Tex. 2011 Opinions authored by Justice Medina

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2011 MEDINA OPINIONS

LAST UPDATED:8/25/11

Ins. Co. of the State of Pennsylvania v. Muro, No. 09-0340 (Tex. Aug. 26, 2011)(Opinion by Justice
David Medina)
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA v. CARMEN MURO; from Dallas County; 5th
district (05-07-00279-CV, 285 SW3d 524, 03-12-09)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Medina delivered the opinion of the Court. [pdf]
Link to e-briefs including amicus briefs: INS. CO. OF THE STATE OF PA v. MURO

Lancer Ins. Co. v. Garcia Holiday Tours,
No. 10-0096 (Tex. Jul. 1, 2011)(Opinion by Justice David Medina) (insurance coverage, indemnity, liability
for communication of disease by bus driver to passenger)
The question in this appeal is whether the transmission of a communicable disease from the driver of a
motor vehicle to a passenger is a covered loss under a business auto policy, which affords coverage for
accidental bodily injuries resulting from the vehicle’s use. The issue is one of first impression in this state
and perhaps the country. The parties advise that they have found no similar reported cases.
The trial court concluded that the policy covered this type of occurrence and rendered summary judgment
that the insurance carrier owed a duty to indemnify the insured. The court of appeals agreed that the
policy might provide coverage for such a claim but reversed the summary judgment and remanded the
case to the trial court to resolve a factual dispute about whether the passengers had contracted the
disease while in the vehicle. 308 S.W.3d 35, 47 (Tex. App.—San Antonio 2009). Because we conclude that
communicable diseases are not an insured risk under this particular policy, we reverse the judgment below
and render judgment for the insurance carrier.
Conclusion: We conclude that the transmission of a communicable disease from a bus driver to his
passengers was not a risk assumed by the insurance carrier under this business auto policy because the
passengers’ injuries did not result from the vehicle’s use but rather from the bus company’s use of an
unhealthy driver. The bus, itself, in its capacity as a mode of transportation, did not produce, and was not
a substantial factor in producing, the passengers’ injuries. The court of appeals’ judgment is accordingly
reversed and judgment rendered that the passengers, bus company, and driver take nothing on their
indemnity claim against the insurance carrier.
CASE DETAILS: LANCER INSURANCE COMPANY v. GARCIA HOLIDAY TOURS, ET AL.; from Jim Wells
County; 4th district (04-08-00839-CV, 308 SW3d 35, 12-23-09)
The Court reverses the court of appeals' judgment and renders judgment.
Justice David Medina delivered the opinion of the Court. [pdf]
Here is the link to e-briefs in case no. 10-0096 LANCER INS. CO. v. GARCIA HOLIDAY TOURS [including
an amicus brief by Property Casualty Insurers Association of America]

TGS-Nopec Gephysical Co v. Combs, No. 08-1056 (Tex. May 27, 2011)(Medina)
This appeal arises from a franchise tax dispute involving the apportionment of receipts from the licensing of geophysical
and seismic data to customers in Texas. The taxpayer complains that the Comptroller has mischaracterized these receipts
as Texas business and thereby has erroneously increased its franchise tax burden. At issue is whether these receipts
should be categorized as receipts from the use of a license or as receipts from the sale of an intangible asset. If the
receipts are from the use of a license, then the Comptroller has correctly assessed the tax. If the receipts are from the sale
of an intangible, then the Comptroller has erred in assessing additional taxes because receipts from the sales of
intangibles are Texas receipts only if the legal domicile of the payor is Texas.
The lower courts concluded that the Comptroller had appropriately characterized the revenue as receipts from the use of a
license in Texas and therefore correctly assessed the additional taxes. 268 S.W.3d 637 (Tex. App.—Austin 2010). We
disagree and reverse and remand to the trial court for further proceedings.
TGS-NOPEC GEOPHYSICAL COMPANY D/B/A TGS-NOPEC CORPORATION v. SUSAN COMBS, SUCCESSOR-IN-
INTEREST TO CAROLE KEETON STRAYHORN, COMPTROLLER OF PUBLIC ACCOUNTS, AND GREG ABBOTT,
ATTORNEY GENERAL OF TEXAS; from Travis County; 3rd district (03-07-00640-CV, 268 SW3d 637, 08-15-08)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Medina delivered the opinion of the Court. [pdf]
(Justice Hecht and Justice Guzman not sitting)
See Electronic Briefs in 08-1056 TGS-NOPEC GEOPHYSICAL CO. v. COMBS

Travis County Appraisal Dist. v. Norman, No. 09-0100 (Tex. Apr. 29, 2011)(Medina)
The Texas Anti-Retaliation Law, found in Chapter 451 of the Texas Labor Code, prohibits a person from discharging or
discriminating against an employee, who in good faith files a workers’ compensation claim. See Tex. Lab. Code § 451.001
(1). This law applies to private employers. We have also held it to apply to the state’s political subdivisions through Chapter
504 of the Labor Code. See City of LaPorte v. Barfield, 898 S.W.2d 288, 298–99 (Tex. 1995) (holding that Chapter 504
waives the governmental immunity of political subdivisions for retaliatory discharge claims under Chapter 451).
In this interlocutory appeal, a political subdivision of the state argues that Chapter 504 has been amended since our
decision in Barfield and no longer waives a political subdivision’s immunity for retaliatory discharge claims under Chapter
451. We agree and conclude that our analysis of an earlier version of the Anti-Retaliation Law in Barfield is therefore not
controlling. Because the court of appeals permitted the plaintiff’s claim to proceed, as Barfield would have, we must under
the current law reverse the court of appeals’ judgment and dismiss the case.
The waiver of governmental immunity must be clear and unambiguous, Tex. Gov’t Code § 311.034, and the current version
of the Political Subdivisions Law is too internally inconsistent to satisfy that standard. We conclude then that the Political
Subdivisions Law no longer waives immunity for retaliatory discharge claims under Chapter 451. Because a retaliatory
discharge claim may not be brought against the government without its consent and the Political Subdivisions Law no
longer provides such consent by waiving the government’s immunity, the underlying claim in this case must be dismissed.
The court of appeals’ judgment is accordingly reversed, and the case is dismissed.
TRAVIS CENTRAL APPRAISAL DISTRICT v. DIANE LEE NORMAN; from Travis County; 3rd district (03-06-
00768-CV, 274 SW3d 902, 12-19-08)
The Court reverses the court of appeals' judgment and dismisses the case.
Justice Medina delivered the opinion of the Court. [pdf]
See Electronic Briefs in 09-0100 TRAVIS CENT. APPRAISAL DIST. v. NORMAN

In re Rubiola, No. 09-0309 (Tex. Mar. 11, 2011)(Medina)
In this original mandamus proceeding, Relators seek to compel arbitration under an arbitration agreement they did not
sign. The real parties in interest, who are signatories to the arbitration agreement, object to arbitration and contend that
Relators cannot compel arbitration because Relators are not parties to the arbitration agreement. The trial court apparently
agreed because it denied Relators’ motion to compel arbitration. The underlying arbitration agreement, however,
designated certain non-signatories as parties to the agreement.
We conclude that signatories to an arbitration agreement may identify other parties in their agreement who may enforce
arbitration as though they signed the agreement themselves. We further conclude that the underlying arbitration agreement
in this case identified the Rubiolas as parties to the agreement and that they accordingly had the right to compel arbitration.
Finally, we conclude that the trial court’s order denying arbitration is an abuse of discretion for which we conditionally grant
Relators’ request for mandamus relief. Tex. R. App. P. 52.8(c). The writ will issue only if the trial court fails to enforce the
arbitration agreement.
IN RE JOSEPH CHARLES RUBIOLA, ET AL.; from Bexar County; 4th district (04-09-00115-CV, ___ SW3d
___, 03-04-09)
stay order issued May 15, 2009, lifted
The Court conditionally grants the writ of mandamus.
Justice Medina delivered the opinion of the Court. [pdf]
View Electronic Briefs 09-0309 IN RE JOSEPH CHARLES RUBIOLA

In Re Billy James Smith, No.10-0048 (Tex. Mar. 4, 2011)(Medina)(mandamus granted)
Under the Texas Wrongful Imprisonment Act, which is now known as the Tim Cole Act, a wrongfully-imprisoned person may
seek compensation from the state for the period of wrongful imprisonment. Tex. Civ. Prac. & Rem. Code § 103.001(a).
Application is made to the Texas Comptroller of Public Accounts, who is authorized to determine eligibility and the amount
owed to the claimant. Id. § 103.051(b). The amount owed is determined by multiplying a fixed amount, currently set at
$80,000 per year, by the period of wrongful imprisonment. Id. § 103.052(a)(1). In calculating the wrongful-imprisonment
period, the Act excludes any period for which the claimant was serving a concurrent sentence. Id. § 103.001(b).
Relator, who was on parole at the time of his wrongful conviction, complains that he is entitled to additional compensation
because the Comptroller erroneously applied the concurrent-sentence restriction to reduce his award. Relator submits that
he would not have been imprisoned but for the wrongful conviction and that the resulting revocation of his parole should not
be used to reduce his award. The Comptroller concluded that the concurrent-sentence restriction applied and reduced the
claimant’s compensation accordingly. We do not agree that the concurrent-sentence restriction applies under these
circumstances and conditionally grant the relator’s petition for mandamus relief.
IN RE BILLY JAMES SMITH
The Court conditionally grants the writ of mandamus.
Justice Medina delivered the opinion of the Court. [pdf]
View Electronic Briefs in 10-0048 IN RE BILLY JAMES SMITH

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

Stockton v. Offenbach, MD, No. 09-0446 (Tex. Feb. 25, 2011)(Medina)(HCLC, no extension of expert
report filing deadline based on inability to promptly serve Defendant in person)
Texas Civil Practice and Remedies Code section 74.351 requires that an expert report be served on each physician or
health care provider against whom a health care liability claim is asserted. Tex. Civ. Prac. & Rem. Code § 74.351(a). The
statute further directs the trial court to dismiss the health care liability claim if this report is not served within 120 days of the
suit’s filing. Id. § 74.351(a), (b). In this appeal, the claimant argues that she was not able to serve the expert report within
120 days because the defendant physician could not be found. She further contends that she diligently searched for the
physician and that a due diligence exception should apply to extend the statutory deadline or, alternatively, that the statute is
unconstitutional as applied to her because it was impossible for her to comply with its deadline. The court of appeals
concluded that the statute did not provide for an exception to its deadline under these circumstances and was not
unconstitutional as applied to her. 285 S.W.3d 517. We agree and affirm.
DEBBIE STOCKTON, AS PARENT AND NEXT FRIEND OF WILLIAM STOCKTON, A MINOR v. HOWARD A.
OFFENBACH, M.D.; from Dallas County; 5th district (05-08-01185-CV, 285 SW3d 517, 03-11-09)
The Court affirms the court of appeals' judgment.
Justice Medina delivered the opinion of the Court. [15-page opinion in pdf]
View Electronic Briefs in 09-0446 STOCKTON v. HOWARD A. OFFENBACH, M.D.

Franka MD v. Velasquez, No. 07-0131 (Tex. Jan 21, 2011)(Hecht)
Section 101.106(f) of the Texas Tort Claims Act provides that a suit against a government employee acting within the
general scope of his employment must be dismissed “if it could have been brought under this chapter [that is, under the
Act] against the governmental unit”.1 The court of appeals construed the quoted clause to mean that, to be entitled to
dismissal, the employee must establish that governmental immunity from suit has been waived by the Act.2 But as we
stated in Mission Consolidated Independent School District v. Garcia: “we have never interpreted ‘under this chapter’ to only
encompass tort claims for which the Tort Claims Act waives immunity.”3 Rather, “all [common-law] tort theories alleged
against a governmental unit . . . are assumed to be ‘under [the Tort Claims Act]’ for purposes of section 101.106.”4
Accordingly, we reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.
[...] we hold that for section 101.106(f), suit “could have been brought” under the Act against the government regardless of
whether the Act waives immunity from suit. We reverse the judgment of the court of appeals and remand to the trial court for
further proceedings.
JOHN CHRISTOPHER FRANKA, M.D. AND NAGAKRISHNA REDDY, M.D. v. STACEY VELASQUEZ AND
SARAGOSA ALANIZ, INDIVIDUALLY AND AS NEXT FRIENDS OF THEIR MINOR CHILD, SARAGOSA
MARIO ALANIZ; from Bexar County; 4th district (04-06-00190-CV, 216 SW3d 409, 09-06-06)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Hecht delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright,
Justice Green, Justice Johnson, and Justice Willett joined. [28 page opinion in pdf]
Justice Medina delivered a dissenting opinion, in which Justice Lehrmann joined. [21-page opinion
in pdf]
(Justice Guzman not sitting)
View Electronic Briefs 07-0131 FRANKA, M.D. and NAGAKRISHNA REDDY, M.D. v. VELASQUEZ