The value of concurrences
Justices tell us what issues they're looking to address in future cases.
The end of the year rush put me a bit behind on posting, but a lot of interesting things have happened since my last post. Today’s post is a bit of an overview and some advice sparked by several end-of-year Supreme Court decisions. As you likely know, Chief Justice Hecht retired at the end of last year after 40 years on the bench (36 on the Supreme Court). The Governor appointed Justice Blacklock1 to fill the role of Chief Justice and Justice Sullivan to fill the vacant seat.
Likely spurred by Chief Justice Hecht’s retirement, the Court issued orders on Tuesday, December 31—an unusual day for the Court. The Court normally issues orders and opinions (other than emergencies) on Fridays. But, as the last day of the year, it was the Chief’s last day to sign on to opinions. The Court sent out a batch of fifteen cases, several of which had multiple opinions. It felt a bit like the end of the term. For years, Chief Justice Hecht has ensured that all opinions were out by the time the Court recessed for the summer. So the Court would release a spate of cases on the last orders list. Today’s post focuses on separate writings, particularly concurring opinions and their value to clients (and lawyers), including two from that final orders list of 2024.
Getting a feel for the Justices
When you read the orders lists, don’t ignore concurrences. Clerking (or being a staff attorney) provides incredible insight into a court. There isn’t anything like it. The experience, particularly for those who have the privilege to work at SCOTX where staff attend conference, is unmatched. So I encourage any law student reading this to clerk, especially at the high court in the state where you want to practice. And I encourage clerks to pay careful attention during your clerkships and absorb all that you can. Don’t limit yourself to the cases you’re assigned to. You can learn a lot that will help you in practice down the road. But there’s also a good opportunity for those in practice to learn key insights into the Court—read all the opinions. In Texas, you can get several hours of CLE for it under MCLE Regulation 2.2. My advice seems dreadfully obvious, but it’s worth reiterating in light of some of the Texas Supreme Court’s recent decisions (and changes in the Court). We all get busy. But concurrences have significant value for formulating litigation strategy. So peruse the orders lists and read all that you can. Subscribe and keep an eye on this site. You’ll have my thoughts on significant cases (including concurrences) delivered to your inbox. And hire an appellate lawyer who lives and breathes these courts. They’ll have good insight into what is going on.
Telegraphing their interest
Separate writings provide a wealth of information about the Justices. Much like their colleagues at the U.S. Supreme Court, the Justices sometimes share their jurisprudential interests and peccadilloes in short concurrences and dissents from denial of review and mandamus. Sometimes these writings are directed at their colleagues in the judiciary. In Dickson v. Am. Gen. Life Ins. Co., Justice Young reminded his colleagues, as he had in the prior term, “that a court must not reach the merits of a dispute when its jurisdiction is in doubt without first determining whether it has jurisdiction. See Tex. S. Univ. v. Young, 682 S.W.3d 886, 887 (Tex. 2023) (Young, J.) (concurring in the denial of petitions for review and for writ of mandamus).” 698 S.W.3d 234, 241 (Tex. 2024) As he said, “[e]very court is obliged to determine its’ jurisdiction any time it is in doubt, even when the parties have not challenged it. Other times the writings are directed to practicing lawyers, including the litigants. Id. In In re State, Justice Blacklock, joined by Chief Justice Hecht and Justice Young, expressed dismay at the State for its failure to take a position on a key issue to deciding the State’s mandamus petition—whether the State Fair of Texas, a private entity, has the legal authority to exclude patrons carrying handguns from the Fair. Their concurring opinions, often much lengthier than concurrences in the denial of reivew/mandamus, can provide even more insight.
Many concurring opinions, unlike their brief concurrences in the denial of review, are about reaching the same result via a different path. For example, in Fossil Group v. Harris, Justice Blacklock wrote a concurrence where he noted that “[t]he Court’s opinion leans heavily on the federal Title VII sexual-harassment cases to decide a case brought under Chapter 21 of the Texas Labor Code.” 691 S.W.3d 874, 887. He notes that the Court could have resolved it on other grounds noted in Justice Young’s concurrence. Id. Others are about providing clarity on an issue a judge thinks is unclear in the majority opinion, either because it wasn’t discussed sufficiently or because the judge is expressing reservations that they take the majority to include. For example, Justice Busby’s concurrence in City of Houston v. Rodriguez provides some clarity on the law relating to high-speed pursuits. 2024 WL 5249666, at *9 (Tex. Dec. 31, 2024). But still other times, Justices write concurrences to share their views on problems with an area of law and to invite future cases to address those problems. There is gold in these opinions.
Justice Young’s concurrence in the denial of Surfvive v. City of South Padre Island is perhaps the perfect example of my points above. It is a concurrence in the denial of review quoting a concurrence he had written on an issue of importance to him and to the Court. In his writing, Justice Young highlights the importance of developing the Court’s due course of law jurisprudence: “As I have written previously, the scope of [the due course of law] provision is a matter of monumental importance to Texans and something that must be determined only after careful thought and consideration in cases that unquestionably implicate it.” 678 S.W.3d 727, 729–30 (Tex. 2023) (citing Tex. Dep’t of State Health Servs. v. Crown Distrib. LLC, 647 S.W.3d 648, 664 (Tex. 2022) (Young, J., concurring)). Litigants often treat the due course clause as identical to the U.S. Constitution’s due process clause. And that may not make a difference in any one case. But, as Justice Young has written, the language is not the same. And, as his concurrence in Crown Distributing notes, he is looking for the opportunity to develop that jurisprudence.
In the end, the purpose of my separate writing today is to encourage careful consideration of all the questions and scenarios that I have discussed and more. The stakes are too high for us to continue on the path of least resistance. We cannot build on foundations that are themselves merely assumptions. I thus echo Judge Oldham, who invites an "iterative" and "rigorous" process by scholars, lawyers, judges, and others so that, by the time a "constitutional question reaches [this] court" such that we must make a hard decision, "the range of possible meanings carried by [the due-course] clause is as narrowly circumscribed as" the evidence allows. Andrew S. Oldham, On Inkblots and Truffles, 135 Harv. L. Rev. F. 154, 172 (2022).
Crown Distributing, 647 S.W.3d at 681.
These writings are invaluable. It takes 3 votes for the Court to request briefs on the merits. Knowing that 1, 2, or even 3 justices are interested in a particular issue can help at the petition stage. And you may be able to frame your briefing, if requested, in a way that gets you to the four votes needed for the Court to grant the case for argument.
Overall thoughts
Two concurrences on the December 31 orders list shed light on Justices’ interests. But before we get to those, it’s worth noting that these concurrences are not alone. Justices Young, perhaps the Court’s most prolific separate writer, and Justice Blacklock periodically filed similarly themed concurrences over the last several terms. With Justice Blacklock now at the Court’s helm, it may be worth giving these writings a little extra attention.
Here are just a sample of these concurrences inviting reconsideration of settled law:
Elephant Insurance v. Kenyon, 644 S.W.3d 137 (Tex. 2022) —
The issue of first impression in this wrongful-death and survival action is whether the automobile insurer owed the motorist and her husband a duty to process a single-vehicle accident claim without requesting that the insured take photographs or to issue a safety warning along with any such request. Balancing the factors relevant to ‘determining the existence, scope, and elements of legal duties,’ we agree with the trial court that the insurer bore no such duty. We therefore reverse the court of appeals’ judgment and render judgment for the insurer.
644 S.W.3d at 140.
Justice Young’s Concurrence
Justice Young, joined by Justice Blacklock, encouraged revisiting the Court’s standard for creating a new tort duty.
The Court's clear and well-written opinion faithfully and accurately applies our precedents regarding the judiciary's role in creating new duties under the tort of negligence. No party has asked us to do anything beyond applying those precedents, so I gladly join both the Court's opinion and its judgment.
I write separately to suggest that, in a proper case, we should reconsider those precedents. Imposing a legal duty is no small thing, given the massive consequences that can flow from doing so or refusing to do so.
Id. at 155.
Justice Young closed his concurrence saying,
No party in this case has requested that we reconsider the judicial role in expounding new duties, and I agree that the Court’s opinion reaches the correct result under our precedents. In an appropriate case, however, I would welcome the Court's reexamination of how we approach the question of new tort duties, at least in highly regulated and very familiar contexts.
Id. at 160 (emphasis added). This particular issue has come up multiple times, and Justice Young has taken the opportunity to reiterate his view.
In Houston Area Safety Council v. Mendez, 671 S.W.3d 580 (Tex. 2023), Justice Young, again joined by Justice Blacklock, “again suggest[ed] that our jurisprudence may benefit from a different approach when we respond to requests to enlarge the common law of torts.” Id. at 591.
Collin Creek Assisted Living v. Faber, 671 S.W.3d 879 (Tex. 2023) —
This case presents an often-litigated issue: whether a cause of action arising in the health care context is a ‘health care liability claim’ under the Texas Medical Liability Act, which requires a plaintiff to submit an early expert report. Here, a resident of an assisted living facility was seated backward on a rolling walker that a facility employee was pushing along a sidewalk by the parking lot. When the walker rolled over a crack in the sidewalk, it tipped, the two fell, and a week later, the resident died. The resident's daughter sued the facility and later amended her petition so it alleged only a cause of action for premises liability. The facility moved to dismiss for failure to file a timely expert report.
We hold that the cause of action is a health care liability claim because it meets the applicable factors we articulated in Ross v. St. Luke's Episcopal Hospital, 462 S.W.3d 496 (Tex. 2015). Because the plaintiff failed to serve a timely expert report, her claim must be dismissed. We reverse the court of appeals' judgment, render judgment dismissing the claim, and remand the case to the trial court for an award of attorney's fees, as required.
Id. at 883.
Justice Young’s Concurrence
Justice Young, joined by Justice Blacklock, encouraged reconsidering the framework for determining what qualifies as a healthcare liability claim.
If the legislature chooses to retain the current statutory definition, I hope that a future case will give us the opportunity to reconsider our framework for determining when a claim qualifies as an HCLC. With these comments, I join the Court's opinion and its judgment.
Id. at 897.
And there are more of these concurrences out there. Justice Young wrote in City of League City v. Jimmy Changas, a case on governmental immunity, that “No party has asked us to reassess our prior decisions . . .. I thus write separately because it is not clear to me that we are even asking the right questions in this breach-of-contract context. . . . Instead, my goal is to . . . suggest that, in an appropriate future case, it is not too late for us to systematically reconsider our precedents.” 670 S.W.3d 494, 507 (Tex. 2023).
The December 2024 Orders
Among the cases on the December 31 orders were Henry S. Miller Comm. Co. v. Newsom, Terry & Newsom, LLP, 2024 WL 5249801 (Tex. Dec. 31, 2024) and Tex. Tech Univ. Health Scis.-El Paso v. Flores, 2024 WL 5249446 (Tex. Dec. 31, 2024). The important lesson from these cases is that there is gold in the Justice’s concurrences for lawyers trying to decide how to approach their cases, whether to file a petition for review, and what to focus on in their briefing through the COA and up to SCOTX.
In Henry S. Miller, Justice Young, joined by Justice Bland, invited a reexamination of the standard of proof in legal malpractice cases. In TTUHS, Justice Blacklock, joined by Justice Young, expressed reservations about applying the McDonell Douglas burden shifting in employment-discrimination cases brought under Texas law. He noted that “future parties are welcome” to invite reconsideration of that framework. And these aren’t the only cases they have done this in over the past few terms.
Henry S. Miller’s Assignment
Henry S. Miller (HSM), a commercial real estate broker, sued its lawyer after a deal gone bad ended in a multi-million dollar judgment against the company. During the pendency of the malpractice action, one of HSM’s creditors filed an involuntary bankruptcy petition. The reorganization plan provided that HSM “in its sole discretion, may prosecute, settle, or dismiss” its malpractice and insurance claims, and “all proceeds therefrom shall be [its] property.” But the plan also provided that the first $5 million in recovery would go to creditor and that HSM could not settle for less than $5 million without the creditor’s consent. HSM had “sole discretion to settle” for an amount over $5 million, and the creditor would receive 70% of up to $13 million and 30% above that. The plan required the creditor to support HSM “toward...recovery” in the case, “recognizing that higher recoveries will enhance and benefit” the bankruptcy estate. 2024 WL 5249801, at *3 (Tex. Dec. 31, 2024). Put simply, while HSM retained control over the litigation, the creditor was assigned the proceeds and a limited role in resolving the case.
The question before the Court was whether this was an unlawful assignment. The Texas Supreme Court had previously barred assignment of malpractice claims.
We cited three such grounds in barring assignments of legal malpractice actions in Zuniga v. Groce, Locke & Hebdon.2 One was that “assignability would make possible the commercial marketing of legal malpractice causes of action by strangers, which would demean the legal profession.” Another was that the possibility of assignment could “drive a wedge between [an] attorney and his client [making it] increasingly risky to represent [an] underinsured, judgment-proof [client]” whose opponent would have a financial incentive to join with the client in suing the lawyer to obtain some recovery. More generally, of continuing concern to the justice system, “[i]n each assigned malpractice case, there would be a demeaning reversal of roles. The two litigants would have to take positions diametrically opposed to their positions during the underlying litigation.” The plaintiff/assignee would have to argue that he prevailed in the underlying case not because he had the stronger position, as he had there asserted, but only because of the lawyer's negligent representation of his client. And the lawyer would argue that his client lost only because he had the weaker position, contrary to his advocacy on the client's behalf
Henry S. Miller, 2024 WL 5249801, at *6 (emphasis added) (citations omitted). The Court noted that this last concern is present, even where the claim is not completely assigned, but where the “Opponent, as Client's judgment creditor from the underlying case, … seek[s]some control or influence over the malpractice claim to benefit from Client's recovery against Lawyer, and change positions to achieve that objective just as it would if the malpractice claim were its own by assignment.” Id. at *1. Ultimately, the Court concluded that the assignment of the malpractice proceeds was not unlawful because HSM retained significant control over the litigation and its creditor’s control over certain settlements did not come into play here. But, the more relevant discussion for this post, comes in Justice Young’s concurrence.
Justice Young’s thoughts on the malpractice standard
Justice Young noted that the current standard for a malpractice claim “allows parties and lawyers to adduce summary opinion evidence from distorted positions to predict what a jury would have decided had a case been tried differently.” Id. at * . That standard seems to trouble him. “The parties have not argued this significant issue, and the Court rightly does not address it. Nor do I prematurely endorse elevating the standard of proof—if the issue is put to us directly, perhaps I will be persuaded by the parties and interested amici that the idea is mistaken. The preponderance standard has its virtues too, after all, including giving genuinely wronged parties the necessary leeway to vindicate their interests against bad lawyering.” Id. at * . His “goal [was] modest: to note that it may be worthwhile to examine the standard of proof in a future case, especially if petitioner's warnings about the consequences of not barring this case from proceeding prove prescient.” Id.
Flores’s Employment Discrimination Claim
In this case, the Supreme Court considered whether a state university’s immunity from suit was waived with respect to an employee’s age-discrimination claim. The employee applied to be the university president’s chief of staff, and a significantly younger candidate was chosen for the position. The employee alleged that she was not selected because of her age, in violation of Chapter 21 of the Texas Labor Code, while the university maintains the president simply hired the more qualified candidate. The university argued that the employee had provided no evidence of pretext and that Chapter 21 does not waive the university’s immunity from suit. The Court ultimately agreed and reversed the court of appeals and rendered, dismissing the case based on the university’s plea to the jurisdiction with respect to the employee's age-discrimination claim. With the theme of the post, Justice Blacklock’s concurrence has some gold in it.
Justice Blacklock’s thoughts on McDonnell Douglas and the Texas Labor Code
The plaintiff brought the case under the Texas Labor Code. For years, the Court has treated that law the same way the federal government treats employment discrimination, using the McDonnell Douglas burden-shifting framework.
Because the plaintiff lacks evidence of discrimination, she seeks to generate an “inference” of discrimination by showing that the President's innocent explanation—that he simply thought the successful candidate was a better fit for the job—is just a “pretext” for age discrimination against the plaintiff. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In McDonnell Douglas, the U.S. Supreme Court devised the following three-step framework: A plaintiff who lacks direct evidence of employment discrimination may nevertheless demonstrate it by showing (1) that the plaintiff was qualified for the position but was treated less favorably than someone outside the protected class, which (2) shifts the burden to the defendant to show a legitimate, non-discriminatory reason for its employment decision, which (3) shifts the burden back to the plaintiff to show that the proffered reason for the decision is a “pretext” for discrimination. Id. at 802–04, 93 S.Ct. 1817. A plaintiff who succeeds at step three has mustered enough evidence of discrimination to survive summary judgment—at least according to this framework. See id.
But Justice Blacklock, joined by Justice Young, believes that standard is outdated and has no grounding in the text of the Texas Labor Code.
McDonnell Douglas’s relaxed evidentiary standard—and the mountains of caselaw and oceans of bureaucratic detritus derived from it—originated with the concern, less than a decade after the end of Jim Crow, that racial discrimination in employment would be both frequent and easy to get away with if plaintiffs were required to prove with direct evidence that the employer's unfavorable decision was made “because of” the plaintiff's race. But what sense does it make to apply caselaw driven by 1970s-era concerns about race relations to an age discrimination case in 2024? This is not 1973.
At the end of his concurrence, Justice Blacklock notes that “[t]hese parties do not suggest we have any alternative, although future parties are welcome to do so.” Future litigants involved in an employment-discrimination case likely have sympathetic ears in now-Chief Justice Blacklock and Justice Young for changing the law and abandoning McDonnell Douglas under the Texas Labor Code.
Concluding Thoughts
Separate writings by the individual Justices are a great way to get a feel for the Court and those Justices. Regardless of the reason they write, they’re a good insight into the Justices’ thinking and interests. And, over time, you’ll start to see threads running through them. As in Surfvive, themes from one writing (a concurrence), will often appear in subsequent writings (a concurrence in the denial of the petition for review).3 So don’t forget to check the orders on Fridays, check this site for more insights, and hire a friendly appellate lawyer to help you in your next case.
This post refers to “Justice” Blacklock to denote the concurring opinions he wrote when he occupied “Place 2” as a Justice on the Court. As I note above, his views may have more influence on the Court now that he is the Chief Justice.
Zuniga is an interesting case for procedural nerds. The decision came out of the San Antonio Court of Appeals. But it is one of the now-very rare cases where the Supreme Court refused the petition for review. That action, different from the ordinary denial of a petition, occurs when the Court decides that the judgment and its reasoning are correct in an important case. The opinion then, functionally, becomes one of the Supreme Court’s and has the same precedential value as one written by the Court. That is why, if you read Henry S. Miller, you will notice C.J. Hecht refer to “our” decision in Zuniga, despite the citation being to a San Antonio Court of Appeals case.
In October, I heard some surprise at Justice Young’s concurrence in the grant of an emergency stay in the Roberson case (In re House of Representatives, 24-0884). But anyone who had read his concurrence in the denial of Dickson, issued just one month earlier, would understand his views on emergency relief to preserve jurisdiction. In Dickson, Justice Young wrote
Difficulties most frequently arise in truly exigent situations where judicial intervention is urgent. When, for instance, relief is necessary to prevent a matter from becoming moot (e.g., enjoining the demolition of a building), a court of equity may issue temporary relief to preserve its jurisdiction over the subject matter. See, e.g., City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973, 976 (1931). This action is jurisdictionally sound because it also preserves a court's jurisdiction to decide its own jurisdiction—which should be done as soon as possible to avoid the trap of resolving merits questions when jurisdiction is lacking.
698 S.W.3d at 240. His concurrence in the stay in In re House noted the need to preserve jurisdiction to answer the difficult question of the extent of the judiciary’s jurisdiction in the matter.