Law Commons^™

The Texas Supreme Court's Evolving Mineral-Deed Jurisprudence In The Shale Era: The Implications Of Wenske V. Ealy, Laura H. Burney

Faculty Articles

The twenty-first century oil and gas boom in the Lone Star State stimulated the industry and enriched Texas landowners. However, the technologies credited with igniting this boom, hydraulic fracturing and horizontal drilling, could not prevent the historic boom-to-bust cycle. Instead, the production unleashed from shale plays in Texas and other states created a world-wide glut, sinking oil prices from highs above $100 to a low of $26 per barrel. Yet, thanks in part to plays in West Texas, "Shale 2.0" is underway. The booms have blessed and cursed Texas, leading to a variety of legal disputes. Disputes that have plagued …

The Texas Constructive Trust And Its Peculiar Requirements, David Dittfurth

Faculty Articles

Consider two cases. In the first case, you represent the children of a woman who was intentionally and wrongfully killed by her husband. After having pled guilty to negligent homicide, the husband probates his wife's will in which he is the sole beneficiary. In the second case, your client attempts an online transfer of her savings to another of her accounts but enters the account number erroneously and sends her life's savings to a stranger's account. The recipient of this windfall has withdrawn the money in cashier's checks and refuses to return them to her.

Your clients want a court …

The Texas Supreme Court Retreats From Protecting Texas Students, Albert H. Kauffman

Faculty Articles

The Texas Supreme Court has now fully retreated from a powerful line of previous Texas Supreme Court decisions protecting the rights of public school students and low-wealth districts.' Returning to Texas history's dual system of poor districts and wealthy districts, the Court removed itself from its constitutional role as a vital ingredient in progressing toward school finance equity and adequacy and has instead regressed to a dual school system in Texas that is divided between poor and wealthy districts.

This regression becomes evident by analyzing seven major school finance decisions: (1) Edgewood Independent School District v. Kirby (Edgewood I); (2) …

The Legacy Of The 1/8th Landowner's Royalty And The Texas Supreme Court: Has Hysaw V. Dawkins Resolved The Double Fraction Dilemma, Laura H. Burney

Faculty Articles

Lawyers, landmen, landowners, and producers face a long list of perennial problems when interpreting or drafting documents that affect mineral estates. I have written extensively about these problems, including the "fixed or floating" non-participating royalty issue addressed in a recent Texas Supreme Court case, Hysaw v. Dawkins. In that case, three siblings, who were beneficiaries of their mother's will, disputed the appellate court's holding that the double fraction 1/3 of 1/8 created a "fixed" 1/24th non-participating royalty interest (NPRi), rather than a "floating" 1/3 NPRi. The dispute arose when one sibling leased her land and negotiated a 1/5th landowner's lease …

Time To Repair The Chain: Void Deeds, Subsequent Purchasers, And The Texas Recording Statutes, Richard E. Flint

Faculty Articles

Throughout the history of Texas jurisprudence, the Texas Supreme Court has often made clear and concise pronouncements that a rule of law was to apply in all cases that fell under the parameters of that rule, as well as exceptions to the application of these legal rules in situations where the application would perpetrate a fraud or would be inequitable. In several situations, Texas courts applied equitable principles to protect a subsequent purchaser in spite of the existence of a void deed in the chain of title. However, the court in Texas Department of Transportation v. A.P.I. Pipe & Supply, …

Case Watch: Royston, Rayzor, Vickery & Williams Llp V. Lopez, Ramona L. Lampley

Faculty Articles

The Texas Supreme Court effectively gave a “thumbs-up” to attorney-client arbitration agreements in Royston, Rayzor, Vickery, & Williams, LLP v. Lopez, 467 S.W.3d 494 (Tex. 2015), reh’g denied (Sept. 11, 2015). The plaintiff, Frank Lopez, hired Royston, Rayzor to represent him in a divorce. As part of the representation agreement, Lopez agreed to arbitrate any disputes arising out of the attorney-client relationship, but the law firm excluded from the arbitration agreement any claims it might have against Lopez for expenses or fees. Lopez later sued Royston, Rayzor and the firm moved to compel arbitration.

Lopez contended that the arbitration agreement …

Long Live Bohatch: Why A Law Firm Partner Can Be Expelled For Following The Rules Of Professional Conduct, David A. Grenardo

Faculty Articles

No abstract provided.

The Texas Supreme Court: A Narrative History, 1836–1986 (Book Review), Michael S. Ariens

Faculty Articles

The historical material and resources available for American legal historians is both too much and too little. Hundreds of published case opinions became thousands of opinions by the end of the 1820s, leading lawyers to conclude that no one could know the entirety of the law. Yet this cascade of information is also too little, because the work of treatise writers and magazine editors of the time was ruthlessly focused on then-existing legal concerns.

For these reasons, James L. Haley works within difficult strictures in his book, The Texas Supreme Court: A Narrative History, 1836–1986. Because his story is about …

The Court Of Appeals For The Fifth Circuit: A Selective Review And Analysis Of The Panels' 2010-2011 Insurance-Law Opinions, Willy E. Rice

Faculty Articles

No abstract provided.

Restitution In Texas: Civil Liability For Unjust Enrichment, David A. Dittfurth

Faculty Articles

The Texas Supreme Court must clarify the law of restitution. The law of restitution regulates a major area of litigation in Texas and suffers from a significant degree of confusion. The Texas Supreme Court has adopted the modern view of restitution, but its rulings lack the detailed guidance needed by lower courts. The Texas Supreme Court should establish an independent and generally applicable cause of action for unjust enrichment, describe clearly the elements of that cause of action, and lend its authority to the modern terms that describe the law of restitution.

The Texas Supreme Court’s rulings on restitution describe …

Texas Annual Survey: Securities Regulation, George Lee Flint Jr

Faculty Articles

Securities law opinions under Texas law during this period can be divided into two groups. The first group deals with various fraudulent schemes targeted by the Board. The "free lunch" scam, aimed at senior investors, surfaced in Head v. State where the scammer lost the appeal because the evidence clearly confirmed his failure to inform investors. In Navarro v. Grant Thornton, LLP investors failed in their aiding and abetting lawsuit against the accountants because, absent contact between the accountants and investors, the accountants had no duty to whistleblow to regulators or investors.

The second group involves incompetent lawyers. In S&D …

The Court Of Appeals For The Fifth Circuit: A Review Of Selected 2009-2010 Insurance Decisions, Willy E. Rice

Faculty Articles

In light of the Erie doctrine, the Court of Appeals for the Fifth Circuit should certify insurance-conflict questions to the Texas Supreme Court when the opportunity presents itself. Twelve insurance-related cases decided by the Fifth Circuit illustrate issues that the Fifth Circuit struggle with when dealing with Erie problems. These insurance decisions concern jurisdictional, procedural, and substantive questions. How the Fifth Circuit applies the Erie doctrine is investigated at length. In the overwhelming majority of the cases, the panels faithfully adhered to the doctrine. The decisions were generally fair and based upon careful reviews of relevant facts and on intelligent …

Texas Annual Survey: Securities Regulation, George Lee Flint Jr

Faculty Articles

Securities law opinions during this period fall into two categories. The first deals with incompetent lawyers. In Miller, a state court reinstated a cease and desist order against an issuer whose lawyer failed to object to a witness's testimony when a co-defendant's counsel did. In In re Next Financial Group, the Texas Supreme Court granted mandamus and ordered arbitration for the termination of a broker when the arbitration agreement permitted only an exception for statutory discrimination, not a common law exception to the employment-at-will doctrine.

The second group of cases involve Fifth Circuit opinions discussing securities fraud actions under the …

The Texas Supreme Court And Oil And Gas Jurisprudence: What Hath Wagner & Brown V. Sheppard Wrought?, Laura H. Burney

Faculty Articles

According to the Texas Supreme Court, a lessor’s interest remains pooled even after her lease terminates. The Court’s November 2008 opinion in Wagner & Brown, Ltd. v. Sheppard provoked strong reactions among oil and gas law practitioners, academics, and others involved in the industry. In fact, the court received nearly a dozen amicus curiae briefs signed by more than 20 attorneys—many of whom typically represent producers—urging it to reconsider. Not persuaded by these concerns, the court finalized its opinion on June 5, 2009. So now the question for players in the oil patch is: What hath Wagner & Brown, Ltd. …

Texas Annual Survey: Securities Regulation, George Lee Flint Jr

Faculty Articles

Texas federal courts have continued to narrow the application of Texas securities laws. The Fifth Circuit applied the federal class action preemption test of Securities Litigation Uniform Standards Act of 1998 (“SLUSA”) after consolidation in federal court, but permitted unconsolidated state actions to continue unpreempted. The Fifth Circuit also determined that the stringent federal pleading rules apply to state law actions filed in federal court. The Southern District of Texas narrowed aider and abetter liability in the secondary market by imposing a privity requirement for the primary perpetrator under the Texas Securities Act (“TSA”) and requiring a duty to disclose …

Texas Annual Survey: Securities Regulation, George Lee Flint Jr

Faculty Articles

Many courts rendered opinions during the Survey period affecting the reach of the Texas Securities Act (“TSA”). The Texas Supreme Court acknowledged the TSA’s reach over dealers selling from Texas to non-residents of the state, as well as over registration of securities sold. In contrast, the Fifth Circuit continued Congress’s campaign to limit regulation of interest rate swaps to federal regulatory bodies by defining “security” in the TSA to exclude interest rate swaps. In Kastner v. Jenkens & Gilchrist, P.C., a Texas appellate court determined that lawyers are not subject to liability for aiding and abetting when they merely prepare …

The Evolving Standard For The Granting Of Mandamus Relief In The Texas Supreme Court: One More Mile Marker Down The Road Of No Return, Richard E. Flint

Faculty Articles

The Prudential balancing test should be of concern for anyone interested in the rule of law. This test is the current binding precedent for determining when an appellate court should exercise its mandamus authority upon a finding of a clear abuse of discretion. This test has substantially altered one of the most time honored principles of mandamus jurisprudence, and replaced it with a newly articulated standard that leads to nothing short of ad hoc decision making.

In the area of mandamus jurisprudence, the Texas Supreme Court has, from time to time, developed different ways to circumvent the common law history …

The Storm Between The Quiet: Tumult In The Texas Supreme Court, 1911-21, Michael S. Ariens

Faculty Articles

The Texas Supreme Court from 1911–1921 is best known not for the law it made or the opinions it wrote, but for its failure to decide cases. Although the supreme court’s difficulty in clearing its docket existed before 1911, the number of outstanding cases exploded during the second decade of the twentieth century.

Arguably, the issue of statewide prohibition and the divergent views held on that issue by members of the Texas Supreme Court was the driving force behind the disharmony and dysfunctionality of the court during this decade. Statewide prohibition explains why elections of candidates to the court were …

Texas Annual Survey: Securities Regulation, George Lee Flint Jr

Faculty Articles

With respect to easing registration requirements, the State Securities Board (“Board”) had the opportunity to lead both state and federal securities regulatory bodies through rule changes for finders--those who assist issuers in finding purchasers. The Board also issued no-action letters for nonregistration of securities issued in connection with various reorganizations involving a Massachusetts business trust, a demutualization of an insurance company, and an exchange of private shares for public American Depository Receipts.

Other than considering the availability of the in pari delicto defense for litigation-funding agreements, the courts generally avoided the interesting issues. Such issues include whether a seller’s fraud …

The Court Of Appeals For The Fifth Circuit: A Legal Analysis And Statistical Review Of 2005-2006 Insurance Decisions, Willy E. Rice

Faculty Articles

he Fifth Circuit Court of Appeals decided and published twenty-four insurance-related appeals between June 2005 and May 2006 from cases originating in seven federal district courts. Like petitioners in prior years, the overwhelming majority of the 2005-2006 appellants petitioned the court of appeals to reverse or vacate district courts' adverse summary judgments as well as the lower courts' allegedly questionable interpretations of various insurance contracts. Most of the controversies involved familiar procedural and substantive questions of law, but the Fifth Circuit also decided many questions of fact. Furthermore, several preemption questions and disputes over subject matter jurisdiction appeared among the …

Questionable Summary Judgments, Appearances Of Judicial Bias, And Insurance Defense In Texas Declaratory-Judgment Trials: A Proposal And Arguments For Revising Texas Rules Of Civil Procedure 166a(A), 166a(B), And 166a(I), Willy E. Rice

Faculty Articles

Economic necessity, expanding dockets, and judicial bias and unfairness are reasons for removing summary judgement practice from declaratory judgment trials in Texas. The Texas Supreme Court adopted the summary judgment rule primarily to prevent juries from considering arguably groundless causes, to reduce costs, and to increase "the efficient administration of justice." The Texas Supreme Court could prevent summary judgment practice in declaratory judgment cases.

Texas's judges have the power to decide questions of fact and law when considering whether to award declaratory relief, negating the perceived need to entertain motions for summary relief. Trial judges must employ those doctrines to …

An Essay On The Tort Of Negligent Infliction Of Emotional Distress In Texas: Stop Saying It Does Not Exist, Charles E. Cantú

Faculty Articles

The injury of emotional distress is an interesting tort, which has long perplexed the Anglo-American system of jurisprudence. While, originally, allegations of this kind did not constitute a cause of action, today, there is no question that an injured plaintiff may recover for the infliction of emotional distress. The majority and minority positions differ now only on what must be alleged and proved.

Texas was the first jurisdiction in the United States to allow recovery for mental anguish. However, in 1993 in the case of Boyles v. Kerr, the Texas Supreme Court appeared to depart from the majority view when …

“Loss Of Earning Capacity” Benefits In The Community Property Jurisdiction--How Do You Figure?, Aloysius A. Leopold

Faculty Articles

In the interest of uniformity, benefits for the loss of earning capacity should be subject to the same legal principle when determining marital property rights, regardless of the context in which those rights arise. However, courts throughout the United States have relied upon four different methods to determine title to loss of earning capacity benefits upon divorce. These approaches include the unitary approach, the analytic approach, the mechanistic approach, and the case-by-case approach.

Because the determination of title to benefits varies tremendously, the need for certainty in this area of the law is necessary particularly in light of the Texas …

Boyles V. Kerr: The Wrong Decision At The Right Time: Implications For Mental Anguish Damages Under The Dtpa, Charles E. Cantú, Jared Woodfull V

Faculty Articles

Mental anguish jurisprudence has witnessed a tumultuous evolution. Consumer law, as codified in the Texas Deceptive Trade Practices Act, has been uniquely impacted by the evolving law of mental anguish.

Recently, the Texas Supreme Court reaffirmed the standard for recovery of mental anguish damages under the DTPA. In the case of Boyles v. Kerr, the Texas Supreme Court had the opportunity to reconcile mental anguish damages under the DTPA with mental anguish jurisprudence. However, instead of aggressively recognizing one’s interest in their emotional well-being, the court retreated, reversing almost a decade of mental anguish jurisprudence.

This recently reaffirmed standard for …

Raborn V. Davis—Paycheck In Employee’S Possession: A Limitation Of The Current Wage Exemption In Texas, Richard E. Flint

Faculty Articles

Extensions of credit generally help both the debtor and creditor. However, a result of our credit-based economy is that individuals are free to make poor economic decisions, and that they should suffer the consequences of these poor decisions. Although legal rules have had a role in ensuring that debtors are protected from overzealous creditors, commercial transactions can only exist if obligations of debtors are legally enforceable. The role of government, therefore, is to set parameters for procedures to enforce these obligations, while also setting a floor of protected or exempt assets so that debtors will not become wards of the …

“Oil, Gas, And Other Minerals” Clauses In Texas: Who’S On First?, Laura H. Burney

Faculty Articles

Stability and certainty of land titles encourages development of mineral resources and means individuals need not resort to judiciary for interpretation. Unfortunately, uncertainty prevails because Texas courts complicate the interpretive process and frequently need the assistance of nonlegal sources for comparison, explanation, and enlightenment. Clarity demands that courts adopt a definition of the “ordinary and natural meaning” test similar to that proposed by Dean Eugene Kuntz; burying the surface destruction test by retroactively applying the former.

The surface destruction test produced a title examiner’s nightmare. Despite the Texas Supreme Court’s determination to rectify this in Moser v. United Steel Corp. …

Vicarious Liability Of An Employer For An Assault By His Servant: A Survey Of Texas Cases Reexamining The “Rule Of Force”, Charles E. Cantú

Faculty Articles

The doctrine of respondeat superior has long been entrenched in Anglo-American jurisprudence. It is under this doctrine that principles, masters, and employers have been held liable for the wrongs of individuals working under them and acting within the scope of their employment. This doctrine has been applied to all injury producing acts of the employee, whether negligent or intentional.

Presently, there is considerable conflict in Texas concerning an employer’s liability for the intentional torts of his employee. Analysis of several Texas cases regarding the doctrine of respondeat superior points out that Texas courts have applied two conflicting tests in determining …