*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.
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.
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
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.