In re Newton et al., 146 S.W.3d 648 (Tex. 2004)

On October 18, 2004, the first day of early voting for the general election, Bobby Glaze and David Liebowitz, Democratic Party candidates for election to the Texas House of Representatives, districts 5 and 117 respectively, sued Associated Republicans of Texas Political Action Committee, an incorporated general-purpose political committee under TEX. ELEC. CODE § 251.001(14), and its treasurer, Norman F. Newton (collectively "ART PAC") for declaratory and injunctive relief in the 53rd Judicial District Court of Travis County, Texas.

The crux of plaintiffs Glaze and Liebowitz's argument was that for four years - since 2000 - ART PAC had been soliciting, accepting, and expending funds from other, unconnected corporations in violation of the Election Code, and that, if permitted to continue, such conduct would cause irreparable harm to the plaintiffs and diminish the public's faith in the Texas electoral process. On October 20, 2004, following a hearing at which the parties appeared by counsel but presented no evidence, the district court issued a temporary restraining order based solely on the plaintiffs' verified seven-page petition and counsel's argument. Curiously, and as De Leon, Boggins & Icenogle ("DBI") would later argue in its petition for writ of mandamus to the Texas Supreme Court, nothing in the plaintiffs' verified pleadings, which was the only evidence before the district court, suggested that the plaintiffs or anyone else had previously contested ART PAC's activities, even though they must be publicly reported.

The TRO prohibited ART PAC and others from soliciting, accepting, or spending corporate funds for fourteen days, the maximum period for which a TRO may issue. The district court set a temporary injunction hearing for November 3, the day after the general election, and after plaintiffs would no longer have the same incentive to pursue relief, having either won or lost their races. On October 22, 2004, ART PAC, represented by DBI, petitioned the Texas Supreme Court for review by writ of mandamus. Based solely on DBI's written arguments, the Supreme Court granted mandamus relief to ART PAC.

While DBI recognized that a TRO is normally not appealable, it argued that this was a matter of statewide importance as the election was already in progress; the issues were far from clear based on a brief, non-evidentiary TRO hearing; and ART PAC's substantial constitutional rights were being adversely affected. The Supreme Court agreed, stating, "[T]he plaintiffs' allegations raise important and difficult issues that have not been resolved by a trial on the merits. By granting a TRO on two days' notice after the election has begun, and by setting a temporary injunction hearing the day after the election is over, the district court has essentially made a final, non-appealable adjudication affecting ART PAC's right rights to participate in this election, rights that as ART PAC asserts, implicate its freedom of speech under the United States Constitution and the Texas Constitution." In re Newton, 146 S.W.3d at 652.

Based on the Supreme Court's direct orders, the district court vacated the TRO on October 26, 2004.

Texas Workers' Compensation Insurance Fund v. DEL Industrial, 35 S.W.3d 591 (Tex. 2000)

This was a suit brought by the Texas Workers' Compensation Insurance Fund (the "Fund") against DEL Industrial, Inc. ("DEL"), alleging additional premiums due from DEL on a workers' compensation insurance policy DEL had purchased from the Fund. The Fund was seeking premiums for workers DEL leased from a licensed staff-leasing company, Administrative Resources, Ltd. ("ARL"). DEL had purchased a workers' compensation insurance policy from the Fund, intending only to cover the executive staff and office personnel who were not leased through ARL, but who remained employees of DEL.

The Fund sued DEL, stating that DEL was responsible for payment of additional premiums attributable to the employees DEL had leased through ARL. The Fund's theory was that DEL was the "co-employer" of the leased workers, and thus was equally responsible for providing workers' compensation insurance coverage for such workers.

The Fund obtained a summary judgment from the Travis County District Court on the issue of DEL's liability for the additional premiums, and after a trial to decide the amount of premiums due, obtained a final judgment.

DEL appealed the judgment to the 3rd Court of Appeals in Austin, Texas. The Court of Appeals reversed the Travis County District Court's judgment, and rendered a judgment in favor of DEL, stating that DEL owed no additional premiums to the Fund. DEL Indus., Inc. v. Texas Workers' Compensation Ins. Fund, 973 S.W.2d 743 (Tex. App.-Austin 1998). The basis of the Court of Appeals' decision was that it was improper for the trial court to base its decision on only one sentence of the Staff Leasing Services Act. Rather, in construing a statute, all provisions of the statute must be reviewed to determine legislative intent.

The Fund appealed this decision to the Texas Supreme Court. After granting the Fund's Petition for Review, the Texas Supreme Court ultimately affirmed the judgment of the Court of Appeals. Texas Workers' Compensation Ins. Fund, 35 S.W.3d 591 (Tex. 2000).

De Leon, Boggins & Icenogle has also won two Texas appeals court cases recently, one in the 9th Court of Appeals and one in the 5th Court of Appeals. In the 9th Court of Appeals in Beaumont, the firm, representing National Family Care Life Insurance, was successful in the appeal of a judgment against its client resulting from a contract dispute involving allegedly vested commissions. The firm convinced the court that the trial court erred by improperly precluding cross-examination on the issues of damages and liability. Then, in December 2001, the 5th Court of Appeals affirmed the trial court's final judgment confirming an arbitration award of approximately $1.3 million in actual damages and $550,000 in punitive damages against John J. Kenny to National Family Care Life Insurance, again represented by De Leon, Boggins & Icenogle.

In the area of administrative proceedings, De Leon, Boggins & Icenogle recently represented InStaff Personnel Services of Plano in an unclaimed audit matter before the Texas Comptroller of Public Accounts. The firm obtained not only a 66% reduction in the amount due to the state comptroller's office, but also a complete waiver of both interest and penalties.

Commercial Life Insurance Company v. Texas State Board of Insurance, et al., 774 S.W.2d 650 (Tex. 1989)

Commercial Life Insurance Company ("Commercial"), a foreign insurance corporation, applied to reserve the name "Commercial Life Insurance Company." The State Board of Insurance (the "Board") denied the name reservation on the statutory ground that the name was so similar to that of other insurance companies as to be likely to mislead the public. However, the Board failed to give Commercial notice of its order denying the request. Commercial sued for judicial review of the Board's order. Opposing insurance companies ("Bankers Commercial") and the Board moved for dismissal in district court on the basis that Commercial had not timely filed a motion with the Board for rehearing. The district court granted the dismissal and the court of appeals affirmed.

The Supreme Court ("Court") found that the statutory scheme for filing a motion for rehearing contemplates that the parties receive actual notice pursuant to section 16(b) of the Administrative Procedure and Texas Register Act ("APTRA"). Tex. Rev. Civ. Stat. Ann. Art. 6252-13a § 16(b) (Vernon Supp. 1989). The Court concluded that section 16(b) requires an agency to promptly notify the parties of its decisions and that the time period (fifteen days) for filing a motion for rehearing does not commence until the agency satisfies its statutory duty of notification.

Bankers Commercial also contended that section 16(b) required Commercial to request a copy of the decision from the Board, precluding any consideration of Commercial's motion for rehearing filed after the expiration of the fifteen-day period. The Court disagreed, stating that the Board had a duty to inform Commercial of its decision without regard to any request that was or was not made by the parties.

The Court therefore reversed the court of appeals and remanded the case to the trial court to consider the administrative appeal on its merits.

Commercial was represented by De Leon, Boggins & Icenogle.