Consilidated for oral argument with 11-0737. In these cases the principal issue is whether the city and the Bosque River Coalition were entitled to contested-case hearings challenging amended water-quality permits allowing larger herds at dairies in the Bosque River watershed. In the Waco case the city objects to animal waste from one of the dairies polluting the drinking water it draws from Lake Waco downstream. The Bosque River Coalition, a non-profit environmental-protection group, alleges that landowners downstream from the other dairy would suffer pollution from dairy-cattle waste runoff. The underlying question in both cases is whether the Commission on Environmental Quality properly determined that neither the city nor the coalition was an "affected person" entitled to contested-case hearings challenging the commission’s permit approvals. Waco and the coalition argue that determining status as an affected person is determining standing and must be, on disputed facts, decided in a contested hearing. The commission determined that the city was too remote from the dairy to show a legally sufficient interest to contest the permit and that the landowners’ property was not close enough to allege injuries more particular than injuries the general public might suffer. The commission argues that its affected-person determinations should be reviewed by substantial evidence and not, as the city and coalition contend, under an arbitrary-and-capricious standard. Both Waco and the coalition counter that the commission’s conclusion that the dairies' amended water permits would be more protective of water quality than the original permits was irrelevant – thus arbitrary – to determinations that the city and coalition were not affected persons. Trial courts in each case affirmed the commission's orders approving the amended water permits, but the court of appeals reversed each, agreeing that the commission acted arbitrarily and holding in part that a substantial-evidence review was inapplicable because neither the city nor the coalition had a chance to develop an evidentiary record in a contested hearing.

Consilidated for oral argument with 11-0729. In these cases the principal issue is whether the city and the Bosque River Coalition were entitled to contested-case hearings challenging amended water-quality permits allowing larger herds at dairies in the Bosque River watershed. In the Waco case the city objects to animal waste from one of the dairies polluting the drinking water it draws from Lake Waco downstream. The Bosque River Coalition, a non-profit environmental-protection group, alleges that landowners downstream from the other dairy would suffer pollution from dairy-cattle waste runoff. The underlying question in both cases is whether the Commission on Environmental Quality properly determined that neither the city nor the coalition was an "affected person" entitled to contested-case hearings challenging the commission’s permit approvals. Waco and the coalition argue that determining status as an affected person is determining standing and must be, on disputed facts, decided in a contested hearing. The commission determined that the city was too remote from the dairy to show a legally sufficient interest to contest the permit and that the landowners’ property was not close enough to allege injuries more particular than injuries the general public might suffer. The commission argues that its affected-person determinations should be reviewed by substantial evidence and not, as the city and coalition contend, under an arbitrary-and-capricious standard. Both Waco and the coalition counter that the commission’s conclusion that the dairies' amended water permits would be more protective of water quality than the original permits was irrelevant – thus arbitrary – to determinations that the city and coalition were not affected persons. Trial courts in each case affirmed the commission's orders approving the amended water permits, but the court of appeals reversed each, agreeing that the commission acted arbitrarily and holding in part that a substantial-evidence review was inapplicable because neither the city nor the coalition had a chance to develop an evidentiary record in a contested hearing.

Consolidated for oral argument with 11-0652. A principal issue in these challenges for tax refunds is whether a government contractor purchasing personal property and services to meet its contract obligations qualifies for the sale-for-resale sales-tax exemption under Tax Code section 151.006(a)(1). Health Care Services Corp. sued after the comptroller refused to refund all sales tax the company paid for property that, under its contracts with the federal government, the federal government would own. The comptroller argues that the sale-for-resale exemption excludes sales taxes paid for a non-taxable services. On the other hand Health Care Service Corp. contends the "resale" occurred when title passed to the government. In both cases, involving two periods, the trial court ordered the state to refund sales taxes on all categories of property the company paid. The appeals court affirmed.

Consolidated for oral argument with 11-0283. A principal issue in these challenges for tax refunds is whether a government contractor purchasing personal property and services to meet its contract obligations qualifies for the sale-for-resale sales-tax exemption under Tax Code section 151.006(a)(1). Health Care Services Corp. sued after the comptroller refused to refund all sales tax the company paid for property that, under its contracts with the federal government, the federal government would own. The comptroller argues that the sale-for-resale exemption excludes sales taxes paid for a non-taxable services. On the other hand Health Care Service Corp. contends the "resale" occurred when title passed to the government. In both cases, involving two periods, the trial court ordered the state to refund sales taxes on all categories of property the company paid. The appeals court affirmed.

The issue is whether in a deceptive trade-practices action by the Attorney General's Office the DTPA's permissive-venue provision should take priority over the mandatory venue provided by the Civil Practices and Remedies Code. In this case, alleging gasoline marketers diluted octane ratings of gas they sold, the attorney general sued for an injunction in Travis County under a DTPA provision providing suits may be filed against defendants in a county in which they have “done business.” Cook and the other retailers contend Travis County is an improper venue because the Civil Practices and Remedies Code mandates venue where defendants have their principal homes, or domiciles. The court of appeals denied Cook's petition for mandamus relief after the trial court ruled the suit was proper in Travis County.

The principal issues are (1) whether the state, enjoined in an earlier appeal from how it calculated Medicaid reimbursements to the hospital district, must refigure reimbursement for the fiscal year before the injunction issued and (2) whether the trial court's injunction covering previous years was additional, retroactive relief beyond the Supreme Court's previous judgment and barred by sovereign immunity. In this case hospital districts challenged what they alleged was an invalid rule that limited the base calculation for Medicaid reimbursement rates. The districts argue in part that the Supreme Court's holding and injunction in an earlier appeal in this case requires the commission to recalculate rates going back several years because they were founded on a void rule. The commission counters that the injunction, in 2008, applied only prospectively. The trial court ordered rate recalculations for fiscal years back to 2002. The appeals court reversed for the years 2002 through 2007. After the trial court's ruling, an administrative law judge granted recalculated reimbursement for the 2010 fiscal year but determined no authority supported recalculation for previous years.

The issues in this case tests the operation of election-of-remedies provisions the Legislature added to the Texas Tort Claims Acts in 2003, asking in essence whether the negligence suit filed initially against the state-employee driver bars any suit against the state-agency itself when the driver shows he was driving as part of his job. In this case Ngakoue initially sued Barnum alone after an accident. Barnum then moved to dismiss the suit under section 101.106(f), contending his driving fell within the scope of his employment and the suit could have been filed against the Adjutant's General's Office. When Ngakoue amended her petition to add the state agency and to dismiss Barnum, the trial court refused to dismiss Barnum and denied the Adjutant General's Office's jurisdictional plea. Under section 101.106(b), the state argues, Ngakoue lost her chance to sue the state agency because she elected to sue the employee first by himself. The court of appeals denied the state's plea to the jurisdiction.

The issue is whether companies that sell prepaid wireless-telephone service must pay a statutory emergency-service fee the commission levied to finance a system that can locate a wireless 911 caller. Under the statute--Texas Health & Safety Code chapter 771, enacted in 1997--the fee applies to "each wireless telecommunications connection" but provides for collection of 50 cents each month from wireless subscribers who are billed by their providers. TracFone and Virgin Mobile, which sell airtime cards and do not bill purchasers monthly, paid the fees but sued for refunds, arguing that the statutory emergency-service fees do not apply to their products. A trial court overturned a commission order imposing the fees. The court of appeals reversed the trial court, holding that the statute required an emergency fee for every wireless connection regardless of how companies sold their services.

The issues are (1) whether the operator of grab-it-if-you-can amusement machines is entitled to a sales- and use-tax refund for taxes paid for toys used in the machines falls under the statutory sale-for-resale exemption because the operator paid occupation tax on each machine and (2) whether the comptroller's interpretation of the statute should be given deference if the sale-for-resale exemption is ambiguous. In this case Roark sued for a refund of sales tax it paid for novelty prizes it stocks in its machines. To get the prize, players must manipulate a claw to pick it from a pile of similar toys--it will be chosen to go to a better place, as Buzz and Sheriff Woody arguably found not to be the case, if the player is successful. Roark argues that the sale-for-resale provision exempts it from paying sales tax on the toys because they are an integral part of the service for which it pays its occupational tax. The tax code provides that "tangible personal property" is not resold as part of the taxable service "unless care, custody, and control" of the toy in this case "is transferred to the purchaser of the service." The comptroller's administrative rules require that the sale-for-resale sales-tax exemption applies for amusement games like Roark's only if every player wins. The trial court ruled for the comptroller. The court of appeals held for Roark.

A principal issue in this libel case based on a television report that the Texas Medical Board ordered a physician disciplined is whether Texas recognizes the third party-allegation rule that would shield a publisher or broadcaster from defamation liability if the report is substantially true. Dr. Neely, an Austin neurologist, sued Wilson and her then-employer, KEYE-TV in Austin, after a report that included interviews with two malpractice claimants against Neely and a rendition of the medical board’s agreed order with Neely. The order addressed the doctor’s writing his own refill prescriptions for drugs in lieu of returning to the doctors who prescribed them. The order suspended him for three years, but allowed him to practice on probation with conditions and cited his violation of a rule prohibiting inappropriate prescriptions of “dangerous drugs” and his inability to practice medicine “with reasonable skill and safety to patients, due to mental or physical condition.” The trial court granted summary judgment for Wilson and the station. The court of appeals affirmed, holding that McIlvain v. Jacobs created a third party-allegation rule in Texas and that Neely’s allegations that the broadcast reported false defamatory statements were either substantially true or not defamatory.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0666 City of Round Rock, et al. v. Jaime Rodriguez, et al. from Travis County and the Third District Court of Appeals, Austin For petitioners: Douglas W. Alexander, Austin For respondents: Craig Deats, Austin The issue is whether the Texas Labor Code provides public employees a right to have a union representative present at an investigative interview, that is, whether the Weingarten right applies to Texas labor law. Rodriguez sued to declare his right to have a union representative present when his supervisors interviewed him on a complaint that he misused sick leave. The city’s fire chief denied his request for a union representative. Rodriguez argues that the Weingarten right, established for investigations under the National Labor Relations Act, should apply to similar proceedings under the Texas Labor Code because Weingarten established the right to have union representation on the rationale that the federal law protected employment, as does Texas labor law. The city contends Weingarten was decided more than 75 years after the applicable state labor law provision and the provision does not apply to public employees. The trial court decided in Rodriguez’s favor and the court of appeals affirmed. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0683 and 10-0714 This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0683 and 10-0714 This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0316 This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0491 ?Hearts Bluff Game Ranch Inc. v. State of Texas and Texas Water Development Board? from Travis County and Third District Court of Appeals, Austin? For petitioner: Terry Jacobson, Corsicana? For respondents: Arthur C. D’Andrea, Austin ? The issue is whether an inverse-condemnation claim is proper against the state based on allegations the state acted to cause a federal agency to deny a wetlands-preservation permit in a area the state designated for a northeast Texas reservoir. In Hearts Bluff’s lawsuit against the Texas Water Development Board, the company claimed the state lobbied the federal Army Corps of Engineers to deny Hearts Bluff Game Ranch a wetlands mitigation bank for property the company bought with assurance that the mitigation bank would be approved. The proposed mitigation area lay in an area proposed for a reservoir the state Legislature eventually approved. The state pleaded that the court did not have jurisdiction, based on sovereign immunity. The trial court denied the state’s jurisdictional plea, but the appeals court reversed. In addition to the elements for an inverse-condemnation claim, the court held, Hearts Bluff must have established – and did not – that the water development agency effected the taking by a direct restriction resulting from its own regulatory power. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0426 Safeshred Inc. v. Louis Martinez III from Travis County and the Third District Court of Appeals, Austin For petitioner: Craig A. Morgan, Austin For respondent: Gregory D. Jordan, Austin Principal issues are (1) whether a Sabine Pilot wrongful-discharge claim can support a punitive-damages award, (2) whether sufficient evidence supported the jury’s malice finding and, if so, (3) whether the punitive damages were constitutionally excessive. Martinez sued after Safeshred allegedly fired him for refusing to drive what he considered to be an unsafe truckload of steel shelving. His refusal followed previous occasions that he complained about load-safety issues and other regulatory-compliance matters with Safeshred trucks. A jury found his firing was retaliatory and awarded $250,000 in exemplary damages, along with lost wages and mental-anguish damages. The trial court applied the statutory exemplary-damages cap to reduce the award to $200,000. The court of appeals affirmed. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0375 Atmos Energy Corp., et al. v. Cities of Allen, et al. from Travis County and the Third District Court of Appeals, Austin For petitioners/cross-respondents companies: Ann M. Coffin and David Duggins, Austin For petitioners/cross-respondents cities: Jose E. de la Fuente, Austin For respondent Railroad Commission: Priscilla Hubenak, Austin The principal issues are (1) whether the Texas Railroad Commission has appellate jurisdiction over the cities’ denials of a utility’s interim rate-increase filing and, if so, (2) whether the cities get a contested hearing for an interim-rate adjustment. In this case Allen and other cities sued for a declaratory judgment to void an administrative rule permitting interim rates for gas utilities’ infrastructure improvements because the rule did not provide for a contested hearing. Allen and the other cities rejected the rate adjustments, but the Railroad Commission granted them without an evidentiary hearing. The trial court denied the cities’ request that it declare the rule void, finding the cities could conduct a ministerial review of an interim rate increase but not otherwise deny it. The court of appeals affirmed that cities were not entitled to an adjudicatory hearing on an interim rate adjustment and held the Railroad Commission did not have appellate jurisdiction to review the cities’ denial. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

(Justice Hecht not sitting) 10-0374 Texas Department of Insurance v. American National Insurance Co. and American Life Insurance Co. of Texas from Travis County and the Third District Court of Appeals. Austin For petitioner: Arthur C. D'Andrea, Austin For respondent: Susan G. Conway, Austin The issue in this appeal from a declaratory judgment is whether stop-loss agreements involving self-funded insurance plans are direct insurance, subject to state regulation and certain fees, or reinsurance outside the state’s regulation. Stop-loss policies are sold to cover self-funded plans for those occasions when the self-funded plan must pay a loss that exceeds an agreed-upon amount, called an “attachment point.” The insurance department contends the companies issuing stop-loss policies sell direct insurance, subject to state regulation and to fees to the Texas Health Insurance Risk Pool. The trial court found for the department, but the court of appeals reversed, holding that stop-loss agreements constitute reinsurance outside the state insurance department’s regulation. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0121 Finance Commission of Texas, et al. v. Valerie Norwood, et al. from Travis County and the Third District Court of Appeals, Austin For petitioners: Mr. Evan S. Green and Mr. Craig Enoch, Austin For respondents: Mr. Nelson Mock, Austin Among principal issues in this challenge to regulations promulgated for home-equity lending in Texas are (1) whether deference should be the review standard for agency interpretations when the agencies – the Finance Commission and Credit Union Commission – were given power to interpret the constitutional home-equity provisions; (2) whether the two commissions erred by adopting the Finance Code’s definition of “interest” for interpreting the constitutional provisions; and (3) whether the appeals court erred when it upheld agency rules that allow signing a home-equity loan by power of attorney instead of in specific locations set by the home-equity amendment. The trial court invalidated seven of nine challenged regulations. On review, the court of appeals held the standard of review should be the deference given to state-agency statutory interpretations. The appeals court affirmed the trial court in part and reversed and rendered judgment in part, holding the commissions’ rules defining interest were contrary to the intent and plain meaning of the constitutional home-equity lending provision. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0235 In re State of Texas from Travis County and the Third District Court of Appeals, Austin For relator State of Texas: Ms. Susan Desmarais Bonnen, Austin For real parties in interest: Mr. Stephen I. Adler, Austin The issue is whether the trial court acted within its discretion by splitting a condemnation action into separate actions when the property owners subdivided the original tract after the original condemnation was filed. In this case the state challenged the trial court’s decision to divide compensation claims into eight separate suits. The property owners who held the original parcel subdivided it in part, they claimed, to demonstrate its higher value. Special commissioners assigned to sort from competing valuations split the difference in appraised values, the new owners moved to split the claims from the commissioners’ award, arguing that none was commonly owned and none of the eight tracts bordered another. The trial court granted the motions. The appeals court denied the state’s petition to prevent the split claims. The state contends in part that dividing the claims was improper because subdivision occurred after the condemnation notice involving one tract and one set of owners. But the owners argue that the subdivision occurred before the state actually took the land - the date the state pays for the land - so assessing the value of eight tracts was proper. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

09-0652 State of Texas v. Chris and Helen Petropoulos from Travis County and the Third District Court of Appeals, Austin For petitioner: Susan Desmarais Bonnen, Austin For respondent: John McClish, Austin A principal issue is whether the trial court used the wrong condemnation-compensation test by instructing that damage should be calculated by taking the remainder property’s value from the whole property’s value before its taking. In this case the state appealed the trial court’s judgment that $303,000 compensation was due property owners for one-third of an acre condemned for a highway project of the owners’ 3.5-acre tract. The trial court accepted the state expert’s valuation of the property after taking to be $276,000 and the jury’s valuation finding for the whole tract before its taking to be slightly more than $579,000. The state argues that the property owners had not suffered a compensable loss. The appeals court affirmed the trial court’s judgment. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0002 Samuel T. Jackson v. State Office of Administrative Hearings from Travis County and the Third District Court of Appeals, Austin For petitioner: Samuel T. Jackson, Arlington For respondents: Brenda Loudermilk, Austin The issue is whether the Public Information Act requires disclosure of license-revocation actions in child-support actions. Jackson sued for mandamus relief after the State Office of Administrative Hearings denied his request for all decisions, opinions or orders issued by the hearings agency in child support-enforcement matters in a certain three months. In a letter ruling, the attorney general agreed with the administrative hearings office that Texas Government Code section 552.101, together with Family Code section 231.108, renders the information confidential. The trial court denied Jackson’s summary-judgment motion and granted the agency’s. The appeals court affirmed. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

09-0420 Esperanza Andrade, Secretary of State v. NAACP of Austin, et al. from Travis County and the Third District Court of Appeals, Austin For petitioner: Kristofer S. Monson, Austin For respondents: Tom Herman, Austin In this challenge to the secretary of state’s electronic-voting-machine certification for Travis County’s use, the principal issues are (1) whether the plaintiffs have standing by showing a concrete injury and, if so, (2) whether their allegations of election law and state constitutional violations waive sovereign immunity either under or for injunctive and declaratory relief against a state official acting without authority. In this case the NAACP, representing the voting rights of its Travis County members; a former attorney general candidate; and Travis County voters allege voting-rights violations because they contend the secretary of state certified electronic-voting machines that could not be audited. The trial court ruled all plaintiffs had standing and the court of appeals affirmed, with one dissent. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice Dale Wainwright, Justice Eva Guzman, Justice Debra Lehrmann

(Justice Medina and Justice Willett not sitting) 09-0530 Texas Department of Public Safety v. Cox Texas Newspapers L.P. and Hearst Newspapers L.L.C. from Travis County and the Third District Court of Appeals, Austin For petitioner: David S. Morales, Austin For respondents: William Christian, Austin The principal issues in this dispute over state troopers’ travel vouchers submitted for the governor’s out-of-state trips are (1) whether a common-law exception to the Texas public information law excludes the vouchers’ release, or should, when disclosure allegedly could cause physical harm; (2) whether DPS waived reliance on the Texas Homeland Security Act as an “other law” that would be an exception from the public information law’s disclosure requirement; and, if not, (3) whether the vouchers are collected for preventing, detecting or investigating terrorism or related criminal activity. At least two Texas newspapers sued after DPS, with the attorney general’s backing, refused to disclose individual troopers’ travel vouchers for the governor’s past out-of-state trips. DPS cited safety concerns for the governor and troopers and the attorney general, in an opinion DPS requested, determined the Texas Public Information Act did not require the vouchers’ release. The trial court ruled the vouchers were not confidential and that disclosing them would not pose any imminent physical threat. The court of appeals affirmed, holding that evidence did not demonstrate substantial risk of harm even if a common-law privacy right could be grounded on such risk. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

09-0191 Hyde Park Baptist Church v. Tara Turner and Terry Curtis from Travis County and the Third District Court of Appeals, Austin For petitioner: David M. Pruessner, Dallas For respondents: Laurie Higginbotham, Austin In this case involving a teacher’s intentional injury of a child at a church-run school, principal issues are (1) whether mental-anguish damages were proper against the church when (a) a significant injury arguably was not involved and (b) the church waived those damages by failing to object to how damages were submitted to the jury, by broad form; (2) whether mental-anguish damages were proper against the church when the jury found it negligent but not that it acted with malice; and (3) whether the jury improperly apportioned the church’s fault for the teacher’s criminal conduct. In this case parents sued after a teacher intentionally bumped their 1-year-old boy, knocking him to the ground, causing a head bump. The parents later determined this was not the first such abuse, of their child or others. Jurors awarded $100,000 in future mental-anguish damages and found the church was 80 percent responsible. The court of appeals affirmed. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

09-0330 Liana Leordeanu v. American Protection Insurance Co. from Travis County and the Third District Court of Appeals, Austin For petitioner: Bradley Dean McClellan, Austin For respondent: Jack W. Latson, Austin The issue in this workers-compensation case is whether a traveling sales representative’s car accident injury was in the course and within the scope of her employment. Leordeanu sued American Protection after it denied her benefits claim and after an administrative review upheld the denial. Her injury resulted from a one-car accident as she returned from dinner with a client, intending to stop at a company-provided storage unit before going to her home office nearby. She was driving a car provided and maintained by her company. The trial court ruled her injury was employment-related, but the appeals court reversed, holding that her trip had dual business and personal purposes and rejecting her argument that her injury was covered because she fell under the “continuous coverage” principle of workers-comp law. Leordeanu argues that the appeals court’s holding would preclude coverage for any traveling sales representative headed home on a business trip. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

(Justice Hecht not sitting) 08-1056 TGS-NOPEC Geophysical Co. v. Susan Combs and Greg Abbott from Travis County and the Third District Court of Appeals, Austin For petitioner: James T. McBride, Houston For amicus curiae WesternGeco LLC: Thomas R. Phillips, Austin, and Renn G. Neilson, Dallas For respondents: Kevin D. Van Oort, Austin The principal issues in this franchise tax dispute are (1) whether the company’s income from selling its geophysical and seismic data constitutes receipts from a use of a “license” under Tax Code section 171.103 and (2) whether the comptroller abused its discretion by determining the licenses’ place of “use” by the customers’ mailing or billing addresses. TGS, which collects subsurface geophysical and seismic data worldwide, sued the state comptroller for assessing higher franchise taxes on its gross receipts and charging penalties and interest for underreported and underpaid taxes from its data sales. TGS argues that its gross receipts from the data sales result from selling intangible assets, subject to allocation by a customer’s state of incorporation. But under Section 171.103, as amended in 1998, the comptroller counters, allocated income from a license is to Texas if the license were used in Texas. The comptroller used TGS customers’ mailing or billing addresses to establish where the licenses were used. The trial court ruled for the comptroller, but reversed the penalties and interest. The court of appeals affirmed. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

08-0497 Railroad Commission of Texas v. Texas Citizens for a Safe Future and Clean Water and James G. Popp from Travis County and the Third District Court of Appeals, Austin For petitioner Railroad Commission: Daniel L. Geyser, Austin. For petitioner Pioneer Exploration: David B. Gross, Austin For respondents: Marisa Perales, Austin The issue is whether the Railroad Commission abused its discretion by failing to consider factors other than conservation and water pollution when determining whether an injection-well permit would be in the “public interest” under Texas Water Code section 27.051(b)(1). Popp and the Safe Future and Clean Water group sued the Railroad Commission over an injection-well permit it approved for oil- and gas-well waste without considering plaintiffs’ uncontested public-interest evidence. That evidence purported to show large trucks hauling drilling waste and salt water to the injection well would be hazardous to other vehicles on narrow, winding gravel roads and endanger children and adults who walked on them. Injection wells are regulated by the Texas Environmental Quality Commission, if the waste to be injected does not come from an oil or gas well, and the Railroad Commission, if it does. On appeal from the commission, the trial court affirmed the commission’s permit approval. The court of appeals reversed, holding that the public-interest factor’s scope must be broader than the effect on oil and gas production. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

09-0481 Susan Combs and Greg Abbott v. Texas Entertainment Association Inc. and Karpod Inc. from Travis County and the Third District Court of Appeals, Austin For petitioner: James C. Ho, Austin For respondent: Craig T. Enoch, Austin The issue is whether the First Amendment free-speech clause prohibits the state from collecting the so-called pole tax on each patron at clubs, restaurants or bars serving alcohol with live nude entertainment. In this lawsuit, the trial court declared the $5 tax unconstitutional and permanently enjoined the state comptroller from collecting it. The court of appeals affirmed in a split decision, holding that the tax was a content-based limitation on protected speech. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

08-0958 Presidio Independent School District v. Robert Scott, Commissioner of Education from Travis County and the Third District Court of Appeals, Austin For petitioner: Ken Slavin, El Paso For respondent: Daniel F. Geyser, Austin The principal issue is whether the education commissioner must consent to the school district’s appeal to Travis County district court, under Education Code section 21.307(a), of the commissioner’s reinstatement decision in a disciplinary action. In this case a Presidio school district employee fired by the district won reinstatement when he appealed his termination to the commissioner. With the employee’s consent, the Presidio district sought review of the commissioner’s decision in Travis County district court under section 21.307(a), which provides for review in Travis County if “all parties” consent. In a plea to the jurisdiction, the commissioner argued that his lack of consent robbed the district court of jurisdiction to hear the appeal. The district court denied the commissioner’s plea and the court of appeals reversed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

09-0100 Travis Central Appraisal District v. Diane Lee Norman from Travis County and the Third District Court of Appeals, Austin For petitioner: Jennifer Archimbaud Powell, Austin For respondent: R. Scott Clark, Austin The principal issues are (1) whether the Labor Code provision interpreted to allow a public employee the right to sue on a workers-compensation retaliation claim should be re-examined or limited and (2) whether a public employee alleging retaliatory discharge in a workers-compensation dispute must exhaust administrative remedies before suing. The appraisal district argues that City of LaPorte v. Barfield, 898 S.W.2d 288 (Tex. 1995), holding that Texas Labor Code chapter 451 waives immunity for retaliatory discharge actions against political subdivisions, should be overturned because chapter 451 does not clearly and unambiguously waive sovereign immunity. And Barfield does not apply, the district contends, because Barfield addresses immunity from liability and not from suit, as this case. The trial court denied the appraisal district’s jurisdictional plea. The court of appeals affirmed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

08-0523 Texas Lottery Commission v. First State Bank of DeQueen, et al. from Travis County and the Third District Court of Appeals, Austin For petitioner: James C. Ho, Austin For respondents: Jeffrey S. Boyd, Austin The issue is whether the Uniform Commercial Code (UCC 9.406(f)) makes ineffective the Texas Lottery Act’s prohibition on a winner’s assigning his final two annual payments. In this case Irvan, who won $9 million in the lottery in 1995, assigned all but the last two payments of his prize after the Legislature changed the lottery law in 1999. That amendment allows assignment of all annual payments but the last two. Then in 2006 he assigned the last two payments to pay a bank debt, for which he and the bank got approval from an Arkansas court. When the lottery commission refused to recognize the Arkansas court order, the bank sued in Texas to declare the UCC, which allows assignments, to render the lottery act restriction ineffective. First State Bank won a partial summary judgment, which the appeals courts affirmed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Harriet O'Neill

08-0727 Texas Industrial Energy Consumers v. CenterPoint Energy Houston Electric LLC and Public Utility Commission of Texas from Travis County and the Third District Court of Appeals, Austin For petitioner: Lino Mendiola and Jonathan Day, Austin For respondent CenterPoint: Ron Moss, Austin For respondent Public Utility Commission: Brian A. Prestwood, Austin In this electric-deregulation appeal the principal issues are (1) whether state utility commissioners had authority under the Public Utility Regulation Act to award more than 11 percent interest over 14 years on so-called competition transmission charges used to recover stranded costs from consumers and (2) whether the Public Utility Commission exceeded its authority by allowing a utility to pass along to consumers costs to assess its market value after deregulation. Central to the first issue is whether CenterPoint Energy Inc. v. Public Utility Commission (Tex. 2004) invalidated in its entirety the statutory provision allowing interest to be recovered on the uncollected competition transmission charges. As to the second issue, the PUC allowed the pass-through of valuation costs despite statutory language that such costs should be borne by the 'transferee utility." The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Harriet O'Neill

08-0421 State of Texas v. Public Utility Commission of Texas from Travis County and the Third District Court of Appeals, Austin For petitioners: Jonathan Day, Austin, and Alton J. Hall Jr., Houston For petitioners CenterPoint and Texas Genco: Thomas R. Phillips, Gregory S. Coleman, Austin For respondent: Elizabeth Sterling, Austin One principal issue in this challenge under the Public Utility Regulation Act is whether state utility commissioners properly rejected the "stranded costs" calculation for a power-generating company spun off from the parent utility. In this case CenterPoint, a Houston-based power company, established stranded costs - the difference between market value of the utilities' assets and their book value - based in part on stock in the new generating company it transferred to its own shareholders. State utility commissioners rejected the companies' partial-stock valuation method because the stock was not sold in a public offering, as the commission contends the electricity-deregulation law required. The utilities argue that market value could be established by share prices on stock that later sold. The state agrees that the partial-stock method failed to meet statutory requirements, but maintains the utility commission modified what the statute required to calculate the utilities' stranded costs. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Harriet O'Neill

(Justice Hecht not sitting) 08-0172 Texas Comptroller of Public Accounts v. Attorney General of Texas and The Dallas Morning News from Travis County and the Third District Court of Appeal, Austin For petitioner: Jack Hohengarten, Austin For cross-petitioner/respondent Dallas News: Paul C. Watler, Dallas For respondent Attorney General of Texas: Brenda K. Loudermilk, Austin The issues in this open-records challenge are (1) whether common-law privacy exempts state employees’ birth dates from disclosure under the Texas Public Information Act and (2) whether the newspaper, as intervenor, is entitled to attorneys fees under the act or under the Uniform Declaratory Judgment Act. In this case the comptroller sued the attorney general after it ruled that birth dates must be disclosed under the Public Information Act. The trial court granted the attorney general’s summary-judgment motion and the court of appeals affirmed. As petitioner, the comptroller argues that the information should be exempt from the public-records law based on the privacy tort for intrusion upon seclusion. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-1034 State of Texas v. George Lueck from Travis County and the Third District Court of Appeals, Austin For petitioners: Ryan Clinton, Dallas For respondent: Gregory C. Douglass, Austin The issues in this Whistleblower Act case are (1) whether Lueck, a Texas Transportation Department employee fired for questioning an outside vendor’s contract termination, properly stated a claim under the act to confer jurisdiction on the trial court and (2) whether, if so, he properly reported violation of a state or federal law to an appropriate law-enforcement authority. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0931 City of Dallas v. Greg Abbott, Attorney General of Texas from Travis County and the Seventh District Court of Appeals, Amarillo For petitioner: James B. Pinson, Dallas For respondent: James C. Ho, Austin The Supreme Court will hear arguments on whether delay for records clarification postpones 10-day deadline for city to seek public-information ruling by attorney general. The issues are (1) whether the Public Information Act’s 10-day deadline for a government entity to seek an attorney general’s opinion on records disclosure is postponed while the city awaits clarification on the records request and (2) whether the city can be compelled to disclose privileged attorney-client information if the request for the attorney general’s opinion was not submitted by the statutory deadline. In this case the city got two requests for records, one that it sought to clarify and the other resulting from that clarification request. Nine days after the second request, the city asked the attorney general for an opinion on whether certain requested information was covered by the attorney-client privilege and not subject to disclosure. When the attorney general answered that the request included privileged information that had to be disclosed because the city missed the deadline, the city sued the attorney general. The trial court ruled for the attorney general and the court of appeals affirmed, reasoning in part that city did not show a compelling reason for withholding the records. The Court will hear three arguments beginning at 9 a.m. in the Hillcrest Classroom in the Underwood Law Library at Southern Methodist University‘s Dedman School of Law in Dallas. Each side in each case will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

05-0541 First American Title Insurance Co., et al. v. Comptroller of Public Accounts, et al. from Travis County and the Third District Court of Appeals, Austin For petitioners: Steven Reed, Washington, D.C. For respondents: Christine Monzingo, Austin The principal issue is whether the comptroller’s interpretation of Texas’ “retaliatory” tax statute for premiums paid by out-of-state title-insurance companies violates federal and state equal-protection guaranties. Under the comptroller’s recent interpretation of the law – which allows the state to tax at a rate equal to another state’s higher tax on Texas title-insurance companies doing business there – Texas assesses the retaliatory rate based on how in-state insurers and agents divide the proceeds from title-insurance premiums. In Texas, by state law, insurers get 15 percent of the premiums paid and agents take 85 percent. Texas assumes insurers and agents divide the premium tax burden by the same ratio – 15 percent of the tax paid by the company, 85 percent by the agent, even if agents and insurers decide differently. The two out-of-state title insurers challenging this assessment argue that Texas charged them a retaliatory tax equal to 85 percent of the premium rate because their home states did not deem the division of the tax burden as Texas does. The companies argue in their challenge that the comptroller’s assessment actually leads to Texas charging a retaliatory tax when the basis for one – higher premium tax rates in another state – may not exist and, in any case, would be higher than the home states’. The trial court held for the comptroller and the court of appeals affirmed.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-0502 Jan N. Ogletree, M.D., and Heart Hospital of Austin v. Nancy Kay Matthews and Luann Matthews from Travis County and the Third District Court of Appeals, Austin For petitioners: TBA For respondents: Charles J. Young, Austin Principal issues in this medical-malpractice action are whether, under House Bill 4 amendments, (1) interlocutory appeal is available to challenge the trial court’s decision to deny a dismissal motion based on an expert report’s deficiency when the court also granted an extension to cure it; (2) whether those deficiencies can be cured by a report from a new expert; and (3) whether a defendant – the hospital in this case – waives a challenge to an expert report by not objecting to omission of a report addressing the required causation element. In this case the deficient expert report bearing on a physician’s alleged negligence noted that another expert was needed to support the malpractice claim. Experts assessing the hospital’s nursing care were nurses, who under the malpractice statute cannot offer an opinion that links negligence to the cause of death or injury. The hospital did not object to the expert reports until it moved to dismiss the case. The trial court denied the physician’s and the hospital’s dismissal motions, granted an extension to the cure the report on the physician’s care and held the hospital waived its objection to reports on nursing care by objecting too late. The court of appeals affirmed.