Tex. Sup. Ct. 2011 Opinions authored by Justice Phil Johnson

2012 Tex. Sup. Ct. Liaison Assignments for Justice Johnson:
State Bar of Texas
Council of Chief Justices
Docket Equalization of Courts of Appeals
Task Force on Judicial Foreclosure Rules
State Bar of Texas Judicial Section Board of Directors
State Bar of Texas Judicial Section’s Ethics Committee
Clerk’s Office
Board of Legal Specialization

2011 Texas Supreme Court Opinions
by Justice Phil Johnson,
Including Dissents and Concurrences

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

City of Dallas v. Parker, No. 07-0288 (Tex. Dec. 16, 2011)(Opinion by Phil Johnson)
(public employment, immunity of governmental entities)
This appeal involves issues of governmental immunity from suit. With the exception that this matter is a class action, which does
not affect our analysis or conclusions, and one argument that we address separately, the material facts, procedural background,
issues, and arguments presented are similar to those we considered in City of Dallas v. Albert, ___ S.W.3d ___ (Tex. 2011).
Thus, our conclusions and holdings are the same as those in Albert.
In addition to arguments made in Albert and addressed above, the Officers in this case assert that the City’s immunity from suit is
waived because the suit implicitly involves the validity of pay resolutions adopted by the city council. See TEX. CIV. PRAC. & REM.
CODE § 37.006(b) (“In any proceeding that involves the validity of a municipal ordinance . . . the municipality must be made a party
. . . .”). However, the Officers’ pleadings do not support this contention. Their pleadings reference the ordinance as having become
a term of their employment contracts and two resolutions as possible bases for calculating their damages. They do not question
the validity of either the ordinance or a resolution.
We reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.
CITY OF DALLAS v. DAVID S. MARTIN AND GEORGE G. PARKER, ET AL.; from Rockwall County; 5th district (05-03-01310-CV, 214
SW3d 638, 12-21-06) 2 petitions
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Phil Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright,
Justice David Medina, Justice Paul Green, Justice Eva Guzman, and Justice Lehrmann joined.
Justice Willett delivered a dissenting opinion
Link to Electronic Briefs in this case, including amicus brief by State of Texas: 07-0288 CITY OF DALLAS v. MARTIN

In re Allcat Claims Service, LP, No. 11-0589 (Tex. Nov. 28, 2011)(Opinion by Johnson)
In this original proceeding Allcat Claims Service, L.P., a limited partnership, and one of its limited partners seek an order directing
the Comptroller to refund franchise taxes Allcat paid that were attributable to partnership income allocated, but not distributed, to
its natural-person partners. Allcat claims it is entitled to a refund for two reasons. First, the tax facially violates Article VIII, Section
24 of the Texas Constitution because it is a tax on the net incomes of its natural-person partners that was not approved in a
statewide referendum. Second, as applied by the Comptroller to Allcat and its partners, the franchise tax violates Article VIII,
Section 1(a) of the Constitution, which requires taxation to be equal and uniform. We hold that: (1) the tax is not a tax imposed on
the net incomes of the individual partners, thus it does not facially violate Article VIII, Section 24; and (2) we do not have jurisdiction
to consider the equal and uniform challenge.
IN RE ALLCAT CLAIMS SERVICE, L.P. AND JOHN WEAKLY
The Court denies Allcat's requests for relief relating to its facial challenge because the Act does not violate Article VIII, Section 24
of the Constitution. The Court dismisses the as-applied challenge and attorney's fees claim for lack of jurisdiction. Justice Phil
Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice David
Medina, Justice Paul Green, and Justice Eva Guzman joined.
Justice Willett delivered an opinion concurring in part and dissenting in part, in which Justice Lehrmann joined.
Link to Electronic Briefs: 11-0589 IN RE ALLCAT CLAIMS SERVICE, L.P.

City of Dallas v. Alb ert, No. 07-0284 (Tex. Aug. 26, 2011)(Opinion by Justice Phil Johnson)
CITY OF DALLAS v. KENNETH E. ALBERT, ET AL.; from Collin County; 5th district (05-03-01297-CV, 05-03-01298-CV, 214 SW3d
631, 12-21-06) 2 petitions
motion to strike response to notice regarding counsel denied; motion to strike notice of appearance denied; motion to consider
cause denied
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Phil Johnson delivered the opinion of the Court, in which Justice Wainwright, Justice Medina, Justice Green, Justice
Guzman, and Justice Lehrmann joined, and in which Chief Justice Jefferson and Justice Hecht joined except to Part II-B. [pdf]
Justice Hecht delivered an opinion concurring in part and dissenting in part, in which Chief Justice Jefferson joined. [pdf]
Justice Willett delivered a dissenting opinion. [pdf]
Link to e-briefs: CITY OF DALLAS v. ALBERT

Texas Parks & Wildlife Department v. The Sawyer Trust, No. 07-0945 (Tex. Aug. 26, 2011)(Opinion
by Justice Phil Johnson)
TEXAS PARKS AND WILDLIFE DEPARTMENT v. THE SAWYER TRUST; from Donley County; 7th district (07-06-00487-CV, ___
SW3d ___, 08-22-07)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Medina, Justice
Green, Justice Willett, Justice Guzman, and Justice Lehrmann joined. [pdf]
Chief Justice Jefferson delivered a concurring opinion, in which Justice Medina, Justice Willett, and Justice Guzman joined. [pdf]
Justice Hecht delivered an opinion concurring in part and dissenting in part.
Link to e-briefs: TEXAS PARKS AND WILDLIFE DEPARTMENT v. THE SAWYER TRUST

Texas Mutual Ins. Co. v. Ruttiger, No. 08-0751 (Tex. Aug. 26, 2011)(Opinion by Justice Phil Johnson)
TEXAS MUTUAL INSURANCE COMPANY v. TIMOTHY J. RUTTIGER; from Galveston County; 1st district (01-06-
00897-CV, 265 SW3d 651, 07-31-08)
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to that
court.
Justice Johnson delivered the opinion of the Court with respect to Parts I, II, III, IV, and VI, in which Justice Hecht,
Justice Wainwright, Justice Medina, Justice Willett and Justice Guzman joined, and an opinion with respect to
Part V, in which Justice Hecht, Justice Wainwright, and Justice Medina joined. [pdf]
Justice Willett delivered a concurring opinion, in which Justice Guzman joined. [pdf]
Chief Justice Jefferson delivered a dissenting opinion, in which Justice Green and Justice Lehrmann joined. [pdf]
Link to e-briefs incl. amicus briefs and responses s: TEXAS MUTUAL INS. CO. v. RUTTIGER

Omaha Healthcare Center, LLC v. Johnson,
No. 08-0231 (Tex. Jul. 1, 2011)(Opinion by Justice Phil Johnson)(HCLC, med-mal suit, characterization of claim,
what falls within definition of health care liability claim to trigger expert report requirement?)
In this case we consider whether claims against a nursing home regarding a patient’s death alleged to have
been caused by a brown recluse spider bite are health care liability claims (HCLCs) that required an expert
report to be served. The trial court and court of appeals held that they were not. We disagree.
Conclusion. Johnson’s claim is an HCLC and should have been dismissed. Because Omaha requested its
attorney’s fees and costs in the trial court pursuant to Civil Practice and Remedies Code section 74.351(b)(1),
the case must be remanded.
We grant Omaha’s petition for review. Without hearing oral argument we reverse the court of appeals’ judgment
and remand the case to the trial court with instructions to dismiss Johnson’s claims and consider Omaha’s
request for attorney’s fees and costs.
CASE DETAILS: OMAHA HEALTHCARE CENTER, LLC v. WILMA JOHNSON, ON BEHALF OF THE ESTATE OF CLASSIE MAE
REED, DECEASED; from Morris County; 6th district (06-07-00089-CV, 246 SW3d 278, 02-08-08)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the
Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Phil Johnson delivered the opinion of the Court, in which Chief Justice Wallace B. Jefferson, Justice Nathan L. Hecht,
Justice Dale Wainwright, Justice Paul W. Green, Justice Don R. Willett, and Justice Eva M. Guzman joined. [pdf]
Justice Debra Lehrmann delivered a dissenting opinion, in which Justice David Medina joined. [pdf]
Here is the link to e-briefs in case no. 08-0231 OMAHA HEALTHCARE CENTER, LLC v. JOHNSON

Jackson v. State Office of Administrative Hearings,
No. 10-0002 (Tex. Jul. 1, 2011)(Opinion by Justice Phil Johnson)
(open records act request under PIA)
In order to withhold public information requested pursuant to the Texas Public Information Act (TPIA) a
governmental entity must demonstrate that the requested information is not within the scope of the TPIA or that
it falls within one of TPIA’s specific exceptions to the disclosures requested. See Tex. Gov’t Code §§ 552.101-.
148; City of Garland v. Dallas Morning News, 22 S.W.3d 351, 355-56 (Tex. 2000). In this case, the State Office
of Administrative Hearings (SOAH) refused to disclose certain decisions and orders in license suspension cases
related to delinquent child support. The trial court and court of appeals agreed with SOAH that the information is
expressly excepted from disclosure by the Texas Government Code provisions.
We hold that the decisions and orders must be disclosed after redaction of information expressly excepted from
disclosure and not already in a public record or otherwise in the public domain. We reverse and remand to the
trial court for further proceedings.
Conclusion. The decisions and orders Jackson requested must be disclosed. See Tex. Gov’t Code § 552.002.
The Legislature has clearly expressed its intent that exceptions to disclosure be construed narrowly. See Tex.
Gov’t Code § 552.001; In re Georgetown, 53 S.W.3d at 340 (“‘When the Legislature has intended to make
information confidential, it has not hesitated to so provide in express terms.’” (quoting Birnbaum v. Alliance of
Am. Insurers, 994 S.W.2d 766, 776 (Tex. App.—Austin 1999, pet. denied)); see also Cameron v. Terrell &
Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981) (“[E]very word of a statute must be presumed to have been used
for a purpose. Likewise, we believe every word excluded from a statute must also be presumed to have been
excluded for a purpose.”) (citations omitted). We decline to read the language of the statute broader than it is
written and we conclude that the purpose and intent of the TPIA can be fulfilled by disclosing the requested
documents with redactions. See City of Fort Worth v. Cornyn, 86 S.W.3d 320, 326 (Tex. App.—Austin 2002, no
pet.) (“To find otherwise would also be inconsistent with the Legislature’s directive to liberally construe the Act in
favor of disclosure.”). We therefore hold that SOAH must disclose the requested decisions and orders after
redaction of any information obtained during provision of Chapter 231 services, such as information concerning
a custodial parent, noncustodial parent, child, and an alleged or presumed father, that was not already in the
public domain.
CASE DETAILS: SAMUEL T. JACKSON v. STATE OFFICE OF ADMINISTRATIVE HEARINGS AND SHELIA BAILEY TAYLOR IN HER
OFFICIAL CAPACITY AS CHIEF ADMINISTRATIVE LAW JUDGE, STATE OFFICE OF ADMINISTRATIVE HEARINGS; from Travis
County; 3rd district (03-07-00293-CV, ___ SW3d ___, 07-30-09)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Phil Johnson delivered the opinion of the Court. [pdf]
Here is the link to
e-briefs in case no. 10-0002 JACKSON v. STATE OFFICE OF ADMINISTRATIVE HEARINGS

City of Dallas v. Stewart, Heather,
No. 09-0257 (Tex. Jul. 1, 2011)(Opinion by Chief Wallace B. Jefferson)(administrative resolution of nuisance abatement dispute
not preclusive, judicial review available, takings claim)
Urban blight threatens neighborhoods. Either as a risk to public health or as a base for illicit activity, dilapidated structures harm
property values far more than their numbers suggest. Cities must be able to abate1 these nuisances to avoid disease and deter
crime. But when the government sets up a mechanism to deal with this very real problem, it must nonetheless comply with
constitutional mandates that protect a citizen’s right to her property.
Today we hold that a system that permits constitutional issues of this importance to be decided by an administrative board,
whose decisions are essentially conclusive, does not correctly balance the need to abate nuisances against the rights accorded
to property owners under our constitution. Independent court review is a constitutional necessity. We affirm the court of appeals’
judgment, but on different grounds.
Conclusion. That the URSB’s nuisance determination cannot be accorded preclusive effect in a takings suit is compelled by the
constitution and Steele, by Lurie and its antecedents, by the nature of the question and the nature of the right. The protection of
property rights, central to the functioning of our society,26 should not—indeed, cannot—be charged to the same people who seek
to take those rights away.
Because we believe that unelected municipal agencies cannot be effective bulwarks against constitutional violations, we hold that
the URSB’s nuisance determination, and the trial court’s affirmance of that determination under a substantial evidence standard,
were not entitled to preclusive effect in Stewart’s takings case, and the trial court correctly considered the issue de novo.
We affirm the court of appeals judgment. Tex. R. App. P. 60.2(a).
CASE DETAILS: CITY OF DALLAS v. HEATHER STEWART; from Dallas County; 5th district (05-07-01244-CV, ___ SW3d ___, 12-
11-08)
The Court affirms the court of appeals' judgment.
Chief Justice Wallace B. Jefferson delivered the opinion of the Court, in which Justice Nathan L. Hecht, Justice David Medina,
Justice Don R. Willett, and Justice Debra Lehrmann joined. [pdf]
Justice Phil Johnson delivered a dissenting opinion, in which Justice Dale Wainwright, Justice Paul W.
Green, and Justice Eva M. Guzman joined. [pdf]
The finding by Dallas’s Urban Rehabilitation Standards Board (URSB) that Heather Stewart’s property was a
nuisance, when affirmed by the trial court, should have determined the nuisance question and precluded its
relitigation. Because the Court holds otherwise, I respectfully dissent.
Conclusion I would hold that the process provided to Stewart by the URSB proceedings and appellate review of
those proceedings and the URSB’s order by the substantial evidence standard was sufficient. In this regard I
join Justice Guzman’s dissent.
I would reverse the judgment of the court of appeals and render judgment that Stewart take nothing.
Justice Eva M. Guzman delivered a dissenting opinion, in which Justice Dale Wainwright, Justice Paul W. Green, and Justice Phil
Johnson joined. [pdf]
Here is the link to e-briefs in case no. 09-0257 CITY OF DALLAS v. STEWART [including 3 amicus briefs]

Bic Pen Corp. v. Carter,
No. 09-0039 (Tex. June 17, 2011)(Johnson)(product liability)
Six-year-old Brittany Carter was burned when her five-year-old brother accidently set fire to her dress
with a BIC lighter. The trial court entered judgment against BIC based on jury findings that the lighter
was defectively designed and manufactured and that each of the defects caused Brittany’s injuries. The court of appeals affirmed
based on the defective design finding and did not reach BIC’s other issues. BIC Pen Corp. v. Carter, 171 S.W.3d 657, 662 (Tex.
App.—Corpus Christi 2005), rev’d 251 S.W.3d 500 (Tex. 2008). In a prior appeal we held that the design defect claim was
preempted by federal law and remanded the case to the court of appeals. BIC Pen Corp. v. Carter, 251 S.W.3d 500, 511 (Tex.
2008). The court of appeals then affirmed the trial court’s judgment based on the manufacturing defect finding. ___ S.W.3d ___.
We conclude that no evidence supports the finding that a manufacturing defect caused Brittany’s injuries. We reverse and render
judgment for BIC.
Conclusion. The facts of this case are unfortunate. Nevertheless, we must apply established legal principles in reviewing the
parties’ positions. In applying those principles, we conclude there is legally insufficient evidence to support the finding that
manufacturing defects in BIC’s Subject Lighter were a cause-in-fact of Brittany’s injuries. We reverse the court of appeals’
judgment and render judgment for BIC.
BIC PEN CORPORATION v. JANACE M. CARTER, AS NEXT FRIEND OF BRITTANY CARTER; from Matagorda County; 13th district
(13-03-00560-CV, ___ SW3d ___, 08-18-05) 2 petitions
The Court reverses the court of appeals' judgment and renders judgment.
Justice Johnson delivered the opinion of the Court. [pdf]
(Justice Green not sitting)
See E-briefs in 09-0039 BIC PEN CORP. v. CARTER

SC I v. Guerra,
No. 09-0941 (Tex. Jun 17, 2011)(Johnson)(corpse improperly moved by cemetery employees)
In this appeal we address whether the evidence was sufficient to support jury findings that (1) both the corporation that owned and
operated a cemetery and its parent corporation were liable for actions of the cemetery’s employees, and (2) the daughters and
widow of a decedent suffered compensable mental anguish because the decedent’s body was disinterred and moved to another
grave without permission. We also address whether evidence of other lawsuits against the cemetery owner was properly
admitted. Marcos Guerra was buried at Mont Meta Memorial Park cemetery in a plot that had been sold to someone else. His
family refused the cemetery’s request that it be allowed to move the body to another burial plot, but the cemetery did so anyway.
When family members discovered that Mr. Guerra’s body had been moved, his daughters and widow sued both SCI Texas
Funeral Services, Inc. d/b/a Mont Meta Memorial Park (SCI Texas), the corporation that owned and operated the cemetery, and its
parent corporation, SCI International Corporation (SCI International). Pursuant to a jury verdict, the trial court rendered judgment
against both corporations for actual and exemplary damages. The court of appeals modified the judgment as to exemplary
damages and otherwise affirmed.
We hold that there was legally insufficient evidence to support either the liability findings against SCI International or the mental
anguish findings in favor of Mr. Guerra’s daughters. We further hold that the trial court erred by admitting evidence of other
lawsuits, verdicts, and judgments against SCI Texas. We reverse and render in part and remand for a new trial in part.
Conclusion. We reverse the judgment of the court of appeals. We render judgment that (1) Julie, Gracie, and Mary Ester take
nothing from SCI International and SCI Texas and (2) Mrs. Guerra take nothing from SCI International. Mrs. Guerra’s claim
against SCI Texas is remanded for a new trial.
SERVICE CORPORATION INTERNATIONAL AND SCI TEXAS FUNERAL SERVICES, INC., D/B/A MONT META
MEMORIAL PARK v. JUANITA G. GUERRA, JULIE ANN RAMIREZ, GRACIE LITTLE AND MARY ESTHER
MARTINEZ; from Cameron County; 13th district (13-07-00707-CV, ___ SW3d ___, 10-08-09)
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to the trial
court.
Justice Johnson delivered the opinion of the Court. [pdf]
See E-briefs in 09-0941 SERVICE CORP. INT'L v. GUERRA

In re Reece,
No. 09-0520 (Tex. May 27, 2011)(Guzman)
It is well-rooted in our jurisprudence that contempt is a broad and inherent power of a court. But, we have also recognized that
despite the breadth and necessity of that power, it is a power that must be exercised with caution. Today, we decide as a matter of
first impression whether a trial court may hold a litigant in contempt for perjury committed during a deposition. We are further
presented with a question arising from the bifurcated nature of the Texas judiciary and our limited habeas jurisdiction: whether we
should exercise our mandamus jurisdiction to provide a forum for a civil litigant who is deprived of liberty pursuant to a court’s
contempt order, and the Court of Criminal Appeals has declined to exercise its habeas jurisdiction.
In the underlying civil case, the relator was held in contempt and confined for perjuring himself during a deposition. The relator
challenged his confinement by seeking a writ of habeas corpus in the Court of Criminal Appeals, but that court declined to
exercise its jurisdiction citing, among other things, the civil nature of the case. The Court of Criminal Appeals directed the relator to
pursue his remedies in this Court. Because we lack habeas jurisdiction in this case, the relator pursued relief by filing the instant
petition for writ of mandamus to challenge his confinement.
We conclude the trial court abused its discretion by holding the relator in contempt for perjury occurring during a deposition,
because such perjury did not obstruct the operation of the court. Further, because the underlying suit is civil in nature, and the
Court of Criminal Appeals declined to grant the relator leave to file a habeas petition in that court, we hold the relator has no
adequate remedy by appeal and therefore mandamus is the appropriate remedy to correct the trial court’s abuse of discretion. We
conditionally grant relief.
IN RE COY REECE; from Dallas County; 5th district (05-09-00609-CV, ___ SW3d ___, 06-11-09)
motion to dismiss for lack of jurisdiction denied
motion to revoke bond denied
The Court conditionally grants the writ of mandamus.
Justice Guzman delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice
Medina, Justice Green, and Justice Lehrmann joined. [pdf]
Justice Johnson delivered a dissenting opinion. [pdf]
The Court of Criminal Appeals has general original habeas jurisdiction, Tex. Const. art. V, § 5; Ex parte Thompson, 273 S.W.3d
177, 181 (Tex. Crim. App. 2008), while this Court’s habeas jurisdiction is limited. Our habeas jurisdiction exists in matters where
a contemnor is confined because he or she violated “an order, judgment, or decree previously made, rendered, or entered by the
court or judge in a civil case.” Tex. Gov’t Code § 22.002(e).
Although our habeas jurisdiction is limited, our mandamus jurisdiction is broad. See Tex. Const. art. V, § 3(a); Tex. Gov’t Code §
22.002(a). And for the reasons the Court sets out, I agree that our broad mandamus jurisdiction encompasses the matters set
out in Reece’s petition. Nevertheless, and as SB International, Inc. argues, Reece substantively petitions this Court for habeas
relief. Under the circumstances I would refrain from granting mandamus relief for the reasons Justice Willett sets out in part IV of
his dissent, which I join. Because I disagree that we should grant mandamus relief, I respectfully dissent.
Justice Willett delivered a dissenting opinion, in which Justice Johnson joined as to Part IV. [pdf]
See Electronic Briefs in 09-0520 IN RE COY REECE

Reid Road MUD No. 2. v. Speedy Stop Food Stores, Ltd.,
No. 09-0396 (Tex. Mar. 11, 2011)(Johnson)
In this case we address two evidentiary questions. The first is whether an employee of the corporate general partner of a limited
partnership qualifies to testify about the fair market value of partnership property under either the Property Owner Rule or Texas
Rule of Evidence 701. The second is whether the condemning authority in a condemnation proceeding adopted the damages
opinion of an appraiser by presenting the appraiser’s testimony and written appraisal in the special commissioners’ hearing.
Under the record before us, we answer the first question “No,” the second question “Yes,” and affirm the judgment of the court of
appeals.
The trial court did not abuse its discretion by excluding the damages opinion LaBeff expressed in his affidavit. However, the court
erred by excluding Ambrose’s testimony and appraisal as to Speedy Stop’s damages.
We affirm the court of appeals’ judgment reversing the judgment of the trial court and remanding the case for further proceedings.
REID ROAD MUNICIPAL UTILITY DISTRICT NO. 2 v. SPEEDY STOP FOOD STORES, LTD.; from Harris County;
14th district (14-07-00225-CV, 282 SW3d 652, 02-03-09)
The Court affirms the court of appeals' judgment.
Justice Johnson delivered the opinion of the Court. [pdf]
Justice Willett delivered a concurring opinion, in which Justice Lehrmann joined. [pdf]
(Justice Guzman not sitting)
View Electronic Briefs 09-0396
Justice Willett delivered a concurring opinion, in which Justice Lehrmann joined. [pdf]
(Justice Guzman not sitting)
View Electronic Briefs 09-0396
REID ROAD MUNICIPAL UTILITY DIST. NO. 2 v. SPEEDY STOP FOOD STORES, LTD.

Samlowski MD v. Wooten, Carol,
No. 08-0667 (Tex. Feb. 25, 2011)(Medina)
Texas Civil Practice and Remedies Code section 74.351 requires that a trial court dismiss a health care liability claim unless the
claimant serves an expert report within 120 days after filing suit. Tex. Civ. Prac. & Rem. Code § 74.351(b). This dismissal
requirement is subject to the trial court’s discretion to grant one thirty-day extension for the claimant to cure a timely served but
deficient report. Id. § 74.351(c). The trial court in this health care liability case determined that claimant’s timely served report was
deficient and dismissed her suit without granting her request for an extension of time to cure the report. The court of appeals
agreed the report was deficient but concluded the trial court abused its discretion by denying the requested extension. 282 S.W.3d
82, 91.
We granted the petition to consider under what circumstances a trial court might abuse its discretion when denying such an
extension. Like most cases involving trial court discretion, a single rule will not fit every situation, but generally a trial court should
grant an extension when the deficient report can be cured within the thirty-day period the statute permits. The court of appeals
concluded, among other things, that the case should be remanded to the trial court for further proceedings, and a majority of the
Court agrees with that judgment. There is no majority reasoning for why we remand, however. Three members of the Court
essentially agree with the court of appeals’ analysis, three members disagree with that analysis and would reverse and render,
and three members disagree with the court of appeals’ analysis but would nevertheless remand in the interests of justice. I am in
this last group.
Because the record does not establish that the deficient expert report would have been cured if the extension had been granted in
this case, I cannot say that the trial court abused its discretion in denying the extension. Although I disagree with the court of
appeals’ analysis of the statute and its application of the abuse of discretion standard, I conclude that the interests of justice
require a remand to the trial court in this case. Accordingly, I would affirm the court of appeals’ judgment remanding this cause as
modified by this opinion.
EBERHARD SAMLOWSKI, M.D. v. CAROL WOOTEN; from Johnson County; 10th district (10-07-00305-CV, 282
SW3d 82, 05-21-08)
The Court modifies the court of appeals' judgment and affirms that judgment as modified.
Justice Medina announced the judgment of the Court and delivered an opinion, in which Chief Justice Jefferson
and Justice Hecht joined. [12-page opinion in pdf]
Justice Guzman filed an opinion concurring in the judgment, in which Justice Lehrmann joined and in which
Justice Wainwright joined Parts I & II.B. [8-page opinion in pdf]
Justice Wainwright delivered an opinion dissenting in part and concurring in the judgment. [6-page opinion in
pdf]
Justice Johnson delivered a dissenting opinion, in which Justice Green and Justice Willett joined. [12-
page opinion in pdf]
View Electronic Briefs in Case No. 08-0667 EBERHARD SAMLOWSKI, M.D. v. WOOTEN

Molinet v. Kimbrell, MD,
No. 09-0544 (Tex. Jan. 21, 2011)(Johnson)
In this case we consider a statutory conflict regarding whether limitations bars Jeremy Molinet’s health care liability claims
against two doctors he sued after they had been designated as responsible third parties pursuant to Texas Civil Practice and
Remedies Code section 33.004. See Tex. Civ. Prac. & Rem. Code § 33.004.1 Molinet joined the doctors as defendants within sixty
days after they were designated as responsible third parties but more than two years after they last treated him. Section 33.004(e)
provides that if a defendant designates a responsible third party the claimant may, within sixty days, join the designated party
“even though such joinder would otherwise be barred by limitations.” Id. However, section 74.251(a) provides a two-year
limitations period for health care liability claims that applies “[n]otwithstanding any other law,” and section 74.002(a) provides that
chapter 74 controls in the event its provisions conflict with other law. See id. §§ 74.251(a), 74.002(a).
We hold that section 74.251(a) prevails and Molinet’s claims against the doctors are barred by its two-year limitations period. [...]
The court of appeals correctly concluded that section 74.251(a) bars Molinet’s suit against Drs. Horan and Kimbrell. Accordingly,
we affirm the court of appeals’ judgment.
JEREMY MOLINET v. PATRICK KIMBRELL, M.D. AND JOHN HORAN, M.D.; from Bexar County; 4th district (04-
08-00379-CV, 288 SW3d 464, 12-31-08)
The Court affirms the court of appeals' judgment.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Green, Justice Willett, and Justice Guzman joined. [16-page opinion in pdf]
Justice Lehrmann delivered a dissenting opinion, in which Justice Medina joined. [9 page opinion in pdf]
View Electronic Briefs in 09-0544 MOLINET v. PATRICK KIMBRELL, M.D