Tim Cole Act Compensation Claim for Innocents who ended up in jail as a result of wrongful conviction - In re Allen (Tex. 2012)

 
In re Billy Frederick Allen (Tex. May 18, 2012) (State Comptroller ordered to pay compensation to exonerated former inmate, who was wrongfully convicted and imprisoned)

This Supreme Court decision is bound to be all over the news nationwide. Here is the essence of what the statutory remedy for exonerated former inmates is all about [excerpt from today’s opinion], followed by a similar snippet from an earlier Tex. Sup. Ct. case, and the text of the relevant legislation, as codified in the Texas Civil Practice and Remedies Code.   

CLAIM FOR COMPENSATION FOR WRONGFUL IMPRISONMENT

Under the Tim Cole Act (Act or TCA), formerly known as the Texas Wrongful Imprisonment Act, a wrongfully imprisoned person may seek compensation from the state for the period of wrongful imprisonment. TEX. CIV. PRAC. & REM. CODE § 103.001(a). A person is entitled to compensation if the person 1) has served in whole or in part a sentence in prison under the laws of this state, and 2) has been granted habeas relief on a court determination that he is “actually innocent” of the crime for which he was sentenced.2 TEX. CIV. PRAC. & REM. CODE § 103.001(a)(1), (a)(2)(B). Additionally, the applicant’s supporting documentation must clearly indicate on its face that the person is entitled to compensation. TEX. CIV. PRAC. & REM. CODE § 103.051 (b-1).

For the reasons that follow, we hold that Billy Frederick Allen is entitled to compensation under the TCA, and we conditionally grant the petition for writ of mandamus.

[…]

The statute’s namesake, Timothy Cole, was convicted and sentenced to twenty-five years in prison for aggravated sexual assault. He maintained his innocence, but died of an asthma attack in 1999 while incarcerated. He was exonerated years later by DNA evidence, and in 2010, Governor Rick Perry granted him the state’s first posthumous pardon. See In re Smith, 333 S.W.3d 582, 583 n.1 (Tex. 2011); Act of May 27, 2009, 81st Leg., R.S., ch. 180, § 1, 2009 Tex. Gen. Laws 523 (naming the Act after Tim Cole).

[…]

We do not read the Court of Criminal Appeals’ opinion as indicating it failed to find actual innocence as to Allen’s conviction. Therefore, because the Court of Criminal Appeals granted habeas relief on a Schlup claim, Allen’s court order clearly indicates on its face that relief was based on actual innocence.

[…]

The petition for writ of mandamus is conditionally granted, and we instruct the Comptroller to comply with this opinion and compensate Allen under the terms of the Tim Cole Act. A writ of mandamus will issue only upon the failure to do so.

SOURCE: SUPREME COURT OF TEXAS – No. 10-0886 – 5/18/2012

EXCERPT FROM PRIOR TEXAS  SUPREME COURT OPINION

Under the Texas Wrongful Imprisonment Act, which is now known as the Tim Cole[1] Act, a wrongfully-imprisoned person may seek compensation from the state for the period of wrongful imprisonment. TEX. CIV. PRAC. & REM.CODE § 103.001(a). Application is made to the Texas Comptroller of Public Accounts, who is authorized to determine eligibility and the amount owed to the claimant. Id. § 103.051(b). The amount owed is determined by multiplying a fixed amount, currently set at $80,000 per year, by the period of wrongful imprisonment. Id. § 103.052(a)(1). In calculating the wrongful-imprisonment period, the Act excludes any period for which the claimant was serving a concurrent sentence. Id. § 103.001(b).

SOURCE: TEXAS SUPREME COURT - In re Smith, 333 S.W.3d 582, 585 (Tex. June 21, 2011).

STATUTUORY TEXT:

CIVIL PRACTICE AND REMEDIES CODETITLE 5. GOVERNMENTAL LIABILITYCHAPTER 103. COMPENSATION TO PERSONS WRONGFULLY IMPRISONED 

SUBCHAPTER A. ELIGIBILITY; NOTICE OF ELIGIBILITY

Sec. 103.001.  CLAIMANTS ENTITLED TO COMPENSATION AND HEALTH BENEFITS COVERAGE.  (a)  A person is entitled to compensation if:(1)  the person has served in whole or in part a sentence in prison under the laws of this state; and(2)  the person:(A)  has received a full pardon on the basis of innocence for the crime for which the person was sentenced;(B)  has been granted relief in accordance with a writ of habeas corpus that is based on a court finding or determination that the person is actually innocent  of the crime for which the person was sentenced; or(C)  has been granted relief in accordance with a writ of habeas corpus and:(i)  the state district court in which the charge against the person was pending has entered an order dismissing the charge; and(ii)  the district court's dismissal order is based on a motion to dismiss in which the state's attorney states that no credible evidence exists that inculpates the defendant and, either in the motion or in an affidavit, the state's attorney states that the state's attorney believes that the defendant is actually innocent of the crime for which the person was sentenced.(b)  A person is not entitled to compensation under Subsection (a) for any part of a sentence in prison during which the person was also serving a concurrent sentence for another crime to which Subsection (a) does not apply. (c)  If a deceased person would be entitled to compensation under Subsection (a)(2) if living, including a person who received a posthumous pardon, the person's heirs, legal representatives, and estate are entitled to lump-sum compensation under Section 103.052.(d)  Subject to this section, a person entitled to compensation under Subsection (a) is also eligible to obtain group health benefit plan coverage through the Texas Department of Criminal Justice as if the person were an employee of the department.  This subsection does not entitle the person's spouse or other dependent or family member to group health benefit plan coverage.  Coverage may be obtained under this subsection for a period of time equal to the total period the claimant served for the crime for which the claimant was wrongfully imprisoned, including any period during which the claimant was released on parole or to mandatory supervision or required to register under Chapter 62, Code of Criminal Procedure.  A person who elects to obtain coverage under this subsection shall pay a monthly contribution equal to the total amount of the monthly contributions for that coverage for an employee of the department.(e)  Notwithstanding Section 103.053(c), annuity payments may be reduced by an amount necessary to make the payments required by Subsection (d), and that amount shall be transferred to an appropriate account as provided by the comptroller by rule to fund that coverage.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.  Amended by Acts 2001, 77th Leg., ch. 1488, Sec. 1, eff. June 15, 2001.Amended by: Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 2, eff. September 1, 2009.Acts 2011, 82nd Leg., R.S., Ch. 698, Sec. 2, eff. June 17, 2011.Acts 2011, 82nd Leg., R.S., Ch. 1107, Sec. 1, eff. September 1, 2011.Acts 2011, 82nd Leg., R.S., Ch. 1107, Sec. 2, eff. September 1, 2011.

Sec. 103.002.  NOTICE TO WRONGFULLY IMPRISONED PERSON.  (a)  In this section:(1)  "Department" means the Texas Department of Criminal Justice.(2)  "Penal institution" has the meaning assigned by Article 62.001, Code of Criminal Procedure.(3)  "Wrongfully imprisoned person" has the meaning assigned by Section 501.091, Government Code, as added by Chapter 1389 (S.B. 1847), Acts of the 81st Legislature, Regular Session, 2009.(b)  The department shall provide to each wrongfully imprisoned person information, both orally and in writing, that includes:(1)  guidance on how to obtain compensation under this chapter; and(2)  a list of and contact information for nonprofit advocacy groups, identified by the department, that assist wrongfully imprisoned persons in filing claims for compensation under this chapter.(c)  The department must provide the information required under Subsection (b):(1)  at the time of the release of the wrongfully imprisoned person from a penal institution; or(2)  as soon as practicable after the department has reason to believe that the person is entitled to compensation under Section 103.001(a).

Added by Acts 2011, 82nd Leg., R.S., Ch. 698, Sec. 3, eff. June 17, 2011.

Sec. 103.003.  LIMITATION ON TIME TO FILE.  A person seeking compensation under this chapter must file an application with the comptroller for compensation under Subchapter B not later than the third anniversary of the date:(1)  the person on whose imprisonment the claim is based received a pardon as provided by Section 103.001(a)(2)(A);(2)  the person's application for a writ of habeas corpus was granted as provided by Section 103.001(a)(2)(B); or(3)  an order of dismissal described by Section 103.001(a)(2)(C) was signed.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.  Amended by Acts 2001, 77th Leg., ch. 1488, Sec. 1, eff. June 15, 2001.Amended by: Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 3, eff. September 1, 2009.Acts 2011, 82nd Leg., R.S., Ch. 698, Sec. 4, eff. June 17, 2011.

SUBCHAPTER B. ADMINISTRATIVE PROCEEDING

Sec. 103.051.  APPLICATION PROCEDURE.(a)  To apply for compensation under this subchapter, the claimant must file with the comptroller's judiciary section:(1)  an application for compensation provided for that purpose by the comptroller;(2)  a verified copy of the pardon, court order, motion to dismiss, and affidavit, as applicable, justifying the application for compensation;(3)  a statement provided by the Texas Department of Criminal Justice and any county or municipality that incarcerated the person on whose imprisonment the claim is based in connection with the relevant sentence verifying the length of incarceration;(4)  if applicable, a statement from the Department of Public Safety verifying registration as a sex offender and length of registration;(5)  if applicable, a statement from the Texas Department of Criminal Justice verifying the length of time spent on parole; and(6)  if the claimant is applying for compensation under Section 103.052(a)(2), a certified copy of each child support order under which child support payments became due during the time the claimant served in prison and copies of the official child support payment records described by Section 234.009, Family Code, for that period.(b)  The comptroller shall determine:(1)  the eligibility of the claimant;  and(2)  the amount of compensation owed to an eligible claimant.(b-1)  In determining the eligibility of a claimant, the comptroller shall consider only the verified copies of documents filed under Subsection (a)(2).  If the filed documents do not clearly indicate on their face that the person is entitled to compensation under Section 103.001(a)(2), the comptroller shall deny the claim.  The comptroller's duty to determine the eligibility of a claimant under this section is purely ministerial.(c)  The comptroller must make a determination of eligibility and the amount owed as required by Subsection (b) not later than the 45th day after the date the application is received.(d)  If the comptroller denies the claim, the comptroller must state the reason for the denial.  Not later than the 30th day after the date the denial is received, the claimant must submit an application to cure any problem identified.  Not later than the 45th day after the date an application is received under this subsection, the comptroller shall determine the claimant's eligibility and the amount owed.(e)  If the comptroller denies a claim after the claimant submits an application under Subsection (d), the claimant may bring an action for mandamus relief.(f)  To apply for coverage through the Texas Department of Criminal Justice under Section 103.001(d), the claimant must file with the department:(1)  an application for coverage provided for that purpose by the department; and(2)  a statement by the comptroller that the comptroller has determined the claimant to be eligible for compensation under this subchapter.

Added by Acts 2001, 77th Leg., ch. 1488, Sec. 1, eff. June 15, 2001.  Amended by Acts 2003, 78th Leg., ch. 1310, Sec. 1, eff. June 20, 2003.Amended by: Acts 2007, 80th Leg., R.S., Ch. 1190, Sec. 1, eff. September 1, 2007.Acts 2007, 80th Leg., R.S., Ch. 1388, Sec. 2, eff. September 1, 2007.Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 5.003, eff. September 1, 2009.Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 4, eff. September 1, 2009.Acts 2011, 82nd Leg., R.S., Ch. 698, Sec. 5, eff. June 17, 2011.Acts 2011, 82nd Leg., R.S., Ch. 1107, Sec. 3, eff. September 1, 2011.

Sec. 103.052.  LUMP-SUM COMPENSATION.  (a)  A person who meets the requirements of Section 103.001 is entitled to compensation in an amount equal to:(1)  $80,000 multiplied by the number of years served in prison, expressed as a fraction to reflect partial years; and(2)  compensation for child support payments owed by the person on whose imprisonment the claim is based that became due and interest on child support arrearages that accrued during the time served in prison but were not paid.(b)  A person who, after serving a sentence in a Texas prison for which the person is entitled to compensation under Subsection (a)(1), was released on parole or required to register as a sex offender under Chapter 62, Code of Criminal Procedure, is entitled to compensation in an amount equal to $25,000 multiplied by the number of years served either on parole or as a registered sex offender, expressed as a fraction to reflect partial years.(c)   The amount of compensation under Subsection (a)(2) to which a person is entitled shall be paid on the person's behalf in a lump-sum payment to the state disbursement unit, as defined by Section 101.0302, Family Code, for distribution to the obligee under the child support order.

Added by Acts 2001, 77th Leg., ch. 1488, Sec. 1, eff. June 15, 2001.Amended by: Acts 2007, 80th Leg., R.S., Ch. 1190, Sec. 2, eff. September 1, 2007.Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 5, eff. September 1, 2009.

Sec. 103.053.  ANNUITY COMPENSATION.  (a)  A person entitled to compensation under Section 103.001(a) is entitled to annuity payments, based on a present value sum equal to the amount to which the person is entitled under Sections 103.052(a)(1) and (b).(b)  The annuity payments under this section are payable in equal monthly installments for the life of the claimant and must be based on a five percent per annum interest rate and other actuarial factors within the discretion of the comptroller.(c)  The annuity payments may not be accelerated, deferred, increased, or decreased.  The applicant may not sell, mortgage or otherwise encumber, or anticipate the payments, wholly or partly, by assignment or otherwise.

Added by Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 6, eff. September 1, 2009.

Sec. 103.054.  PAYMENT OF CERTAIN TUITION AND FEES.  If requested by the claimant before the seventh anniversary of the relevant date described by Section 103.003, tuition for up to 120 credit hours, including tuition charged under Section 54.0513, Education Code, or any other law granting an educational institution discretion to set the tuition rate, and any mandatory fees associated with attendance at the institution, charged by a career center or public institution of higher education shall be paid on behalf of the claimant.

Added by Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 6, eff. September 1, 2009.Amended by: Acts 2011, 82nd Leg., R.S., Ch. 698, Sec. 6, eff. June 17, 2011.

SUBCHAPTER C.  FEES

Sec. 103.101.  FEES LIMITED; PREREQUISITES TO FEE AGREEMENT.  (a)  A person, including an attorney, may not charge or collect a fee for preparing, filing, or curing a claimant's application under Section 103.051 unless the fee is based on a reasonable hourly rate.(b)  An attorney may enter into a fee agreement with a claimant for services related to an application under Section 103.051 only after the attorney has disclosed in writing to the claimant the hourly rate that will be charged for the services.(c)  An attorney may not collect a fee for preparing, filing, or curing a claimant's application under Section 103.051 before a final determination is made by the comptroller that the claimant is eligible or ineligible for compensation under this chapter.

Added by Acts 2011, 82nd Leg., R.S., Ch. 698, Sec. 7, eff. June 17, 2011.

Sec. 103.102.  SUBMISSION OF FEE REPORT.  (a) Together with an application for compensation under this chapter or not later than the 14th day after the date the application or cured application is filed, a person seeking payment for preparing, filing, or curing the application must file a fee report with the comptroller's judiciary section.(b)  A fee report under this section must include:(1)  the total dollar amount sought for fees;(2)  the number of hours the person worked preparing, filing, or curing the application; and(3)  the name of the applicant.(c)  A fee report under this section is public information subject to Chapter 552, Government Code.

Added by Acts 2011, 82nd Leg., R.S., Ch. 698, Sec. 7, eff. June 17, 2011.

SUBCHAPTER D. PAYMENTS AND LIMITATIONS

Sec. 103.151.  ADMINISTRATIVE PAYMENT OF COMPENSATION.  (a)  The comptroller shall make the compensation due a claimant under Section 103.052 and the lump-sum payment, if any, to be paid to the state disbursement unit, as defined by Section 101.0302, Family Code, under Subchapter B, to the extent that funds are available and appropriated for that purpose, not later than the 30th day after the date the comptroller grants the application.  A claim for lump-sum compensation payable under Section 103.052(a) or (b) shall survive the death of the claimant in favor of the heirs, legal representatives, and estate of the claimant.(b)  The comptroller shall begin making annuity payments to a claimant under Section 103.053(a) on the first anniversary of the date of payment of the compensation due under Section 103.052.(c)  If appropriated funds are insufficient to pay the amount due a claimant and the amount to be paid to the state disbursement unit, as defined by Section 101.0302, Family Code, money shall be paid under the procedure described by Section 103.152.

Added by Acts 2001, 77th Leg., ch. 1488, Sec. 1, eff. June 15, 2001.Amended by: Acts 2007, 80th Leg., R.S., Ch. 1190, Sec. 5, eff. September 1, 2007.Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 7, eff. September 1, 2009.

Sec. 103.152.  PAYMENT OF COMPENSATION.  (a)  Not later than November 1 of each even-numbered year, the comptroller shall provide a list of claimants entitled to payment under Subchapter B and the amounts due for each claimant to the governor, the lieutenant governor, and the chair of the appropriate committee in each house of the legislature so that the legislature may appropriate the amount needed to pay the amount owed to each claimant and the amount to be paid to the state disbursement unit, as defined by Section 101.0302, Family Code, on the claimant's behalf.(b)  Not later than September 1 of the year in which an appropriation under this chapter has been made by the legislature, the comptroller shall pay the required amount to each claimant and the state disbursement unit, as defined by Section 101.0302, Family Code.(c)  Repealed by Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 12(3), eff. September 1, 2009.

Added by Acts 2001, 77th Leg., ch. 1488, Sec. 1, eff. June 15, 2001.Amended by: Acts 2007, 80th Leg., R.S., Ch. 1190, Sec. 6, eff. September 1, 2007.Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 8, eff. September 1, 2009.Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 12(3), eff. September 1, 2009.

Sec. 103.153.  EMPLOYEES NOT LIABLE AFTER PAYMENT OF COMPENSATION.  (a)  In this section, "employee" and "governmental unit" have the meanings assigned by Section 101.001.(b)  A person who receives compensation under this chapter may not bring any action involving the same subject matter, including an action involving the person's arrest, conviction, or length of confinement, against any governmental unit or an employee of any governmental unit.

Added by Acts 2001, 77th Leg., ch. 1488, Sec. 1, eff. June 15, 2001.

Sec. 103.154.  TERMINATION OF PAYMENTS.  (a)  Except as provided by Subsection (c), compensation payments to a person under this chapter terminate if, after the date the person becomes eligible for compensation under Section 103.001, the person is convicted of a crime punishable as a felony.  Compensation payments terminate under this subsection on the date of the subsequent conviction.(b)  Annuity payments to a person under Section 103.151(b) terminate on the date of the person's death.  Any payments scheduled to be paid after that date are credited to the state and may not be paid to any other person, including the person's surviving spouse, heirs, devisees, or beneficiaries under the person's will, or to the person's estate.(c)  This section does not apply to compensation for child support payments and interest on child support arrearages to be paid on a person's behalf under this chapter to the state disbursement unit, as defined by Section 101.0302, Family Code.

Added by Acts 2001, 77th Leg., ch. 1488, Sec. 1, eff. June 15, 2001.Amended by: Acts 2007, 80th Leg., R.S., Ch. 1190, Sec. 7, eff. September 1, 2007.Acts 2009, 81st Leg., R.S., Ch. 180, Sec. 9, eff. September 1, 2009.

[No] Legal standing to complain: Texas Supreme Court nixes citizen's suit to challenge balloting process that favors political parties as unconstitutional

 
SUPREMES SAY WOULD-BE ELECTION-SYSTEM REFORMER WHO TOOK A STAND AGAINST PARTISAN BALLOTING DID NOT HAVE STANDING
    
Honorable Hope Andrade v. [Average Joe tax-paying Citizen] Don Veneable (Tex. May 18, 2012)
  

In an anonymous per curiam opinion, the Texas Supreme Court this morning disposed of a Dallas resident's constitutional challenge to partisan identification of candidates and straight-ticket voting option on the general election ballot on standing grounds. The challenged feature of the general election ballot process allows voters to vote for all candidates of the same political party simultaneously rather than making a choice between competing candidates in each race. The straight-ticket option, no doubt, strengthens the parties. [Texas uses nonpartisan ballots in some local elections].   

NO SPECIAL INTEREST

The Supremes, who are among those elected on partisan ballots in Texas, collectively conclude that the election system critic who brought the underlying suit in Dallas County was no different from any other Mr. Joe Public, and that he did not satisfy the requirements for tax-payer standing under existing precedent either. Holding that the citizen had no special interest, the justices render judgment for the election official who defended the status quo.  

  

OPINION EXCERPT

  
Don Venable seeks to enjoin Dallas County from identifying candidates’ political party affiliations and providing a “straight-party” option on general election ballots. We must decide whether Venable has standing to pursue these claims. Because Venable has no interest distinct from that of the general public and has not established taxpayer standing under Williams v. Lara, 52 S.W.3d 171, 179 (Tex. 2001), we reverse in part the court of appeals’ judgment and render judgment dismissing Venable’s claims against Secretary of State Hope Andrade.
  

Venable has not pleaded facts showing that measurable and significant public funds were being spent on the activity he challenges, and thus, has failed to affirmatively demonstrate taxpayer standing. Because Venable has no interest distinct from that of the public generally, and his claims fall outside the narrow taxpayer exception to the bar against generalized grievances, he lacks the requisite and particularized stake to warrant standing. Accordingly, we grant the petition for review, and without hearing oral argument, we reverse in part the court of appeals’ judgment and render judgment dismissing Venable’s claims against Andrade. TEX. R. APP. P. 59.1, 60.2(c).

SOURCE: TEXAS SUPREME COURT - Honorable Hope Andrade v. Don Veneable, No. 11-0008  (Tex. May 18, 2012) Petition for Review from Dallas County; 5th district (05‑10‑00303‑CV, ___ SW3d ___, 11‑15‑10)
 

PER CURIAM OPINION

Punitive Damages may be awarded in Sabine-Pilot Wrongful Termination-of-Employment Suit -- Safeshred, Inc. v. Martinez (Tex. April 20, 2012)

    

EXEMPLARY DAMAGES IN WRONGFUL TERMINATION SUIT UNDER SABINE-PILOT EXCEPTION TO EMLOYMENT-AT-WILL DOCTRINE 

   

Texas Supreme Court says, in opinion released today (Friday April, 20, 2012), that punitive damages are available in successful wrongful termination claim by employee fired for refusing to perform an illegal act because it is a tort, not a contract claim, and exemplary damages are available in tort cases as a general rule. The Court nevertheless reverses the court of appeals’ affirmance of exemplary damages in the case under review, finding that there was not legally sufficient evidence of malice in the employee's termination by his employer.  

      

Safeshred, Inc. v. Martinez (Tex. April 20, 2012)

   

EXCERPTS FROM THE OPINION BY JUSTICE LEHRMANN

   
  

This case requires us to clarify the nature and scope of the cause of action for wrongful termination of an employee for refusing to perform an illegal act that we recognized in Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985). In particular, we must determine whether a plaintiff in a Sabine Pilot action may recover punitive damages, and if so, what must be shown as a prerequisite for those damages.

We agree with the court of appeals’ conclusion that a Sabine Pilot cause of action sounds in tort and allows punitive damages upon proper proof. However, because we hold that Martinez failed to present legally sufficient evidence of malice relating to his firing, we reverse the court of appeals’ judgment insofar as it affirms the award of exemplary damages.

 […]

A. The Availability of Punitive Damages

 1. Tort or contract

The first question we must answer is whether a Sabine Pilot claim sounds in tort or contract, because the answer to that question will decide whether exemplary damages are recoverable. While exemplary or punitive damages may generally be awarded for torts involving malicious or grossly negligent conduct, they are not available for breach of contract claims. Amoco Prod. Co. v. Alexander, 622 S.W.2d 563, 571 (Tex. 1981). Safeshred argues that the employment relationship is inherently contractual, and that Sabine Pilot essentially supplements that relationship with an implied contractual provision preventing discharge for refusal to perform an illegal act. Martinez, on the other hand, notes that every Texas case to categorize a Sabine Pilot claim has labeled it a tort,2 and that comparisons to other statutory wrongful termination causes of action support that characterization.

Courts outside of Texas are split on whether a public policy exception to the employment-at-will doctrine, like a Sabine Pilot claim, sounds in tort or contract. Compare Brockmeyer v. Dun & Bradstreet, 335 N.W.2d 834, 841 (Wis. 1983) (contract), and Monge v. Beebe Rubber Co., 316 A.2d 549, 551 (N.H. 1974) (same), with Thompson v. St. Regis Paper Co., 685 P.2d 1081, 1089 (Wash. 1984) (en banc) (tort), and Parnar v. Americana Hotels, Inc., 652 P.2d 625, 631 (Haw. 1982) (same).

We conclude that such claims sound in tort.

Apart from Sabine Pilot, this Court has steadfastly adhered to the employment-at-will doctrine. See, e.g., Ed Rachal Found. v. D’Unger, 207 S.W.3d 330, 332 (Tex. 2006). In that vein, we have consistently refused to expand Sabine Pilot beyond the “narrow exception” we recognized in that case. See id. at 332–33 (refusing to expand Sabine Pilot liability to cover whistleblower actions not already authorized by statute); Winters, 795 S.W.2d at 725 (same). Safeshred argues that, in order to maintain that narrow interpretation, we must call a Sabine Pilot claim a contract claim.

But, in fact, the opposite is true. To say the cause of action sounds in contract, we would need to drastically alter our view of the at-will employment relationship in general, rather than merely recognize a narrow exception to the at-will doctrine. E.g., Physio GP, Inc. v. Naifeh, 306 S.W.3d 886, 887-888 (Tex. App.—Houston [14 Dist.] 2 2010, no pet.); Draker v. Schreiber, 271 S.W.3d 318, 323 (Tex. App.—San Antonio 2008, no pet.) (citing Louis v. Mobil Chem. Co., 254 S.W.3d 602, 610 (Tex. App.—Beaumont 2008, pet. denied)); Miller v. Raytheon Aircraft Co., 229 S.W.3d 358, 373 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also Garcia v. Sun Belt Rentals, Inc., 310 F.3d 403, 404 (5th Cir. 2002); Hanold v. Raytheon Co., 662 F. Supp. 2d 793, 803 (S.D. Tex. 2009).

This is so because, to say that Sabine Pilot created an implied contractual provision would presume, in the first place, that there is a contract between at-will employees and their employers in which to place an implied provision. We have never recognized such a proposition. See, e.g., Montgomery Cnty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 502–03 (Tex. 1998) (treating the implied employment contract urged by petitioners as a significant departure from at-will employment); Garcia v. Sunbelt Rentals, Inc., 310 F.3d 403, 404 (5th Cir. 2002) (“[N]o Texas court has held that an at-will employment relationship constitutes an oral contract . . . .”). On the contrary, we have long held firm to the principle that, in Texas, an at-will employee may be fired for a good reason, a bad reason, or no reason at all. Brown, 965 S.W.2d at 502. And where the promise of continued employment is illusory, it cannot form the basis of an enforceable contract. Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 660–61 (Tex. 2006) (citing RESTATEMENT (SECOND) OF CONTRACTS § 77 cmt. a (1981); 3 WILLISTON ON CONTRACTS § 7.7 (4th ed. 1992)). It would be inconsistent to call Sabine Pilot an implied contractual restriction on a relationship that is not even contractual. Cf. City of Midland v. O’Bryant, 18 S.W.3d 209, 216 (Tex. 2000) (“[A] contractual limitation [like a duty of good faith and fair dealing] would afford more rights to the plaintiffs than at-will employees possess.”).

Instead, we conclude that Sabine Pilot claims are not contractual in nature, but sound in tort, providing a remedy when an employee refuses to comply with an employer’s directive to violate the law and is subsequently fired for that refusal. This approach is consistent with our treatment of a statutory workers’ compensation retaliation claim (another narrow exception to employment-at-will), which we have labeled an intentional tort. See Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d  444, 453 (Tex. 1996) (discussing TEX. LAB. CODE § 451.001). It also gives due attention to the fact that Sabine Pilot liability stems not from an agreement between employer and employee (the subject of contract), but from legislatively expressed public policies embodied in the criminal law. For these reasons, we hold that a Sabine Pilot claim sounds in tort, not in contract.

2. Punitive Damages for This Tort

Safeshred contends that, even if we recognize a Sabine Pilot claim as a tort, allowing exemplary or punitive damages would constitute an expansion of the claim that we did not intend in Sabine Pilot, and one better left to the Legislature. But punitive damages are generally available for common law torts so long as the traditional prerequisites are met: a finding of actual damages, Doubleday & Co. v. Rogers, 674 S.W.2d 751, 754 (Tex. 1984); and outrageous, malicious, or otherwise reprehensible conduct, Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 16 (Tex. 1994). Rather than expanding the claim, allowing punitive damages would merely avoid arbitrarily excluding a category of damages that is otherwise presumptively available. In a similar situation, where the Legislature only specified the availability of “reasonable damages” for workers’ compensation retaliation claims, we interpreted that term to include punitive damages, which “have long been seen as an important policy tool and a valid measure of damages.” Azar Nut Co. v. Caille, 734 S.W.2d 667, 669 (Tex. 1987) (citing Hofer v. Lavender, 679 S.W.2d 470, 474–75 (Tex. 1984)). Here, we face similar policy concerns to those presented by the statute at issue in Azar Nut (deterring employers from wrongfully terminating employees), as well as the additional objective of deterring violations of the criminal law. We hold that, in the proper case, Sabine Pilot plaintiffs may recover any reasonable tort damages, including punitive damages.

  

SOURCE: TEXAS SUPREME COURT - Safeshred, Inc. v. Louis Martinez, III (Tex. April 20, 2012)(Opinion by Lehrmann) (on petition for review from the Austin Court of Appeals)
LEGAL TERMS AND LINKS: Sabine Pilot Exception to Employment at Will Doctrine  Employment at Will

Does slander per se require proof of damages? Salinas v. Salinas, No. 11-0131 (Tex. April 20, 2012)

  

DAMAGES IN PER SE DEFAMATION CASE - If not merely nominal, what amount? 

Texas Supreme Court has this to say in case in which it reversed a $30,000 appellate court judgment in favor of defamation plaintiff this morning:   

“Our law presumes that statements that are defamatory per se injure the victim’s reputation and entitle him to recover general damages, including damages for loss of reputation and mental anguish.” Bentley v. Bunton, 94 S.W.3d 561, 604 (Tex. 2002) (plurality opinion). However, even if some mental anguish can be presumed in cases of defamation per se, and if we assume the Telemundo statement was defamatory per se, the law does not presume any particular amount of damages beyond nominal damages.2

2 We need not decide whether Norberto would have been entitled to nominal damages for slander per se if he had requested them. He did not request such an award from the trial court and did not request that the jury be instructed to award at least nominal damages. We note, however, that courts have not resolved this issue in an entirely consistent manner. See Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc. 219 S.W.3d 563, 584–85 n.22 (Tex. App.—Austin 2007, pet. denied) (discussing cases

See Denton Publ’g Co. v. Boyd, 448 S.W.2d 145, 147 (Tex. Civ. App.—Fort Worth 1969) (holding that a plaintiff in a libel per se case is entitled to nominal damages and “such actual damages as might be shown to be the proximate result of the publication”), aff’d, 460 S.W.2d 881 (Tex. 1970); Tex. Disposal Sys., 219 S.W.3d at 584 (stating that in cases of defamation per se, “the amount of actual general damages remains a question for the jury”); Adolf Coors Co. v. Rodriguez, 780 S.W.2d 477, 488 (Tex. App—Corpus Christi 1989, writ denied) (noting that under presumption of damages applicable to libel per se, damages “are within the jury’s discretion, are purely personal, and cannot be measured by any fixed rule or standard”); Bradbury v. Scott, 788 S.W.2d 31, 39 (Tex. App.—Houston [1st Dist.] 1989), writ denied) (holding, in case of libel per se, “where the amount of the actual damages is not capable of definite ascertainment, and prima facie liability is established, the determination of the amount is necessarily lodged in the discretion of the jury”); Freeman v. Schwenker, 73 S.W.2d 609, 611 (Tex. Civ. App.—Austin 1934, no writ) (same).

SOURCE: TEXAS SUPREME COURT – Salinas v. Salinas, No. 11-0131 – 4/20/12

There is, in short, no jury verdict in support of an award of damages of $30,000 or any other amount for the Telemundo statement, and the court of appeals could not sua sponte make its own award of damages. See Freeman, 73 S.W.2d at 611 (holding, in libel per se case, that “[i]t is a well-settled rule that, where a case is submitted to a jury . . . judgment of the court must be rendered upon the verdict returned”); see also Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (holding that appellate court could not review sufficiency of evidence under a legal standard that was not submitted to the jury if no party objected to failure to charge jury under the standard). Even if mental anguish can be presumed, the determination of the amount of mental anguish damages is an inquiry left to the finder of fact. We therefore agree with Maria that the court of appeals was not authorized to award $30,000 in mental anguish damages for the Telemundo statement, without a damages finding by the jury supporting such an award.

SOURCE: SUPREME COURT OF TEXAS – Maria Ester Salinas vs. Norberto Salinas, No. 11-0131 – 4/20/12 

Texas Supreme Court releases gusher of new opinions, including an oil-and-gas related one

  
Some of the new opinions contain points of law relevant to this blawg (e.g., governmental immunity & prospective injunctive relief exception, limitations tolling theories, availability of declaratory relief), but can't be digested on the run. In the meantime, here is a list with excerpts (mostly introductory paragraphs and conclusions) from the Court's opinions in the 11 cases:  
       
TEX. SUP. CT. UPDATE: TABLE OF CASES DECIDED DECEMBER 16, 2011 (and one opinion on motion for rehearing)
    

[Case style with opinion snippets and procedural history, i.e. case in the court below]
[Photos added 12/20]
       
City of Dallas v. Parker, No. 07-0288 (Tex. Dec. 16, 2011)(public employment, immunity of governmental entities)
 

Seal of the City of Dallas in front of Cityhall


This appeal involves issues of governmental immunity from suit. With the exception that this matter is a class action, which does not affect our analysis or conclusions, and one argument that we address separately, the material facts, procedural background, issues, and arguments presented are similar to those we considered in City of Dallas v. Albert, ___ S.W.3d ___ (Tex. 2011). Thus, our conclusions and holdings are the same as those in Albert.

In addition to arguments made in Albert and addressed above, the Officers in this case assert that the City’s immunity from suit is waived because the suit implicitly involves the validity of pay resolutions adopted by the city council. See TEX. CIV. PRAC. & REM. CODE § 37.006(b) (“In any proceeding that involves the validity of a municipal ordinance . . . the municipality must be made a party . . . .”). However, the Officers’ pleadings do not support this contention. Their pleadings reference the ordinance as having become a term of their employment contracts and two resolutions as possible bases for calculating their damages. They do not question the validity of either the ordinance or a resolution.
 
We reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.
 
CITY OF DALLAS v. DAVID S. MARTIN AND GEORGE G. PARKER, ET AL.; from Rockwall County; 5th district (05-03-01310-CV, 214 SW3d 638, 12-21-06) 2 petitions

The Court reverses the court of appeals' judgment and remands the case to the trial court.
 
Justice Phil Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice David Medina, Justice Paul Green, Justice Eva Guzman, and Justice Lehrmann joined.
 
Justice Willett delivered a dissenting opinion
 
Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site
  
Lowell v. City of Baytown, TX, No. 07-1011 (Tex. Dec. 16, 2011)(firefighter litigation, governmental entities, no immunity to claim prospective injunctive relief brought against government official in official capacity)
  
Petitioners are firefighters for the City of Baytown. They sued the City, claiming that it improperly calculated pay for certain assignments in violation of the Firefighter and Police Civil Services Act. The firefighters sought declaratory and injunctive relief, as well as “all pay and benefits lost as a result of Defendant’s failure to properly pay Plaintiffs during temporary assignment of higher-classified duties.” The firefighters also requested prejudgment interest on back pay, attorney’s fees, costs, and postjudgment interest. The City filed a jurisdictional plea asserting governmental immunity, which the trial court granted.
 
The court of appeals also reversed the trial court’s judgment dismissing the firefighters’ claims for prospective declaratory and injunctive relief, holding that such claims did not implicate governmental immunity. Although the court of appeals correctly concluded that immunity does not preclude certain prospective claims, we recently held that such actions must be brought against the relevant government officials, rather than the governmental entity itself. See Heinrich, 284 S.W.3d at 373 (observing that “these suits cannot be brought against the state, which retains immunity, but must be brought against the state actors in their official capacity. This is true even though the suit is, for all practical purposes, against the state.”). Here, the firefighters named the City rather than city officials in their official capacity as Heinrich requires, but their pleading predated Heinrich.
  


A Question of Identifying to Proper Target

In addition to remanding to permit the firefighters to replead in light of chapter 271, our remand will also permit the firefighters to replead in light of Heinrich and seek appropriate relief, if any, against the relevant city officials.  
Accordingly, we grant the firefighters’ petition for review and, without hearing oral argument, reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings consistent with this opinion. TEX. R. APP. P. 59.1, 60.2(d).

KEITH LOWELL, ET AL. v. CITY OF BAYTOWN, TEXAS; from Harris County; 1st district (01-04-00548-CV, 264 SW3d 31, 08-09-07)

Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
 
Per Curiam Opinion
 
Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site



Oh, the Quirks of Federalism

 Minton v. Gunn, No. 10-0141 (Tex. Dec. 16, 2011)(patent litigation)
    
This case arises out of patent infringement litigation. We consider whether federal courts possess exclusive subject-matter jurisdiction over state-based legal malpractice claims that require the application of federal patent law. The federal patent issue presented here is necessary, disputed, and substantial within the context of the overlying state legal malpractice lawsuit. Additionally, the patent issue may be determined without creating a jurisdictional imbalance between state and federal courts. We conclude that exclusive federal jurisdiction exists in this case. Accordingly, without reaching the merits of the legal malpractice claim, we reverse the court of appeals’ judgment and dismiss this case.

CONCLUSION: Because we determine that the application of the experimental use exception to the on-sale bar is a necessary, disputed, and substantial element of Minton’s state-based legal malpractice claim, and because the federal courts are capable of addressing this issue without disrupting the jurisdictional balance existing between state and federal courts, we hold that Minton’s claim has triggered exclusive federal patent jurisdiction. Accordingly, we do not reach the merits of Minton’s claims, and we reverse the court of appeals’ judgment and dismiss the case.
 
VERNON F. MINTON v. JERRY W. GUNN, INDIVIDUALLY, WILLIAMS SQUIRE & WREN, L.L.P., JAMES E. WREN, INDIVIDUALLY, SLUSSER & FROST, L.L.P., WILLIAM C. SLUSSER, INDIVIDUALLY, SLUSSER WILSON & PARTRIDGE, L.L.P., AND MICHAEL E. WILSON, INDIVIDUALLY; from Tarrant County; 2nd district (02-06-00443-CV, 301 SW3d 702, 10-08-09)
 
The Court reverses the court of appeals' judgment and dismisses the case.
 
Justice Paul Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Phil Johnson , and Justice Lehrmann joined.
 
Justice Eva Guzman delivered a dissenting opinion, in which Justice David Medina and Justice Willett joined.
 
(Justice Hecht not sitting)
 
Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site
 
  
In Re SCI, No. 10-0155 (Tex. Dec. 16, 2011)(arbitration, procedure to select arbitrator)
  
This mandamus proceeding arises from an arbitration agreement governed by the Federal Arbitration Act (FAA). The parties entered into a contract for interment rights and services. The contract obligated the parties to arbitrate this dispute over the care and maintenance of the cemetery.
   

Everything with dignity -
including selection of arbitrators


The arbitration agreement provides that an arbitrator would either be selected by mutual agreement of the parties or appointed by the American Arbitration Association (AAA). The parties failed to agree to an arbitrator and the trial court appointed an arbitrator without allowing a reasonable opportunity to procure an appointment by AAA. We conclude that the trial court abused its discretion and conditionally grant the petition for writ of mandamus.
 
We conclude that the contract is not ambiguous on this point. If the parties cannot agree on an arbitrator, the contract requires that they use AAA to appoint the arbitrator.

IN RE SERVICE CORPORATION INTERNATIONAL AND SCI TEXAS FUNERAL SERVICES, INC. D/B/A MAGIC VALLEY MEMORIAL GARDENS; from Hidalgo County; 13th district (13-09-00681-CV, ___ SW3d ___, 02-17-10) stay order issued March 12, 2010, lifted
 
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the writ of mandamus.
 
Per Curiam Opinion
 
Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site

     
In re Service Corp. Inc., No. 10-0158 (Tex. Dec. 16, 2011)(appointment of arbitrator based on agreement on method, rather than selection by the trial court judge) (mandamus granted)
  
IN RE SERVICE CORPORATION INTERNATIONAL AND SCI TEXAS FUNERAL SERVICES, INC., JOINTLY D/B/A MONT META MEMORIAL GARDENS; from Cameron County; 13th district (13-10-00026-CV, ___ SW3d ___, 02-23-10)
 
Norma Sandoval and her sister, Nora Martinez, jointly filed suit against Service Corporation International (SCI) alleging fraud, deceptive trade practices, and other tort claims arising from their respective interment rights and services contracts for family burial plots at Mont Meta Memorial Park.1 The parties agree the dispute was required to be arbitrated pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-16.


Grave Problems ....

... go to the arbitrator - But which one?

SCI asserts that the trial court’s appointment of an arbitrator interfered with the contractual rights of the parties and was not authorized by the Federal Arbitration Act. Without reaching the parties’ arguments as to which party or parties have the burden of approaching the AAA to appoint an arbitrator, we agree with SCI that the trial court’s appointment was an abuse of discretion from which there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004). In a related case also decided today, In re Service Corp. International & SCI Tex. Funeral Services, Inc. d/b/a Magic Valley Memorial Gardens, we analyzed an identical arbitration provision. __ S.W.3d __ (Tex. 2011). Following the rationale in Magic Valley Memorial Gardens, we conclude the trial court abused its discretion by appointing an arbitrator instead of following the agreed-upon method of selection outlined in the contract.
As a matter of law, the two month delay in the selection of an arbitrator in this case, by itself, does not establish a lapse or failure of the parties to avail themselves of the contractual selection method. See 9 U.S.C. § 5; Magic Valley Memorial Gardens, __ S.W.3d __ (Tex. 2011). Accordingly, without hearing oral argument, we conditionally grant SCI’s petition for writ of mandamus and direct the trial court to vacate its prior order appointing David Calvillo as arbitrator. TEX. R.APP. P. 59.1, 52.8(c). We are confident the trial court will comply, and the writ will issue only if it fails to do so.
  
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the writ of mandamus.
  
Per Curiam Opinion
 
Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site
  
  
Etan Industries, Inc. v. Lehmann, No. 10-0318 (Tex. Dec. 16, 2011)(limitations bar, propriety of declaratory relief, award of attorney's fees on declaratory judgment claim, mootness doctrine)
 
Defendant Etan Industries, Inc. contends that the tort claims against it are barred by the two year statute of limitations. It also argues that the declaratory judgment against it was unwarranted.
  
We agree and accordingly reverse and render judgment for Etan.
  
We agree with Etan that the Lehmanns’ common-law tort claims were barred by limitations. Etan argues that the claims for declaratory judgment were moot because Etan had removed its lines from the Lehmanns’ properties prior to trial. We agree. We have recently noted that a request for declaratory judgment is moot if the claim presents “no live controversy.” Tex. A & M Univ.-Kingsville v. Yarbrough, 347 S.W.3d 289, 290 (Tex. 2011).
 
ETAN INDUSTRIES, INC. AND ETAN INDUSTRIES, INC., D/B/A CMA CABLEVISION AND/OR CMA COMMUNICATIONS v. RONALD LEHMANN AND DANA LEHMANN; from Lee County; 3rd district (03-07-00539-CV, 308 SW3d 489, 03-26-10)
  
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
  
Per Curiam Opinion
  
Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site

    
Shell Oil Co. v. Ross, No. 10-0429 (Tex. Dec. 16, 2011)(oil, gas and natural resources law, limitations and discovery rule, fraudulent concealment, accrual of cause of action, starting date for running of limitations)


The Courthouse clock had been ticking

This case involves a dispute concerning alleged underpayments of gas royalty. We must decide whether limitations barred a royalty owner’s claims against the operator of the field. We hold that the fraudulent concealment doctrine does not apply to extend limitations as a matter of law when the royalty underpayments could have been discovered from readily accessible and publicly available information before the limitations period expired. When, as in this case, the information was publicly available and readily accessible to the royalty owner during the applicable time period, a royalty owner who fails to take action does not use reasonable diligence as a matter of law. It has long been the law that the discovery rule does not apply to defer the accrual of royalty owners’ claims for underpayments when the injury could have been discovered through the exercise of due diligence. Accordingly, because the parties do not dispute that the pertinent information was readily accessible and publicly available, the royalty owner’s claims are time-barred as a matter of law.
 
Conclusion: 
We hold that evidence conclusively established that Shell’s alleged fraud could have been discovered by the Rosses through the exercise of reasonable diligence. Accordingly, we reverse the court of appeals’ judgment and render judgment for Shell.
  
SHELL OIL COMPANY; SWEPI LP D/B/A SHELL WESTERN E&P, SUCCESSOR IN INTEREST TO SHELL WESTERN E&P, INC. v. RALPH ROSS; from Harris County; 1st district (01-08-00713-CV, ___ SW3d ___, 02-25-10)
  
The Court reverses the court of appeals' judgment and renders judgment.
  
Justice Lehrmann delivered the opinion of the Court.
 
Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site
 
  
Americo Life, Inc. v. Myer, No. 10-0734 (Tex. Dec. 16, 2011)(selection of arbitrators on panel, neutrality of chosen arbitrator)

This case concerns an arbitration provision that allows each party to appoint one arbitrator to a panel, subject to certain requirements. At issue is whether Americo Life, Inc. waived its objection to the removal of the arbitrator it selected. The underlying dispute concerned the financing mechanism for Americo’s purchase of several insurance companies from Robert Myer.1 Pursuant to the financing agreement, Americo and Myer submitted their dispute to arbitration under American Arbitration Association (AAA) rules. The arbitrators found in favor of Myer, and Americo filed a The court of appeals is correct that Americo did not expressly state that arbitrators were not required to be neutral. 315 S.W.3d at 75–76. However, Americo argued that the AAA requirements did not apply, that the only applicable requirements were that they be knowledgeable and independent businesspersons or professionals, and that Figari met these qualifications. Americo properly preserved this argument. Therefore, without hearing oral argument, TEX. R.APP. P. 59.1, we reverse the court of appeals’ judgment and remand the case to the court of appeals for further proceedings consistent with this opinion.
  
AMERICO LIFE, INC., AMERICO FINANCIAL LIFE AND ANNUITY INSURANCE COMPANY, GREAT SOUTHERN LIFE INSURANCE COMPANY, THE OHIO STATE LIFE INSURANCE COMPANY, AND NATIONAL FARMERS' UNION LIFE INSURANCE COMPANY v. ROBERT L. MYER AND STRIDER MARKETING GROUP, INC.; from Dallas County; 5th district (05-08-01053-CV, 315 SW3d 72, 10-22-09)
  
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
  
Per Curiam Opinion
  
Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site
   

In re Jeffrey Cook, No. 10-0855 (Tex. Dec. 16, 2011)(reason for grant of new trial required, even if original judge replaced)(mandamus granted).
   
The relator asks us to decide whether a trial court abused its discretion when it issued an order granting a motion for new trial “based on all grounds in the motion.” While this case was pending, however, the judge who signed the order resigned, and we remanded the case pursuant to Texas Rule of Appellate Procedure 7.2(b). The successor trial judge then entered an order stating only that his predecessor’s ruling “should remain unchanged.” We recently held that a successor trial court’s order reaffirming the original trial court’s grant of a motion for new trial was “effectively an order refusing to enter judgment on the jury verdict and affects the rights of the parties no less than did the orders of the original judge,” and we concluded that the relator in that case was “entitled to know those reasons just as much as it would be entitled to know the reasons for the orders entered by the former trial judge.” In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 214 (Tex. 2009). Accordingly, we conditionally granted mandamus relief, directing the successor trial court to specify the reasons it refused to enter judgment on the jury verdict and ordered a new trial. Id. at 215. Because the successor trial court judge in this case did not state sufficient reasons for his ruling, contrary to our holding in In re Columbia, we conditionally grant relief.
 
Without hearing oral argument, TEX. R. APP. P. 52.8(c), we conditionally grant Jeffrey’s petition for writ of mandamus and direct the successor trial court to specify the reasons why it refused to enter judgment on the jury verdict. See In re Columbia, 290 S.W.3d at 215 (requiring reasons to be “clearly identified and reasonably specific”).
  
We are confident that the trial court will comply, and our writ will issue only if it does not.
  
IN RE JEFFREY COOK; from Tarrant County; 2nd district (02-10-00068-CV, ___ SW3d ___, 06-08-10)
  
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the writ of mandamus.
  
Per Curiam Opinion
 
(Justice Lehrmann not sitting)

Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site

   
Ryland Enterprise, Inc. v. Weatherspoon, No. 11-0189 (Tex. Dec. 16, 2011)(appellate procedure, timeliness of appeal, extension of deadline to file notice of appeal)
    
In this case we must decide whether the court of appeals erred in dismissing Ryland Enterprise, Inc.’s appeal as untimely. Because an arguable interpretation of our procedural rules allowed Ryland’s premature, pre-judgment motion for judgment notwithstanding the verdict (JNOV motion) to extend the appellate timetable to ninety days, the court of appeals erred in dismissing the appeal. Accordingly, pursuant to Texas Rule of Appellate Procedure 59.1 without hearing oral argument, we reverse the court of appeals’ judgment and remand the case to that court.
   

In the Texas Supreme Court, it's usually the corporate
defendants that get a break


On the facts of this case, an arguable interpretation of appellate rules 26.1(a) and 27.2 and civil rules 329b and 306c allowed Ryland’s motion, though filed pre-judgment, to nevertheless extend the appellate timetable to ninety days. Ryland’s sixty-fifth-day notice of appeal was therefore timely, and the court of appeals erred in dismissing the appeal. Pursuant to Texas Rule of Appellate Procedure 59.1, we reverse the court of appeals’ judgment without hearing oral argument and remand to that court for consideration of Ryland’s appeal.
  
RYLAND ENTERPRISE, INC. v. VICKIE WEATHERSPOON; from Harris County; 1st district (01-10-00715-CV, ___ SW3d ___, 01-27-11)
 
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.

Per Curiam Opinion
 
Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site
  
 
MOTIONS FOR REHEARING DENIED -- WITH OPINION -- IN:
     
Marsh USA, Inc. v. Cook, No. 09-0558 (Tex. Dec. 16, 2011) (opinion on rehearing)(noncompetes, consideration, enforceability)
 
We deny Rex Cook’s motion for rehearing. We withdraw our opinion of June 24, 2011 and substitute the following in its place.
  
In this case, we decide whether a covenant not to compete signed by a valued employee in consideration for stock options, designed to give the employee a greater stake in the company’s performance, is unenforceable as a matter of law because the stock options did not give rise to an interest in restraining competition. We hold that, under the terms of the Covenants Not to Compete Act (Act), the consideration for the noncompete agreement (stock options) is reasonably related to the company’s interest in protecting its goodwill, a business interest the Act recognizes as worthy of protection. The noncompete is thus not unenforceable on that basis. We reverse the court of appeals’ judgment and remand to the trial court for further proceedings.


Go or No Go? - The signals from
the judiciary can be a challenge

  CONCLUSION: In this case, the covenant not to compete is “ancillary to or part of” an otherwise enforceable agreement because the business interest being protected (goodwill) is reasonably related to the consideration given (stock options). Section 15.50 requires that there be a nexus between the covenant not to compete and the interest being protected. TEX.BUS.&COM.CODE § 15.50(a). This requirement is satisfied by the relationship that exists here. We reverse the judgment of the court of appeals and remand to the trial court for further proceedings consistent with this opinion.
  
MARSH USA INC. AND MARSH & MCLENNAN COMPANIES, INC. v. REX COOK; from Dallas County; 5th district (05-08-00685-CV, 287 SW3d 378, 05-26-09)
  
The Court's opinion of June 24, 2011 is withdrawn and the opinion of this date is substituted. The concurring opinion by Justice Willet, the dissenting opinion by Justice Paul Green, and the judgment issued June 24, 2011, remain in place.
  
Links to pdf version of opinion and to Electronic Briefs in this case can be found on the Texas Supreme Court's web site

SOURCE: 
Supreme Court of Texas - Tex (2011) Opinions released December 16, 2011 (link to court here)

TTCA Notice of Claim Requirement for suit under the Tort Claims Act

  
Texas Tort Claims Act: Waiver of immunity allows for suits against governmental defendants that would otherwise be jurisdictionally barred, subject to requirement that timely notice be given in writing or governmental entity have actual notice. But what amounts to actual notice?  A recent opinion by the Austin Court of Appeals discusses supreme court precedent on the issue:

    
Absent a waiver, governmental entities are generally immune from suits for damages. University of Tex. Sw. Med. Ctr. v. Estate of Arancibia, 324 S.W.3d 544, 546 (Tex. 2010). Such immunity deprives a trial court of subject-matter jurisdiction. Miranda, 133 S.W.3d at 224. The Texas Tort Claims Act ("the Act") provides a limited waiver of governmental immunity "to the extent of liability created by [the Act]." Tex. Civ. Prac. & Rem. Code Ann. § 101.025 (West 2011); Tex. Gov't Code Ann. § 311.034 (West Supp. 2011). To take advantage of this waiver, claimants must provide a governmental entity with sufficient notice of their claims. Tex. Civ. Prac. & Rem. Code Ann. § 101.101. 

In its sole point of error, the County alleges that because it did not receive the required statutory notice of Gough's claim, its plea to the jurisdiction should not have been denied. See Colquitt v.  Brazoria County, 324 S.W.3d 539, 543 (Tex. 2010) (per curiam).

  
Under the Act, a party seeking to impose liability must provide a governmental entity formal, written notice not later than six months after the day the incident giving rise to the claim occurred, reasonably describing (1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a); Cathey v. Booth, 900 S.W.2d 339, 340 (Tex. 1995). However, the formal notice requirement does not apply "if the governmental unit has actual notice of the death, injury, or property damage claimed." Tex. Civ. Prac. & Rem. Code Ann. § 101.101(c). The purpose of the Act's notice provision is to ensure prompt reporting of claims to allow governmental units time to guard against unfounded claims, settle claims, and prepare for trial. Cathey, 900 S.W.2d at 341. In this case, the parties agree that Gough did not present the County with formal notice within six months of the accident. Accordingly, their dispute centers on whether the County received actual notice of Gough's claim.

   
The Texas Supreme Court interpreted the Act's actual notice provision in Cathey v. Booth. Id. at 340-41. In that case, the appellants urged that a hospital had actual notice of their negligence claims by virtue of its medical records of the stillbirth of their child. However, the court rejected that interpretation of actual notice, which would "require[] only that a governmental unit have knowledge of a death, an injury, or property damage." Id. at 341 (emphasis added). The court asserted that such an interpretation would force defendants such as hospitals "to investigate the standard of care provided to each and every patient that received treatment" and would therefore "eviscerate the purpose of the statute." Id. The court held that actual notice to a governmental entity "requires knowledge of (1) a death, injury, or property damage; (2) the governmental unit's alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved." Id.

SOURCE: AUSTIN COURT OF APPEALS - 03-11-00164-CV – 12/ 9/11

Concho County, Texas v. Gough (Tex.App.- Austin, Dec. 9, 2011, no pet. h.) 

Appellant Concho County ("the County") brings this interlocutory appeal from the trial court's denial of its plea to the jurisdiction in a personal injury suit brought by Billy Randall Gough, temporary administrator of the estate of Gary August Gough, under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, .101 (West 2011). We affirm the order denying the plea to the jurisdiction.

The County's interpretation of actual notice would effectively narrow "awareness of alleged fault" to the point of requiring awareness of liability. "Fault, as it pertains to actual notice, is not synonymous with liability; rather, it implies responsibility for the injury claimed." University of Tex. Sw. Med. Ctr., 324 S.W.3d at 550. In this case, an allegation of such responsibility was clearly communicated. The pleadings affirmatively demonstrate that the County had knowledge of Gary Gough's allegations in satisfaction of the actual notice requirements of the Texas Tort Claims Act; we therefore hold that governmental immunity was waived and the trial court's exercise of subject-matter jurisdiction was proper. We overrule the County's sole issue on appeal.
  

CONCLUSION 
  

Because we hold that actual notice was received under section 101.021 of the civil practice and re   medies code, we affirm the trial court's order denying the County's plea to the jurisdiction.

SOURCE: THIRD COURT OF APPEALS OF TEXAS - 03-11-00164-CV – 12/ 9/11

BACKGROUND

The basic facts in this case are undisputed. Before dawn on September 29, 2008, Gary August Gough walked onto the roadway of U.S. Highway 87 in Eden, Texas, and was struck by an oncoming Ford F-150 pickup truck. ⁽¹⁾ The driver of the vehicle was Concho County Sheriff Richard Doane, who then contacted the county police dispatch by radio to report that he had struck a pedestrian. An officer from the Texas Department of Public Safety (DPS), Trooper Rob Manley, evaluated the scene and authored a report identifying Gary Gough's failure to yield the right of way as the cause of the accident. Gary Gough suffered injuries from the impact and was transported from the scene for treatment. ⁽²⁾

  
Subsequent to this incident, the parties exchanged a series of communications. On October 15, 2008, counsel for Gary Gough submitted an open records request to the Concho County Attorney for "all county cell phone records for Richard Doane and all other sheriff personnel for September 28, 29, and 30, 2008." On October 28, an attorney for the County wrote a letter to Gary Gough stating that an independent investigation found Gary Gough's negligence to have caused the accident and demanding that he pay $2,663.14 for repairs to the sheriff's vehicle. Then, on November 3, another attorney for the County responded in writing to Gary Gough's open records request, stating, "Because the requested information relates to an incident that the County anticipates will form the basis of litigation . . . this information is being withheld." Finally, on December 11, the same attorney for the County wrote in another letter to Gary Gough's counsel that "Concho County's election to withhold the requested documents pursuant to the litigation exception is based, in part, on statements made by you regarding bringing a lawsuit on behalf of your client Gary Gough."

On September 28, 2010, as Temporary Administrator of Gary Gough's estate, Gough sued the County for the negligent operation of Doane's vehicle under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (providing for governmental liability if property damage, personal injury, or death is proximately caused by an employee's negligence and "arises from the operation or use of a motor-driven vehicle"). The County filed a plea to the jurisdiction asserting governmental immunity. It alleged that Gough failed to comply with the notice of the Texas Tort Claims Act as required for a waiver of such immunity. See id. § 101.101. After a hearing, the trial court denied the County's plea to the jurisdiction. This interlocutory appeal followed.

Concho County, Texas v. Gough (Tex.App.- Austin, Dec. 8, 2011, no pet. h.)