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.





For many years after the Texas Supreme Court adopted rules that divided the opinions issued by the intermediate courts of appeals into “opinions” and “memorandum opinions,” many appellate practitioners privately concluded that if an opinion was designated “memorandum opinion,” the chances of getting Texas Supreme Court review were substantially reduced.  But in 2018, I reported that between the years 2014 and 2017 approximately 1/3 of the Supreme Court’s docket of granted petitions was made up of “memorandum opinions.”    When one considers the standard that is supposed to be applied to these designations, that’s a high proportion since only really significant cases with cutting-edge issues are supposed to be designated “opinions.”

But with the close of the 2019 calendar year, I have even better news for appellate practitioners.  Sixty-one percent of opinions issued on petition for review involved review of a “memorandum opinion.”  That’s a record percentage, and it would seem to indicate that the designation of “memorandum opinion” versus “opinion” does not itself prejudice whether the Texas Supreme Court decides to review the case.

But the statistics reveal an even more interesting phenomenon:  There’s a higher reversal rate for “memorandum opinions” than for “opinions.”  Cases involving “memorandum opinions” were reversed 84.5% of the time, while cases involving “opinions” were reversed only 65.5% of the time.   When I removed unsigned, per curiam opinions from the mix, there was still a higher reversal rate for “memorandum opinions” (79% reversal versus 66% reversal).

I was curious to know whether 2019 might just be an anomaly insofar as the difference in reversal rates, so I ran the numbers for 2018.  In 2018, the reversal rate for “memorandum opinions” was 85% and 73% for “opinions.”  When I took the unsigned per curiam opinions out of the mix, the difference was still there, but not quite as stark (78% reversal for “memorandum opinions” versus 70% for “opinions.”).

The reason for the difference might be explained by the fact that “opinions” are usually a little more fully reasoned and developed, and it might be that the more robust reasoning helps to persuade the supreme court justices that the author of the “opinion” was correct.

Often one of the biggest disputes at trial relates to the value of services that a claimant seeks to recover from the opposing party.  At least for routine cases, the form and manner of proving the value of those services is made easier by statute, but when the value of the services is contested, things can get a little complicated.

Section 18.001 of the Texas Civil Practice and Remedies Code allows a claimant to prove up a claim for services rendered by an affidavit rather than by live testimony under certain circumstances.  A party that wishes to controvert those services, must serve a counter-affidavit that spells out the basis for controverting the claim and the affiant must be a person qualified to speak to the subject-matter.

The courts have grafted onto Section 18.001 a variety of additional rules and procedures.  In particular, the courts have recognized that a claimant may move to strike a counter-affidavit, and if that motion to strike is granted, that leaves the claimant with the only admissible evidence (in unchallenged affidavit form) at trial.  Parties defending against such circumstances have sought assistance from the courts of appeals by filing petitions for writ of mandamus to challenge the trial courts’ striking of the counter-affidavits.

The intermediate appellate courts have split on the question of whether mandamus relief is available.  Recently, in a high-profile case, the Dallas Court of Appeals, in a 2-1 decision held that the complaining party had an adequate remedy by ordinary appeal and denied mandamus relief.  Justice Schenck dissented in a lengthy opinion that calls into question many of the court-developed notions relating to Section 18.001 because those interpretations are not tethered to any actual language in Section 18.001, and the interpretations lead to potential denial of the constitutional right to a fair trial.  Amicus briefs were filed in the case by the Texas Association of Defense Counsel and the Texas Trial Lawyers Association, leading one to believe that this case is destined to be taken up to the Texas Supreme Court to ask for a definitive ruling that will clarify the law and resolve the split of authority between the intermediate appellate courts.

In re Parks, No. 05-19-00375-CV (Tex. App.–Dallas Feb. 18, 2020, original proceeding)

I’ve run the numbers on the reversal rates for the intermediate appellate courts in Texas for the calendar year 2019.  The overall reversal rate for the year was 77%.  To clarify, when the Supreme Court of Texas granted a petition for review, it reversed the court of appeals 77% of the time in 2019.  Some of the courts of appeals performed better than others:

  • First District Court of Appeals — 75% reversal rate
  • Second District Court of Appeals — 78% reversal rate
  • Third District Court of Appeals — 93% reversal rate
  • Fourth District Court of Appeals — 89% reversal rate
  • Fifth District Court of Appeals — 81% reversal rate
  • Thirteenth District Court of Appeals — 62.5% reversal rate
  • Fourteenth District Court of Appeals — 50% reversal rate

The Thirteenth District Court of Appeals and the Fourteenth Court of Appeals beat the average, while the Third District Court of Appeals had a significantly higher-than-average reversal rate.

You will note that I omitted the Sixth through Twelfth District Court of Appeals.  Each of those courts had too few cases taken up by the Texas Supreme Court in 2019 to produce meaningful reversal rates.

Aggregating the 2019 numbers with those I have collected since 2014 reveals the following reversal rates:

The overall reversal rate for these 6 years is 80%.  The First, Third, Eleventh, and Thirteenth District Court of Appeals outperform the average, while the Eighth and Tenth District Court of Appeals have above average reversal rates.

A dispute exists among the bench and bar as to whether attorney immunity from suit by a non-client is limited to conduct that is related to litigation.

In 2015, the Supreme Court of Texas recognized that attorneys do not owe a professional duty of care to third parties who may be damaged by the attorney’s negligent representation of a client.  Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015).  The policy reasons behind this holding is that attorneys owe duties of loyalty to their clients and that loyalty shouldn’t be compromised by imposing conflicting duties to non-clients.  Thus, the Court outlined a general rule that attorneys are immune from civil liability to non-clients.  There are at least two important parameters to this general rule.  First, the lawyer must have been acting within the scope of his or her representation of the client at the time in question.  Second, the activity in question must be of a type that lawyers ordinarily perform.

Whether there are exceptions to this general rule and what those exceptions might be has been the subject of a number of state and federal court opinions.  Most notably is the question of whether attorney conduct that is unrelated to litigation is protected by immunity.  The reason this question even exists is because of a dispute found in the majority and dissenting opinions in Cantey Hanger.  The justices in the Cantey Hanger case disagreed over (1) whether the attorney’s conduct in Cantey Hanger occurred in the context of litigation; and (2) whether attorney conduct that is unrelated to litigation should by immunized.

The attorney conduct at issue in Cantey Hanger involved a bill of sale that was drawn up to facilitate the transfer of title of an airplane from one party to another.  Because the transfer of title had been ordered by a final divorce decree, a majority of the justices held that the conduct occurred “in connection with” litigation and was subject to the general rule of immunity.  The majority therefor concluded that it was not necessary to decide whether immunity applies to conduct outside of the litigation context.  Four justices dissented and asserted their view that the conduct was not conduct occurring in a litigation context.  These justices also would have held that attorney immunity did not apply.  Because of this 5-4 split on the court, litigants in legal malpractice cases have frequently disputed whether the general rule of immunity applies to conduct unrelated to litigation and what conduct qualifies as being unrelated to litigation.

An opinion issued in December by the Houston Fourteenth District Court of Appeals tees up this disputed issue for decision by the Supreme Court of Texas.  In NFTD, LLC v. Haynes & Boone, LLP, No. 14-17-00999-CV, the attorney conduct at issue involved alleged concealment and false representations made by attorneys who handled an asset purchase agreement.  The trial court had dismissed the claim against the attorneys after concluding that attorney immunity was applicable.  The non-client plaintiffs appealed.

The court of appeals reversed the trial court’s judgment after concluding that attorney immunity does not apply.  The court of appeals took the Cantey Hanger majority at its word that the court was not deciding whether attorney immunity applied to conduct occurring outside of litigation.  The court rejected the idea that fidelity to the client was alone enough to impose immunity even outside of the litigation context.  The court observed that a litigation context allows for other remedies for disciplining an attorney that do not exist outside of the litigation context.  The court rejected holdings by federal courts that immunity applies even in the non-litigation context.

The defendant attorneys in the NFTD case are in the process of seeking review of the court of appeals’ decision by the Supreme Court of Texas.  Stay tuned for updates.

I am crunching the numbers for opinion dispositions by the Supreme Court of Texas for the calendar year 2019.  I expect to have a few blog posts showing how the numbers shake out.  Here’s what the initial numbers show:

  • During the 2019 calendar year, the Supreme Court of Texas disposed of 88 causes.  That’s 10 fewer causes than 2018, but more in line with 2017 and 2016, when the court disposed of 84 causes in each of those years
  • 19 opinions issued were per curiam (unsigned) opinions.   This number is down slightly from the last 3 years.
  • 4 of the causes disposed of were original proceedings (3 mandamuses and 1 direct petition).  This number is down from last year.
  • The reversal rates is 77%, which is about the same as it was in the 2018 calendar year.

I will have additional numbers, including break-downs of numbers by courts of appeals in the coming weeks.

The Texas Citizens Participation Act (TCPA) is designed to protect the constitutional right of persons to speak freely, associate freely, and participate in government without the threat of an unmeritorious lawsuit being filed against them as a result.  More particularly, it protects the rights of persons to speak out on “matters of public concern.”  The TCPA defines what is a “matter of public concern” as including “an issue related to” health or safety.

A divided Dallas Court of Appeals considered how to apply this definition to communications made by a professional medical association in connection with the termination of a nurse employee following a drug test the employer had given the nurse.  In U.S. Anesthesia Partners of Texas, P.A. v. Mahana, No. 05-18-01414-CV (Aug. 27, 2019), Mahana filed suit against her former employer, asserting claims for breach of contract and intentional infliction of emotional distress.  Mahana alleged that her supervisor texted other employees stating that Mahana was being removed because she had tested positive for opiates and other controlled substances.

After Mahana filed suit, U.S. Anesthesia invoked the TCPA and moved to dismiss on the grounds that its communications involved matters of public concern and were therefore subject to the TCPA.  In addressing this threshold question—whether the communications related to a matter of public concern, i.e., health and safety—the majority, authored by Justice Erin Nowell, held that the communications were not related to a matter of health or safety because the communications were not related to the provision of medical services by a health care professional.  The majority reasons that the communications did not address Mahana’s job performance and whether she properly provided medical services to patients.  The majority specifically noted that Mahana alleged that she was never physically or mentally impaired while performing her duties.

Justice David Bridges dissented.  He argued that the communications did related to health and safety.  He pointed out that the drug test had been given to Mahana after pharmacy logs had shown missing drugs.  He further pointed out that the text messages by the health care supervisor stated that Mahana was being terminated because she was a drug addict who was engaged in illegal activity.  Justice Bridges argued that a communication need only “relate to” a matter of public concern, which requires only a tangential relationship.   He would have held that text messages between co-workers that a nurse anesthetist had tested positive for opiates and other controlled substances concerns an issue related to health or safety, such that the TCPA should be applied.

One further opinion was issued in this appeal.  In an unusual move, Justice Bill Whitehill wrote an opinion dissenting from the denial of en banc consideration of the case.  Justice Whitehill wrote to express his concern about the majority’s reasoning, pointing out that Mahana was a nurse anesthetist, who’s employment contract expressly provided that she could be terminated for substance abuse.  He closed by asking what is tangentially related to health and safety if a communication stating that a nurse anesthetist is addicted to illegal drugs isn’t related.

U.S. Anesthesia Partners of Texas, P.A. v. Mahana, No. 05-18-01414-CV (Aug. 27, 2019)

Resolving a longstanding uncertainty in federal district courts, the Fifth Circuit has held that the Texas Citizens Participation Act (TCPA) conflicts with federal procedural rules and therefore does not apply in diversity cases.

Continue Reading Fifth Circuit Holds That the TCPA Does Not Apply in Federal Courts

In a decision that upends decades of open meetings law, the Texas Court of Criminal Appeals held that the provision of the Texas Open Meetings Act prohibiting a government official from circumventing the Act through a “walking quorum” or “daisy chain” discussion outside of a public meeting is unconstitutionally vague.

Continue Reading Statute Making it a Crime for a Public Official to Circumvent the Open Meetings Act Held Unconstitutional