Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of February 19, 2007

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

Haire v. Nathan Watson Co. & Fugro South, Inc., No. 02-06-00107-CV (Feb. 22, 2007) (McCoy, J., joined by Cayce, C.J.; Walker J. dissents without opinion).

Held: Because Nathan Watson Co. and Fugro were not parties to the sales contract in which the Haires purchased their home and were also not third party beneficiaries of that contract, the "as is" provision of the contract was not an available defense for either Nathan Watson Co. or Fugro. Furthermore, because the Haires had pre-purchase knowledge of the need of certain repairs and maintenance relating to the home's foundation, that knowledge barred them from surviving summary judgment on their breach of implied warranty claim against Fugro.

Ex parte Dave, No. 02-06-00092-CR (Feb. 22, 2007) (Cayce, C.J., joined by Dauphinot and Walker, JJ.).

Held: There is no constitutionally-protected right, under either the First or the Fourteenth Amendment, to sell obscene material, and the State has a legitimate interest in regulating commerce in obscene material. Penal code section 43.23, which prohibits the sale of obscene material, is rationally related to the government's advancement of this legitimate interest. Accordingly, section 43.23 is both facially constitutional and constitutional as applied to Appellant.

Reger v. State, No. 02-06-00104-CR (Feb. 22, 2007) (Gardner, J., joined by Holman and Walker, JJ.).

Held: The trial court did not err in denying Appellant's request for post conviction DNA testing. The court properly concluded that identity was not an issue in Appellant's murder case because Appellant admitted to killing the victim. Moreover, this court lacks jurisdiction to review any additional issues raised by Appellant that fall outside the scope of the trial court's jurisdiction under chapter 64 of the code of criminal procedure.

In re Spiritas Ranch Enters., L.L.P., No. 02-06-00463-CV (Feb. 22, 2007) (Livingston, J., joined by Dauphinot and Holman, JJ.).

Held: The trial court abused its discretion by failing to grant a temporary restraining order prohibiting the Town of Little Elm from annexing the property of Spiritas Ranch Enterprises under section 43.052(h)(1) of the local government code until an evidentiary hearing could be held on Spiritas's request for temporary injunctive relief asking that the Town be restrained from annexation pending arbitration under section 43.052(i) of the local government code, which provides a property owner with a pre-annexation arbitration right. If the Town were allowed to annex Spiritas's property while arbitration under section 43.052(i) was pending, the Town could effectively cut off Spiritas's right to such pre-annexation arbitration; a post-annexation arbitration would be moot because the statute does not provide for disannexation if the arbitrator were to rule against the Town and, thus, the arbitration would be meaningless. Because the grant or denial of a TRO is not appealable, Spiritas does not have an adequate remedy by appeal and, thus, mandamus relief was conditionally granted.

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Updated: 23-Feb-2007