If you enjoyed David Coale & Ben Taylor, Judgment Rendition in Texas, 75 Baylor L. Rev. 354 (2023), then you will enjoy Serafine v. Crump‘s resolution of whether an appeal begins a new “case”:

[T]he question is whether the proceeding “commences” a new civil action or “maintains” the original one. In other words, an appeal to an intermediate appellate court and a petition for review to a supreme court are within the same “litigation” if they are a part of the same “civil action” that is simply “pending” in different courts. A long and unbroken line of our precedent answers this question clearly and unequivocally: an appeal is simply the “continuation of the action in suit brought in the trial court.”

No. 23-0272 (Tex. June 21, 2024).

What is absurdism? In statutory interpretation, it means “really absurd,” as explained by the supreme court in Rodriguez v. Safeco Ins. Co. of Indiana:

We have, however, often said that statutes should be construed to avoid genuinely absurd results. But “the absurdity safety valve is reserved for truly exceptional cases, and mere oddity does not equal absurdity.” Instead, the result must land in the realm of the “unthinkable or unfathomable.”

No. 23-0534 (Tex. Feb. 2, 2024).

Reviewing its earlier precendent about a limitations-tolling statute, the Texas Supreme Court held in Ferrer v. Almanza that:

“Ashley held that “absence from this state” under [Tex. Civ. Prac. & Rem. Code ] Section 16.063 depends not on physical location but, rather, on whether a defendant is subject to personal jurisdiction and service. That holding applies to resident and nonresident defendants with equal force. If a defendant is subject to personal jurisdiction in Texas and amenable to service, he or she is not absent from Texas under Section 16.063, and Section 16.063 does not apply.”

No. 21-0513 (Tex. April 28, 2023). A dissent argued that the majority strayed too far from an appropriate focus on the statutory text.

After reviewing a range of cases about term limits, the Fifth Court applied them to a trust-governance issue in Employees’ Retirement Fund v. City of Dallas, holding:

“The imposition of term limits for elected Fund board members added a substantive qualification for office that rendered a class of potential candidates ineligible and effected a fundamental change to the Trust Document, which must follow the amendment process set out in the Trust Document itself. The City did not follow the amendment process set out in section 40A-35 of the City Code. Rather, in enacting section 8-1.5(a-1), the City attempted to accomplish indirectly what it was prohibited from doing directly. Accordingly, we sustain the Fund’s first and third issues.”

No. 05-20-00494-CV (Oct. 29, 2021) (emphasis added).

An inartfully-drafted part of the expunction statute produced a remarkable 7-6 split of the en banc Fifth Court in Ex Parte Ferris, No. 05-19-00835-CV (Oct. 2, 2020). Charles Ferris pleaded guilty to DWI in 2015. Four years later, a jury found him not guilty in another DWI matter. Ferris sought expunction of the case in which he was acquitted, and ran headlong into a particularly awkward bit of statutory drafting.

If his two DWI cases formed a “criminal episode” as defined by Tex. Penal Code § 3.01, he could not receive expunction. The statute defines “criminal episode” as:

… the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:

(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or

(2) the offenses are the repeated commission of the same or similar offenses

(emphasis added). Part (1) did not apply, so the case turned on part (2).

The majority opinion held that application of part (2) to Ferris’s two DWI cases would create an absurd result: “Such a cabined view of what constitutes a ‘criminal episode’ creates an absurd, nonsensical result wherein a single ‘criminal episode’ would engulf two DWI arrests, which (i) share no common or continuing pattern of facts; (ii) are impossible to prosecute as multiple prosecutions under Chapter 3 of the Texas Penal Code (through joinder); and (iii) could not share a concurrent sentence.”  (Justice Petersen, joined by Justices Myers, Molberg, Osborne, Reichek, Nowell, and Carlyle).

The dissent reasoned that the majority had incorrectly blurred the two parts of the statute together, “when the plain meaning of the unambiguous text of section 3.01(2): ‘criminal episode’ means the repeated commission of the same or similar offense without limitation of time, place, same or related transaction, or conspiracy.” (Justice Evans, joined by Chief Justice Burns and Justices Whitehill, Schenck, Partida-Kipness, and Browning).

ACI, the general contractor on a hotel-construction project, was sued by Ram, the subcontractor who installed the window. Ram won a summary judgment for a violation of Texas’s Prompt Payment Act. ACI asserted a defense under the Construction Trust Fund Act involving “actual expenses directly related to the construction or repair of the improvement … .” The Fifth Court found the relevant statutory language clear and unambiguous, requiring no further use of statutory-interpretation techniques: “[The Trust Fund Act provision] acts as a defense to claims of misapplication of funds the contractor holds in trust for beneficiaries. It does not apply to a claim the contractor failed to promptly pay subcontractors.” Alberelli Constr. v. Ram Indus. Acquisitions LLC, No. 05-18-01529-CV (May 15, 2020).

A Tax Code provision about pollution-control exemptions has two subparts. Part 1 says: “A person seeking an exemption under this section shall provide to the chief appraiser a copy of the letter [issued by the TCEQ’s executive director about eligibility].” Part 2 says: “The chief appraiser shall accept a final determination by the executive director  . . . that the facility . . . is used wholly or partly as pollution control property.”

In Panda Sherman Power LLC v. Grayson Central Appraisal District, all parties agreed that if a person obtained a “positive use determination” from the TCEQ, that would bind the chief appraiser. Panda argued that the statute was silent about a “negative use determination,” and thus, making such a determination conclusive would create a “fallacy of the inverse,” among other statutory-interpretation problems.

The Fifth Court disagreed: “[I]f the taxpayer does not provide the chief appraiser with the letter containing a positive use determination, then the taxpayer has not met the requirement in the first sentence of paragraph [1] for entitlement to the tax exemption. The binding effect of the executive director’s negative use determination does not come from the second sentence of paragraph [1] and the application of the fallacy of the inverse.” No. 05-17-00267-CV (Aug. 7, 2018) (mem. op.)

The explosion of economic growth and suburban sprawl into once-rural Collin County has produced a complex map of cities and their extra-territorial jurisdiction. The subtleties of that map engulfed the Custer Storage Center (right), who became involved in a dispute between the County and the City of McKinney (oddly enough, the county seat) about what construction permits were  required. Held: “The City lacks authority to require a landowner developing property in its ETJ to obtain City building permits, inspections and approvals, and pay related fees. However, the City possesses authority—to the exclusion of the County—to regulate all subdivision plats and related permits for property in the City’s ETJ.” Collin County v. City of McKinney, No. 05-17-00546-CV (May 10, 2018). (Texas pioneer Collin McKinney (left), for whom both the city and county are named, would no doubt have had conflicting loyalties for this dispute.)

In a technical but financially critical decision, Eddington v. Dallas Police & Fire Pension System, the Fifth Court held that adjustments to the future interest rate paid on accounts established under a pension plan, sponsored by the beleaguered Dallas Police & Fire Pension system, did not violate the prohibition on benefit reductions contained in article XVI, section 66 of the Texas Constitution. No. 05-15-00839-CV (Dec. 13, 2016). Of general interest, a component of its analysis reviewed when a federal Fifth Circuit opinion about state law matters will be followed in state court.

Schultz, owner of a chain of movie theaters, did not want to pay Banowsky, a licensed Texas attorney, for helping Schultz find a theater location.  Schultz won summary judgment based on the Texas Real Estate Licensing Act,  primarily because Banowsky admitted that his work did not involve legal services.  The Fifth Court reversed: “[Schultz] argues that Banowsky’s construction of the Act is both unreasonable and favors the individual interest of an attorney over the interest in protecting the public from unlicensed, unscrupulous, or unqualified persons.  But the fact remains that the plain language of the statute exempts attorneys from all requirements of the Act.”  Banowsky v. Schultz, No. 05-14-01624-CV (Feb. 10, 2016) (mem. op.)

The plaintiff, a licensed real estate broker, sued the vice president of a real estate property management company for tortious interference based on the defendant’s involvement in the refusal to provide the plaintiff with a commission for a property he allegedly had the exclusive right to sell.  Because the promise to pay a commission was not in writing, however, the plaintiff was limited by statute to a “cause of action among brokers for interference with business relationships.”  The Court of Appeals found that the defendant was not a licensed real estate broker and that the plaintiff admitted that the defendant did not act as a broker.  Thus, the Court found that the plaintiff’s claim was barred under the Real Estate License Act and affirmed the trial court’s decision.

Murphy v. Williams

Patrick Curry and PJC Equipment Leasing are the owners of an IAI Westwind II jet. They hired Matthew Webb and MKW Aviation to manage the plane, and MKW maintained possession of it in that capacity. A dispute arose over MKW’s charges, and the trial court granted a writ of sequestration requiring MKW to relinquish the airplane and its records to PJC. MKW then filed a lien against the aircraft for unpaid storage, maintenance, and fuel charges totaling over $35,000. The trial court granted MKW’s application for turnover relief, thereby requiring PJC to hand the plane back over to MKW. In an opinion focused on statutory construction, he court of appeals ended up denying PJC’s mandamus petition challenging that decision. Section 70.302 of the Property Code permits the holder of an aircraft storage and maintenance lien to retain and even retake possession of the subject airplane. The court of appeals rejected PJC’s contention that MKW would have to be a “secured party” to retake possession of the aircraft, ruling instead that being the holder of the aircraft lien was sufficient basis under the statute for reclaiming the property subject to the lien. The trial court therefore did not abuse its discretion in ordering the plane to be returned to MKW.

In re Curry, No. 05-13-00734-CV