*1 spondents paid nothing. A to the contract the have To the ex- Exhibit stated leases follows,” fully appeals were “more described as but tent the court of enforced the wells, headings agreements contained no more than for items for future it and 1982 name, acreage, like lease was in error. description, headings. and was blank below the Exhib- in appeals the court of erred Because B provided plat it that alone is insuffi- trial affirming the court’s enforcement identify subject cient to An- leases. litigation recovery agreement, and to document, also entitled “Exhibit other the extent it affirmed future enforcement ” ‘A,’ attached at the con- was end agreements, of the 1978 and 1982 provided legal tract and the name and fees must be redeter- award lease, description of each it stated Eckman, mined. Barker v. part “[a]ttached was to and made of that (Tex.2006). Agreement certain Letter dated Novem- Accordingly, grant we petition ber and between Riddle Oil Com- hearing argument, review and without oral Trusts, pany, Long Farmoutor and The TEX. R. APP. P. reverse the court of Farmoutee”, Tejas not the Gas contract. in appeals’ judgment part and remand the Contrary purpose of extrinsic evi- proceed- case to the trial court for further dence, Tejas only pro- Gas contract ings opinion. consistent with confusion, certainty, vides not reasonable identity of each in lease the 1982 Thus, agreements. agreements the 1982

are also unenforceable under the Statute

of Frauds. appeals

The court of peti held that

tioners could not use the Statute of Frauds to avoid agreements enforcement of the GROUP, INC., FARMERS they when had knowingly accepted the al., et Petitioners benefits of the agreement. 144 at 105. Whether or not this is a correct application law, LUBIN, Villaneuva, petitioners do not Jan Gilberto seek agreements Paladino, Respondents. to avoid their with re Michael spect already to wells drilled. But No. 05-0169. agreements expressly pro 1978 and 1982 Supreme vided that Court of Texas. respondents’ right participate “project future leases existed on a Argued Jan. project basis,” or well well and that April Delivered “participation non-participation any or project one or your well will not affect

right participate in any project other

well.” Respondents’ acquisition of inter past completely separate

ests were

from future and did not insu transactions agreements

late the from the Statute of drilled,

Frauds for wells not it unfair nor is permit petitioners to assert the defense

as to future transactions toward which re- *2 Greer,

Marcy Hogan Fulbright & Ja- worski, L.L.P., Austin, for Farmers Un- Association, Fire derwriters Underwriters Association, Exchange, Farmers Insurance Mid- Company, Texas Farmers Insurance *3 Texas, Century Company Insurance Mid-Century Company, Insurance Truck Exchange, Insurance Truck Underwriters Association, County and Farmers Texas Mutual Company. Insurance Post, Longley, Russell S. Joe K. Law Longley, Philip Offices of Joe K. K. Max- Maxwell, well, Philip Law Offices of K. Austin, Stephen McCleery, L. Michael T. Firm, Gallagher, Gallagher Law Dan- iel Downey, Gallagher Downey M. Lewis & Kim, Houston, for Jan Lubin. Mattax, Litiga- David C. Chief Financial tion, Hohengarten, John M. James R. Wenzel, Associates, T. hall & Jeff William Graham, Weil, Eskow, M. Royce Lisa LLP, Warr, Manges Amy Gothshal & Al- Townsend, LLP, exander Dubose Jones & Abbott, Greg Atty. Gen., Barry Ross MeBee, Burbach, Edward D. Rafael Ed- Cruz, Carmona, Austin, Paul D. ward State. Blanks, Doucette,

Joseph C. for Gerald Lesly Hooks and K. Hooks. Burrow, Parrott,

David H. Burrow & L.L.P., Houston, for Michael Paladino. Burrow, Parrott, David H. Burrow & L.L.P., Post, Russell S. David Watkin Jones, Secrest, L.L.P., Beck Redden & Jefferson, Houston, Dwight E. for Gilberto Villanueva. opinion

Justice BRISTER delivered the Court, in which Chief Justice JEFFERSON, O’NEILL, Justice Justice WAINWRIGHT, MEDINA, Justice Mackillop, Katherine D. Richard N. Car- GREEN, Justice and Justice JOHNSON rell, Kruse, Layne Pecht, E. Gerard G. joined. Greer, Marcy Hogan Mary S. Dietz and M. Incerto, Scott Fulbright & Jaworski In amended the L.L.P., Austin, for Group attorney gen- Farmer Inc. Insurance Code to allow an straits, dire turned a class on behalf of In these eral to action Within a litigation negotiation. from buyers. the first time insurance This is weeks, they global agree- few reached has trial court tried. The signed ment which Farmers class, appeals certified a the court reduce requiring settlement it to its reversed, finding the had Attorney General discounts, premiums, adopt uniform base strictly complied with two of the certi- policyhold- nonrenewing refunds to offer requirements. fication ers, tying practices, discontinue certain agree rigorously We courts must attorney’s the State million in pay $2 strictly com analyze party whether was agreement and costs. The ter- fees plied requirements with all for class certif if than 2 party minable either more But those cannot ication.1 opted percent of the class members out. *4 way in a applied that renders million, The settlement was valued at $117 general class actions a result impossible, casualty insur- largest property and in Legislature’s that would frustrate the history. ance settlement the State’s Accordingly, tent. we hold the standard parties applied The to the district court applied class action must be ap- and settlement for class certification by the generally to the asserted claims policyholders Five intervened ob- proval. General, Attorney Attorney not Gener grant- district court jecting both.3 The al himself. approved and preliminarily ed certification the settlement. Background I. interlocutory The Intervenors filed an investigation by As a result of Appeals and the appeal,4 Third Court Insurance, the Texas Department Texas reversed, holding Farmers various General sued bring a under could not class action and alleging inadequate disclosure entities naming individual Insurance Code without rating in its homeowners discrimination members as The representatives.5 of Insur- practices.2 The Commissioner petitions Farmers for re- State and filed order ance also issued cease-and-desist view. Farmers, proceedings and initiated

against Appellate II. Jurisdiction Farm- to collect administrative penalties. of Class Certification responded announcing ers its withdraw- expanded al the Texas insurance from homeowners In jurisdiction to include interloc- market. this Court’s Bernal, Texas, Co., Company Mid-Century Refining 22 Of 1. See Sw. Inc. v. Insurance (Tex.2000) (“Courts Company, Truck Insurance Ex- must Insurance S.W.3d Association, change, and ruling Truck Underwriters ‘rigorous perform analysis’ before on County Mutual Insurance Farmers Texas all to determine whether class certification Company. been prerequisites have certification met.”); Computer Corp. v. Compaq also see (Tex.2004) ("All policyholders (collectively referred to The as Lapray, "Intervenors”) Lubin, Michael Paladi- Jan means all prerequisites.”). no, Villanueva, Lesly and Gilberto and Gerald Hooks. K. (collectively 2. The entities at issue referred Inc., "Farmers”) Group, are Farmers as 18(d) (current Association, See Tex. Ins.Code Fire Un- Underwriters Farmers 541.259). Association, at version Insurance derwriters Farmers Exchange, Texas Exchange, Fire Insurance Mid-Century (Tex.App.-Austin S.W.3d 113 Company, Insurance 5. 157 Farmers Insurance utory review of class certification orders to review certification under the Code as well. ap- the same extent as the courts of Thus, now peals.6 the Government Code Moreover, judge granted the trial certi- jurisdiction Tex- grants following to all fication under both alternatives here. We appellate courts: holding may that an alternative have held person may A appeal from an interlocu- if, jurisdiction though a establish even court, tory county order of a district could have been based on either judgment law, county court at court that ... both.9 grounds, of two was based on (1) certify one, practical certifies or refuses to a class rule is a because This jurisdiction brought appellate generally suit under Rule of the Texas attaches (2) orders, reasons, reviewing Rules of ... and one Civil Procedure ground futile if the for order would be Here, sought certification was unappealed order would stand on the (1) granted under two alternatives: Rule Here, ground regardless. example, if (2) separate 42 and virtually identi- jurisdiction we have no to review certifica- cal provisions class-action in the Insurance Code, tion based on the Insurance neither point Code. Intervenors out that sec- appeals, did the court of the class thus 51.014(3) former, tion mentions would remain certified under the Insur- *5 argue and jurisdiction we have no regardless ance Code of either court’s because the class can meet require- analysis. Rule 42 cannot We construe sec- ments, all, if at the latter. strictly tion 51.014 so as to render it fu- disagree. Assuming We Legis parties sought tile.10 As the and the trial lature interlocutory intended to allow re granted court certification under both Rule view of Rule 42 classes but not Insurance Code, juris- 42 and the Insurance we have (an reach), Code classes issue we do not grounds diction to review both for that this case the State and sought Farmers order. repeatedly

both. “As we have recognized, III. Class Actions jurisdiction if our is properly invoked on Attorney General issue, acquire jurisdiction one we jurisdiction entire case.”8 As we have begin by placing We Insurance Code 42, review certification under may prohib- Rule we class actions in context. The Code R.S., because, Leg., See Act of June 78th for trial court's order while decision 204, 1.02, either, ch. (codified 2003 Tex. Gen. Laws 848 could have been on based was based 22.225(d)) ("A as Tex. Gov’t Code both); on Texas Natural Res. Conservation petition supreme for review is allowed to the White, 864, (Tex. 46 Comm’n appeal interlocutory court for an from an 2001) (finding jurisdiction conflicts based on 51.014(a)(3), (ó), order described Section grounds appellate judg one of two for court’s (11), Code”). Civil Practice and Remedies both). ment as decision was based on change applies petitions for review 1, September filed after 2003. See id. ("In 10. See enact- Gov’t Code Tex 1.05(a), 2003 Tex. Gen. Laws 850. The statute, (2) ing presumed a it is that: ... petitions here were filed in March 2005. effective; (3) entire a statute is intended to be ”); just and reasonable result is intended ... 7. See Tex. Civ. Prac. & Rem.Code 51.014. Jackson, City Houston v. 192 S.W.3d Todd, (Tex. 8. Brown v. 53 S.W.3d (Tex.2006) ("Our primary objective when 2001). construing give a statute is to ascertain and intent.”). Legislature's effect to the Lopez, See State Farm Mut. Auto. Co. v. Ins. (Tex.2004) (finding con- jurisdiction grounds flicts based on one of two (cid:127) brought judicial a action practices,11 unfair insurance class its list of General;21 and ways: delegates and enforcement three (cid:127) judicial brought by “a class (cid:127) may of Insurance con- Department buying public” member' of the insurance investigations,12 duct issue cease-and-de- by an damaged unlawful who been orders,13 monetary sist penalties,14 assess practice.22 refunds;15 premium and order to premi- Relief first is limited under the (cid:127) may file suits seek- refunds,23 class judicial um actions while monetary ing injunctions,16 penalties,17 may damages attorney’s and recover restitution;18 fees.24 But administrative actions and and precedence; judicial no class action take (cid:127) any may damages.19 suit for person file brought can be once administrative class action has started.25 Due use wide-spread of standard statute, the policies, single any Unlike other Insurance provisions in insurance set of class action Code contains its own many often practice insurance affect cur- rules. almost identical those While Thus, provides the Code consumers. (both rently in of which track Rule types three actions: different 23), pro- the Insurance Code federal Rule (cid:127) brought by class action administrative Both adopted visions first.26 include were the Department premi- of Insurance for for all class the same four refunds;20 um commonality, (numerosity, typicali- actions ty, representation)27 adequacy exchange, Lloyd's plan, §§ cal or 541.051-.061 interinsurance Ins.Code Tex. 1(a), legal society, entity §§ After the fraternal or other benefit *6 insurance, hearing, Legislature adopted engaged includ- certification in the business broker, renumbering ing adjuster, agent, revisions and re- an or nonsubstantive life counselor.”). organizing the Insurance Code. See Act of health insurance R.S., 21, 2003, Leg., § June 78th ch. As Tex. Gen. Laws 3611. no material 21.21, 14). § § (formerly Id. art. 541.301 20. provisions changes were made in the relevant suit, will be to to this citation the current 21.21, 541.251(a) (formerly § Id. art. 21. provision paren- Code with the former noted 17(a)). § thetically. Id. 22. 21.21, 5). (formerly § § art. Id. 541.101 12. 21.21, 21.21, 541.301(c) 7). (formerly § art. (formerly § art. Id. § 23. Id. 541.108

13. 14(a)). § 21.21, 7). (formerly § § art. Id. 541.110 14. 541.251(a), (formerly §§ Id. 541.252 art. 24. 21.21, (formerly § § art. Id. 541.301 15. 21.21,§§ 17(a), 17(b)). 21.21, (formerly § Id. 541.201 art. 21.21, 541.251(b) (formerly § art. 15(a)). Id. § 17(e)). § 541.204, (formerly §§ art. 17. Id. 541.206 21.21,§ 15(c)). 21, 1973, Leg., Compare May Act of 63rd R.S., 13-24, Tex. §§ ch. Gen. Laws (formerly art. Id. 541.205 335-43; May reprinted with Order of 15(d)). at Cases] in 553-54 xxxvi-xxxvi [Tex. ii. (formerly 19. Id. 541.151—. 162 art. 541.002(2) 16); (formerly §id. see also individual, 21.21,§ (" 2(a)) Tex. ‘Person’ means an Ins.Code 21.21,§ 42(a). association, 18(a)); P. corporation, partnership, recipro- TexR. Civ. counsel public main- the office of insurance types four of class actions bars the same (those patriae pro- involving intervening “parens a risk of inconsis- from tainable adjudications, might impair attorney gener- those that ceedings brought tent interests, seeking injunc- those nonparties’ al.”31 Because the Code authorizes relief, declaratory tive or and those many attorney general so differ- questions predominate).28 which common this it is unclear which proceedings, ent provision references. authorizes an unquestionably The Code action;29 to file a class Second, a action is parens patriae an at- question showing here is what an alternative type not a of class but torney general must make. The ’State as- Supreme it. In the United States attorney general may serts an file a class rejected standing for Court antitrust parens patriae meeting action as without doctrine, stating that states under this requirements; the normal certification may, theory, “[pjarens patriae actions attorney general Intervenors assert actions, but the latter be related to class all, though must meet them even this will definitely preferable in antitrust are (such require recruiting policyholders Congress responded by passing area.”32 themselves) representatives. as class We Act,33 “per the Hart-S cott-R odino which argument address each in turn. attorneys right mits State parens patriae institute suits on behalf of A. Parens Patriae “exempts residents” such suits State argues The State that the doctrine requirements.”34 from the class action parens patriae (literally “parent of the parens patriae and class actions While country”)30 allows an general to common, they obviously have much in represent a class without designating rep not the same. resentative whose typi claims are cal adequately and who will protect Third, generally invoked Court interests the class. We decline to en- parens patriae only respect per- with graft parens patriae doctrine on the themselves, protect sons unable to such as Code for several reasons. children,35 mentally ill.36 That of

First, “parens the words course is not the case here. While individ- patriae” appear *7 nowhere in the ual not have provi- Code’s class action insureds the resources legislative attorney they certainly sions or them an ca- history. general, The en- only once, tire Code uses the pable bringing term when it class actions them- (formerly California, § 28. Id. art. 32. Hawaii v. Standard Oil Co. of 885, 18(b)); 42(b). § 405 U.S. 92 S.Ct. 31 L.Ed.2d Tex. R. Civ. P. (1972). 184 541.251(a) § (formerly 29. Tex. Ins.Code § 33. See 15 U.S.C. 15c. 17(a)) (“the department may request action”). attorney general bring Assocs., Inc., a to class 34. Illinois v. & 460 U.S. Abbott 29, 1356, 557, 573 n. 103 S.Ct. 75 L.Ed.2d (1983). 281 Son, Rico, Snapp 30. L. & Inc. v. Puerto Alfred 592, 8, 3260, 458 U.S. 600 n. 102 S.Ct. 73 See, C., 746, e.g., Matter 533 S.W.2d of S.J. (1982). L.Ed.2d 995 1976). (Tex. 750 501.153(3) Turner, See, 31. Tex. Ins.Code e.g., v. 556 S.W.2d State 1.35A, 5(b)(6)). (Tex. 566 424 that provides The Insurance Code vigorously here the Intervenors

selves—as buying pub if “a member of the insurance demonstrate. prac unlawful damaged” lic has been Finally, has been invoked the doctrine tices, “may of Insurance Department suits government to authorize other states bring a request attorney general tobacco, and sellers of lead against makers argue action.”40 The Intervenors guns.37 Legislature The paint, only can act as attorney general that an policing such suits high interest shown cases, counsel in such and must re cannot au- by government entities.38 We policyholders more as class cruit one or attorneys role for the thorize broader disagree, for several representatives. We than the has.39 general reasons. sum, patriae” might be “parens In while First, nothing says in the Code an attor- ac- referring shorthand for to class useful only class counsel. ney general acts attorney general, the brought by tions an attorney general an The Code authorizes and carries so much vague term is so action”;41 a class under most “to that it rather than clari- baggage obscures statutes, party brings it is a Texas who analysis. Accordingly, our decline fies we case, language of attorney.42 not its import into the Insurance Code. attorneys to authorize appears the Code right,

general to file suit their own B. The Insurance Code merely acting than as counsel for rather private citizens who want to do so. disagree While we that the doctrine Second, the authorizes such suits exempts attorney gener- Code parens patriae indi- upon request Department, requirements, al class action meeting from Requiring vidual ap- must be consumers. agree we those the consent of individual get not render attor- plied way in a does representa- to act as class impossible. policyholders actions ney general class Sturm, Co., See, ing ability sign e.g., Spitzer Ruger governmental 309 entities con- & contracts). (2003) (parens tingent fee 192 A.D.2d 761 N.Y.S.2d patriae action New York Rio, Perry v. Del 39. See manufacturers); City against handgun Phil (Tex.2001) ("[T]he Attorney General can U.S.A., Corp., adelphia v. Beretta act the limits of the Texas Constitution within (E.D.Pa.2000) (parens patriae F.Supp.2d 882 statutes, enlarge the and courts cannot manufacturers); by city against gun In powers.”). General’s Litigation, WL 1994172 re Lead Paint (2005), granted, N.J. 886 A.2d cert. 541.251(a) (formerly art. Tex. Ins.Code 17, 2005) (N.J. (parens patri- Sup.Ct. Nov 21.21, 17(a)). against governmental ae suit entities manufacturers); lead-paint see also Broselow Id. *8 Cir.2003) Fisher, (3rd v. 319 F.3d 36.25, parens patriae See, suit (discussing §§ of settlement e.g., Bus. & Com Code Tex. 21.802(d); companies). 38.302; against § tobacco Orgs.Code state Tex. Tex. Bus. 15.020(c)(1); § & Rem.Code Tex. Civ. Prac. 44.032(f); See, § Tex. Health & e.g., & Rem.Code Safety Educ.Code Tex. Civ. Prac. 361.341, 161.405, 161.404(d), 82.004(a)(2) §§ liability (limiting product § ac- Code 751.004(c); 464.015(d); § against of common con- tions manufacturers Tex. Tex Ins.Code 410.252(b); § personal con- products intended for sumer Civ. P. Tex.R. Lab.Code 93(15), 117a(5); ("Attorneys or but id. 13 (preventing § cities sumption); 128.001 id. cf. bring a fictitious suit as parties who shall suing manu- the state from firearms but not ”). (limit- facturers); experiment § ... 2254.103 Tex. Gov’t Code fundamentally change ly legislators would who the that intended the rule tives request filing. always statute authorizes to it application have the same had in the federal courts. Third, requiring attorney general would representatives recruit individual Second, that a provides the statute duty An impractical. general’s is prerequi- “if the action be maintained state,43 attorneys the represent satisfied,” four noted are above] sites [the private duty loyalty individuals have a of types and the action is one of the four only to their such re- Imposing clients.44 why maintainable.48 It is hard to see the inevitably the cruitment would restrict require prerequi- would the attorneys discretionary power” “broad really if it intended sites be “satisfied” carry general need to out their constitu- inapplicable. them to be tional duties.45 Third, while the authorizes an Code disagree But we with State’s attorney general Department and the argument that an need many pursue types Insurance to different general require not meet class action the one authorized here is proceedings, ments at all. The that argues State a “class action.” The four (numer- four prerequisites for class actions hurdles; they simply procedural are not osity, commonality, typicality, adequa and Indeed, define what a class action is. cy) do not apply because the Insurance any define Code does not “class action” requires Code them when “one or prerequi where else. And without these ... more members of a class sue ... as numerous, common, typical claims— sites— representative parties.”46 doWe not simply a suit is not a “class action.” If think introductory phrase this carries that prerequisites apply, none of the an attor heavy freight, again for three reasons. ney general could file class actions involv First, language was taken verbatim ing single policyholder, or thousands of 23(a) from Rule of the Federal Rules of unrelated claims. Civil applies Procedure. As Rule 23 to all concurring dissenting opinion and parties, it would be if surprising legislators otherwise, exempting would hold the attor- incorporated it word-for-word the in- with ney all tention that it class actions from four apply to some. As the prerequisites. But specifically Insurance Code that even the State con- mandates very “the of a guided by courts this state shall be cedes “the notion brought by of the federal courts inter- General under decisions 23,”47 preting Rule far seems more like- Insurance would definition [the Code] IV, (1) joinder 43. Tex. art. all Const, the class is so numerous impracticable; members is (2) questions there are of law or fact common 44. See Tex R. Prof’l Conduct 1.02. Disciplinary class; (3) representa- the claims or defenses of the Ramirez, Terrazas typical tive of the claims or (Tex.1991). class; defenses of (4) representative parties fairly will (formerly Tex. Ins.Code 541.256 adequately protect the interests of class. 18(a)) provides: permit 47. Id. The court shall one or more mem- *9 18(c)). repre- bers of a class to sue or be sued as only sentative on behalf of the class if: 48. Id. ney general, claims.” Nor the rather than to that typical

involve does official personally.52 attorney general file suggest State an can only action on behalf of one or a class held that appeals court of recruited If handful of affected consumers. none of representatives necessary class were to prerequisites apply, the four we Code’s measure the the fairness of settlement and bring numerosity possible to avoid in an typicality cannot and conflicts opinions the general’s dual roles.53 While equation back into the because we feel certainly of class are relevant in members “[plerhaps Legislature this works.”49 The settlement, analyzing the their comments could remedy have structured this in vari- generally by are notice and an solicited ous ways, attorneys but when authorized heard, by opportunity turning to be action,” bring pre- to a “class we management over of the class action to says. sume it meant what the Code certainly possible them. And while it is does not mean these This attorney general for an to have so conflicts way must the apply precisely same requirement adequacy serious the is not In an capacity, other class actions. official met,54 public the Attorney General’s duties an is never a policyhold- to all create Texans cannot alone such a er, representa- and thus cannot be a class rendering conflict all again without such Moreover, impossible.55 tive in traditional sense. class the the The Code actions precedence grants to requires Code administra typicality adequacy and of “the (which tive class actions limited to representative parties,”50 which the court refunds)56 suggests that premium attor appeals strictly along of construed tradi- neys general inadequate represen are not tional But the Code authorizes lines. also private litigant tatives merely because alone, file attorney general to suit that. might demand more than way we the Code in a that cannot construe provision renders that ineffective.51 Con- argue Intervenors Finally, the struing together, both we hold that granting standing that typicality, adequacy, prerequi- and other actions without a General sites actions must applied for all class representative would be unconstitu damage Clearly, legislature grant claims asserted an attor- tional. agencies. Any attempt 49. 222 S.W.3d at 421. administrative to exer- powers cise such or defeat the of exercise 541.256(3), (4) (formerly powers by appropriate those bodies Tex. Ins.Code 18(a)(3), (4)). would not 'representation' collusive vio- powers, principle separation of late of integrity of a question call into court that Tex. Gov’t Code 311.021(2). action.”). permitted authorized such or Id. 55. The claim that Intervenors’ proposes they General claims want (Tex.App.-Austin to release S.W.3d goes adequacy Attorney to assert not to the settlement, adequacy but the Ctr., Med. Cofer, issue not us. See McAllen before See Pub. Util. Comm'n Texas v. Cortez, (Tex.2001) (Tex.1988) ("While Inc. v. 754 (holding interlocutory premature review right duty Attorney General has the preliminary approval). represent agencies, settlement he consti- the state has no statutory authority to exercise tutional or 541.251(b), 541.303(a) powers Legislature §§ belong to the that 56. See Code Tex. Ins 17(e)). 14(b), §§ delegated have been

427 that standing attorney general provided to a state to islature has the class citizens, injury for done to as suit its liberally here are to be con- provisions 62 Congress has done in the Hart-Scott-Ro- strued; requiring attorney general to Act, Legislature dino and as the Texas solely act as class counsel would many done in pro- contexts. While due is the first liberal construction. As this may require opt- cess individual notice and attorney general brought has ever time an out rights,57 procedures pro- or other that action, an Insurance Code class we need parties,58 tect the interests of absent every question not decide about how such why attorney Intervenors do not explain future; operate actions will in the we de- necessarily class actions fail those only cide that the did not in- requirements. they explain why Nor do private tend them to be identical to absent class would members be better actions, provided else it would not have for protected by representa- recruited class both. private attorneys tives and than an elected attorney general Depart- or the State’s

ment Generally, of Insurance. class ac- IV. Conclusion proper relationship tions are when “the appeals Because the court of held that parties present between the and those who typicality adequacy could be deter- are absent is such legally to entitle the respect mined with representative former to in judgment stand for the lat- parties, it did not address whether officer,60 ter.” legal As the State’s chief by claims asserted Legislature’s and the designee bring- Moreover, could meet those standards. ing class actions under the Insurance Code, Intervenors assert additional com- just stands such a relationship. notice, plaints about the conduct of the approval hearing, fairness of designed

Class actions were part appeals settlement the court of did by ensure law private enforcement attor- not reach because it found certification neys general;61 it would be absurd to con- improper. Accordingly, reverse the prevent strue them to we the same kind of attorney general. suit a real Leg- appeals’ court of judgment and remand to Compaq Computer Corp. Lapray, outgrowth increasing See v. reliance on the 657, (Tex.2004). ‘private attorney general' for the vindication legal rights; obviously development Lee, 32, 42, Hansberry 58. See v. 311 U.S. 23.”); has been facilitated Rule U.S. Parole 115, (1940) (“[Tjhis S.Ct. 85 L.Ed. 22 Courtis 388, 403, Geraghty, Comm’n v. 445 U.S. justified saying that there has been failure (1980) ("In S.Ct. 63 L.Ed.2d 479 order process only of due in those cases where it suits, primary to achieve the benefits of class procedure cannot be adopted, said that the give the Federal Rules of Civil Procedure fairly protection insures the of the interests of proposed representative right it.”). absent who are to be bound have class certified if the 59. Id. at 61 S.Ct. 115. ‘right’ the Rules are met. This is more analo- gous private attorney general concept 22; See Tex. Const. Terrazas IV, type traditionally than to the of interest Ramirez, (Tex.1991). thought satisfy ‘personal require- stake’ ment.”). Bank, Jackson, Deposit See Guar. Nat’l Roper, Miss. v. 445 U.S. 100 S.Ct. (1980) ("For 63 L.Ed.2d 427 better or 62. Tex. Ins.Code worse, 1(b)). the financial incentive that class ac- legal profession offer to the tions is a natural *11 428 (3) rep- of the or defenses oth- the claims the Intervenors’

that court to consider the typical are of resentative not reach. of error that it did points er class; the and or defenses of claims (4) parties will representative the opinion HECHT filed an Justice inter- fairly adequately protect the and in dissenting part. in concurring part of class.2 ests the in participate did not Justice WILLETT prerequisites apply four when a These the decision. a suing being is or sued as class member Attorney representative. When the class HECHT, part in concurring Justice Depart- of the sues at the behest dissenting part. Insurance, not as a class of is ment but as a representative party or member provides: The Texas Insurance Code text, statutory By plain officer. the state buying insurance If a member of the apply to as four do not the damaged by an unlawful public has been Attorney Gen- brought class action method, act, ... as practice or defined con- opposite eral. The Court reaches practice, trade deceptive an unlawful disagree. reasons. I clusion for three may request department insurance] [of First, that because the argues the Court to from is taken verbatim statutory language damaged the individual action or of Pro- Rule 23 of the Federal Rules Civil the individual’s own bring an action on cedure, to all class actions in applies which similarly on behalf of others behalf and courts, Legislature must have federal damages and obtain to recover situated all class actions apply that it to intended subchapter.1 by this provided relief as courts, especially “the Insur- state since Thus, are au- types of class actions two mandates that ‘the specifically ance Code thorized, damaged indi- brought one by the guided Texas shall be courts of similarly situat- on behalf of others vidual interpreting courts decisions of federal ed, General. the other only argument ”.3 The suffers Rule 23’ adds: The Code then Legisla- logic (why must from a flaw lawmakers’?) track federal ture’s intent one or more permit The court shall Feder- premise. from an incorrect but also or be sued as members of a class sue 23’s apply Rule al courts have refused parties on behalf representative actions enforcement if: be- agencies simply brought by federal (1) join- numerous that the class is so sought may affect remedies cause the impracticable; is der of all members Another individuals.4 groups classes parens system is (2) analogue in the federal of law or fact questions there action, or its brought by a state class; patriae common VII); (1980) (EEOC re 541.251(a) suing Title In (formerly under Tex. Ins.Code 419, (7th Cir.2002) 17(a)). Co., 279 F.3d Bemis (same); Pipefitters Local NLRB v. Plumbers & 18(a)). Id. (9th F.2d Union No. NLRA); Cir.1983) (NLRB suing Dono- under § 541.257 (quoting 3. Ante at Tex. Ins.Code Paso, 21.21, 18(c))). University 643 F.2d Tex. at El van v. (formerly art. Cir.1981) (5th (Secretary of Labor EEOC, 446 Tel. Co. the Nw. v. See General FLSA). suing under 64 L.Ed.2d 319 100 S.Ct. U.S. And, course, that is on behalf of state resi- General. dents,5 plain says. text apply.6 to which Rule 23 does not what the coverage that Rule 23’s is So to the extent *12 Third, that the four the Court insists instructive, argues against it the Court’s apply must to prerequisites quoted above course, for it. a position, not Of when action, by the any brought even one brought by private person class action is a General, “they because define Attorney prerequi- is one to which the four thus words, action is.”9 In other what a class apply, sites borrowed from Rule 23 would Legislature had choice but to im- the no provide guidance. federal case decisions prerequisites on a class action pose these Attorney because a class the Second, points provi- the Court action cannot exist otherwise. But a class following prerequisites quot- sion the four Attorney action the General is brought ed above that authorizes a class action “if creature, already an unusual as the Court prerequisites ... are satisfied” in the[se] it, recognizes, having the provided explains addition to others.7 The Court Legislature obliged was not to structure simply why that is hard to see the “[i]t procedure satisfy the to the idea of Court’s Legislature require prerequi- would what a class action should be. if really sites to be ‘satisfied’ intended inapplicable.”8 Having prerequi- them to be But it makes determined that perfect sense for the quoted apply to have sites above to a class action General, Attorney intended that the four prerequisites brought by must how, they apply say be satisfied when ought appli- class Court since their —when brought by action is “one or mem- non-representative litigant more cation to a like they bers of a class”—not immediately when don’t— the General is not when a class action brought by apparent. begins by saying is The Court E.g., § (authorizing 15 U.S.C. 15c state consumer actions under Rule [Sherman Act] to sue on of state 23 of the Federal Rules of Civil Procedure behalf violations); complexity measuring residents for Sherman Act and the of and distrib- id. uting § (authorizing damages generally See a state to sue on behalf of such cases. 94-499, 23, 3-8[, H.R.Rep. supra regarding telemarketing prac- its No. n. at residents 1994, 2091]; tices); 6309(c) U.S.Cong. p. & (authorizing § Admin.News id. a state to 803, 18, 6-7, S.Rep. supra No. n. at 39-40. regarding boxing sue on behalf of its residents 94— remedy problems, the practices); § To these 1976 statute (authorizing id. a state to permits attorneys general right state regarding sue on behalf of its residents chil- patriae parens institute suits on behalf of state privacy protection); dren’s online id. residents, 15c; exempts § 7706(f) 15 U.S.C. such (authorizing § a state suits from the class action of and other state officials to sue on behalf of 15c(a); damages Rule and allows regarding pornography); state residents computed aggrega- through these suits to 248(c)(3) (authorizing U.S.C. a state attor- 15d.”). techniques, § tion ney general to sue on behalf of state residents protect providing repro- access to clinics 541.257(a) (“An places ductive health services and to of wor- 7. Tex. Ins.Code ship); (authorizing be maintained as class action under 49 U.S.C. a state subchapter prerequisites if the of Section to sue on behalf of its residents to enforce satisfied, [one 541.256 are and in addition protection provisions certain consumer met].”) three other conditions is apply shippers). to individual 18(b)). See, Assocs., Inc., e.g., Illinois v. Abbott & Aufeat425. 460 U.S. 573 n. 103 S.Ct. (1983) ("Congress L.Ed.2d 281 focused on the difficulty achieving at class certification of 9. Ante the court for consid- prerequisites “apply appeals returned to that these need re- other issues same in other class eration of numerous precisely way actions”,10 have raised. they spondents then “must be offers that applied damage claims asserted attorney general, than to that rather Perhaps this works personally.”11

official numerosity and

for the find commonality. The court must trial VanDEVENDER, Petitioner, James claims affect that the General’s *13 is- v. persons numerous and share common the trial sues of law or fact. But how can WOODS, in His Of- Honorable G. Mitch or defens- court determine “the claims Capacity as of Jefferson ficial Sheriff typical representative parties es of the County, County, Texas and Jefferson the claims or of the class” defenses Texas, Respondents. parties? there are no representative when No. 05-0956. not Attorney And since the General does counsel for representative party act as a or Supreme Court of Texas. any person, rather as “the the class Argued Dec. State, legal chief officer of the broad [with] legal discretionary power conducting in his April Decided duty responsibility represent

State”,12determining representa- that “the fairly adequately pro- will

tive impossi-

tect the interests the class” is

ble. The Court states that an [may “conflicts so serious the be]

General’s met”, al- requirement

adequacy is

though “public his to all Texans duties It

cannot alone create such a conflict”.13 is imagine

hard even to what the Court mind, but the of the Court’s seriousness cannot be

suggestion ignored.

I hold that the four would plain

quoted apply, above do not statute, a class action

text of That is

brought by General. say that such a class action is also

not to from the

excused other statute, judicial supervision or that vehicle, including the settlement

the class case, any way be

reached should agree

relaxed. I that the case should Ramirez, at 426.

10. Ante Terrazas (Tex.

11. Ante at 426. Ante at 426.