News Honors Case Summaries

Archives: Constitutional Law + Governmental Matters

 

Rick Thompson Presents at City of Dallas In-House CLE

Rick Thompson spoke to the City of Dallas’s in-house counsel at the City’s annual in-house CLE seminar on June 26, 2015. Mr. Thompson informed the in-house counsel on recent Texas Supreme Court cases of interest to local governmental entities. Attorney: Rick Thompson Subject Matter: Constitutional… + read more

Rick Thompson spoke to the City of Dallas’s in-house counsel at the City’s annual in-house CLE seminar on June 26, 2015. Mr. Thompson informed the in-house counsel on recent Texas Supreme Court cases of interest to local governmental entities.

 

Hankinson LLP’s Government Practice Assists City of Grapevine in Condemnation Case

Hankinson LLP successfully represented the City of Grapevine before the Fort Worth Court of Appeals and the Texas Supreme Court.  In this case, the State condemned real property located in the City.  Because a billboard owned by CBS Outdoor, Inc., overhung that property, the State… + read more

Hankinson LLP successfully represented the City of Grapevine before the Fort Worth Court of Appeals and the Texas Supreme Court.  In this case, the State condemned real property located in the City.  Because a billboard owned by CBS Outdoor, Inc., overhung that property, the State condemned the billboard to remove the aerial encroachment.  In an effort to avoid condemnation, CBS asked the City to permit it to shift the billboard away from the property to remove the encroachment.  The City refused, explaining that nonconforming billboards, like CBS’s billboard, could not be moved, altered, or adjusted under the City’s existing zoning ordinances.  After CBS removed a 4-foot section of the billboard, the City ordered CBS to remove its billboard.  CBS sued the City.  The City filed a plea to the jurisdiction based on its governmental immunity, but the district court denied the plea.  On appeal, the court of appeals reversed the district court’s order in part and rendered judgment that CBS take nothing on its claims for judicial review, injunctive relief, violations of due process, declaratory relief, and attorney’s fees.  On August 22, 2014, the Texas Supreme Court denied CBS’s petition for review.  Rick Thompson argued the case before the Fort Worth Court of Appeals and briefed the case to the court of appeals and the Supreme Court.  See City of Grapevine v. CBS Outdoor, Inc., No. 02-12-00040-CV, 2013 WL 5302713 (Tex. App.—Fort Worth Sept. 19, 2013, pet. denied).

 

Court of Appeals Affirms Trial Court Ruling in Favor of Hankinson LLP Client

Rick Thompson was a key member of the legal team that successfully represented Republic Power Partners, L.P., in an interlocutory appeal before the Amarillo Court of Appeals.  Republic Power sued West Texas Municipal Power Agency (WTMPA) for breach of an agreement to promote and develop… + read more

Rick Thompson was a key member of the legal team that successfully represented Republic Power Partners, L.P., in an interlocutory appeal before the Amarillo Court of Appeals.  Republic Power sued West Texas Municipal Power Agency (WTMPA) for breach of an agreement to promote and develop new sources of electric power for the cities of Brownfield, Tulia, Floydada, and Lubbock.  WTMPA asserted its governmental immunity from suit in a plea to the jurisdiction, but the district court denied WTMPA’s plea.  WTMPA filed an interlocutory appeal.  The court of appeals affirmed the district court’s order, concluding that the Legislature waived WTMPA’s governmental immunity from suit by enacting Section 271.152 of the Texas Local Government Code.  See West Texas Mun. Power Agency v. Republic Power Partners, L.L.P., 428 S.W.3d 299 (Tex. App.—Amarillo 2014, no pet.).

 

Appellate Attorneys Deborah Hankinson, Rick Thompson Among Best Lawyers in Dallas

DALLAS – Hankinson LLP founder Deborah Hankinson and Managing Partner Rick Thompson have been selected among the Best Lawyers in Dallas by D Magazine based upon their work in the area of appellate law. The 2013 honors mark the eighth time Ms. Hankinson has been… + read more

DALLAS – Hankinson LLP founder Deborah Hankinson and Managing Partner Rick Thompson have been selected among the Best Lawyers in Dallas by D Magazine based upon their work in the area of appellate law.

The 2013 honors mark the eighth time Ms. Hankinson has been selected among Dallas’ best lawyers. It is the first for Mr. Thompson.

“Being selected among the elite attorneys in Dallas has always been an honor that I take great pride in, but I am aware that I am also lucky to be surrounded with exceptional attorneys, starting with Rick,” says Ms. Hankinson, a former Dallas appellate court and Texas Supreme Court justice. “This is a well-deserved recognition of his tremendous work.”

The 2013 listing of the top attorneys in Dallas was determined through a peer-review voting process and ballots submitted by nearly 9,000 local lawyers. Those casting ballots could only nominate others within their own practice area. The final list was compiled by an independent panel of distinguished attorneys, along with the magazine’s editors. The complete list will be included in the May 2013 edition of D Magazine.

“It is humbling to have your work recognized,” says Mr. Thompson. “I have been fortunate in being able to work at a firm and for clients that present fascinating and challenging work.”

Mr. Thompson’s practice focuses on appeals related to governmental matters, as well as commercial litigation. A former Texas Assistant Solicitor General, he argued the precedent-setting sovereign immunity case Tex. Natural Res. Conservation Comm’n v. IT-Davy before the Supreme Court of Texas. Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization, he is also a member of the commission that governs board certification for Texas appellate lawyers.

Among the most respected appellate attorneys in Texas, Ms. Hankinson also has a nationally recognized arbitration and mediation practice. She is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization, a Fellow of the American Academy of Appellate Lawyers, a member of the American Law Institute, and sits on the Board of Directors of the American Arbitration Association.

Hankinson LLP, the preeminent civil appellate firm in the Southwest, provides clients with innovative legal insights and judicial perspective in all phases of litigation. The firm’s attorneys work with trial teams to develop strategies designed to put a case in the best position before, during and after trial. Dallas-based Hankinson LLP represents national clients, regional companies, governmental bodies, and individuals with trial and appellate matters, and offers mediation and arbitration services as well. Learn more about the firm at http://hankinsonlaw.com.

 

Hankinson LLP’s Government Practice Aids City of Dallas

Hankinson LLP is pleased to announce its successful joint representation of one of the firm’s major clients, the City of Dallas, in six related cases before the Texas Supreme Court.  In these cases, a group of current and retired police officers and firefighters sued the… + read more

Hankinson LLP is pleased to announce its successful joint representation of one of the firm’s major clients, the City of Dallas, in six related cases before the Texas Supreme Court.  In these cases, a group of current and retired police officers and firefighters sued the City for additional pay and benefits under an ordinance adopted by the City in 1979. Deborah Hankinson argued the case before the Texas Supreme Court, and Rick Thompson assisted the City’s attorneys with preparing briefs.

After briefing and argument, the Supreme Court concluded that the police officers and firefighters could not prevail on their claims for declaratory relief because those claims were barred by sovereign immunity.  The Court also concluded that the police officers and firefighters could not prevail on their breach-of-contract claims as pleaded in the trial court; however, the Court remanded the contract claims to the trial court to determine whether a subsequently enacted section of the Local Government Code waived the City’s immunity for those claims.  See City of Dallas  v. Martin, 361 S.W.3d 560 (Tex. 2011); City of Dallas v. Albert, 354 S.W.3d 368 (Tex. 2011).

 

U.S. Supreme Court Revisits Race-Conscious Admissions, Focuses on the University of Texas

In Grutter v. Bollinger—which upheld the constitutionality of the University of Michigan Law School’s race-conscious admissions practices in 2003—Justice O’Connor famously predicted in her majority opinion that the days when such programs would be considered constitutionally permissible were numbered: “25 years from now,” she opined,… + read more

In Grutter v. Bollinger—which upheld the constitutionality of the University of Michigan Law School’s race-conscious admissions practices in 2003—Justice O’Connor famously predicted in her majority opinion that the days when such programs would be considered constitutionally permissible were numbered: “25 years from now,” she opined, “the use of racial preferences will no longer be necessary to ensure diversity in public higher learning institutions.”  Whether that lofty goal has indeed been met, the United States Supreme Court’s grant of the petition for certiorari in Fisher v. University of Texas, No. 11-345—which involves UT’s undergraduate admissions program—has led many commenters to predict the demise of such race-conscious admissions programs far sooner than Justice O’Connor contemplated.

UT modeled its admissions practices on those that passed constitutional muster in Grutter.  As in Michigan, the Longhorns’ admission staff may consider an applicant’s race alongside a variety of other factors, including economic background, family history, and life experiences.  Also like Michigan, UT seeks to admit a “critical mass” of minority students so that those students will not feel isolated or burdened with being considered “tokens” for their race.  UT is different, however, because its consideration of race in admissions is considerably more limited than that approved in Grutter because UT’s role in the admissions process is constrained by virtue of Texas’s Top 10% Program.

Under the Texas Legislature’s Top 10% Program, UT is required to admit any applicant that graduates in the top 10% of his or her high-school class.  Students from the Top 10% Program now comprise over 80% of the school’s incoming classes, leaving just 20% of each class to be determined by the university’s admissions staff under its race-conscious admissions policy.  Thus, UT’s race-conscious admissions analysis results in the addition of only about 210 minority candidates in each class of 10,000.  Supporters of the current approach suggest that the de-emphasis on race makes UT’s plan more constitutional—not less.  But critics say the marginal impact of UT’s race-conscious program is precisely the problem; they argue that the race-neutral Top 10% Program is so successful in admitting minority students that the marginal impact of UT’s race-conscious program is not needed and cannot be constitutionally justified.

Ultimately, it appears that UT’s race-conscious admissions program may be doomed.  The fact that the Court granted certiorari probably means that four justices strongly disagree with the outcome reached by the Fifth Circuit Court of Appeals—which upheld the constitutionality of UT’s program—and those justices must believe they have the votes to win.  With Justice O’Connor’s departure from the Court, the apparent swing justice on the issue is Justice Anthony Kennedy, and many commentators think he is poised to do away with affirmative-action programs altogether.  Look for Justice Kennedy to write the majority opinion in this case, and for the landscape of university admissions programs to potentially change quite dramatically.

 

Supreme Court Strikes Down Unconstitutionally Retroactive Statute

Representing the estate of a worker who died of mesothelioma, Deborah Hankinson successfully argued to the Texas Supreme Court that a statute limiting corporate successor liability for asbestos-related claims was unconstitutionally retroactive. The statute was enacted after the plaintiff filed common law negligence and product… + read more

Representing the estate of a worker who died of mesothelioma, Deborah Hankinson successfully argued to the Texas Supreme Court that a statute limiting corporate successor liability for asbestos-related claims was unconstitutionally retroactive. The statute was enacted after the plaintiff filed common law negligence and product liability claims against the defendant, a successor corporation to an asbestos manufacturer. The court held the statute’s retroactive elimination of plaintiff’s mature common law tort claims, which had a substantial basis in fact, disrupted his reasonable, settled expectations under the law. The statute was enacted to help only the defendant, and no one else. Because the legislature made no findings on any substantial public interest that the statute served, the court concluded that the public interest served by the statute was slight. Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126 (Tex. 2010).

 

Deputy Constables Entitled to Procedural, not Substantive, Due Process

When a newly elected constable refused to swear in three deputy constables, they brought suit against the county claiming substantive and procedural due process violations. The Supreme Court held that as civil servants who could be dismissed only for just cause, the deputies had no… + read more

When a newly elected constable refused to swear in three deputy constables, they brought suit against the county claiming substantive and procedural due process violations. The Supreme Court held that as civil servants who could be dismissed only for just cause, the deputies had no substantive due process rights in their continued employment. Even if they did, however, the county’s termination of their employment was not so arbitrary and conscience-shocking that it violated substantive due process. Because they were not given the procedural due process that the county’s civil service system required, the deputies were entitled to nominal damages without proof of actual injury. On remand, if the county establishes just cause to terminate them, the deputies will only be entitled to damages directly resulting from the denial of a hearing, but if the county does not show just cause, the deputies may recover damages resulting from their dismissal. Deborah Hankinson and Rick Thompson represented the County of Dallas. County of Dallas v. Wiland, 216 S.W.3d 344 (Tex. 2007).

 

City Waives Immunity only to Extent Claims against City Offset City’s Claims

The Supreme Court held that when a municipality and another party bring suit against each other, the city only waives its immunity to the extent the claims against it offset its own affirmative claims. As to any damages claim against the city that exceeds the… + read more

The Supreme Court held that when a municipality and another party bring suit against each other, the city only waives its immunity to the extent the claims against it offset its own affirmative claims. As to any damages claim against the city that exceeds the amount of the offset, the trial court has no jurisdiction. The Court further held that the Texas Tort Claims Act only waives a municipality’s immunity when the city is the user of the property causing injury, which the City of Dallas was not in this case. Deborah Hankinson represented the City in this important decision. Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006).

 

Judicial Candidate Reinstated on Ballot

In this Texas Election Code case, the Supreme Court reversed the trial court’s decision to remove from the primary ballot the name of a candidate for the Texas Court of Criminal Appeals. The candidate, represented by Deborah Hankinson and Rick Thompson, had timely filed a… + read more

In this Texas Election Code case, the Supreme Court reversed the trial court’s decision to remove from the primary ballot the name of a candidate for the Texas Court of Criminal Appeals. The candidate, represented by Deborah Hankinson and Rick Thompson, had timely filed a lengthy petition signed by hundreds of eligible voters to have his name placed on the Republican ballot, but due to a clerical error, several of the pages failed to state he was running for “Place 8” on that court. The Republican Party chair overlooked the defects and approved the petition, which another candidate then challenged. The Supreme Court held that when a challenge is made based on facial defects in a petition that could have been timely cured had the party chair not overlooked them, the trial court must abate the challenge and allow the candidate the opportunity to cure. The Court reasoned that candidates should have the same opportunity to cure as a proper review before the filing deadline would have allowed them. Facial defects should exclude a candidate from the ballot only when a proper review by the party chair would have led to the same result. In re Francis, 186 S.W.3d 534 (Tex. 2006).

 

Brett Kutnick Co-Authors a Paper on Punitive Damages that is Presented at the 18th Annual Advanced Civil Appellate Practice Course

In a comprehensive article entitled “Pondering Punitives:  Issues Arising at Trial and on Appeal,” co-author Brett Kutnick examines the variety of statutory, common law, and constitutional issues that arise in obtaining or defeating, upholding or overturning punitive damage awards in Texas. Attorney: Brett Kutnick Subject… + read more

In a comprehensive article entitled “Pondering Punitives:  Issues Arising at Trial and on Appeal,” co-author Brett Kutnick examines the variety of statutory, common law, and constitutional issues that arise in obtaining or defeating, upholding or overturning punitive damage awards in Texas.

 

Texas Supreme Court Rejects Constitutional Challenge to Texas Highway Beautification Act

Rick Thompson successfully defended against a First Amendment challenge to the Texas Highway Beautification Act, which regulates outdoor advertising signs along interstate and federally funded state highways.  In this case, the Act prevented a landowner from displaying a billboard on his nonresidential property. The landowner… + read more

Rick Thompson successfully defended against a First Amendment challenge to the Texas Highway Beautification Act, which regulates outdoor advertising signs along interstate and federally funded state highways.  In this case, the Act prevented a landowner from displaying a billboard on his nonresidential property. The landowner challenged the Act as a violation of his free speech rights.  Rick Thompson argued, and the Texas Supreme Court agreed, that the Act’s proscription against outdoor advertising signs was content neutral and a valid time, place, and manner restriction under the First Amendment.  See Texas Dep’t of Transp. v. Barber, 111 S.W.3d 86 (Tex. 2003).

 

Texas Supreme Court Denies Appointment of Counsel to Indigent Prison Inmate in Civil Case

An indigent prison inmate sought court-appointed counsel in his medical malpractice lawsuit against a prison doctor who ordered the inmate to return to heavy work detail.  The Texas Supreme Court concluded that prisoner litigation against an employee of the prison did not present the type… + read more

An indigent prison inmate sought court-appointed counsel in his medical malpractice lawsuit against a prison doctor who ordered the inmate to return to heavy work detail.  The Texas Supreme Court concluded that prisoner litigation against an employee of the prison did not present the type of exceptional circumstances warranting the appointment of counsel in a civil case.  Rick Thompson authored the briefs filed in the Texas Supreme Court on behalf of the State.  See Gibson v. Tolbert, 102 S.W.3d 710 (Tex. 2003).

 

 

Texas Supreme Court Upholds State’s Immunity for Discretionary Highway Design Decisions

The widow and children of a driver killed in a highway accident sued the State for premises defect under the Texas Tort Claims Act.  According to plaintiffs, the State should have warned the driver of the dangerous condition of the highway median or should have… + read more

The widow and children of a driver killed in a highway accident sued the State for premises defect under the Texas Tort Claims Act.  According to plaintiffs, the State should have warned the driver of the dangerous condition of the highway median or should have installed safety features in the median to prevent the head-on collision.  The Texas Supreme Court concluded that the State retained its sovereign immunity from claims arising from such discretionary roadway design decisions.  Rick Thompson authored the winning briefs filed in the Texas Supreme Court on behalf of the State.  See Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864 (Tex. 2002).

 

Texas Supreme Court Rejects Waiver-by-Conduct Exception to Sovereign-Immunity Doctrine

Governmental entities, like the TNRCC, have sovereign immunity from suits for alleged breaches of contracts. Nevertheless, IT-Davy, a general contractor, sued the TNRCC for breach of contract, alleging an equitable, waiver-by-conduct exception to the sovereign-immunity doctrine. According to IT-Davy, the TNRCC waived its immunity from… + read more

Governmental entities, like the TNRCC, have sovereign immunity from suits for alleged breaches of contracts. Nevertheless, IT-Davy, a general contractor, sued the TNRCC for breach of contract, alleging an equitable, waiver-by-conduct exception to the sovereign-immunity doctrine. According to IT-Davy, the TNRCC waived its immunity from suit by accepting full performance of the contract without fully paying for the accepted services. The trial court and the court of appeals adopted this waiver-by-conduct exception. In the Texas Supreme Court, Rick Thompson argued that the TNRCC was protected by its sovereign immunity from suit and that any waiver-by-conduct exception to sovereign immunity should be adopted by the Texas Legislature, not Texas courts. The Texas Supreme Court agreed, reversed the court of appeals judgment, and dismissed IT-DAVY’s breach of contract claim because it was precluded by TNRCC’s immunity from suit. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002).

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