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Recent Fourth Court Cases
FOURTH COURT UPDATE
By Justice Adrian A. Spears II
Since joining the Fourth Court of Appeals in January 2025, I have had the unique privilege of observing and participating in the inner workings of the court and reviewing appeals involving a broad range of legal issues. This experience has deepened my appreciation for the crucial role of the judiciary to ensure the fair, impartial, and consistent application of the law in a timely manner. I am honored to contribute to the court’s important work and grateful for the opportunity. The following three cases illustrate the variety of matters that have recently come before the Fourth Court of Appeals.
In Val Verde Hospital District v. Salazar, 708 S.W.3d 757 (Tex. App.—San Antonio 2025, no pet.), Val Verde Hospital appealed from the trial court’s interlocutory order denying its plea to the jurisdiction pursuant to the Texas Tort Claims Act (“TTCA”). In the underlying case, Salazar brought a medical malpractice lawsuit and alleged that while a technician had performed an electrocardiogram on her, he had inappropriately touched her breasts and stared at them. On appeal, the hospital argued the trial court erred in denying its plea to the jurisdiction because there was no negligent use of any tangible personal property that caused Salazar’s injuries, as required to waive the hospital’s immunity under the TTCA. In reversing the trial court’s order, the Fourth Court emphasized that (1) Salazar had not alleged facts to show that her injury was caused by the EKG machine or the electrodes; and (2) it was undisputed that the technician’s hands, actions, and verbal instructions while using the EKG and electrodes, negligently or otherwise, were the cause of Salazar’s injury. Thus, the facts pled by Salazar, taken as true, showed only that the use of the EKG machine or electrodes merely furnished the condition making it possible for the technician to have the access and the ability to give verbal instructions and inappropriately touch Salazar’s breasts. The Fourth Court thus held that such use of the EKG machine was not sufficient to waive immunity under the TTCA.
In Ex parte Contreras, 717 S.W.3d 27 (Tex. App.—San Antonio 2025, no pet.), Contreras’s first trial ended with the trial court granting his motion for mistrial. He then filed an application for writ of habeas corpus, alleging that double jeopardy barred further prosecution. After an evidentiary hearing, the trial court denied his requested relief and issued findings of fact. Contreras appealed. As a general rule, a defendant moving for mistrial prevents him from raising double jeopardy. However, the Supreme Court in Oregon v. Kennedy, 456 U.S. 667, 679 (1982), provided for a limited exception when “the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” Contreras argued that the prosecution team had provoked a mistrial and intentionally failed to disclose exculpatory evidence with the intent to avoid the possibility of an acquittal in violation of the United States and Texas Constitutions. In Texas, when a defendant moves for a mistrial and then claims retrial is barred by double jeopardy, “the habeas court, and all subsequent reviewing courts, must determine whether: (1) the prosecutor engaged in conduct to goad or provoke the defense into requesting a mistrial; or (2) the prosecutor deliberately engaged in the conduct at issue with the intent to avoid an acquittal.” Ex parte Martinez, 560 S.W.3d 681, 697 (Tex. App.—San Antonio 2018, pet. ref’d). Because subjective intent “may often be unknowable,” the Texas Court of Criminal Appeals has “set out a list of non-exclusive objective factors to assist trial and reviewing courts in assessing the prosecutor’s state of mind.” Ex parte Wheeler, 203 S.W.3d 317, 323 (Tex. Crim. App. 2006). These factors include: (1) Was the misconduct a reaction to abort a trial that was “going badly for the State?” In other words, at the time the prosecutor acted, did it reasonably appear that the defendant would likely obtain an acquittal? (2) Was the misconduct repeated despite admonitions from the trial court? (3) Did the prosecutor provide a reasonable, good faith explanation for the conduct? (4) Was the conduct clearly erroneous? (5) Was there a legally or factually plausible basis for the conduct, despite its ultimate impropriety; and (6) Were the prosecutor’s actions leading up to the mistrial consistent with inadvertence, lack of judgment, or negligence, or were they consistent with intentional misconduct? In applying these factors, the Fourth Court noted that it must review the evidence from the habeas evidentiary hearing in the light most favorable to the trial court’s ruling and afford great deference to the trial court’s findings and conclusions, especially when they involve determinations of credibility and demeanor. When viewed in the light most favorable to the trial court’s ruling, the evidence supported the trial court’s findings that (1) the defense had not been goaded or provoked into requesting a mistrial, and (2) the prosecution had not deliberately engaged in the conduct at issue with the intent to avoid an acquittal. Thus, the Fourth Court held the trial court did not abuse its discretion in determining that double jeopardy did not bar a subsequent prosecution of Contreras for murder.
In In re Bexar Medina Atascosa Counties Water Control and Improvement Dist. No. 1, No. 04-24-00538-CV, 2025 WL 466069 (Tex. App.—San Antonio Feb. 12, 2025, orig. proceeding), the San Antonio Water System (SAWS) filed a declaratory judgment action against the District, seeking a declaration that a water supply agreement between the parties was void. In response, the District filed a plea to the jurisdiction and set the plea for hearing. In the interim, SAWS propounded discovery on the District, who then objected to the discovery, claiming it was irrelevant to the preliminary jurisdictional issue. SAWS then moved to continue the plea to the jurisdiction hearing and compel discovery. In oral rulings, the trial court postponed the hearing on the plea to the jurisdiction and compelled limited discovery.
The District challenged the trial court’s rulings by filing a mandamus petition in the Fourth Court. In analyzing the first mandamus prong—abuse of discretion—the Fourth Court focused on the trial court’s obligation to determine its authority to decide a case at the earliest opportunity and before allowing the litigation to proceed. The Fourth Court recognized that a plea to the jurisdiction may present either a challenge to the sufficiency of the pleadings, or a challenge to the existence of jurisdictional facts. Because the District’s jurisdictional plea challenged only the sufficiency of the pleadings, the Fourth Court concluded the trial court abused its discretion by postponing the jurisdictional hearing for the purpose of allowing discovery unnecessary to the jurisdictional challenge. In analyzing the second mandamus prong—inadequate remedy by appeal—the Fourth Court determined the trial court’s rulings impaired the District’s substantive and procedural rights, including its right to a ruling on its jurisdictional challenge at the earliest opportunity and its right to an accelerated appeal to review the trial court’s jurisdictional ruling. The Fourth Court conditionally granted the District’s mandamus petition and directed the trial court to withdraw its oral rulings postponing the plea to the jurisdiction hearing and compelling discovery.
