Tex. 2011 Opinions by Justice Paul W. Green

2012 Liaison Assignment for Justice Green:
Texas Young Lawyers Association
Judicial Committee on Information Technology
Buildings and Grounds
Supreme Court Technology
Litigation Council | Litigation Section of the
State Bar of Texas
Texas Supreme Court Historical Society

2011 Green Opinions

LAST UPDATED: 9/1/12 - 12/20/2011

Minton v. Gunn, No. 10-0141   (Tex. Dec. 16, 2011)(patent litigation) (Opinion by Paul Green)
This case arises out of patent infringement litigation. We consider whether federal courts possess exclusive subject-
matter jurisdiction over state-based legal malpractice claims that require the application of federal patent law. The
federal patent issue presented here is necessary, disputed, and substantial within the context of the overlying state legal
malpractice lawsuit. Additionally, the patent issue may be determined without creating a jurisdictional imbalance
between state and federal courts. We conclude that exclusive federal jurisdiction exists in this case. Accordingly, without
reaching the merits of the legal malpractice claim, we reverse the court of appeals’ judgment and dismiss this case.
CONCLUSION
Because we determine that the application of the experimental use exception to the on-sale bar is a necessary, disputed,
and substantial element of Minton’s state-based legal malpractice claim, and because the federal courts are capable of
addressing this issue without disrupting the jurisdictional balance existing between state and federal courts, we hold
that Minton’s claim has triggered exclusive federal patent jurisdiction. Accordingly, we do not reach the merits of Minton’s
claims, and we reverse the court of appeals’ judgment and dismiss the case.
VERNON F. MINTON v. JERRY W. GUNN, INDIVIDUALLY, WILLIAMS SQUIRE & WREN, L.L.P., JAMES E. WREN,
INDIVIDUALLY, SLUSSER & FROST, L.L.P., WILLIAM C. SLUSSER, INDIVIDUALLY, SLUSSER WILSON & PARTRIDGE, L.
L.P., AND MICHAEL E. WILSON, INDIVIDUALLY; from Tarrant County; 2nd district (02-06-00443-CV, 301 SW3d 702, 10-
08-09)
The Court reverses the court of appeals' judgment and dismisses the case.
Justice Paul Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Phil
Johnson , and Justice Lehrmann joined.
Justice Eva Guzman delivered a dissenting opinion, in which Justice David Medina and Justice Willett joined.
(Justice Hecht not sitting)
Link to Electronic Briefs in this case, incl. amicus brief: 10-0141 MINTON v. GUNN

Robinson v. Parker [Houston Mayor],
No. 08-0658 (Tex. Aug. 26, 2011)(Opinion by Justice Paul Green)
CARROLL G. ROBINSON, BRUCE R. HOTZE, AND JEFFREY N. DAILY v. ANNISE D. PARKER, MAYOR;
CITY OF HOUSTON; HOUSTON CITY COUNCIL, ET AL.; from Harris County; 14th district (14-06-00167-
CV, 260 SW3d 463, 04-03-08)
The Court vacates the judgments of the court of appeals and the trial court and dismisses the case for
want of jurisdiction.
Justice Green delivered the opinion of the Court. [pdf]
(Justice Guzman not sitting)
Link to e-briefs: ROBINSON v. BILL WHITE, MAYOR (one amicus brief)

Ojo v. Farmers Group Inc., No. 10-0245 (Tex. May 27, 2011)(Green)
The United States Court of Appeals for the Ninth Circuit certified to this Court the following question:
Does Texas law permit an insurance company to price insurance by using a credit-score factor that has
a racially disparate impact that, were it not for the [McCarran-Ferguson Act],1 would violate the federal
Fair Housing Act, 42 U.S.C. §§ 3601–19, absent a legally sufficient nondiscriminatory reason, or would
using such a credit-score factor violate Texas Insurance Code sections 544.002(a), 559.051, 559.052,
or some other provision of Texas law?
Ojo v. Farmers Group, Inc., 600 F.3d 1201, 1204–05 (9th Cir. 2010) (en banc) (per curiam). Pursuant
to Article 5, section 3-c of the Texas Constitution and Texas Rule of Appellate Procedure 58.1, we
answer that Texas law prohibits the use of race-based credit scoring, but permits race-neutral credit
scoring even if it has a racially disparate impact.
PATRICK O. OJO, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED v. FARMERS GROUP, INC., FIRE
UNDERWRITERS ASSOCIATION, FIRE INSURANCE EXCHANGE, FARMERS UNDERWRITERS ASSOCIATION, AND
FARMERS INSURANCE EXCHANGE
The Court answers the question certified by the United States Court of Appeals for the Ninth Circuit.
Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Medina,
Justice Johnson, Justice Guzman, and Justice Lehrmann joined, and in which Justice Willett joined as to Parts I, II, III.A-
B, IV, and V. [pdf]
Chief Justice Jefferson delivered a concurring opinion. [pdf]
So what does the Court’s survey of legislative history tell us today? The Court makes no attempt to construct the statute’s
meaning by looking at its history. Instead, it gives us information that, while not essential to our interpretation of the
Insurance Code, is far from irrelevant: “The legislative history of the credit scoring bill and the arguments of its opponents
indicates that the Texas Legislature was aware of the possibility of a disparate impact on racial minorities, yet did not
expressly provide for a disparate impact claim as it did in the Texas Labor Code.” ___ S.W.3d at ___. Thus, we are told
that the statute says what it says because the Legislature intended that meaning.15 This fact has no bearing on our
interpretation, and we would interpret clear language the same regardless of whether or not the Legislature had given
thought to the specific issue before us. The inclusion of this history gives notice to those who feel wronged by the statute.
The remedy they seek requires engagement in the political process, on the legislative battlefield. Moreover, it gives those
same aggrieved citizens some indication of why the Legislature would have made the choice that it did, allowing them to
hone their advocacy. For those who support the statute, this language’s relevance is much the same. This guidance will
not harm democracy, our reputation, or the bar, and indeed it may help.
Justice Willett delivered a concurring opinion. [pdf]
The Court is right that today’s outcome is dictated by the Insurance Code as it is written. That being so, I wish the Court
were more inhibited to do what we have prohibited—mine extratextual clues to illuminate an already-unambiguous
statute. Text alone does not answer every question, but it answers many, including today’s, as the Court concedes. I
accept a cautious (and non-villainous) role for extrinsic aids, including certain legislative history, where a nebulous
statute is susceptible to varying interpretations,1 but our rule for unambiguous statutes is uncomplicated: “Where text is
clear, text is determinative,”2 making any foray into extratextual aids not just inadvisable but, as we have repeatedly
derided it, “inappropriate.”3
The Court nowhere states—or even suggests—the Insurance Code is ambiguous. But even assuming arguendo it is,
“thus justifying cautious use of secondary construction aids,”4 the Court beckons some strange ones, including some
we have consistently decried as patently unreliable (like failed bills in a subsequent Legislature). The Court’s detour
may be well meaning, but it is not well supported, and I regret its “disparate impact” on our interpretive precedent. I
would hold to our holdings—when the Legislature speaks plainly, the judiciary should as well. In other words, and
applying a rule less prudish than prudent, if it is not necessary to look further, it is necessary not to look further. An
unembellished interpretation of an unambiguous statute can be spare without being sparse. For these reasons, I agree
with all but Part III.C of today’s opinion.
The Court’s textual analysis is clear and incisive, and I join it unreservedly. The meaning of the Insurance Code is
apparent from its language, read in context, especially as contrasted with the Labor and Government Codes, both of
which explicitly allow disparate-impact liability. All in all, though, I wish the Court were more allegiant to our longstanding
interpretive precedent. We should treat similar cases similarly, not disparately. Given the rise of state legisprudence, we
owe interpretive clarity—and consistency—to the courts below us, the litigants before us, the citizens beside us, and the
cases beyond us.
(Justice Hecht not sitting)
See Electronic Briefs in 10-0245 PATRICK O. OJO v. FARMERS GROUP, INC.

Italian Cowboy Partners, Ltd.,No. 08-0989 (Tex. Apr. 15, 2011)(by Green)
We recognized decades ago that agreeing to a merger clause does not waive the right to sue for fraud
should a party later discover that the representations it relied upon before signing the contract were
fraudulent. See Dallas Farm Mach. Co. v. Reaves, 307 S.W.2d 233, 239 (Tex. 1957) (quoting Bates v.
Southgate, 31 N.E.2d 551, 558 (Mass. 1941)). The principal issue in this case is whether disclaimer-of-
representations language within a lease contract amounts to a standard merger clause, or also
disclaims reliance on representations, thus negating an element of the petitioner’s claim for fraudulent
inducement of that contract. We conclude that the contract language in this case does not disclaim
reliance or bar a claim based on fraudulent inducement. Accordingly, we reverse the take-nothing
judgment of the court of appeals and remand the case to that court for further proceedings consistent
with this opinion. We render judgment in favor of the lessee on its claim for rescission premised on
breach of the implied warranty of suitability.
ITALIAN COWBOY PARTNERS, LTD., FRANCESCO SECCHI AND JANE SECCHI v. THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA AND FOUR PARTNERS, LLC D/B/A PRIZM PARTNERS AND D/B/A UNITED COMMERCIAL
PROPERTY SERVICES; from Dallas County;
11th district (11-05-00264-CV, 270 SW3d 192, 07-24-08)
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to that court.
Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Medina,
Justice Johnson, and Justice Lehrmann joined. [pdf]
Justice Hecht delivered a dissenting opinion, in which Justice Willett and Justice Guzman joined. [pdf]
View Electronic Briefs
08-0989 ITALIAN COWBOY PARTNERS, LTD. v. THE PRUDENTIAL INS. CO. OF AMERICA

Tawes v. Barnes, No. 10-0581 (Tex. Apr. 15, 2011)(Green)
In this case, which arose from an oil and gas lessor’s claim for unpaid royalties, we consider the
construction and application of a Working Interest Unit Agreement (WIUA) and a Joint Operating
Agreement (JOA). The issues come to us on certified questions from the United States Court of Appeals
for the Fifth Circuit. The Fifth Circuit asks first whether the lessor here, either as a third-party beneficiary
or through privity of estate, can enforce the WIUA and JOA to recover unpaid royalties from an investor
who consented to the drilling of two wells on a pooled gas unit, but did not operate the wells. See In re
Moose Oil & Gas Co., 613 F.3d 521, 531 (5th Cir. 2010). Pursuant to Article 5, Section 3-c of the Texas
Constitution and Texas Rule of Appellate Procedure 58.1, we answer this question in the negative, and
therefore do not reach the Fifth Circuit’s remaining certified questions.
O. LEE TAWES, III v. DORIS BARNES, INDIVIDUALLY AND AS INDEPENDENT EXECUTRIX OF THE ESTATE OF LEON
MCNAIR BARNES, DECEASED
The Court answers the question certified by the United States Court of Appeals for the Fifth Circuit.
Justice Green delivered the opinion of the Court. [pdf]
View Electronic Briefs 10-0581 TAWES v. BARNES