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90 Day Deadline for Texas Whistleblower Act Claims

Oct 9, 2014 — by Jeff Mundy
Tags: Whistleblower

Employees who have been retaliated against for making protected disclosure must bring claims within 90 days of the retaliation.  The Texas Whistleblower Act governs state and county employees in Texas. 


Mental Anguish - What must be shown?

Mar 11, 2014 — by Jeff Mundy
Tags: Personal Injury

Texas has authorized recovery of mental anguish damages in virtually all types of personal injury actions.  Mental anguish may be recovered from such emotions as "grief, severe disappointment, indignation, wounded pride, shame, despair, or public humiliation." Evidence of mental anguish may be presented by the plaintiff, third parties, or experts.  It is within the province of the jury to determine the amount of a plaintiff's pain and suffering.  In personal injury cases in particular a jury may exercises considerable discretion and generosity in awarding damages. Credit to my colleague Ed Hensley.

Pain and Suffering Specific Number Not Required

Mar 10, 2014 — by Jeff Mundy
Tags: Civil Procedure

Plaintiff is not required to provide a specific detailed number in answer to interrogatories requesting an exact number for pain and suffering.

Asbestos & Mesothelioma - Corruption of Science & Scientific Literature

Oct 21, 2013 — by Jeff Mundy
Tags: Asbestos

Geogia Pacific is the latest corporation found to be engaged in manipulating scientific research for its benefit.

Trying to avoid responsibility for mesothelioma victims who contracted this asbestos cancer from Georgia Pacific drywall and joint compound products, Georgia Pacific engaged a secret team to attempt to manipulate the scientific literature.

Governmental Immunity & Declaratory Judgment

Aug 15, 2013 — by Jeff Mundy
Tags: Civil Procedure Civil Rights

Sovereign immunity protects the State from lawsuits for money damages, and political subdivisions of the State are entitled to this immunity—referred to as governmental immunity—unless it has been waived.  An exception to governmental immunity exists when the plaintiff seeks declaratory relief against state officials who allegedly act without legal or statutory authority because "[a] state official's illegal or unauthorized actions are not acts of the State."  For a suit to fall within this "ultra vires" exception to governmental immunity, the suit "must not complain of a government officer's exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act." 

County Court Jurisdiction & Pleading

Aug 13, 2013 — by Jeff Mundy
Tags: Civil Procedure

When the petition does not affirmatively demonstrate the absence of jurisdiction, the petition should be liberally construed in favor of jurisdiction.  Moreover, if the original petition is within the jurisdictional limits, but an amendment increases the amount in controversy above the court's jurisdictional limits, the court continues to have jurisdiction if the additional amount accrued because of the passage of time.   

Workers' Comp Lien - Choice of Law

Aug 12, 2013 — by Jeff Mundy
Tags: Civil Procedure


The local law of the state under whose workmen's compensation statute an employee has received an award for an injury determines what interest the person who paid the award has in any recovery for tort or wrongful death that the employee may obtain against a third person on account of the same injury.

Restatement (Second) of Conflict of Laws § 185 (1971).

Insurance Company of State of Pennsylvania v. Neese, (Tex. App. - Dallas, 2013).

Oilfield Groundwater Contamination Law

Jul 22, 2013 — by Jeff Mundy
Tags: Groundwater Contamination

Texas law provides that landowners have a right of action against oilfield operators for contamination of their land and groundwater supply.   There are several potential causes of action, but the most discussed is "trespass." "Trespass” means an entry on the property of another without having consent of the owner. To constitute a trespass, entry upon another's property need not be in person but may be made by causing or permitting a thing to cross the boundary of the property below the surface of the earth. Every unauthorized entry upon property of another is a trespass, and the intent or motive prompting the trespass is immaterial.

Appeal of Zoning Decision

Jul 15, 2013 — by Jeff Mundy
Tags: Land Use Law

A decision of a board of adjustment may be challenged by the filing of a petition in district court stating that the decision of the board is illegal in whole or in part and specifying the grounds of the illegality. Tex. Loc. Gov't Code Ann. § 211.011(a) (West 2008); Town of Bartonville Planning & Zoning Bd. of Adjustments v. Bartonville Water Supply Corp., No. 04-12-00483-CV, 2013 WL 2558272, at *6 (Tex. App.—San Antonio Mar. 27, 2013, no pet. h.); City of Alamo Heights v. Boyar, 158 S.W. 2d  545, 549 (Tex. App. San Antonio 2005, no pet.).  "On the presentation of the petition, the court may grant a writ of certiorari directed to the board to review the board's decision." Tex. Loc. Gov't Code Ann. § 211.011(c). If a writ is granted, the board must file a return concisely stating "any pertinent and material facts that show the grounds of the decision under appeal." Id. at § 211.011(d).

Consent to Search - Civil Rights

Jun 5, 2013 — by Jeff Mundy
Tags: Civil Rights Torts Commerical Litigation

For consent to be valid, it must "'not be coerced, by explicit or implicit means, by implied threat or covert force.'" Consent must be given freely, unequivocally, and without duress or coercion.  "The ultimate question is whether the suspect's will was overborne" by the officer's actions.  The trial court must examine the voluntariness of a consent based on the "totality of the circumstances from the point of view of an objectively reasonable person, including words, actions, or circumstantial evidence." If the voluntariness of the consent is challenged at trial, the State must prove the voluntariness of a consent to search by clear and convincing evidence. "If the record supports a finding by clear and convincing evidence that consent to search was free and voluntary, we will not disturb that finding." 

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