Sidney Powell may have avoided trouble with the State Bar for her involvement in questionable litigation about the 2020 election, but a Fifth Court panel majority denied Ken Paxton’s immunity-based appeal about a similar sort of disciplinary action, arising from Texas’s effort to intervene in election litigation at the Supreme Court.

A dissent–by the Court’s lone Republican member–had a broader view of the Attorney General’s immunity. No. 05-23-00128-CV, Paxton v. Commission for Lawyer Discipline (April 18, 2024) (mem. op.). A petition for review is a certainty.

The Fifth Court granted mandamus relief based on the attorney-immunity doctrine in In re: Sams:

“Maltezos’s claim is based upon the kind of conduct involved in legal representation. Labeling the conduct as fraudulent or wrongful does not remove it from the scope of Sams’s legal representation. The face of Maltezos’s petition establishes that his claims are barred by the defense of attorney immunity. Accordingly, they have no basis in law and were properly subject to dismissal under Rule 91a. We conclude that the trial court abused its discretion by denying Sams’s motion to dismiss. We conclude further that mandamus relief, rather than appeal, is appropriate in this case to spare the parties and the public the time and money spent on a fatally flawed proceeding.”

No. 05-22-00150-CV (Aug. 15, 2022) (mem. op.)

An 11-1 en banc opinion concluded that ERCOT lacked sovereign immunity against fraud claims by a power producer. The opinion noted, inter alia, that this conclusion was consistent with ERCOT not receiving tax revenue, with the structure of the PUC’s regulations about ERCOT liability, and with the law about derivative immunity for “self-regulated organizations.” The Court also rejected ERCOT’s alternative argument that the plaintiff’s claims fell within the PUC’s exclusive jurisdiction.

A dissent “would conclude that the original panel opinion was not clearly erroneous, the majority’s decision undermines the constitutional-avoidance doctrine, and the PUC has exclusive jurisdiction over Panda’s complaints …”

The Texas Lawbook has further detail. (By way of general background, Erwin Chemerinsky’s 2001 article “Against Sovereign Immunity” remains a classic on that side of the issue.)

Judge Gregg Costa memorably described the McDonnell-Douglas burden-shifting framework as “the ‘kudzu’ of employment law.” Nall v. BNSF Railway Co., 917 F. 3d 335 (5th Cir. 2019) (Costa, J., specially concurring). The painstaking majority and dissenting opinions in Addante v. Univ. of Tex. at Dallas, No. 05-20-00376-CV (Sept. 8, 2021) illustrate the amount of detail work required to evaluate a complex retaliation case and deserve study by anyone who practices in that area in state court.

Brown v. Daniels presents a detailed review of allegations against the Dallas County Sheriff’s office about the operation of the county jail during the COVID-19 pandemic; the Fifth Court ruled for the sheriff in all respects, reversing the denial of her plea to the jurisdiction, and rendering a judgment of dismissal. No. 05-20-00579-CV (May 19, 2021) (mem. op.).

Shylock sought to exact a pound of flesh from a debtor in The Merchant of Venice (right, played by Al Pacino). In Selinger v. City of McKinney, a form of taking called an “exaction” was at issue, when “[Plaintiffs] alleged that the City denied Selinger’s plat because he refused to agree to a contingent $482,000 payment as a condition of plat approval. Those facts amount to an exaction … .” The conditional nature of an exaction leads to unusual questions about ripeness and mootness, as well as governmental-immunity issues, all of which were resolved by the Fifth Court substantially in favor of the Plaintiffs. No. 05-19-00545-CV (July 1, 2020) (mem. op.)

Not without meeting a demanding standard: “Texas uses a functional approach in determining whether a person is entitled to absolute derived judicial immunity. Under this approach, we must ‘determine whether the activities of the person seeking immunity are intimately associated with the judicial process and whether the person exercised discretionary judgment comparable to a judge, as opposed to ministerial or administrative tasks.’ In other words, ‘[i]f an action involves personal deliberation, decision or judgment, it is discretionary; actions requiring obedience to orders or the performance of a duty to which the actor has no choice are ministerial.'” (citations omitted, emphasis added).  In Manning v. Jones, the Fifth Court found a receiver immune from suit for actions taken in connection with a property transactionn that she had been appointed to handle. No. 05-18-01140-CV (Dec. 4, 2019) (mem. op.)