Cowles & Thompson P.C.

Whether a defendant can be sued in the courts of a particular state depends upon the defendant’s presence in the state.  If the defendant lives there, or in the case of an entity, has its principal place of business there or is incorporated there, the defendant has availed itself of the state’s jurisdiction and may be sued there.  But what if the defendant simply engages in some level of business there?  The defendant must have…
The Dallas Court of Appeals has held that the Texas Commission on Human Rights Act (TCHRA) and its prohibition against unlawful employment practices because of sex, encompasses claims for unlawful employment practices because of sexual orientation.  This interpretation is the first for an appellate court in Texas and the court’s analysis follows the United States Supreme Court’s holding from last year in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020). Discrimination Claim…
Last year, I reported that the Texas Supreme Court granted a record number of petitions for review in cases where the court of appeals had issued an opinion designated as a “Memorandum Opinion.”   The statistics seem to dispel the notion that there is an inherent bias against review of “Memorandum Opinions. In 2020, the number of petitions granted in cases where the court of appeals had issued a Memorandum Opinion returned to a level in…
This past year presented some unique challenges for the judiciary, and specifically for the Supreme Court of Texas.  The court confronted a pandemic, a ransomeware attack, and some unusual election-year court filings.  In spite of these challenges, the court persevered and performed.  Here’s what my initial calculations show: During the 2020 calendar year, the court disposed of 97 causes, consisting of 82 petitions for review, 12 original proceedings, and 3 certified questions.  By comparison, last…
Cases involving questions on the admissibility of evidence rarely rise to the level of importance that the Texas Supreme Court gets involved.  Yet these questions routinely arise in the trial courts and are fundamental to trial practice.  The Texas Supreme Court recently examined an evidence question involving the admissibility of public records. In Fleming v. Wilson, the defendants moved for summary judgment on the defense of collateral estoppel.  They supported their motion by attaching…
At a recent continuing education seminar, one of the presenters stated as a fact that amounts awarded in a judgment for prejudgment interest do not need to be included in the amount of a supersedeas bond.  The presenter cited the Texas Supreme Court’s opinion in In re Nalle Plastics Family Ltd. Partnership, 406 S.W.3d 168 (Tex. 2013), as support for this statement.  There’s just one problem with relying on Nalle Plastics for this proposition—the issue…
The Fifth Circuit and the Texas Supreme Court recently reaffirmed the high bar that must be met to find that the plain language of a statute violates the absurdity doctrine. Under the absurdity doctrine a court will construe a statute by applying the plain meaning of the words used unless it would lead to absurd or nonsensical results that the legislature could not possibly have intended.  See, e.g., El Paso Educ. Initiative, Inc. v. Amex…
Two years ago, I noted that the data shows that the Texas Supreme Court grants a disproportionate number of petitions for review that come through certain intermediate appellate courts.   One of those intermediate appellate courts is the Third Court of Appeals District, informally known as the Austin Court of Appeals.  That trend continues. Focusing on granted petitions for review, I was curious about where some of these disputes started out, so I looked at what…
The Supreme Court of Texas handed down an opinion in Regent Care of San Antonio, L.P. v. Detrick in early May.  The main holding in the case addresses the application of a settlement credit.   But one short paragraph at the end of the opinion has appellate practitioners talking. The paragraph in question states: “Regent Care also challenges the sufficiency of the evidence to support the jury’s findings on causation and past medical damages. Having independently…
For many years after the Texas Supreme Court adopted rules that divided the opinions issued by the intermediate courts of appeals into “opinions” and “memorandum opinions,” many appellate practitioners privately concluded that if an opinion was designated “memorandum opinion,” the chances of getting Texas Supreme Court review were substantially reduced.  But in 2018, I reported that between the years 2014 and 2017 approximately 1/3 of the Supreme Court’s docket of granted petitions was made up…