IS AMAZON LIABLE FOR DEFECTIVE PRODUCTS IT MARKETS FOR OTHER VENDORS?

McMillan v. Amazon.com, Inc.
Supreme Court of Texas, No. 20-0979 (certified question accepted January 8, 2021)
Fifth Circuit Opinion by Judge Willett (linked here)
The Texas Supreme Court has accepted a certified question that could lead to one of the more important opinions of 2021: 

 “Under Texas products liability law, is Amazon a ‘seller’ of third-party products sold on Amazon’s website when Amazon does not hold title to the product but controls the process of the transaction and delivery through Amazon’s Fulfillment by Amazon program?”

The McMillan plaintiffs allege injuries to a 19-month-old child who swallowed a battery from a TV remote purchased on Amazon’s website. The listed seller was “USA Shopping 7693,” which Amazon traced to a vendor account owned by Hu Xi Jie—an individual or company that neither Amazon nor plaintiffs have been able to contact or serve. Amazon’s potential liability for the child’s injuries turns on whether it is a “seller” of the product under the Texas Products Liability Act, chapter 82 of the Civil Practice and Remedies Code. A federal district court held Amazon was a seller, i.e., “engaged in the business of placing the product in the stream of commerce.” The court granted the parties’ joint motion to certify the order for interlocutory appeal under 28 U.S.C. § 1292(b), as it presented a “controlling question of law” on which there was “substantial ground for difference of opinion.”

 Fifth Circuit Judge (and former Texas Supreme Court Justice) Don Willett authored the opinion certifying the question, which he describes as “a res nova, determinative question of Texas law with far-reaching consequences and no instructive state-court guidance.” Similar issues are under consideration or have been addressed by several courts, with mixed results. (A similar question has been certified by the Third Circuit to the Pennsylvania Supreme Court.)

To answer the question, the Texas Supreme Court will need to apply its “bricks-and-mortar precedents”—which distinguish between “those who place products in the stream of commerce” and those who merely “facilitate the stream”—to Amazon’s complex technology by which “millions of third-party merchants” get their products sold and delivered to customers.

To be clear, the certified question is directed to a specific (but large) subset of Amazon transactions—products listed in the product-description and order-confirmation pages as “sold by” a vendor other than Amazon and delivered from Amazon warehouses through the “Fulfillment by Amazon” (FBA) program. These transactions differ from other purchases, including products listed as “sold by” and delivered by Amazon, products listed as “sold by” third parties and shipped directly to customers by the vendor, and products sold through other websites or stores and delivered through the FBA program.

The Texas Supreme Court might determine the legal significance of these differences in the context of allocating liability for personal injuries attributed to allegedly defective products. Meanwhile, it behooves us all to pay attention to the “sold by” designation and the “Conditions of Use” we might have unknowingly agreed to as Amazon customers.

Stay tuned.

COMPTROLLER CAN’T LOOK BEHIND COURT’S ORDER OF DISMISSAL IN AWARDING COMPENSATION UNDER THE TIM COLE ACT

In re Alfred Dewayne Brown
Supreme Court of Texas, No. 19-0877 (December 18, 2020)
Justice Guzman (Opinion, linked here)
When Brown’s capital murder conviction was overturned after he had served more than twelve years in prison—most of it on death row—he sought relief under the “Tim Cole Act.” That Act allows a person wrongfully convicted of a crime in Texas to seek compensation from the State if he is “actually innocent” of that crime. The Supreme Court granted mandamus to overturn the State Comptroller’s refusal to pay compensation to Brown under the Act, saying the Comptroller had gone beyond his statutorily prescribed “purely ministerial” role in denying relief to Brown.

To be entitled to compensation under the Tim Cole Act, one must (i) have served at least part of his sentence in prison, (ii) be pardoned or obtain relief from that sentence via habeas corpus, (iii) secure an order of dismissal from the state district court in which he was convicted and sentenced, and (iv) obtain that dismissal based on a motion from the State’s attorney that concludes “no credible evidence exists that inculpates” the applicant and that the State’s attorney “believes that [the applicant] is actually innocent of the crime for which [he] was sentenced.” The wrongfully convicted person must then apply to the State Comptroller for relief under the Act, submitting “verified copies” of the various papers necessary to show his fulfillment of the statutory requirements. The Act directs the Comptroller to “consider only the verified copies of the documents” to determine whether those documents “clearly indicate on their face” that the statutory requirements have been met. The Act emphasizes that the “comptroller’s duty to determine the eligibility of a claimant … is purely ministerial.”

Brown, convicted in 2005 of the murder of a Houston police officer, had his conviction set aside in 2014 because the State had withheld exculpatory evidence in violation of Brady v. Maryland. In 2015, the State elected not to re-try Brown, moving to dismiss because of insufficient evidence, and the trial court granted that motion to dismiss. The Harris County District Attorney, however, appointed a special prosecutor to determine whether Brown should be re-indicted or should be declared actually innocent. After a lengthy investigation, the special prosecutor issued a detailed report concluding Brown “could not physically have been at the crime scene” and therefore was actually innocent. Based on that determination, the District Attorney filed an amended motion in March 2019, asking the trial court to enter an amended order dismissing the case against Brown because of his actual innocence. The Houston Police Officers Union opposed that motion, as amicus curiae, arguing the trial court lacked jurisdiction to enter such an order four years after the earlier dismissal. The district court conducted two hearings on the matter and ultimately issued an amended order of dismissal on the basis of Brown’s actual innocence, in accordance with the District Attorney’s request.

When Brown sought compensation under the Tim Cole Act based on this amended order of dismissal, however, the Comptroller denied that request. All parties acknowledged that all the requisite paperwork had been submitted in proper form as required under the Act. But the Comptroller concluded the amended judgment itself demonstrated that the trial court lacked jurisdiction to issue the amended dismissal order based on actual innocence, four years after the original dismissal order, and therefore that the amended order was void. At the very least, the Comptroller argued, the amended order gave rise to an ambiguity about jurisdiction, such that the documents could not be said to “clearly indicate on their face” that the statutory requirements had been met.

The Supreme Court, though, found the Comptroller had swerved out of his “purely ministerial” lane in undertaking that jurisdictional analysis. The Court concluded that the trial court necessarily determined it had jurisdiction to issue the amended order of dismissal, because “criminal courts are charged with determining their own jurisdiction to issue an actual-innocence order.” And “[w]hen the judge of a proper court signs such an order, the statute requires the Comptroller to accept the court’s legal and factual determinations.” Fundamentally, “[u]nder the statute as enacted, the Comptroller can determine only whether the required dismissal order has been issued, not whether it was correctly issued as a legal or factual matter.” The Court therefore directed the Comptroller to “compensate Brown for the time he was wrongfully imprisoned as required by the Tim Cole Act.”

THE NARROWED SCOPE OF “MATTERS OF PUBLIC CONCERN” UNDER THE TCPA, AS AMENDED


Vaughn-Riley v. Patterson
Dallas Court of Appeals, No. 05-20-00236-CV (December 2, 2020)
Justices Myers, Nowell, and Evans (Opinion, linked here)
In 2019, the Texas Legislature amended the TCPA “with the intent to narrow its scope” for actions filed on or after September 1 of that year. In Vaughn-Riley, the Dallas Court of Appeals provided an early glimpse of how it regards the amended version of the TCPA to limit the “matters of public concern” that trigger coverage under the Act. And while the plaintiff surely welcomed the result here, the appeals court’s reasoning probably stung a bit for someone, like her, in show biz.

Lawainna Patterson’s play, Sleeping with the Enemy, was set for back-to-back performances in Tyler. After the matinee, a dispute arose between the actors and crew and the producers, leading to cancellation of the evening show. Terri Vaughn-Riley, one of the actors (identified as “Vaughn” in the opinion), posted a video on Instagram voicing her frustrations with the situation. Patterson and others associated with production of the play sued Vaughn and the other actors, alleging breach of contract and “defamation, slander, and libel.” Vaughn moved to dismiss under the TCPA, arguing that “Patterson’s legal action was ‘based on or is in response to’ Vaughn’s exercise of the right of free speech or right of association” regarding the play and Patterson, its author. Specifically, Vaughn argued that “her communications and actions relate to matters of public concern because they (1) pertained to Patterson, who she claims is a limited purpose public figure, (2) involved the quality and timeliness of the public performance of a theatrical work, and (3) concerned a service in the marketplace.” The trial court denied the motion, and the Court of Appeals affirmed.

The appeals court began by noting that the Legislature had redefined “matters of public concern” before this lawsuit was filed, with the intention of narrowing the applicability of the TCPA. Drawing on legislative history, the Court reasoned that whether something qualifies as a “matter of public concern” is to be measured by the United States Supreme Court’s formulation in Snyder v. Phelps: “communications are matter[s] of public concern when they can ‘be fairly considered as relating to any matter of political, social or other concern to the community’ or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’” 562 U.S. 443, 453 (2011). The Dallas Court concluded “there is nothing to suggest that the cancellation of the second performance of a play in Tyler, Texas, was the subject of general interest and of value and concern to the public.” Ouch. Further, the Court said, “Patterson’s status as cowriter and producer of the play,” coupled with a brief public interview about the dispute, do not “make Patterson a limited purpose public-figure.” Ouch, again. The Court then rejected Vaughn’s final argument—that the dispute related to a service in the maketplace, i.e., the play—because “the legislature’s 2019 amendments to the Act specifically removed issues related to ‘a good, product, or service in the market place’ from the definition of ‘matter of public concern.’”

UTILITY NOT LIABLE FOR CONTRACTOR’S NEGLIGENCE

AEP Texas Central Co. v. Arredondo
Supreme Court of Texas (November 20, 2020)
Opinion by Justice Lehrmann (linked here)
Whether an owner or primary contractor can be held liable for personal injuries caused by the negligence of an independent contractor is often an important issue in cases arising out of residential, commercial, or utility construction. In AEP, the Texas Supreme Court refused to lower the bar required to impose vicarious liability in such cases.

Marta Arredondo was injured when she stepped into a hole in her yard allegedly created by the removal of a “stub pole” by T&D Solutions, a contractor hired by AEP, an electrical utility. (A stub pole is the remaining “stub” of a utility pole after the electrical wires and the top of the pole are removed.) She sued AEP and T&D; the trial court granted summary judgment for both defendants. The San Antonio Court of Appeals reversed, and the companies filed petitions for review.

The Supreme Court reiterated the general rule that “one who employs an independent contractor has no duty to ensure that the contractor performs its work in a safe manner.” That presumption can be overcome if the primary party (here, AEP) retained the right to control “the method and means” of the contractor’s work. Reversing the court of appeals and following its own holdings in similar cases, the Court rejected the proposition that sufficient control is created by contractual provisions that require (1) the contractor to “have an authorized representative at the [work site] to whom [AEP] may give instructions” or (2) the work to “be done as expeditiously as possible and the premises restored immediately.” Nor was the removal of a stub pole an “inherently dangerous” activity that would have imposed a non-delegable duty on AEP.

The Court affirmed the intermediate appeals court’s holding that T&D was not entitled to summary judgment because there was conflicting evidence of whether it had properly filled the hole after removing the pole. Arredondo’s negligence claim against T&D was remanded to the trial court.

CONTINUING TRESPASS IS NOT NECESSARILY AN IRREPARABLE INJURY

WBW Holdings, LLC v. Clamon
Dallas Court of Appeals, No. 05-20-00397-CV (November 12, 2020)
Justices Myers, Nowell (Opinion available here), and Evans
Good fences make good neighbors … sometimes. Two parties owning adjoining land became involved in a dispute about whether the boundary between their properties was the center line of the county road between them or to the south of that road. Taking the latter position, the Clamons erected a fence between the WBW property and the county road (allegedly on their property), barring WBW’s access to the road, and WBW cut the fence to regain access.

Litigation ensued, and the trial court granted a temporary injunction, enjoining WBW from crossing over the boundary asserted by the Clamons. The Clamons argued they had “no adequate remedy, short of injunctive relief, to stop WBW’s representatives from trespassing on their land” and that trespassing on land “is of such a nature that the damage to the Clamon brothers is irreparable; it simply cannot be measured by any pecuniary standard.” The Dallas Court disagreed, holding that trespass alone is not an irreparable injury. The Clamons failed to demonstrate that the alleged trespass would invade the possession of their land, destroy the use and enjoyment of their land, or cause potential loss of rights in real property. With no evidence of a probable, imminent, and irreparable injury, the trial court erred in granting the injunction.

CHALLENGING PERSONAL JURISDICTION? DECIDE FAST

Aaron Kaufman v. AmeriHealth Laboratory, LLC
Dallas Court of Appeals, No. 05-20-00504-CV (October 30, 2020)
Justices Molberg, Carlyle, and Browning (Opinion, linked here)

Does an attorney’s appearance and participation in a TRO hearing and entrance into a Rule 11 agreement constitute a general appearance? Yes, under certain circumstances.

AmeriHealth Laboratory executed a consulting agreement with Final Inch, a Florida corporation, which was signed by Final Inch’s CEO, Aaron Kaufman, a Florida resident. AmeriHealth later sued both Kaufman and Final Inch. It also sought a TRO.

The trial court granted the TRO the same day the lawsuit was filed, after a non-transcribed hearing. However, Kaufman’s attorney appeared at the hearing, did not limit his appearance on Kaufman’s behalf, and actively argued against the entrance of the TRO by challenging the underlying facts concerning his client’s personal liability.

After the hearing, the trial court ordered the parties to confer concerning expedited discovery. The parties reached an agreement, which the court orally entered into the record. The Rule 11 agreement also extended the TRO. Kaufman’s attorney confirmed the agreement, making one modification to the discovery requests. He also agreed with AmeriHealth’s request for the trial court to order compliance with the parties’ agreement.

Kaufman filed his special appearance a week later, arguing that the court lacked personal jurisdiction over him. The trial court denied the special appearance, and the Dallas Court of Appeals affirmed, finding that his attorney’s actions on the day the lawsuit was filed constituted a general appearance and waived the grounds asserted in the special appearance.

A party makes a general appearance if, without limitation, the party “(1) invokes the judgment of the court on any question other than the court’s jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative relief from the court.”

While noting that simply appearing at an ancillary hearing, such as on a TRO application, does not always waive jurisdictional objections, the Court of Appeals found the attorney’s level of active participation here did. Kaufman’s attorney was not an “observer or silent figurehead.” He challenged the underlying facts supporting the TRO, and he “sought and obtained affirmative relief” in the Rule 11 agreement. These activities prior to filing a special appearance distinguished the conduct from other cases holding that an appearance on matters that are “prior to the main suit” do not constitute a general appearance.

The lesson to be learned: if you plan to challenge personal jurisdiction, those words should be the first ones out of your mouth. And they should be on the record.

ANDERS AND THE SECOND MILE


In the interest of J.L.B., a child
Dallas Court of Appeals, No. 05-20-00526-CV (October 15, 2020)
Justices Whitehill (Opinion, linked here), Osborne, and Carlyle

In Anders v. California, 386 U.S. 738 (1967), the United States Supreme Court established a procedure for how appointed counsel for a criminal defendant must deal with the client’s request to pursue an appeal when that lawyer knows that any appeal would be frivolous. In short, that lawyer must file the appeal as requested, but prepare and file a brief that examines the law and the record in detail and explains why there are no arguable grounds for reversal. Anyone who has ever written an “Anders brief” knows it is a soul-crushing experience, contrary to every advocate’s basic instincts. Because the client understandably feels betrayed by the lawyer’s performance of his duty to the legal system under Anders, the brief is accompanied by a motion to withdraw as counsel for that client. And in the federal criminal system, when the appeals court agrees with the lawyer’s analysis and decides the appeal lacks merit, that motion to withdraw is routinely granted. But there’s a twist in Texas.

Texas courts have extended Anders to parental termination cases. See In re D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet. denied). In J.L.B., the counsel appointed for a mother in a parential rights dispute duly followed the Anders procedure and filed a brief that “professionally evaluate[d] the record and demonstrate[d] that there are no arguable grounds for reversal.” The appeals court affirmed the ruling the mother had sought to overturn. But it denied the attorney’s motion to withdraw. The Court reminded us that here, an appointed counsel’s obligations extend through a potential petition for review to the Supreme Court of Texas. “If Mother, after consulting with counsel, desires to file a petition for review, counsel must file a petition for review that satisfies Anders.” Counsel must walk the second mile. “[T]he appeal’s frivolousness … is not sufficient good cause for withdrawing” before that task is done.

DOMINANT JURISDICTION: TRANSFER AFFECTS WHICH CASE IS “FIRST FILED”


In re Equinor Texas Onshore Properties f/k/a Statoil Texas Onshore Properties LLC
Dallas Court of Appeals, No. 05-20-00578-CV (October 7, 2020)
Chief Justice Burns (Opinion, linked here), and Justices Partida-Kipness and Reichek
Against a convoluted factual and procedural background, the Dallas Court of Appeals announced a comparatively simple rule: When determining which of two interrelated cases is “first filed” for purposes of “dominant jurisdiction,” if one of those cases has been transferred to a different court and county, it is the date on which that case arrived in the transferee court that governs, not the date when that case was originally filed in the transferor court.

A bank, as trustee, held certain oil and gas interests in LaSalle County, Texas—an enclave of about 7,000 souls roughly halfway between San Antonio and Laredo. Equinor and Repsol together acquired lease rights to some of those interests. When a dispute arose about royalty payments, the bank filed two separate lawsuits in LaSalle County, one against Equinor and one against Repsol—even though it would later contend they were jointly and severally liable for the alleged shortfall. The case against Repsol was assigned a lower docket number than the Equinor lawsuit, even though the file-mark on the petition indicated it was filed three days later. Equinor accepted venue in LaSalle County. But Repsol challenged venue, and the case against it was transferred by agreement to Dallas County. After the transfer, the bank added Equinor to the Dallas case that had originally been filed only against Repsol. Equinor objected, moved to transfer venue, and filed a plea in abatement, asserting dominant jurisdiction lay with the LaSalle County district court in the case in which the bank had sued Equinor originally.

With respect to interrelated lawsuits, the “court in which suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts.” In re JB Hunt Transp., Inc., 492 S.W.3d 287, 294 (Tex. 2016) (orig. proceeding). The parties did not dispute that the two suits here were interrelated. But there was considerable disagreement about which was “first filed,” given the confusion arising from the discrepancy between the file stamps and the sequence of case numbers assigned to the original Equinor and Repsol lawsuits in LaSalle County. The Dallas Court of Appeals, however, swept that confusion aside, holding that the “LaSalle County court acquired jurisdiction over the Equinor Lawsuit long before the Dallas County court acquired jurisdiction over the Repsol Lawsuit” to which Equinor was later added, and that the date and timing of the transferred Repsol lawsuit did “not relate back” to its original filing in LaSalle County. Dominant jurisdiction, therefore, lay with the LaSalle County district court in the original Equinor lawsuit. So Equinor was entitled to have the Dallas County case against it abated.

NO CONTINUANCE TO AVOID BENCH TRIAL BY VIDEO

In re John Sakyi
Dallas Court of Appeals, No. 05-20-00574-CV (August 20, 2020)
Chief Justice Burns and Justices Pedersen, III and Reichek (Opinion available here)
The fact that you don’t want to conduct your bench trial via videoconference in order to maintain social distancing is not a valid basis for continuance. In this mandamus proceeding arising out of a divorce case, the Dallas Court of Appeals found that the trial court abused its discretion in denying the husband’s motion for continuance based on his need to conduct additional discovery into whether his purported wife was still married to another man at the time of their wedding. But the Court rejected the husband’s other basis for requesting a continuance—that he did not consent to participate in the bench trial via videoconference. He also expressed concern about his counsel’s inability to talk to him without violating social distancing recommendations.

The Court held the trial court did not abuse its discretion by overruling the husband’s objection to trial via videoconference. In its emergency orders, the Supreme Court of Texas expressly granted trial courts the discretion, “subject only to constitutional limitations” and “without a participant’s consent,” to require that all participants in hearings, depositions, “or other proceeding[s] of any kind” participate remotely, “such as by teleconferencing, videoconferencing, or other means.” Although the emergency orders do not specify bench trials, the Court held they would fall under the category of “other proceeding[s] of any kind.” The husband did not claim a bench trial by videoconference would violate any of his constitutional rights, so the trial court did not abuse its discretion in requiring him to participate in this manner.

JURY SELECTION IN FATAL-ACCIDENT CASE SPARKS BATSON BATTLE IN APPELLATE COURT

United Rentals North America, Inc. v. Evans
Dallas Court of Appeals, No. 05-18-00665-CV (August 18, 2020)
Justices Pederson III, Reichek (Opinion linked here), and Carlyle Dissents from Denial of En Banc Reconsideration by Justices Evans (Dissent linked here) and Schenck (Dissent linked here)
A Dallas Court of Appeals panel unanimously affirmed a judgment for plaintiffs in a wrongful death case, overruling the defendant’s objections to the trial court’s Batson rulings in jury selection. The case apparently sparked internal controversy in the 12-member Court. On the same day the panel opinion issued, two Justices who were not on the panel filed dissents to the denial of en banc reconsideration. The competing opinions provide roadmaps for applying the Batson guidelines to civil lawsuits.

A big rig hauling an oversized “boom lift” for United Rentals struck a bridge in a highway construction zone, which caused a bridge beam to collapse on a pickup truck, killing the driver. The decedent’s mother and son brought a wrongful-death and survival suit against several defendants. Before judgment, all defendants except United Rentals settled or were dismissed. During voir dire, the court granted two of Plaintiffs’ Batson challenges to United Rentals’ use of preemptory strikes, and denied United Rentals’ competing Batson challenges. The jury found for Plaintiffs and the court entered judgment awarding $2.79 million in damages. United Rentals appealed.

Before addressing the Batson issues, the appeals court overruled United Rentals’ substantive issues, including its arguments that the negligence verdict was error because United Rentals, “as a shipper, had no duty to see that the carrier … shipped its cargo safely,” and there was insufficient evidence to support the damages awarded for the decedent’s “conscious pain and mental anguish” in the few seconds between the collision and his death. Those holdings consume over 35 pages of the panel’s opinion, and Justice Schenck’s dissent to the denial of en banc review urges the Texas Supreme Court “to establish the proper review standard to govern pain and suffering awards.” These issues could be the subject of a separate blog post.

Turning to the Batson dispute, the Court summarized United Rentals’ argument: The “trial court erred in granting appellees’ challenges to two of United Rentals’ peremptory strikes of black women while denying United Rentals’ challenges to appellees’ use of strikes on men, four of whom were white.”

The Batson rules were originally promulgated to prevent criminal prosecutors from using peremptory strikes to exclude jurors solely because they were of the same race as the defendant. See Batson v. Kentucky, 476 U.S. 79, 89 (1986). Batson has since been extended to civil trials and to other “suspect” grounds for striking potential jurors. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 618-28 (1991); Goode v. Shoukfeh, 943 S.W.2d 441, 444-45 (Tex. 1997).

Applying Batson involves a three-step process similar to the test for employment discrimination. First, the party objecting to a preemptory strike must establish a prima facie case it “was used to exclude a venire member on the basis of race or gender.” Second, the proponent of the strike must articulate “a race- or gender-neutral reason for the strike.” Finally, the party challenging the strike has an opportunity to rebut the explanation and show it is a pretext for unlawful discrimination. The standard for evaluating a strike under Batson is “whether race [or gender] was a motivating factor in counsel’s exercise of the strike.” The trial court’s rulings, often based on credibility assessments, are subject to review for abuse of discretion.

Here, Plaintiffs objected to United Rentals’ use of all five of its peremptory strikes on black women, and United Rentals objected to Plaintiffs’ striking four white men and one Hispanic man. The judge granted two of Plaintiffs’ Batson challenges, and denied all of United Rentals’ challenges. After reviewing the voir dire colloquies and arguments of counsel, the Court of Appeals held the judge did not abuse her discretion in finding that race was a motivating factor for United Rentals striking one of the two jurors. Central to the Court’s holding was that the record did not support counsel’s stated reason for striking the prospective juror. The second juror placed on the jury over United Rentals’ objection did not join in the jury’s adverse verdict, so the appeals court held any error in allowing her to serve was harmless.

As for the trial court’s denial of United Rentals’ challenge to Plaintiffs’ strikes, the appeals court rejected the argument that Plaintiffs’ counsel admitted unlawful discrimination by telling the judge, “We know from our focus groups that the African-American female is the most favorable juror for this case for whatever reason.” The court concluded counsel made this statement in the context of “explaining why they believed United Rentals’ strike of [a] particular black panelist was pretextual,” and did not evidence Plaintiffs’ “intent to seat a jury without whites or males.” And although the Court acknowledged the gender and racial “disparities suggest something more than happenstance,” they did not alone “establish that appellees’ explanations of the strikes were pretextual.” The Court then conducted a “comparative analysis” of the record relevant to each of Plaintiffs’ strikes and concluded the judge did not abuse her discretion in denying the challenges. The Court explained, “Disparate treatment is not shown where a party strikes a juror because of multiple characteristics and does not strike jurors of other races or genders who share one or more of those characteristics.”

The online docket does not reveal a request for en banc review or a vote on such a request. Nevertheless, two dissents from a denial of en banc consideration, released at the same time as the panel opinion, indicate a vote did occur. See Tex. R. App. P. 41.2(c). Justice Evans, joined by Justices Whitehill and Schenck, submitted a lengthy opinion supporting reversal and remand for a new trial on the grounds that “a race- and gender-based goal—the substantial motivation—in selecting the jury was plainly and openly stated, and 100% of the peremptory challenges were perfectly consistent with that goal.” The dissent characterized the statement of Plaintiffs’ counsel that “the African-American female is the most favorable juror for this case” as rare “direct evidence of discriminatory intent,” which, combined with evidence of the plan’s execution, “may well stand for itself and obviate any need of further analysis.” Nevertheless, the dissent reviewed in detail the record relevant to each of the jurors excluded by Plaintiffs. In addition to Plaintiffs’ stated “discriminatory goal,” the dissent found “misstatements of the record” and “pretextual reasons about which [Plaintiffs] did not ask questions.” According to the dissent, “the only possible conclusion” is that Plaintiffs “intended to strike non-black men from the jury in violation of Batson” and its progeny.

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