Texas- Federal Differences

Texas and federal practice differs in several subtle but significant ways. This powerpoint from a 2018 CLE presentation identifies several such areas, as does this 2021 article in the Appellate Advocate.

Attorneys’ fees in declaratory judgment cases.

The Texas declaratory judgment statute can allow the recovery of attorneys fees.  Tex. Civ. Prac. & Rem. Code § 37.009.  The federal statute, 28 U.S.C. § 2201 et seq., does not.  Utica Lloyds v. Mitchell, 138 F.3d 208 (5th Cir. 1998).

Attorneys’ fees on appeal.

“The Texas Supreme Court has held that a Texas court of civil appeals does not have jurisdiction to initiate an award of appellate attorneys’ fees because ‘the award of any attorney fee is a fact issue which must [first] be passed upon the trial court.’” In Texas state courts, requesting appellate fees at the original trial is a placeholder requirement to ensure the state trial courts maintain jurisdiction over the issue. Those are procedural rules that do not apply in federal court. Our local rules provide for appellate litigants to petition this court for. Local Rule 47.8 does not require a party seeking appellate attorneys’ fees to first request appellate attorneys’ fees in the district court as a placeholder.” Atom Instrument Corp. v. Petroleum Analyzer Co., No. 19-20151 (Aug. 7, 2020) (citations omitted).

Evidentiary sufficiency.

The starting point for review of evidentiary sufficiency in the Fifth Circuit is Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc).  The starting point for an analysis of legal sufficiency of the evidence in Texas state court is City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005), which also discusses a review for factual sufficiency.  (The distinction between “legal” and “factual” sufficiency review is unique to Texas procedure, and flows from a limit placed by the Texas Constitution on the jurisdiction of the state supreme court.)

Posttrial review of factual findings.

In Texas, in reviewing the results of a bench trial, an appellate court will often imply findings in support of the judgment under Tex. R. Civ. P. 299:

“When findings of fact are filed by the trial court they shall form the basis of the judgment upon all grounds of recovery and of defense embraced therein. The judgment may not be supported upon appeal by a presumed finding upon any ground of recovery or defense, no element of which has been included in the findings of fact; but when one or more elements thereof have been found by the trial court, omitted unrequested elements, when supported by evidence, will be supplied by presumption in support of the judgment. Refusal of the court to make a finding requested shall be reviewable on appeal.”

Federal practice uses a different approach. See ENI US Operating Co. v. Transocean, No. 18-20115 (March 28, 2019) (“Under [Fed. R. Civ. P.] 52(a), implicit findings will not automatically be inferred to support a conclusory ultimate finding. The district court must lay out enough subsidiary findings to allow us to glean ‘a clear understanding of the analytical process by which [the] ultimate findings were reached and to assure us that the trial court took care in ascertaining the facts.”).

The “Casteel” problem.

In Texas, the problem of appellate review for jury submissions that mix valid and invalid legal theories is addressed by a line of cases named for Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (2000).   The Fifth Circuit does not have such a seminal case, but a good summary of its analytical framework appears in footnote 4 of Wellogix, Inc. v. Accenture, LLP, 716 F.3d 867 (5th Cir. 2013), and McCaig v. Wells Fargo Bank (Texas), N.A., 788 F.3d 463, 476 (5th Cir. 2015) (quoting Muth v. Ford Motor Co., 461 F.3d 557, 564 (5th Cir. 2006)).

The two systems differ on the problem of a broad-form jury verdict where some potential bases are supported by insufficient evidence. Compare Nester v. Textron, Inc., 888 F.3d 151 (5th Cir. 2018): “We will not reverse a verdict simply because the jury might have decided on a ground that was supported by insufficient evidence.” (applying, inter alia, Griffin v. United States, 502 U.S. 46 (1991)), with Benge v. Williams, 548 S.W.3d 466 (Tex. 2018) (“The jury question in the present case, unlike the one in Casteel, did not include multiple theories, some valid and some invalid. It inquired about a single theory: negligence. But we have twice held that when the question allows a finding of liability based on evidence that cannot support recovery, the same presumption-of-harm rule must be applied.”).

Judgment finality.

In Texas practice, “a judgment is final either if ‘it actually disposes of every pending claim and party’ or ‘it clearly and unequivocally states that it finally disposes of all claims and all parties.'” Bella Palma LLC v. Young, 601 S.W.3d 799, 801 (Tex. 2021) (emphasis in original, quoting Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001).

In federal practice, however, “[w]ithout a [Fed. R. Civ. P.] 54(b) order, ‘any order or other decision, however designated, that adjudicates fewer than all the claims or rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties.'” Guideone Ins. Co. v. First United Methodist Church of Hereford, No. 20-10528 (Feb. 22, 2021, unpublished) (emphasis in original, quoting Fed. R. Civ. P. 54).

Personal jurisdiction.

Procedurally, in federal court, “[t]he party seeking jurisdiction bears the burden of proof but must only present a prima facie case.” E.g., Jones v. Artists Rights Enf. Corp., No. 19-30374 (Oct. 22, 2019) (unpublished). In Texas state court: “The plaintiff bears the initial burden of pleading allegations that suffice to permit a court’s exercise of personal jurisdiction over the nonresident defendant. Once the plaintiff has met this burden, the defendant then assumes the burden of negating all potential bases for personal jurisdiction that exist in the plaintiff’s pleadings.” Searcy v. Parex Resources, Inc., 496 S.W.3d 58, 66 (Tex. 2019).

Substantively, an element of the Texas personal-jurisdiction test is that “there must be a substantial connection between those contacts and the operative facts of the litigation”–a test that appears to be more demanding than what the Fifth Circuit uses. See Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569 (Tex. 2007). The U.S. Supreme Court is considering appeals from other states that may resolve this seeming tension.

Presuit discovery.

Texas Rule of Civil Procedure 202 allows a pre-suit deposition upon a proper showing; the Dallas Court of Appeals recently addressed those standards.  The Federal Rules do not have a comparable provision.