From the Fort Worth Star-Telegram:

Dallas and water district officials sued in January 2007 to block a wildlife refuge designation for 25,281 acres in Anderson and Cherokee counties, saying the area includes land necessary for the Fastrill Reservoir. The designation would block the land from being sold, cleared or used for a reservoir, according to court documents.
The lawsuit said Fish and Wildlife didn’t consider other sites before making the federal designation and cut short the review process. Judge Jorge Solis sided with environmental groups in dismissing that argument.
On Tuesday, Dallas and the Texas Water Development Board filed an emergency motion seeking a temporary injunction on the land pending an appeal or other action.
“All we can say right now is we are aware of the ruling. We are currently discussing it with the office of the attorney general,” said Carla Daws, spokeswoman for the Texas Water Development Board.
Chris Bowers, first assistant attorney for Dallas, said that it is unusual for a judge to issue an injunction against the winning party in a lawsuit but that in this case, maintaining the status quo is critical.
In the injunction request, S. Cass Weilland, a lawyer for Dallas, wrote, “Forcing the plaintiffs to find water sources elsewhere is simply not an adequate remedy and cannot be compensated for in money damages.”

The decision will have profound implications for every type of tort case that could be brought against a church, although the six justices in the majority seem to think it only involves cases where the injury was the result of some doctrinal action of the church–in this instance, an exorcism.

The case is Pleasant Glade Assembly of God, et al v. Schubert. The Star-Telegram has an excellent summation:

In a 6-3 decision, the court ruled that the Pleasant Glade Assembly of God’s efforts to cast out demons from the Laura Schubert presents an ecclesiastical dispute over religious conduct that would unconstitutionally entangle the court in church doctrine.

In a 1996 lawsuit against the church, Schubert described a wild night involving the casting out of demons from the church and two separate attempts to exorcise demons from her.

The 2002 trial of the suit never touched on the religious aspects of the case, and a Tarrant County jury found the church and its members liable for abusing and falsely imprisoning Schubert, who was 17 at the time. The jury awarded Schubert $300,000 for mental anguish, but the 2nd Court of Appeals in Fort Worth shaved $122,000 from the verdict for loss of future income.

But the church raised the question of whether the Fort Worth appeals court erred when it said Pleasant Glades’ First Amendment rights regarding freedom of religion do not prevent the church from being held liable for mental distress triggered by a “hyper-spiritualistic environment.”

A majority of the court agreed, with Justice David Medina writing that while Schubert’s secular injury claims might “theoretically be tried without mentioning religion, the imposition of tort liability for engaging in religious activity to which the church members adhere would have an unconstitutional ‘chilling effect’ by compelling the church to abandon core principles of its religious beliefs.”

To give you an idea of just how bad this opinion is, Chief Justice Wallace Jefferson, by no means a “moderate Republican” led the three lone dissenters. The opening paragraph of the Jefferson Dissent (in which two other justices joined in parts only) is very telling:

After today, a tortfeasor need merely allege a religious motive to deprive a Texas court of jurisdiction to compensate his fellow congregant for emotional damages. This sweeping immunity is inconsistent with United States Supreme Court precedent and extends far beyond the protections our Constitution affords religious conduct. The First Amendment guards religious liberty; it does not sanction intentional abuse in religion’s name. Because the Court’s holding precludes recovery of emotional damages—even for assault and other serious torts—where the defendant alleges that the underlying assault was religious in nature, I respectfully dissent. [Emphasis added]

In his dissent, Justice Green echoes a similar statement:

Because the fundamental principles of Texas common law do not conflict with the Free Exercise Clause, courts can and should decide cases like this according to neutral principles of tort law.

Tort law is the great equalizer, and justice is supposed to be blind.

Today, however, the Texas Supreme Court took off her blindfold, replaced her scales with a cross and her sword with a Bible.

This is an excellent reason that we need people like Justice Linda Yanez, Sam Houston, and Jim Jordan and on the Texas Supreme Court. Justice Yanez is a jurist of unquestionable credentials who would bring balance to the right-wing monstrosity that is the Texas Supreme Court. Sam Houston is an appellate attorney who understands the value of our jury and court system–and respects the right for injured parties to seek justice in the courtroom. Jim Jordan is a jurist who understands that all laws should be applied as enacted, pursuant to the protective umbrella of the constitution.

You can read the opinion, delivered by Medina with Hecht, O’Neill, Wainwright, Brister, and Willet joining in concurrence here. The opinion is so poorly crafted it actually refers to the original plaintiff by her first name, which is not a common practice in judicial opinions:

Laura asserted, however, that the events at the church caused her both physical and emotional injury, and the church concedes that the First Amendment does not protect it from Laura’s claim of physical injury.

The Jefferson Dissent (joined in parts by Green and Johnson) is here.

The Green dissent is here. The Johnson dissent is here.

“When I made the decision to author House Bill 8, also known as Jessica’s Law, I did so with the single purpose of making Texas safer for our children, and more dangerous for their predators.  While the majority of the provisions of House Bill 8 will not be affected by today’s ruling, I believe that the Supreme Court has somewhat diluted our effort as a state to provide our children with the strongest possible protection by providing the strongest possible punishment to those who would do them harm.

That’s rather interesting. I don’t think the Court diluted the state’s efforts at all. I think the Legislature should have had the wisdom not to understand that the death penalty wasn’t an appropriate punishment for this offense, as bad as the offense is.

The Texas Court of Criminal Appeals ruled Tom Coleman’s aggravated perjury conviction in 2005 should stand.

In 2006, the 7th Court of Appeals in Amarillo upheld the conviction.

Coleman was sentenced to 10 years probation after a jury found him guilty of falsely testifying in a 2003 hearing that he did not learn of a theft charge against him until August 1998. Court documents showed that Coleman had earlier learned of the accusation that he stole gasoline while working for the Cochran County Sheriff’s Office.

The 1999 drug sting in Tulia led to the arrest of 46 people — most of them black — on drug charges.

This has indeed been a long time in coming.

In one case, the Court denied the motion of some Fort Worth firefighters challenging former City Councilman Wendy Davis’ candidacy under resign-to-run laws, instead essentially dropping the ball back to the regional appellate court.

In the second case, LaRhonda Torry, a challenger to State Rep. Garnet Coleman in Houston, had her mandamus petition dismissed. Torry’s filing was refused by the Harris County Democratic Party because she failed to designate a campaign treasurer at the time she filed.

From the Star-Telegram:

U.S. District Judge Barbara Lynn of the Northern District of Texas upheld the constitutionality of the law, ruling that “the primary effect of the statute is to institute a moment of silence, not to advance or inhibit religion.”

I’m quite sure this will be appealed. The court also has yet to rule on a pending lawsuit brought by the same plaintiffs against the newly revised pledge to the Texas Flag.

According to legal scholars, the pledge’s new wording to include “under God,” has a better chance of being struck down because it was added to recently and has a clear religious and not secular purpose.

Texas laws allow the killing of a fetus to be prosecuted as murder, regardless of the fetus’ stage of development, but they do not apply to abortions, the state’s highest criminal court has ruled. [Emphasis mine.]

Is this, however, disinformation?

The folks at Dungeon Diary seem to think so:

Though this was about a criminal case, abortion foes will seize this as legal precedent to begin pressing for criminal prosecutions of doctors offering abortions. Just wait for the dust to settle. I doubt that these same folks who have decried “Activist Judges” will have little but praise for this decision.

I’ll admit, I had similar thoughts. I felt that this decision would be a back door excuse. And, even as savvy as Capitol Annex is with these kind of things, I’ll admit I just glossed over it because I thought that, surely, AP had examined all sides of the issue, perhaps consulted with a legal expert, and made this determination.

However, I do believe in the 81st Texas Legislature, we’ll see anti-abortion legislation solely based on this CCA decision.

In particular, according to Point of Law’s fairly concise summary of the complicated issues at stake, the question of whether or not the requirement that a medical expert has to sign onto a medical malpractice claim before litigation can proceed is at issue. The 12th Court of Appeals in Tyler–no bastion of liberalism–has already ruled that it can be bypassed.

The National Law Journal thinks the issue is significant enough to merit an article:

Tort reformers convinced the Legislature that it could hold down health care costs and medical malpractice insurance premiums, in part, by enacting Texas Civil Practice & Remedies Code §74.351(s), which stays discovery in the initial stages of a med-mal suit until the plaintiff serves the defendant with the report of an expert who has concluded the defendant was negligent. This process was intended to weed out weak cases and cut costs by limiting discovery.

But trial lawyers cried foul, saying they could seldom get an expert to opine about negligence if they didn’t have sufficient discovery to develop their cases in the first place.

[...]
Some plaintiffs attorneys thought they had figured a way around the problem — among them Tyler, Texas, attorney Bill Liebbe who represents Christian Allan, the real party in interest before the Texas Supreme Court in Jorden.

Because a discovery stay would have boxed in Liebbe had he filed a med-mal case, on Nov. 1, 2005, he filed a Rule 202 petition on behalf of Allan, asking Judge Kerry Russell of the 7th District Court of Smith County to allow him to take pre-suit depositions to “investigate his potential health care claim.”

“A Rule 202 petition allows you to investigate a potential claim to determine if you have one,” says Liebbe, principal in the Law Office of Bill Liebbe. “None of the people we are seeking to depose are parties in a health-care liability claim, because there is no claim.”

In his Brief on the Merits to the Supreme Court, Allan alleges the following: On May 15, 2004, Allan’s mother, Nancy Allan, complained of chest pains while playing tennis. An ambulance drove the 78-year-old to Mother Frances Hospital Regional Health Care Center in Tyler (a relator), where Dr. Jack Jorden saw her. He discharged her after determining she was likely suffering from gastrointestinal problems.

Jorden wrote in his emergency room report that Tyler Cardiovascular Consultants (another relator) would do an outpatient stress test; Jorden sent a copy of his report to TCC and Dr. Donald Knarr (another relator), who treated the woman on May 18 but did not give her a stress test, Christian Allan alleges in his brief.

On May 27, 2004, while working in her garden, Nancy Allan suffered a fatal heart attack. Her medical records are silent on whether Jorden specified a time frame for the stress test, whether Tyler Cardiovascular Consultants ever contacted her or whether Knarr was aware of the need for a stress test, Christian Allan alleges.

“We don’t know who breached the standard of care,” says Liebbe. “It may have been any one of them. It may have been none of them.”

So Liebbe, on behalf of Christian Allan, sought discovery under Rule 202, alleging that from the medical records available, Liebbe could not determine if Allan had a meritorious claim. Liebbe says that if he had sued all four potential defendants, it would have been impossible for him to get an expert report, because he didn’t know who among them might have breached the standard of care. And Liebbe says he would have violated Rule 13 of the Texas Rules of Civil Procedure for filing a groundless pleading brought in bad faith.

This time it was the tort reformers who would cry foul.

“If a plaintiff can avoid the stay of oral depositions required by §74.351(s), then the purpose of the statute is defeated,” says Mike Hull, an insurance defense attorney who helped draft H.B. 4 and who filed an amicus brief in support of the relators. “Costs will rise, and access to care will decrease.”

But Liebbe maintains that Rule 202 depositions are their own cost-cutting measure, because plaintiffs attorneys can use them to screen out cases that lack merit even before filing them.

The conflict here is between Rule 202 and the Civil Practices & Remedies Code changes brought about under HB 4. It’s a back door against the tort reform changes, to be sure, but what appears to be a highly legitimate one:

Does the stay on discovery imposed by §74.351(s) until a med-mal plaintiff serves the defendant with an expert report apply to pre-suit discovery under Rule 202?

The 12th Court of Appeals in Tyler had held that the stay did not apply and thereby removed the legal impediment to the trial court allowing the oral depositions of Jorden and the three other relators: two health-care providers and another doctor.

Joel J. Steed and Russell H. Hill of Rockwall, Texas’ Steed Flagg are co-counsel for relators Knarr and Mother Frances. A phone call seeking comment from Hill was not returned before presstime. Steed’s secretary says he was unavailable for the next two weeks. Doug McSwane, a shareholder in Tyler’s Potter Minton who represents relator Tyler Cardiovascular Consultants, says he defers all comments to Cooper.

To reach its April 27, 2006, ruling, the 12th Court found that Chapter 74 does not trump Rule 202, even though §74.002 states that “in the event of a conflict between this chapter and another law, including a rule of procedure or evidence or court rule, this chapter controls to the extent of the conflict.”

The 12th Court of Appeals saw no conflict between the two provisions by turning to the language of §74.001(13), which defines a “health care liability claim” as a “cause of action.” Because a Rule 202 petition only investigates “a potential cause of action,” the court held that “the plain language of Subsection 74.351(s) does not support a conclusion that the legislature intended to characterize a potential cause of action as a “health care liability claim.’”

But the appellate court didn’t end its analysis there. Because Jorden and the other would-be deponents claimed that the Legislature intended to afford Chapter 74 protections to potential as well as existing health-care liability claims, the court examined the complicated legislative history of H.B. 4 to determine legislative intent. The court traced the bill through its many incarnations: when the Legislature considered prohibiting Rule 202 depositions in the context of health-care liability claims, when it considered restricting them and then when it decided to do nothing about them.

“During its consideration of these provisions, the definition of “health care liability claim’ remained the same,” wrote Chief Justice James T. Worthen for a two-justice panel. A third justice did not participate in the decision. “It is reasonable to assume from the legislative history that the legislature did not intend for a potential claim or cause of action to be characterized as a “heath care liability claim.’” Not finding a conflict between the statute and the rule, the court concluded that the stay of discovery imposed by the statute “does not preclude Rule 202 depositions.”

Essentially, it could spell a big defeat for tort reformer. Of course, that big defeat hinges on whether or not the Texas Supreme Court–dominated by right-wing justices, makes a legitimate legal ruling or a slipshod political one. It is, however, an issue of significant controversy. Appellate courts in Houston and Eastland have considered the exact same issue and reached different decisions.

Back in 2002, the court ruled that a lawyer’s competence cannot be measured by the quality of the attorney’s habeas petitions–the most important legal tool for a defense lawyer defending a capital murder client.

The court has failed to reverse itself on this important issue in numerous instances, and the ruling has given unqualified lawyers the ability to file shoddy and poorly argued petitions with little fear of repercussions.

Now, two Austin attorneys are asking that the court reverse that decision and providing an example of some very shoddy habeas work:

The brief filed Thursday, titled a motion to reopen, is a painstaking analysis of Wilkinson’s 1998 petition on behalf of Chamberlain, 37. It concluded that much of the Chamberlain petition was taken word for word, with minor editing, from a February 1998 letter Chamberlain wrote telling Wilkinson of “suspected errors” from his trial.

Wilkinson, the brief said, did little more than replace first-person references with Chamberlain’s name, leading to entire passages that bordered on the nonsensical, such as: “(A lawyer) tried to get Karl Eugene Chamberlain to accept the deal by telling Karl Eugene Chamberlain that no matter what sentence Karl Eugene Chamberlain got Karl Eugene Chamberlain would never get out of the penitentiary.”

The brief, which accused Wilkinson of failing to investigate the truth of his client’s claims and support them with legal research, also cites other cases of questionable performance by Wilkinson:

A 2003 habeas petition for Daniel Acker, 90 percent of which was taken from a letter Acker wrote to Wilkinson complaining about his trial. The Acker petition, featured prominently in the American-Statesman examination of the state habeas system, was a collection of first-person rants, misspellings and bad grammar.

While the attorneys appear to have a top-notch claim, they are going to have a tough row to hoe. Asking the Texas Court of Criminal Appeals to listen to reason and logic is like yelling into an vacuum.

This is yet another reason why Democrats need to run competent candidates for the Court of Criminal Appeals in 2008.

Travis County DA Ronnie Earle asked for the rehearing after the CCA declined to reinstate a conspiracy charge against Delay which had been previously tossed out by a trial court.

More as it develops.

The Mexican American Legal Defense and Educational Fund (MALDEF) and the American Civil Liberties Union (ACLU) Foundation of Texas won a request for a temporary restraining order (TRO) today to block implementation of an anti-immigrant ordinance in Farmers Branch. The ordinance was initially adopted by the Farmers Branch City Council in January and was recently approved by Farmers Branch residents in a vote on Saturday, May 12. The TRO blocks the ordinance from going into effect tomorrow as scheduled.

Last week, attorneys for the ACLU and MALDEF filed the TRO application to block implementation of the ordinance. U.S. District Court Judge Sam A. Lindsay today granted the requests.

“We are grateful that the court recognized the potential harm to landlords and tenants in Farmers Branch, should this unconstitutional ordinance have gone into effect,” said Lisa Graybill, Legal Director for the ACLU of Texas.  “We are confident that the court’s preliminary findings will be sustained as the litigation moves forward.”

“Today’s ruling sends a clear message that Farmers Branch’s ordinance, and other similar anti-immigrant ordinances blocked by courts around the country, are an illegal attempt to usurp federal power to regulate immigration,” said Nina Perales, Southwest Regional Counsel for MALDEF.

Attorneys for the ACLU and MALDEF will continue with the suit filed on December 26, 2006 in federal district court on behalf of residents and landlords who will be adversely affected by the ordinance. The lawsuit maintains that the ordinance violates federal immigration law and illegally puts landlords in the untenable position of serving as federal law enforcement agents.  The complaint also alleges that the ordinance violates the fundamental rights of both landlords and tenants.

Well, at least it’s not prosecution of bogus voter fraud.

This is too good not to quote:

The makers of the Cocaine energy drink say their beverage is like “speed in a can” and a “legal alternative” to street drugs. They say it may cause “excess excitement, stamina, fun and possible feelings of euphoria.”

The drink has become such a hit on MySpace and YouTube that fans have posted spoof commercials pretending to be addicts and videos of themselves chugging the drink, which some say is so strong that it burns the back of your throat.

But it won’t be sold in Texas anymore.

The state attorney general’s office obtained a court order Wednesday temporarily stopping Dallas wholesalers from distributing the energy drink, made by Redux Beverages of Las Vegas.

State officials say the company’s advertisements amount to marketing a drug without government safety checks. The crackdown halts the distribution of 172,000 cans stored in three warehouses in the Dallas-Fort Worth area.

“Texans will not tolerate the peddling of unapproved drugs,” Attorney General Greg Abbott said in a written statement. “This advertising campaign entices young people with illegal drug references and false claims of health benefits.”

Redux partner Clegg Ivey said the company had already removed some claims from its advertising and was trying to understand how it was breaking the law.

“The rub seems to be that people don’t like the name of our drink,” he said. “People are smart enough to realize that an energy drink with the name Cocaine does not have cocaine in it and isn’t a substitute for it. There are many energy drinks on the market with edgy names.”

A hearing on whether to lift the ban will be held May 16.

Cocaine comes in an 8.4-ounce red can, similar in size and shape to other high-caffeine energy drinks. Its brand name is spelled out to look like lines of white powder, and it sells in convenience stores for a few dollars a can.

The drink contains 280 milligrams of caffeine – equivalent to more than two cups of coffee, 3 ½ Red Bulls or seven Pepsis.

As someone who has drink at least three Cokes or Dr. Peppers every morning just to have some level of minimal functionality before 10 a.m., even I’m scratching my head that that amount of caffeine. Read on:

According to the Texas lawsuit, Redux claims that five minutes after drinking Cocaine the customer will achieve a “high” followed by a caffeine boost 15 minutes later with the effects lasting up to five hours.

Um hum. So, like, this was a good thing for truckers to drink, I guess?

It also said that one of its ingredients, inositol, could reduce cholesterol in the blood, prevent the hardening of arteries and be used to treat anxiety, depression and obsessive-compulsive disorder.

So, I guess, in theory, poor kids who can’t afford their meds because the Republicans screwed them out of CHIP coverage could just drink a Cocaine every morning before school to treat any of these disorders they may have? Hum…maybe the state ought to be bottling the stuff.

Seriously, though, it’s an interesting angle in the consumer protection department. One must wonder what former AG Jim Mattox, “The People’s Lawyer,” would have done about “Cocaine” were he in office today. I actually suspect he may have taken similar action, but it would still be funny.

Tags: Cocaine

WASHINGTON — In decisions that could mean the difference between life and death for dozens of Texas death row inmates, the Supreme Court on Wednesday rejected three Texas death sentences, ruling 5-4 that courts reviewing them failed to follow the high court’s guidance.

The rulings in the cases of LaRoyce Smith, Brent Brewer and Jalil Abdul-Kabir said the New Orleans-based U.S. 5th Circuit Court of Appeals and the Texas Court of Criminal Appeals incorrectly analyzed whether faulty jury instructions prevented Texas juries from considering mitigating evidence that might have persuaded them to spare the men from execution.

The instructions, which were meant to help jurors weigh evidence such as a defendant’s low intelligence, mental illness or childhood abuse, have not been used in Texas since 1991. But they were used during the trials of many current death row inmates.

The Texas Attorney General’s Office estimates the number of cases that could be affected by Wednesday’s ruling at close to 50, while defense attorneys say the number could total 70 or more.

This is quite the can of worms to open, to say the least. It should also send a message to voters in 2008 to remember that the justices of the Court of Criminal Appeals need to be ashcanned and that we need a president in office who will appoint appellate judges who will actually follow the law.

While Klein’s site isn’t technically a blog, it is essentially an online news site, performing many of the same functions of a blog.

Though Klein’s site is definitely Right-leaning and certainly contains statements Capitol Annex does not agree with, what is happening to Klein is a prime example of why Texas bloggers need the protection of any future “shield law” legislation and coverage under the Civil Practices & Remedies Code’s “Privileged Matters” Clause.

As we’ve told you before, even under the best versions of the Pena-Van Arsdale Shield Law bills, bloggers would have to make some fairly significant stretches to claim they are covered under the proposed law.

This, quite simply, is wrong. We bring it up because Klein’s story, according to media reports, cited an anonymous source.

Second, the “privileged matters” clause of the Civil Practices & Remedies Code (which the Fort Worth Star-Telegram has editorialized that bloggers should be covered under) should cover bloggers.

Why? Because it deals with news and opinion coverage of public officials and matters of public concern (when reported fairly and accurately).

That a web-based journalist has been sued for reporting a controversial investigative story is a wake-up call for all Texas bloggers.

This means that, in addition to forcing the State Office of Administrative Hearings to reconsider its docket on the cases relating to the plants, tomorrow’s scheduled hearining has been halted, and that Governor Perry’s Executive Order allowing the fast-tracking has been struck down.
Moreover, the judge, in a letter sent to attorneys today, said that he believed that coal plant opponents would prevail in showing that Texas Governor Rick Perry lacked the authority to “fast-track” the permitting process for the plants.

I expect the state to appeal this fairly quickly.