues of importance to the state’s jurisprudence.  And there was a mix of explanations as to why that might be the case.

Two respondents made the point that at the end of the day, it doesn’t matter what any of us think; all that matters is that the petition for review secured enough votes on the court to be granted.  And perhaps this is the best explanation as to why petitions for review for cases originating in Travis County have such a high grant rate.

 

The Supreme Court of Texas handed down an opinion in Regent Care of San Antonio, L.P. v. Detrick in early May.  The main holding in the case addresses the application of a settlement credit.   But one short paragraph at the end of the opinion has appellate practitioners talking.

The paragraph in question states:

“Regent Care also challenges the sufficiency of the evidence to support the jury’s findings on causation and past medical damages. Having independently reviewed these issues, we conclude they present no error requiring reversal. The court of appeals’ judgment is correct, and further discussion of the issues would not add to the jurisprudence of the State. In reaching this conclusion, we express no opinion on the court of appeals’ reasoning.”

Instead of undertaking a comprehensive review of the issue raised, the opinion summarily concludes that the judgment is correct and that nothing would be added to the state’s jurisprudence by analyzing the issue.  This language sounds a bit like the “no reversible error” label used under Texas’ old application for writ of error system.

The summary holding comes as a surprise to many in the appellate bar because historically the court’s practice has been to address all issues raised and necessary to the disposition of the case.  The opinion in Regent Care hints at a change in the court’s practice, such that the court may henceforth use its jurisdictional standard (important to the state’s jurisprudence) to pick and choose the issues raised in a petition that it deems worthy of its judicial resources.  So Regent Care raises the question whether the Court has discretion to pick and choose issues within a granted petition to address and resolve in its written opinion.

Is the court required to address all issues in a petition?

A number of practitioners suggested that the court is required to address all issues raised and necessary to the disposition of the case.  I did a little digging to see what I could discern, and I share my analysis and research here for the benefit of my colleagues and for those who wish to dig deeper.

First, I note that the Regent Care opinion cites a number of authorities at the end of the above-quoted paragraph, presumably as support for the summary disposition:

See, e.g., In re L.G., ___ S.W.3d___, ___ (Tex. 2020) (per curiam); City of Waco v. Abbott, 209 S.W.3d 104, 105 (Tex. 2006) (per curiam); Engelman Irrigation Dist. v. Shields Bros., Inc., 989 S.W.2d 360, 360 (Tex. 1998) (per curiam); W. Tex. Gulf Pipe Line Co. v. Hardin County, 159 Tex. 374, 321 S.W.2d 576, 577 (Tex. 1959) (per curiam); cf. Tex. R. App. P. 56.1(b)(1).

I won’t bore you with the details, but these authorities do not support  summary disposition.

Without a doubt all issues raised are before the court

From a jurisdictional standpoint, there is little doubt that the granting of a petition for review puts the entire case before the court and all issues raised.  Texas Government Code Section 22.007(e) states, “The granting of a petition for review admits the case into the supreme court, and the supreme court shall proceed with the case as provided by law.”

Over time, the supreme court has operated under different versions of jurisdictional statutes that to small degrees affect this analysis, but one thing that stands clear from the case authority is this:  If the court has jurisdiction to take the case based upon one issue (or point of error), then the court necessarily has jurisdiction over all the issues presented, even if the other issues (or points of error) do not independently present a complaint that falls within the court’s defined jurisdiction.  This view was expressed in 1941 in Commercial Standard Insurance Co. v. Robinson, 151 S.W.2d 795, 797 (Tex. 1941):

[T]he court having exercised its jurisdiction to grant the writ on the assignments upon which same was granted, it is not wanting in power to consider each and every law question presented and to render such judgment as its holdings on such question may require.

There are a number of other similar holdings.  See, e.g, Harry Eldridge Co. v. T. S. Lankford & Sons, Inc., 371 S.W.2d 878, 879 (Tex. 1963); Giant Mfg. Co. v. Davis, 121 S.W.2d 590, 592 (Tex. 1938); Moore v. Davis, 27 S.W.2d 153, 157 (Tex. 1930).  But just because the court has jurisdiction of all issues raised does not mean that the court MUST decide them all, right?  In other words, just because the court has jurisdiction, does it necessarily follow that the court is obliged to address all issues raised–particularly when the court’s jurisdiction is discretionary?

Is the court duty-bound to address all issues raised in a granted petition?

The answer to this question over 100 years ago was “yes”:

[A]ll questions material to the determination of the case, which should be raised upon the appeal and properly presented to this court, should be decided by it, and that it should make such disposition of the appeal as the Court of Civil Appeals ought to have made. . . . [I]t is certainly expedient that the court should decide every question properly raised in every case which reaches it by a writ of error. We therefore conclude, that it is our duty to consider the whole case, to dispose of every question that has been presented to us, and to render a judgment, either reversing or affirming the judgment of the trial court, as the law may demand.

City of Austin v. Nalle, 22 S.W. 668, 672 (Tex. 1893) (emphasis added).  Almost 30 years later, the court repeated this view in Holland v. Nimitz, 239 S.W. 185, 186 (Tex. 1922), concluding that  it “must proceed to dispose of the case by the proper judgment and, in order to do that, must decide the questions of law on which the character of the judgment must depend.”  Other authorities in which the court’s jurisdiction over some points was questioned indicate that the court did indeed endeavor to address all points raised.  See, e.g., Northeast Texas Motor Lines, Inc. v. Hodges, 158 S.W.2d 487, 489 (Tex. 1942) (“So we have considered all points of error assigned, thereby overruling respondent’s motion to dismiss.”).

One conclusion to be drawn from these authorities is that use of the court’s jurisdictional standard (importance to the jurisprudence of the state) to avoid addressing an issue within a granted petition is contrary to settled authority.  That authority provides that the court has jurisdiction of ALL issues in a granted petition and has a duty to dispose of all issues necessary to the judgment.

Maybe not ALL issues…

Those of you who have been paying attention up to this point probably recognize qualifying phrases in the quotes above suggesting that it is only the issues “necessary to the court’s judgment” that must be addressed.  As far back as the Nalle case, the court recognized that the issues it is required to address are those that are “material to the determination of the case.”  Sometimes this phrasing is expressed as addressing issues “necessary to the final disposition.”   Appellate Rule 47.1–applicable to intermediate courts of appeals uses that phrasing.  Tex. R. App. P. 47.1.   Appellate Rule 63 would seem to contain a similar requirement in that opinions are required in any case in which the court issues a judgment.  In the Regent Care case, disposing of the legal sufficiency point of error was necessary to the final disposition of the case, as that phrase is used in the case law, so that the court could render a judgment.

In my mind, the real question here is whether summary disposition of issues has support in the rules of procedure or the case law.  Appellate Rule 63 requires the court to hand down an opinion in all cases in which the court issues a judgment, but the rule doesn’t say how detailed the analysis must be.  It would seem almost pointless to require an opinion to be issued if the opinion doesn’t say anything meaningful.  A judgment could achieve the same result and be more direct about it.

In thinking about this issue, however, I am reminded of a series of cases from the mid- to late 80’s in which the Texas Supreme Court became ever more concerned that intermediate appellate courts were not showing their work in their opinions and were merely substituting their views for the jury’s views when ruling on factual insufficiency challenges.  For that reason, the court held that appellate courts must detail the evidence they considered when reversing on a factual insufficiency complaint.  Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); see also Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).  The irony here is that the Texas Supreme Court appears to be establishing a precedent for itself that allows for the very thing that caused the court to criticize the intermediate appellate courts in the 1980s.

I am not sure how much my musings may have added to the discussions, but I welcome input from any of my colleagues that may read this blog posting.  I would also note that the Petitioner in the Regent Care case has filed a motion for rehearing.  We will watch to see if the supreme court does anything to change or beef up the discussion in its opinion or whether the opinion will be left as is.

Update [5/28/20]: Ben Taylor, one of my appellate colleagues,  called to my attention the fact that in In re Columbia Medical Center of Las Colinas, 290 S.W.3d 204 (Tex. 2009) (orig. proceeding), the court cited TRAPs 47.1 and 63 with the statement that both intermediate appellate courts and the Texas Supreme Court must “explain by written opinion their analyses and conclusions as to the issues necessary for final disposition of an appeal.”  Summary disposition seems at odds with the requirement of a writing containing analysis and conclusions.  Thank you, Ben, for that contribution to the analysis.