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The Texas Supreme Court won’t hear four Dallas school officials’ claim that they’re immune from a defamation suit stemming from a 1997 controversy over an administrator’s authority to build two bathrooms in her office. In a 7-2 decision on Dec. 13, the high court held that it lacks jurisdiction over the interlocutory appeal in Robby Collins, et al. v. Shirley Ison-Newsome. However, the court split 5-4 over whether its conflicts jurisdiction can be based on unpublished opinions. Ison-Newsome, a Dallas school district area superintendent who had been reassigned as a principal as of the time the news conference was held, sued Collins, Robert Hinkle, Robert Payton and John Dahlander for defamation after they discussed the so-called “Potty Gate” investigation at a June 1997 news conference. At the time of the news conference, Collins was the special assistant to the superintendent for operations, Hinkle was special assistant to the superintendent for communications, Payton was associate superintendent of schools and accountability, and Dahlander was executive director of media relations. In her suit, Ison-Newsome alleged that the defendants conspired to slander her by making untrue statements to the news media that she “committed serious errors in judgment, was involved in wrongdoing and was subject to disciplinary action for her role in the bathroom construction.” Ison-Newsome further alleged that the statements about her were made to direct media attention away from then-Superintendent Lauren Yvonne Gonzalez’s own office renovations. The defendants sought to derail the suit, claiming that they were immune from liability under � 22.051(a) of the Texas Education Code because they were acting within the scope of their duties as professional employees of a school district when they discussed the investigation with the news media. Dallas’ 193rd District Court denied their summary judgment motion. The 5th Court of Appeals affirmed the trial court, holding in an unpublished opinion authored by Justice Joseph Morris that the defendants did not prove conclusively that they had acted within the scope of their duties when they made the comments about Ison-Newsome to reporters. In their appeal to the Texas Supreme Court, the defendants cited published and unpublished opinions that have interpreted the immunity statute. The court held that the published opinions cited do not support conflicts jurisdiction and that the unpublished opinions could not be considered. Justice Deborah Hankinson, writing for the majority, said Texas Rule of Appellate Procedure 47.7 plainly states that unpublished opinions have no precedential value and cannot be cited as authority. If a case has no precedential value, by definition, it cannot overrule a later case and thus can’t be the basis for conflicts jurisdiction, Hankinson wrote. Hankinson noted in the opinion that the court is considering amending Rule 47.7 to eliminate unpublished opinions. “[U]ntil we do so, it would be patently unfair to those litigants who followed Rule 47.7 to now tell them that if they had violated the rule, they would have had a better chance of obtaining review,” the opinion said. But Justice Nathan Hecht, author of a dissenting opinion in which he is joined by Justice Priscilla Owen, wrote that the precedential value of unpublished opinions was not limited until a 1982 rules change, while the statute governing the court’s conflicts jurisdiction in interlocutory appeals was enacted in 1953. The change in the rules cannot have diminished the court’s conflicts jurisdiction, Hecht said in the opinion. Under the majority’s opinion, Hecht wrote, the court would have conflicts jurisdiction if an unpublished opinion conflicted with an earlier published opinion. But the majority opinion does not allow conflicts jurisdiction if a published opinion conflicts with an earlier unpublished opinion, Hecht said. In a concurring opinion, Justice Wallace Jefferson agreed with Hecht — at least in principle — that conflicts jurisdiction can be based on unpublished opinions. But Jefferson, who was joined in the concurrence by Justice Xavier Rodriguez, said the unpublished opinions cited in Collins don’t support conflicts jurisdiction. GETTING IT RIGHT “The only people who got the opinion right are the two new kids on the block,” says James Paulsen, referring to Jefferson and Rodriguez, who were appointed to the court this year. “They really did nail this.” Paulsen, a South Texas College of Law professor who specializes in jurisdictional issues, says Jefferson and Rodriguez properly recognized that judges do not have authority to amend statutes governing their jurisdiction. “Our opinion-publishing rules should neither add to nor subtract from our statutorily defined jurisdiction,” Jefferson said in the concurring opinion. Under Texas Government Code � 22.001(a)(2), the state supreme court has conflicts jurisdiction over an interlocutory appeal when a court of appeals holds differently from a prior decision of another court of appeals on a question of law addressed in the case. Paulsen says under the supreme court majority’s opinion, a court of appeals conceivably could rule the opposite of all the other courts of appeals and insulate its decision from review by declaring that the opinion is not published. “This significantly cuts down on the chances of an unpublished opinion ever being reviewed,” he says. Dallas attorney William A. Brewer III agrees with Hankinson that Rule 47.7 prevents the use of unpublished opinions to determine the court’s conflicts jurisdiction. “If you can’t cite it, then how do you argue it,” says Brewer, who represents Ison-Newsome pro bono through Bickel & Brewer Storefront. Brewer says the supreme court has statutory authority to promulgate the “rules of engagement” for appellate procedure. John A. Martin, attorney for the defendants, says Rule 47.7 applies to citing unpublished opinions for authority. Martin, of counsel at Carrington, Coleman, Sloman & Blumenthal in Dallas, says the defendants cited the unpublished opinions to show there is confusion over the scope of immunity that school employees are afforded. Filing a motion for rehearing is a possibility, he says. Charles Silver, a University of Texas School of Law professor, says the debate over whether unpublished opinions can be used as a basis to establish conflicts jurisdiction will be short-lived if the supreme court adopts the proposed rules change. The new rule, as proposed, would eliminate unpublished opinions. Courts could use memorandum opinions for cases not important to the jurisprudence of the state. “I don’t like unpublished opinions,” Silver says. “One of the jobs of the court is to provide the public information about the law.”

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