In Re DFPS No. 04-1043 (Tex. Dec. 15, 2006)(Wainwright)(substitute opinion) [family law, child abuse and neglect, termination of parental rights, procedural issues, mandamus, other remedy, accelerated appeal] IN RE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES; from Travis County; 3rd district (03-04- 00464-CV, 03-04-00466-CV, 150 SW3d 819, 10-21-04) motion for rehearing denied. The Court withdraws its opinion issued September 22, 2006, and issues a substituted opinion. Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Justice Wainwright delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Hecht, Justice Brister, Justice Medina, Justice Green, Justice Johnson, and Justice Willett Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.
(“We conclude that the court of appeals erred in granting Ludwig’s and Higdon’s petitions for writ of mandamus. We conditionally grant the Department’s petition for writ of mandamus because Higdon and Ludwig had an adequate remedy by appeal. Pursuant to Texas Rule of Appellate Procedure 52.8(c) and without hearing oral argument, we direct the court of appeals to vacate its order to the trial court directing the trial court to dismiss the case. The writ will issue only if the court of appeals does not comply.”)
First, as the Court acknowledges, we have regularly granted mandamus relief in cases affecting child custody. See, e.g., Powell v. Stover, 165 S.W.2d 322, 324 (Tex. 2005); In re Forlenza, 140 S.W.3d 373, 379 (Tex. 2004). Child- custody proceedings touch on constitutional interests of parents and critical issues affecting children’s welfare. In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). In this sensitive context, we have afforded mandamus review even though an appeal may have been available. Geary v. Peavy, 878 S.W.2d 602, 603 (Tex. 1994).
I agree with the Court that mandamus is generally not available to a party that has an adequate remedy by appeal. But we have said that the concept of “adequacy” is not inexorably fixed, and “rigid rules are necessarily inconsistent with the flexibility that is the remedy’s principal virtue.” In re Prudential Ins. Co., 148 S.W.3d 124, 136 (Tex. 2004). In recent years, we have allowed mandamus review to protect interests of far less consequence than those at stake in this case. We have, for example, granted mandamus relief to a party wrongfully denied arbitration, Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266 (Tex. 1992); a party seeking to enforce a forum-selection clause, In re AIU Ins. Co., 148 S.W.3d 109 (Tex. 2004); a party seeking relief from overbroad discovery orders, In re CSX Corp., 124 S.W.3d 149 (Tex. 2003); a party seeking to enforce a pre-trial jury waiver, In re Prudential Ins. Co., 148 S.W.3d 124; and a party denied a legislative continuance under § 30.003 of the Texas Civil Practice and Remedies Code, In re Ford Motor Co., 165 S.W.3d 315, 322 (Tex. 2005). Yet when a child lingers in foster care while the legal process determines whether the parental relationship will be forever severed, the Court decides that an adequate appellate remedy precludes mandamus review. Under the circumstances this case presents, I disagree.
Operating Partners v. Duenez (Tex. Nov. 3, 2006)(Wainwright)(opinion on rehearing)(superseded opinion) [Dram Shop Act, liability, causation, statutory construction, proportionate responsibility] 02-0381 F.F.P. OPERATING PARTNERS, L.P. D/B/A MR. CUT RATE #602 v. XAVIER DUENEZ, AND WIFE, IRENE DUENEZ, AS NEXT FRIENDS OF CARLOS DUENEZ AND PABLO DUENEZ, MINORS; from Calhoun County; 13th district (13 00 00466 CV, 69 S.W.3d 800, 02 14 02) On April 8, 2005, the Court granted petitioner's motion for rehearing. This Court's opinions and judgment of September 3, 2004, are withdrawn and the opinions and judgment issued today are substituted. The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Wainwright delivered the opinion of the Court, joined by Justice Hecht, Justice Brister, Justice Medina, Justice Green, Justice Johnson, and Justice Willett ("We are asked to revisit our holding in Smith v. Sewell that the proportionate responsibility scheme of chapter 33 of the Texas Civil Practice and Remedies Code requires an apportionment of responsibility under chapter 2 of the Alcoholic Beverage Code. 858 S.W.2d 350 (Tex. 1993). We decline the invitation to reverse Sewell and instead affirm its holding that the language of the proportionate responsibility statute includes claims under the Dram Shop Act. Neither the purpose nor the language of the Act makes a dram shop automatically responsible for all of the damages caused by an intoxicated patron, regardless of a jury’s determination of the dram shop’s proportion of responsibility. Instead, pursuant to Chapter 33, a dram shop is responsible for its proportionate share of the damages as determined by a jury. Accordingly, we reverse the court of appeals’ judgment and remand the case for a new trial.... We granted F.F.P.’s petition for review and issued an opinion on September 3, 2004. F.F.P. filed a motion for rehearing. While the motion was pending, Xavier, Irene, and Ashley Duenez settled their claims against F. F.P. Only the claims of Pablo and Carlos Duenez against F.F.P. remained before the Court. On April 8, 2005, we granted the F.F.P.’s motion for rehearing. The case was re-argued on November 30, 2005. Today we withdraw the Court’s previous opinion and substitute this one in its place.")
Today, the Court modifies its interpretation in Light v. Centel Cellular Company of the Covenants Not to Compete Act. See 883 S.W.2d 642 (Tex. 1994); Tex. Bus. & Com. Code §§ 15.50–.52. The at-will employee in this case, Kenneth Johnson, asserted that a noncompete agreement was unenforceable under Light’s construction of subsection 15.50(a) of the Act because no consideration was exchanged at the time the parties entered into the agreement. Contrary to Light, the Court holds that Johnson became bound by his promise not to compete when his employer later performed its corresponding promise to provide special training in its business methods and confidential information. This is similar to a unilateral contract under the common law and seems to address the Legislature’s purpose. I join most of the Court’s opinion.
Both the confidentiality agreement and the noncompete are part of Johnson’s employment agreement. I would hold that the covenant not to compete is enforceable on the ground that it is ancillary to the otherwise enforceable confidentiality agreement.
Tommy Thomas v. Long No. 03-0204 (Tex. April 21, 2006)(Wainwright) The Court reverses the court of appeals' judgment and renders judgment. Justice Wainwright delivered the opinion of the court SHERIFF OF HARRIS COUNTY v. JEANNE LONG; from Harris County; 14th district (14 02 00251 CV he opinion of the Court (“This is an interlocutory appeal of a trial court’s denial of a jurisdictional plea. Although the plea was made as part of a motion for summary judgment, the court of appeals had jurisdiction to consider the interlocutory appeal under section 51.014(a)(8) of the Texas Civil Practice and Remedies Code. We conclude that the court erred in determining that it was without jurisdiction to consider the appeal. However, we dismiss the claims relating to the respondent’s reinstatement to her employment because her failure to exhaust administrative remedies deprived the trial court of subject matter jurisdiction over those claims.”)(“The trial court was without subject matter jurisdiction to issue a declaratory judgment in this case and erred in denying Thomas’s jurisdictional challenge.”) Opinion below: Thomas v. Long, 97 S.W.3d 300 (Tex. App.–Houston [14th Dist.] 2003, rev'd) Trial Court: 281st District Court, Harris County; Trial Court Judge: Jane Nenninger Bland, now a Justice on the First Court of Appeals and occasional Supreme Court Justice by assignment; Trial Court Case No. 2001-58372