Texas Bulletin

Douglas v. Turner, (Tex.App.-Waco) -

Fri, 24 May 2013 00:00:00 CDT

May 24, 2013: Litigation - Inmate's failure to file affidavit of previous filings and certified copy of inmate account warranted dismissal of appeal.

As a matter of first impression, the Texas Court of Appeals held that an inmate's failure ...

Davison v. State, (Tex.Crim.App.) -

Fri, 24 May 2013 00:00:00 CDT

May 24, 2013: Criminal Justice - Defendant failed to show that failure to correctly admonish him on range of punishment made plea involuntary.

A defendant failed to demonstrate that his guilty plea to burglary of a building and three felony...

North Port Firefighters' Pension-Local Option Plan v. Temple-Inland, Inc., (N.D.Tex.) -

Thu, 23 May 2013 00:00:00 CDT

May 23, 2013: Securities Regulation - Investors' class action complaint failed to sufficiently allege Section 10(b) and Rule 10b-5 claim against corporation.

Investors' class action complaint failed to sufficiently allege that a corporation...

Lewis v. Wells Fargo Bank, N.A., (N.D.Tex.) -

Thu, 23 May 2013 00:00:00 CDT

May 23, 2013: Real Property - Lender's successor by merger was lender with authority to foreclose on deed of trust on property that secured promissory note, under Texas law.

A lender's successor by merger was a lender with authority to enfo...

National Rifle Ass'n of America, Inc. v. McCraw, (C.A.5 (Tex.)) -

Thu, 23 May 2013 00:00:00 CDT

May 23, 2013: Civil Rights - Texas's statutes that did not allow 18-to-20-year-old adults to carry handguns in public survived Second Amendment challenge.

Texas's statutory scheme that did not allow 18-to-20-year-old adults to carry handgun...

Gelinas v. State, (Tex.Crim.App.) -

Wed, 22 May 2013 00:00:00 CDT

May 22, 2013: Criminal Justice - No egregious harm resulted in DWI case from erroneous, unobjected-to jury charge on determining legality of traffic stop.

A plurality of the Texas Court of Criminal Appeals held that no egregious harm arose,...

In re Nalle Plastics Family Ltd. Partnership, (Tex.) -

Tue, 21 May 2013 00:00:00 CDT

May 21, 2013: Litigation - Attorney fees incurred in prosecution or defense of a claim are not compensatory damages.

The Texas Supreme Court has held, as a matter of first impression, that attorney fees incurred in the prosecution or defens...

Kruse v. Bank of New York Mellon, (N.D.Tex.) -

Tue, 21 May 2013 00:00:00 CDT

May 21, 2013: Commercial Law - Claim under Texas Debt Collection Act (TDCA) against defendants arising out of alleged oral promise to postpone foreclosure sale was barred by statute of frauds.

A claim brought by mortgagors under the Texas D...

City of Arlington, Tex. v. F.C.C., (U.S.) -

Mon, 20 May 2013 00:00:00 CDT

May 20, 2013: Administrative Practice - Agency's determination of its own jurisdiction is entitled to Chevron deference -- Supreme Court Decision

Courts must apply the Chevron framework to an agency's interpretation of a statutory ambiguity ...

Cibolo Waste, Inc. v. City of San Antonio, (C.A.5 (Tex.)) -

Fri, 17 May 2013 00:00:00 CDT

May 17, 2013: Litigation - Waste haulers lacked prudential standing to bring dormant Commerce Clause challenge to city's waste collection fee.

Waste haulers' dormant Commerce Clause challenge to a city ordinance that imposed a permit fee fo...

Youkers v. State, (Tex.App.-Dallas) -

Fri, 17 May 2013 00:00:00 CDT

May 17, 2013: Criminal Justice - Designation of judge as "friend" of victim's father on social media website did not show bias, as basis for recusal.

As a matter of apparent first impression, the communication and designation of a trial jud...

Ashley v. State, (Tex.App.-El Paso) -

Fri, 17 May 2013 00:00:00 CDT

May 17, 2013: Criminal Justice - Defendant's outbursts did not require second examination of competency to stand trial.

A defendant's outbursts during trial, such as refusing to come to the courtroom and claiming that he was hearing voices,...

Mailing and Shipping Systems, Inc. v. Neopost USA, Inc., (W.D.Tex.) -

Fri, 17 May 2013 00:00:00 CDT

May 17, 2013: Commercial Law - Under Texas law, appointment letter from supplier to dealer was written "agreement" within meaning of dealer policy manual.

Under Texas law, the appointment letter from a supplier to a dealer was a written "ag...

Ramirez v. Martinez, (C.A.5 (Tex.)) -

Fri, 17 May 2013 00:00:00 CDT

May 17, 2013: Civil Rights - Court could not discount arrestee's version of events in altercation with county sheriff's deputy on basis of video.

A court could not discount an arrestee's version of events in an altercation with a county she...

Town of Bartonville Planning and Zoning Bd. of Adjustments v. Bartonville Water Supply Corp., (Tex.App.-San Antonio) -

Thu, 16 May 2013 00:00:00 CDT

May 16, 2013: Real Property - Town zoning board lacked authority to decide if Water Code trumped town law as applied to water tower.

Under town ordinances requiring the town's building official and the town's zoning board of adjustments to ...

McKay v. Novartis Pharmaceuticals Corp., (W.D.Tex.) -

Thu, 16 May 2013 00:00:00 CDT

May 16, 2013: Products Liability - Ruling that consumer failed to rebut presumption of non- liability for manufacturer for FDA approved warnings was law of the case.

A previous ruling in a failure to warn products liability claims that the ...

In re Estate of Allen, (Tex.App.-Eastland) -

Thu, 16 May 2013 00:00:00 CDT

May 16, 2013: Estate Planning and Probate - Wife was not in default for failing to present will to probate as muniment of title within four-year statute of limitations.

Evidence was legally sufficient to support a trial court's finding that...

Kazman v. Frontier Oil Corp., (Tex.App.-Hous. (14 Dist.)) -

Wed, 15 May 2013 00:00:00 CDT

May 15, 2013: Litigation - Injunctive relief was a "noncash common benefit" that precluded attorney fee award as part of class-action settlement.

Injunctive relief was a "noncash common benefit" that precluded an attorney fee award as part ...

Whitehead v. Bulldog Battery Corp., (Tex.App.-Dallas) -

Wed, 15 May 2013 00:00:00 CDT

May 15, 2013: Litigation - Indiana judgment certified on the final page was properly authenticated.

An Indiana judgment filed in Texas under the Uniform Enforcement of Foreign Judgments Act (UEFJA) was properly authenticated in being certif...

Caldera v. Insurance Co. of the State of Pa., (C.A.5 (Tex.)) -

Wed, 15 May 2013 00:00:00 CDT

May 15, 2013: Labor and Employment - Medicare Secondary Payer Statute (MSP) did not preempt workers' compensation preauthorization requirement.

The Medicare Secondary Payer Statute (MSP) did not preempt state law that required a workers' co...

Texas Health and Human Services Com'n v. Advocates for Patient Access, Inc., (Tex.App.-Austin) -

Wed, 15 May 2013 00:00:00 CDT

May 15, 2013: Health - Injunction against limits on Medicaid services for patients under 18 was partially valid.

A temporary injunction order was sufficiently specific in setting forth the reasons for its issuance as to the reasons for enjo...

U.S. v. Alvarado-Casas, (C.A.5 (Tex.)) -

Wed, 15 May 2013 00:00:00 CDT

May 15, 2013: Criminal Justice - Alleged error was not plain as to factual basis for pleading guilty to conspiracy to commit aggravated alien transporting.

The alleged error was not plain, for purposes of plain error review of a defendant's...

In re Rodriguez, (Tex.App.-Beaumont) -

Tue, 14 May 2013 00:00:00 CDT

May 14, 2013: Education - All trustee positions on school board had to be filled in the election following redistricting.

Pursuant to statute, all trustee positions on the school board had to be filled in the election following redistrictin...

Bennett v. Dallas Independent School Dist., (N.D.Tex.) -

Tue, 14 May 2013 00:00:00 CDT

May 14, 2013: Education - School district articulated a legitimate, nondiscriminatory reason for the termination of its police officer.

A school district in Texas articulated a legitimate, nondiscriminatory reason for the termination of its...

Ex parte Hernandez, (Tex.App.-Beaumont) -

Tue, 14 May 2013 00:00:00 CDT

May 14, 2013: Criminal Justice - Trial court improperly restricted evidence to record of plea proceeding when reviewing habeas application on merits.

Once deciding to review a habeas application on the merits, the trial court improperly res...

Sherman v. HealthSouth Specialty Hosp., Inc., (Tex.App.-Dallas) -

Mon, 13 May 2013 00:00:00 CDT

May 13, 2013: Health - Claim of negligence in failing to secure patient and wheelchair in van was subject to expert-report requirement.

A patient's claims that a health care provider's employee negligently failed to secure the patient and h...

In re Buescher, (Bkrtcy.E.D.Tex.) -

Mon, 13 May 2013 00:00:00 CDT

May 13, 2013: Bankruptcy - Debtor's numerous, material omissions warranted denial of her discharge.

A Chapter 7 debtor's numerous, material omissions from her schedules and statement of financial affairs, which rendered false her sworn resp...

In re Bounds, (Bkrtcy.W.D.Tex.) -

Mon, 13 May 2013 00:00:00 CDT

May 13, 2013: Bankruptcy - Debtor and nondebtor-spouse could not stack statutory caps on state law homestead exemption rights.

A state court judgment finding that a Chapter 7 debtor had sold unregistered securities in violation of Texas law...

Baird v. State, (Tex.Crim.App.) -

Fri, 10 May 2013 00:00:00 CDT

May 10, 2013: Criminal Justice - Care taker had apparent consent to access defendant's computer so as to preclude suppression of evidence from computer.

A care taker who stayed at the defendant's house and watched the defendant's dog while ...

State v. Copeland, (Tex.Crim.App.) -

Fri, 10 May 2013 00:00:00 CDT

May 10, 2013: Criminal Justice - Warrantless search of vehicle based on driver's consent was not unreasonable on ground that passenger refused consent.

The holding of Georgia v. Randolph, that a warrantless search of a shared dwelling over ...

In re Equipment Equity Holdings, Inc., (Bkrtcy.N.D.Tex.) -

Fri, 10 May 2013 00:00:00 CDT

May 10, 2013: Bankruptcy - Actual harm required for equitable subordination of notes did not occur.

Assuming that the holders of "new" notes issued by a corporate Chapter 7 debtor prepetition engaged in inequitable conduct that would warran...

In re Cowin, (Bkrtcy.S.D.Tex.) -

Fri, 10 May 2013 00:00:00 CDT

May 10, 2013: Bankruptcy - Debtor's participation in lien stripping scheme was in nature of "willful and malicious injury."

The leadership role which an individual Chapter 11 debtor played in a conspiracy to use the tax lien foreclosure pr...

In re CNC Payroll, Inc., (Bkrtcy.S.D.Tex.) -

Fri, 10 May 2013 00:00:00 CDT

May 10, 2013: Bankruptcy - "Clear and convincing" evidence standard applied in show cause proceeding to remove trustee for fiduciary breach.

In a show cause proceeding to consider whether a Chapter 7 trustee had breached his fiduciary dutie...

University of Texas Health Science Center at Houston v. DeSoto, (Tex.App.-Hous. (14 Dist.)) -

Thu, 09 May 2013 00:00:00 CDT

May 9, 2013: Government - Hospital's immunity from suit was not waived under "tangible personal property" provision of Texas Tort Claims Act.

A state university hospital's immunity from suit was not waived under 'the 'tangible personal pro...

Dansby v. State, (Tex.Crim.App.) -

Thu, 09 May 2013 00:00:00 CDT

May 9, 2013: Criminal Justice - Appellate court was required to consider alleged Fifth Amendment violation on appeal from revocation of community supervision.

The record failed to establish, on a defendant's appeal from a revocation of defe...

Ex Parte Perez, (Tex.Crim.App.) -

Thu, 09 May 2013 00:00:00 CDT

May 9, 2013: Criminal Justice - The common law doctrine of laches, rather than federal laches standard, applied to application for habeas corpus relief.

The common law doctrine of laches, rather than the federal laches standard, applied to ...

Miller v. Raytheon Co., (C.A.5 (Tex.)) -

Wed, 08 May 2013 00:00:00 CDT

May 8, 2013: Labor and Employment - Laying off 54-year-old employee was age discrimination in violation of the ADEA and Texas statute.

Evidence sufficiently supported a jury's finding that an employer's layoff termination of 54-year-old emp...

Rachal v. Reitz, (Tex.) -

Wed, 08 May 2013 00:00:00 CDT

May 8, 2013: Estate Planning and Probate - Doctrine of direct benefits estoppel applied to bar beneficiary's claim that arbitration provision in trust was invalid.

Doctrine of direct benefits estoppel applied to bar a beneficiary's claim th...

Tricon Energy Ltd. v. Vinmar Intern., Ltd., (C.A.5 (Tex.)) -

Tue, 07 May 2013 00:00:00 CDT

May 7, 2013: Litigation - Panel did not clearly alter statutory postjudgment interest rate, despite parties' submission of that issue to arbitration.

An arbitration panel awarded "post-award," rather than "postjudgment" interest, and thus i...

Hairston v. Southern Methodist University, (Tex.App.-Dallas) -

Tue, 07 May 2013 00:00:00 CDT

May 7, 2013: Education - Statute of frauds barred student's breach of contract claim for athletic scholarship.

An oral agreement, allegedly offering a student a full scholarship to attend a university and join its soccer team, was unenforce...

Southwest Pharmacy Solutions, Inc. v. Centers for Medicare and Medicaid Services, (C.A.5 (Tex.)) -

Mon, 06 May 2013 00:00:00 CDT

May 6, 2013: Health - Illinois Council exception did not permit independent pharmacies to challenge Medicare Part D Preferred Pharmacy Rule (PPR).

The Illinois Council exception did not permit independent pharmacies to challenge the Medicar...

Bays v. State, (Tex.Crim.App.) -

Mon, 06 May 2013 00:00:00 CDT

May 6, 2013: Criminal Justice - Hearsay exception for child's outcry concerning sexual abuse is limited to live testimony of outcry witness.

The outcry statute, creating a hearsay exception for a child's first statements concerning alleged ...

Erica P. John Fund, Inc. v. Halliburton Co., (C.A.5 (Tex.)) -

Sun, 05 May 2013 00:00:00 CDT

May 5, 2013: Securities Regulation - Corporation was not permitted to challenge certification on ground of predominance with evidence that of no price impact.

In a putative 10(b) class action invoking the fraud-on-the-market presumption of...

McKenzie v. Wells Fargo Bank, N.A., (N.D.Cal.) -

Sun, 05 May 2013 00:00:00 CDT

May 5, 2013: Real Property - Mortgagors' allegations did not state claim against mortgage loan servicer for breach of mortgage contract under New Mexico and Texas law.

The lender on a mortgage loan owned by Federal Home Loan Mortgage Corpor...

In re Pinnacle Engineering, Inc., (Tex.App.-Hous. (1 Dist.)) -

Sun, 05 May 2013 00:00:00 CDT

May 5, 2013: Labor and Employment - Order requiring production of computer hard drives was abuse of discretion action in breach of contract action by former employee.

A trial court abused its discretion, in an action against two privately-h...

Truong v. Bank of America, N.A., (C.A.5 (La.)) -

Sun, 05 May 2013 00:00:00 CDT

May 5, 2013: Commercial Law - Rooker-Feldman doctrine did not deprive district court of jurisdiction over mortgagor's claims that banks violated LUTPA.

The Rooker-Feldman doctrine did not deprive the district court of jurisdiction over a mo...

Allergan, Inc. v. Sandoz Inc., (C.A.Fed. (Tex.)) -

Thu, 02 May 2013 00:00:00 CDT

May 2, 2013: Patents - Patent for combination brimonidine/timolol eye-drop product used for treating glaucoma was invalid as obvious.

A patent for a combination brimonidine/timolol eye-drop product used for treating glaucoma was invalid as ...

U.S. Risk Ins. Group, Inc. v. Woods, (Tex.App.-Dallas) -

Thu, 02 May 2013 00:00:00 CDT

May 2, 2013: Labor and Employment - Non-competition agreement did not prohibit broker from soliciting former employer's insureds.

A wholesale insurance broker's non-competition agreement prohibiting him from soliciting any insureds for whom...

Massachusetts Mut. Ins. Co. v. Mitchell, (S.D.Tex.) -

Thu, 02 May 2013 00:00:00 CDT

May 2, 2013: Insurance - Incontestability clause in life insurance contract did not apply, where person who applied for insurance was not the insured.

The incontestability clause in a life insurance contract did not apply under Texas law. E...

Park v. Memorial Health System of East Texas, (Tex.App.-Tyler) -

Thu, 02 May 2013 00:00:00 CDT

May 2, 2013: Health - Hospital's medical staff bylaws did not create contractual obligations for hospital.

A hospital board's power was not defined or limited by the hospital's medical staff bylaws, and therefore those bylaws did not create...

Ibarra v. State, (Tex.App.-Hous. (1 Dist.)) -

Thu, 02 May 2013 00:00:00 CDT

May 2, 2013: Criminal Justice - Padilla decision does not apply to defendants whose convictions became final prior to such decision.

The United States Supreme Court's decision in Padilla, which held that a criminal defendant must be provide...

In re SI Restructuring Inc., (C.A.5 (Tex.)) -

Thu, 02 May 2013 00:00:00 CDT

May 2, 2013: Bankruptcy - Chapter 11 plan did not specifically reserve state-law claims that creditors wished to pursue post-confirmation.

A Chapter 11 plan and disclosure statement lacked the specificity necessary to retain state-law claim...

Toy v. Holder, (C.A.5 (Tex.)) -

Wed, 01 May 2013 00:00:00 CDT

May 1, 2013: Labor and Employment - Gender discrimination action of FBI contract employee was barred by national security exception to Title VII.

An action brought by a contract employee of the Federal Bureau of Investigation (FBI) under Ti...

Detgen ex rel. Detgen v. Janek, (N.D.Tex.) -

Wed, 01 May 2013 00:00:00 CDT

May 1, 2013: Health - Texas Medicaid laws characterizing ceiling lift as home modification rather than durable medical equipment was not preempted by federal Medicaid Act.

The Texas Medicaid Act's characterization of a ceiling lift that was...

U.S. v. Garza-Guijan, (C.A.5 (Tex.)) -

Wed, 01 May 2013 00:00:00 CDT

May 1, 2013: Criminal Justice - Alien defendant's prior state sexual battery conviction was crime of violence within meaning of Sentencing Guidelines.

Defendant's prior Florida sexual battery conviction constituted a crime of violence withi...

Doe No. 1 v. Knights of Columbus, (D.Conn.) -

Tue, 30 Apr 2013 00:00:00 CDT

April 30, 2013: Torts - Victim of sexual abuse stated a plausible claim for negligence against organization charged with supervising abuser.

The victim, who allegedly was sexually abused by an adult leader of a religious-based youth organiz...

Chartis Specialty Ins. Co. v. Tesoro Corp., (W.D.Tex.) -

Tue, 30 Apr 2013 00:00:00 CDT

April 30, 2013: Insurance - Insured failed to state a breach of contract claim against its insurer.

An insured failed to allege that it had independent liability for the environmental conditions at a refinery or other properties owned by it...

In re Viet Quoc Nguyen, (Bkrtcy.S.D.Tex.) -

Tue, 30 Apr 2013 00:00:00 CDT

April 30, 2013: Bankruptcy - Fact issues existed whether foreclosure sale enabled deed of trust lender to receive more than in Chapter 7 liquidation.

A genuine issue of material fact as to whether the real property that a lender acquired by...

Anzures v. Prologis Texas I LLC, (W.D.Tex.) -

Mon, 29 Apr 2013 00:00:00 CDT

April 29, 2013: Real Property - Roof inspector was not liable for negligence, absent evidence that it proximately caused construction worker's injuries.

There was no evidence that any acts or omissions on the part of a roof inspector were t...

Blaylock v. Holland, (Tex.App.-Dallas) -

Mon, 29 Apr 2013 00:00:00 CDT

April 29, 2013: Real Property - There was nothing hostile about neighbor's use of disputed property until construction of chain link fence.

There was no evidence to establish that a neighbor's use or appropriation of a strip of backyard pro...

Gonzalez v. Bayer Healthcare Pharmaceuticals, Inc., (S.D.Tex.) -

Mon, 29 Apr 2013 00:00:00 CDT

April 29, 2013: Products Liability - Defective design claims against manufacturer of intrauterine contraceptive device were subject to learned intermediary doctrine.

A consumer's claims against the manufacturer of an intrauterine contracept...

Good Shepherd Medical Center-Linden, Inc. v. Twilley, (Tex.App.-Texarkana) -

Fri, 26 Apr 2013 00:00:00 CDT

April 26, 2013: Torts - Employee's negligence claims against hospital, premised on alleged OSHA violations, were not health care liability claims requiring expert report.

Negligence claims premised on alleged Occupational Safety and Health ...

Hornbeck Offshore Services, L.L.C. v. Salazar, (C.A.5 (La.)) -

Fri, 26 Apr 2013 00:00:00 CDT

April 26, 2013: Litigation - The Department of the Interior did not violate an injunction, and thus, there was no civil contempt.

There was no clear and convincing evidence that the actions of the Department of the Interior after the distri...

Garcia v. Clinton, (S.D.Tex.) -

Fri, 26 Apr 2013 00:00:00 CDT

April 26, 2013: Immigration - Passport applicant was not United States citizen ineligible to receive United States passport.

An applicant for a passport was not entitled to a declaration that he was a citizen of the United States, eligible ...

RBIII, L.P. v. City of San Antonio, (C.A.5 (Tex.)) -

Fri, 26 Apr 2013 00:00:00 CDT

April 26, 2013: Civil Rights - District court abused its discretion when instructing jury on property owner's procedural due process challenge.

The district court abused its discretion when instructing the jury on a property owner's procedu...