Nathan Hecht's 25 Year Record in Texas Supreme Court

SERVING BUSINESS LAWYERS IN TEXAS

Nathan Hecht’s 25 Year Record in Texas Supreme Court

By Chad Ruback and Dylan Drummond Five of Justice Hecht’s opinions in Contributing Writers to The Texas Lawbook particular stand out for their impact on the September 30, 2013 – Having already served on state’s jurisprudence: the Supreme Court of Texas for nearly twenty- • five years, Nathan Hecht will begin his tenure Edwards Aquifer Authority v. Day, 369 S.W.3d as the court’s chief justice with a much different 814 (Tex. 2012). It is not often that a Texas perspective than did any of Supreme Court decision catalogues, examines, his twenty-six predecessors. and clarifies a century’s worth of the court’s common law, but Justice Hecht wrote for a At the time that Justice unanimous court (notable in and of itself) Hecht assumes the role that did so in Day. Therein, Justice Hecht of the top civil judge in distinguished aspects of the court’s opinion the State of Texas, he will some 108 years earlier have already worked as that originally adopted a colleague to thirty-two the “rule of capture” as it supreme court justices and applies to groundwater. Chad Ruback seen the court shift from In Day, the court settled being comprised largely of Democrats to its the uncertainty created by current all-Republican composition. its 1904 opinion in Houston & Texas Central Railway When outgoing Chief Justice Wallace Jefferson Co. v. East and concluded became Chief Justice in 2004, he only had three that overlying landowners years of experience on the court. Chief Justice Dylan Drummond have a property interest Jefferson’s predecessor, Tom Phillips, was brand in groundwater “in place” beneath their land, new to the court at the time he became its chief and, as such, it cannot be taken for public use justice in 1988. without adequate compensation. Justice Hecht’s experience on the court prior • Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84 to his appointment exceeds that of even Chief (Tex. 2011). State supreme courts rarely are Justices Joe Greenhill and Jack Pope, who had either jurisdictionally able or jurisprudentially served as justices on the court for some fifteen willing to disagree with the U.S. Supreme Court and seventeen years, respectively, before being on a given point of law. In Nafta Traders, elevated to chief justice. Justice Hecht led the Texas Supreme Court in Indeed, in January, Justice Hecht will doing just that regarding the construction of the equal former Chief Justice Greenhill as the Texas Arbitration Act (TAA). The U.S. Supreme longest-serving justice in the court’s history. Court’s decision in Hall Street Associates, L.L.C. During that time, Justice Hecht has already v. Mattel, Inc. a few years earlier held that the authored more than 350 supreme court opinions, Federal Arbitration Act (FAA) precluded parties a number of which are among the seminal cases from agreeing to submit an arbitration award in Texas jurisprudence. for judicial review. Justice Hecht explained >

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that the TAA reflects Texas’s public policy to • Gammill v. Jack Williams Chevrolet, Inc., 972 permit parties to contract to arbitrate their S.W.2d 713 (Tex. 1998). Having been cited disputes. Therefore, the terms of the parties’ over 3,600 times by various Texas courts at arbitration agreement should be controlling all levels, as well as in the legal literature, and the TAA should not construed to limit Gammill is perhaps Justice Hecht’s most the right of parties to contract as they see fit. impactful decision. Justice Hecht wrote for Justice Hecht also reasoned that the FAA does a unanimous court in Gammill, which built not preempt the TAA in regard to permitting upon the relevance and reliability standards agreed judicial review of arbitration awards established a few years before in the court’s because the FAA only preempts state-law action opinion in E.I. du Pont de Nemours and Co. that impede the enforcement of arbitration v. Robinson. Specifically, the Gammill court agreements. Because Nafta Traders construed determined that expert opinions “based on the TAA to foster the enforcement of parties’ scientific knowledge should be treated [no] arbitration agreements, the Texas Supreme differently than opinions based on technical Court held that preemption under the strictures or other specialized knowledge.” Justice Hecht of Hall Street was not triggered. noted that “[i]t would be an odd rule of evidence that insisted that some expert opinions be • Romero v. KPH Consolidation, Inc., 166 reliable but not others.” Justice Hecht concluded S.W.3d 212 (Tex. 2005) and State Department the opinion by confirming that the “trial of Highways & Public Transp. v. Payne, 838 court is not to determine whether an expert’s S.W.2d 235 (Tex. 1992). These two decisions conclusions are correct, but only whether the complement one another as each has directly analysis used to reach them is reliable.” and greatly impacted jury-charge practice in Texas. Payne was the first major attempt by Chad Ruback has always devoted his practice to the court to clarify the confusion caused by the handling appeals and trial court motions likely move in Texas towards broad-form submission to be at issue on appeal. Following his service of jury charges in place of special-issue practice. as a briefing attorney at the Fort Worth Court Justice Hecht wrote for the majority in Payne, of Appeals, Ruback worked in the appellate observing that the Texas procedural rules sections of a medium-sized firm and of a large should be applied “to serve rather than defeat” firm before founding the Dallas-based Ruback the principle that “[t]here should be but one Law Firm in 2005. test for determining if a party has preserved Dylan Drummond is an AV-rated civil appellate error in the jury charge, and that is whether and commercial litigator practicing in Austin, the party made the trial court aware of the Texas. After clerking for now-Chief Justice complaint, timely and plainly, and obtained Hecht at the Texas Supreme Court, he currently a ruling.” While several subsequent decisions serves as a trustee of the Texas Supreme Court by the court clarified the somewhat ad hoc Historical Society, as well as on the State Bar’s application of Payne’s central holding, it was Appellate Section Council and the Pattern Jury Justice Hecht’s majority opinion in Romero Charge Committee for the Business, Consumer, that confirmed it was reversible error to include Insurance & Employment volume. an invalid liability theory in a comparative responsibility question. Please visit www.texaslawbook.net for more articles on business law in Texas.