Tex. 2011 Opinions by Justice Dale Wainwright

2012 LIAISON ASSIGNMENTS FOR JUSTICE WAINWRIGHT
Board of Disciplinary Appeals
Commission for Lawyer Discipline
Unauthorized Practice of Law Committee
Professional Ethics Committee
Board of Law Examiners
State Commission on Judicial Conduct
Task Force on International Law Practice in Texas

2011 Opinions by Justice Dale Wainwright

LAST UPDATED: 1/9/2012, 12/20/2011

Marsh USA, Inc. v. Cook, No. 09-0558 (Tex. Dec. 16, 2011)(Opinion by Wainwright) (noncompetes, consideration,
enforceability)
We deny Rex Cook’s motion for rehearing. We withdraw our opinion of June 24, 2011 and substitute the following in its
place.
In this case, we decide whether a covenant not to compete signed by a valued employee in consideration for stock options,
designed to give the employee a greater stake in the company’s performance, is unenforceable as a matter of law because
the stock options did not give rise to an interest in restraining competition. We hold that, under the terms of the Covenants
Not to Compete Act (Act), the consideration for the noncompete agreement (stock options) is reasonably related to the
company’s interest in protecting its goodwill, a business interest the Act recognizes as worthy of protection. The
noncompete is thus not unenforceable on that basis. We reverse the court of appeals’ judgment and remand to the trial
court for further proceedings.
CONCLUSION: In this case, the covenant not to compete is “ancillary to or part of” an otherwise enforceable agreement
because the business interest being protected (goodwill) is reasonably related to the consideration given (stock options).
Section 15.50 requires that there be a nexus between the covenant not to compete and the interest being protected. TEX.
BUS.&COM.CODE § 15.50(a). This requirement is satisfied by the relationship that exists here. We reverse the judgment of
the court of appeals and remand to the trial court for further proceedings consistent with this opinion.
MARSH USA INC. AND MARSH & MCLENNAN COMPANIES, INC. v. REX COOK; from Dallas County; 5th district (05-08-
00685-CV, 287 SW3d 378, 05-26-09)
The Court's opinion of June 24, 2011 is withdrawn and the opinion of this date is substituted. The concurring opinion by
Justice Willet, the dissenting opinion by Justice Paul Green, and the judgment issued June 24, 2011, remain in place.
Link to Electronic Briefs in this case including motion for rehearing and response: 09-0558 MARSH USA INC. v. COOK

Atmos Energy Corp. v. The Cities of Allen et al.,
No. 10-0375 (Tex. Nov. 18, 2011)(Wainwright)
In 2003, the Texas Legislature amended the Gas Utility Regulatory Act (GURA) to allow
gas utilities (Utilities) an opportunity to recover capital investments in Texas’ gas pipeline
infrastructure made during the interim period between rate cases filed pursuant to Chapter 104,
Subchapter C, of the Utilities Code. Act of May 16, 2003, 78th Leg., R.S., ch. 938, § 1, 2003 Tex.
Gen. Laws 2801 (codified as TEX. UTIL. CODE § 104.301). This legislation is referred to as the
“GRIP statute” or “GRIP amendment.”
We conclude that the Railroad Commission has appellate jurisdiction under
section 102.001(b) of the Texas Utilities Code over municipalities’ orders or ordinances concerning
interim rate adjustments, but that jurisdiction is limited to review of the Utilities’ filings for
compliance with the GRIP statute, section 104.301, and the GRIP rule, section 7.7101 of 16 Texas
Administrative Code. This review involves examination of the statutory requirements for processing
a utility’s application to amend its tariff or rate schedule under the GRIP statute and rule, and
whether the GRIP filing satisfies those requirements. This construction effectuates the statutory
language and furthers the purpose of the GRIP statute to create a streamlined procedure for recovery
of capital as an incentive for gas utilities to invest in pipeline infrastructure. Therefore, we affirm
the judgment of the court of appeals.
ATMOS ENERGY CORPORATION, CENTERPOINT ENERGY RESOURCES CORPORATION, AND TEXAS GAS SERVICE
COMPANY v. THE CITIES OF ALLEN, ET AL. AND RAILROAD COMMISSION OF TEXAS; from Travis County; 3rd district (03-
06-00691-CV, 309 SW3d 563, 02-05-10) 3 petitions
The Court affirms the court of appeals' judgment. (14-page opinion in pdf)
Justice Wainwright delivered the opinion of the Court.
View Electronic Briefs in 10-0375 ATMOS ENERGY CORPORATION v. THE CITIES OF ALLEN

FPL Farming Ltd. v. Environmental Processing Systems, L.C.,
No. 09-1010 (Tex. Aug. 26, 2011)(Opinion by Justice Dale Wainwright)(liability re: waste water injection
well)(water law, environmental pollution)
In this case we consider whether a regulatory permit to drill an injection well absolves the holder from civil
tort liability for conduct authorized by the permit. Environmental Processing Systems, L.C. (EPS) obtained
permits from the Texas Natural Resource Conservation Commission (now the Texas Commission on
Environmental Quality) to construct and operate two deep wastewater injection wells on a tract next to land
FPL Farming Ltd. (FPL) owns in Liberty County. FPL sued EPS for, among other things, tort damages for
physical trespass based on alleged subsurface migration of water injected in the permitted well.
Specifically, FPL alleged that the injected wastewater likely migrated onto its property and contaminated its
water supply. After the jury failed to find a trespass, FPL appealed. Among other issues, FPL contended
that it was entitled to a directed verdict on a consent defense, the allocation of the burden of proof in the
jury charge was erroneous, and factually sufficient evidence supported its trespass claim. The court of
appeals did not address the merits of the trespass claim or the jury charge but held FPL could not recover
in tort for trespass damages because the wells were authorized by the permit EPs secured from the Texas
Commission on Environmental Quality (TCEQ). The Injection Well Act provides that holders of wastewater
injection well permits issued by the TCEQ are not immune from civil liability and our previous case law has
not held that such permit holders are immune from tort liability. We therefore reverse the judgment of the
court of appeals and remand for consideration of issues related to the trespass claim.[1]
FPL FARMING LTD. v. ENVIRONMENTAL PROCESSING SYSTEMS, L.C.; from Liberty County; 9th district
(09-08-00083-CV, 305 SW3d 739, 10-29-09)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Wainwright delivered the opinion of the Court. [pdf]
Link to e-briefs: FPL FARMING LTD. v. ENVIRONMENTAL PROCESSING SYSTEMS, L.C.

City of Dallas v. VSC, LLC,
No. 08-0265 (Tex. Jul. 1, 2011)(Opinion by Chief Justice Wallace B. Jefferson)
(takings claim against government precluded given existence of statutory remedy)
We expect our government to retrieve stolen property and return it to the rightful owner. What happens, though, when a
person claims an interest in property the government has seized? In this case, the City of Dallas seized vehicles, which it
alleged were stolen, from a company that was entitled to petition for their return. See Tex. Code Crim. Proc. art. 47.01a(a).
Instead of pursuing its statutory remedy, the company sued, alleging that its interest in those vehicles had been taken
without just compensation. We hold that the availability of the statutory remedy precludes a takings claim. We reverse the
court of appeals’ judgment and render judgment dismissing this suit.
Conclusion. VSC received all of the process to which it was entitled. A party cannot claim a lack of just compensation
based on its own failure to invoke a law designed to adjudicate such a claim. We reverse the court of appeals’ judgment
and render judgment dismissing the case. Tex. R. App. P. 60.2(c).
CASE DETAILS: CITY OF DALLAS v. VSC, LLC; from Dallas County; 5th district (05-05-01227-CV, 242 SW3d 584, 01-04-
08)
The Court reverses the court of appeals' judgment and renders judgment.
Chief Justice Wallace B. Jefferson delivered the opinion of the Court, in which Justice Nathan L. Hecht, Justice David
Medina, Justice Paul W. Green, Justice Don R. Willett, and Justice Debra Lehrmann joined. [pdf] Here is the link to e-briefs
in case no. 08-0265 CITY OF DALLAS v. VSC, LLC [incl. amicus brief by the State of Texas and response thereto]
Justice Dale Wainwright delivered a dissenting opinion, in which Justice Phil Johnson and Justice Eva
M. Guzman joined. [pdf]
A peace officer may take possession without a warrant of property in the hands of innocent third parties if
he or she has probable cause to believe it may have been stolen. See Tex. Transp. Code § 501.158 (a)
(“A peace officer may seize a vehicle or part of a vehicle without a warrant if the officer has probable cause
to believe that the vehicle or part: (1) is stolen; or (2) has had the serial number removed, altered, or
obliterated.”). The government holds such property, at times at private storage facilities, until its
usefulness, if any, as evidence in a judicial proceeding is over and the actual owner is determined. Under
such circumstances, we expect our government to preserve and protect individuals’ property and dispose
of it only when allowed by law and with notice to the property’s owners. In this case, a third party with a
protectable interest in property that was seized sought, among other things, injunctive relief in state district
court to prohibit the government from disposing of that interest and declaratory relief seeking recognition
of its rights in the property. During the pendency of the lawsuit, the government not only physically
removed more of the property, but also disposed of the property subject to the original suit without notice
or compensation to the third party. The third party had a storage lien on confiscated vehicles to secure its
right to be paid for the storage services it provided.
The Court holds that because the third party failed to pursue remedies through a vague, incomplete, and
likely constitutionally infirm statutory procedure, its recovery is precluded in the original suit filed in district
court requesting the same relief the Court says it must seek as a prerequisite to a takings claim. The
Court, on an issue not raised by the parties, dismisses VSC’s claims for its failure to specifically plead a
claim (1) usually initiated in municipal court that is not a required prerequisite, (2) that the City argued at
the trial court and the court of appeals was unavailable for VSC to seek during the pendency of a lawsuit,
covering the same conduct, and (3) where VSC sought equivalent relief through injunctions and
declaratory judgment actions. I would hold that VSC sought the relief under Chapter 47 of the Code of
Criminal Procedure that the Court holds is a prerequisite to an inverse condemnation claim. VSC satisfied
that prerequisite with its pleadings. And on the merits, I would hold that there are fact questions as to
whether and how the City disposed of the vehicles at issue and affirm the trial court’s denial of the plea to
the jurisdiction. I therefore respectfully dissent.

TxDPS v. Cox Texas Newspapers, LP.,
No. 09-0530 (Tex. Jul. 1, 2011)(Opinion by Justice Dale Wainwright) (access to records, right to privacy)
Our common law protects from public disclosure highly intimate or embarrassing facts. We must decide
whether it also protects information that substantially threatens physical harm. We conclude that it does.
Both sides raise important questions, not just about safety but also about the public’s right to know how the
government spends taxpayer money. Those issues could not have been fully litigated under the standard
that prevailed before today's decision. Accordingly, we reverse the court of appeals’ judgment and remand
the case to the trial court for further proceedings.
Conclusion: We reverse the court of appeals’ judgment and remand the case to the trial court for further
proceedings consistent with this opinion. Tex. R. App. P. 60.2 (d).
CASE DETAILS: TEXAS DEPARTMENT OF PUBLIC SAFETY v. COX TEXAS NEWSPAPERS, L.P., AND HEARST
NEWSPAPERS, L.L.C.; from Travis County; 3rd district (03-08-00516-CV, 287 SW3d 390, 05-29-09)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Chief Justice Wallace B. Jefferson delivered the opinion of the Court, in which Justice Nathan L. Hecht, Justice Paul W.
Green, Justice Eva M. Guzman, and Justice Debra Lehrmann joined. [pdf]
Justice Dale Wainwright delivered a concurring opinion, in which Justice Phil Johnson joined. [pdf]
(Justice David Medina and Justice Don R. Willett not sitting)
Here is the link to
e-briefs in case no. 09-0530 TEX. DEPT. OF PUBLIC SAFETY v. COX TEXAS NEWSPAPERS, L.P. [including one amicus
brief by Freedom of Information Foundation of Texas

CMH Homes, Inc. v. Perez, No. 10-0688 (Tex. May 27, 2011)(Wainwright)
(arbitration, appellate review of appointment of arbitrator, appeal vs. mandamus review)
Once more, this Court is presented with a question of the availability of judicial review of an interlocutory
arbitration order. In this consumer dispute, CMH Homes, Inc. and Adam Perez agreed to submit their claims
to arbitration but could not agree on an arbitrator. Because of this disagreement, the trial judge intervened
and appointed an arbitrator to preside over their dispute. CMH Homes filed an interlocutory appeal
challenging this appointment, requesting in the alternative that its appeal be treated as a mandamus
petition. The court of appeals determined it was without jurisdiction and dismissed the suit. We agree with
the court of appeals’ determination that Texas Civil Practice and Remedies Code section 51.016 does not
allow an interlocutory appeal of an order appointing an arbitrator. However, under these circumstances,
CMH Homes’s appeal may properly be considered as a petition for writ of mandamus. We remand for the
court of appeals to consider this appeal as a petition for writ of mandamus.
We hold that Texas Civil Practice and Remedies Code section 51.016 does not permit interlocutory appeal
from an order appointing an arbitrator. However, this appeal may properly be considered as a petition for
writ of mandamus, as CMH Homes requested. The court of appeals erred in dismissing CMH Homes’s
appeal for lack of jurisdiction. Accordingly, we reverse and remand to the court of appeals for further
proceedings consistent with this opinion.
CMH HOMES, INC., ET AL. v. ADAM PEREZ; from Duval County; 4th district (04-10-00259-CV, 328 SW3d 592, 07-28-10)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Wainwright delivered the opinion of the Court. [pdf]
See Electronic Briefs in    10-0688 CMH HOMES, INC. v. PEREZ

Iliff v. Iliff, No. 09-0753 (Tex. Apr. 15, 2011)(Wainwright)
(child support based on earning potential rather than actual income; voluntary unemployment or
underemployment, intent element)
Under the Texas Family Code, may a trial court calculate child support based on earning potential, rather
than actual earnings, when the obligor is intentionally unemployed or underemployed, but there is no proof
that the obligor’s unemployment or underemployment is for the purpose of avoiding child support?
Because the language of Texas Family Code section 154.066 does not require such proof, we hold that
intent to avoid child support need not be proven for the trial court to apply the child support guidelines to
earning potential instead of actual earnings. However, a trial court may properly consider an obligor’s
intent to avoid child support as a factor, along with other relevant facts, in an intentional unemployment or
underemployment analysis. We affirm the judgment of the trial court and the court of appeals.
JAMES DERWOOD ILIFF v. JERILYN TRIJE ILIFF; from Hays County;
3rd district (03-08-00382-CV, ___ SW3d ___, 07-21-09)
The Court affirms the court of appeals' judgment.
Justice Wainwright delivered the opinion of the Court. [pdf]
View Electronic Briefs 09-0753 ILIFF v. ILIFF

Carreras, MD v. Marroquin, No. 09-0857 (Tex. Apr. 1, 2011) (Wainwright)
In this dispute, parents brought wrongful death claims against a physician who allegedly caused their adult
child’s death. The parents attempted to toll the statute of limitations by sending pre-suit notice of their
health care liability claims to the physician shortly before the statute of limitations ran, but failed to
accompany it with an authorization form for the release of their daughter’s medical information as required
by Chapter 74 of the Texas Civil Practice and Remedies Code. After the parents filed suit, the doctor
moved for summary judgment, arguing that the notice alone did not toll the statute of limitations, and the
suit therefore was untimely. The trial court denied the motion and entered an agreed order permitting
appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(d). The court of appeals affirmed the denial. 297 S.W.
3d 420, 424 (Tex. App.—Corpus Christi-Edinburg 2009, pet. granted). Because we hold that Chapter 74
requires that an authorization form accompany the provision of notice for the statute of limitations to be
tolled, we reverse and render.
Accordingly, considering the text, history, and purpose of the statutes at issue, we conclude that for the
statute of limitations to be tolled in a health care liability claim pursuant to Chapter 74, a plaintiff must
provide both the statutorily required notice and the statutorily required authorization form. The Marroquins
did not provide the statutorily required authorization form until after the statute of limitations expired, their
claims were untimely, and the court of appeals erred in holding that Chapter 74 does not bar tolling of
limitations when a plaintiff provides the required pre-suit notice without also providing the required medical
authorization form. Accordingly, we reverse the judgment of the court of appeals and render judgment that
the Marroquins take nothing.
JOSE CARRERAS, M.D., P.A. v. CARLOS FRANCISCO MARROQUIN, ET AL.; from Hidalgo County; 13th district (13-09-
00156-CV, 297 SW3d 420, 08-25-09)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Wainwright delivered the opinion of the Court. [pdf]
View Electronic Briefs in Case No. 09-0857 JOSE CARRERAS, M.D., P.A. v. MARROQUIN

MOTIONS FOR REHEARING DENIED WITH OPINION
IN Exxon Corp. v. Emerald Oil & Gas Co., No. 05-1076 (Tex. Apr. 1, 2011) (Wainwright)
After issuing our opinion, we granted the parties’ motions for rehearing on November 20, 2009 and
obtained further briefing from the parties. On December 17, 2010, we issued an opinion on rehearing and
modified our judgment. Thereafter, the parties filed second motions for rehearing. Today, we deny the
parties’ motions, but withdraw our opinion of December 17, 2010 and substitute the following opinion. Our
judgment remains unchanged from the one issued December 17, 2010.
We hold the royalty owners’ statutory and common law waste claims, and Emerald’s negligent
misrepresentation and tortious interference claims are time-barred and reverse and render judgment for
Exxon with respect to those claims. We also hold that the evidence conclusively establishes that Exxon
satisfied its duty to develop the Field and reverse and render judgment for Exxon with respect to the
breach of Lease claim. We affirm the court of appeals’ judgment, for different reasons, reversing the trial
court’s directed verdict in favor of Exxon on Emerald’s fraud claim. Finally, we remand the case to the court
of appeals (1) to consider the royalty owners’ claims for fraud, negligence, negligent misrepresentation,
negligence per se, tortious interference with economic opportunity, and breach of regulatory duty to plug
wells properly, and (2) to remand Emerald’s fraud claim to the trial court for further proceedings.
EXXON CORPORATION AND EXXON TEXAS, INC. v. EMERALD OIL & GAS COMPANY, L.C. AND LAURIE T. MIESCH, ET AL.;
from Refugio County; 13th district (13-00-00104-CV, 180 SW3d 299, 11-29-05)
2 motions for rehearing
The Court's opinion of December 17, 2010 is withdrawn and the opinion of this date is substituted. The judgment, issued
December 17, 2010, remains in place.
The Court reverses and renders judgment, in part, and affirms, in part, the court of appeals' judgment, and remands the
case to the court of appeals.
Justice Wainwright delivered the opinion of the Court. [pdf]
(Justice Guzman and Justice Lehrmann not sitting)
View Electronic Briefs in Case No. 05-1076 EXXON CORP. v. EMERALD OIL & GAS CO.

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