5 Texas Supreme Court Cases to Watch This Term Share Us On: By

5 Texas Supreme Court Cases To Watch This Term Share us on: By Jess Davis Law360, Dallas (August 14, 2015, 4:32 PM ET) -- The Texas Supreme Court is starting off its 2015 term with a bang, tackling cases that could shape local governments' ability to regulate pollution, set a new standard for disqualification of law firms and clarify when disputes that began in Mexico can be tried in Texas courts. Mexican pop star Gloria Trevi is at the center of a salacious defamation case before the Texas Supreme Court this term. (Credit: AP) On Sept. 1, the high court will hear its first oral argument after a six-month lull, starting off its new term with a case questioning the constitutionality of the Texas school funding system. Close on the heels of the school funding case will come arguments over the disqualification of the former Bickel & Brewer LLP firm in a contract dispute with a Chilean mining company, a groundbreaking state-versus-local preemption argument and a 22-year-old fight over insurance coverage for a man killed in an oil field explosion. The court's docket also includes a salacious defamation case brought by a Mexican pop star that may get booted from Texas court and a personal injury claim against Occidental Chemical Corp. over an incident that happened years after Occidental sold the plant. “The Texas Supreme Court has chosen a really diverse group of cases," appellate solo practitioner Chad Ruback said. "I can’t look at the oral argument list and see that they’re focusing on any one issue more than others. The court is not taking a disproportionately high number of personal injury or oil and gas cases. It looks to me they’re purposefully trying to take up a diverse docket." Here are five upcoming arguments Texas lawyers should be watching. BCCA Appeal Group Inc. v. Houston A broad coalition of energy and industrial companies, BCCA Appeal Group Inc., is aiming to knock out a Houston ordinance that requires pollution-emitting entities to register with the city and pay a fee. BCCA contends the state’s comprehensive scheme of air regulations, adopted by the Texas Commission on Environmental Quality and codified under the Texas Clean Air Act, bars local governments from imposing further restrictions on businesses. The argument — that Houston overstepped its power as a home-rule city by crossing into an area already governed by statewide regulations — is part of a recent trend of industry pressure in favor of statewide regulation instead of a patchwork of differing local rules. A similar push for state uniformity in lieu of local control was behind H.B. 40 to undo the city of Denton's fracking ban, and the argument against local regulation has been raised by payday lenders in a series of attempts to block city ordinances. BCCA is raising a novel argument that state regulation can impliedly bar local governments from enacting tougher rules. “I think we’re seeing a lot of a trend in terms of taking away local control,” Mike Northrup of Cowles & Thompson PC said. “There’s a belief we’ll see more and more of that, so cities have less and less power to regulate their localities. This case has the potential to take that away under state preemption.” Richard Smith of Lynn Tillotson Pinker & Cox LLP said up to this point, state statutes must explicitly usurp a home-rule city’s power to regulate a given area, or the city can legislate as freely as it sees fit. The high court might probe “just how explicit that preemption has to be to work under Texas law," he said, and wind up somewhere closer to the implied preemption that’s a part of federal-versus-state jurisprudence. “It’s a big deal not only just for this Houston ordinance, but it potentially could affect home-rule cities all over the state,” Smith said. Oral arguments are set for Sept. 2. The BCCA is represented by Evan Young, Macey Reasoner Stokes and Matthew L. Kuryla of Baker Botts LLP. Houston is represented by City Attorney Donna L. Edmundson, David M. Feldman, Lynette K. Fons, Judith L. Ramsey and Mary E. Stevenson. The case is BCCA Appeal Group Inc. v. City of Houston, Texas, case number 13-0768, in the Supreme Court of Texas. In re: RSR Corp. et al. In this case, Brewer Attorneys & Counselors — formerly Bickel & Brewer LLP — argues it should be reinstated as counsel for client RSR Corp. in a $60 million contract dispute with Chilean mining company Inppamet SA. A Dallas judge kicked the firm off the case in 2012 after Inppamet accused it of funneling money to Inppamet's former finance manager — whom Inppamet says was a nonattorney member of RSR's litigation team — to obtain confidential information that gave the firm a leg up in the litigation. RSR has argued it didn’t break any disciplinary rules by conducting what it says was informal discovery with a former employee of Inppamet and said it would suffer “immense” financial and strategic harm if the Brewer firm’s disqualification is upheld after pouring more than 32,000 hours into preparing the case for trial. “The court doesn’t rule on significant issues involving attorney ethics and behavior every day,” Jon Smaby, executive director of the Texas Center for Legal Ethics, said. “So anything they do take up is bound to be a significant decision.” Smaby said the court's holding may not have broad applicability to other disqualification disputes given the unique facts of the RSR case, but it could clarify how deeply involved a non lawyer employee of one party must be in the litigation to make disqualification necessary if that employee provides assistance to the opposing party. He said the case involves balancing the principle that it’s unfair for a party to hire counsel and devise a legal strategy and have the other side get the benefit of it with the amount of disruption disqualifying a law firm close to trial can cause. “How that gets resolved could impact a lot of cases and could create some interesting dynamics in terms of your discovery from former employees,” Northrup said. “I think the serious question there for law firms is to know what your obligations are when you are approaching trial — is the judge going to have to grant a continuance as a result of this? Does the fact you made it that far into the case allow you to stay on as counsel?” Oral arguments are set for Sept. 2. Inppamet is represented by Mike Lynn, Jeff Tillotson, Jeremy Fielding and Andres Correa of Lynn Tillotson Pinker & Cox LLP and Nina Cortell, Carrie Huff and Kelli Bills of Haynes and Boone LLP. RSR Corp. is represented by Harriet O’Neill of the Law Office of Harriet O’Neill PC, Douglas Alexander of Alexander Dubose Jefferson & Townsend LLP and William A. Brewer III, James S. Renard, Shain A. Khoshbin and Joyce M. Hellstern of Bickel & Brewer LLP. The case is In re: RSR Corp. and Quemetco Metals Ltd. Inc., case number 13-0499, in the Supreme Court of the State of Texas. TV Azteca SAB de CV et al. v. Ruiz et al. In a defamation case that raises what Smith called “the most salacious fact pattern you’re going to see in the Texas Supreme Court in quite a while,” Mexican pop star Gloria Trevino Ruiz, better known as Gloria Trevi, is arguing Texas state courts have jurisdiction over Mexican broadcasters TV Azteca SAB de CV and Publimax SA de CV. Trevi filed defamation claims in 2009 after a broadcast rehashed accusations that she and her then- boyfriend and manager had led a sex ring that involved minor women. She alleged that she saw the broadcast from her home in the border city of McAllen, Texas, and that her reputation was damaged in the state. Though the broadcast occurred in Mexico, Trevi claims because the transmission was capable of reaching a million homes in Texas, state courts could exercise jurisdiction over the broadcaster defendants. According to a briefing in the case, it’s the first time the Texas Supreme Court will get a chance to weigh in on personal jurisdiction for a broadcaster in a defamation case. “If we suddenly start subjecting Mexican broadcasters to defamation suits in Texas, that puts American broadcasters, particularly those along the border, at the risk of being hailed into court in Mexico,” Smith said. “It really raises an issue of, ‘Is this the kind of case that Texas courts should really be getting involved in?’ It’s almost entirely an issue of facts and circumstances that occurred in Mexico and well outside the state of Texas, other than the plaintiff was in Texas when she saw the broadcasts.” Smith said the case could impact personal jurisdiction for Internet publishers and raises issues with respect to product liability cases, saying the facts of the Trevi case are somewhat analogous to a Mexican product designer that doesn’t intentionally export products to the U.S. but could be sued in Texas if one of those products injured someone in the state. “You have to wonder what other things could constitute a purposeful availment of Texas law if this does,” Northrup said. Northrup added that of the cases pending in the Texas Supreme Court docket this term, he thinks the TV Azteca case has the most potential to be appealed to the U.S. Supreme Court because of the international jurisdictional questions. Oral arguments are set for Oct. 12. TV Azteca and Publimax are represented by Paul Watler and Kurt Schwarz of Jackson Walker LLP, Gil Peralez and Chris Franz of Peralez & Franz LLP and David Johnson, Merritt Clements, Thomas Forestier and Holly Dobbs Arnold of Winstead PC.

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