Issue issues.

A majority of the Fifth Court recently held in St. John Missionary Baptist Church v. Flakes that “construing [Tex. R. App. P] 38.9(b) to require us to identify and suggest briefing on issues not raised by an appellant would depart from our duty to be neutral and impartial.” No. 05-16-00671-CV (March 29, 2018) (en banc). As a counterpoint to that bright-line rule, in a different context, a later panel noted in American Realty Trust v. Andrews Kurth: “We cannot consider issues raised for the first time in a reply brief. But the distinction between issues and arguments is not always clear.”  No. 05-16-01433-CV  05-16-01433-CV (May 8, 2018) (mem. op.) (citations omitted, quoting authorities saying that “[Appellant] was not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive” and “We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.”)