Free Speech, Due Process and Trial by Jury
Each term, watchers of the Texas Supreme Court are likely to see the court grant review in a handful of cases interpreting oil and gas leases, or cases requiring them to delineate what constitutes a medical malpractice claim. But this term, the court has taken an interest in something slightly different: three cases involving police crashes and the immunity that typically shields officers from related litigation.
Six Texas Supreme Court justices peppered three lawyers with about two-dozen questions during an hour of oral argument Tuesday morning in an effort to determine whether the state’s Public Utility Commission was within its power to manually set electric rates at $9,000 per megawatt-hour during the four days of Winter Storm Uri in 2021 or if a massive, multibillion-dollar repricing needs to take place.
“The question before this court is a narrow, legal one: Does the plain text of PURA authorize the PUC to order ERCOT to restore competitive scarcity pricing signals to the electricity market and ensure the reliability of the electric grid?” Macey Reasoner Stokes, an appellate partner at Baker Botts in Houston who represents Calpine and Talen Energy, told the state’s highest court. “We submit the answer is a resounding yes.” Lawyers for Luminant disagreed. The Texas Lawbook has the details.
After Texas Disposal System successfully persuaded the Travis Appraisal Review Board to lower the valuation of its landfill by more than 80 percent, the Travis Central Appraisal District sought a district court’s review. TDS successfully argued that the trial court did not have subject matter jurisdiction over the appraisal district’s claim that the property was below market value because it had brought only an unequal-appraisal protest. SCOTX will review a court of appeals decision to allow the appraisal district to proceed with its case. Business taxpayers are weighing in as the dispute presents major questions for the handling of appraisal protests.
More than a dozen of the largest electric power companies operating in Texas will face off with their state regulator Tuesday at the Texas Supreme Court. At stake are billions of dollars paid and received under emergency circumstances during Winter Storm Uri three years ago. The energy companies, led by Dallas-based Luminant and Houston-headquartered Pattern Energy, claim that the Texas Public Utility Commission illegally and unnecessarily increased the rates to buy and sell electricity for the four days that unprecedented cold temperatures and freezing rain engulfed the state in February 2021 — rate increases that caused some companies to lose billions of dollars while providing other energy companies billions of dollars in sudden profits.
Judge Patrick E. Higginbotham authored the panel opinion and a concurrence, saying the court was bound to follow its own precedent in this case while also calling on the Fifth Circuit or the U.S. Supreme Court to “revisit the doctrine” that is “deployed daily across this country” in police shooting cases. The case involves the shooting death of Ashtian Barnes, who was stopped for having outstanding toll violations — a non-arrestable offense — and was killed by Officer Roberto Felix Jr. when he attempted to drive away.
Laredo officials who arrested a citizen-journalist in 2017 for asking for information deemed nonpublic cannot be sued for violating the First Amendment rights of the reporter because the officers have qualified immunity because they believed they were following a Texas law — even though the law had never been successfully used in a prosecution and has been declared unconstitutional, a hotly divided U.S. Court of Appeals for the Fifth Circuit ruled late Tuesday. The en banc court of the Fifth Circuit ruled 9-7 that police and prosecutors should not be required to know whether a state law is constitutional or not when enforcing laws.
But seven Fifth Circuit judges in four different dissents blasted the majority’s decision because it turns routine questioning by news reporters into probable cause for committing criminal activity and shows how screwed up the Fifth Circuit is when it comes to granting immunity to government officials who abuse their power.
(Editor's Note: A previous version of this article states that the en banc vote was 10-7 instead of 9-7. The Lawbook regrets the error.)
The U.S. Supreme Court heard oral arguments this week in a case where a group of about 75 Texas landowners are fighting to revive their lawsuit against the state seeking compensation for the repeated flooding of their property that they say is the result of a public highway project. The case came to the high court after a Fifth Circuit panel sided with the state and the court declined to rehear the case en banc over the dissent of five judges. The question the justices are tasked with answering in this case is: “May a person whose property is taken without compensation seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action?”
The decision is a high-profile win for Prather, who represents several bookstores and publishers who challenged the law. The case was Prather’s first appearance before the New Orleans-based appeals court.
The Texas Lawbook profiled Prather, who leads Haynes Boone’s media law practice group, in an in-depth article last week. In the article, Prather discussed the bookstore law case and other First Amendment matters that she is championing.
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