Ripe for Reconsideration: An Update
There may be five votes to overrule Cathey v. Booth
It did not take long for there to be a development warranting another update to this post.
Last Friday, Justice Evan Young wrote an opinion concurring in the denial of a petition for review in 24-0916, City of Houston v. Zuniga, calling into question the Court’s 1995 per curiam opinion in Cathey v. Booth, which held that “actual notice” to the government under the Tort Claims Act requires not only the government’s knowledge of the death, injury, or property damage but also the government’s knowledge of its “alleged fault producing or contributing to the death, injury, or property damage” and “the identity of the parties involved.”
Two things stand out to me about this opinion, apart from the merits. First, as others may already know, Justice Jeff Boyd has been calling for the overruling of Cathey for some time now. So it is not very surprising to see that he joined Justice Young’s opinion. Second, and relatedly, two other Justices—Lehrmann and Sullivan—also joined the opinion. That is notable because, as Justice Young’s opinion points out (at 6), then-Justice Blacklock has also joined separate opinions calling into question Cathey. So why did he not also join this one?
I think the answer could be simple to state but difficult to explain. Had Chief Justice Blacklock joined Justice Young’s opinion, that would have been a total of five votes, therefore making it not just a concurring opinion but an opinion of the Court. Perhaps it was as simple as that. There didn’t need to be an opinion of the Court explaining why a petition was being denied.
The complexity behind this speculation (and it’s only speculation) is that, as far as I’m aware, there is an appellate-court norm (but only a norm) to not convert a concurring opinion into an opinion of Court, particularly for opinions concurring in the denial of a petition for review/cert. Opinions of the Court, I think, are reserved for resolving actual cases—judgment, mandate, and all. Professors Will Baude and Dan Epps recently suggested the same on their Divided Argument podcast after three justices joined Justice Kavanaugh’s concurring opinion in Barnes v. Felix. Here’s an excerpt of the transcript:
Whatever the reason, I think I can count to five on the question of whether Cathey should be overruled. But query whether that number remains the same after Justice Boyd retires at the end of this term.
In the meantime, here is the relevant language from Justice Young’s opinion, which will now join the rest of the opinions noted here on Ripe for Reconsideration:
“In an appropriate case, therefore, I would entertain arguments about whether our Cathey-infected actual-notice jurisprudence should be reformed and clarified, perhaps starting from scratch—which is to say, the text of the statute. We should scrape off the jurisprudential barnacles. If it is this Court that has injected confusing jurisdictional elements into the statute, then this Court has both the prerogative and the duty to reconsider those prior rulings. Stare decisis does not protect precedents that engender confusion—that doctrine targets them for destruction. See, e.g., Mitschke v. Borromeo, 645 S.W.3d 251, 264 (Tex. 2022). And especially for jurisdictional rules, whenever this Court may bring clarity, we should do so, at least once a proper case comes before us.”
In 23-0463, In re Marriage of Benevides, Chief Justice Blacklock, joined by Justices Devine and Sullivan, wrote a concurring opinion indicating that, in a future case, he would endorse the traditional common-law rule that a “guardian cannot obtain a divorce on behalf of a ward who cannot intelligently exercise his will to divorce.” In doing so, he suggested that he would reject the Court’s prior decision in Wahlenmaier v. Wahlenmaier, 762 S.W.2d 575, 575 (Tex. 1988) (per curiam), which held “that a guardian ad litem or next friend can exercise the right of a mentally ill person to obtain a divorce.”
Relevant language: “I am inclined to think that only the individual person can answer, for himself, whether he should be married. If he becomes incapable of answering the question, there is nobody else to ask. The question can no longer be answered. The courts, when properly called upon, can do our best to help manage the affairs of all involved in such a difficult circumstance with prudence and compassion. But we should not presume to answer a question that is not ours to answer. That has been the traditional, majority view of these matters throughout American legal history. I find it to be a compelling view, one which the Court may have occasion to adopt in a future case.”
In 20-0179, In re Troy S. Poe Trust, Justice Busby, joined by Justices Devine and Young, wrote in a concurring opinion that the Court’s precedents have watered down the Texas Constitution’s twin jury-trial rights through various exceptions, and he encouraged litigants, courts, amici, and scholars to weight in on the scope of the twin jury-trial guarantees in future cases.
Relevant language: “For more than a century, however, Texas courts have riddled the undeniably ‘broad’ text of the Judiciary Article with ad hoc, ‘case-by-case’ exceptions that deem juries ‘unsuitable’ based on ‘isolated’ ‘[s]pecial circumstances’ rather than any coherent analytical framework. See State v. Credit Bureau of Laredo, Inc., 530 S.W.2d 288, 292–93 (Tex. 1975). As a result, the Judiciary Article’s jury-trial guarantee no longer does what it plainly says: ‘all causes’ does not mean all causes. This important right deserves better protection than a hodgepodge of confusing precedents and indeterminate adjectives. Like barnacles encrusting the hull of a ship, which make it impossible to see the underlying surface, every new case seems to obscure further the original meaning of the jury-trial guarantees.”
See also Matthew Erickson, Shall Remain Inviolate: Reexamining Texas’s Twin Civil Jury-Trial Rights, 77 Baylor L. Rev. (forthcoming 2025) (accepting Justice Busby’s invitation, tracing the history of Texas’s jury-trial rights, and examining whether the administrative-proceedings exception can be squared with the original meaning of the Texas Constitution) (spoiler alert: it cannot).
In 18-0329, Worsdale v. City of Killeen, Justice Boyd, joined by Justice Blacklock, indicated that he would overrule Cathey v. Booth, in which the Court held two decades ago in a per curiam opinion that the notice-of-claim requirement in the Tort Claims Act, see Tex. Civ. Prac. & Rem. Code § 101.101(a), does not apply if the governmental unit has actual notice of the death or damage and “of the governmental unit’s alleged fault producing or contributing to the death, injury, or property damage . . . and the identity of the parties involved.” 900 S.W.2d 339, 341 (Tex. 1995). The latter requirement, Justice Boyd says, is “unmoored” from the statutory text.
Relevant language: “Last term, I concluded in my dissent in City of San Antonio v. Tenorio that we should ask the parties to submit briefing on whether we should overrule Cathey, even though none of the parties had raised that issue. 543 S.W.3d 772, 789 (Tex. 2018) (BOYD, J., dissenting). Although I acknowledged ‘the value of stare decisis,’ I thought that Cathey ‘may be one of those rare cases where stare decisis should not “induce us, despite the plain error of the case, to leave bad enough alone.”’” Id. at 802 (BOYD, J., dissenting) (quoting United States v. Johnson, 481 U.S. 681, 703 (1987)).
The rest of the opinions in this post are the ones I noted already in the prior post.
In 23-0755, In re State Farm Mutual Automobile Insurance, Justice Sullivan, in his first written opinion and joined by Chief Justice Blacklock and Justices Devine and Young, suggested in a concurrence that he was willing to reconsider Brainard v. Trinity Universal Insurance Co., 216 S.W.3d 809, 818 (Tex. 2006), in which the Court held that an underinsured motorist carrier “is under no contractual duty to pay benefits until the insured obtains a judgment establishing the liability and underinsured status of the other motorist.”
Relevant language: “But there will be plenty more occasions for head-scratching over Brainard. Indeed, such a recurring drain on scarce judicial resources seems like a real problem. Perhaps in one of those cases, the parties will join issue on whether Brainard should be overruled.”
See also Maj. Op. at 8 n.21: “In a post-submission letter, Lindsey cites a recent concurring opinion from the Second Court of Appeals inviting the Court to revisit Brainard. See In re Progressive Cnty. Mut. Ins. Co., No. 02-25-00039-CV, 2025 WL 450707, at *2 (Tex. App.—Fort Worth Feb. 10, 2025, orig. proceeding [mand. denied]) (Birdwell, J., concurring) (op. filed Mar. 20, 2025). We decline the invitation to do so here because (1) Lindsey did not request in either her briefing or at oral argument that we overrule Brainard and (2) her letter fails to address any of the considerations relevant to overruling precedent.”
In 23-0247, Pitts v. Rivas, Justice Huddle, joined by Justices Lehrmann, Bland, and Young, questioned in a concurring opinion whether the Court should continue recognizing “informal” fiduciary relationships.
Relevant language: “[T]he concept our cases describe as an ‘informal’ fiduciary relationship is a fiction we should no longer entertain.”
See also Maj. Op. at 16 n.9 (“If a party questioned that precedent or if the outcome of the case turned on the precedent’s continuing vitality, we might have occasion to decide whether we share the concurring Justices’ view. Because we have not considered whether to overturn or revise our precedent, nothing in this opinion should be taken as reaffirming or agreeing with it.”).
In 23-0273, Accident Fund Insurance Company v. Texas Department of Insurance, Justice Young, joined by Justice Sullivan, wrote in an opinion concurring in the denial of a petition for review that it was likely time to reconsider agency deference in statutory interpretation, especially now in light of the U.S. Supreme Court’s decision in Loper Bright.
Relevant language: “Administrative agencies in Texas have seemingly never enjoyed the deference once endorsed by the U.S. Supreme Court, see Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), although our cases have occasionally hinted that “the analysis in which we engage is similar,” R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 625 (Tex. 2011). If ever there were a time to transform similarity into sameness (a doubtful proposition all along in this context), it is certainly not now, when the Supreme Court has decidedly abandoned Chevron as “fundamentally misguided.” See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 407 (2024). In a future case challenging a specific award of supplemental income benefits, then, this Court could (and should) assess critically an agency’s power to rewrite, under the guise of interpretation, the statutory criteria that limit benefits awards.”
In 22-0940, Texas Tech. University v. Flores, Justice Blacklock, joined by Justice Young, suggested in a concurring opinion that Texas courts should not strictly adhere to the McDonnell Douglas burden-shifting framework for employment-discrimination claims. Justice Young also filed a separate concurring opinion, expressly inviting litigants to help determine whether McDonnell Douglas is consistent with Texas law.
Relevant language from Justice Blacklock’s opinion: “I see no basis for this elaborate formula in the text of the Texas Labor Code. McDonnell Douglas dates to a time when courts were often less attentive to statutory text—and more attentive to perceived statutory purpose—than are most courts today, including this Court.”
Relevant language from Justice Young’s opinion: “Reexamination may confirm the propriety of accepting into our law the McDonnell Douglas framework (or something much like it) and its progeny—or perhaps not. If not, it strikes me as at best unclear how a variety of doctrines, including stare decisis and liquidation, may affect our response. The analysis is worth undertaking if a case presents the question.”
In 22-1143, Henry S. Miller Commercial Company v. Newsom, Justice Young, joined by Justice Bland, questioned in a concurring opinion whether it would be worth heightening the burden of proof for legal-malpractice cases that have been assigned and therefore may involve “side-switching”:
Relevant language: “[I]t 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.”
In 21-0470, Collin Creek Assisted Living Center v. Faber, Justice Young, joined by Justice Blacklock, wrote in a concurring opinion that there may be a better way of determining whether a claim qualifies as a “health care liability claim” under the Texas Medical Liability Act and said that it may be time to reconsider the factors under Ross v. St. Luke’s Episcopal Hospital, 462 S.W.3d 496 (Tex. 2015).
Relevant language: “[T]his Court could convert its reliance on factors into clearer rules. Stare decisis strikes me as posing less of an obstacle here than it otherwise might because our factor-laden HCLC jurisprudence may have “become[] less useful over time” as it “continues to generate confusion among parties and the judiciary” about the 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.”
In 21-0307, City of League City v. Jimmy Changas, Justice Young, in a solo concurrence, expressed misgivings regarding the Court’s precedents applying the four Wasson factors and the Tort Claims Act to determine whether a city is entitled to immunity for breach-of-contract claims.
Relevant language: “Those cases, as the Court today ably explains, require us to determine whether a municipality’s challenged action was either governmental or proprietary. In making that determination, we are supposed to ask (1) whether the classifications listed in § 101.0215(a) of the Texas Civil Practice & Remedies Code provide any “guidance,” and if not, (2) whether the action otherwise meets the common-law definition of “governmental function,” as expounded through the four Wasson factors. No party has asked us to reassess our prior decisions, and I agree with the Court that, under the rather meandering process that those precedents compel, League City has failed to show that its contract with Jimmy Changas satisfies either inquiry.
But see Justice Blacklock’s dissenting opinion, joined by Justice Bland: “I agree with much of Justice Young’s thoughtful concurrence. The “Wasson factors” employed by the Court to distinguish between the governmental and proprietary functions of a municipality have proven unsuited for their task. In addition, we should abandon the fiction that the Tort Claims Act’s rambling list of governmental functions tells us anything about how to determine whether common law immunity applies to a contract claim. And it may very well be, as Justice Young suggests, that when a government accepts performance under a commercial contract and then refuses to pay, the government has committed a compensable taking. I cannot join my colleague’s concurrence, however, because I conclude that running a Chapter 380 tax-incentive grant program is a governmental rather than a proprietary function.”
In 21-0769, Horton v. The Kansas City Southern Railway Company, Justice Busby, joined by Justices Devine, Blacklock, and Young, criticized the notion of “implied obstacle preemption,” insofar as it requires courts to determine whether the plaintiffs’s claim would present an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941). This sort of inquiry, Justice Busby wrote, cannot be squared with the original meaning of the Supremacy Clause.
Relevant language: “Because this case painfully illustrates the failures of implied obstacle preemption’s ‘ambitious,’ abstract, and ahistorical’ approach to what is one of the ‘most frequently used doctrine[s] of constitutional law in practice,’ I write separately to urge the Supreme Court to reconsider Hines and its progeny.”
In 20-0366, Elephant Insurance v. Kenyon, Justice Young, joined by Justice Blacklock, wrote in a concurrence that it may be time to reconsider the so-called Phillips factors when determining whether a tort duty exists, particularly in highly reticulated areas of the law.
Relevant language: “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. . . . I write separately to suggest that, in a proper case, we should reconsider those precedents. . . . I will end by noting that our precedents that ask us to assess social, economic, political and other considerations are less hoary than we might think. The Court here relies on Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017) and Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 182 (Tex. 2004). These cases rely on the factors found in Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990) and Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983). . . . In an appropriate case . . . 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.
See also 21-0496, Houston Area Safety Council v. Mendez (Young, J., concurring) (joined by Blacklock, J.) (“[T]he Court today adheres to our precedents by applying the Phillips factors. But at least for a case like this, we should not need those factors. Drug testing is a familiar area of life and law that, in many respects, is already highly regulated. Judicial meddling with the careful balances that the other branches can strike and have struck is unnecessary and improper.”)
See also also Daniel Rankin, Of Crowns and Common Law, Tex. Rev. L. Pol’y (2024) (discussing Justice Young’s concurrence and offering points and counterpoints to common lawmaking in highly regulated areas of the law).
But see Justice Boyd’s dissenting opinion in Mendez, joined by Justices Lehrmann and Devine: “It remains true today that, because our society and its standards are constantly changing, the common law is not frozen or stagnant, but evolving, and it is the duty of this court to recognize the evolution.”).