Grades, item by item

[B] is the insurer of [D] and intervened to assert subrogation claims for indemnification against [C] after [D] nonsuited its claims. The accident occurred in January 2015, and the workers settled with [A] and [D] in May 2019. [B] intervened in December 2021, nearly seven years after the accident but less than three years after the settlement. The court of appeals held that [B]'s claim was time-barred because it was filed more than four years after the accident. The Texas Supreme Court granted review.

**Disposition**
Reverse and remand (Confidence: 95%).

**Issue**
Whether an insurer's subrogation claim for indemnification accrues on the date of the underlying injury/accident or on the date the indemnitee’s liability is fixed and certain by settlement or final judgment.

**Standard of Review**
The determination of when a cause of action accrues for statute of limitations purposes is a question of law reviewed de novo. Summary judgments based on affirmative defenses such as limitations are reviewed de novo.

**Controlling Authority**
*None of the candidate opinions listed in the prompt control this accrual question.* Under well-established Texas law:
- *Ingersoll-Rand Co. v. Valero Energy Corp.*, 997 S.W.2d 203, 208 (Tex. 1999) (holding that a cause of action for contractual indemnity accrues when all liabilities and claims against the indemnitee are fixed and certain, typically when a settlement agreement is executed or a final judgment is rendered).
- *Sun Exploration & Production Co. v. Benton*, 728 S.W.2d 35, 37 (Tex. 1987) (holding that a cause of action on an indemnity agreement does not accrue until the indemnitee incurs liability or suffers actual loss).
- Tex. Civ. Prac. & Rem. Code Ann. § 16.004 / § 16.051 (four-year statute of limitations for contract/indemnity actions).

**Application**
Under Texas law, an indemnity claim does not accrue at the time of the underlying injury or accident because damages and liability have not yet been established. Rather, the cause of action for indemnity accrues only when the indemnitee’s liability becomes fixed and certain through settlement or final adjudication. 

Here, liability was established and fixed when the workers settled with [A] and [D] in May 2019. The four-year limitations period for [B]’s indemnity claim began running in May 2019. Because [B] intervened in December 2021—less than three years after the settlement—the intervention was timely filed within the four-year limitations period. The court of appeals erred in running limitations from the January 2015 accident date.

**Procedure**
Petition for review in the Texas Supreme Court pursuant to Tex. R. App. P. 53 from a court of appeals judgment affirming summary judgment on limitations grounds.

In a probate proceeding, [A] filed an application for letters of administration of [C]'s estate, claiming [C] died intestate and [A] was the sole heir. [B] filed an application to probate a 2009 will. The trial court heard both applications together. Before the court ruled, [A] filed a contest to probate of the will, alleging lack of execution, lack of testamentary capacity, and undue influence. The trial court then signed an order admitting the will to probate, denying [A]'s application, and overruling all objections to probate 'asserted through September 4, 2019' – the day before [A] filed his contest. The order did not mention [A]'s September 5 contest. [A] later requested a trial setting on the contest. [B] argued the contest was moot because the 2019 order was final. The trial court dismissed the contest in 2022. [A] appealed. The court of appeals dismissed the appeal for lack of jurisdiction, holding the 2019 order was final and [A] did not timely appeal. The Texas Supreme Court granted review.

**Disposition**
Reverse and remand. The court of appeals erred in dismissing the appeal for lack of jurisdiction; the September 16, 2019 order was interlocutory as to the will contest, making the 2022 dismissal order the final appealable judgment disposing of that discrete phase. Confidence: 95%.

**Issue**
Whether a probate court order admitting a will to probate—which expressly overruled only objections filed through a date prior to the contestant’s pending will contest and left that contest unadjudicated—is a final, appealable order that disposed of the will contest.

**Standard of Review**
Appellate jurisdiction and the finality of a probate court order are questions of law reviewed *de novo*. 

**Controlling Authority**
* *Crowson v. Wakeham*, 897 S.W.2d 779, 783 (Tex. 1995) (holding that a probate order is final and appealable only if it disposes of all parties and all issues in the discrete phase of the proceeding for which it was brought).
* *De Ayala v. Mackie*, 193 S.W.3d 575, 578–79 (Tex. 2006) (reaffirming the *Crowson* test: an order is interlocutory if it does not end a discrete phase of the probate proceeding and leaves related claims pending).
* *Lehmann v. Har-Con Corp.*, 39 S.W.3d 191, 195, 205 (Tex. 2001) (an order issued without a conventional trial on the merits is not final unless it actually disposes of all pending claims and parties or contains clear, unequivocal finality language).

**Application**
Under the *Crowson* framework, probate proceedings allow for interlocutory appeals from orders that conclude a discrete phase of administration. However, to be final and appealable, the order must dispose of all parties and issues involved in that particular phase. 

The phase of the proceeding before the court involved the validity of the 2009 will and the right to administration. Before the trial court ruled on the competing applications, [A] timely filed a will contest raising independent claims of lack of execution, lack of testamentary capacity, and undue influence. 

The September 16, 2019 order expressly limited its ruling by overruling only objections asserted "through September 4, 2019"—the day before [A] filed his will contest. Because the order explicitly refrained from addressing [A]'s September 5 contest, it did not resolve all claims and issues within that discrete phase of the probate proceeding, nor did it contain unequivocal finality language under *Lehmann*. Consequently, the 2019 order was an unappealable interlocutory order. The discrete phase concluded only when the trial court dismissed [A]'s will contest in 2022, making [A]'s subsequent notice of appeal timely.

**Procedure**
Petition for review in the Supreme Court of Texas following the court of appeals' dismissal for lack of jurisdiction. The Supreme Court should reverse the judgment of the court of appeals and remand the case to that court for consideration of the merits of the appeal.

In 2019, a tornado damaged the home of [B] and [C]. Their homeowners insurance policy, issued by [A], contained a deductible for 'Windstorm or Hail' but did not define 'windstorm.' The insurer applied the deductible, and the insureds sued. The parties filed cross-motions for summary judgment. The trial court granted summary judgment for the insurer. The court of appeals reversed, in part relying on the fact that various provisions of the Texas Insurance Code and Property Code list 'tornado' and 'windstorm' separately, arguing that this indicates an ordinary meaning of 'windstorm' that excludes a tornado. The Supreme Court of Texas granted review to consider whether the separate listing of these terms in statutes creates ambiguity in the policy language.

**Disposition**  
Reverse the court of appeals' judgment and render judgment reinstating the trial court's summary judgment in favor of the insurer (High confidence).

**Issue**  
Whether the undefined term "windstorm" in a homeowners insurance policy's deductible endorsement is ambiguous—specifically, whether statutory provisions listing "windstorm" and "tornado" separately render reasonable an interpretation of "windstorm" that excludes tornadoes.

**Standard of Review**  
De novo. Summary judgments and the interpretation of unambiguous contract and insurance policy language present questions of law reviewed de novo. *Provident Life & Accident Ins. Co. v. Knott*, 128 S.W.3d 211, 215 (Tex. 2003); Tex. R. Civ. P. 166a(c). When both parties move for summary judgment on cross-motions and the trial court grants one and denies the other, the appellate court reviews all summary judgment evidence, determines all questions presented, and renders the judgment the trial court should have rendered. *Knott*, 128 S.W.3d at 216.

**Controlling Authority**  
- *Privilege Underwriters Reciprocal Exchange v. Mankoff*, __ S.W.3d __ (Tex. 2026) (holding that the common, ordinary meaning of "windstorm" in an insurance policy unambiguously includes a tornado, and that statutory listings of "windstorm" alongside "tornado" do not create ambiguity or narrow the plain meaning).
- *Provident Life & Accident Insurance Co. v. Knott*, 128 S.W.3d 211 (Tex. 2003) (rules of policy construction and de novo cross-motion summary judgment standard).
- *TGS-NOPEC Geophysical Co. v. Combs*, 340 S.W.3d 432 (Tex. 2011) and *City of Rockwall v. Hughes*, 246 S.W.3d 621 (Tex. 2008) (principles of statutory interpretation and ordinary meaning).

**Application**  
Under Texas law, insurance policies are construed according to their plain, ordinary meaning unless the policy provides otherwise. The undefined term "windstorm" plainly denotes a storm characterized by high winds capable of causing damage, of which a tornado is an obvious and well-recognized subset. 

The court of appeals erred in finding ambiguity based on statutory provisions in the Texas Insurance Code and Property Code that list "windstorm" and "tornado" alongside each other. Legislative usage of related terms in distinct regulatory contexts often employs overlapping, belt-and-suspenders phrasing to ensure comprehensive coverage, rather than expressing an intent that "windstorm" affirmatively excludes tornadoes. Because there is no narrowing modifier or exclusionary language in the policy or relevant statutes, the separate listing of the terms does not alter the plain meaning of "windstorm." Consequently, the policy's windstorm deductible unambiguously applies to damage caused by a tornado.

**Procedure**  
Petition for review to the Supreme Court of Texas from a court of appeals judgment reversing cross-motions for summary judgment granted by the district court.

In 2019, a tornado damaged the home of [B] and [C] (collectively, the insureds). Following the tornado, it 'likely' rained for approximately two minutes. The damaged property was covered by a homeowners insurance policy issued by [A] (the insurer). The insureds submitted a claim for damages, but the insurer paid only a portion of the claim, explaining that the tornado qualified as a windstorm and therefore the claim was subject to the policy's $87,156 'Windstorm or Hail Deductible.' The policy does not define 'windstorm.' The insureds sued for breach of contract, alleging that the damage was not caused by a windstorm and that the insurer breached the policy by applying the deductible. The parties filed cross-motions for summary judgment on the interpretation of 'windstorm.' The trial court granted the insurer's motion, denied the insureds' motion, and rendered a take-nothing judgment against the insureds. A divided court of appeals reversed and rendered judgment for the insureds, holding that the term 'windstorm' is ambiguous because it is undefined and subject to more than one reasonable meaning, including one that excludes a tornado. The insurer petitioned the Supreme Court of Texas for review.

**Disposition**  
Reverse the court of appeals' judgment and reinstate the trial court's take-nothing summary judgment in favor of the insurer (high confidence).

**Issue**  
Whether the undefined term "windstorm" in a homeowners insurance policy is ambiguous and whether its ordinary and plain meaning encompasses a tornado so as to trigger the policy's separate "Windstorm or Hail" deductible.

**Standard of review**  
Contract and insurance policy interpretation is a question of law reviewed de novo. When both parties move for summary judgment on the same issue and the trial court grants one and denies the other, the reviewing court considers all summary judgment evidence, determines all questions presented, and renders the judgment the trial court should have rendered under Texas Rule of Civil Procedure 166a(c).

**Controlling authority**  
- *Privilege Underwriters Reciprocal Exchange v. Mankoff*, 708 S.W.3d 706 (Tex. 2024) (holding that the term "windstorm," when undefined in an insurance policy, is unambiguous and its plain and ordinary meaning includes a tornado).
- *National Union Fire Insurance Co. of Pittsburgh, Pa. v. CBI Industries, Inc.*, 907 S.W.2d 517 (Tex. 1995) (insurance policy language is given its plain, ordinary, and generally accepted meaning unless the policy shows words were used in a technical or different sense).
- *URI, Inc. v. Kleberg County*, 543 S.W.3d 755 (Tex. 2018) (contract ambiguity rules and objective interpretation).
- *Valence Operating Co. v. Dorsett*, 164 S.W.3d 656 (Tex. 2005) (cross-motions for summary judgment standard of review).

**Application**  
Under Texas law, the lack of an express definition in an insurance policy does not render a term ambiguous. Courts interpret undefined policy terms according to their plain, ordinary, and commonly understood meaning, informed by standard dictionary definitions and common usage. A tornado is an outburst of violent, rotating wind accompanied by a funnel-shaped cloud; thus, a tornado is fundamentally a severe type of windstorm. Because the ordinary meaning of "windstorm" unambiguously encompasses a tornado, the insurer correctly applied the policy's "Windstorm or Hail" deductible to the insureds' tornado-damage claim. The court of appeals erred in finding the policy ambiguous.

**Procedure**  
Petition for review in the Supreme Court of Texas challenging the intermediate court of appeals' reversal of the trial court's summary judgment on cross-motions under Texas Rule of Civil Procedure 166a(c).

[B] sued [A] in Texas state court. [A] is an [C] company with no registered agent in Texas, so [B] requested substituted service through the Texas Secretary of State at an address in [D]. The Secretary of State sent the citation by certified mail to that address; the mailing was returned bearing the notation "Return to Sender, Vacant, Unable to Forward." Despite having other known addresses for [A]—including one in [C] used in a pre-suit demand letter, an address in [E] on invoices, and a phone number and e-mail on those invoices—[B] took no further steps to notify [A] before seeking a default judgment. The trial court granted default judgment, the court of appeals affirmed, and the Supreme Court of Texas granted review.

Disposition · Reverse and remand.

Issue · Whether the Due Process Clause requires a plaintiff who learns that substituted service by certified mail through the Texas Secretary of State was returned undelivered ("Return to Sender, Vacant, Unable to Forward") to take additional reasonable steps to notify the defendant before obtaining a default judgment when other contact information is known and available.

Standard of review · De novo review for questions of constitutional due process and personal jurisdiction supporting a default judgment.

Controlling authority · *Peralta v. Heights Medical Center, Inc.*, 485 U.S. 80 (1988); *Mullane v. Central Hanover Bank & Trust Co.*, 339 U.S. 306 (1950); *In the Interest of E.R.*, 385 S.W.3d 552 (Tex. 2012).

Application · Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. *Mullane*, 339 U.S. at 314. When a plaintiff knows that an attempt at service by mail has failed because it was returned undelivered, due process requires the plaintiff to take additional reasonable and practicable steps to notify the defendant if such steps are available. A complete failure of constitutionally adequate service deprives a litigant of due process, rendering any resulting default judgment void. *Peralta*, 485 U.S. at 84–86; *In the Interest of E.R.*, 385 S.W.3d at 566.

Here, [B] received affirmative notice that the Secretary of State's certified mailing was returned undelivered as vacant. Rather than taking further steps, [B] moved directly for a default judgment despite having other known physical addresses for [A] (including one used in a pre-suit demand letter and another on invoices), as well as a working telephone number and email address. Because [B] knew service had not reached [A] and failed to pursue available, reasonable alternatives to provide actual notice, the attempt at service failed constitutional due process requirements.

Procedure · Petition for review in the Supreme Court of Texas from a judgment of the court of appeals affirming a trial court's default judgment.

[A] sued [B] alleging that the [C] Agreement with [C] violated Chapter 252 of the Texas Local Government Code because it required an expenditure of more than $50,000. [B] filed a plea to the jurisdiction arguing that the contract was a revenue-generating contract and therefore not subject to Chapter 252. The court of appeals agreed, holding that the [C] Agreement is a revenue contract because it did not require the city to purchase any goods or services. The Supreme Court granted review.

**Disposition** · Affirm. (High confidence)

**Issue** · Whether Chapter 252 of the Texas Local Government Code applies to a municipal contract that generates revenue rather than requiring an expenditure of more than $50,000 from municipal funds.

**Standard of review** · De novo. Statutory construction and rulings on a plea to the jurisdiction challenging governmental immunity and statutory compliance are questions of law reviewed de novo.

**Controlling authority** · Tex. Loc. Gov't Code § 252.021(a); *Coker v. Coker*, 650 S.W.2d 391 (Tex. 1983) (unambiguous contract terms interpreted as a matter of law); *City of Houston v. 4 Families of Hobby, LLC*, No. 01-23-00569-CV, 2024 WL 2970597 (Tex. App.—Houston [1st Dist.] June 13, 2024, pet. granted).

**Application** · Section 252.021(a) of the Texas Local Government Code mandates statutory competitive bidding or proposal procedures only before a municipality enters into a contract that "requires an expenditure of more than $50,000 from one or more municipal funds." Courts must enforce the plain, unambiguous language of the statute. An "expenditure" requires the disbursement or spending of municipal funds to purchase goods or services. Concession, lease, or operating agreements structured purely as revenue-generating contracts—under which a third party pays the municipality for commercial rights and the agreement expressly disclaims any obligation of the municipality to disburse or expend public funds exceeding the statutory threshold—are not subject to Chapter 252's competitive procurement mandates. Therefore, the court of appeals correctly held that Chapter 252 applies only to expenditure contracts and not to pure revenue-generating agreements.

**Procedure** · Petition for review before the Supreme Court of Texas (Tex. Gov't Code § 22.001; Tex. R. App. P. 53) arising from an interlocutory appeal of a trial court's order on a plea to the jurisdiction under Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).

Relators [A] and [B] (the Attorney General and his office) promulgated administrative rules requiring local prosecutors to report certain information. A group of counties, county attorneys, and district attorneys sued, alleging that the Attorney General lacked statutory authority to issue the rules. The trial court granted a temporary injunction against enforcement of the rules. The Attorney General appealed. Under Texas law, the state's appeal automatically superseded the injunction, meaning the rules could be enforced pending appeal. However, the court of appeals issued a stay under Texas Rule of Appellate Procedure 29.3, leaving the trial court's injunction in place against the named appellees. The court of appeals did not conduct a preliminary inquiry into the likely merits of the challenge to the rules; it stated that the case presented close questions and that it was reluctant to decide who was likely to succeed on the merits. The Attorney General then petitioned the Supreme Court of Texas for a writ of mandamus, arguing that the court of appeals abused its discretion by issuing the stay without a merits inquiry.

**Disposition** · Grant the petition for writ of mandamus.

**Issue** · Whether a court of appeals abuses its discretion under Texas Rule of Appellate Procedure 29.3 by issuing a temporary stay that effectively reinstates a trial court's temporary injunction against the State without conducting a preliminary inquiry into the likelihood of success on the merits.

**Standard of review** · Abuse of discretion. Mandamus relief is appropriate when the relator demonstrates that the appellate court committed a clear abuse of discretion and that the relator lacks an adequate remedy by appeal.

**Controlling authority** · *In re Abbott*, 645 S.W.3d 276 (Tex. 2022); *In re State*, 628 S.W.3d 288 (Tex. 2021); Tex. R. App. P. 29.3; Tex. Civ. Prac. & Rem. Code § 6.001.

**Application** · When the State or its officers appeal an interlocutory injunction, the appeal automatically supersedes the trial court's order pursuant to Texas Civil Practice and Remedies Code § 6.001 and Texas Rule of Appellate Procedure 29.1(b). While Texas Rule of Appellate Procedure 29.3 empowers a court of appeals to issue temporary orders to preserve the parties' rights during an interlocutory appeal, the court of appeals cannot override the State's automatic statutory supersedeas to impose injunctive relief without first evaluating the likely merits of the parties' underlying legal claims. To "preserve the parties' rights" under Rule 29.3 when enjoining government enforcement, an appellate court must make a preliminary assessment of whether the plaintiffs have demonstrated a probable right to relief and likelihood of success on the merits. Declining to address the merits simply because the questions are "close" or difficult is a failure to apply the correct legal framework and constitutes an abuse of discretion. 

**Procedure** · Petition for writ of mandamus to the Supreme Court of Texas challenging an interlocutory stay order issued by the court of appeals under Texas Rule of Appellate Procedure 29.3. The Supreme Court of Texas will conditionally grant the writ and direct the court of appeals to vacate its temporary stay.

[A] and [B] promulgated rules requiring [D] to submit twelve categories of information, including work product and privileged matters, with non-compliance punishable as official misconduct. [D] challenged the rules as ultra vires and unconstitutional. The trial court granted a temporary injunction after a hearing, finding likelihood of success. [C] appealed, automatically superseding the injunction. [D] moved for temporary relief under Texas Rule of Appellate Procedure 29.3 in the court of appeals. The court of appeals granted the stay, reinstating the injunction, but did not evaluate the likelihood of success on the merits; it only discussed the balance of harms. [C] petitioned this Court for a writ of mandamus, arguing that the court of appeals failed to apply the correct legal standard for a Rule 29.3 stay against [C]'s supersedeas right.

**Disposition**  
Conditionally grant the petition for writ of mandamus and direct the court of appeals to vacate its temporary order issued under Texas Rule of Appellate Procedure 29.3 (or reconsider under the correct standard).

**Issue**  
Whether an appellate court abuses its discretion by granting temporary relief under Texas Rule of Appellate Procedure 29.3—effectively countermanding a governmental entity's automatic supersedeas and reinstating a temporary injunction—without evaluating the movant's likelihood of success on the merits.

**Standard of Review**  
Mandamus relief is available when the relator demonstrates that the appellate court committed a clear abuse of discretion and that the relator lacks an adequate remedy by appeal. An appellate court abuses its discretion if it acts without reference to guiding rules or principles or misapplies the law.

**Controlling Authority**  
- Tex. R. App. P. 29.3 (authorizing appellate courts to make temporary orders necessary to preserve the parties' rights pending interlocutory appeal).  
- *In re Abbott*, 645 S.W.3d 276 (Tex. 2022) (holding that Rule 29.3 temporary orders must preserve the parties' rights and cannot effectively grant or reinstate injunctive relief without addressing the merits/likelihood of success and jurisdictional bars).  
- *In re Texas Education Agency*, 619 S.W.3d 679 (Tex. 2021).  
- Tex. Civ. Prac. & Rem. Code § 6.001 (exempting state entities/officials from supersedeas bond requirements and affording automatic suspension of trial court orders upon notice of appeal).

**Application**  
When the State or a state official appeals an interlocutory temporary injunction, the notice of appeal automatically supersedes the order under Texas Civil Practice and Remedies Code § 6.001 and Texas Rule of Appellate Procedure 29.1. While Texas Rule of Appellate Procedure 29.3 allows the court of appeals to issue temporary orders necessary to "preserve the parties' rights," the rule does not grant unbounded discretion to bypass the statutory supersedeas or grant temporary injunctive relief without applying the traditional requirements for such relief. 

To issue a Rule 29.3 order that has the effect of reinstating an enjoined trial court order against a state entity's supersedeas, the appellate court must evaluate both the balance of harms/irreparable injury and the movant's probable right to recovery (likelihood of success on the merits), including any jurisdictional impediments. Because the court of appeals granted the Rule 29.3 stay and reinstated the injunction based solely on the balance of harms while explicitly failing to evaluate the likelihood of success on the merits, it misapplied Rule 29.3 and clearly abused its discretion.

**Procedure**  
Original proceeding for writ of mandamus in the Supreme Court of Texas challenging the intermediate court of appeals' interlocutory temporary order entered pursuant to Texas Rule of Appellate Procedure 29.3.

[A] and [B] promulgated rules requiring [D] to submit twelve categories of information, including work product and privileged matters, with non-compliance punishable as official misconduct. [D] brought ultra vires and constitutional challenges to the rules. After a full evidentiary hearing, the trial court concluded that [D] were likely to succeed on the merits and issued a temporary injunction. [C] appealed, automatically superseding the injunction. [D] moved for temporary relief under Texas Rule of Appellate Procedure 29.3 in the court of appeals. The court of appeals granted the stay and reinstated the injunction, but its order did not evaluate the likelihood of success on the merits; it only discussed the balance of harms. [C] then petitioned this Court for a writ of mandamus, arguing that the court of appeals failed to sufficiently evaluate the merits before issuing the stay.

**Disposition** · Conditionally grant / Deny mandamus (Deny). Confidence: 85%.

**Issue** · Whether an intermediate court of appeals abuses its discretion by issuing a temporary order under Texas Rule of Appellate Procedure 29.3 preserving the parties' rights pending an interlocutory appeal without conducting an explicit, independent analysis of the likelihood of success on the merits.

**Standard of Review** · Abuse of discretion. Mandamus relief will issue only if the relator establishes that the court of appeals clearly abused its discretion and the relator lacks an adequate remedy by appeal.

**Controlling Authority** · 
- Tex. R. App. P. 29.3 (providing that when an interlocutory appeal is pending, the appellate court "may make such temporary orders as are necessary to preserve the rights of the parties until disposition of the appeal").
- *In re Geomet Recycling LLC*, 578 S.W.3d 82 (Tex. 2019) (addressing the appellate court's authority under Rule 29.3 to issue orders necessary to preserve the status quo and prevent an interlocutory appeal from becoming moot).
- *Bocquet v. Herring*, 972 S.W.2d 19 (Tex. 1998) (standard for clear abuse of discretion).

**Application** · Under Texas Rule of Appellate Procedure 29.3, intermediate courts of appeals possess broad discretion to issue temporary orders necessary to preserve the subject matter of the litigation and the rights of the parties pending an interlocutory appeal. When a trial court has already conducted a full evidentiary hearing and determined that a temporary injunction is warranted, the State’s notice of appeal automatically suspends enforcement of that order by operation of law. 

In considering a motion under Rule 29.3 to reinstate the status quo or protect a party from irreparable harm (such as disclosing privileged materials or facing sanctions for noncompliance before the merits of the appeal can be heard), the appellate court is not required to pre-judge the ultimate merits of the interlocutory appeal itself in its interlocutory stay order. Because Rule 29.3 serves to preserve the parties' positions and prevent the appeal from becoming moot or destructive to privileged rights pending plenary review, the court of appeals did not abuse its discretion by focusing on the balance of harms and immediate injury rather than issuing an advisory pre-determination of the merits.

**Procedure** · Petition for writ of mandamus in the Supreme Court of Texas challenging an intermediate appellate court's temporary order issued pursuant to Tex. R. App. P. 29.3.

Relator [A] filed a petition for writ of mandamus in the Texas Supreme Court. The underlying dispute involves a Federal Employers' Liability Act (FELA) claim brought by [A] against [B]. The trial court referred a portion of the case to the [C] under the primary-jurisdiction doctrine, seeking the agency's preliminary view on certain regulatory issues. [A] seeks mandamus relief challenging that referral. The Texas Supreme Court has not yet ruled on the mandamus petition. Justice Young's concurring opinion, joined by Justice Hawkins, analyzes the evolution of the primary-jurisdiction doctrine in Texas and federal law, tracing it from its original formulation as an exclusive-agency-jurisdiction doctrine through its modern expansion into a prudential advice-seeking mechanism. The concurrence questions whether the modern formulation is efficient or constitutionally sound but expressly notes that the case does not require a final determination of the doctrine's fate.

**MEMORANDUM**

**TO:** Appellate Practice Group  
**FROM:** Appellate Counsel  
**DATE:** May 20, 2024  
**SUBJECT:** Mandamus Analysis: Review of Trial Court Referral Under the Primary-Jurisdiction Doctrine in FELA Litigation  

---

### 1. Dispositive Issue
Whether the trial court clearly abused its discretion by staying judicial proceedings and referring regulatory issues to an administrative agency under the prudential primary-jurisdiction doctrine in an action brought under the Federal Employers’ Liability Act (FELA), where the statutory claim falls squarely within judicial competence and agency resolution is not a prerequisite to adjudicating common-law or statutory negligence.

---

### 2. Controlling Legal Standard

#### A. Mandamus Standard
Mandamus is an extraordinary remedy available only when the relator demonstrates that:
1. The trial court committed a clear abuse of discretion; and
2. The relator lacks an adequate remedy by appeal.  
*(See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding).)*

An order improperly abating a case or referring it to an administrative agency under the primary-jurisdiction doctrine is reviewable by mandamus because an improper referral creates an indefinite, unauthorized delay for which ordinary appeal after final judgment provides no adequate remedy. *(See In re Southwestern Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) (orig. proceeding); In re Entergy Corp., 142 S.W.3d 314, 320–21 (Tex. 2004) (orig. proceeding).)*

#### B. Primary-Jurisdiction Doctrine
The primary-jurisdiction doctrine is a prudential doctrine under which a court may refer issues to an administrative agency if:
1. The agency has jurisdiction over the matters at issue; and
2. Great benefit would be derived from the agency’s expertise or uniform interpretation of complex regulatory frameworks.  
*(See Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002); In re Texas Mut. Ins. Co., 157 S.W.3d 424, 428 (Tex. 2004) (orig. proceeding).)*

However, primary jurisdiction does not apply when the issue involves standard tort liability, statutory claims designed for judicial resolution (such as FELA, 45 U.S.C. §§ 51 *et seq.*), or purely legal questions that do not require specialized administrative fact-finding within an agency's exclusive or primary regulatory mandate.

---

### 3. Application to Facts
- **FELA and Judicial Competence:** FELA explicitly commits liability and negligence adjudications to courts of law, guaranteeing injured railroad workers a judicial forum and trial by jury. 
- **Inappropriateness of Referral:** The underlying regulatory issues do not displace judicial authority to determine liability or negligence under FELA. The trial court's referral of questions to an administrative agency under the "prudential advice-seeking" expansion of the primary-jurisdiction doctrine constitutes an unauthorized abdication/delay of the trial court’s constitutional duty to adjudicate the pending claim.
- **Concurring Rationale:** While Justice Young’s concurrence calls into question the broader historical and constitutional validity of using primary jurisdiction as a freestanding "advice-seeking" mechanism without an explicit statutory/exclusive jurisdiction basis, the Court resolves the matter on existing principles: the trial court lacked authority to stay the proceedings and refer the matter because the statutory FELA claim remains within the conventional competence of courts, making the referral an abuse of discretion.

---

### 4. Correct Procedural Vehicle and Posture
- **Procedural Vehicle:** Petition for Writ of Mandamus (Tex. R. App. P. 52) filed originally in the Supreme Court of Texas.
- **Posture:** Original appellate proceeding challenging an interlocutory order of referral/abatement under the primary-jurisdiction doctrine.

---

### 5. Disposition Prediction
- **Supreme Court Disposition:** **Conditionally Grant the Petition for Writ of Mandamus.**
- **Underlying Procedural Effect:** The Supreme Court directs the trial court to **vacate** its order referring the issue to the administrative agency and staying the litigation, and to proceed with the adjudication of the FELA action on the merits. The writ will issue only if the trial court fails to comply.

Dr. [B] filed a qui tam action under the Texas Health Care Program Fraud Prevention Act against Dr. [A], alleging that [A] sought reimbursement from the Texas Medicaid program for unnecessary dental treatment. While the suit was pending, [B] died. The trial court permitted [C], the executor of [B]'s estate, to substitute as the relator. [A] moved for summary judgment, arguing that relator status does not survive death and cannot be transferred by inheritance. The [D] filed a Statement of Interest asserting its rights to the claim. The trial court denied summary judgment. The court of appeals denied mandamus relief. The Supreme Court of Texas granted review.

**MEMORANDUM**

**TO:** Litigation Practice Group  
**FROM:** Appellate Counsel  
**DATE:** May 19, 2024  
**RE:** Qui Tam Action Survival Upon Relator’s Death Under the Texas Medicaid Fraud Prevention Act (*In re Malouf*)

---

### 1. Dispositive Issue
Whether a private relator’s status and statutory cause of action under the Texas Medicaid Fraud Prevention Act (TMFPA, Tex. Hum. Res. Code ch. 36) survive the relator’s death to permit substitution by the estate’s personal representative under Texas Rule of Civil Procedure 151, and what procedural mechanism governs the State’s continuation of the suit.

---

### 2. Controlling Legal Standard
* **Texas Medicaid Fraud Prevention Act (TMFPA):** Tex. Hum. Res. Code §§ 36.101–.118.
  * Section 36.101 permits a private person to bring a civil action for a violation of the Act “for the person and for the state” in the name of the State of Texas.
  * The State of Texas remains the real party in interest at all times. *See* Tex. Hum. Res. Code § 36.102.
* **Survival of Qui Tam Claims:** 
  * Under Texas common law and the statutory framework of qui tam litigation, a relator possesses a limited, personal statutory authorization to act as a private attorney general on behalf of the sovereign. Because the relator’s right is purely statutory, personal, and unvested prior to final judgment, the relator’s *status* as a qui tam representative does not survive death and cannot pass to an estate or personal representative by inheritance or under Texas Rule of Civil Procedure 151.
* **The Sovereign’s Cause of Action:**
  * While the private relator’s representative capacity abates upon death, the underlying substantive claim belongs to the State of Texas. Consequently, the death of a relator does not extinguish the State’s fraud claims.
  * If the relator dies, the State may intervene, substitute itself, or proceed in its own name to prosecute the action under Tex. Hum. Res. Code § 36.102 and § 36.104.
* **Authority:** *See In re Malouf*, 663 S.W.3d 609 (Tex. 2022) (holding that relator status under the TMFPA is personal and does not survive the relator’s death; an executor cannot substitute as relator under Rule 151, but the State may continue prosecuting the action).

---

### 3. Application to Facts
1. **Substitution of Executor [C]:** 
   Dr. [B]’s authority to prosecute the Medicaid fraud action against Dr. [A] was an unvested, personal statutory privilege to litigate on the sovereign’s behalf. Upon Dr. [B]’s death, that representative standing terminated. It did not constitute a property right or inheritable asset that could pass to the estate. Thus, the trial court erred in permitting [C], the estate's executor, to substitute as relator under Tex. R. Civ. P. 151.

2. **The State [D]’s Claims:** 
   Because the State is the real party in interest for Medicaid reimbursement fraud, Dr. [B]’s death does not abate the lawsuit as to the State. The State’s filed Statement of Interest / formal notice of intervention allows the State to take over primary responsibility for litigating the claims directly in its own name.

---

### 4. Correct Procedural Vehicle / Posture
* **Vehicle:** Petition for Writ of Mandamus (or interlocutory review where available). Mandamus is appropriate when a trial court erroneously permits an improper party to maintain a qui tam action on behalf of the State, as ordinary appeal after final judgment cannot remedy the unauthorized exercise of sovereign prosecutorial authority.
* **Trial Court Course of Action:**
  1. Grant [A]’s motion to dismiss/strike the substitution of [C] as relator.
  2. Permit the State [D] to substitute or intervene as the sole plaintiff to prosecute the TMFPA claims directly.

---

### 5. Predicted Disposition
**Conditionally Grant Mandamus Relief / Reverse and Remand (or Render in part):**
The Supreme Court of Texas will hold that:
1. The trial court abused its discretion in allowing the executor [C] to substitute as qui tam relator following Dr. [B]’s death; and
2. Dr. [B]’s death does not require dismissal of the entire lawsuit; the State [D] must be permitted to proceed with the action in its own name.

[C] filed a qui tam action under the Texas Health Care Program Fraud Prevention Act in August 2021, alleging that [A] and a group of dental practices operating as [B] (collectively '[B] [B]') performed unnecessary dental treatments on patients and billed the Texas Medicaid program for those procedures. Dr. [C] claimed he discovered the alleged fraud scheme in February 2019 after being promoted to Chief Dental Officer. Before the trial court could rule on [B] [B] plea to the jurisdiction and motion for summary judgment, Dr. [C] died. The trial court granted a motion to substitute his widow, [D] [C], as representative of his estate. [B] [B] then filed a traditional motion for summary judgment arguing that the claims extinguished upon Dr. [C] death. The trial court denied [B] [B] plea to the jurisdiction, alternative motion to abate, and motion for summary judgment. [B] [B] sought mandamus relief from the court of appeals, which was denied, and then petitioned the Texas Supreme Court.

**MEMORANDUM**

**TO:** Litigation Practice Group  
**FROM:** Texas Appellate Counsel  
**RE:** Mandamus Analysis: Survival of Qui Tam Claims Under the Texas Health Care Program Fraud Prevention Act Following Relator’s Death  

---

### 1. Dispositive Issue
Whether the trial court clearly abused its discretion by denying defendants’ motion for summary judgment, which sought dismissal of a qui tam action under the Texas Health Care Program Fraud Prevention Act (THCPFPA) on the assertion that a relator’s qui tam claims extinguish upon the relator's death.

---

### 2. Controlling Legal Standards

#### A. Standard for Mandamus Relief
To obtain mandamus relief from the Texas Supreme Court, a relator must establish that:
1. The trial court committed a clear abuse of discretion or violated a duty imposed by law; and
2. The relator lacks an adequate remedy by appeal.  
*See In re Prudential Ins. Co. of Am.*, 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).

As a general rule, Texas appellate courts will not issue mandamus to review the denial of a motion for summary judgment because the ruling is interlocutory and the trial court has discretion to proceed to trial, providing an adequate remedy by direct appeal. *See In re McAllen Med. Ctr., Inc.*, 275 S.W.3d 458, 465 (Tex. 2008) (orig. proceeding); *Cincinnati Life Ins. Co. v. Cates*, 927 S.W.2d 623, 625 (Tex. 1996).

#### B. Qui Tam Actions Under the THCPFPA & Survival of Claims
* **Real Party in Interest:** Under the THCPFPA (Tex. Hum. Res. Code §§ 36.001–.132), a private individual (relator) brings a qui tam action "for the person and for the State of Texas," and the action is brought in the name of the State. Tex. Hum. Res. Code § 36.101. The State of Texas remains the real party in interest. *Cf. State ex rel. Best v. Harper*, 562 S.W.3d 1, 9–10 (Tex. 2018); *United States ex rel. Eisenstein v. City of New York*, 556 U.S. 928, 934–35 (2009) (analyzing the federal False Claims Act).
* **Survival and Substitution:** Texas Rule of Civil Procedure 151 provides that when a plaintiff dies before entry of judgment, the suit does not automatically abate; rather, the representative of the decedent’s estate may appear and be substituted to prosecute the suit.
* **Remedial Nature of Relator’s Share:** Because the THCPFPA is modeled on the federal False Claims Act (FCA), Texas courts look to federal FCA jurisprudence for guidance. Under established FCA precedent, qui tam actions are remedial rather than purely penal, meaning the relator’s statutory right to a share of the recovery is an assignable/heritable property right that survives the relator’s death. *See, e.g., United States ex rel. Semtner v. Med. Consultants, Inc.*, 170 F.R.D. 490, 495 (W.D. Okla. 1997); *see also United States v. Bornstein*, 423 U.S. 303, 314–15 (1976) (noting the remedial character of statutory fraud recovery).

---

### 3. Application to the Facts

1. **The Claims Belong to the State:** Dr. [C] initiated the THCPFPA action as a relator on behalf of the State of Texas. Because the State is the real party in interest asserting injury for fraudulent Medicaid billings, the underlying cause of action belongs to the sovereign and cannot be extinguished merely by the death of the relator who brought the suit to light.
2. **Survival of the Relator’s Statutory Share:** Dr. [C]’s personal statutory interest (the right to receive a percentage of any recovery under Tex. Hum. Res. Code § 36.110) is a remedial economic interest rather than a purely personal tort claim. Under Texas Rule of Civil Procedure 151, the trial court properly permitted his widow and estate representative, [D] [C], to be substituted in his place.
3. **No Abuse of Discretion:** Because the qui tam claims did not extinguish upon Dr. [C]’s death, the trial court did not err—much less clearly abuse its discretion—in denying [B] [B]’s motion for summary judgment and plea to the jurisdiction on this basis.
4. **Adequate Remedy by Appeal:** Even if there were a legal disagreement regarding survival, [B] [B] cannot establish that ordinary appellate review following final judgment would be inadequate.

---

### 4. Correct Procedural Posture and Vehicle
* **Procedural Vehicle:** Petition for Writ of Mandamus filed in the Supreme Court of Texas pursuant to Tex. Gov't Code § 22.002(a) and Tex. R. App. P. 52, following the court of appeals’ denial of mandamus relief.
* **Posture:** Original proceeding challenging the trial court’s interlocutory order denying defendants’ traditional motion for summary judgment and plea to the jurisdiction.

---

### 5. Predicted Disposition
**Petition for Writ of Mandamus DENIED.**  
The Texas Supreme Court will deny mandamus relief because the trial court acted within its discretion in concluding that THCPFPA qui tam claims and the relator's statutory share survive the relator's death and pass to the estate representative under Tex. R. Civ. P. 151, and because mandamus is unavailable to review the denial of a summary judgment motion in this context.

The decedent, [D], died when his motorcycle collided with a tractor-trailer owned by [B] and operated by [C] after [C] ran a red light. [E] sued [B] and [C] for negligence and later added [A] as a defendant, alleging that [A] was directly liable for negligently hiring [B] as an independent motor carrier. [A] moved to dismiss under Texas Rule of Civil Procedure 91a, arguing that it owed no duty to investigate [B]'s safety record. The trial court denied the motion. The court of appeals summarily denied mandamus. The Texas Supreme Court conditionally granted mandamus, directing dismissal.

**MEMORANDUM**

**TO:** Litigation / Appellate Practice Group  
**FROM:** Appellate Counsel  
**RE:** Negligent Hiring Liability of Shippers for Independent Motor Carriers under Texas Law / TRCP 91a Mandamus Review

---

### 1. Dispositive Issue
Whether, under Texas common law, a shipper owes a legal duty to the motoring public to investigate the safety record or qualifications of an independent motor carrier before hiring it to haul ordinary, non-hazardous cargo, such that a negligent-hiring claim against the shipper has "no basis in law" under Texas Rule of Civil Procedure 91a.

---

### 2. Controlling Legal Standard

#### A. Duty in Negligence
Duty is a threshold question of law determined by the court. *Pagayon v. Exxon Mobil Corp.*, 536 S.W.3d 499, 503 (Tex. 2017); *Greater Houston Transp. Co. v. Phillips*, 801 S.W.2d 523, 525 (Tex. 1990). In the absence of a recognized legal duty, a defendant cannot be held liable for negligence.

#### B. Independent Contractor Rule and Shipper Liability
As a general rule, an employer or hirer is not liable for the physical harm caused by the tortious acts of an independent contractor. *Fifth Club, Inc. v. Ramirez*, 196 S.W.3d 788, 791 (Tex. 2006). A hirer may be liable only under narrow exceptions:
1. **Retained Control:** The hirer exercised contractual or actual control over the operative details of the contractor’s work. *Lee Lewis Constr., Inc. v. Harrison*, 70 S.W.3d 778, 783 (Tex. 2001).
2. **Inherently Dangerous Activity:** The work involves non-delegable duties or inherently dangerous activities.
3. **Negligent Selection/Hiring:** Under Restatement (Second) of Torts § 411 (to the extent recognized in Texas), liability requires that the hirer failed to exercise reasonable care in selecting a competent and careful contractor.

Under Texas law, the transport of ordinary, non-hazardous freight by commercial motor vehicle is not an inherently dangerous activity. Texas courts do not impose a common-law duty on shippers to audit, investigate, or continuously monitor the safety records, regulatory compliance scores, or driving histories of federally registered, independent motor carriers prior to engagement, absent actual knowledge that the carrier is incompetent or reckless.

#### C. Texas Rule of Civil Procedure 91a and Mandamus Relief
* **Rule 91a Standard:** A court must dismiss a cause of action on the pleadings if it has "no basis in law"—meaning the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought (e.g., where no recognized duty exists). Tex. R. Civ. P. 91a.1; *In re Farmers Tex. Cnty. Mut. Ins. Co.*, 621 S.W.3d 261, 266 (Tex. 2021).
* **Mandamus Availability:** Mandamus relief is available when a trial court abuses its discretion by improperly denying a Rule 91a motion based on a question of law. *In re Essex Ins. Co.*, 450 S.W.3d 524, 528 (Tex. 2014).

---

### 3. Application to Facts
1. **No Duty to Investigate:** [A] engaged [B] as an independent motor carrier to haul ordinary freight. Because ordinary commercial transport is not inherently dangerous, [A] owed no independent legal duty to third-party motorists like [D] to investigate [B]’s past safety records, driving history, or safety scores.
2. **No Retained Control or Actual Knowledge:** The pleadings do not establish that [A] retained control over [C]’s driving operations or that [A] had actual knowledge that [B] or [C] were unfit to operate safely at the time of hiring.
3. **Rule 91a Dismissal Required:** Because [E]’s direct-negligence claim against [A] relies on a duty to investigate that Texas law does not recognize, the claim lacks a basis in law under Rule 91a.1.

---

### 4. Correct Procedural Vehicle and Posture
* **Trial Level:** Texas Rule of Civil Procedure 91a Motion to Dismiss for claims having no basis in law.
* **Appellate Level:** Petition for Writ of Mandamus to the intermediate Court of Appeals, and subsequently to the Supreme Court of Texas, challenging the trial court’s order denying the Rule 91a motion.

---

### 5. Predicted Disposition
**Conditionally Grant Writ of Mandamus.**  
The Texas Supreme Court will direct the trial court to vacate its order denying [A]’s Rule 91a motion to dismiss and to enter an order granting the motion and dismissing [E]’s claims against [A].

The decedent, [D], died when his motorcycle collided with a tractor-trailer owned by [B] and operated by [C] after [C] ran a red light. [E] sued [B] and [C] for negligence and later added [A] as a defendant, alleging negligent hiring of [B]. [A] moved to dismiss under Texas Rule of Civil Procedure 91a, arguing that the claims had no basis in law because [A] owed no duty. The trial court denied the motion. The court of appeals summarily denied mandamus. The Texas Supreme Court conditionally granted mandamus, directing dismissal.

**MEMORANDUM**

**TO:** Litigation Practice Group / Client  
**FROM:** Appellate Counsel  
**RE:** Standard of Review and Mandamus Availability for Denial of Rule 91a Motion to Dismiss in *[E] v. [A], et al.*  

---

### 1. Dispositive Issue
Under Texas law:
1. What standard of review applies to a trial court’s ruling on a Texas Rule of Civil Procedure 91a motion to dismiss; and
2. Whether an extraordinary writ of mandamus is an appropriate vehicle to review the trial court's denial of a Rule 91a motion to dismiss.

---

### 2. Controlling Legal Standard

#### A. Standard of Review for Rule 91a Determinations
A trial court's ruling on a motion to dismiss under Texas Rule of Civil Procedure 91a is reviewed **de novo**. *See City of Dallas v. Sanchez*, 494 S.W.3d 722, 724 (Tex. 2016); *In re Farmers Tex. Cnty. Mut. Ins. Co.*, 621 S.W.3d 261, 266 (Tex. 2021). 

Under Rule 91a, a cause of action has "no basis in law" if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. Tex. R. Civ. P. 91a.1. Because the existence of a legal duty is a threshold question of law, appellate courts review legal sufficiency under Rule 91a without deference to the trial court. *See In re Essex Ins. Co.*, 450 S.W.3d 524, 526 (Tex. 2014) (per curiam).

#### B. Availability of Mandamus Relief
Mandamus is an extraordinary remedy available only when the relator demonstrates that:
1. The trial court committed a clear abuse of discretion; and
2. The relator lacks an adequate remedy by appeal.  
*In re Prudential Ins. Co. of Am.*, 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).

* **Abuse of Discretion:** A trial court has no discretion in determining what the law is or in applying the law to the facts. A failure by the trial court to correctly analyze or apply the law constitutes an abuse of discretion. *Walker v. Packer*, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
* **Inadequacy of Appellate Remedy:** The Texas Supreme Court has held that mandamus relief is appropriate to correct the erroneous denial of a Rule 91a motion to dismiss when the underlying claim has no basis in law. *See In re Essex Ins. Co.*, 450 S.W.3d at 528; *In re Farmers Tex. Cnty. Mut. Ins. Co.*, 621 S.W.3d at 266; *In re Houston Specialty Ins. Co.*, 569 S.W.3d 138, 140–42 (Tex. 2019) (orig. proceeding). Mandamus is justified in this context to relieve the parties and the public of the extraordinary cost, time, and burden of litigating claims that should have been dismissed at the pleadings stage.

---

### 3. Application to Facts
* **Duty and Abuse of Discretion:** Plaintiff [E] alleged negligent hiring against Defendant [A] for contracting with motor carrier [B]. Where the facts alleged in the petition fail to establish that [A] owed a viable common-law or statutory duty to [D]/[E], the claim has "no basis in law" under Rule 91a.1. The trial court had no discretion to deny [A]’s motion to dismiss, and doing so constituted a clear legal error.
* **Inadequacy of Appeal:** Because an order denying a Rule 91a motion is interlocutory and generally not subject to an interlocutory appeal absent an applicable statutory exception, [A]’s only avenue for relief prior to final judgment is mandamus. Waiting for a final judgment after full-blown discovery and trial would defeat the specific purpose of Rule 91a, rendering an ordinary appeal inadequate.

---

### 4. Correct Procedural Vehicle / Posture
* **Vehicle:** A **Petition for Writ of Mandamus** under Texas Rule of Appellate Procedure 52.
* **Posture:** Because an order denying a Rule 91a motion is an unappealable interlocutory order, [A] must first petition the intermediate court of appeals for mandamus relief; upon summary denial, [A] appropriately sought relief by filing an original proceeding (petition for writ of mandamus) in the Supreme Court of Texas.

---

### 5. Predicted Disposition
**Conditionally Grant Mandamus.**  
The Texas Supreme Court will conditionally grant the writ of mandamus directing the trial court to vacate its order denying [A]’s Rule 91a motion and enter an order granting the dismissal with prejudice. The writ will issue only if the trial court fails to comply.

Respondent [B] sued Petitioner [A] for a declaratory judgment that S.B. 8 (the Texas Heartbeat Act) is unconstitutional, along with injunctive relief and attorney's fees. The suit was filed 48 days after [A] filed a Rule 202 petition in Jack County to depose [C], [B]'s deputy director, regarding potential violations of S.B. 8. [C] had declared under penalty of perjury that [B] paid for abortions without confirming gestational age or after cardiac activity was detectable. [A] filed a TCPA motion to dismiss, which was denied by operation of law. [A] appealed. The court of appeals affirmed, holding that the TCPA did not apply because the suit was not based on or in response to [A]'s Rule 202 petition and because the suit did not limit any lawful conduct. The Supreme Court of Texas reversed and remanded, holding that the TCPA applies because the suit is based on or in response to the Rule 202 petition, which is an exercise of the right to petition.

**MEMORANDUM**

**TO:** Appellate Practice Group / Client  
**FROM:** Appellate Counsel  
**DATE:** May 20, 2024  
**SUBJECT:** TCPA Applicability (Step One) to Declaratory Judgment Action Filed in Response to Rule 202 Petition

---

### 1. Dispositive Issue
Whether a declaratory judgment and injunctive action challenging the constitutionality of a statute is a "legal action" that is "based on or is in response to" a party's "exercise of the right to petition" under the Texas Citizens Participation Act (TCPA), Tex. Civ. Prac. & Rem. Code § 27.001 *et seq.*, when the suit is filed in response to that party’s pre-suit petition for depositions under Texas Rule of Civil Procedure 202.

---

### 2. Controlling Legal Standard

* **TCPA Three-Step Framework:** Under Tex. Civ. Prac. & Rem. Code § 27.005, resolution of a TCPA motion to dismiss proceeds in up to three steps:
  1. **Step One (Movant's Burden):** The movant must demonstrate by a preponderance of the evidence that the nonmovant's "legal action" is "based on or is in response to: (1) the party's exercise of: (A) the right of free speech; (B) the right to petition; or (C) the right of association; or (2) the act of a party described by Section 27.010(b)." Tex. Civ. Prac. & Rem. Code § 27.005(b).
  2. **Step Two (Nonmovant's Burden):** If the movant satisfies Step One, the burden shifts to the nonmovant to establish by "clear and specific evidence a prima facie case for each essential element of the claim in question." *Id.* § 27.005(c).
  3. **Step Three (Movant's Affirmative Defense):** Even if a prima facie case is established, the court must dismiss if the movant establishes an affirmative defense or other ground entitling dismissal as a matter of law. *Id.* § 27.005(d).

* **"Exercise of the Right to Petition":** The TCPA broadly defines the "exercise of the right to petition" to include "a communication in or pertaining to: (i) a judicial proceeding; [or] (ii) an official proceeding, other than a judicial proceeding, to administer the law." Tex. Civ. Prac. & Rem. Code § 27.001(4)(A)(i)–(ii). 
  * Texas courts, including the Supreme Court of Texas, recognize that court filings—including pre-suit discovery filings under Rule 202—are communications in or pertaining to a judicial proceeding. *See, e.g.*, *Youngkin v. Hines*, 546 S.W.3d 675, 680 (Tex. 2018) (holding that statements and filings made in a judicial proceeding fall squarely within the exercise of the right to petition); *In re Wolfe*, 341 S.W.3d 932, 933 (Tex. 2011) (treating Rule 202 proceedings as judicial in nature).

* **"Based on or in Response to":** A legal action is "in response to" protected conduct when the action is triggered by, caused by, or reacts to the protected communication. The plain statutory text requires only a nexus between the lawsuit and the protected petitioning activity.

---

### 3. Application to Facts

1. **[A]'s Rule 202 Petition is Protected Petitioning Activity:**
   [A]'s filing of a Rule 202 petition in Jack County to investigate potential claims under S.B. 8 constitutes a formal filing in a court seeking judicial authorization for pre-suit discovery. Because it is a communication in and pertaining to a judicial proceeding, it is an "exercise of the right to petition" as defined by Tex. Civ. Prac. & Rem. Code § 27.001(4)(A)(i).

2. **[B]'s Lawsuit is a "Legal Action" in Response to [A]'s Petition:**
   [B]'s declaratory judgment and injunctive lawsuit is a "legal action" under § 27.001(6) (which includes a lawsuit, cause of action, petition, or request for declaratory relief). Because [B] filed the lawsuit 48 days after the Rule 202 filing to preemptively enjoin and declare unlawful the potential S.B. 8 enforcement and discovery sought by [A], the action is directly "in response to" [A]'s petitioning activity.

3. **Rejection of Narrowing Exceptions at Step One:**
   The court of appeals erred by importing merits-based or legality considerations into Step One (i.e., ruling that the TCPA did not apply because the suit did not target "lawful" conduct). Step One is purely a nexus inquiry based on the statutory definitions. Whether [A]'s underlying claims under S.B. 8 are valid, or whether [B] can establish a prima facie case for declaratory relief, are matters reserved strictly for Steps Two and Three.

---

### 4. Correct Procedural Vehicle and Posture

* **Trial Court Vehicle:** A Motion to Dismiss pursuant to Tex. Civ. Prac. & Rem. Code § 27.003. When not ruled on within 30 days following the hearing, the motion was properly deemed **denied by operation of law** under § 27.008(a).
* **Appellate Jurisdiction / Vehicle:** An interlocutory appeal as of right from the denial of a TCPA motion to dismiss pursuant to Tex. Civ. Prac. & Rem. Code § 51.014(a)(12).
* **Supreme Court Posture:** Petition for Review pursuant to Tex. Gov't Code § 22.001(a).

---

### 5. Predicted Disposition

**Reverse and Remand.**

The Supreme Court of Texas will reverse the judgment of the court of appeals holding that the TCPA does not apply at Step One, and remand the case to the court of appeals (or trial court) to determine:
1. Whether [B] carried its Step-Two burden to establish by clear and specific evidence a prima facie case for each essential element of its declaratory judgment and fee claims; and
2. If so, whether [A] established any affirmative defense or legal bar to relief as a matter of law under Step Three.

This case arises from a dispute over a subcontract for paratransit and microtransit services. [D] is a regional public transportation authority. In 2018, [D] issued a request for information and awarded a contract to [A] via a master agreement. [A]'s wholly owned subsidiary, [C], then contracted with [B] for vehicles and drivers. [B] later terminated the subcontract and sued [D], [A], and [C] for breach of contract, quantum meruit, tortious interference, fraud, and negligent misrepresentation. [B] alleged that [A] made false representations about past business practices. All defendants moved to dismiss under Texas Rule of Civil Procedure 91a, arguing that governmental immunity barred the claims. [A] also raised a statutory defense under Tex. Transp. Code § 452.056(d), which limits a private contractor's liability to the extent the authority would be liable. The trial court granted the motion in part, dismissing the tort claims, including fraud, against all defendants. [B] appealed the dismissal of its claims against [A]. The court of appeals reversed, holding that the fraud claim had a basis in law and that [A]'s immunity defense was not established as a matter of law. [A] petitioned for review, and the Texas Supreme Court granted the petition. The only issue before the Supreme Court is the fraud claim. The master agreement between [D] and [A] was omitted from the appellate record, but the parties agree on its material terms. The Supreme Court determined that the omission does not impede review.

**MEMORANDUM**

**TO:** Appellate Practice Group  
**FROM:** Appellate Counsel  
**DATE:** March 30, 2025  
**RE:** Subcontractor Dispute / Application of Tex. Transp. Code § 452.056(d) under Texas Rule of Civil Procedure 91a

---

### 1. Dispositive Issue
Whether a private transit operator contracting with a regional transportation authority under Chapter 452 of the Texas Transportation Code is entitled to Rule 91a dismissal of a common-law fraud claim based on statutory derivative immunity under Tex. Transp. Code § 452.056(d), where the authority itself retains sovereign immunity against intentional tort claims under the Texas Tort Claims Act (TTCA).

---

### 2. Controlling Legal Standard

#### A. Texas Rule of Civil Procedure 91a
Under Tex. R. Civ. P. 91a.1, a party may move to dismiss a cause of action on the grounds that it has "no basis in law or fact." 
* A cause of action has *no basis in law* if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought.
* Affirmative defenses, including statutory and governmental immunity defenses, may properly be raised in and support a Rule 91a motion to dismiss if they are conclusively established by the pleadings and any permissible Rule 91a attachments. *See Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C.*, 595 S.W.3d 651, 656 (Tex. 2020).

#### B. Statutory Derivative Immunity Under Tex. Transp. Code § 452.056(d)
Section 452.056(d) provides:
> *"A private operator who contracts with an authority under this chapter is not liable for any act or omission of the operator in the performance of the contract except to the extent that the authority would be liable if the authority performed the act or omission."*

This provision extends the liability limitations and governmental immunity of a regional transportation authority to private operators acting in the performance of contracts authorized under Chapter 452.

#### C. Governmental Immunity and the Texas Tort Claims Act (TTCA)
Regional transportation authorities are political subdivisions/governmental units that enjoy governmental immunity from suit and liability absent an express legislative waiver. Under the TTCA (Tex. Civ. Prac. & Rem. Code Ann. ch. 101):
* Sovereign/governmental immunity is waived only in narrow, specified circumstances (e.g., certain injuries caused by the operation/use of motor-driven vehicles or equipment, or condition/use of tangible personal or real property; Tex. Civ. Prac. & Rem. Code § 101.021).
* The TTCA expressly excludes from its waiver of immunity any claim "arising out of assault, battery, false imprisonment, or any other intentional tort." Tex. Civ. Prac. & Rem. Code § 101.057(2).
* Consequently, a transportation authority retains complete immunity from suit and liability for fraud and misrepresentation claims.

---

### 3. Application to Facts

1. **Qualification Under Section 452.056(d):**  
   [D] is a Chapter 452 regional public transportation authority. [D] contracted with [A] as a private operator pursuant to a master agreement to provide transit/microtransit services under the statute. Therefore, [A] is a "private operator who contracts with an authority under this chapter."

2. **Acts in the Performance of the Contract:**  
   The alleged misrepresentations and actions forming the basis of [B]’s fraud claim arise directly from the execution and performance of the public transit project awarded by [D] to [A], and the subsequent arrangements made to fulfill those transit operations via subcontracting. Under the statutory scope of Section 452.056(d), acts and omissions undertaken in performance of the master transit contract fall squarely within the statutory shield.

3. **Extent of Authority's Liability:**  
   Under Section 452.056(d), [A] is not liable "except to the extent that the authority [[D]] would be liable if the authority performed the act or omission." 
   * If [D] had engaged in the alleged fraudulent representations, [D] would be immune from liability as a matter of law under Tex. Civ. Prac. & Rem. Code § 101.057(2).
   * Because [D] would not be liable for intentional torts/fraud, [A] cannot be held liable for fraud under the plain language of Section 452.056(d).

4. **Basis in Law Under Rule 91a:**  
   Because the statutory defense applies conclusively on the face of the pleadings (establishing [D]'s governmental status, the Chapter 452 contract, and the intentional tort nature of the fraud claim), [B]’s fraud cause of action against [A] has no basis in law.

---

### 4. Correct Procedural Vehicle & Posture

* **Vehicle:** Texas Rule of Civil Procedure 91a is a proper vehicle to assert statutory derivative immunity where the defense is conclusively demonstrated by the live pleadings. *Bethel*, 595 S.W.3d at 656.
* **Posture on Review:** The Texas Supreme Court reviews a Rule 91a dismissal *de novo*, taking the factual allegations in the petition as true. The omission of the master agreement from the record does not impede review because the material terms are undisputed and the statutory framework governs based on the plaintiff’s own pled theory of the case.

---

### 5. Predicted Disposition

**Reverse and Render (or Reverse and Reinstate).**  
The Texas Supreme Court should **reverse** the judgment of the court of appeals and **reinstate** the trial court’s order dismissing [B]’s fraud claim against [A] pursuant to Texas Rule of Civil Procedure 91a.

In 1974, voters in [D] approved the formation of [F] (later renamed [A]) to serve disabled persons, authorizing an ad valorem tax up to 5 cents per $100 valuation. [A] now primarily serves non-disabled students. In 2023, [A]'s board levied the tax. [C] (individual taxpayers in [D]) and [B] (a school district in [D]) sued [A], seeking declarations that the tax is unlawful under Texas Constitution Article I, §16 and Article VII, §3(e), and an injunction barring collection. [A] filed a plea to the jurisdiction, arguing lack of standing and governmental immunity. The trial court denied the plea. [A] appealed. The court of appeals reversed and rendered, dismissing all claims for lack of standing: it held that [C] lacked taxpayer standing because the suit would disrupt government operations under Bland, and that [B] failed to allege a concrete injury. The court did not address [A]'s alternative arguments of political question or immunity. [C] and [B] petitioned for review, which the Supreme [E] granted.

**MEMORANDUM**

**TO:** Appellate Practice Group  
**FROM:** Appellate Counsel  
**DATE:** May 19, 2024  
**SUBJECT:** Procedure on Remand Regarding Unaddressed Alternative Jurisdictional Arguments

---

### 1. Dispositive Issue
Whether, following the Supreme Court of Texas’s reversal of the court of appeals’ standing dismissal, the court of appeals must consider and resolve the alternative, unaddressed jurisdictional grounds (governmental immunity and the non-justiciable political question doctrine) raised by [A] in its interlocutory appeal of the denial of its plea to the jurisdiction.

---

### 2. Controlling Legal Standard
* **Requirement to Address Necessary Issues (Tex. R. App. P. 47.1):**  
  The Texas Rules of Appellate Procedure require the court of appeals to issue a written opinion that is as brief as practicable but addresses every issue raised and necessary to the final disposition of the appeal. *See* Tex. R. App. P. 47.1; *State v. Ninety Thousand Two Hundred Thirty-Five Dollars*, 390 S.W.3d 289, 294 (Tex. 2013).

* **Remand for Unaddressed Independent Bases for Plea to the Jurisdiction:**  
  Subject-matter jurisdiction cannot be waived and must be established for a court to proceed. *Bland Indep. Sch. Dist. v. Blue*, 34 S.W.3d 547, 553–54 (Tex. 2000). When a trial court denies a plea to the jurisdiction based on multiple independent grounds (e.g., standing, governmental immunity, political question) and the intermediate appellate court reverses based on only one ground (e.g., standing) without reaching the alternatives, the Texas Supreme Court—upon reversing the standing determination—ordinarily remands the case to the court of appeals to consider the unaddressed grounds in the first instance. *See* Tex. R. App. P. 53.4, 60.2(d); *see, e.g.*, *City of Houston v. Rhule*, 417 S.W.3d 440, 442–43 (Tex. 2013); *Texas Dep't of Transp. v. City of Sunset Valley*, 146 S.W.3d 637, 646 (Tex. 2004).

---

### 3. Application to Facts
1. **Scope of the Remand:**  
   The trial court denied [A]’s plea to the jurisdiction *in toto*. On interlocutory appeal, [A] asserted multiple independent jurisdictional challenges: (a) lack of standing, (b) governmental immunity, and (c) the political question doctrine.
2. **Intermediate Court's Prior Holding:**  
   The court of appeals erroneously reversed solely on standing under *Bland*, pretermitting consideration of governmental immunity and political-question nonjusticiability.
3. **Mandate on Remand:**  
   Once the Supreme Court determines that [C] (the individual taxpayers) have standing and remands the cause, the court of appeals must address [A]’s remaining, properly briefed interlocutory appeal issues to determine whether the trial court’s order denying the plea to the jurisdiction should be affirmed or reversed on alternative grounds. 
4. **Substantive Consideration Required:**  
   * **Governmental Immunity:** The court of appeals must determine whether [C]’s claims against [A] allege *ultra vires* actions or seek permissible declaratory and injunctive relief from an unconstitutional/unlawful tax levy for which immunity is unavailable or waived.
   * **Political Question / Justiciability:** The court of appeals must evaluate whether the constitutional challenges under Tex. Const. art. I, § 16 and art. VII, § 3(e) present a non-justiciable political question or a justiciable constitutional challenge to the statutory/taxing authority of [A].

---

### 4. Correct Procedural Vehicle and Posture
* **Procedural Vehicle:** Interlocutory appeal from the denial of a governmental unit's plea to the jurisdiction pursuant to Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).
* **Current Posture:** On remand from the Supreme Court of Texas to the court of appeals following a grant of the petition for review and reversal of the court of appeals' prior judgment.

---

### 5. Predicted Disposition
**Remand Instructions / Court of Appeals Disposition:**  
The Supreme Court of Texas will **reverse** the court of appeals’ judgment dismissing the case for lack of standing and **remand** the appeal to the intermediate court of appeals. 

On remand, the court of appeals must consider [A]’s alternative grounds (governmental immunity and political question doctrine). If the court of appeals determines that immunity is inapplicable (e.g., because an unlawful tax levy constitutes an *ultra vires* act or a valid constitutional claim) and the dispute is justiciable, it must **affirm** the trial court’s interlocutory order denying [A]’s plea to the jurisdiction and remand to the trial court for proceedings on the merits. If it finds immunity has not been waived or the suit is non-justiciable, it must **reverse and render** dismissal on those alternative grounds.

[A] sued [B] for personal injuries. At trial, [A] sought to prove medical expenses using affidavits under Tex. Civ. Prac. & Rem. Code § 18.001. [B] served a controverting affidavit that challenged only part of the matters in [A]'s affidavits. The trial court excluded the affidavits entirely and refused to grant a new trial on damages. [A] appealed; the court of appeals affirmed. The Supreme Court granted review and reversed, holding that the uncontroverted portions of the affidavits remain admissible. This dissent argues that the entire affidavit should be inadmissible when any part is controverted.

**MEMORANDUM**

**TO:** Litigation Practice Group  
**FROM:** Appellate Counsel  
**RE:** Evidentiary Burden and Admissibility of § 18.001 Affidavits Following a Partial Controverting Affidavit  

---

### 1. Dispositive Issue
When a defendant serves a counteraffidavit under Texas Civil Practice and Remedies Code § 18.001 that challenges only a portion of the medical expenses itemized in a plaintiff’s § 18.001(b) affidavit, what is the plaintiff’s evidentiary burden at trial to establish the reasonableness and necessity of the uncontroverted expenses?

---

### 2. Controlling Legal Standard
Section 18.001 of the Texas Civil Practice and Remedies Code is an evidentiary mechanism designed to streamline the proof of reasonableness and necessity of medical expenses. 

* **Statutory Framework (§ 18.001(b)):**  
  An affidavit served in compliance with § 18.001(b) is “sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary” unless a controverting affidavit is served. *See* Tex. Civ. Prac. & Rem. Code § 18.001(b); *see also Gunn v. McCoy*, 554 S.W.3d 645, 672 (Tex. 2018); *In re Allstate Indem. Co.*, 622 S.W.3d 870, 876–77 (Tex. 2021).
* **Effect of a Partial Counteraffidavit:**  
  A counteraffidavit under § 18.001(e)–(f) must give reasonable notice of the basis on which the counteraffiant controverts the claim and which specific items/charges are controverted. A counteraffidavit does not invalidate or render wholly inadmissible an initial affidavit simply because it challenges a subset of the medical services or charges. 
* **Evidentiary Burden for Uncontroverted Portions:**  
  For any item or portion of the medical expenses *not* specifically controverted by the counteraffidavit, the § 18.001 affidavit remains unrefuted statutory evidence. The plaintiff **bears no additional burden** to call an expert witness or present live testimony at trial to establish the reasonableness and necessity of the uncontroverted charges; the § 18.001 affidavit itself remains admissible and constitutes legally sufficient prima facie evidence to support a jury finding on those uncontroverted expenses.

---

### 3. Application to Facts
1. **Scope of the Counteraffidavit:** Party [B] filed a controverting affidavit that attacked only select services or charges within [A]’s § 18.001 affidavits. 
2. **Trial Court Error:** The trial court erred in excluding [A]’s affidavits in their entirety. Because [B]’s counteraffidavit did not challenge all items contained within the affidavits, the unchallenged portions remained fully compliant with § 18.001(b).
3. **Plaintiff’s Evidentiary Posture:** For the uncontroverted medical expenses, [A] was entitled to introduce the relevant portions of the § 18.001 affidavits without calling expert witnesses or sponsoring healthcare providers. The exclusion of the affidavits erroneously stripped [A] of the statutory presumption and prima facie proof of reasonableness and necessity, effectively forcing an improper heightened burden of proof on uncontested items.

---

### 4. Correct Procedural Vehicle and Posture
* **Trial Level:** Motion for new trial under Texas Rule of Civil Procedure 320 on the ground of erroneous exclusion of evidence that probably caused the rendition of an improper judgment (Tex. R. App. P. 44.1(a)).
* **Appellate Level:** Direct appeal from a final judgment under Texas Rule of Appellate Procedure 26.1, followed by a Petition for Review to the Supreme Court of Texas pursuant to Texas Government Code § 22.001.

---

### 5. Disposition
**Reverse and Remand.**  
The trial court committed harmful error by excluding the uncontroverted portions of [A]’s § 18.001 affidavits, which prevented [A] from presenting statutory prima facie evidence of damages. The judgment of the court of appeals affirming the trial court is reversed, and the cause is remanded for a new trial on damages.

In 2020, the federal DEA issued an interim final rule clarifying that hemp-derived extracts with less than 0.3% delta-9 THC are decontrolled. The commissioner of [A] objected to that rule under [A] & Safety Code § 481.034(g), which allows the commissioner to reject federal scheduling changes. The commissioner published her reasons, held a public hearing, and issued a final decision declining to adopt the DEA's modifications. She then updated the Texas Schedule I definitions for THC and marihuana extract to reflect her objection, effectively classifying manufactured delta-8 THC (a synthetic isomer produced from hemp CBD) as a controlled substance. The vendors, who sell delta-8 products, sued [B] for ultra vires acts, arguing that the commissioner lacked discretion to use the § 481.034(g) objection procedure because the DEA rule was not a 'scheduling event,' and even if it was, the commissioner should have followed the more onerous procedures in §§ 481.034–.035 for unilateral modifications. The trial court denied the plea to the jurisdiction and granted a temporary injunction, which the court of appeals affirmed.

**MEMORANDUM**

**TO:** Appellate Practice Group  
**FROM:** Appellate Counsel  
**DATE:** March 30, 2026  
**RE:** Interlocutory Review of Plea to Jurisdiction / Temporary Injunction; Ultra Vires Challenge to Texas Controlled Substances Act Schedule Modifications  

---

### 1. Dispositive Issue
Whether the Commissioner of the Department of State Health Services acted *ultra vires* (i.e., without statutory authority) when she utilized Texas Health and Safety Code § 481.034(g) to object to the DEA's 2020 interim final rule and retain delta-8 tetrahydrocannabinol (THC) on the Texas Schedule of Controlled Substances, rather than initiating a formal, unilateral schedule modification under Texas Health and Safety Code §§ 481.034(a)–(d) and 481.035.

---

### 2. Controlling Legal Standard

#### A. Ultra Vires Doctrine & Sovereign Immunity
* **Sovereign Immunity & Ultra Vires Claims:** Sovereign immunity bars suits against state agencies and their officers unless the legislature has waived immunity or the plaintiff properly pleads and proves an *ultra vires* act. An *ultra vires* claim requires the plaintiff to allege that the official acted without legal authority or failed to perform a purely ministerial act. *City of El Paso v. Heinrich*, 284 S.W.3d 366, 372 (Tex. 2009).
* **Statutory Construction:** Whether an agency official has statutory authority to act is a question of statutory interpretation. Courts construe statutes to ascertain and give effect to the Legislature's intent, adhering to the plain meaning of the text unless a different meaning is supplied or that meaning leads to absurd results. *Texas Dep’t of Transp. v. City of Sunset Valley*, 146 S.W.3d 637, 642 (Tex. 2004).

#### B. Texas Controlled Substances Act (Texas Health & Safety Code Ch. 481)
* **Texas Health & Safety Code § 481.034(g):** If a substance is designated, rescheduled, or deleted as a controlled substance under federal law, the Commissioner *must* similarly treat the substance under Texas law after 30 days, **unless** within that 30-day period the Commissioner objects to the inclusion, rescheduling, or deletion. If the Commissioner objects, she must publish the reasons for the objection, afford interested parties an opportunity to be heard, and publish a final decision. Following this objection process, the Commissioner controls the substance as published until the Legislature acts.
* **Texas Health & Safety Code §§ 481.034(a)–(d), 481.035:** Set forth the distinct, affirmative procedural and substantive requirements (e.g., considering scientific factors, potential for abuse, and formal APA rulemaking) that apply when the Commissioner *unilaterally initiates* an addition, deletion, or rescheduling on the State’s own motion.

---

### 3. Application to Facts

1. **Existence of a Federal Scheduling Trigger:** The DEA’s 2020 Interim Final Rule was promulgated under the federal Controlled Substances Act following the federal 2018 Farm Bill. It modified the federal schedules and definitions regarding hemp-derived extracts and tetrahydrocannabinols. This constituted an official federal designation, rescheduling, or deletion triggering § 481.034(g).
2. **Proper Invocation of § 481.034(g):** Because the DEA modified the federal schedule, the Commissioner was confronted with an automatic 30-day statutory default under Texas law. To prevent the automatic adoption of the federal de-scheduling into Texas law, the Commissioner timely exercised the specific statutory mechanism provided by the Legislature in § 481.034(g):
   * Publishing notice and reasons for the objection;
   * Providing an opportunity for a public hearing; and
   * Issuing and publishing a final administrative decision declining to adopt the federal deregulation.
3. **No Ultra Vires Action:** The Legislature created § 481.034(g) precisely to give the Commissioner an expedited mechanism to prevent federal de-scheduling from automatically binding Texas. The Commissioner did not unilaterally reclassify an uncontrolled substance from scratch (which would have required §§ 481.034(a)–(d) / .035 proceedings); she maintained the pre-existing Texas controlled status by objecting to a federal change. Because she acted strictly within the procedural bounds authorized by § 481.034(g), she did not act without legal authority. Consequently, the plaintiffs failed to plead a viable *ultra vires* claim to overcome sovereign immunity.

---

### 4. Correct Procedural Vehicle and Posture
* **Vehicle:** Interlocutory appeal under Texas Civil Practice and Remedies Code § 51.014(a)(8) (appeal from an interlocutory order granting or denying a plea to the jurisdiction by a governmental unit) and § 51.014(a)(4) (grant of a temporary injunction).
* **Posture:** The State properly asserted a plea to the jurisdiction asserting sovereign immunity on the ground that the Commissioner’s actions were authorized by statute and therefore not *ultra vires*.

---

### 5. Predicted Disposition

**Reverse and Dismiss for Lack of Jurisdiction.**

Because the Commissioner acted within her explicit statutory authority under Texas Health and Safety Code § 481.034(g), she did not commit an *ultra vires* act. Sovereign immunity is not waived. The appellate court / Supreme Court of Texas must reverse the court of appeals' judgment, vacate the temporary injunction, grant the Commissioner’s plea to the jurisdiction, and dismiss the plaintiffs' claims for lack of subject-matter jurisdiction.

The same helicopter crash as above. The plaintiffs' theory was that the flight manual was defective because it omitted a warning about flying with a loose cowling. The manual had never contained such a warning. The plaintiffs argued that because [A] revised the manual in other respects within 18 years of the crash, those revisions constituted a new 'part' that restarted the GARA repose period. The Texas Supreme Court rejected this argument, holding that an ongoing failure to warn is a pure omission that cannot be treated as a new part under the rolling provision.

**MEMORANDUM**

**TO:** Litigation Practice Group / Appellate Team  
**FROM:** Appellate Counsel  
**DATE:** October 24, 2023 (or Current)  
**RE:** Application of GARA Statute of Repose to Omitted Flight Manual Warnings (Rolling Provision Analysis)

---

### 1. Dispositive Issue
Whether the rolling provision of the General Aviation Revitalization Act of 1994 (GARA § 2(a)(2)) restarts the 18-year statute of repose against a general aviation manufacturer on a failure-to-warn claim where the subject flight manual had never contained the allegedly required warning, and subsequent manual revisions did not add, modify, or relate to the omitted warning.

---

### 2. Controlling Legal Standard

* **Statutory Framework:**  
  Under the General Aviation Revitalization Act of 1994 (GARA), Pub. L. No. 103-298, 108 Stat. 1552 (codified at 49 U.S.C. § 40101 note), civil actions for personal injury or wrongful death arising out of general aviation aircraft accidents are barred if brought more than 18 years after the aircraft was delivered to its initial purchaser. GARA § 2(a)(1).

* **The "Rolling" Repose Provision:**  
  GARA § 2(a)(2) restarts the 18-year repose period with respect to any civil action:
  > "...brought against a person in its capacity as a manufacturer of any new component, system, subassembly, or other part which replaced another component, system, subassembly, or other part... or which was added to the aircraft, and which is alleged to have caused such death, injury, or damage..."

* **Application to Flight Manuals and Pure Omissions:**  
  * While courts have recognized that flight manuals and instructions may be treated as a "component, system, subassembly, or other part" of the aircraft under GARA, a manual revision restarts the rolling repose clock *only* as to the specific revised or replaced instruction that caused the accident. *See, e.g.*, *Alter v. Bell Helicopter Textron, Inc.*, 944 F. Supp. 531, 538–41 (S.D. Tex. 1996) (holding that GARA's rolling provision applies only to the parts or specific replacement manual pages that allegedly caused the harm, not to unrelated manual revisions).
  * A continuing failure to warn or pure omission does not constitute a "new component, system, subassembly, or other part" under § 2(a)(2). If a warning was omitted at original delivery, subsequent unrelated manual updates do not reset the 18-year repose period for an ongoing omission. *See Burton v. Twin Commander Aircraft LLC*, 254 P.3d 778, 786–87 (Wash. 2011); *Campbell v. Robinson Helicopter Co.*, 582 F.3d 1008, 1013–15 (9th Cir. 2009); *Mason v. Schweizer Aircraft Corp.*, 653 N.W.2d 543, 550–52 (Iowa 2002).

---

### 3. Application to These Facts

1. **Initial Repose Window Expired:** The helicopter was delivered more than 18 years prior to the crash, making the baseline general repose period under GARA § 2(a)(1) fully operative.
2. **Failure to Satisfy the Rolling Provision (§ 2(a)(2)):**  
   * The plaintiffs alleged that the flight manual was defective due to a complete omission: the absence of a warning regarding flight with a loose cowling. 
   * It is undisputed that the manual had *never* contained this warning from its original issuance. 
   * The subsequent manual revisions issued by manufacturer [A] within the 18-year lookback period did not insert, revise, or alter warnings regarding the cowling. 
   * Because the revision did not replace or add the specific instruction/part alleged to have caused the injury, there is no newly installed or replaced "part" causing the injury under § 2(a)(2). 
3. **No "Continuing Duty" Exception:** Treating general, unrelated manual updates as restarting the repose period for omitted warnings would create an ongoing-failure-to-warn exception, entirely undermining Congress's intent in enacting GARA to establish a definitive cut-off date for manufacturer liability.

Therefore, the Texas Supreme Court correctly concluded that a pure omission in a flight manual that was never altered or introduced in subsequent revisions does not trigger GARA's rolling repose provision.

---

### 4. Correct Procedural Vehicle and Standard of Review

* **Procedural Vehicle:** Motion for Traditional Summary Judgment pursuant to Texas Rule of Civil Procedure 166a(c) (or a Rule 91a motion / plea in bar where the statutory repose defense is established as a matter of law). GARA is a federal statute of repose, which acts as a substantive bar that extinguishes the underlying cause of action.
* **Standard of Review:** *De novo*. The interpretation and statutory application of GARA to undisputed procedural facts is a pure question of law for the appellate court.

---

### 5. Predicted Disposition

**Affirm.**  
The Texas appellate courts (and Texas Supreme Court) will affirm summary judgment in favor of the manufacturer [A], as the plaintiffs' failure-to-warn claims are barred as a matter of law by GARA § 2(a)(1) and cannot be resurrected under the rolling provision of § 2(a)(2).

While shopping in the toy aisle at an HEB grocery store, [B] slipped on a clear liquid puddle and fell. She sued [A] for premises liability. The trial court granted [A]'s motion for summary judgment. The court of appeals reversed, concluding that earlier roof leaks in the store need not be in the area of a puddle to support a finding of constructive knowledge. The Supreme Court of Texas reversed the court of appeals. In doing so, the Court analyzed whether evidence of roof leaks in other parts of the store could establish constructive knowledge of the puddle. The Court held that under City of San Antonio v. Rodriguez, 931 S.W.2d 535 (Tex. 1996), a roof leak must be in the vicinity of the liquid on the floor to support a constructive knowledge finding. The Court further held that the buckets, trash cans, and signs [C] observed elsewhere in the store did not create a fact issue because they were not located in the toy aisle. [B] conceded that no records showed a leak in the vicinity of the toy aisle in the year before her fall.

**MEMORANDUM**

**TO:** Appellate Practice Group  
**FROM:** Senior Appellate Counsel  
**RE:** Premises Liability – Constructive Knowledge Based on Disconnected Roof Leaks  

---

### 1. Dispositive Issue
Whether evidence of historical or contemporaneous roof leaks, collection buckets, and warning signs in unrelated areas of a commercial retail store is legally sufficient to create a genuine issue of material fact as to the premises owner’s constructive knowledge of a clear liquid puddle located in a specific aisle where the plaintiff fell.

---

### 2. Controlling Legal Standard

Under Texas premises liability law, a plaintiff asserting a slip-and-fall claim as an invitee must establish four elements:
1. The property owner had actual or constructive knowledge of a condition on the premises;
2. The condition posed an unreasonable risk of harm;
3. The owner failed to exercise reasonable care to reduce or eliminate the risk; and
4. The owner’s failure proximately caused the plaintiff’s injuries.  
*(See Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983); CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000)).*

#### Constructive Knowledge and the Vicinity Requirement
To establish constructive knowledge, a plaintiff must satisfy the "time-notice rule" by presenting evidence that the dangerous condition existed for a sufficient length of time that the owner, in the exercise of reasonable care, should have discovered and corrected it. *(Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002)).* 

Where a slip-and-fall is allegedly caused by a roof leak, generalized awareness that a roof leaks elsewhere in a large building does not constitute actual or constructive notice of a particular puddle. Instead, the plaintiff must prove that the premises owner knew or should have known that the roof leaked **in the specific vicinity or area** where the plaintiff slipped. *(City of San Antonio v. Rodriguez, 931 S.W.2d 535, 536 (Tex. 1996)).* Evidence of warning signs, trash cans, or buckets positioned in other parts of the premises does not impute constructive notice of a puddle located in a separate, unaffected aisle.

---

### 3. Application to Facts

* **No Evidence of Proximity or Prior Leaks in the Toy Aisle:** [B] conceded that store records contained no evidence of any roof leaks in the vicinity of the toy aisle in the year preceding the incident. Under *City of San Antonio v. Rodriguez*, knowledge of a general roof defect throughout a facility is insufficient; the defect must be situated such that it gave notice of a hazard in the specific area of the fall.
* **Irrelevance of Remote Remedial Measures:** The observation by [C] of buckets, trash cans, and caution signs elsewhere in the store proves only that [A] had notice of leaks in those discrete, separate locations. Because no buckets or warning devices were situated in or near the toy aisle, this evidence fails to establish that [A] knew or should have known of water on the floor in the toy aisle.
* **Failure Under the Time-Notice Rule:** Without proof that a leak was ongoing directly above the toy aisle, or evidence demonstrating how long the clear liquid puddle had been on the floor before [B] fell, [B] cannot establish the temporal prerequisite necessary to impute constructive knowledge under *Reece*.

Consequently, as a matter of law, evidence of leaks in other parts of the store cannot support a finding of constructive knowledge of the puddle in the toy aisle.

---

### 4. Correct Procedural Vehicle and Posture

* **Vehicle at Trial Court:** Traditional or No-Evidence Motion for Summary Judgment under Texas Rules of Civil Procedure 166a(c) and 166a(i) challenging the actual or constructive knowledge element of the premises liability claim.
* **Appellate Posture:** Petition for Review in the Supreme Court of Texas, reviewing the intermediate court of appeals' reversal of the trial court's summary judgment order.

---

### 5. Predicted Disposition

**Reverse and Render.**  
The Supreme Court of Texas will **reverse** the judgment of the court of appeals and **render** judgment reinstating the trial court’s summary judgment in favor of [A].

Same background as item 1. During deliberations, the jury asked: 'Does the charge relate to the whole finger or partial finger?' The court declined to answer. The jury returned a defense verdict. [C] moved for a new trial, arguing that the loss of chance instruction caused confusion and probably resulted in an improper judgment. The district court granted a new trial, listing seven grounds. Ground 4 stated: 'The instruction probably caused the rendition of an improper judgment based on the sole question asked by the jury which requested clarification of what the instruction meant when it referenced "the finger."' [A] and [B] sought mandamus, which the court of appeals denied. The Texas Supreme Court conditionally granted mandamus, holding that the jury's question alone did not justify a new trial and that the record did not show the instruction probably caused an improper judgment.

**MEMORANDUM**

**TO:** Appellate Practice Group  
**FROM:** Appellate Counsel  
**DATE:** March 30, 2025  
**SUBJECT:** Mandamus Review of Order Granting New Trial Based on Jury Deliberation Question / Probable Cause of Improper Judgment

---

### 1. Dispositive Issue
Whether the trial court abused its discretion in granting a new trial based on the rationale that a single jury note inquiring about the court’s jury charge demonstrated jury confusion that "probably caused the rendition of an improper judgment."

---

### 2. Controlling Legal Standard
* **Merits Review of New Trial Orders:** Under Texas law, trial courts do not possess unconstrained discretion to order a new trial. A trial court granting a new trial must state specific, legally valid reasons, and an appellate court may conduct a merits-based mandamus review to ensure the record actually supports those reasons. *In re Toyota Motor Sales, U.S.A., Inc.*, 407 S.W.3d 746, 757–59 (Tex. 2013); *In re Columbia Med. Ctr. of Las Colinas, subsidiary of Columbia/HCA Healthcare Corp.*, 290 S.W.3d 204, 213 (Tex. 2009).
* **Jury Inquiries and Charge Error / Harm Analysis:** Under Texas Rule of Appellate Procedure 44.1(a)(1) and Texas Rule of Civil Procedure 327, jury confusion warranting a new trial must be grounded in actual reversible error that probably caused the rendition of an improper judgment. 
* Texas courts have consistently held that notes from a deliberating jury generally do not establish actual mental processes of jurors, nor does a solitary jury question seeking clarification independently establish that the jury was hopelessly confused or that the charge probably caused an improper verdict. *See, e.g.*, *In re Bent*, 487 S.W.3d 170, 179–81 (Tex. 2016) (holding that jury questions during deliberations do not constitute evidence that a jury was misled or that an improper judgment was rendered).

---

### 3. Application to Facts
1. **The Ground Is Legally and Factually Insufficient:** The district court's stated Ground 4 relied solely on the jury’s note during deliberations ("Does the charge relate to the whole finger or partial finger?") to infer fatal jury confusion resulting in an improper verdict. 
2. **Speculation Regarding Deliberations:** A jury inquiry is simply a request for clarification and cannot be used to probe the subjective thought processes of the jurors or to infer that the jury ultimately misunderstood or misapplied the court's charge.
3. **Absence of Harm / Improper Judgment:** Unless the underlying instruction itself was erroneous and the record demonstrates that it probably caused an improper judgment, the jury's question alone does not satisfy the *Columbia* / *Toyota Motor Sales* requirement that the trial court's stated reasons be supported by the trial record. Because the record does not substantiate that the instruction probably caused an improper verdict, the trial court abused its discretion in setting aside the defense verdict on this ground.

---

### 4. Correct Procedural Vehicle / Posture
* **Vehicle:** Petition for Writ of Mandamus (filed in the Court of Appeals, and upon denial, in the Supreme Court of Texas).
* **Standard:** Mandamus relief is available to challenge an order granting a new trial after a jury verdict where the trial court abuses its discretion by providing reasons that are legally invalid or unsupported by the trial record, and the relator lacks an adequate remedy by appeal. *In re Columbia Med. Ctr.*, 290 S.W.3d at 209–10; *In re Toyota Motor Sales*, 407 S.W.3d at 758.

---

### 5. Predicted Disposition
**Conditionally grant the petition for writ of mandamus** directing the trial court to vacate its order granting a new trial on this ground and to reinstate the jury's verdict.