2006 Opinions by Justice George C. Hanks, Jr. (Tex.App.- Houston [1st Dist.] 2006)

NOTABLE CASE:

JUSTICE HANKS WRITES PRECEDENT-SETTING OPINION HOLDING THAT SOVEREIGN IMMUNITY DOES NOT
BAR BREACH-OF-CONTRACT CLAIM AGAINST TEXAS SOUTHERN UNIVERSITY; ADOPTS WAIVER-BY-
CONDUCT EXCEPTION

Substituted opinion authored by Justice George C. Hanks released Jan. 11, 2007. Tex. S. Univ. v. State Street Bank and Trust Co. II
(Tex.App.-Houston [1st Dist.] Jan. 11, 2007)(holding that waiver by conduct theory was valid basis for denial of TSU's plea to the
jurisdiction, but rejecting inverse condemnation claim against the University). Interestingly, Justice Hanks granted the University of
Houston's plea to the jurisdiction on sovereign immunity grounds in a breach of contract case when he was a Harris County district
judge, and even cites the appellate opinion upholding his ruling in the opinion he wrote in the TSU case. Freedman v. Univ. of Houston,
110 S.W.3d 504, 508 (Tex.App.- Houston [1st Dist.] 2003, no pet.)(state university immune to breach of contract suits).

The Texas Supreme Court has declined to apply the waiver-by-conduct theory of immunity every time it was raised in previous cases,
except there the state itself brought suit and the defendant filed a counterclaim. Reata Const. Corp. v. City of Dallas , 197 S.W.3d 371
(Tex. Jun 30, 2006). The High Court had left open the possibility for other waiver-by-conduct exception to sovereign immunity in a
footnote in previous breach of contract case against TSU, a historically black university in Houston. See Fed. Sign v. Tex. S. Univ., 951 S.
W.2d 401, 408 (Tex. 1997). After trying a few times, the courts of appeals in recent years routinely declined to recognize waiver by
conduct, awaiting guidance on the issue from the state's court of last resort in civil matters. In his opinion in the TSU case, Justice
Hanks breaks with that deferential tradition. The case will likely be appealed to the Supreme Court, and a major new statewide
precedent may be created as a result. Sovereign immunity has been a prominent issue on the Court's agenda in recent years, and as
the TSU appeal illustrates, the last word has not been spoken.

In 2006 the Texas Supreme Court decided numerous Sovereign Immunity Appeals, but did not address the waiver-by-conduct issue. It
held, inter alia, that a statutory provision stating that a public entity may sue and be sued does not, by itself, constitute a clear and
unambiguous waiver of immunity. See Tooke v. City of Mexia No. 03-0878 (Tex. June 30, 2006)(opinion by Hecht)

LINKS TO OPINIONS BY OTHER JUSTICES

Chief Justice Sherry Radack | Justice Elsa Alcala | Justice Jane N. Bland | Justice Laura Carter Higley |
Justice Evelyn Keyes | Justice Terry Jennings | Justice Sam uel Nuchia | Justice Timothy Taft

LINKS TO TOPICS PAGES

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Appeals | Lease Law | Property Tax Case Law | Real Estate Transactions Cases | School Law | Workplace Law |
Sanctions Case Law | Venue Case Law | City of Houston Cases | City of Galveston Cases |

Recent Opinions by Justice Hanks (2006)

Justice Hanks Affirms Trial Court's Ruling that Mother Could Not Recover for False HIV Diagnosis

Johnson v. Methodist Hosp. (Tex.App.- Houston [1st Dist.] Dec. 14, 2006)(Hanks)
[medical malpractice, false HIV diagnosis and treatment, negligence, no physical damages, no recovery for mental
anguish, JNOV affirmed]
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Taft, Keyes and Hanks
01-05-01068-CV        Nadine Johnson v. The Methodist Hospital
Appeal from 280th District Court of Harris County

Lousy Briefing Dooms Appeal

Trammell v. Frost National Bank (Tex.App.- Houston [1st Dist.] Dec. 7, 2006)(Hanks)
[appellate law, inadequate briefing, appeal fails]
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Jennings, Hanks and Higley
01-05-00216-CV        Tom J. Trammell v. Frost National Bank
Appeal from 295th District Court of Harris County (Hon. Tracy Christopher)

Mosley v. Mosley (Tex.App.- Houston [1st. Dist.] Nov. 16, 2006)(Hanks)
[family law, enforcement of property division, inherent power to sanction]
AFFIRM TC JUDGMENT: Justice Hanks
Before Justices Nuchia, Keyes and Hanks
01-04-00425-CV Eugene Mosley v. Pamely Mosley (Davis) and Allette B. Williams
Appeal from 387th District Court of Fort Bend County

Webworld Marketing Group v. Thomas (Tex.App.- Houston [1st Dist.] Nov. 9, 2006)(Hanks)
[zoning law, sexually oriented business, SOB application]
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Justice Hanks
Before Justices Nuchia, Keyes and Hanks
01-04-00749-CV Webworld Marketing Group, L.L.C. v. Tommie Thomas
Appeal from 215th District Court of Harris County

Harris County v. Norris (Tex.App.- Houston [1st Dist.] Nov. 9, 2006)(Hanks)
[employment law, wrongful termination]
AFFIRM TC JUDGMENT: Justice Hanks
Before Justices Taft, Keyes and Hanks
01-04-01087-CV Harris County, Texas v. Cheryl Norris
Appeal from 270th District Court of Harris County

D.O. v. Texas (Tex.App.- Houston [1st Dist.] Nov. 9, 2006)(Hanks)
[juvenile law, assault, act in defense of third person defense, witness competency]
AFFIRM TC JUDGMENT: Justice Hanks
Before Justices Taft, Keyes and Hanks
01-05-00989-CV D. O. v. The State of Texas
Appeal from 314th District Court of Harris County
(““Oh, come on” is not a sufficient objection stating the specific grounds for complaint. Because appellant did not
make a sufficient objection at trial, no error has been preserved for our review.”)

McCleery v. Comm'n for Lawyer Discipline (Tex.App.- Houston [1st Dist.] Oct. 5, 2006)(Hanks)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
(Before Justices Taft, Keyes and Hanks)
01-04-01036-CV Stephen E. McCleery v. Commission for Lawyer Discipline
Appeal from 55th District Court of Harris County

Kubosh v. State of Texas (Tex.App.- Houston [1st Dist.] Aug. 31, 2006)(Hanks)(surety, bail bond, forfeiture, default
judgment)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
(Before Justices Jennings, Hanks and Higley)
01-05-00401-CV        Surety Felix Michael Kubosh v. The State of Texas
Appeal from 174th District Court of Harris County
Approx. $8,250.00 v. State of Texas (Tex.App.-Houston [1st Dist.] Aug. 31, 2006)(Hanks)(forfeiture)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
(Before Justices Jennings, Hanks and Higley)
01-04-01221-CV        Approximately $8,250.00 (Eric Moncevaiz Vasquez) v. The State of Texas
Appeal from 165th District Court of Harris County

Truck Insurance v. Chalfant (Tex.App.–Houston [1st Dist.] April 13, 2006)(Hanks)(consumer law)
[insurance law, biz law, auto law, automobile insurance coverage dispute, no auto insurance coverage for company
president because insured was the corporation and claimant was not a family member of the corporation, nor an
individual designated by name as covered]
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice George Hanks
Before Justices Nuchia, Keyes and Hanks
01-05-00546-CV Truck Insurance Exchange v. Steven Chalfant
Appeal from 133rd District Court of Harris County (Hon. Lamar McCorkle)
(“Where only a corporation is named as an insured and no name is provided as a designated person in the UM/UIM
endorsement, the policy has a certain and definite legal meaning which did not include coverage for occupants of a
vehicle which was not owned or leased by the corporation.”)

Jim Wells County v. El Pas Production Oil and Gas Co. (Tex.App- Houston [1st Dist.] Jan. 26, 2006)(Hanks)(tax
appeal)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks, Concurring Opinion by Justice Jennings
Before Justices Taft, Jennings and Hanks
01-04-01277-CV        JIM WELLS COUNTY AND PREMONT INDEPENDENT SCHOOL DISTRICT v. EL PASO
PRODUCTION OIL AND GAS COMPANY; EL PASO PRODUCTION OIL AND GAS USA, L.P.; EL PASO CGP
COMPANY; COASTAL OIL AND GAS CORPORATION; THE COASTAL CORPORATION; COASTAL STATES
TRADING, INC.; COASTAL STATES CRUDE GATHERING COMPANY; ET AL.
Appeal from 79th District Court of Jim Wells County
Concurring Opinion