Grades, item by item

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.

Disposition · The Texas Supreme Court dismissed the petition for writ of mandamus, thereby affirming the trial court’s referral of the regulatory question to agency [C] and leaving the referral in effect.  

Issue · Whether the trial court properly exercised the primary‑jurisdiction doctrine by referring a portion of the FELA claim to agency [C] for a preliminary, advisory view.  

Standard of review · De novo review of a mandamus petition under Tex. R. App. P. 52.8(c).  

Controlling authority · Tex. R. App. P. 52.8(c); Coalson v. City Council of Victoria, 610 S.W.2d 744 (Tex. 1975); Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991).  

Application (short) · The referral was to a question within agency [C]’s jurisdiction, was preliminary and advisory, and was made pursuant to the primary‑jurisdiction doctrine as applied in Coalson and Anderson.  The Supreme Court found no error in the trial court’s action and therefore dismissed the mandamus petition.  

Procedure · The case proceeds under the trial court’s referral; the agency’s preliminary view remains binding on the court, and the underlying FELA claim continues to be litigated in the trial court.

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.

[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.

**Disposition** – AFFIRM the trial court’s denial of [B] [B]’s motion for summary judgment.  

**Issue** – Whether the trial court clearly abused its discretion by denying a motion for summary judgment that argued the qui tam claims extinguished upon the relator’s death.  

**Standard of review** – The appellate court reviews a denial of summary judgment for *clear abuse of discretion*; the trial court must show that no genuine dispute of material fact exists and that the claims are entitled to judgment as a matter of law (Tex. R. Civ. P. 56).  

**Controlling authority** –  
1. Tex. Health & Safety Code § 171A.101 – a qui tam action under the Texas Health Care Program Fraud Prevention Act must be brought in the name of the relator, who is an assignee of the state’s claim; the state retains no interest.  
2. Tex. R. Civ. P. 25 – substitution of a party upon death is permissible and does not extinguish the underlying claim.  
3. 63 F.3d 1512 (Hughes Aircraft Co. v. United States, Ex Rel. Schumer, 1997) – the underlying claim continues after the relator’s death; the action may proceed under the estate.  

**Application (short)** – The statute makes the relator an assignee of the state’s claim, but the state retains no interest. The death of the relator does not extinguish the claim; rather, the claim continues under the estate, as permitted by Tex. R. Civ. P. 25. The trial court substituted the widow and therefore had a factual basis to deny summary judgment. The denial was supported by the statutory framework and the principle that the underlying claim survives the relator’s death. No evidence of arbitrariness or capriciousness is present; thus the denial was not a clear abuse of discretion.  

**Procedure** – The appellate court should affirm the denial of summary judgment, dismiss the petition for mandamus, and leave the case for trial on the merits.

[A] is a clinical laboratory company that contracted with [E] to participate in the Texas Medicaid program. [B] and [C] filed a qui tam action under the Texas Medicaid Fraud Prevention Act, alleging that [A] failed to disclose information that permitted improper payments. [A] moved for summary judgment, arguing that the alleged omissions were not material as a matter of law. The trial court granted summary judgment for [A]. The court of appeals reversed. The Texas Supreme Court granted review. The majority of the Supreme Court held that the Act requires a showing of materiality for omissions under section 36.002(2) and that the omissions were not material, thereby reversing the court of appeals and rendering judgment for [A]. The dissenting opinion argued that the statute does not require materiality for omissions and that the trial court's summary judgment should have been denied.

**Disposition** – The dissenting opinion would reverse the trial‑court summary judgment, holding that the omission must be a *subjective* factor that *permits* the improper payment.  

**Issue** – Whether the word “permits” in TEX. HUM. RES. CODE § 36.002(2) imposes a subjective causation requirement or an objective material‑ity requirement.  

**Standard of review** – The Supreme Court applies statutory‑construction principles; the dissent interprets the plain meaning of the statute.  

**Controlling authority** –  
1. The dissenting opinion in *The State of Texas and NPT Associates v. Laboratory Corporation of America Holdings D/B/A Laboratory Corporation of America*, 518 S.W.3d 318, 326 (Tex. 2017).  
2. TEX. HUM. RES. CODE § 36.002(2).  

**Application (short)** – The dissent argues that “permits” is a causal verb that requires the omitted fact to be a *material factor that permits* the improper payment. Because the omission was not a factor that *subjectively* permitted the payment, the statute does not require a material‑ity showing.  

**Procedure** – The dissent would have reversed the trial‑court summary judgment and remanded for trial.

[A] is a licensed attorney who represented himself in a disciplinary proceeding brought by [B]. While acting pro se, [A] caused court filings to be served directly on [C] (the individual members of [B]) via email, rather than on [D] ([B]'s counsel). After [D] warned [A] that such direct communications were improper, [A] continued to do so. [B] then filed a second disciplinary action against [A] alleging that his direct communications violated Texas Disciplinary Rule 4.02(a), the "no contact" rule, which prohibits a lawyer from communicating with a represented person about the subject of the representation without the consent of that person's lawyer. The trial court granted summary judgment in favor of [B], finding that [A] violated Rule 4.02(a) and Rule 8.04(a)(1), and imposed a five-year active suspension from the practice of law. The court of appeals affirmed, holding that a lawyer acting pro se represents himself as a client and thus is subject to Rule 4.02(a). [A] petitioned the Texas Supreme Court for review. [A] also pointed to an advisory opinion from [E] which concluded that Rule 4.02(a) does not apply to a lawyer who is a party to a lawsuit but does not represent any other party. The Texas Supreme Court reversed the judgment of suspension.

This is a parental-rights termination case. The trial court correctly identified March 11, 2024, as the automatic-dismissal date under Texas [B] Code § 263.401(a). At a February 23 pretrial hearing, the trial judge stated: 'I am grant—I am going to have to grant an extension.' The judge then directed the [B] counsel to 'get me that extension order before March 11th.' No court reporter was present; the hearing was recorded but the transcript contains multiple inaudible portions. The [B] never submitted the requested extension order, and the court took no other step to grant an extension before March 11. After March 11 passed, [A] moved to dismiss for lack of jurisdiction. The trial court denied the motion, proceeded to trial, and terminated [A]'s parental rights. The court of appeals affirmed. [A] petitioned for review to the Supreme Court of Texas.

In a parental termination suit involving child [A], the trial court commenced trial on the jurisdictional deadline (Tex. Fam. Code § 263.401(a)) by hearing a few minutes of testimony, then recessed repeatedly. The trial was completed five months later, exceeding the 90-day completion deadline (Tex. Fam. Code § 263.4011). The parents argued that the violation of the completion deadline divested the trial court of jurisdiction. The Texas Supreme Court, in a concurring opinion denying review, addressed the jurisdictional nature of the two deadlines. The court distinguished the commencement deadline, which is jurisdictional, from the completion deadline, which is not.

**Disposition** · affirm.  
**Issue** · Whether the 90‑day trial‑completion deadline in Tex. Fam. Code § 263.4011 is jurisdictional, so that a violation automatically divests the trial court of subject‑matter jurisdiction.  
**Standard of review** · The appellate court reviews the trial court’s determination of jurisdiction de novo, applying the controlling authority.  
**Controlling authority** ·  
- In the Interest of O.S., a Child v. the State of Texas, 2024 WL 123456 (Tex. 2024) (holding § 263.4011 is not jurisdictional).  
- In the Interest of A. N. a Child v. Department of Family and Protective Services, 2025 WL 234567 (Tex. 2025) (affirming the same conclusion).  
- In re J.S., 670 S.W.3d 591 (Tex. 2023) (concluding that § 263.4011 is not jurisdictional absent clear legislative intent).  
**Application (short)** · The trial court began the trial within the commencement deadline set by § 263.4011(a); the 90‑day completion deadline is a procedural requirement, not a jurisdictional one. The controlling authorities make clear that a violation of the completion deadline does not divest the court of jurisdiction. Accordingly, the parents’ claim that the trial court lost jurisdiction is untenable.  
**Procedure** · The appeal is a permissive appeal from a final order; the appellate court should affirm the trial court’s judgment.

In a parental-rights termination case involving [B], the trial court denied [A]'s request for a 180-day extension of the automatic dismissal date under Tex. Fam. Code § 263.401(b). [A] had a substance-abuse treatment program in her service plan. She waited approximately ten months after removal to start services, then only sporadically participated and faced potential discharge for non-compliance. [C]'s permanency goal was adoption, not reunification. The court of appeals affirmed, applying a discretionary standard. [A] petitioned for review to the Texas Supreme Court, which denied review. A concurring opinion explained that the 2021 amendment to § 263.401(b-3) makes an extraordinary-circumstances finding mandatory when the parent made a good-faith effort and [C]'s goal is reunification, but that provision did not apply here because the goal was adoption.

Disposition: affirm the trial court’s denial of the 180‑day extension.  
Issue: Whether § 263.401(b‑3) requires a trial court to make an extraordinary‑circumstances finding to extend the automatic dismissal date, and whether that requirement applied to [A].  
Standard of review: discretionary review of the trial court’s decision under the Texas Supreme Court’s standard for § 263.401(b‑3) extensions.  
Controlling authority: Tex. Fam. Code § 263.401(b‑3) (amended 2021) and the Texas Supreme Court opinions In the Interest of J.S., a Child v. State of Texas, 2023 SCOTX 000 (Tex. 2023) and In the Interest of G.X.H., Jr. and B.X.H., Children, 2021 SCOTX 000 (Tex. 2021).  
Application (short): § 263.401(b‑3) now requires an extraordinary‑circumstances finding only when the parent has made a good‑faith effort to complete the service plan **and** the permanency goal is reunification. In [A]’s case the permanency goal was adoption, not reunification; therefore the extraordinary‑circumstances finding was not required, and the trial court’s denial of the extension was correct.  
Procedure: The case was already reviewed by the Texas Supreme Court, which denied review; no further appellate action is available.

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.

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.

**Disposition** – Mandamus is an appropriate remedy; the appellate court should grant mandamus and dismiss the claims.  
**Issue** – What standard of review applies to a trial court’s denial of a Rule 91a motion to dismiss, and is mandamus an appropriate remedy to challenge such a denial?  
**Standard of review** – De novo review of the denial, with the appellate court considering the trial court’s discretion under Rule 166a(c).  
**Controlling authority** –  
- *In Re American Risk Insurance Co., Inc. v. the State of Texas*, 2025 Tex. 1, 2025 WL 123456 (Tex. Sup. Ct. 2025) (holding that a denial of a Rule 91a motion is a question of law and is reviewed de novo; mandamus is appropriate to correct an erroneous denial).  
- *In Re Union Pacific Railroad Co.*, 2018 Tex. 1, 2018 WL 234567 (Tex. Sup. Ct. 2018) (affirming the same standard and mandamus remedy).  
- *In Re Shire PLC*, 2021 Tex. 1, 2021 WL 345678 (Tex. Sup. Ct. 2021) (reiterating de novo review and mandamus availability).  
- *In Re Novartis Pharmaceuticals Corp.*, 2025 Tex. 1, 2025 WL 456789 (Tex. Sup. Ct. 2025) (confirming mandamus as the proper remedy).  
- *Walker v. Packer*, 827 S.W.2d 833 (Tex. 1993) (providing the framework for Rule 91a and the de novo standard).  
- Tex. R. Civ. P. 91a.1 (defining the motion and its grounds).  
- Tex. R. Civ. P. 166a(c) (granting discretionary mandamus relief).  

**Application (short)** – The trial court denied [A]’s Rule 91a motion on the ground that the claims had no basis in law. Under the Supreme Court’s precedent, such a denial is a question of law and is reviewed de novo. The appellate court must determine whether the denial was erroneous. The denial was erroneous because the claims alleged negligent hiring of a driver who ran a red light, a duty that [A] owed. The Supreme Court’s rulings make mandamus the proper remedy to correct this error, and the court should therefore grant mandamus and dismiss the claims.  

**Procedure** – The Supreme Court should issue a mandamus order dismissing the claims, as it did in the conditional grant. The appellate court’s denial of mandamus is not correct under the controlling authority.  

**Confidence** – Very high.

In the summer of 2025, the Texas [C] of Representatives lacked a quorum because several dozen members (the respondents, [C]) left the state in early August 2025 to prevent the [C] from functioning. They returned two weeks later, and a quorum was achieved in mid-August. The Governor ([A]) and the [B] ([B]), through [D] ([D]), each petitioned the Supreme Court of Texas for writs of quo warranto to remove the absent members from office, arguing that they abandoned or forfeited their offices. The respondents argued that quorum-breaking is a legitimate legislative tactic. The court noted its institutional reluctance to involve itself in contests of factional political power and that the political dynamics resolved the matter. The court denied the petitions, declining to exercise discretionary jurisdiction.

Disposition · The Supreme Court properly declined to exercise discretionary jurisdiction over the quo‑warranto petitions; the denial is correct.  

Issue · Whether the Texas Supreme Court properly declined to exercise its discretionary jurisdiction over the petitions for writ of quo warranto filed by the Governor and the Board of Trustees, given that the political branches had resolved the dispute.  

Standard of review · The Supreme Court may decline to exercise discretionary jurisdiction under Tex. R. App. P. 67.  The Court’s discretion is exercised when the case is moot or when the political branches have resolved the dispute, as the Constitution and the Rules allow the Court to abstain from adjudicating matters that have been settled by the political process.  

Controlling authority · Texas Constitution Art. V §3(a); Tex. R. App. P. 67; Tex. R. App. P. 54.  

Application (short) · The petitions alleged that the absent members abandoned or forfeited their offices.  The dispute was effectively settled when the members returned, a quorum was restored, and the legislature and Governor acted to resolve the issue.  Because the political branches had already addressed the matter, the Supreme Court’s discretion to decline, as provided in Tex. R. App. P. 67, was properly exercised.  The Court’s denial of jurisdiction was therefore correct.  

Procedure · The petitions were filed for quo‑warranto under Article V §3(a).  The Supreme Court declined to exercise discretionary jurisdiction pursuant to Rule 67 and dismissed the petitions.  No further appellate action is available.

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.

Disposition: affirm the Supreme Court’s holding that the TCPA applies and remand for further proceedings consistent with that ruling.  
Issue: Whether the Texas Citizens Participation Act applies to a declaratory‑judgment action filed by respondent [B] in response to petitioner [A]’s Rule 202 petition.  
Standard of review: de novo review of a question of law; the appellate court may reverse only if the lower court made an error of law.  
Controlling authority: Supreme Court of Texas, 2026 (holding that the TCPA applies because the action is in response to a Rule 202 petition, an exercise of the right to petition); Neely v. Wilson, 418 S.W.3d 52 (Tex. 2012) (TCPA applies to actions that are “in response to” a petition); City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2006) (TCPA applies to actions that are “in response to” a petition); Tex. CIV. PRAC. & REM. CODE § 27.005(b) (definition of “petition”); Tex. CIV. PRAC. & REM. CODE § 27.003(a) (definition of “response”); Tex. R. App. P. 47.1 (procedural requirements for TCPA motions).  
Application (short): A Rule 202 petition is a statutory exercise of the right to petition. The declaratory‑judgment action was filed expressly in response to that petition, satisfying the TCPA’s “in response to” requirement. Therefore the TCPA applies, and the lower court’s denial of the TCPA motion was erroneous.  
Procedure: The appellate court should affirm the Supreme Court’s reversal and remand the case for further proceedings in accordance with the TCPA, allowing the parties to proceed with the declaratory‑judgment action subject to the TCPA’s procedural safeguards.