Steward Health Care System LLC v. Saidara

Full title: STEWARD HEALTH CARE SYSTEM LLC AND SOUTHWEST GENERAL HOSPITAL, LP…

Court: Court of Appeals of Texas, Dallas.

Date published: Aug 20, 2021

633 S.W.3d 120 (Tex. App. 2021)

Opinion

No. 05-19-00274-CV

08-20-2021

STEWARD HEALTH CARE SYSTEM LLC and Southwest General Hospital, LP, Appellants v. Frank SAIDARA, Appellee

Marie Louise Carlisle, Shanisha Smith, Dennis P. Duffy, Houston, Courtney Warren, Cody Vasut, Houston, for Appellee. Asher B. Griffin, Austin, Calli Turner, Howard L. Close, Shanisha Smith, Houston, for Appellant.

Opinion by Justice Myers

Marie Louise Carlisle, Shanisha Smith, Dennis P. Duffy, Houston, Courtney Warren, Cody Vasut, Houston, for Appellee.

Asher B. Griffin, Austin, Calli Turner, Howard L. Close, Shanisha Smith, Houston, for Appellant.

Before the Court sitting En Banc

OPINION

Opinion by Justice Myers Steward Health Care System LLC and Southwest General Hospital, LP bring an interlocutory appeal of the trial court's order granting the special appearance filed by Frank Saidara and dismissing appellants' causes of action against him. Appellants bring one issue contending the trial court erred by granting Saidara's special appearance because Saidara committed tortious acts in Texas. We affirm the trial court's order granting Saidara's special appearance.

I. FACTUAL AND PROCEDURAL BACKGROUND ¹

1 Except as otherwise stated, these facts come from the parties' pleadings.

Steward Health is a Dallas-based health care system. It owns numerous hospitals, including Southwest General, located in San Antonio, Texas.

Saidara resides in California, and he is the vice president of corporate holdings for Prospect Medical Holdings, Inc., which has its principal place of business in Los Angeles, California.

In 2018, Prospect Medical approached Steward Health about acquiring the assets of Southwest General. To facilitate Prospect Medical's due diligence, Steward Health set up a virtual data room where documents relevant to the proposed transaction were uploaded. A subset of the data was placed into a more restrictive "virtual clean room." Prospect Medical tasked Saidara as well as other officers and high-level employees with conducting negotiations and performing due diligence related to the transaction. The individuals with access to the virtual clean room (the clean team), included Saidara. The members of the clean team were required to sign a clean team agreement that limited their disclosure of information, authorized them to prepare "evaluative analyses and aggregated summaries" of the sensitive materials for their individual use in evaluating the proposed transaction, prohibited unauthorized sharing or dissemination of the materials in the virtual clean room as well as any documents created that incorporated or used that sensitive information, and restricted use of the sensitive information to the purposes permitted by a separate confidentiality agreement signed by Steward Health and Prospect Medical.²

2 The confidentiality agreement included a forum-selection clause: "In the event a dispute arises concerning any of the provisions of this Agreement, it shall be submitted to and decided by the Courts of the Commonwealth of Massachusetts." The record does not show that any party has filed a motion to transfer the case to the Massachusetts courts. Neither Saidara nor appellants raised the forum-selection clause in the special appearance or response to the special appearance. Accordingly, we do not discuss its applicability to this case.

Saidara accessed information online in the virtual data room and clean room. He also participated in electronic and telephonic communications with Steward Health and Southwest General relating to the potential transaction. On at least one occasion, Saidara traveled to Texas, toured the Southwest General facility with James Summerset, the interim chief executive officer of Prospect Health. Appellants alleged that while Saidara and Summerset visited Southwest General, "Summerset asked an unusual amount of questions about proprietary Southwest General data. Specifically, Summerset inquired about physician employment arrangements and compensation data." On September 15, 2018, after the visit to Southwest General, Saidara allegedly downloaded all the information from the virtual clean room.

On September 20, 2018, five days after Saidara had downloaded the data, Prospect Medical informed Steward Health that it was no longer interested in acquiring the assets of Southwest General. Appellants alleged that persons within Prospect Medical and Prospect Health later leaked information relating to the proposed transaction, which made it more difficult for Southwest General to market and sell its assets.

On November 7, 2018, appellants filed their original petition against Prospect Medical, Prospect Health, and Saidara. In their first amended petition, appellants alleged claims for: (1) common law fraud, (2) unfair competition,³ (3) misappropriation of trade secrets in violation of the Texas Uniform Trade Secrets Act, (4) violation of the Texas Harmful Access by Computer Act, and (5) conspiracy to misappropriate appellants' trade-secret information. Appellants claimed that personal jurisdiction existed as to Saidara because he had contacts with Texas with respect to the complained-of acts.

3 Appellants do not specify the branch of "unfair competition" they allege. See, e.g. , James E. Hudson, III, A Survey of the Texas Unfair-Competition Tort of Common-Law Misappropriation , 50 Baylor L. Rev. 921, 924–26 (1989) (noting Texas common law recognizes three branches of unfair competition: palming off, trade-secret misappropriation, and common-law misappropriation); Restatement ( Third ) of Unfair Competition § 40 cmt. a ( Am. Law Inst. 1995) (stating that unfair competition includes torts for misappropriation, infringement, unjust enrichment, and breach of confidence, but not breach of contract, breach of the duty of loyalty owed by an employee or other agent, or breach of confidence not involving a trade secret). Rather, they generally refer to their claim as "Unfair Competition" and contend that "by misleading Steward with their misrepresentations that Prospect intended to buy the assets of Southwest General and thereby inducing Steward to make Southwest General's most sensitive business information available to Prospect senior executives and ultimately all of Prospect, Prospect and Saidara have engaged in conduct that is contrary to honest practices in commercial matters."

Saidara filed a special appearance arguing the trial court lacked personal jurisdiction over him because: (1) there is no basis for general jurisdiction; and (2) the trial court cannot exercise specific jurisdiction because (a) the alleged activities supporting the claims against him occurred while he was in California acting in the course of his employment with Prospect Medical, (b) all his alleged wrongful acts were in connection with his employment so he is protected by the fiduciary-shield doctrine, and (c) "[appellants] have failed to plead any purposeful (wrongful) activities by Saidara originating in Texas."

Saidara attached his declaration to his special appearance. He stated in the declaration that he is a citizen of California and resides in Los Angeles. All his actions in relation to the proposed transaction between Prospect and appellants were in his capacity as Prospect's vice president of corporate development. In the confidentiality agreement, he was designated a member of the clean team with access to the information in the virtual clean room. He made one trip to Texas visiting San Antonio in connection with the proposed transaction. He was in California at the time appellants alleged he inappropriately downloaded confidential information or trade secrets. He accessed the information in the clean room for legitimate purposes related to Prospect's due diligence in the proposed transaction.

Appellants responded that the trial court had specific jurisdiction over Saidara but did not attach any evidence to support their allegations.⁴ The trial court signed an order granting Saidara's special appearance and dismissing the claims against him. In that order, the trial court concluded that "there is no record evidence that would support the exercise of general jurisdiction over" Saidara and there was no specific jurisdiction.⁵ This interlocutory appeal followed.

4 The parties' briefs as well as the trial court's order and docket sheet indicate that a hearing was held on Saidara's special appearance. However, the record on appeal does not contain a reporter's record. Nevertheless, the parties do not contend that it was an evidentiary hearing. See Michiana Easy Livin' Country, Inc. v. Holten , 168 S.W.3d 777, 783–84 (Tex. 2005) (declining to presume the special appearance hearing was evidentiary when the parties conceded that it was not).

5 With respect to specific jurisdiction, the trial court stated:

The Court also finds that Defendant Frank Saidara has not purposefully directed any business activities toward Texas, nor has he engaged in any activities that would support the exercise of specific jurisdiction. The Court also finds that the exercise of personal jurisdiction over Defendant Frank Saidara would not comport with traditional notions of fair play and substantial justice.

II. SAIDARA'S SPECIAL APPEARANCE

Appellants raise one issue on appeal contending the trial court erred when it granted Saidara's special appearance.⁶ They argue the trial court has specific jurisdiction over Saidara because: (1) the Texas long-arm statute extends to Saidara's contacts; (2) Saidara had sufficient minimum contacts with Texas; (3) Saidara cannot show the exercise of specific jurisdiction would impose an unreasonable burden on him; and (4) the fiduciary-shield doctrine does not protect Saidara from specific jurisdiction. Saidara responds that the trial court properly concluded it lacked personal jurisdiction over him because his contacts with Texas were insufficient to confer specific jurisdiction; and, even if he had sufficient minimum contacts with Texas, the exercise of personal jurisdiction over him does not comport with traditional notions of fair play and substantial justice.⁷

6 Appellants do not challenge the portion of the trial court's order that concludes there was no evidence to support the exercise of general jurisdiction over Saidara.

7 Because we conclude appellants failed to meet their burden of pleading sufficient allegations to bring Saidara within the provisions of the Texas long-arm statute, we need not discuss whether the fiduciary-shield doctrine applies or whether the exercise of specific jurisdiction over Saidara would impose an unreasonable burden on him.

A. Standard of Review

Whether a trial court has personal jurisdiction over a nonresident defendant is a question of law that appellate courts review de novo. E.g., Old Republic Nat'l Title Ins. Co. v. Bell , 549 S.W.3d 550, 558 (Tex. 2018). When a trial court does not issue findings of fact and conclusions of law with its special appearance ruling, all facts necessary to support the judgment and supported by the evidence are implied. Id. When the appellate record includes the reporter's and clerk's records, these implied findings are not conclusive and may be challenged for legal and factual sufficiency in the appropriate appellate court. BMC Software Belg., N.V. v. Marchand , 83 S.W.3d 789, 795 (Tex. 2002). When the relevant facts in a case are undisputed, an appellate court need not consider any implied findings of fact and considers only the legal question of whether the undisputed facts establish Texas jurisdiction. Old Republic , 549 S.W.3d at 558.

B. Burdens of the Parties in a Special Appearance

The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the provisions of the Texas long-arm statute. E.g., Old Republic , 549 S.W.3d at 559 ; Moncrief , 414 S.W.3d at 149. In order to meet its burden, a plaintiff must show the act on which jurisdiction is predicated, not a prima facie demonstration of the existence of a cause of action. Bruno's Inc. v. Arty Imports, Inc. , 119 S.W.3d 893, 896–97 (Tex. App.—Dallas 2003, no pet.) ; Clark v. Noyes , 871 S.W.2d 508, 511 (Tex. App.—Dallas 1994, no pet.) (although Texas courts use federal due process standard for analyzing minimum contacts, they do not use federal procedural rules, which would incorrectly place burden to show sufficient minimum contacts on the party seeking to invoke jurisdiction). This minimal pleading requirement is satisfied by an allegation that the nonresident defendant is doing business in Texas or committed tortious acts in Texas. Alencar v. Shaw , 323 S.W.3d 548, 553 (Tex. App.—Dallas 2010, no pet.). If the plaintiff does not meet this burden, the defendant need only prove that it does not reside in Texas to negate jurisdiction. See Siskind v. Villa Found. for Educ., Inc. , 642 S.W.2d 434, 438 (Tex. 1982) ; Jani-King Franchising, Inc. v. Falco Franchising, S.A. , No. 05-15-00335-CV, 2016 WL 2609314, at *4, (Tex. App.—Dallas May 5, 2016, no pet.) (mem. op.).

Specific jurisdiction is established when the nonresident defendant's alleged liability arises from or is related to activity conducted within the forum. Moki Mac River Expeditions v. Drugg , 221 S.W.3d 569, 576 (Tex. 2007) ; accord Bristol-Myers Squibb Co. v. Superior Court of Cal. , ––– U.S. ––––, 137 S. Ct. 1773, 1780, 198 L.Ed.2d 395 (2017). The "arises from or relates to" requirement lies at the heart of specific jurisdiction by defining the required nexus between the nonresident defendant, the litigation, and the forum state. Moki Mac , 221 S.W.3d at 579. In order for a nonresident defendant's contacts in a forum state to support an exercise of specific jurisdiction, there must be a substantial connection between those contacts and the operative facts of the litigation. Id. at 585 ; accord Walden v. Fiore , 571 U.S. 277, 284, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014). The operative facts of the litigation are those facts the trial court will focus on to prove the nonresident defendant's liability. See Jani-King , 2016 WL 2609314, at *5.

III. ANALYSIS

Saidara asserted in his special appearance that appellants failed to meet their burden of pleading sufficient allegations to invoke jurisdiction under the Texas long-arm statute. To decide this issue, we must decide what documents may be examined to determine whether appellants met this burden. Appellants argue that the court looks to the pleadings and the plaintiff's response to the defendant's special appearance to determine whether the plaintiff has met this burden. Appellants included factual allegations in their response to the special appearance that were not in either their original or amended petitions. Appellants did not attach any evidence to their response to the special appearance. Several of this Court's opinions,⁸ as well as opinions from most of the other intermediate courts of appeals,⁹ state that courts may consider facts alleged in a response to a special appearance as well as the plaintiff's petition to determine if the plaintiff pleaded sufficient allegations to invoke jurisdiction under the Texas long-arm statute. This practice, however, is contrary to both the Rules of Civil Procedure and precedent from the Texas Supreme Court.

8 See B.G.C. v. M.Y.R. , No. 05-20-00318-CV, 2020 WL 5987913, at *2 (Tex. App.—Dallas Oct. 9, 2020, pet. denied) (mem. op.); Invasix, Inc. v. James , No. 05-19-00494-CV, 2020 WL 897243, at *4 (Tex. App.—Dallas Feb. 25, 2020, no pet.) (mem. op.); Golden Peanut Co. v. Give & Go Prepared Foods Corp. , No. 05-18-00626-CV, 2019 WL 2098473, at *4 (Tex. App.—Dallas May 14, 2019, no pet.) (mem. op.); Cooper Gay Martinez del Rio y Asociados Intermediarios de Reaseguro S.A. de C.V. v. Elamex, S.A. de C.V. , No. 05-16-01436-CV, 2017 WL 3599690, at *5 (Tex. App.—Dallas Aug. 22, 2017, no pet.) (mem. op.); Seguros Afirme, S.A. de C.V. v. Elamex, S.A. de C.V. , No. 05-16-01465-CV, 2017 WL 3599693, at *5 (Tex. App.—Dallas Aug. 22, 2017, no pet.) (mem. op.); N. Frac Proppants, II, LLC v. 2011 NF Holdings, LLC , No. 05-16-00319-CV, 2017 WL 3275896, at *2, 5 (Tex. App.—Dallas July 27, 2017, no pet.) (mem. op.); Jani-King , 2016 WL 2609314, at *4 ; Nat'l Fire Ins. Co. of Hartford v. CE Design, Ltd. , 429 S.W.3d 806, 811 & n.6 (Tex. App.—Dallas 2014, no pet.) (noting Court unpersuaded by appellees' assertion that appellants failed to plead jurisdictional facts and stating that, in addition to facts alleged in their original petition for declaratory relief, appellants set out their factual allegations in support of jurisdiction in their opposition and supplemental opposition to appellees' special appearance and motion to dismiss); Stull v. LaPlant , 411 S.W.3d 129, 134 (Tex. App.—Dallas 2013, no pet.) ; NexBank, SSB v. Countrywide Fin. Corp. , No. 05-12-00567-CV, 2013 WL 2244830, at *2 (Tex. App.—Dallas May 22, 2013, no pet.) (mem. op.); Camac v. Dontos , 390 S.W.3d 398, 405 (Tex. App.—Dallas 2012, no pet.) ; Crithfield v. Boothe , 343 S.W.3d 274, 282 (Tex. App.—Dallas 2011, no pet.) ; All. Royalties, LLC v. Boothe , 329 S.W.3d 117, 120–21 (Tex. App.—Dallas 2010, no pet.) ; Wikert v. Year One, Inc. , 320 S.W.3d 522, 524 (Tex. App.—Dallas 2010, no pet.) ; Alencar v. Shaw , 323 S.W.3d 548, 552 (Tex. App.—Dallas 2010, no pet.) ; Ahrens & deAngeli, P.L.L.C. v. Flinn , 318 S.W.3d 474, 478 (Tex. App.—Dallas 2010, pet. denied) ; Proctor v. Buell , 293 S.W.3d 924, 930–31 (Tex. App.—Dallas 2009, no pet.) ; Flanagan v. Royal Body Care, Inc. , 232 S.W.3d 369, 374 (Tex. App.—Dallas 2007, pet. denied).

9 See, e.g., Patel v. Pate , No. 02-16-00313-CV, 2017 WL 2871684, at *3 n.4 (Tex. App.—Fort Worth July 6, 2017, no pet.) (mem. op.) ("Courts may consider jurisdictional grounds alleged in responses to special appearances as well as the plaintiff's petition."); Sembcorp Marine Ltd. v. Carnes , No. 09-15-00430-CV, 2016 WL 3019552, at *2 (Tex. App.—Beaumont May 26, 2016, no pet.) (mem. op.) ("When evaluating the plaintiff's allegations, we consider the pleadings and Carnes's responses to appellants' special appearances."); Mi Gwang Contact Lens Co. , No. 13-13-00306-CV, 2015 WL 3637846, at *3 n.2 (Tex. App.—Corpus Christi–Edinburg June 11, 2015) (mem. op.) ("The trial court may properly consider additional allegations contained in a response to a special appearance."); Accelerated Wealth, LLC v. Lead Generation & Mktg., LLC , No. 04-12-00647-CV, 2013 WL 1148923, at *2 (Tex. App.—San Antonio Mar. 20, 2013, no pet.) (mem. op.) (same); Hale v. Richey , No. 10-11-00187-CV, 2012 WL 89920, at *4 (Tex. App.—Waco Jan. 11, 2012, no pet.) (mem. op.) (plaintiff's petition and response are considered in determining whether plaintiff met burden of pleading sufficient allegations); Max Protetch, Inc. v. Herrin , 340 S.W.3d 878, 883 (Tex. App.—Houston [14th Dist.] 2011, no pet.) ("In determining whether the plaintiff satisfied its burden, a court may consider the plaintiff's pleadings as well as its response to the defendant's special appearance."); Ennis v. Loiseau , 164 S.W.3d 698, 705 (Tex. App.—Austin 2005, no pet.) ; Wright v. Sage Eng'g, Inc. , 137 S.W.3d 238, 249 n.7 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (allegations in petition "either alone or coupled with appellees' later assertions, offered in support of their response to Wright's special appearance" met plaintiff's burden to plead sufficient jurisdictional facts).

Texas Rule of Civil Procedure 120a(3) states, "The court shall determine the special appearance on the basis of the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, and any oral testimony." TEX. R. CIV. P. 120a(3). The text of a response to a special appearance (as opposed to evidentiary attachments to a response) does not fall into any of these categories. It is not a pleading. See TEX. R. CIV. P. 45 ("Pleadings in the district and county courts shall (a) be by petition and answer....").

This Court's earliest opinion following this practice was Flanagan v. Royal Body Care, Inc. , 232 S.W.3d 369, 374 (Tex. App.—Dallas 2007, pet. denied), and all our subsequent cases following this practice cite Flanagan. Flanagan cited Ennis v. Loiseau , 164 S.W.3d 698, 705 (Tex. App.—Austin 2005, no pet.). Flanagan , 232 S.W.3d at 374. Ennis cited Wright v. Sage Engineering, Inc. , 137 S.W.3d 238, 249 n.7 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). Ennis , 164 S.W.3d at 705. The court of appeals in Wright assumed that the allegations in the plaintiffs' petition, either alone or coupled with the assertions in the plaintiffs' response to the special appearance, met plaintiffs' initial burden to plead sufficient jurisdictional facts. Wright , 137 S.W.3d at 249 n.7. Wright cited as the basis of this practice El Puerto de Liverpool, S.A. de C.V. v. Servi Mundo Llantero S.A. de C.V. , 82 S.W.3d 622, 629 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.). In El Puerto , the court of appeals concluded the plaintiffs' "pleadings" were sufficient to show jurisdiction in Texas because they alleged the defendant was "doing business in the State of Texas" and "committed torts in Texas." El Puerto , 82 S.W.3d at 629. Nothing in the El Puerto opinion suggests the trial court or the court of appeals looked to the plaintiffs' response to the special appearance for the jurisdictional allegations. The word "response" does not appear in the El Puerto opinion. Thus, Wright, Ennis, Flanagan , and all the cases citing them have no basis for their assertion that the plaintiff can present jurisdictional allegations in the response to the special appearance without including them in the petition.¹⁰

10 Some courts of appeals in opinions predating Wright have followed the practice without citing any authority in support. See, e.g., Freund v. Watley Enters., Inc. , No. 07-99-0517-CV, 2000 WL 674699, at *7 (Tex. App.—Amarillo May 24, 2000, pet. denied) (not designated for publication) (although petition did not allege specific acts of defendant in Texas, the response to the special appearance did, and plaintiff's "allegations in its response to the special appearance were sufficient to raise the questions we have discussed"); Bullen v. Dalton , No. 01-98-00598-CV, 1998 WL 767733, at *4 (Tex. App.—Houston [1st Dist.] Nov. 5, 1998, no pet.) (not designated for publication) ("Appellees raised jurisdictional allegations in their response to the special appearance motion. Therefore, appellants had the burden to negate all jurisdictional claims raised by these pleadings...."); Garner v. Furmanite Australia PTY., Ltd. , 966 S.W.2d 798, 801 n.1 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (jurisdictional facts alleged "in the sworn response to the special appearance").
The Corpus Christi–Edinburg court recognized there was a question whether "when determining whether the plaintiff has met its initial burden to plead sufficient allegations to show jurisdiction in Texas, do we look only at the third-party plaintiff's petition, or do we also consider other documents on file, such as a response to the special appearance?" Frank A Smith Sales, Inc. v. Atlantic Aero, Inc. , 31 S.W.3d 742, 746 (Tex. App.—Corpus Christi–Edinburg 2000, no pet.) (internal quotation marks omitted). The court did not answer the question because even considering the other documents, the appellant "failed to plead sufficient allegations to show jurisdiction in Texas." Id.

The supreme court has not approved this practice. In Kelly v. General Interior Construction, Inc. , 301 S.W.3d 653 (Tex. 2010), the supreme court set out the procedure for the shifting burdens of proof in a special appearance. First, "the plaintiff bears the initial burden to plead sufficient allegations to bring the nonresident defendant within the reach of Texas's long-arm statute." Id. at 658 (emphasis added). The defendant then "bears the burden to negate all bases of personal jurisdiction alleged by the plaintiff." Id. And where is the defendant to find the allegations it must negate? The supreme court provides the answer: "the defendant's corresponding burden to negate jurisdiction is tied to the allegations in the plaintiff's pleading. " Id. (emphasis added). If the plaintiff's petition lacks sufficient allegations to bring the defendant under the long-arm statute, "the plaintiff should amend the pleading to include the necessary factual allegations." Id. at 659. If the defendant, in its special appearance, presents evidence that disproves the plaintiff's jurisdictional allegations, then the plaintiff should present evidence in support of the petition's allegations. Id. If the plaintiff's evidence differs from the allegations in the petition, "then the plaintiff should amend the petition for consistency." Id. at 659 n.6. Thus, according to Kelly , the allegations on which the plaintiff bases the exercise of jurisdiction over the defendant must be in the petition. The plaintiff's response to the special appearance may contain evidence supporting the petition's jurisdictional allegations, but that evidence must be consistent with the allegations in the petition. "[T]he defendant's ... burden to negate jurisdiction is tied to the allegations in the plaintiff's pleading"; nothing in the supreme court's precedent suggests the defendant must negate jurisdictional allegations appearing only in the response to the special appearance.

To be consistent with Kelly , we conclude that the plaintiff must meet its initial burden on a special appearance by pleading, in its petition , sufficient allegations to invoke jurisdiction under the Texas long-arm statute. This Court's opinions to the contrary are overruled to the extent they conflict with this conclusion.

We now consider whether appellants met their burden of pleading sufficient allegations to bring Saidara within the provisions of the Texas long-arm statute. A plaintiff's petition satisfies the long-arm statute when it alleges the defendant did business, which includes committing a tort in whole or in part in Texas. See CIV. PRAC. § 17.042(2) ; Lombardo v. Bhattacharyya , 437 S.W.3d 658, 679 (Tex. App.—Dallas 2014, pet. denied). In this case, appellants did not generally allege that Saidara committed a tort in Texas or did business in Texas. Accordingly, we consider whether they alleged facts showing Saidara committed a tort in Texas. See CIV. PRAC. § 17.042(2).

Appellants allegations concerning acts by Saidara are as follows:

8. ... Personal jurisdiction exists as to Saidara because he had contacts with Texas with respect to the acts complained of herein, including travel to Texas specifically directed at the transaction forming the basis of this lawsuit.

....

16. Frank Saidara is the Vice President of Corporate Development for Prospect. Saidara was the senior executive tasked with obtaining Southwest General's trade secrets and other highly confidential information. Saidara visited Texas in connection with the sale of Southwest General's assets and participated in numerous communications (both electronically and telephonically) with counterparties in Dallas during which he misrepresented Prospect's intention to purchase Southwest General. Saidara's

communications were intentional and were directed to Steward in Texas.

17. During one of Saidara's visits to Texas, he participated in a site visit at the Southwest General Facility. During that visit, Saidara was accompanied by James Summerset, the interim CEO of Nix Health [Nix Health Services Corporation is a hospital in San Antonio owned by Prospect Medical].

18. While on the site visit, Summerset asked an unusual amount of questions about proprietary Southwest General data. Specifically, Summerset inquired about physician employment arrangements and compensation data.

19. Saidara oversaw the due diligence for the transaction—the process through which Prospect and its representatives were able to review Southwest General's confidential and highly-sensitive business information before entering into a definitive asset purchase agreement.

....

31. ... [O]n September 14, 2018, or in the early morning hours of the next day, Prospect made its move. With no notice, Saidara entered the "clean room." He waited to do so until after midnight. Until that evening, Saidara's access to the due diligence information had been sporadic and mostly consisted of viewing financial related documents.... But on this adventure after midnight, Saidara downloaded all of the information in the clean room. This download took just over a half hour and left Saidara and Prospect, and perhaps others in possession of Steward's most sensitive information—information they can and inevitably will use to the benefit of themselves and Nix Health to the detriment of Steward, Southwest General, and patients and consumers of health care in Texas.

....

Count I – Fraud

47. ... [F]ollowing the indication of interest, Defendants misrepresented throughout the due diligence period ... that Prospect intended to enter into a definitive asset purchase agreement for the assets of Southwest General and to close on such an agreement. Prospect never had any intention of doing so, and Defendants knew of that intention and their role in Prospect's scheme.

48. ... Defendants intended that Plaintiffs would rely upon their misrepresentations by moving forward with the proposed transaction....

Count II - Misappropriation of Trade Secrets (Texas Uniform Trade Secrets Act)

....

52. Saidara's surreptitious middle-of-the-night downloading of the entire contents of the "clean room" constitutes a theft by Saidara and Prospect of Southwest General's trade secrets.

....

54. ... Prospect and Saidara acquired the trade secret information through improper means, including through fraud.

55. ... Saidara disclosed Southwest General's trade secret information to other individuals at Prospect without the consent of Steward and Southwest....

....

58. Upon information and belief, Prospect's and Saidara's misappropriation of Southwest General's trade secrets was willful and malicious.

Count III – Unfair Competition

....

60. ... [B]y taking and retaining Southwest General's confidential information, ... Prospect and Saidara have breached a confidential business relationship with Steward and Southwest General.

61. ... [B]y misleading Steward with their misrepresentations that Prospect intended to buy the assets of Southwest General ..., Prospect and Saidara have engaged in conduct that is contrary to honest practices in commercial matters.

....

Count IV – Violation of the Texas Harmful Access by Computer Act

....

66. ... Defendants accessed Plaintiffs' data by accessing and downloading Steward's confidential and trade secret information contained in the Clean Room for a purpose other than evaluating the Transaction.

Appellants also alleged a conspiracy between Prospect and Nix Health, but that cause of action did not include any allegations against Saidara.

Appellants' allegations show the following concerning Saidara:

• He visited Texas in connection with the sale of Southwest General's assets.

• He visited Texas and participated in a site visit of Southwest General's facility with Summerset during which Summerset asked an unusual amount of questions.

• He had electronic and telephonic communications with counterparties in Dallas during which he misrepresented Prospect's intention to purchase Southwest General.

• He oversaw due diligence for the transaction.

• He went into the virtual clean room and downloaded all of Steward's confidential data.

• He disclosed the data to others at Prospect.

The only allegations of conduct by Saidara in Texas are that he visited Texas in connection with the sale, and he visited Texas on a site visit to Southwest General's facility with Summerset during which Summerset, not Saidara, asked questions. There is no allegation in the petition that Saidara made any misrepresentation during his visits to Texas. There is no allegation in the petition that he was in Texas when he made the misrepresentations in his electronic and telephonic communications. See Jani-King , 2016 WL 2609314, at * 4 (telephone calls and e-mails made from outside Texas do not allege commission of tort in Texas). Nor is there any allegation in the petition that Saidara made an in-person misrepresentation during his visit to Texas. Finally, there is no allegation that Saidara was in Texas when he downloaded all the data in the clean room.¹¹

11 Saidara testified in his declaration that he was in California at the time appellants alleged he downloaded the information.

Appellants rely on allegations in their response to the special appearance that Saidara made fraudulent misrepresentations "[d]uring his visit to Texas," and "Saidara committed tortious fraud in Texas." However, as discussed above, the allegations to meet the long-arm statute must appear in the petition and not solely in the plaintiff's response to the special appearance. Accordingly we cannot consider those allegations.

We conclude appellants have not pleaded sufficient allegations to bring Saidara within the provisions of the Texas long-arm statute. We overrule appellants' issue on appeal.

IV. CONCLUSION

We affirm the trial court's order granting Saidara's special appearance.

Opinion of the Court by Myers, J., joined by Burns, C.J., and Partida-Kipness, Reichek, Goldstein, Smith, and Garcia, JJ.

Burns, C.J., concurring, joined by Myers, Osborne, Molberg, Partida-Kipness, Reichek, Nowell, Carlyle, Goldstein, Smith, and Garcia, JJ.

Schenck, J., concurring.

Osborne, J., concurring in part and dissenting in part, joined by Pedersen, J., and joined in part by Molberg, J.

Carlyle, J., dissenting, joined by Molberg and Nowell, JJ. CONCURRING OPINION

Opinion by Chief Justice Burns

Ordinarily, this Court does not publish or discuss our internal administrative rules (operating rules), internal discussions, deliberations, tentative votes, positions taken and changes, or preliminary writings in an opinion. This is because courts in this state are created for the sole purpose of the judicial determination of presently existing disputes between the parties in which an effective judgment can be rendered. See City of W. Univ. Place v. Martin , 132 Tex. 354, 123 S.W.2d 638, 639 (1939). If a justice is not careful, publishing and discussing internal disputes regarding policy and administrative procedures can put the justice in the position of violating the Texas Constitution's and the Texas Code of Judicial Conduct's prohibitions against conduct that casts public discredit on the judiciary. See TEX. CONST . art. V, § 1-a (6)(A); TEX. CODE JUD. CONDUCT , Canon 2(A), reprinted in TEX. GOV'T. CODE ANN. , tit. 2, subtit. G, app. B. However, because Justice David Schenck has chosen to insert his disagreement with the Court's internal administrative procedures into this judicial opinion regarding a dispute between the parties, I feel compelled to respond.

Appropriate Action

Justice Schenck concludes that, in light of his concerns with the way in which this case was considered by the Court, he is constitutionally and ethically obligated to take "appropriate action," and that action is to write a concurrence explaining his disagreement with the other members of the Court regarding its internal administrative procedures and interpretation of the Texas Rules of Appellate Procedure. In my view, if a member of the Court has a legitimate, good-faith belief that due process has been violated and that the violation arises from the operating rules of the Court, the justice should first raise the issue within the Court because the operating rules may be changed by vote of the majority of the Court's justices. If, as here, the dispute has not been resolved to the justice's satisfaction internally, a justice might file a writ of mandamus in the Texas Supreme Court. See, e.g., In re Castillo , 201 S.W.3d 682 (Tex. 2006) (justice filed petitions for writ of mandamus and writ of prohibition to order Thirteenth Court of Appeals to vacate an "exit plan" devised by other justices of court after justice lost her reelection bid.); In re Yates , 960 S.W.2d 652 (Tex. 1997) (five justices of the nine-member Fourteenth Court of Appeals petitioned for a writ of mandamus to direct the chief justice to submit for en banc vote all requests from justice seeking en banc consideration of case.); O'Connor v. First Court of Appeals , 837 S.W.2d 94 (Tex. 1992) (justice of the First Court of Appeals sought writ of mandamus directing court to instruct clerk to file dissent from denial of internal request to hear appeal en banc.). The justice might also file a complaint with the State Commission on Judicial Conduct. See TEX. CODE JUD. CONDUCT , Canon 3(D). ("A judge who receives information clearly establishing that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall inform the State Commission on Judicial Conduct or take other appropriate action.").

In my view, because Justice Schenck suggests misconduct and bias on the part of the other twelve justices on this Court, the proper course of action for him to take would be to file a complaint with the judicial conduct commission.^{1 1 1 1} As detailed below, such a course of action would allow (1) his allegations to be fully investigated, (2) all parties involved in the internal dispute to have an opportunity to fully respond to the factual allegations, and (3) the merit of his allegations to be determined by a neutral body set up for that purpose.

1 If Justice Schenck had expressed disagreement only with the legality of the Court's administrative rules, the better approach might have been for him to file a petition for writ of mandamus in the supreme court in January when the remainder of the Court did not agree with his legal interpretation of the rules of appellate procedure. In neither event do I believe that the appropriate course of action was to insert his disagreement into this case.

1 Further, although Steward Health and Southwest General amended their petition the day before filing their response, they did not change the allegation quoted above and instead only added the following sentence: Saidara's communications were intentional and were directed to Steward in Texas.

1 While I do not agree with the account of the facts or the allegations contained in Parts II, III, and IV of Justice Schenck's concurring opinion, I decline to address or otherwise entertain them because they are not relevant to the disposition of this appeal. See Tex. R. App. P. 47.1.

1 See KBIDC Invs., LLC v. Zuru Toys Inc. , No. 05-19-00159-CV, 2020 WL 5988014, at *5 n.4 (Tex. App.—Dallas Oct. 9, 2020, pet. filed) (citing Greenville Automatic Gas Co. v. Automatic Propane Gas & Supply, LLC , 465 S.W.3d 778, 788 (Tex. App.—Dallas 2015, no pet.) (unfair competition is a derivative tort)).

The Texas Constitution provides for a State Commission on Judicial Conduct that consists of thirteen members, including various justices, judges, lawyers, and citizens. TEX. CONST . art. V, § 1-a (6)(A). The constitution further provides that any justice may be disciplined for:

willful or persistent violation of rules promulgated by the Supreme Court of Texas, incompetence in performing the duties of office, willful violation of the Code of Judicial Conduct, or willful or persistent conduct that is clearly inconsistent with the proper performance of [the justice's] duties or casts public discredit on the judiciary or on the administration of justice.

Id. Finally, the constitution provides that after receipt of a written complaint and an investigation the Commission may, among other things, issue a private or public admonition, warning, reprimand, or requirement that the justice obtain additional training or education. Id.

The function of the Commission "is to maintain the honor and dignity of the judiciary and to uphold the administration of justice for the benefit of the citizens of Texas." In re Slaughter , 480 S.W.3d 842, 845 (Tex. Spec. Ct. Rev. 2015). When an allegation of misconduct is made, the Commission investigates and, if determined to be necessary, conducts proceedings which allow for the accused party or parties to respond and be heard. See TEX. GOV'T CODE ANN . § 33.022. If the complaint is determined to be valid and of sufficient magnitude, it may be disclosed to the public as part of that process. See id. Of course, if the complaint is determined to be without merit or not of sufficient magnitude to warrant public disclosure, it might be dismissed, or a private admonition, warning, or reprimand might be made without the proceeding being made public, thus preserving the integrity of the judiciary as required by the constitution and code of judicial conduct. See id.

Because, to my knowledge, Justice Schenck has chosen not to follow that process but has himself determined the validity and magnitude of his concern merits public insertion into this dispute between the parties, I feel I must discuss and defend our administrative rules in this opinion. In doing so, I will not discuss in any detail the internal discussions, deliberations, tentative votes, or proposed opinions, although the completeness and validity of the facts as stated in his concurrence may well be questioned by other members of the Court. Arguing with Justice Schenck over his perception of the facts related to our consideration of this case or his past complaints regarding administration of the Court only prolongs resolution of this appeal while adding nothing to the judicial reasoning of the merits of this case.

Appellate and Administrative Rules

The linchpin of Parts II, III, and IV of Justice Schenck's concurrence is his belief that, after a case is submitted to a three-justice panel for consideration, the case is "decided" once two or more justices have agreed on the judgment, and the Court is obligated to issue that panel opinion regardless of the concerns of any other justice who was not sitting on the panel. He believes the only proper course of action to express any concerns with the three-justice panel opinion is via a post-opinion request for en banc reconsideration. In other words, he believes that the remaining justices are without a voice once a case is submitted to a panel, and allowing the full Court a voice in the decision, once a panel opinion circulates, amounts to a collusive effort to "conceal" the proposed panel opinion from the parties. I simply cannot agree with this interpretation of our rules. A case is not "decided" by an appellate court until the court issues its opinion and judgment, and the rules of appellate procedure clearly contemplate that a case submitted to a panel for consideration may later be considered—not only reconsidered—by the court sitting en banc.

A "decision" of the court is its determination after consideration of the facts and law; especially, a ruling, order, or judgment pronounced by a court when considering or disposing of a case. Decision , BLACK'S LAW DICTIONARY (11th ed. 2019) (emphasis added). An opinion is the court's written statement explaining its decision in a given case. Opinion, id. In practice, the two terms are often used interchangeably. See e.g., Citizens Nat'l Bank in Waxahachie v. Scott , 195 S.W.3d 94, 96 (Tex. 2006) (per curiam).

In Texas, a court of appeals considers the case, either with a three-justice panel or en banc if the court votes to do so, and ultimately decides that case by issuing its judgment and accompanying opinion explaining its decision. The court of appeals is required to "hand down" a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal. TEX. R. APP. P. 47.1.^{2 2 2 2} Such opinions are "issued" by the court. See id. 47.2 ("Opinions and memorandum opinions in civil cases issued on or after January 3, 2003 shall not be designated ‘do not publish.’ "). The Clerk of the Court notifies the parties of the court's decision by sending a copy of the judgment and the accompanying opinion to the parties. See id. 12.6.

2 An exception to this rule is cases involving appeals from the trial court's denial of an application for an order authorizing a minor to consent to an abortion without parental notification. In such cases, a court of appeals may issue an opinion explaining its ruling but is not required to do so. See Tex. R. Jud. Bypass Paren. Not. & Cons. Chap. 33 Fam. Code Judicial Bypass 3.3(e)(1).

2 In each of the cases cited by Justice Osborne, the allegation was supported by evidence presented at the hearing. See, e.g., Jani-King , 2016 WL 2609314, at *4 (jurisdictional allegations upon which case was decided were taken from original petition); see also Flanagan v. Royal Body Care, Inc. , 232 S.W.3d 369, 376 (Tex. App.—Dallas 2007, pet. denied) (evidence to support allegations attached to response).

2 Steward Health and Southwest General do not challenge the portion of the trial court's order that concludes there was no evidence to support the exercise of general jurisdiction over Saidara.

2 I would also conclude fundamental fairness allows all four claims the plaintiffs bring here, though that precise discussion is unimportant to the narrow legal issue I focus on here.

The Fifth Court of Appeals is a thirteen-justice court. TEX. GOV'T CODE ANN .§ 22.216(e). When a court has more than three justices, the rules of appellate procedure provide for both panel and en banc decisions of the courts of appeals. Rule 41.1 governs panel decisions and provides "[u]nless a court of appeals with more than three justices votes to decide a case en banc , a case must be assigned to a panel of the court consisting of three justices." TEX. R. APP. P . 41.1(a) (emphasis added). Rule 41.2 governs decisions by the en banc court. Id. 41.2. Rule 41.2(c) provides that, although a vote to determine whether a case will be heard or reheard en banc need not be taken on every case, if a member of the court requests such a vote and a majority of the court's members vote to hear or rehear the case en banc, the en banc court will hear or rehear the case. Id. Similarly, the rules of appellate procedure provide for reconsideration of a case by either the panel who originally decided the case or by the en banc court. See id. 49.3 (decisions on motion for rehearing); 49.7 (governing en banc reconsideration).

The rules of appellate procedure do not, however, provide how or when the court of appeals may vote to consider a particular case en banc. But when such a determination is made, the en banc court consists of all members of the court who are not disqualified or recused and—if the case was originally argued before or decided by a panel—any members of the panel who are not members of the court, but remain eligible for assignment to the court. Id. 41.2(a).

The rules of appellate procedure also provide that, if for any reason a member of a panel cannot participate in deciding a case, the case may be decided by the two remaining justices. Id. 41.1(b). If the remaining justices cannot agree on the judgment, the chief justice of the court of appeals must : (1) designate another justice of the court to sit on the panel to consider the case; (2) request the chief justice of the supreme court to temporarily assign an eligible justice or judge to sit on the panel to consider the case; or (3) convene the court en banc to consider the case. Id. 41.1(b) (emphasis added).

This Court, like other appellate courts in this State, has adopted local rules to supplement the rules of appellate procedure. See id. 1.2(a). Local rules must be approved by either the Texas Supreme Court or the Texas Court of Criminal Appeals. Id. And a court of appeals must provide a copy of the court's local rules to anyone who requests it. Id. 1.2 (b). This Court has not adopted any local rules relevant to any issue in this case.

Separate and apart from the local appellate procedural rules, appellate courts in Texas also adopt internal rules or procedures governing the administration of the Court. See generally, Castillo , 201 S.W.3d at 683–84 (discussing court of appeals internal administration rules with respect to an "exit plan" for a justice once she lost the primary election). These rules are not required to be approved by the supreme court. See id. at 685 (noting that such rules may be modified or suspended by a majority vote of the justices of the court and leaving such rules to the discretion of the court). As noted in Castillo , both state and federal courts engage in a variety of practices for assigning cases and managing their docket. Id. Some assign cases randomly, others by seniority, still others by assignment by the chief justice. Id. Information regarding the various internal administrative rules of appellate courts in Texas is available to the public on the various court websites. This Court has published some information about, but not the entirety of, our administrative operating rules. See https://www.txcourts.gov/media/1443148/5th-court-of-appeals-iop.pdf.

As part of our current administrative rules, last amended in 2014, this Court has adopted practices for, among other things, (1) the circulation of proposed panel opinions, (2) full court review and comment on proposed panel opinions, and (3) requests for en banc consideration of a case. The rules are subject to amendment at any administrative conference with the concurrence of at least seven members of the Court, provided that the substance of the amendment has been circulated to all members of the Court at least one working day before the conference.^{3 3 3 3}

3 I have limited my discussion of the Court's administrative rules to those relevant to this case. I note that Justice Schenck's disagreement with other aspects of the administrative rules has not been, and is not currently, the view of the majority of the justices of the Court despite what he characterizes as his "many" and "loud" attempts to convince them otherwise. See Schenck, J., concurring at slip. op. 61.

3 However, a plaintiff may amend its pleadings as Steward Health and Southwest General did here. See Tex. R. Civ. P. 63. At that point, the defendant may amend its special appearance to address the additional allegations. See Tex. R. Civ. P. 120a ; Dawson-Austin v. Austin , 968 S.W.2d 319, 321–22 (Tex. 1998).

3 In support of this contention, Saidara cites his declaration and the clean team agreement. However, neither of these documents attempts to negate the allegations that Saidara made misrepresentations during his visit to Texas or in his telephonic and electronic communications with individuals in Texas, and that he received some of Southwest General's highly confidential, proprietary, and trade-secret information—including the identities and specialties of Southwest General's most important physicians—while in Texas.

3 Though the parties here executed a "Clean Team Confidentiality Agreement," that agreement did not include a forum-selection provision establishing personal jurisdiction.

When, as here, we have determined a case should be submitted to a panel with oral argument, the case is assigned to a member of the panel after oral argument. That justice then prepares an opinion in light of the views expressed in the post-argument conference but is not bound by such views. Once the proposed opinion is ready and in proper form for issuance, it is circulated to the remaining panel members for their review. If a member of the panel does not agree with the circulating proposed opinion, the justice is required to indicate, within eight days of circulation, an intention to concur or dissent or request a two-week extension of time to study the case. If the justice decides to write separately, the justice has thirty days from the date of the circulation of the proposed opinion to complete the concurring or dissenting opinion. If more than one member of the panel disagrees with the proposed majority opinion as circulated, the case is assigned by the panel to a different justice to write for the majority. The new proposed majority opinion is then circulated to the panel. The author of the original proposed opinion may then complete and circulate to the panel a dissenting or concurring opinion.

Once the proposed panel opinion and any separate opinions have been approved by the panel members, those proposed panel opinions are then circulated to the full court for review and comment at the request of any panel member. As a matter of practice, because this Court operates with four panels, opinions with separate opinions are circulated to all the other justices so that they can be apprised of any disagreement among the panel members. A civil opinion may issue eight calendar days after the proposed panel opinion is circulated to the full court. But, at any time prior to issuance, a justice may deliver to the chief justice and the author of the majority opinion a written request for an en banc conference, accompanied by a memorandum stating grounds for disagreement and citing supporting authorities, if any, or referring to a dissenting or concurring opinion for grounds of disagreement. If at least six other justices join the request, the chief justice shall call for an en banc conference.

In common practice, during the eight-day circulation of a proposed panel opinion to the full court, a justice may request a two-week study of the case.^{4 4 4 4} Cases that present difficult questions are, of course, more likely to result in the request for a two-week study. And, as a common practice, the two-week study period is often extended at an authoring justice's discretion to allow a justice more time to consider the proposed opinion. During that time, a "studying" justice may determine that en banc consideration is appropriate and prepare a memorandum requesting such consideration or he or she may determine that no such request is appropriate and remove the request. Further, and of particular relevance here, our administrative rules provide that, upon resignation, retirement, or expiration of the term of any member of the Court, the successor takes the predecessor justice's place on the panel, including authorship if relevant, and in the rotation schedule.

4 With respect to criminal opinions, the Court's operating rules specifically provide that after an opinion designated for publication has been approved by the sitting panel, it is circulated to all other justices. Opinions may be issued on the expiration of eight calendar days after circulation if all justices have indicated by vote that they have reviewed the opinion and have not requested a two-week extension of time to study the case. Further, cases may be and are often held as a courtesy and at the discretion of the authoring justices for longer than two weeks to allow for study of the case. It is also not uncommon for the author of a majority to hold an opinion longer than the time allotted for a proposed dissenting opinion to be completed.

4 Contrary to my friend Justice Osborne's opinion, it has long been held an appellate court cannot reverse on the basis of error not presented to the trial court. See In re G.X.H. , No. 19-0959, 627 S.W.3d 288, 294 (Tex. Apr. 30, 2021) (citing Tex. R. App. P. 33.1(a), 53.2(f) ) ("Our rules regarding preservation are clear that, with limited exceptions, a party cannot obtain reversal of a trial court's judgment on appeal based on an error that was never raised in the trial court.").
Moreover, to the extent Justice Osborne argues the supreme court's opinions in St. John's and Horton would allow us to construe rules of civil procedure liberally, such opinions address preservation and presentation of error at the trial court to an appellate court and not the parties' presentation of their arguments to the trial court. St. John Missionary Baptist Church v. Flakes , 595 S.W.3d 211, 214–15 (Tex. 2020) (per curiam) (holding appellant's briefing did not waive consideration of both grounds presented to trial court); Horton v. Stovall , 591 S.W.3d 567, 568 (Tex. 2019) (per curiam) (holding where error preserved at trial court, briefing deficiency should not have been fatal to appeal absent time to cure). As an intermediate court we may "question [a supreme court's opinion's] continued vitality in light of [later] opinions," but overruling them is not an option for us. Sheffield Dev. Co. v. City of Glenn Heights , 140 S.W.3d 660, 674 (Tex. 2004) ("if a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [a lower court] should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions") (quoting Agostini v. Felton , 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) ).

4 I note that the law in Texas is not well settled as to whether the fiduciary-shield doctrine applies to the exercise of specific jurisdiction. However, this Court has rejected the view that the fiduciary-shield doctrine applies only to general-jurisdiction cases. Stull , 411 S.W.3d at 136–39. Stull distinguished prior cases that seemed to say the opposite. Id. at 136–37 n.4 (citing, e.g., Tabacinic , 372 S.W.3d at 668, and Crithfield v. Boothe , 343 S.W.3d 274, 287 (Tex. App.—Dallas 2011, no pet.) ). But see Yew Yuen Chow v. Rodriguez San Pedro , No. 14-18-00429-CV, 2019 WL 4021908, at *7 (Tex. App.—Houston [14th Dist.] Aug. 27, 2019, pet. denied) (mem. op.) (noting most Texas courts applying the fiduciary-shield doctrine have limited its application to attempts to exercise general—not specific—jurisdiction over a nonresident defendant); Lucas v. Ryan , No. 02-18-00053-CV, 2019 WL 2635561, at *9 (Tex. App.—Fort Worth June 27, 2019, no pet.) (mem. op.) (noting some courts, including the Fort Worth Court of Appeals, have restricted the application of fiduciary-shield doctrine to attempts to exercise general jurisdiction); Steamboat Capital Mgmt., LLC v. Lowry , No. 01-16-00956-CV, 2017 WL 5623414, at *11 (Tex. App.—Houston [1st Dist.] Nov. 21, 2017, no pet.) (mem. op.) (declining to apply fiduciary-shield doctrine to invocation of specific jurisdiction, even if doctrine had been raised in trial court, noting doctrine is limited to application of general jurisdiction). Nevertheless, it should also be noted that the Stull court applied the fiduciary-shield doctrine in a breach-of-contract case premised on specific jurisdiction, not a tort case. 411 S.W.3d at 138. And often an individual defendant acting in a corporate role will not be individually liable for the breach of a corporate contract.

4 There can be no dispute that as the legal system "struggles to keep pace with rapidly evolving technology," the law of personal jurisdiction "is not immune to this struggle." Note, Minimum Virtual Contacts: A Framework for Specific Jurisdiction in Cyberspace , 116 Mich. L. Rev . 785 (2018). I agree that "[c]ourts should recognize that, while notions of territory are blurred on the internet, some virtual contact is established between forums through online transactions," and there is a "need for a modified minimum virtual contacts model that accounts for the nuances presented by changing technology." Id. at 789. Regardless, the facts of this case are not limited solely to an online transaction but rather, as described above, involve alleged misrepresentations in Texas that are a component of the misappropriation claim.

Here, after the panel refused to approve the original majority opinion, another panel member was assigned to author the majority. That new proposed majority, as well as the original author's dissent, was circulated to the full court for review and comment per a panel member's request.^{5 5 5} Before the opinion issued and the review and comment period ended, two things happened.^{6 6 6} A panel member's term of office expired, and a non-panel member requested a two-week study of the proposed majority opinion.^{7 7 7} Consequently, the proposed opinions did not issue. As is the case here, the process of considering a case may result in various proposed opinions and preliminary votes, but the case is not "decided" within the meaning of the rules of appellate procedure until the Court issues its judgment and accompanying opinion explaining how that judgment was reached. That process may include requests for study and for en banc consideration after an opinion has been submitted to a panel and circulated to the full court.

5 In practice, the panel can agree to expedite full court review. That is done by notifying the non-panel members of the need and reason for a shortened review period, and asking that they review the proposed opinion or opinions by a certain date. The author may issue after all justices have noted on TAMES that the proposed opinion has been reviewed. In this case, the panel agreed to expedite full court review.

5 It is because of the trial court's ability to consider the content of the pleadings themselves, as well as our directive to affirm on any meritorious ground supported by the record before the court, that I disagree with the majority's comment that because neither Saidara nor appellants raised the forum-selection clause in the special appearance or response thereto, it is inapplicable to our review.

5 See generally Agar Corp., Inc. v. Electro Circuits Int'l, L.L.C. , 580 S.W.3d 136, 146 (Tex. 2019) (generally referring to unfair competition as a tort); Hunter v. Marshall , No. 01-16-00636-CV, 2018 WL 6684840, at *7 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, no pet.) (mem. op.) (generally referring to violations of the Texas Harmful Access by Computer Acts as a tort); Alanis v. US Bank Nat'l Ass'n , 489 S.W.3d 485, 507 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) (fraud is common law tort).

6 The review and comment period runs for eight full days. After it expires (not on the last day), the opinion may issue if appropriate.

6 The opening paragraph of the Clean Team Agreement provides in relevant part, "... Steward and Prospect wish to enter into this ["Clean Team Agreement"] as a supplement to the Confidentiality Agreement ...." (Emphasis added). As noted by my friend Justice Carlyle in his dissent, the Clean Team Agreement did not include a forum-selection provision, but it clearly referred to the Confidentiality Agreement, which does contain such a provision. Considering that specific reference and the fact that both agreements were executed to address the same transaction and were entered into by the same parties, I would construe the documents as if they formed a single, unified instrument for determining whether the forum-selection provision in the Confidentiality Agreement applied to the Clean Team Agreement. Cf. Rieder v. Woods , 603 S.W.3d 86, 102 (Tex. 2020).

6 See also Invasix, Inc. v. James , No. 05-19-00494-CV, 2020 WL 897243, at *4 (Tex. App.—Dallas Feb. 25, 2020, no pet.) (mem. op.); Golden Peanut Co. v. Give & Go Prepared Foods Corp. , No. 05-18-00626-CV, 2019 WL 2098473, at *4 (Tex. App.—Dallas May 14, 2019, no pet.) (mem. op.); Cooper Gay Martinez del Rio y Asociados Intermediarios de Reaseguro S.A. de C.V. v. Elamex, S.A. de C.V. , No. 05-16-01436-CV, 2017 WL 3599690, at *5 (Tex. App.—Dallas Aug. 22, 2017, no pet.) (mem. op.) ; Seguros Afirme, S.A. de C.V. v. Elamex, S.A. de C.V. , No. 05-16-01465-CV, 2017 WL 3599693, at *5 (Tex. App.—Dallas Aug. 22, 2017, no pet.) (mem. op.); N. Frac Proppants, II, LLC v. 2011 NF Holdings, LLC , No. 05-16-00319-CV, 2017 WL 3275896, at *2, 5 (Tex. App.—Dallas July 27, 2017, no pet.) (mem. op.); Nat'l Fire Ins. Co. of Hartford v. CE Design, Ltd. , 429 S.W.3d 806, 811 & n.6 (Tex. App.—Dallas 2014, no pet.) (noting Court unpersuaded by appellees' assertion that appellants failed to plead jurisdictional facts and stating that, in addition to facts alleged in their original petition for declaratory relief, appellants set out their factual allegations in support of jurisdiction in their opposition and supplemental opposition to appellees' special appearance and motion to dismiss); Stull , 411 S.W.3d at 134 ; NexBank, SSB v. Countrywide Fin. Corp. , No. 05-12-00567-CV, 2013 WL 2244830, at *2 (Tex. App.—Dallas May 22, 2013, no pet.) (mem. op.); Camac v. Dontos , 390 S.W.3d 398, 405 (Tex. App.—Dallas 2012, no pet.) ; Crithfield , 343 S.W.3d at 282 ; All. Royalties, LLC v. Boothe , 329 S.W.3d 117, 120–21 (Tex. App.—Dallas 2010, no pet.) ; Wikert v. Year One, Inc. , 320 S.W.3d 522, 524 (Tex. App.—Dallas 2010, no pet.) ; Alencar v. Shaw , 323 S.W.3d 548, 552 (Tex. App.—Dallas 2010, no pet.) ; Ahrens & DeAngeli, P.L.L.C. v. Flinn , 318 S.W.3d 474, 478 (Tex. App.—Dallas 2010, pet. denied) ; Proctor v. Buell , 293 S.W.3d 924, 930–31 (Tex. App.—Dallas 2009, no pet.) ; Flanagan v. Royal Body Care, Inc. , 232 S.W.3d 369, 374 (Tex. App.—Dallas 2007, pet. denied).

7 A prior request for a two-week study by another non-panel member was later withdrawn.

7 Justice Osborne also suggests the trial court could not have properly considered the Confidentiality Agreement because that document was attached to Prospect Medical's pleading and not offered and admitted by the trial court. The authority she cites is inapposite. Moreover, that suggestion ignores the plain text of Rule 120a, which describes the scope of the trial court's review to include "such affidavits and attachments as may be filed by the parties." See Tex. R. Civ. P. 120a(3).

7 I note that in connection with his special appearance, Saidara filed evidence that included his declaration. To the extent that evidence negated Steward Health and Southwest General's allegations, the burden shifted back to Steward Health and Southwest General to show that the evidence was legally or factually insufficient to negate personal jurisdiction. I further note that Steward Health and Southwest General did not attach any evidence to their response to Saidara's special appearance.

I disagree with Justice Schenck's view that, once a panel has voted on a proposed opinion and judgment, a former justice's vote is somehow final and can operate to "lock in" the disposition of the case, rendering the case "decided" prior to the Court's pronouncement of its judgment. I also disagree with Justice Schenck that, in the process of considering this case, the Court violated the rules of appellate procedure, the due process rights of the parties, or committed any other "administrative irregularities." Instead, I believe the Court followed the Court's internal practices and administrative rules, and those rules and practices are in compliance with the rules of appellate procedure.

I find support for my position in the supreme court's reasoning in O'Connor. 837 S.W.2d at 95. In that case, Justice O'Connor sought a writ of mandamus from the supreme court directing the First Court of Appeals to instruct its clerk to file her dissent from the denial of her motion to consider an appeal en banc. Id. In accordance with the First Court's customary practice, a proposed panel opinion was circulated to all members of the court for comments. Id. O'Connor, "exercising her prerogative under rule 79(e) of the Texas Rules of Appellate Procedure",^{8 8 8} made a written motion to submit the case for en banc hearing, but her request failed to receive a majority vote. Id. When O'Connor informed the court that she planned to file a dissent from the order denying en banc consideration, a majority of the full court voted to deny leave to file the dissent and ordered the clerk not to file it. Id. She then filed a petition for writ of mandamus in the supreme court.

8 Rule 79(e) was nearly identical to current rule 41.2(c). Both the current and former rule provide that a justice of the court may request a vote for en banc consideration or reconsideration. If a vote is requested and a majority of the court agrees, the court will hear or rehear the case en banc. See Tex. R. App. P . 41.2(c).

8 Courts evaluating whether exercising jurisdiction offends traditional notions of fair play and substantial justice should consider the following factors, when appropriate (1) the burden on the nonresident, (2) the interests of the forum in adjudicating the dispute, (3) the plaintiff's interest in obtaining convenient and effective relief, (4) the international judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several nations in furthering fundamental substantive social policies. Moncrief Oil Int'l Inc. v. OAO Gazprom , 414 S.W.3d 142, 155 (Tex. 2013).

8 In his dissenting opinion, Justice Carlyle states that Moncrief "did not hold that courts must always analyze minimum contacts on a claim-by-claim basis." I agree that such an analysis is required only when the claims arise from different contacts. However, our agreement diverges with respect to his position that "The plaintiff's claims here[,] [including their statutory claims for misappropriation of trade secrets under the under the Texas Uniform Trade Secrets Act and violation of the Texas Harmful Access by Computer Act,] arise from or are related to the same forum contacts." Footnote 11 provides a more detailed discussion as to our differences of opinion.

The supreme court agreed with O'Connor that she was entitled to file her dissent. Id. at 96. In reaching that conclusion, the court reasoned that a court of appeals is an integral body, even though it may sit in panels. Id. And, unless a court of appeals chooses to hear a case en banc, the decision of the panel constitutes the decision of the entire court. Id. Because such cases are binding on the entire court, the rules provide for a justice who is not a member of the panel to request en banc consideration of a case and to file a concurring or dissenting opinion if desired. Id. The supreme court noted that to read the rule more restrictively would divide the court into distinct subparts, effectively disenfranchising those members of the court who were not on the original panel deciding the case. Id. (citing Textile Mills Sec. Corp. v. Comm'r of Internal Revenue , 314 U.S. 326, 333, 62 S.Ct. 272, 86 L.Ed. 249 (1941) ).

As to the "binding authority" relied on by Justice Schenck, I believe his reliance on State v. Sink , 685 S.W. 2d 403 (Tex. App—Dallas 1985, no writ) (per curiam), is misplaced, overstated, and in direct conflict with the reasoning in O'Connor. Sink is a per curiam case issued with Justices Akin, Stewart, and Keith listed as participating in the decision. Id. at 403. Two footnotes explained that (1) the "opinion was prepared and approved by Justice Stewart prior to the expiration of her term of office on December 31, 1984," and (2) the Honorable Quentin Keith, a retired justice, was sitting by assignment. Unlike the circumstances in this case, Justice Stewart retired and was eligible to sit by assignment, and the two remaining panel members agreed on the judgment. Thus, the proposed opinion prepared by Justice Stewart properly issued.^{9 9 9} The Sink court did not explain the inclusion of Justice Stewart in the heading, and Justice Schenck's reliance on the case for the proposition that because a departing justice voted on a proposed panel opinion prior to the expiration of the justice's term, precedence required the Court to issue the proposed opinion is misplaced. O'Connor , an opinion by the supreme court, directly addresses the interplay between panel members and non-panel members and en banc consideration of proposed panel opinions in the court of appeals, and it supports my view of the rules of appellate procedure and this Court's administrative rules. The heading in Sink , a 36-year-old per curiam opinion from this Court, indicating a retired justice participated in an opinion, does not.^{10 10 10}

9 Although the opinion properly issued, the heading should not have included Justice Stewart as participating in the opinion without explanation. The footnote should have indicated either that although Justice Stewart participated in the submission and preparation of the opinion she did not participate in its issuance or that she had been appointed to continue sitting on the case. See e.g., City of Glenn Heights v. Sheffield Dev. Co., 55 S.W.3d 158, 160 n.1 (Tex. App—Dallas 2001, pet. denied) ; Abella v. Knight Oil Tools , 945 S.W.2d 847, 848 n.1 (Tex. App—Houston [1st Dist.] 1997, no pet.) ; Grunewald v. Technibilt , 931 S.W.2d 593, 594 n.2 (Tex. App—Dallas 1996, writ denied).

9 As noted above, in this case the trial court's order explicitly indicates that it did consider "the parties' pleadings" in any event.

9 The only issue before this Court is the trial court's order granting Saidara's special appearance.

10 Further, as noted by Justice Schenck, a majority of the Houston Fourteenth Court of Appeals likewise agrees with my interpretation of the rules. See Werner Enters. v. Blake , 2021 WL 3164005 *1 (Tex. App—Houston [14th.Dist.] July 27, 2021, n.p.h.) (Upon its own motion, a majority of the court orders en banc consideration before proposed panel opinion issued.).

10 "The court shall determine the special appearance on the basis of the pleadings...." See Tex. R. Civ. P. 120a(3) ; see also Tex. R. Civ. P. 45 (defining "pleadings" to include petition and answer).

10 Chapter 143 of the Texas Civil Practices & Remedies Code creates a civil cause of action when a person or his property has been injured as a result of a violation of Chapter 33 of the Texas Penal Code if the conduct constituting the violation was committed knowingly or intentionally. Civ. Prac. & Rem. § 143.001(a). Section 33.02 of the Texas Penal Code provides that a person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner. Tex. Penal Code Ann. § 33.02(a).

Further, the rules of appellate procedure specifically provide that, if a case is submitted to a panel and one of the panel members can no longer participate in deciding the case for any reason (such as expiration of a justice's term before a proposed judgment and its accompanying opinion issue), and the remaining two justices cannot agree on a judgment, it is appropriate for the chief justice to convene the court en banc to consider the case.^{11 11 11}

11 This is particularly appropriate when, as here, (1) contrary to the rules of appellate procedure and our administrative rules, a panel member objects to another justice taking the place of the former justice on the panel, (2) a panel member attempts to issue a proposed panel opinion with a former justice's vote forming the majority, and (3) at least six other members of the court expressed concern with the merits of the proposed opinion.

11 The Clean Team Agreement does not contain a forum-selection clause but instead provides that it is a "supplement" to the Confidentiality Agreement.

11 On this issue, I part company with Justice Carlyle's dissent. Under his analysis, the relevant jurisdictional contacts are those surrounding the improper means used to acquire the access to trade secrets. And further under Justice Carlyle's analysis, a person who knew of the improper means, but not that the improper means were connected to Texas, could nonetheless be haled into a Texas court based on the unilateral activity of a third party, not his own purposeful availment of the forum. I would conclude instead, based on Texas Uniform Trade Secrets Act's definition of "misappropriation" that the contacts surrounding "acquisition, disclosure, or use" of trade secret information—turning on what the person "knew or had reason to know" at the time—are dispositive. See Civ. Prac. & Rem. § 134A.002(3) (defining "misappropriation"). My analysis, in contrast to Justice Carlyle's, focuses on the nonresident's acts by which he acquired, disclosed, or used trade secret information, and the connection of those acts to Texas. Here, because Saidara downloaded the trade secrets from the clean room on his computer in California, the relevant acquisition, disclosure, or use of the information occurred in California, not Texas.

I acknowledge that in certain cases the process of considering the case may take longer than desired. If the delay was the result of intentional, nefarious conduct, rather than the process of considering and disagreeing about issues in the case, it might be cause for complaint.

Contrary to Justice Schenck's assertions and inferences otherwise, that is not the situation presented in this case. This case proceeded like many others over the years. Once the panel had settled onto the proposed majority and dissenting opinions, those opinions were circulated to the full court for review and comment. That review and comment period is essential to ensuring our justices are familiar with the precedent being established by the hundreds of opinions we issue annually. This review process allows the Court as a whole to consider a minority view before the majority opinion issues and prevents non-panel members from being disenfranchised from opinions that are binding on the entire Court. That is the intent and the effect of the appellate and administrative rules that guide our Court.

In sum, there is much in Justice Schenck's lengthy opinion that deserves "unraveling," but in the interest of brevity, I have focused on what I perceive to be the most important points. This case has been handled in accordance with our rules and practices. There was nothing unconstitutional about the process, and certainly nothing nefarious or underhanded. Giving Justice Schenck the benefit of the doubt, he simply misunderstands the rules.

JJ., Myers, Molberg, Osborne, Partida-Kipness, Reichek, Nowell, Carlyle, Goldstein, Smith, and Garcia, joining.

CONCURRING OPINION

Opinion by Justice Schenck

I concur in the majority's decision to affirm the trial court's order granting the special appearance of a defendant against whom no plaintiff has pled to have committed any tort in Texas. My opinion that follows is comprised of two distinct parts, merits in Part I and supplement in Parts II, III, and IV. In the first part, I explain my concurrence with the majority's analysis of the merits of this case. In the second part, I acquit myself of my ethical and constitutional obligations to the parties to disclose to them my concerns about the process by which this en banc decision was reached.

PART I: THE MERITS

I agree, for the most part, with the majority's reasoning regarding the scope of appellate review of the record of a special-appearance ruling in harmony with rules of civil procedure and controlling supreme court authority. However, I believe the majority's interpretation to be too strict in it that it would appear to restrict the trial court from admitting evidence presented at the hearing in support of the exercise of jurisdiction without a particularized, supporting pleading. Further, even if the plaintiffs had met their burden to plead and prove sufficient allegations to bring the defendant within the provisions of the Texas long-arm statute, I would conclude the exercise of jurisdiction over Saidara would offend traditional notions of fair play and substantial justice.

Moreover, I write to address arguments raised in dissenting and concurring opinions. In spite of our directive to affirm on any meritorious ground supported by the record, the dissenting justices would conclude the trial court has jurisdiction over a defendant no plaintiff has shown to have committed any tort in Texas. I disagree with that conclusion and with my colleagues' reasoning, which both imposes a burden to negate an allegation that is not present at the time the special appearance must be filed and expands the scope of appellate review of the record of a special-appearance ruling in conflict with rules of civil procedure and controlling supreme court authority. Additionally, some of the dissenting justices engage in what I view as an unnecessary discussion of the fiduciary shield doctrine.

I. Scope of Review of Trial Court's Special Appearance Ruling Includes Pleadings and Evidence

The majority focuses on the adequacy of the pleadings and the burdens of the parties in a special appearance, which raise what I believe to be the appropriate preliminary matter to address: the scope of our review.

The Texas long-arm statute permits a court to compel the appearance of a non-resident defendant if he or she: (1) commits a tort in whole or in part in this state; (2) contracts with a Texas resident for either party to perform a contract in whole or in part in this state; or (3) recruits Texas residents for employment. See TEX. CIV. PRAC. & REM. CODE § 17.042. Since the supreme court's decision in Moki Mac River Expeditions v. Drugg , the respective burdens and method of proof have been clear. 221 S.W.3d 569, 574 (Tex. 2007). The defendant bears the burden of negating all factual allegations in the petition that would support the exercise of jurisdiction. Id. The plaintiff may then introduce evidence to support its allegations. See TEX. R. CIV. P. 120a(3). Where there is no allegation, there is no duty to negate. See Moki Mac , 221 S.W.3d at 574. An allegation coming from outside the plaintiff's pleadings is insufficient to create a duty to negate. See id. While the plaintiff may make additional allegations and introduce evidence at the resulting hearing, an allegation, unsupported by actual proof or any corresponding duty to negate by the opponent, is just that—an allegation.

In their petition, Steward Health and Southwest General alleged:

Saidara visited Texas in connection with the sale of Southwest General's assets and participated in numerous communications (both electronically and telephonically) with counterparties in Dallas during which he misrepresented Prospect's

intention to purchase Southwest General.¹

In his special appearance, Saidara challenged the sufficiency of the jurisdictional allegations in the petition.

The majority concludes the allegations here are insufficient and that we may not look to the response to Saidara's special appearance. I agree. However, where I disagree is with any implication that we would ignore any evidence the plaintiffs brought forth to support any additional allegations in their response.

In her concurring and dissenting opinion, Justice Osborne concludes the allegations here are sufficient but that even if they are not, we may look to the response to Saidara's special appearance, in which Steward Health and Southwestern General allege Saidara not only traveled to Texas but that he "also engaged in many telephonic and electronic communications with individuals in Texas regarding the transaction" and that "[d]uring his visit to Texas and his other communications with parties in Texas, Saidara made misrepresentations to Plaintiffs, which form a material part of Plaintiff[s'] fraud claim." (Emphasis added.) Thus, according to this concurring and dissenting opinion, Steward Health and Southwestern General alleged that Saidara committed a tort in Texas. Critically, however, this concurring and dissenting opinion does not even suggest, much less explain, how Saidara had an obligation to negate an allegation that was not present when he was obliged to file his special appearance.

Although Steward Health and Southwest General's response included the more detailed allegations about Saidara's communications, it did not include any additional evidence to support these more detailed allegations. And, the parties do not contend that the hearing conducted on Saidara's special appearance was an evidentiary hearing. See Michiana Easy Livin' Country, Inc. v. Holten , 168 S.W.3d 777, 783–84 (Tex. 2005) (declining to presume special-appearance hearing was evidentiary when parties conceded that it was not). While the trial court was free at the hearing to consider allegations if it wanted, its decision and ours turn on proof and presumptions.

The majority overrules prior decisions of this Court to quite properly conclude that Rule 120a does not permit considering jurisdictional "allegations" made in a document captioned "response." See, e.g., Jani-King , 2016 WL 2609314, at *4 ; see, e.g., Invasix, Inc. v. James , No. 05-19-00494-CV, 2020 WL 897243, at *4 (Tex. App.—Dallas Feb. 25, 2020, no pet.) (mem. op.) ("[W]e have held the plaintiff's original pleading as well as its response to the defendant's special appearance can be considered in determining whether the plaintiff satisfied its burden."); Munz v. Schreiber , No. 14-1700687-CV, 2019 WL 1768590, at *5 n.4 (Tex. App.—Houston [14th Dist.] Apr. 23, 2019, no pet.) (mem. op.) (considering pleadings and special appearance response); N. Frac Proppants, II, LLC v. 2011 NF Holdings, LLC , No. 05-16-00319-CV, 2017 WL 3275896, at *2 (Tex. App.—Dallas July 27, 2017, no pet.) (mem. op.) ("We draw these allegations from plaintiffs' live petition and their trial court brief opposing defendants' special appearance.").

In contrast, Justice Osborne relies on language from a prior decision of this Court to conclude that Rule 120a contemplates considering jurisdictional "allegations" made in a document captioned "response." See, e.g., Jani-King Franchising, Inc. v. Falco Franchising, S.A. , No. 05-15-00335-CV, 2016 WL 2609314, at *4 (Tex. App.—Dallas 2016, no pet.) (mem. op); see, e.g., Invasix , 2020 WL 897243, at *4 ("[W]e have held the plaintiff's original pleading as well as its response to the defendant's special appearance can be considered in determining whether the plaintiff satisfied its burden."); Munz v. Schreiber , No. 14-1700687-CV, 2019 WL 1768590, at *5 n.4 (Tex. App.—Houston [14th Dist.] Apr. 23, 2019, no pet.) (mem. op.) (considering pleadings and special appearance response); N. Frac Proppants, II, LLC v. 2011 NF Holdings, LLC , No. 05-16-00319-CV, 2017 WL 3275896, at *2 (Tex. App.—Dallas July 27, 2017, no pet.) (mem. op.) ("We draw these allegations from plaintiffs' live petition and their trial court brief opposing defendants' special appearance.").

The question raised by the majority's interpretation is what role those allegations play in the special appearance decision if they are supported by evidence or subject to the burden to negate them? The question posed by Justice Osborne's interpretation is what role those allegations play in the special appearance decision if they are not supported by evidence or subject to the burden to negate them?² Of course, we could not conclude a defendant had the burden to negate unsupported allegations made only in a plaintiff's response and not his or her pleading.³ Any such decision would run counter to supreme court authority. See Moki Mac , 221 S.W.3d at 574.

Moreover, such a decision would be inconsistent with the express language of the rule itself, which does not provide that jurisdictional allegations contained solely in a document captioned "response," standing alone, will suffice. The rule provides:

The court shall determine the special appearance on the basis of the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, and any oral testimony.

TEX. R. CIV. P. 120a(3).

Indeed, the Texas Supreme Court held, "Because the plaintiff defines the scope and nature of the lawsuit, the defendant's corresponding burden to negate jurisdiction is tied to the allegations in the plaintiff's pleading ." Kelly v. Gen. Interior Constr., Inc. , 301 S.W.3d 653, 659 (Tex. 2010) (emphasis added). The supreme court further clarified our scope of review:

While the pleadings are essential to frame the jurisdictional dispute, they are not dispositive. Rule 120a requires a special appearance to be made by sworn motion, TEX. R. CIV. P. 120a(1), and also requires the trial court to "determine the special appearance on the basis of the pleadings, any stipulations made by and between the parties, such affidavits

and attachments as may be filed by the parties , the results of discovery processes, and any oral testimony ," TEX. R. CIV. P. 120a(3). Even so, this additional evidence merely supports or undermines the allegations in the pleadings.

Id. at 658 n.4 (citing TEX. R. CIV. P. 120a ) (emphasis added).

As reflected above, the rule clearly contemplates consideration of—and the supreme court further underscored we must consider—things other than just the pleadings, namely, evidence. See id. Evidence is typically attached to a special appearance response. Our own decision in Golden Peanut, Co. LLC v. Give & Go Prepared Foods Corp. , No. 05-18-00626-CV, 2019 WL 2098473, at *4 (Tex. App.—Dallas May 14, 2019, no pet.) (mem. op.), touched on this notion:

Because the plaintiff defines the scope and nature of the lawsuit, the defendant's corresponding burden to negate jurisdiction is tied to the allegations in the plaintiff's pleading .... While rule 120a requires the trial court to determine the special appearance based on the pleadings and certain specified evidence, this additional evidence merely supports or undermines the allegations in the pleadings.

Id. (emphasis added).

Thus, when courts determine a special appearance, the rule instructs that they consider pleadings, stipulations, affidavits and attachments, discovery and any oral testimony. See TEX. R. CIV. P. 120a(3). A response to a special appearance is not a "pleading." See TEX. R. CIV. P. 45 (defining "pleadings" to include petition and answer); see also In re SAP , 156 S.W.3d 574, 576 n.3 (2005) ; Jobe v. Lapidus , 874 S.W.2d 764, 765–66 (Tex. App.—Dallas 1994, writ denied) ; Eidson v. Perry Nat'l Bank , 278 S.W.2d 556, 557 (Tex. App.—Waco 1955, no writ) (pleadings define the issues to be tried and are distinguished from evidence). But it is a mechanism for introducing affidavits and discovery, which is contemplated by the rule. It is obviously impossible for the defendant to carry the burden to "negate" an allegation that has not been lodged. At the same time, however, the plaintiff has the right to introduce all evidence within the range of "relevance" to the existing pleading. To the extent a wholly new claim or theory would require a pleading, the plaintiff obviously should be required, subject to liberal leave standards to amend.

Accordingly, while I agree with the majority's conclusion that unsupported allegations within a response to a special appearance cannot support a finding of jurisdiction, I would permit a trial court to consider any actual evidence attached to a response or that is otherwise actually presented by the plaintiff to the trial court subject to any objection of surprise and/or request for continuance.

On the other hand, Justice Osborne would perpetuate the imprecise application of the rule, claiming that to determine whether a plaintiff has met its initial burden to plead sufficient allegations to invoke jurisdiction over a nonresident defendant under the Texas long-arm statute, an appellate court looks at the jurisdictional facts pleaded in its petition, as well as the jurisdictional facts alleged in its response to the nonresident defendant's special appearance. But again, the response is only the vehicle through which the plaintiff introduces evidence to support jurisdiction once the burden shifts back to the plaintiff. See Kelly , 301 S.W.3d at 659 & n.6. As the response contained no evidence that Saidara committed any tort, much less one "in Texas" and the pleadings contained no such allegation that Saidara was under a duty to negate, the trial court cannot be reversed on this basis.⁴

Curiously, Justice Osborne adopts an inconsistent attitude towards the response to the special appearance—as apparently within the duty to negate matters raised by the pleadings though absent from the pleadings—and the trial court's ability to consider the content of the actual pleadings themselves.⁵ Steward Health and Southwest General's petition referenced a Clean Team Agreement, which expressly authorized officers and high-level employees of Prospect Medical—including Saidara—to view sensitive materials for Prospect Medical's use in evaluating the proposed transaction, prohibited the unauthorized sharing or dissemination of such materials, and restricted their use of the sensitive information to the purposes permitted by a mutual non-disclosure and confidentiality agreement (Confidentiality Agreement). Saidara attached a copy of the Clean Team Agreement to his special appearance. The Clean Team Agreement specifically referred to the Confidentiality Agreement. The Confidentiality Agreement contained a forum-selection clause providing for disputes to be submitted to and decided by courts in Massachusetts.⁶ According to Justice Osborne, however, our review does not include the Confidentiality Agreement because it was attached to the answer filed by Saidara's employer and co-defendant, Prospect Medical, though it was not resubmitted as an attachment to Saidara's own answer.⁷

Turning to the text of Rule 120a again:

The court shall determine the special appearance on the basis of the pleadings , any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, and any oral testimony.

TEX. R. CIV. P. 120a(3) (emphasis added). Nowhere within this rule are the "pleadings" (plural) limited to the plaintiff's petition or the answer filed by the defendant who files a special appearance. Further, nothing in the trial court's order indicates the trial court so limited its own review. Instead, the order states, explicitly, that its ruling is "[ b ]ased on the parties' [again plural ] pleadings and the declaration submitted by Defendant Frank Saidara." Accordingly, I would conclude the scope of our review includes all pleadings, including the co-defendant Prospect Medical's answer and the attached Confidentiality Agreement with its Massachusetts form-selection clause. See, e.g., Retzlaff v. Tex. Dep't of Crim. Justice , 135 S.W.3d 731, 737 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (reviewing court presumes trial court looked at all pleadings in reaching its conclusion).

II. Reviewing the Record Set Forth by Rule 120a, I Would Affirm the Trial Court's Ruling

A. I Would Be Hard-Pressed to Conclude Saidara's Activities Were Purposefully Directed toward Texas

As discussed above, the appellate scope of review begins with the allegations made in the petition:

Saidara visited Texas in connection with the sale of Southwest General's assets and participated in numerous communications (both electronically and telephonically) with counterparties in Dallas during which he misrepresented Prospect's intention to purchase Southwest General.

The foregoing clearly establishes two allegations Saidara was required to negate: (1) he visited Texas; (2) he participated in numerous communications (both electronically and telephonically) during which he misrepresented his employer's intention to purchase Southwest General. Justice Osborne would interpret the petition to allege that while visiting Texas Saidara engaged in misrepresentations, and, concomitantly, that Saidara would have been obliged to so read and negate it. The sentence structure does not support such an interpretation. Nor does the parenthetical that describes the communications as both electronic and telephonic. Further, although Steward Health and Southwest General amended their petition the day before filing their response, they did not change the sentence quoted above and instead only added the following sentence: "Saidara's communications were intentional and were directed to Steward in Texas." If anything, this addition only confirms the plain reading of the original petition. If the petition, amended or otherwise, alleged a misrepresentation while in Texas, which it does not, how could such misrepresentations not be "directed towards Steward in Texas," and why would it be necessary to so allege, if it was made while he was physically present?

Justice Osborne cites the rules of civil procedure to support a liberal construction of the petition so as to perform substantial justice, without explaining how the trial court could have erred in reading the petition in keeping with its language and its resulting decision. However, Rule 45's direction is to construe "all pleadings ... so as to do substantial justice." Pleadings include both the petition and the answer and thus Rule 45's direction is not to liberally construe a plaintiff's allegation but instead to construe all of the pleadings so as to do substantial justice to all parties.

Additionally, although Justice Osborne interprets the allegations in the response as clarifying the allegations made in the petition, as discussed above, such "clarification" is fine so far as it goes, but insofar as it is said to trigger a presumption and a duty to negate on Saidara's part, it is contrary to multiple supreme court decisions, and is not part of the scope of our review, which is limited to the pleadings and evidence reviewed by the trial court. See Moki Mac , 221 S.W.3d at 574 ; Kelly , 301 S.W.3d at 659.

In his special appearance, Saidara urged the trial court cannot exercise specific jurisdiction because (a) the alleged activities supporting the claims against him occurred while Saidara was in California acting in the course of his employment with Prospect Medical, (b) all of his alleged wrongful acts were in connection with his employment so he is protected by the fiduciary shield doctrine, and (c) "[Steward Health and Southwest General] have failed to plead any purposeful (wrongful) activities by Saidara originating in Texas." Attached to Saidara's special appearance were his declaration and the Clean Team Agreement.

In his declaration, Saidara declared that he is a resident of California and works at Prospect Medical's offices in California, he does not regularly conduct business in Texas, he traveled to Texas one time in connection with Prospect Medical's due diligence for the proposed transaction, he was a member of the clean team and had access to the information contained in the virtual clean room, all of his activities in the clean room were in compliance with the terms of the Clean Team Agreement and for legitimate purposes related to the proposed transaction, and at the time he allegedly inappropriately downloaded confidential information or trade secrets he was located in California.

Generally, telephone calls and correspondence as activities directed at the forum state are insufficient to establish purposeful availment. See, e.g., Fried, Frank, Harris, Shriver & Jacobson, LLP v. Millennium Chems., Inc. , No. 05-16-01132-CV, 2017 WL 3276010, at *6 (Tex. App.—Dallas July 31, 2017, pet. denied) (mem. op.) (contacts through telephone and email communications insufficient to demonstrate purposeful availment); KC Smash 01, LLC v. Gerdes, Hendrichson, Ltd., L.L.P. , 384 S.W.3d 389, 393–94 (Tex. App.—Dallas 2012, no pet.) (same); Ahrens & DeAngeli, P.L.L.C. v. Flynn , 318 S.W.3d 474, 479, 484 (Tex. App.—Dallas 2010, pet. denied) (mem. op.) (same); see also Holten , 168 S.W.3d at 791. As the Texas Supreme Court has noted, "changes in technology have made reliance on phone calls obsolete as proof of purposeful availment" because the phone number "no longer necessarily indicates anything about the caller's location" given that the other party may have "forwarded calls or traveled with a mobile phone." Holten , 168 S.W.3d at 791. Thus, specific jurisdiction is not necessarily established by allegations that a nonresident committed a tort in a telephone call. See id. at 791–92. For this reason, courts frequently consider "additional evidence regarding the initiator of the call, the location of the recipient, and the knowledge of the caller regarding the recipient's location [as being] relevant in establishing jurisdiction." See Yong Zhang v. Med-Towel Enters., Ltd. , No. 03-09-00457-CV, 2010 WL 1404613, at *5 n.1 (Tex. App.—Austin Apr. 8, 2010, pet. denied) (mem. op.).

Here, Saidara declared that he engaged in conversations concerning the transaction in his capacity as the vice president for Prospect Medical, and that these conversations occurred while he was outside of Texas. There is no evidence of how many calls there were, who initiated the calls, where the calls' recipients were located when the calls were received, or Saidara's knowledge of the recipients' locations. As a result, the phone call allegations do not form an adequate basis to conclude that the calls that Saidara participated in, in his corporate capacity, equate to purposeful availment.

Accordingly, I would be inclined to agree with the trial court's reading of the pleadings and its conclusion that, "Saidara has not purposefully directed any business activities toward Texas, nor has he engaged in any activities that would support the exercise of specific jurisdiction."

However, even if I were inclined to conclude otherwise, I would conclude that the exercise of personal jurisdiction over Saidara would not comport with traditional notions of fair play and substantial justice, as more fully discussed herein.

B. The Exercise of Personal Jurisdiction Over Saidara Would Not Comport with Traditional Notions of Fair Play and Substantial Justice

In all events, as more fully explained infra , due process further imposes a requirement that the assertion of jurisdiction "be consistent with traditional notions of fair play and substantial justice," and I would conclude this additional requirement controls here. See Kelly , 301 S.W.3d at 657 (quoting Int'l Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ); see also Burger King Corp. v. Rudzewicz , 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).⁸ A reviewing court typically considers fair play as it relates to the sufficiency of the defendant's forum contacts after evaluating their quality and collective sufficiency to support personal jurisdiction. In this case, however, the fair play issue is separately affected by the contract—specifically, the Confidentiality Agreement—that gives rise to the underlying claims. For that reason, I would begin with the language from the Confidentiality Agreement by which the plaintiffs alleged they were fraudulently induced to permit access to their proprietary information. That agreement was undeniably before the trial court, included in the "pleadings of the parties," cited by the court in its order under review here, and plainly within the trial court's purview under Rule 120a and our scope of review. Kelly , 301 S.W.3d at 658 n.4 ; see also, e.g., Black v. Dallas Cty. Child Welfare Unit , 835 S.W.2d 626, 631 (Tex. 1992) ; In re Estate of Guerrero , 465 S.W.3d 693, 708 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (where court does not specify basis for ruling appellate court affirms on any basis supported by record).⁹

The causes of action asserted against Saidara are fraud, misappropriation of trade secrets, unfair competition (specifically, breach of a confidential business relationship), and violation of the Texas Harmful Access by Computer Act. The allegations against Saidara are that, on behalf of his employer, he misrepresented Prospect Medical's intention to purchase the assets of Southwest General as part of the scheme to obtain Southwest General's trade secrets and other highly confidential information for tortious purposes and that his "surreptitious middle-of-the-night downloading" of the entire contents of the "clean room" was unlawful and constituted a theft of Steward Health's confidential information.

Soon after Prospect Medical approached Steward Health to express interest in buying the assets of Southwest General, Prospect Medical and Steward Health signed the Confidentiality Agreement in which they agreed they would not disclose the confidential information they learned about each other. Given this sequence of events and this agreement, the parties anticipated the risks associated with disclosing confidential information and acted to mitigate those risks and included steps to confirm how (or at least where) any dispute would be resolved. Prospect Medical included a copy of the Confidentiality Agreement as an exhibit to its special exceptions, original answer, and counterclaim.¹⁰ It provides:

16. Jurisdiction. In the event a dispute arises concerning any of the provisions of this Agreement, it shall be submitted to and decided by the Courts of the Commonwealth of Massachusetts ("Court") . Since a public hearing to enforce any of the provisions contained in this Agreement might cause disclosure of Confidential Information contrary to the intent of the Parties, the Parties hereby stipulate that, in the event there is litigation of any of the provisions in the Agreement, the Court file shall be sealed and the Court may issue [a] protective order prohibiting the disclosure of any of the Confidential Information, and limiting the disclosure of any other information obtained though discovery proceedings.

Additionally, Prospect Medical and Steward Health entered, "as a supplement to the Confidentiality Agreement ," the Clean Team Agreement, which, among other things, allowed the access that is the subject of the alleged unauthorized sharing or dissemination of the materials in the "clean room." That supplement covered any documents created that incorporated or used that sensitive information and restricted their use "solely for the purposes permitted by the Confidentiality Agreement ." Although Steward Health and Southwest General did not attach a copy of the Clean Team Agreement—or the Confidentiality Agreement—to their pleadings, their petition alleges that "before Prospect was able to access any of Plaintiffs' confidential and trade secret information, Prospect was required to enter into [the] Clean Team Agreement." Saidara included a copy of the Clean Team Agreement as an exhibit to his special appearance.

The record further reveals the only party with any stated connections to or with Massachusetts is Steward Health. Meanwhile, the Confidentiality Agreement contains a provision that requires any notices to Steward Health be directed to the attention of its general counsel in Boston, Massachusetts.

Based on the foregoing, I would conclude the parties must have reasonably expected that any litigation between them would not take place in Texas. Indeed, as noted above, the Confidentiality Agreement includes a forum-selection clause designating Massachusetts as the locus of litigation.¹¹ See, e.g., Marathon v. A.G. Ruhrgas , 182 F.3d 291, 295 (5th Cir. 1999) (suit brought by two non -signatories to contract containing arbitration clause not reasonably foreseeable to defendant to support specific jurisdiction in Texas despite multiple in-person meetings to discuss underlying project with plaintiffs, allegations of fraud to induce non-signatories funding of project from Texas, and lack of enforceability of arbitration clause as against those plaintiffs, because defendants would have reasonably expected claims to proceed in Sweden in view of arbitration clause); D'Almeida v. Stork Brabant B.V. , 71 F.3d 50, 51 (1st Cir. 1995) (indemnification suit brought by distributor of equipment produced by European manufacturer not foreseeable in Massachusetts where manufacturer sent equipment to Massachusetts on distributor's instruction but contract between distributor and manufacturer contained forum-selection clause designating Holland as forum for litigation).

Accordingly, I would conclude the record supports the trial court's conclusion "that the exercise of personal jurisdiction over [ ] Saidara would not comport with traditional notions of fair play and substantial justice."

III. Parties May Not Engage in Artful Pleading to Avoid a Contract Claim

According to Steward Health and Southwest General, the Clean Team and Confidentiality Agreements are irrelevant to the issue of personal jurisdiction over Saidara because they do not bring a claim for breach of contract and because Saidara was not a party to either agreement. However, such arguments are no more than efforts to prop up the artful pleading appellants attempted to engage in.

A party may not engage in artful pleading to avoid contractual obligations. See Jim Walter Homes, Inc. v. Reed , 711 S.W.2d 617, 617–18 (Tex. 1986) ("Although the principles of contract and tort causes of action are well settled, often it is difficult in practice to determine the type of action that is brought. We must look to the substance of the cause of action and not necessarily the manner in which it was pleaded.").

The entire substance of the claims against Saidara is that he gained access to confidential information wrongfully. Such was a foreseeable risk, so foreseeable that the parties actually agreed to the Confidentiality Agreement, which provided a provision for "jurisdiction" of "a dispute ... concerning any of the provisions of this Agreement." Additionally, Steward Health and Southwest General foresaw the risk of allowing Saidara access to highly sensitive information such that they required the Clean Team Agreement, which specifically referred to the Confidentiality Agreement.

The plaintiffs here are not the first to allege wrongful tortious injuries by defendants only to later reveal or discover their claims are covered by agreements entered into by the parties. See id. ; see also Marathon Oil Co. , 182 F.3d 291, 293 n.2 (5th Cir. 1999) (holding "Marathon Oil" not a party to arbitration agreement and unable to compel others to defend suit in Texas where facts underlying suit arose from contractual agreements calling for application of Norwegian law and arbitration in Norway).

Because the injuries alleged here are precisely the risks addressed by the Confidentiality Agreement, which contains a jurisdiction provision agreed to by the parties—and perhaps required by Steward Health, I would conclude this provision would also independently support the trial court's decision to grant Saidara's special appearance. See Black , 835 S.W.2d at 631 ("appellate courts must give effect to the intended findings of the trial court and affirm the judgment if it can be upheld on any legal theory that finds support in the evidence. If no findings of fact or conclusions of law are filed, the reviewing court must imply all necessary fact findings in support of the trial court's judgment.").

IV. Discussion of the Fiduciary Shield Doctrine Is Unnecessary

Separate and apart from the foregoing, Justice Osborne begins her analysis by addressing the fiduciary shield doctrine, a discussion I would pretermit. See TEX. R. APP. P. 47.4.

The fiduciary shield doctrine is a judicially created principle that precludes the exercise of personal jurisdiction over nonresident corporate agents or employees who are acting in the forum state in their role as corporate agents or employees. See 79 A.L.R.5th 587 (originally published in 2000). The rationale of the doctrine is that it is unfair to force an individual to defend a suit brought against the party personally in a forum where the individual's only relevant contacts are acts performed not for personal benefit but for the benefit of the employer. See id. Thus, the fiduciary shield doctrine is an exception to personal jurisdiction authority that evidence of sufficient contacts with the forum state give rise to personal jurisdiction, either general or specific. See Stull v. LaPlant , 411 S.W.3d 129, 133–34 (Tex. App.—Dallas 2013, no pet.). However, this Court and other Texas courts of appeals—although not the Texas Supreme Court—have suggested that a corporate agent can both be held liable and subject to suit (i.e., to personal jurisdiction) for allegedly committing a tort or wrong while engaged in the business of the corporate principal based on the agent's personal acts. See id. at 135 ; see also Jani-King , 2016 WL 2609314, at *4 (corporate agents alleged to be acting on their own behalf to usurp opportunity of principal).

Justice Osborne concludes the fiduciary shield doctrine does not protect an employee from the exercise of specific jurisdiction if he is alleged to have engaged in tortious or fraudulent conduct directed at the forum state for which he may be held personally liable—even if the employee's contacts with Texas were performed in a corporate capacity. However, this exception to the fiduciary shield doctrine begs the question: when would a corporate agent not be personally liable for actions his employer directs toward the forum state? Corporations do not have a corporeal existence and can only act through their agents. This "exception to the exception" appears to eviscerate the fiduciary shield doctrine and render it meaningless. Every allegation of a corporate tort would subject at least one individual to a personal capacity suit in a distant forum. While the notion of an employee being subject both to suit and to potential liability in such a forum makes sense to me where the employee is not only acting as an agent but on his own behalf, I do not believe this is the appropriate case even to address that question. Accordingly, I cannot agree with Justice Osborne to reach this holding.

V. Conclusion on the Merits

Because I agree with—but find too restrictive—the majority's reasoning and because I would conclude the exercise of jurisdiction over Saidara offends traditional notions of fair play and substantial justice, I concur in the majority's decision to affirm the trial court's order granting Saidara's special appearance.

PART II: PROCESS CONCERNS

I find myself in the unenviable position of being legally and ethically compelled to disclose to the parties my objections to irregularities in the process by which this case was decided. Because these irregularities could readily affect the positions and the rights of the parties before us and have already resulted in inordinate delay in the disposition of this matter, I am obligated to take appropriate action, including the following limited discussion of that process that in my view is necessary to permit the parties to pursue any relief they consider expeditious and appropriate. I will first briefly explain what I believe to be the source of this obligation.

Parties who appear before us are entitled to be heard and to have their cases decided in accordance with the governing rules. This is the irreducible minimum and tautological essence of "due process." The rules by which cases are heard and decided are not a matter of convenience or individual discretion, but a matter of law by which judges, no less than litigants, are obliged both to know and to follow. Mo. Pac. R.R. Co. v. Cross , 501 S.W.2d 868, 872 (Tex. 1973) (rules of procedure "have same force and effect as statutes"). Departures from the governing rules may be the innocent product of confusion, where they are not recurring, or may be the subject of good-faith debate over their proper interpretation or application. Nevertheless, where a court departs from the rules, it literally denies the parties of the process that is "due" and, concomitantly, their right to be heard in accordance with the law. Whether a judge who becomes aware of such a departure is obliged to disclose it to the parties, or take some other action, is a potentially complicated question that may depend on, among other things, the nature of the departure, the posture of the case, and the practical ability to remedy any harm without unreasonable delay. E.g. , TEX. CODE OF JUDICIAL CONDUCT Canon 1 ("A judge should participate in ...enforcing high standards of conduct....").

The Due Process Clause of United States Constitution and the Due Course of Law Guarantee of the Texas Constitution assure litigants in Texas courts that their matters will be decided not only by a judge who is in fact impartial, but who would be perceived as such by a reasonable person with knowledge of the circumstances. Because "[b]ias is easy to attribute to others and difficult to discern in oneself ... [due process] precedents apply an objective standard that, in the usual case, avoids having to determine whether actual bias is present." Williams v. Pennsylvania , 579 U.S. 1, 136 S. Ct. 1899, 1905, 195 L.Ed.2d 132 (2016) ("Both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself."); Caperton v. A.T. Massey Coal , 556 U.S. 868, 872, 881, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) (inquiry turns not on subjective intent, but objective appearance).

Accordingly, judicial action, whether innocently conceived and fairly intended or not, that would nevertheless cause a reasonable, objective observer to question whether the tribunal is "hold[ing] the balance, nice, straight and true" is unconstitutional. In re Murchison , 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). "Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way justice must satisfy the appearance of justice." Id. (internal quotation omitted). Obviously, that due process concern applies to appellate justices and tribunals as well. Williams , 136 S. Ct. at 1905 ("A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias demeans the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part."). Thus, my duty to uphold and defend the constitution forbids me to acquiesce or to appear complicit in a process that I understand to violate it and compels me to take corrective action. E.g., Grutter v. Bollinger , 288 F.3d 732, 814 n.49 (6th Cir. 2002) (Boggs, J., dissenting) ("Legitimacy protected only by our silence is fleeting.").

As a due process violation may arise either where a judge is acting within the rules governing his or her actions, as with the lawful acceptance of campaign contributions in Caperton, or where he or she acts in contravention of them, I find it inescapable to avoid the conclusion that judicial actions that are both contrary to those rules, but concealed from the parties, and that could, regardless, give rise to a due process problem would compel a judge with knowledge of the problem to take appropriate action by seeking correction internally and, where that fails, by disclosure. E.g. , JUDICIAL CONDUCT Canons 1, 2A, 3B(2), (8) & D. Because the process in this case departed from the rules, as I understand them, and the manner in which these departures took place could create in the mind of the reasonable, objective observer serious questions as to the impartiality of the tribunal, I need not decide whether either irregularity, standing alone, would require disclosure to the parties. Doing so at this stage is the only way to provide the parties with the information necessary so that they might seek relief without still further delay and by which I might discharge the constitutional and ethical obligations incumbent upon me as a judicial officer.

Out of an abundance of caution I will, at this stage, detail only those facts I regard as essential to explain the problem.¹²

12 I am aware not only of my obligations to the parties and to take appropriate action, but also of Judicial Conduct Canon 3B(11) ("A judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity. The discussions, votes, positions taken, and writings of appellate judges and court personnel about causes are confidences of the court and shall be revealed only through a court's judgment, a written opinion or in accordance with Supreme Court guidelines for a court approved history project.").

A. This Accelerated Appeal Was Unreasonably and Improperly Delayed Before This En Banc Reconsideration Proceeding

This interlocutory appeal is "accelerated" as a matter of law. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (a)(7) ; TEX. R. APP. P. 28.1(a). By rule, the appellant has 20 days to perfect the appeal and the parties' expected briefing cycle is shortened to 60 days. See TEX. R. APP. P. 38.6. The parties' last brief in this case was filed on June 11, 2019, and the case was submitted with oral argument on October 2, 2019. The parties were provided notice of en banc submission on February 8, 2021.

The rules contemplate either of two methods of submission for an initial "decision" that take on relevance only with respect to those courts, like this one, with more than three assigned justices. See id. 41. While a court may under extraordinary circumstances undertake the original submission before its full, en banc membership, the governing rules provide, "unless a court of appeals ... votes to decide a case en banc , a case must be assigned for decision to a panel of the court consisting of three justices." Id. 41.1 (emphasis added). Except as permitted by the same rules, "the panel's opinion constitutes the court's opinion, and the court must render a judgment in accordance with the panel opinion." Id.

"While the court has plenary power, a majority of the court may, with or without a motion [for reconsideration], order en banc reconsideration of a panel opinion." Id. 49.7 (emphasis added). A decision to reconsider a panel decision will in turn extend the court's plenary power and a concomitant delay in issuance of its mandate, although the mandate may issue with the judgment in an accelerated appeal. See id. 18, 19. Alterations of panel composition after the issues are known, and particularly after the justices' positions have been announced, raise their own due process concerns. E.g. , Brown & Lee, Neutral Assignment of Judges at the Court of Appeals , 78 TEX. L. REV. 1037, 1099 (2000) ; see also In re Union Carbide , 273 S.W.3d 152, 157 (Tex. 2008) (practices that "subvert random assignment procedures breed disrespect for and threaten the integrity of our judicial system").

This case, like virtually all others, was submitted to a panel of three justices who, as I understand it, should be randomly drawn and decide the case in accordance with the constitution, the rules of appellate procedure, the case's accelerated posture, and the panel's conference following the argument. In my view, that did not happen here. The three panel members included myself, a second panel member who stood for re-election on November 3, 2020 and whose term of office ended at midnight December 31, 2021, and a third justice.

After hearing oral argument on October 2, 2019, and conducting a conference, authorship of the panel decision was assigned to the third justice on our panel. More than 10 months later, a draft panel opinion was circulated with a result contrary to the one discussed at conference.¹³ This event immediately prompted a further conference that took place on September 1, 2020, during which the author agreed to consider certain material revisions. However, it was not until November 6¹⁴ that the then-authoring Justice responded to the questions raised in the September 1 conference.¹⁵ This prompted further email exchanges in mid-November that finally confirmed, on November 23, 2020, that a new majority opinion would be necessary. That opinion was circulated to the panel and approved for "issuance" by a majority on December 9, 2020, and is in keeping with Part I of this opinion.¹⁶ A dissent within the panel was also finalized well before December 31, 2020.

13 That a justice would take 10 months to produce a draft opinion is not necessarily extraordinary in and of itself.

14 The second panel member did not prevail in his bid for re-election.

15 Admittedly, my own error in mis-recording an electronic vote to approve the then-recirculated opinion may have contributed to one week of this delay in November.

16 As noted below, justices and panels do not "issue" opinions; they author and approve them. The Clerk simply gives "notice" of that decision. Thus, after the second panel member approved the majority opinion on December 9, 2020, there was nothing more for him to do. The term "issuance" in our parlance appears to be based in our internal operating procedures, which as further noted simply allow any justice to request en banc reconsideration. Nothing in those procedures purports to authorize delay in notice of the panel decision to the parties in conflict with rule 41.1.

I will not fully detail the events transpiring between December 9 and the expiration of second panel member's term of office.¹⁷ At this stage (and subject to directive from a higher court), I will only note that a reasonable, objective observer having full knowledge of those events could conclude that justices of the Court first sought to delay and, thereafter, obstructed the release of the opinion to the parties. That obstruction came from a justice outside the panel in the form of electing to record a vote requesting a two-week study, which was cast late in the day of December 29, and was only confirmed, despite my objection to the delay and appearance concerns, on the afternoon of December 31—far too late to permit recourse to the en banc conference to rectify. It is my understanding that this latter effort was contrary to the rules of appellate procedure and this Court's internal operating procedures, and, in all events, undertaken with knowledge of the age of the case, and that doing so would obstruct the clerk's release of the opinion and create, at a minimum, legal issues and the appearance of attempting to manipulate the panel result by substituting a new member.

17 For reasons set forth hereafter, including requests by several my colleagues for further detail of events that involve them, I have provided a supplement below.

As I understand them, the rules of appellate procedure and the Texas Constitution require that a decision by a panel should be handed down promptly after submission as the decision of the Court by the justices duly authorized, randomly assigned, and participating in the ultimate decision. Likewise, no internal operating procedure of this Court purports to authorize what transpired here or to obstruct the panel majority's right to hand down its decision at any time once it has been approved by a majority. Nor could they. TEX. R. APP. P. 1.2 (forbidding contrary local rules and practices), 41.1 ("except as provided in these rules , a panel's opinion constitutes the court's opinion").

Justices, of course, do not "issue" decisions or any other orders. They sign or join opinions, in ink or electronically, and the clerk's office simply provides notice of them in accordance with the rules at some point thereafter. TEX. R. APP. P. 12.6. Insofar as panel "decisions" are concerned, once two or more justices have agreed on the judgment, the case is "decided." Id. 41.1.¹⁸ Any delay in the clerk's giving notice, by mistake, panel assent to the delay, or some internal obstacle, does not affect the validity of the decision. See, e.g., Law Offices of Robert D. Wilson v. Tex. Univest-Frisco, Ltd. , 291 S.W.3d 110, 113 (Tex. App.—Dallas 2009, no pet.) ; see also TEX. R. CIV. P. 306a. In fact, under the rules, appellate opinions do not "issue" at all; the court's mandate "issues" long thereafter, affording the parties and the court alike with the full and transparent opportunity to seek further review, en banc or otherwise in the interim. TEX. R. APP. P. 18.1. Were it otherwise, the constitutional judicial office would be compromised and subject to retroactive abolition.¹⁹ E.g., State v. Sink , 685 S.W.2d 403, 403 n.1 (Tex. App.—Dallas 1985, no writ) (per curiam) (treating justice's participation and vote on completed opinion during and through end of judge's constitutional term of office as valid despite release to the parties coming after expiration of term); see also In re Castillo , 201 S.W.3d 682, 685 (Tex. 2006) (confirming justice's full right to vote through end of term).

18 Our internal operating rules merely authorize a member of the Court to request an en banc conference before the opinion has been issued to the parties. Whether the opinion functions as a decision of the Court is governed by rule 41.1 and the will of the majority according to its plain language.

19 I am aware of instances involving the death of a justice prior to that justice's decision or release thereof to the parties. I am also aware that justices may sometimes "change their minds" about a previous decision. A justice may indeed change his mind after a decision "issues" to the parties and seek rehearing or reconsideration en banc. That, of course, would have no effect on a decision that was already made, that is, unless and until a different decision is approved later. And while one might wonder whether a deceased justice might have "changed his mind," we need not speculate here as to whether the second panel member might have done so.

In all events, the concern here is not only the proper construction of the rules or this Court's operating procedures, but rather the obvious due process concerns arising from the facts. If any member of the Court disagreed with the panel opinion, there were established, legal avenues available to express that disagreement in a transparent fashion. For example, every opinion of the Court is subject to any member's request for en banc reconsideration and any disagreement with the panel's decision could be expressed through that process, including by dissent, if necessary. See O'Connor v. First Court of Appeals , 837 S.W.2d 94, 97 (Tex. 1992). Thus, it was known that delaying release of the panel's decision to the parties could serve only to create circumstances in which substitution of panel membership—and hence concomitant potential change in the result between the litigants—appeared to be intended by any justice embracing a contrary understanding of the rule regarding efficacy of a recorded decision. As it would happen, no member of the Court requested en banc reconsideration prior to the expiration of the second panel member's term of office. Instead, an attempt was made to substitute a justice on the panel who would later cast a contrary vote.²⁰

20 As noted supra n. 17, further details of this Justice's participation have been requested and are set forth in a supplement below.

Before going further, I will note that I am aware of no prior case²¹ in this or any other appellate court, in which the release of the panel decision was delayed against the will of the majority or, more critically, where the actor (or actors) precipitating it was aware that the delay would coincide with a pending end of term and would engender controversy and appearance concerns over a possible change in result.

21 See infra n.29.

B. A Reasonable Observer Could Conclude that the En Banc Reconsideration Not Only Further Delayed Our Disposition, But Had the Effect, Intended or Not, of Obscuring or Concealing Efforts to Manipulate the Result Before the Panel

No request for en banc reconsideration came for two weeks following the expiration of the second panel member's term of office. Instead, as noted, an attempt was made to substitute a new justice and vote that would have brought a different result on the assumption that the second panel member's participation in the prior panel decision and vote could be retroactively negated.

On January 12, I requested that the Court release the panel opinion to the parties with any justice interested in pursuing reconsideration, or expressing their opinion, being freely able to do so, pointing to rule 41's provision that the "panel's opinion constitutes the court's opinion, and the court must render judgment in accordance with the panel opinion" and to the prior precedent of this Court confirming the validity of the second panel member's previous vote, notwithstanding the expiration of that justice's term of office prior to the release of the opinion.²² State v. Sink , 685 S.W.2d 403, 403 n.1 (Tex. App.—Dallas 1985, no writ) (per curiam).

22 At all times relevant, Sink was binding authority, and any attempt to retroactively overrule its rule at this stage would cast a further and longer shadow over our existing appearance problems. Regardless, Sink appears to acknowledge the obvious constitutional reality that the choice of whether to participate in a decision during his or her tenure belongs to the judge, and where the decision has been made and recorded, it cannot be retroactively abridged. The fact that Sink was issued as a per curiam opinion is irrelevant to its explicit recognition of the signing justice's right to participate in the decision. Likewise, recognition of a justice's decision obviously does not depend on whether another justice has dissented. In fact, the existence of a dissent only makes its recognition more critical to maintain the appearance that the case has been decided by an impartial process.

On January 14, after receiving what I perceived as an inapposite response, I directed the Clerk of the Court to issue the opinion absent explicit contrary direction from the Chief Justice. The Clerk received that direction from the Chief Justice that same morning. The first request for "review" by the Court sitting en banc did not come until later that afternoon. That request was then urged, retroactively, as a basis for withholding release of the panel decision.²³ The Court's actual decision to proceed en banc was apparently not made until February 8, when that decision was made known via a letter to the parties. See TEX. R. APP. P. 12.7.

23 The substitute justice voted in favor of the dissent only after voting on the request for en banc "review."

The question of whether the parties would be notified of the panel's opinion next arose at an administrative conference. Out of an abundance of caution, I will say only that a majority of the Court refused to permit a record of their vote with respect to the question of whether the parties or the public should be permitted to see the panel decision.²⁴

24 As detailed below, this administrative conference was reconvened after internal circulation of this opinion and over my objection to any linkage of it to the parties' rights in this case, including their right to a decision.

To my knowledge, no prior panel decision of this Court has previously been withheld from the parties over the will of the panel majority and no duly recorded vote of a justice who fully participated in a decision has been eviscerated in the manner involved here.

Of course, the issue here is not whether a good-faith rationale prompted the delay in releasing the panel opinion in December, including "study" of a possible en banc request. It is not even whether the result in this case was subject to reconsideration by the en banc court. As it stands, however, even the question of whether we are convened for reconsideration or asking the parties to accept that we did not in fact arrive at a panel decision, remains somewhat unclear. Engaging in "re consideration" of the panel decision, which is plainly permitted under the rules, would require acknowledging the obvious—that this case was submitted to and "decided" by the panel, but with the result withheld from the parties and the public.

Ignoring the due process concerns surrounding how that happened, the why question lingers: what authority would authorize a single member of the Court or the Court itself to hinder release of the panel opinion to the parties in the interim, and certainly before (1) the request for a poll was even made; (2) or the Court entered an order to convene en banc on February 8. While I accept that a panel may (and often will) decide to refrain from releasing its decision pending an en banc poll or decision, that did not happen here. Moreover, no authority suggests that the en banc court could suppress release of the original panel opinion (and "decision"). Rule 41.1's controlling, exclusive language, provides the contrary, presumably to avoid problems such as this. Id. ("Except as provided in these rules , ...").

On the other hand, if we are asking the parties to pretend that that the original submission and decision never happened and that this case is still submitted for an initial decision, the problem becomes only more acute. We would be left with the even more uncomfortable question as to why any justice would have sought to delay release of the opinion in order to "study" a possible en banc proceeding whose only purpose would be to rectify the Court's inability to arrive at a decision because of the delay precipitated by that very request. The absurd circularity of that notion is self-evident. Further, as this Court is unique in hand-screening cases prior to assignment to panels for submission, one would be left to wonder what about this case has changed since the time it was screened and found proper for panel disposition, other than our knowledge of the result under the panel's decision.

In all events, and regardless of how one interprets the rules or any possible good-faith disagreements about their interpretation, the timing of this request, and the unprecedented nature by which it has been pursued (combined with the earlier events that delayed release of the panel decision), create an unavoidable appearance problem that, whether intended or not, undermines confidence in the apparent impartiality of the tribunal. Any judge operating with knowledge of this process would be obliged to determine whether silence or inaction is appropriate or consistent with their ethical obligation. See JUDICIAL CONDUCT Canon 3 D(1).

C. In Light of the Concerns Discussed Above in Sections A and B, Failing to Inform the Parties Would Be Inappropriate and Unethical

I find myself faced with knowledge of what I see as a constitutional violation in a case I participated in as a panel member and which remains pending before me. I am constitutionally and ethically obligated to take appropriate action to avoid the appearance of acquiescence. While that vague proscription might be satisfied—depending on the posture of the case, my role in it, and the history of other like efforts—simply by raising an objection internally, I do not believe that my raising further internal objections would be sufficient here for a variety of reasons, some of which I have conveyed above. It suffices at this stage to note the rights of the parties in this case are directly affected, earlier efforts to avoid or correct the problem have failed, and that prompt direct review in a superior court appears to be the only reasonable, forward-looking solution available to the parties at this stage. For all of these and other reasons, I find this separate opinion and disclosure not only to be appropriate, but necessary.

PART III: SUPPLEMENT

This supplemental opinion is necessitated by events that occurred after the initial circulation of my dissenting (now concurring) opinion to the full court.

After the circulation of what was my dissent, now a concurrence, a separate opinion circulated proposing the same result between the parties as had been called for in Part I of my dissent (now concurrence), but without any discussion of the process by which this case came to be heard and decided (i.e. , Part II above). Meanwhile, before and after circulation of that new opinion, I received entreaties urging—notwithstanding the facts or law—that I withdraw that part of my opinion; I will not detail those requests here other than to note that I have continually responded with a request to identify any material error in the facts or law in this opinion, which have been met with equally persistent refusals to identify any such error.

Over my objection, the opinions in this case were then linked to a demand to reconvene an administrative conference to discuss events and issues that had been raised and discussed in a previous administrative conference in January.²⁵ That January conference addressed broad concerns over the Court's operations, including the procedures employed in this and other cases. Before that meeting, I circulated a multi-page memorandum internally detailing (and not for the first time) the Court's increasingly recurring encounters with practices that myself and others have questioned as potentially inconsistent with the rules of appellate procedure and the need for the appearance of neutral, random dispositions of matters. Apart from a non-sequitur demurrer from the Chief Justice, no one denied the past practices, and the conference, as noted above, yielded only the decision, by unrecorded vote, to withhold release of the panel decision and without a corresponding order.

25 One justice indicated any response would only be made during an administrative conference.

As I did not believe that any reference to those previous instances or the broader, persistent administrative challenges this Court faces (or has created) in maintaining the appearance of random neutral assignments was necessary to disclose to the parties in this case, I refrained from discussing them in Part II of the original dissent. While I objected to the linkage of the parties' rights or the opinions in this case to a renewal of that earlier administrative meeting, I also asked (repeatedly) if, now six months later, any justice was aware of any material error in the facts laid out in that memorandum concerning the Court's recurring practices or in Part II of this opinion. Again, no one identified any.

During and after the reconvened administrative meeting, I was asked to reconsider the need to release Part II of my opinion, ostensibly in view of the change in result between the litigants following circulation of my dissent. Other justices, while also not identifying material factual errors, asked for factual detail of certain events that involved themselves and were addressed in an abbreviated fashion in Part II above. I have separately been asked, however, to consider whether release of the opinion might, in light of a restrictive interpretation of Judicial Conduct Canon 3B(1), violate rules of ethics or deprive my colleagues of their ability to respond. It is in response to and in consideration of these and other communications from my colleagues that I supplement my earlier opinion with the following.

A. Denial of the Due Process Right to an Impartial Tribunal Is a Structural Error Affecting All Parties and Not Subject to Harm Analysis

First and foremost, I address the argument that there is no "harm" here where the ultimate judgment of the en banc Court is the same as the original panel opinion approved by the panel majority in December 2020. As referenced above, I have been requested to withdraw my opinion in view of certain changes in votes since the en banc conference and the circulation of my original draft opinion. The reasoning for this request is to the effect that, as the party I believed should prevail under our judgment "is now winning," there is no harm to that litigant and any objections I might have to the process by which we arrived at this en banc proceeding are now moot.²⁶

26 As I believe my original dissent made clear, my concerns with this case are not related to who prevails under the Court's judgment. I have no interest in the outcome between these parties, other than to correctly apply the law to the facts presented.

To be sure, the question of whether the outcome in this case affects our legal and ethical duties to address the irregularities that produced it is an interesting one. However, tempting as it is to, once again, avoid the unpleasantness and controversy that accompanies disclosure in this or other cases implicated by our recurring "administrative" challenges, my research shows that harm to the litigants is irrelevant to the analysis or must be presumed, because, by its nature the error is structural. See Abdygapparova v. State , 243 S.W.3d 191, 209 (Tex. App.—San Antonio 2007, pet. ref'd) (citing Arizona v. Fulminante , 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) ; Chapman v. California , 386 U.S. 18, 23 & n. 8, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ; Tumey v. Ohio , 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) ; Cain v. State , 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) ("The United States Supreme Court has repeatedly held that a violation of the right to an impartial judge is a structural error that defies harm analysis.")).²⁷

27 See also Webb v. Texas , 409 U.S. 95, 98, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) (holding judge's threatening remarks effectively drove witness off stand, and thus deprived petitioner of due process); Arnold v. State , No. 05-07-00120-CR, 2008 WL 3307079, at *6 (Tex. App.—Dallas July 31, 2008, no pet.) (holding error structural where trial court's actions created appearance of unfairness and a lack of impartiality thus depriving appellant of his fundamental right to fair sentencing hearing before impartial tribunal).
Any doubt that this risk of structural error exists only in criminal cases has been effectively addressed by the United States Supreme Court and other lower courts. See Marshall v. Jerrico, Inc. , 446 U.S. 238, 242, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980) (holding requirement of due process to be hearing before impartial tribunal and that same requirement applies in both civil and criminal cases); Clements v. Airport Auth. of Washoe Cty. , 69 F.3d 321, 333 (9th Cir. 1995) (same) (citing Ward v. Vill. of Monroeville , 409 U.S. 57, 59–60, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972) ); Harjo v. City of Albuquerque , 326 F. Supp. 3d 1145, 1184 (D.N.M. 2018) (same) (citing Marshall , 446 U.S. at 242, 100 S.Ct. 1610 ); Wallace v. Powell , No. 3:09-CV-0291, 2014 WL 70092, at *8 (M.D. Pa. Jan. 9, 2014) (same) (citing Marshall , 446 U.S. at 242, 100 S.Ct. 1610 ).

I feel compelled to reiterate that my concerns expressed above were raised internally and that even after circulating my original separate opinion to the en banc decision, I repeatedly requested responses to the events I recounted above. No one responded. Instead, my colleagues insisted on linking the opinions in this case to administrative matters, and at the administrative conference, urged that the irregularities here (that no one denies) remain obscured from view based on the change in the outcome as between the parties.

Given the expressed concerns about disclosure of the irregularities in this case, the corresponding change in outcomes, and the requests to avoid release of Part II of this opinion, it is easy to understand why the need to respond to irregularities of this nature is not tied to any particularized injury to either side of the docket. Fulminante , 499 U.S. at 309, 111 S.Ct. 1246 ; Abdygapparova , 243 S.W.3d at 209. We have now arrived at a third result in this case. The first, the December panel opinion, was concealed from both parties. The second, a proposed majority en banc opinion, was abandoned after the irregularities in the process were set to be disclosed and further scrutiny of the Court's practices loomed, and the third is proposed to be an anodyne declaration that the appellants lose.

To be sure, the ever-changing fate of the parties may quite properly be seen as the product of a timely reconsideration of the record and the law governing rule 120a and be completely unrelated to any concerns over the release of this opinion or the lingering administrative issues to which it is connected. Nevertheless, at this point, if I were counsel for the appellants,²⁸ I would wonder where this case would have ended had a justice not raised concerns over the procedural irregularities that affected the case. Indeed, were I counsel for any party in this case, I would be forced to wonder how (or when) this case would have been decided in a more transparently impartial tribunal.

28 Again, I have no interest in which side of the docket prevails in this or any other matter. If, but for the process here, the appellants would prevail, albeit over my dissent, I would not hope for any other result. Both sides are entitled to a fair tribunal. If I were to withdraw my objections to the process because it has now yielded a victory to the appellee, I would open myself to the charge that my objections were intended to achieve that result. At this stage, the process in the case has so infected the result that either party would have an equal objection to it and the only viable remedy I can perceive is a plenary, fresh disposition. Given the extraordinary delay at this stage, assignment of this case to another intermediate court of appeals, to be potentially followed by a petition to a higher court, seems improper.

B. Requests for Clarification

As previously mentioned, although they were unable to identify any material error in the facts described in my opinion, several of my colleagues have requested clarification of their role and questioned whether disclosure of those facts by me or in any response by them to Part II was permissible in light of Judicial Conduct Canon 3B. I will begin with clarifying details respecting the actions and their timing giving rise to my concerns and later address why I believe such disclosure is not only permissible but required.

Again, the parties in this case have received no decision from the Court more than two years after appellants filed their notice of expedited appeal. This delay, which some members of this Court would ascribe to administrative issues, is due to the withholding of the panel opinion—over the majority of the panel's consent—following a first-ever obstruction of the release of the panel opinion at the end of a Justice's term, a first-ever interpretation of appellate rule 41.1,²⁹ and a later (unrecorded and unreduced to the form of an order) en banc vote affirming that interpretation. See TEX. R. APP. P. 12.5, 41.1.³⁰ The first request for en banc consideration of this case came only after (1) action a reasonable observer could see as obstruction of release of the panel majority decision; (2) substitution of a new panel member after positions of the original panel had been announced; and (3) the rule 41.1 issue was presented with a clear demand to release the December 9 panel decision.

29 It appears that my colleagues on the Fourteenth Court of Appeals are under the impression that their controversial decision to deny the parties access to a panel opinion, despite rule 41.1, following a vote to convene en banc was perhaps unprecedented. Werner Enters. v. Blake , 2021 WL 3164005 (Tex. App.—Houston [14t Dist.] July 27, 2021, no pet.). They are wrong, though they could not have known it. That court recorded its vote to withhold the panel decision, released an order documenting its action to which a dissent could be appended, and evidently assumed that any other court would have done the same. Of course, the debate in that court also took place without the added drama of year-end obstruction of the release the panel decision or the shifting, executory substitution of a new vote in advance of the request to convene en banc.

30 As discussed in Part II, rule 41.1 defines the constitution of a panel as follows and precludes contrary local rules or practices:

Unless a court of appeals with more than three justices votes to decide a case en banc, a case must be assigned for decision to a panel of the court consisting of three justices, although not every member of the panel must be present for argument. If the case is decided without argument, three justices must participate in the decision. A majority of the panel, which constitutes a quorum, must agree on the judgment. Except as otherwise provided in these rules , a panel's opinion constitutes the court's opinion, and the court must render a judgment in accordance with the panel opinion.

Tex. R. App. P. 41.1(a) (emphasis added).

To be clear, the delay prior to December 9 is not good, but it is the delay associated with the obstruction of the release of the opinion on December 29 and 31, together with this en banc proceeding, that gives rise to acute neutrality problems. Why was this case not set for consideration by the Court sitting en banc in October 2019, when it was first heard by the panel, if it inherently warranted such consideration? Why was there no request for en banc reconsideration prior to the Chief Justice's refusal to release the December 9 panel decision in mid-January 2020? Why (or by what authority) would a single justice not on the panel and knowing of an imminent departure obstruct the release of a divided panel opinion in a grossly stale, expedited appeal much less without that justice (or anyone else for that matter) even requesting reconsideration? And, why was the panel decision not released thereafter at any time prior to a majority of the Court actually convening en banc in February?

While I believe that all of this was contrary to the rules of appellate procedure and our internal operating rules, what I see as the departure from the rules hardly operates in a vacuum here. The due process problem screams most loudly from the sequential combination of these extraordinary actions, and their timing, in, among other things, obstructing the release of the panel opinion to the parties on December 31, the substitution of another justice, and the request of en banc reconsideration, only (and immediately) after the Chief Justice imposed his construction of rule 41.1 and our prior precedent in Sink. State v. Sink , 685 S.W.2d 403, 403 n.1 (Tex. App.—Dallas 1995, no writ) (per curiam). The due process problems created by these and other actions are obvious, would obtain regardless of whether any rule could be interpreted to permit them, and go beyond Part II above. As several justices complained of the incompleteness (although not of the accuracy) of that discussion, I will now supplement them here as narrowly as feasible to address their concerns.

1. Delay and Process Concerns Prior to December 29–31

As noted in Part II above, I believe that a reasonable person looking at the events described above (and others) would question not just the delay produced by the late-arriving en banc request and the later decision to withhold the panel decision, but also the delay before and especially in December. Most importantly, one could question whether there was an orchestrated effort to forestall release of the panel opinion to the parties with the expectation that doing so would allow substitution of a new member who might support a desired result.

Ignoring the delay in settling on an initial panel result in advance of the November election that would appear less concerning if it stood by itself, that delay does not stand by itself. The panel opinion here was ultimately approved by the panel majority on December 8 and recorded as such on the Court's opinion tracking software the next day. On Friday, December 18, after the end of the eight-day period for the third panel member to cast a vote, I proposed the immediate release of the majority opinion, with her dissenting opinion noted to follow. She declined, observing that she was already conforming her dissent and would circulate it, after the weekend, on the following Monday. At the end of the day Monday, she indicated that she would circulate the opinion on Tuesday, December 22.³¹ I then asked whether she would insist on full court circulation of the opinions, which is optional at the election of any justice on the panel under the court's internal operating procedures. She in fact insisted on full court circulation, though promising she would also request that it be expedited. My last communication from her, prior to December 31, was a text message I received on December 22: "Just talked to the Chief he approved shortened circulation time," which was accompanied by two "thumbs up" emojis. Her email thanking the Chief Justice for his approval of the expedited circulation period, also copied to me the same day, reads in relevant part: "The reduced circulation time is necessary here so that both opinions can issue together w/any necessary corrections before [the panel majority member's] term ends. " (emphasis added).

31 To be sure, the third panel member might have claimed the right under our internal operating rules to thirty days from December 9 to circulate her dissent Had she done so at that point, the panel majority would have had ample time to seek en banc or mandamus intervention, and the due process problem concern would be, if anything, worse, and anchored to that action rather than those of late December 29 and 31.

On December 28, I was made aware that a Justice not sitting on the panel had electronically recorded a vote requesting a two-week study.³² I called him and asked why. He told me that the third panel member, who had insisted on full court circulation and secured ostensibly expedited circulation of the opinion, had asked him to record the vote as she was contemplating submitting an en banc request and was unable to locate another Justice she intended to enlist to request two weeks' study. I reminded this Justice of the imminent departure of the second panel member, the ostensible "expediting" of the circulation for that reason, and that further delay could, at a minimum, create the appearance that someone was seeking to manipulate the result at the panel by substituting a new justice after the panel votes had been taken. I also noted that any justice on this Court could request en banc reconsideration of the panel opinion at any time, making delay for any other purpose unnecessary. This Justice told me that he would speak with the third panel member. He called the next day and told me: (1) he had informed the third panel member that he was going to withdraw his request for two-week study and that (2) he was concerned that the effort could appear to be perceived as an effort to stall and to substitute a new, potentially different vote.

32 The Court's opinion tracking software provides justices with the option of electronically recording with the clerk votes to approve, dissent, concur, or request two weeks for further consideration in connection with a circulating opinion.

2. Delay and Process Concerns Between December 29–31

On December 29, that Justice withdrew his two-week study vote. Four hours later, at 4:48 p.m., yet another Justice not sitting on the panel (again with no notice) changed his prior vote of "no comment" to "two-week study" request. The next morning, December 30, I sent this Justice an email, copied to both my third panel member and the Justice who had just withdrawn the like vote he had been solicited to record. In that email, I reminded the Justice of both the "expedited" nature and age of the case, that any member of the Court could seek en banc reconsideration or write as they saw fit, and of the prior Justice's withdrawal of a like vote for these reasons. I also noted that if he maintained his action at this point, it would be seen to "create the prospect of substitution of a new panel after the original panel has voted and the possibility of the outcome between the parties being altered as a result."

That Justice responded on the afternoon of December 31, saying that the timing of his changed vote was coincidental, he had been contemplating a vote of two-week study for some time,³³ was acting in accordance with his conscience, and would not withdraw his recorded vote. Neither that Justice nor my third panel member requested en banc reconsideration through the end of the "two-week study" period.

33 As noted, rule 41.1 provides the panel assigned to hear the case with the authority to decide a case and mandates that the panel's opinion "constitutes the court's opinion" and the court "must render judgment in accordance with an opinion." While the Court's internal operating procedures authorize a member of the panel to record a two-week study vote and purports to further confer authority to record such a vote on justices not on the panel in published criminal cases , despite rule 41.1, it provides no such color of authority to record such a vote to off-panel justices in civil cases. See In re Castillo , 201 S.W.3d 682, 684 (Tex. 2006) (affirming right of justice to vote "on cases heard by her panel," not her court). Of course, had the third panel member exercised that procedure and timely recorded such a vote after the December 9 circulation the opinion would have issued before December 31.

I, of course, accept that Justice's statement of his intentions at face value and assume that the delay at the panel prior to November and further delay after December 9 and until December 29–31 were all coincidental.³⁴ That is not consistent with the controlling constitutional standard, however. The decision to obstruct the release of the opinion on New Year's Eve casts "a very long shadow" and adds an unhelpful aspect to still other events before and after that are, in and of themselves, problematic. See Cruz v. Abbate , 812 F.2d 571, 574 (9th Cir. 1987) (noting that even the "suggestion that the case assignment process is being manipulated for motives other than the efficient administration of justice casts a very long shadow" and "must not remain unexamined and unanswered"). An employer's declaration that he fired the plaintiff four hours after she filed an EEOC complaint "because she was late for work" and not in retaliation for the filing of an EEOC complaint does not end the discussion. Judges, of course, are held to a higher, not lower, objective standard under the Due Process Clause.

34 As noted in Part II, I am not aware of any prior instance in Texas in which the release of a completed panel opinion being deliberately delayed at the end of a justice's term by the actions of a justice not on the panel.

To be clear, the obstruction of the release to the Court's panel opinion to the parties at that stage and the attempt to substitute another vote was, in my view, contrary to the rules of appellate procedure and unsupported by any provision of our internal operating procedures—not that they could provide otherwise. More importantly, however, these delaying actions were undertaken not only with full knowledge of the due process problem it provoked, but that this "expedited" appeal had been lingering under submission since early October 2019. As an appellate court, we would not hesitate to find a trial court to have clearly abused its discretion in delaying a decision and grant mandamus in like circumstances. In re Upcurve Energy , No. 08-21-00053-CV, 632 S.W.3d 254 (Tex. App.—El Paso June 29, 2021) (orig. proceeding) (thirteen months); In re Reiss , No. 05-20-00708-CV, 2020 WL 6073881 (Tex. App.—Dallas Oct. 15, 2020) (orig. proceeding) (mem. op.) (six to twenty-four months). Deliberately delaying release of a decision in an accelerated appeal that has in fact been decided more than fifteen months after submission and nearly two years after it was initially filed is, to say the least, extraordinary.

3 Delay and Process after December 31

As noted, no justice sought en banc reconsideration in connection with the delay in releasing the panel opinion in late December. Instead, a new Justice was substituted with appearance concerns having already been created by the events transpiring before January 1 and preceding the substitution. That appearance problem was not helped thereafter.

Prior to her decision to participate in this case, the substituted Justice was forwarded the emails of late December laying out the pre-existing appearance problem. On the afternoon of January 12, the substituted Justice indicated that she had not yet decided whether she should participate and had not completed the review of the record that she felt to be necessary to support her participation. She then received a response from yet another Justice suggesting that he did not believe that it would be "fair (or legal)" for her to substitute and cast a vote at that stage. That email attached and highlighted a further email she had received separately pointing to rule 41.1 and prior court precedent in Sink and requesting release of the December 9 panel decision.

On the morning of January 14, the substituted justice was aware of my directive to the Clerk to release the panel opinion to the parties in keeping with prior court precedent and rule 41.1, absent a contrary instruction from the Chief Justice; of the Chief Justice's so instructing the Clerk; of the first request for en banc "review" coming immediately thereafter at 1:58 p.m.; and of the Chief Justice's utilization of that request as retroactive support for withholding the opinion.

The substituted Justice, then, and despite her concerns over the record, voted to decide or reconsider the case en banc at 5:54 p.m. Then, at 5:56 p.m., with insufficient votes to proceed en banc , the substituted justice also recorded a vote to decide the case at the panel, albeit with a change to the panel result. Of course, no one has attempted to argue that this substituted "fourth" panel vote could have validly changed the result—as it would have obviously mooted the pending en banc request to the extent it sought re consideration. Meanwhile, an operative fourth panel vote could only be seen to be at odds with any assertion that an initial en banc decision was premised on the lack of a result at the panel.

While these actions are consistent with a Justice eager to engage on evolving matters, the appearance concerns remain extant. A cynic might see the timing of the panel fourth vote as a stop-gap measure to support delay of release of the panel opinion while en banc votes were assembled. Separately, a cynic might view this en banc proceeding as an effort to obscure the appearance problems associated with the obstruction of the release of the December 9 panel opinion, the attempted substitution, and the later, fourth vote. Again, I assume that the timing here was coincidental; that the substituted Justice carefully examined the arguments, the record, and the rules, and concluded that Rule 41.1 supported a substitution; concluded that the pre-existing appearance problems were insubstantial; decided that the appellants' position was well supported; and in no way timed her attempted participation and votes to support further delay in the release of the panel opinion pending an effort to obtain en banc reconsideration. The standard, however, is an objective one that is unaffected by subjective intent.

C. Ethical and Legal Standards Both Require "Appropriate Action"

I will conclude this part of my opinion by addressing several concerns in connection with my decision to address the irregularities in the process used in this case, including whether my discussion above violates rules of ethics, deprives any Justice of their ability to respond, or their right to confidentiality.³⁵ I believe these concerns are unsupported by any relevant authority or plausible argument for extension of it and state the minimum judicial obligations in reverse. The further complication this presents, and that I would have hoped to have avoided, stems from the continuing administrative issues to which this opinion has been joined and requests that I withdraw my opinion based upon changing fates of the parties in this case.³⁶

35 Contrary to any suggestion that my discussion of internal matters of this Court is unprecedented and not permitted by our judicial canons, I note several similar opinions were issued by the Waco Court of Appeals and other Texas and federal appellate courts. See, e.g., Tex. A & M Univ. v. Bading , 236 S.W.3d 801, 803 (Tex. App.—Waco 2007, pet. granted) (citing special notes detailing the Chief Justice's objections to his colleagues' actions to "alter[ ] the process of judicial review.").

36 To be sure, I do not have a "side" in this case. I have asked at least five times for a response to my recitation of the events, authorities I have cited, and interpretation of legal authorities. No substantive response was provided until the Chief Justice circulated his concurring opinion in August 2021, setting forth his understanding of "customary practices" of the Court.

1. Where Judicial Conduct Affects the Parties' Right to An Evidently Impartial Tribunal Courts Alone Are Both Empowered and Required to Act

I will begin with the constitution. Since at least the time of the Supreme Court's 2009 Caperton decision,³⁷ if not before,³⁸ it has been clear the federal constitution's Due Process Clause required an objective analysis into the apparent impartiality of the tribunal. Caperton , of course, was more complicated in that it involved no actual action by the Justice himself, but the appearance created by the financial activities of one of the litigants before him. In such settings, this Court has spoken clearly about other tribunals, as a matter of both "federal and state constitutional law." See, e.g., Rymer v. Lewis , 206 S.W.3d 732, 736 (Tex. App.—Dallas 2006, no pet.). In reversing a trial court judgment on direct appeal we observed:

37 Caperton v. A.T. Massey Coal , 556 U.S. 868, 879, 883, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) (test is an "objective one" posing question as whether the risk of "bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.").

38 Aetna Life Ins. Co. v. Lavoie , 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986) ; In re Murchison , 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955).

One of the most fundamental components of a fair trial is a neutral and detached judge. The impartiality of the judge is not only a matter of constitutional law, but also of public policy. Public policy demands that a trial judge act with absolute impartiality. It also demands that a judge appear to be impartial so that no doubts or suspicions exist as to the fairness or the integrity of the court. A judge should not act as an advocate for any party. Nor should a judge act as any party's adversary.

Id. at 736 (emphasis added).

This Court (and others) have also encountered the due process question where the parties were not aware of facts giving rise to the due process problem that were known to (but undisclosed from) the other side of bench. Of course, no court has ever suggested judicial silence or leaving the problem to some other body would even be proper. Quite the opposite, where such an undisclosed problem arises in a lower court, we have held that even a final judgment should be set aside—and without regard to the actual merits of the claim or defense or whether the problem is alleged with particularity. See Thomas v. 462 Thomas Fam. Prop. , 559 S.W.3d 634, 641–44 (Tex. App.—Dallas 2018, pet. denied). In keeping with the notion that such departures are structural in nature, this Court reversed the dismissal of a bill of review when the judge but not the litigant was aware of the underlying circumstances, "applying the notice pleading standard and liberally construing appellant's petition according to his intent." Id. Thus, when the question arises in connection with the actions of a trial court, our own answer has been to address the issue in an opinion, as opposed to a memorandum opinion or more discrete mechanism, notwithstanding the judge's interest in privacy.

It seems plain to me that these constitutional minimums apply to appellate courts and not just to others. No one would suggest, for example, that any appellate court or its members would be exempt from the public charge its decisions reflect a bias toward a particular result. E.g., Bell Helicopter v. Dickson , 601 S.W.3d 1 (Tex. App.—Dallas 2020, no pet.) (denial of rehearing). But the question of whether a judge on an appellate court may (or must) confront the concern takes on a different aspect, and one requiring more, not less transparency, when we confront not simply an inclination toward a particular reading of the law, but to actions that affect the random submission and disposition of a particular case.³⁹ Long before either Caperton or our own decision in Rymer amplified the due process concerns they implicate, other appellate courts confronted and publicly addressed court practices, otherwise undisclosed to the parties, where they effected random dispositions in those courts. Grutter v. Bollinger , 288 F.3d 732, 753–58 & 811–14 (6th Cir. 2002) (en banc); In re Byrd , 269 F.3d 578 (6th Cir. 2001) ; Cruz v. Abbate , 812 F.2d 571, 574 (9th Cir. 1987) ; Armstrong v. Bd. of Educ. of Birmingham , 323 F.2d 333, 352 (5th Cir. 1963) (Cameron, J., dissenting). Still others confronted, and again publicly debated, their objections to other internal practices or methods of proceeding as inherent to their judicial duties. E.g., In re Doe , 19 S.W.3d 346 (Tex. 2000) ; Bading , 236 S.W.3d at 803.

39 I believe that the Texas Constitution requires random assignment of justices on those courts with more than three justices. Rymer , 206 S.W.3d at 736 ; see also In re Union Carbide , 273 S.W.3d 152, 157 (Tex. 2008) (practices that "subvert random assignment procedures breed disrespect for and threaten the integrity of our judicial system"). While courts elsewhere have divided over the question of whether the federal due process clause invariably requires initially random assignments on multi-member courts, compare Tex. Brine Co. v. Naquin , Nos. 2019-OC-1503, 2019-OC-1508, 2020 WL 543513, at *6 (La. Jan. 31, 2020), and Firischtak v. Holder , 636 F.3d 305, 309–10 (7th Cir. 2011), all appear to agree that departures from a purportedly random process that undermine the appearance of impartiality would violate the federal constitution. Id. ; Cruz , 812 F.2d at 574 (assignments, if not required to be random, may not be made in a biased manner "or [with] the desire to influence the outcome of the proceedings").

Other courts have been even more explicit about the need to confront these issues. The Supreme Court, for example, has held that a litigant is entitled to discovery in a due process claim not only where he alleges specific facts in connection with his trial supporting an inference of actual bias but where the facts support an inference that "risks of bias" are "too high to be constitutionally tolerable." Rippo v. Baker , ––– U.S. ––––, 137 S. Ct. 905, 197 L.Ed.2d 167 (2017) (citing Williams , 136 S. Ct. at 1905 ). The Ninth Circuit, speaking directly to the need for random assignment of judges, did not suggest that the question should be maintained as an internal confidence or re-directed elsewhere. On the contrary, speaking to practices in a federal district court, it observed: "The suggestion that the case assignment process is being manipulated for motives other than the efficient administration of justice casts a very long shadow, ... Such charges, to the extent they are being raised, must not remain unexamined and unanswered. " Cruz , 812 F.2d at 574 (emphasis added).

What is notable about the Texas standard is that unlike the model ethical rules governing internal deliberations in most state and federal courts, the Texas rule that protects those deliberations and votes makes clear that the prohibition on disclosure "for any purpose unrelated to judicial duties," obviously does not apply to "an opinion" and affirmatively permits judges (or requires) judges to make a report to the State Commission on Judicial Conduct but, independently and separately, requires judges to "take appropriate action " separate and apart from a report to the Commission. JUDICIAL CONDUCT Canon 3 C (10), D(1) (emphasis added). While a report to that Commission may be appropriate, depending on the circumstances, the Commission has no jurisdiction to adjudicate pending disputes or authority to provide any remedies to parties in them before or after judgment; neither would it have any ability to order the reform of court practices apart from taking or recommending actions be taken as to a particular judge or justice.⁴⁰ Those actions, where appropriate, must be accomplished elsewhere. The obligation to decide cases in accordance with the rule of law, to recognize and enforce the rights of parties in cases and to provide whatever remedies are required by law is directly vested in the judges themselves, as reflected in the oath of office. And, whether the question relates to the result in a particular case or to a court's mode of practice more generally, that "supervisory and administrative control" over the courts themselves is vested directly in the Texas Supreme Court, TEX. GOV'T CODE § 74.021, and is properly exercised by direct appeal or mandamus. Shamrock Psychiatric v. Dep't of Health , 540 S.W.3d 553 (Tex. 2018) (mandamus); Ray Ins. Co. v. Jones , 92 S.W.3d 530 (Tex. 2002) (direct appeal).

40 Where proceedings before the Commission are separately initiated, the proceedings of the Commission themselves will be confidential; the underlying conduct does not become exempt from notice or disclosure as a special protection for the office holder. S.C.J.C. Proc. R. 17. The judiciary does not have special exemptions from scrutiny except insofar as might be permitted by an administrative agency. Id. ; see also Nixon v. Warner Comm. , 435 U.S. 589, 598, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (explaining basis for public access right). On the contrary, judges are as subject to the rule of law as anyone and uniquely obliged to uphold it.

2. Disclosure to the Parties Here is Not Only Proper, But Mandatory

As noted, it is exclusively the responsibility of the courts to decide cases and, at a minimum, to afford the litigants an impartial tribunal in that process, to acknowledge when that has failed, and to afford an appropriate remedy. The question of whether a judge may disclose facts necessary to develop that question in an opinion is, in my view, not subject to reasonable debate. As outlined above, judges on other state and federal courts have done so repeatedly, and the Texas rule explicitly confirms that discussion within an opinion is properly a part of the judicial duties. I will close this portion of my opinion by answering why I believe it is not only proper but mandatory here.

I accept that the "appropriate action" mandate may sometimes involve wholly internal efforts at correction or reform. But, as I tried to indicate softly in the first draft of this opinion, this is hardly the first time this Court has confronted problems like this, or that I and others have raised such concerns loudly and in writing without avail. For example, the problems giving rise to my decision to draft this opinion came, by my count, after seven separate internal efforts to avoid them.

While I will continue to resist unnecessarily detailing like concerns in other specific cases or elaborating on broader questions about whether the Court's current practices afford the minimum due process appearance assurance to any litigant who appears before this Court, the fact is that they exist, have been repeatedly voiced by myself and others, and have yet yielded processes like the one used in this case and have continued since. It suffices to say, at this point, my concern is not that I have acted too hastily or precipitously in this case; but, rather, that I have waited too long and written too many internal emails and memoranda. I acted in this case because I sat on the panel, had direct knowledge of conduct at issue, and because I believe that conduct raised such obvious due process implications that disclosure was not only permissible but mandatory under the due process clause and, perhaps, the governing rules of ethics.

Still, and notwithstanding my efforts in this case and my drafting and sharing my thought on these matters, the same conduct giving rise to this controversy has persisted. Again, barring further request from my colleagues, I will not detail this additional concern except to identify its recurrence as further supporting, if not mandating, my decision to act. I will simply note, again, that a justice who does not sit on a panel has no authority under the rules of appellate procedure or our internal operating procedures to obstruct release of a panel opinion, surreptitiously craft and release dicta in a separate opinion and retroactively claim it to control the result in the case so delayed. Such efforts create needless conflict and the appearance of bias among the parties, the subject matter or both, which should be impossible under our rules or the due process assurance. TEX. R. CIV. P. 18b(1)–(2) ; Caperton , 556 U.S. at 877, 129 S.Ct. 2252.

Meanwhile, a passive approach to these issues among the majority of the Court, whether it relates to panel formation, personnel,⁴¹ assignment of cases to panels, the removal or substitution of justices after submission or votes or other concerns ostensibly left in the hands of a single actor or a minority of the Court opens the whole of the Court to unnecessary and avoidable appearance problems. Williams , 136 S. Ct. at 1909. None of this should be possible on a multi-member court with all justices engaged. TEX. GOV'T CODE § 22.223 ; In re Yates , 960 S.W.2d 652 (Tex. 1997). Conversely, leaving the conduct of the Court to a minority, does nothing to promote the appearance of impartiality or to absolve the balance of the court of its obligations to respond when the lack of that appearance is impossible to ignore. Obstruction of panels, undisclosed orders, undisclosed or manufactured substitution of judges at the behest of a minority of the Court is no way to do business. As Judge Boggs observed: "this type of secret undocumented decision-making by exclusive in-groups is the way decisions are made in totalitarian countries." In re Byrd , 269 F.3d 578, 583 (6th Cir. 2001) (Boggs, J., dissenting).

41 It should not be possible, for example, for a single Justice or a minority of the Court selected by that Justice to make up panels by hand, including motions panels casting what are now outcome conclusive results, or to hire and deploy staff to screen significant matters in the wake of a vote of the full court to prohibit such hiring without its prior approval. Neither should it be possible, in view of the due process assurance, that such a justice might deploy such staff to screen significant cases on which he does not sit, to propose a desired outcome and substitute into a panel, without notice to the parties, and declare the desired result—or, for that matter, to remove a justice after hours, and cast a different vote. And, against this backdrop, the idea that staff reporting to that single Justice should be hand assigning all cases to panels after conducting review of the parties and issues they present raises further, obvious appearance concerns that, while obviously not the fault of the staff, are plainly inconsistent with the Court's obligations.

We are well past the point where due process demands that the Court make public its processes for forming panels, including panels deciding motions and extraordinary writs, assigning cases to panels, and removing or substituting justices from formed panels (before and after they have recorded votes) and provide notice to all parties currently before us or with matters in which our mandate has not yet issued notice of any departure from our existing written procedures, including the pertinent circumstances of any undisclosed substitutions.

CONCLUSION

As I discussed in Part II, the rules by which cases are heard and decided are a matter of law judges are obliged to know and follow, and departures from those governing rules deny the parties the process that is "due," particularly where the circumstances suggest a lack of neutrality. I reiterate this principle to give further context to this case—in view of and in consideration of my colleagues' request for more detail, their requests that I withdraw my opinion and to explain my understanding of the legal and ethical obligation to take necessary, appropriate action. I have observed continuing challenges in this and other cases that present not only administrative challenges but directly affect the constitutional rights of parties I am obliged to recognize. In the context of these difficulties, I now observe my colleagues changing their votes after my opinion circulated and urging my silence by various means and rationales, including their expressed concern for protecting the Court. As tempting as that may be, I agree with Judges Boggs and Batchelder that my colleagues have it backwards: "Legitimacy protected only by our silence is fleeting. If any damage has been done to the court, it is the work of the actors, not the reporters." Grutter v. Bollinger , 288 F.3d 732, 814 n.49 (6th Cir. 2002), aff'd, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (Supp. Op. of Boggs, J.).

PART IV: SECOND SUPPLEMENT

Response to the Chief Justice's Concurring Opinion

The Chief Justice's long-awaited opinion assiduously avoids the due process problem that compelled this opinion in the first instance or any rejoinder to any of the facts that relate to it.⁴² Instead, his opinion obliquely describes the events as "common practices" and suggests that delays in the release of the panel opinion to the parties after December 22 and December 29, 2020, were respectively mandated and permitted by the Court's "administrative rules" and that the expiration of a justice's term required the delay of the release of the panel opinion and the substitution of a new justice on the panel. Because each of those assertions is false, I am compelled to supplement my opinion, to explain why I disagree with the Chief Justice's position and to discuss the importance of adherence to actual rules of law, as opposed to unwritten post hoc declarations of accepted and "common" practices or policies. More importantly, the unusual "practices" said to be at issue here are in fact not "common," and would be contrary to the Court's own written, approved rules, as well as the rules of appellate procedure, and the parties' right to due process.

42 Likewise, Justice Osborne's recently arriving opinion, in footnote 1, obliquely "declines to address or otherwise entertain" my "account of the facts or allegations ... [as] "not relevant to the disposition of this appeal." As I noted above, despite numerous, repeated requests to identify any material factual or legal error in any earlier drafts of the opinion so that I might avoid the need to write it or to include any such error in it, I have received no response.

A. Due Process, Rules, and Practice

Because courts exist to enforce the rights and interests of the parties who appear before them, our first, last, and unavoidable judicial duty, despite the discomfort and threats that may be involved, is to address the due process problem and respect the rights and interests of the parties appearing before us. That due process right includes the right to be heard both in accordance with the rules and by a decision maker whose impartiality would not be open to question by an objective observer. As I have previously detailed, we failed in both respects here. While I take no pleasure in being forced to say so and understand why a few others would prefer to simply avoid addressing the problem, our principal obligation is to the parties.

1. The Rules of Appellate Procedure Unambiguously Call for "Decisions" and "Judgments" By Panels, "Promptly" after Submission with the Opinion Immediately Available to the Parties and Public—With the Right of Other Members of the Court to Participate Preserved by Reconsideration.

The Chief Justice's opinion now addresses my concern with the Court's adherence to the rules of appellate procedure, including, among other concerns, the proper interpretation of rule 41.1, which he mistakenly describes as the "linchpin" of my concerns. His opinion, however, ultimately pronounces the delay in the release of the Court's December opinion, the resulting attempted panel substitution, and the scramble for en banc proceedings not as a product of a procedure in the sense one would understand as part of the assurance of "due process," but far more worryingly, as his subjective recollection of evolving, unwritten "common practice." I do not agree that what happened here is common or the product of any rule at all, though that is hardly the extent of the problem.

To be sure, I interpret rule 41.1 to authorize panels to make decisions and not simply to serve as a screening mechanism to propose an outcome at the panel level conditional and subject to the unrevealed approval of, for example, a single individual justice outside of it. That reading would be contrary to the text of rule 41.1 itself and the rules that follow, including, at least, rules 43.1,⁴³ 47.3,⁴⁴ 48.1.⁴⁵ It would also render meaningless rule 49.7, governing en banc re consideration, as the panel opinion would have to be pre-approved before it could be handed down, making any reconsideration unnecessary. It would in essence make panel opinions in the Texas courts of appeals resemble the "decisions" of Special Trial Judges in the United States Tax Courts that were the subject of the Supreme Court's rebuke in Ballard , demanding that such practices at least appear in the court's published rules.⁴⁶ See Ballard v. C.I.R. , 544 U.S. 40, 59–60, 125 S.Ct. 1270, 161 L.Ed.2d 227 (2005). No one would question that a panel might circulate or take comments and input from other members of the Court for even an extended period, regardless of any internal procedural mechanism. But, that is not remotely the situation presented here.

43 "The court of appeals should render its judgment promptly after submission of a case. " Tex. R. App. P. 43.1 (emphasis added).

44 "All opinions of the courts of appeals are open to the public and must be made available to public reporting services, print or electronic." Tex. R. App. P. 47.3 (emphasis added).

45 On the date when an appellate court's opinion is handed down, the appellate clerk must send or deliver copies of the opinion and judgment to the following persons:

(a) the trial judge;

(b) the trial court clerk;

(c) the regional administrative judge; and

(d) all parties to the appeal.

Tex. R. App. P. 48.1. As noted elsewhere, the clerk, not the panel Justices, "hands down" opinions. The problem here arises from the actions obstructing that process in advance of an attempted panel substitution.

46 In Ballard , the United States Supreme Court held the Tax Court, like all other decision-making tribunals, including this Court, is obliged to follow its own rules, and that its practice of not disclosing the special trial judge's initial opinion, of obscuring the Tax Court judge's mode of reviewing that report, and releasing only the final combined work product of the Tax Court was a warrantless deviation from the rules. See id. at 59, 125 S.Ct. 1270. Notably, the issue in that case came to light, once again, by a disclosure of the facts to the parties in view of the overarching due process concerns, leading to three due process challenges in as many circuits and the eventual decision of the United States Supreme Court. See id. at 51, 125 S.Ct. 1270.

One of the many serious questions posed by the actions of certain justices in this case is whether a court with more than three justices either could, or did, authorize a justice, not on the panel, to record a vote against the will of the panel practically obstructing the clerk from "hand[ing] down"⁴⁷ the Court's decision and delaying the Court from "issuing its judgment" under rule 41.1, particularly where the panel is divided in the result and the vote is cast in the expectation that it will change the panel's composition. That question, in turn, raises the broader question of whether courts are obliged to have and follow any written rules at all. That question was answered by the Supreme Court long ago.

47 Tex. R. App. P. 48.1.

2. Local Rules and Procedure Must Be in Writing and Approved by the Supreme Court and a Majority Vote of the Court Itself Respectively—Post Hoc Declarations Are Not Rules at All and Cannot Conflict with the Actual Written Rules.

Whether the question relates to panel formation, the way cases are assigned to panels, or how decisions are released to the parties, courts of appeals must govern themselves in accordance with the rules of appellate procedure, promulgated by the Texas Supreme Court, local rules that have been submitted to and approved by the supreme court, and internal operating procedures. As the justices on the Court have been keenly aware for some time now, any attempt to adopt or implement local rules or internal operating procedures (or other like actions) requires a vote and approval of a majority of the Court. See TEX. GOV'T CODE § 22.223 ; In re Yates , 960 S.W.2d 652 (Tex. 1997).

Thus, in the Castillo decision, the Texas Supreme Court permitted a written plan governing the authoring assignments on the Thirteenth Court of Appeals. See In re Castillo , 201 S.W.3d 682, 685 (Tex. 2006). Notably, at each step, that court reduced its understanding to a writing and approved the rule by a majority vote. See id. at 682. This, of course, is not only a mandate of law, e.g., Yates , but practically necessary in a first-world system organized around the rule of law to avoid unwritten post and ad hoc declarations of acceptable "practices" by a single individual or a minority as serving in the place of rules.

As the Chief Justice's opinion acknowledges, a court may adopt written local rules to the extent they have been submitted to and approved by the Texas Supreme Court as consistent with the rules of appellate procedure. As his opinion also acknowledges, this Court has essentially no such rules. This Court does have internal operating procedures that were adopted in keeping with Yates and that the Court has largely declined to share with the public.

3. While it is Hardly the Only Concern Here, The Court's Written Internal Operating Procedures Did Not Require the Delay Before the "Two-Week Study" Vote and Did Not Authorize that Vote on December 29–31

While it is ultimately obscured and appears only briefly amongst the surrounding procedural discussion, the Chief Justice asserts that the delay in the release of the opinion from December 2020 for internal study purposes was not a matter of choice but mandatory in certain cases, in particular any case involving multiple opinions. The Chief Justice's opinion also says that the delay in the release or "issuance" of the panel's opinion prior to the expiration of the second panel member's term (said to eliminate the effect of that previously recorded vote) was caused by this mandatory circulation and by the subsequent decision, said to be permitted by our practices, on December 29 through December 31 to record a two-week study vote. He is mistaken.

The review and study period in this case was prompted, not by a mandatory or permissive "practice," but by a written internal rule ("IOP") permitting, not requiring, circulation to the full Court at the election of a panel member.⁴⁸ That review and study period ended on December 29, 2020, prior to the expiration of a panel member's term.⁴⁹ The only interference to the release of the opinion prior to the end of the term of the second panel member (to the extent it could possibly control the outcome between the parties) was the decision to record (late on December 29) and continue to hold a "two-week" study vote on the afternoon of December 31. The Chief Justice's opinion suggests that this vote was lawful and authorized by his understanding of the Court's practices. Again, however, the Court's written rules disagree.

48 I am obliged to disclose the following: "An opinion in a civil case shall be circulated to all Justices not on the sitting panel at the request of any member of the sitting panel after it is approved by the sitting panel. An opinion may issue eight calendar days after the opinion is circulated to all Justices. A request for full-Court circulation should be guided by the criteria for non-memorandum opinions set out in Texas Rule of Appellate Procedure 47.4." I.O.P. 5.09(c)(1) (emphasis added).

49 The Chief Justice himself approved a shortened review and study period—out of consideration for the pending expiration of the panel member's term, but even had he not, the eight-day review and study period permitted by our internal rules would have ended on December 31, 2020, prior to the expiration of the panel member's term.

Though we have declined to share them with the Court's users for reasons unknown to me, I am compelled to note that our written internal rules also address this topic explicitly and authorize such a vote to be recorded in three instances: (1) a panel member may request a two-week delay to study a proposed panel majority opinion; and, (2) any member of the Court may request a two-week delay to study a proposed en banc opinion; or (3) a proposed panel decision to publish a criminal decision. Conspicuously absent from our written rules is any authorization for a non-panel member of the Court to request a two-week study delay in a civil case, such as this one.

And while the Chief Justice's opinion suggests that this "practice" is "common" or necessary to permit justices not on the panel to participate in any case of their choosing, neither of those things is true. Prior to the actions in this case, I do not recall such a vote in my six years on the Court; and, more to the point, I am not aware of any like vote ever being recorded in any appellate court in the face of an expiring term with the expectancy that it might result in a panel substitution after the panel had fully submitted and decided the case. Non-panel justices, of course, are at no risk of being denied an opportunity to participate in a case, as that right is specifically preserved to them in rule 49 by seeking en banc reconsideration or by filing a dissent to the denial of a request for en banc consideration, as the Chief Justice's reference to O'Connor confirms. See O'Connor v. First Court of Appeals , 837 S.W.2d 94 (Tex. 1992).⁵⁰ To be direct, neither our internal operating rules nor the rules of appellate procedure permit a non-panel member of this Court to disrupt or delay the release of a panel opinion by, for example, requesting a two-week study when an opinion in a civil case circulates to the full Court at the request of a panel member, or by blocking the release of an opinion approved by a majority of the panel members.⁵¹ The review and study period in this case was prompted, not by a "practice," but by a rule permitting, but not requiring, circulation to the full Court at the election of a panel member. That review and study period ended on December 29, 2020, prior to the expiration of a panel member's term. Thus, the Chief Justice is mistaken when he suggests that anything other than a two-week study vote delayed release of the panel decision.

50 I will also note that the apparent concern said to motivate this new unwritten "practice" in protecting the rights of the off-panel justice, notice and the right to participate in the panel's disposition does not appear to currently extend to other recent decisions from this Court, see Winstead v. Moore , No. 05-20-00050-CV, 633 S.W.3d 200 (Tex. App.—Dallas Aug. 20, 2021, no pet. h.) (Schenck, J., concurring with denial of en banc consideration) (two-week study vote in full court circulation of panel majority and dissent permitted while subsequent panel decision is "issued" first and to be later used as prior panel precedent in request for en banc consideration of the earlier panel decision), or involving panels speaking to particularly significant matters. E.g., In re Greg Abbott , No. 05-21-00687-CV, 2021 WL 3610314, at *1 (Tex. App.—Dallas Aug. 13, 2021, no pet. h.) (rejecting governor's petition for writ of mandamus challenging temporary restraining order enjoining portions of executive order in memorandum opinion).

51 The Chief Justice's attempt to suggest that the release of the opinion in the Sink case, after Justice Stewart retired, may have occurred as a result of Justice Stewart sitting by assignment following her retirement is unavailing, as this Court clearly noted that the opinion was prepared and approved by her prior to the expiration of her term and stated that Justice Keith was sitting by assignment. Sink v. State , 685 S.W.2d 403, 403, n.1, n.2 (Tex. App.—Dallas 1936, no writ) (per curiam). It is clear that this Court is capable of, and does, identify justices who are sitting by assignment. E.g., Lee v. Nguyen , No. 05-18-01256-CV, 2020 WL 5554936, at *1 n.1, n.2 (Tex. App.—Dallas Sept. 17, 2020, no pet.) (mem. op.). Justice Stewart was not.

4. The Concern Here Is Not Just that These Actions Were Contrary to the Actual, Written Rules.

Putting all of that aside, let us suppose for the moment that the proper interpretation of the rules of appellate procedure and our "practices" make a panel's decision executory after a majority of the panel agrees on the judgment. Let us further assume that the decision and the recorded votes so declaring are of no effect until the panel's decision has been circulated to and approval by justices who were not assigned to sit on the panel, are subject to further delay in the release to the parties by any justice outside the panel, and take effect only when the opinion is permitted by that justice to be released or "handed down" to the parties. Suppose also that all of this is consistent with rules 41.1,⁵² 43.1,⁵³ 47.3,⁵⁴ governing precedent,⁵⁵ rule 49.7's authorization for an otherwise superfluous re consideration, and our own written, approved internal operating procedures, making an impending term ending have the potential to trigger an expurgation of that justice's recorded vote, a substitution of a new panel member, and all that is said to be the perfectly natural and predictable sequence that followed. With the few Justices⁵⁶ of the Court active in this matter knowing all of this, what possible inference would a reasonable, objective observer draw from the actions to seek "expedited" circulation because of that ending term, whilst simultaneously recruiting votes to delay the release of the opinion that is supposed to be necessary to avoid a substitution? Likewise, what inference arises when a Justice, not on the panel, acting with notice of the exorbitant delay in an accelerated case, the impending term ending of one of the panel justices, and the earlier solicitation of and withdrawal of a stalling vote, insists, on the afternoon of December 31, 2020, on leaving a two-week study vote on file? What inference arises from that Justice not seeking "reconsideration" at any point through that "two-week study," the substitution of an outcome-altering panel vote, the harried request for en banc review only after being directed to rule 41.1 and Sink , the decision to ignore that substituted vote, or the subsequent refusal to permit a record of the vote to withhold the panel decision or to acknowledge it in a resulting order?

52 "Except as otherwise provided in these rules, the panel's opinion constitutes the court's opinion, and the court must render a judgment in accordance with an opinion." Tex. R. App. P. 41.1.

53 "The court of appeals should render its judgment promptly after submission of a case." Tex. R. App. P. 43.1.

54 "All opinions of the court are open to the public and must be made available...." Tex. R. App. P. 47.3.

55 Of course, this assertion is also contrary to the established law, not only as recognized by this Court in Sink, but by the Texas Supreme Court in the Castillo case the Chief Justice cites in his opinion. There, in conceding the withdrawal of its original "exit plan" for a justice was improper, the appellate court "correctly agreed that the Justice, ‘like every other justice on the court,’ " had the right to vote on cases heard by her panel. Castillo , 201 S.W.3d at 684.

56 Contrary to the Chief Justice's assertion, at no point does my opinion accuse twelve justices of engaging in the conduct giving rise to this problem. Quite to the contrary, the majority of the Court is presented with the awkward problem of determining the appropriate response to the affirmative, unprecedented actions and decisions of a minority. See discussion infra in Part III, C.

While all of this may also be properly the subject of mandamus or other proceedings, I refuse to accept that any of this was in keeping with "ordinary practices," much less any rule of this or any other court, or that it does not implicate the constitutional rights of the parties before us or that this Court is not obligated to acknowledge as much and deal with the parties' rights first.

As to the Chief Justice's comments concerning the "issuance" of the opinion, as I stated before, judges do not issue opinions, the clerk's office sends notice of decisions to the parties (i.e. "hands down" the decision under rule 48.1 ),⁵⁷ and Rule 41.1 of the Texas Rules of Appellate Procedure and Sink make it clear that the majority's approval of the opinion is the decision of the Court, regardless of whether a justice whose term expires prior to the clerk's office releasing the opinion is eligible to sit by assignment. No one contests that the panel member whose term was about to expire approved the majority opinion prior to the expiration of his term or that the opinion circulated to the full Court on December 23, 2020, on an expedited basis. And even if the panel opinion had not circulated on such a basis, under our operating rules the opinion would have been ready to release to the parties on December 31, eight days after full Court circulation, and prior to the expiration of the second panel member's term. On December 31, the release of the opinion was delayed by a single justice over objection, without any basis in the rules, in contravention of the plain language of rule 41.1, and under circumstances that would cause a reasonable observer to question the purpose other than the delay itself and resulting substitution. That the panel opinion was still withheld thereafter, again in contravention of the rules of appellate procedure and prior precedent, and these en banc proceedings have proceeded as they have, does little to help matters. B. Mandamus or Opinion

57 The question of whether and when an opinion will function as precedent after it has been handed down and the Court's mandate has been issued is addressed in rule 47.7 and is irrelevant here.

As I have detailed above, I believe the appropriate action in this instance is to disclose in an opinion, as others have done before me, my concerns regarding the actions taken by members of this Court in deciding this appeal. The Chief Justice does not agree that this is an appropriate forum in which to disclose my concerns and instead states his view that I should raise my due-process concerns in a petition for writ of mandamus.⁵⁸ As an initial matter, I note that, immediately following the events in December and January, it would have been injudicious of me to have pursued a mandamus proceeding without knowing where the Court was ultimately going in this case, what the rationale for our actions would ultimately be,⁵⁹ and, most critically, before giving the justices an opportunity to know the basis for my opinion and an opportunity to correct me if and where I am wrong on the facts or the law.

58 The Chief Justice also states his belief that a complaint with the State Commission on Judicial Conduct would be appropriate here. However, as I have already stated in Part III of this opinion, that action would provide no relief to the parties affected here.

59 As noted above, it was not clear in January whether the Court was reconsidering the December panel opinion, purporting to make an initial decision en banc, contrary to its earlier screening and assignment to a panel, or reconsidering the decision of the fourth panel member late in the afternoon of the first en banc request. The Chief Justice's long-awaited opinion sheds less than a complete light on that question.

Moreover, why a mandamus action would be preferable to disclosure in an opinion is hard to fathom given his stated concern. The Chief Justice does not suggest that such an original proceeding should or even could be filed secretly or under seal. See Nixon v. Warner Commc'n, Inc. , 435 U.S. 589, 598, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (purpose of presumed right of access to court filings is to keep public eye on judiciary and other governmental agencies); see also In re Policy Mgmt. Sys. Corp. , Nos. 94-2254, 94-2341, 1995 WL 541623, at *4 (4th Cir. Sept. 13, 1995) ; Wilk v. Am. Med. Ass'n , 635 F.2d 1295, 1299 n.7 (7th Cir. 1980) ("the purpose of the common law right of access is to check judicial abuses"). In fact, he cites opinions in which various internal workings of the courts are disclosed and discussed in mandamus proceedings. See, e.g., Castillo , 201 S.W.3d 682 ; Yates , 960 S.W.2d at 652 ; O'Connor , 837 S.W.2d at 95. Meanwhile, the practical effect of the pursuit of such a proceeding, rather than disclosure in this opinion, would be to make the issue public to every observer of the Texas Supreme Court's docket, leaving only the parties affected by it ignorant except insofar as they might discover their due-process problem by happenstance.

The Chief Justice thus does not explain why filing a petition for writ of mandamus, with the disclosures made here, would in any way alleviate his concern that such a disclosure of what transpired in this case would constitute a violation of the state constitution or code of judicial conduct. See TEX. CONST. art. V, § 1-a (6)(A); Tex. Code Jud. Conduct, Canon 2A, reprinted in TEX. GOV'T. CODE ANN. , tit. 2, subtit. G, app. C.⁶⁰

60 One might wonder, too, how this Court managed to avoid any violation of these same authorities in addressing the allegations of judicial misconduct and due process violations in opinions regarding lower court judges. See, e.g., Thomas v. 462 Thomas Fam. Prop. , 559 S.W.3d 634, 641–44 (Tex. App.—Dallas 2018, pet. denied) ; Rymer v. Lewis , 206 S.W.3d 732, 736 (Tex. App.—Dallas 2006, no pet.).

It is apparent to me that the Chief Justice's suggestion that mandamus or a report to the commission on judicial conduct is the course that I should have pursued highlights this Court's concern about protecting individual justices on the Court. While I share that concern, I am also concerned about, and constitutionally and ethically obliged to acknowledge and protect, the rights of the parties.

While I believe that the appellants' arguments in this case are unavailing and that nothing about this case warranted the extraordinary actions, including the bewildering delay or this en banc proceeding, my opinion may or may not be correct and cannot serve as a basis to deprive appellants of the right to review of that structural question. While the challenges facing the Court may be broader than the actions taken in this case,⁶¹ the actions here are sufficient to warrant, indeed, to require, notice to the parties, as they deserve an outcome in accordance with the rules and from a transparently impartial tribunal. I do not intend to preclude the possibility that the issues presented in this case may also be proper for mandamus or other proceedings elsewhere, but the rights of the parties must be addressed first. Here, in view of the existing delay, direct review and final decision, rather than transfer to another court of appeals to start over would seem advisable, with the supreme court deciding whether such review is necessary and making any such further direction and referrals as it deems proper.

61 I do not agree, for example, with the Chief Justice that Castillo supports non-random panel formations or the manual assignment of cases to those panels. Castillo simply addressed the manner of making writing assignments within panels. Meanwhile, whatever process has been used to assign a case to a panel, the parties have a right to that decision, not a particular outcome decreed by someone else.

I conclude by noting, if I am wrong in my view of the facts and of the due process problem in this extraordinary case, as the Chief Justice contends but will not elucidate, where is the harm to the judiciary in my stating that view? Meanwhile, if I am correct in my view, how could withholding that information from the parties directly affected by it fulfill my constitutional and ethical obligations or advance the legitimacy of the judiciary? Indeed, my leaving both parties to their fates and standing silent pending the possible or likely development of this problem elsewhere would undermine, not promote confidence in the judiciary. As Judge Batchelder put it in similar, awkward circumstances: "Public confidence in this court or any other is premised on the certainty that the court follows the rules in every case ... Unless we expose to public view our failures to follow the court's established procedures, our claim to legitimacy is illegitimate." Grutter , 288 F.3d at 782.

CONCURRING AND DISSENTING OPINION

Concurring and Dissenting Opinion by Justice Osborne

I agree with and join section I of the majority opinion which contains the majority's recitation of the facts, but write separately to provide additional facts necessary to my concurring and dissenting analyses. While I am in agreement with the majority's judgment to the extent it affirms the trial court's order granting Frank Saidara's special appearance as to the statutory claims against him, I do not join section III of the majority's opinion because I disagree with the reasoning relating to the plaintiff's burden of proof. Further, I would conclude the trial court erred by granting Saidara's special appearance and dismissing the common law claims against him. I write separately to explain my dissent to that part of section III of the majority opinion and state why I would reverse and remand that portion of the trial court's order. I also include an analysis of the fiduciary shield doctrine because I consider it necessary to the disposition of the appeal. The following is how I would analyze the parties' issues:

This interlocutory appeal is about whether Texas has personal jurisdiction over a nonresident defendant who is alleged to have committed torts while in Texas. And because Saidara ‘messed with Texas’ by traveling here where it is alleged he committed common law torts for which he can be found personally liable, I believe Texas has jurisdiction over those claims.

I would conclude: (1) the fiduciary-shield doctrine does not protect Saidara from the exercise of specific jurisdiction in Texas; (2) the trial court did not err when it granted Saidara's special appearance as to Steward Health Care System, LLC and Southwest General Hospital, LP's statutory claims for misappropriation of trade secrets under the Texas Uniform Trade Secrets Act and violation of the Texas Harmful Access by Computer Act; and (3) the trial court erred when it granted Saidara's special appearance as to Steward Health and Southwest General's common law claims against Saidara for fraud and "unfair competition." I would reverse in part and affirm in part the trial court's order, and remand the case for further proceedings consistent with this opinion.¹

I. FACTUAL AND PROCEDURAL BACKGROUND

The factual background in this opinion is a recitation of the allegations and evidence contained in Saidara's special appearance and Steward Health and Southwest General's first amended petition and response to the special appearance.

Steward Health is a Delaware limited liability company with its principal place of business in Dallas, Texas. It is a Dallas-based health system and owns numerous hospitals including Southwest General, which is a Delaware limited partnership with its principal place of business in San Antonio, Texas. Prospect Medical Holdings, Inc. (Prospect Medical) is a Delaware corporation with its principal place of business in Los Angeles, California. Saidara is the vice president of corporate development for Prospect Medical. He resides and works in California. Prospect Medical owns Prospect Health Services TX, Inc., f/k/a Nix Health Services Corporation (Prospect Health) which is a Texas corporation with its principal place of business in San Antonio, Texas.

In 2018, Prospect Medical approached Steward Health about acquiring the assets of Southwest General. To facilitate Prospect Medical's due diligence, Steward Health set up a virtual data room where documents relevant to the proposed transaction were uploaded; a subset of the data was placed into a more restrictive virtual clean room. Prospect Medical tasked Saidara as well as other officers and high-level employees with conducting negotiations and performing due diligence related to the transaction. The individuals with access to the virtual clean room (the clean team), which included Saidara, were approved by Steward Health and required to sign a clean team agreement that limited their disclosure of information, expressly authorized the clean team to prepare "evaluative analyses and aggregated summaries" of the sensitive materials for their individual use in evaluating the proposed transaction, prohibited the unauthorized sharing or dissemination of the materials in the virtual clean room as well as any documents created that incorporated or used that sensitive information, and restricted their use of the sensitive information to the purposes permitted by a separate confidentiality agreement signed by Steward Health and Prospect Medical.

Saidara accessed information online in the virtual data room and clean room from his work computer in California. He also participated in electronic and telephonic communications with Steward Health and Southwest General relating to the potential transaction. On one occasion, Saidara traveled to Texas, toured the Southwest General facility with James Summerset, the interim chief executive officer of Prospect Health, and attended a meeting with high-level agents of Steward Health and Southwest General. While on the site visit, "Summerset asked an unusual amount of questions about proprietary Southwest General data. Specifically, Summerset inquired about physician employment arrangements and compensation data." On September 15, 2018, Saidara allegedly downloaded all of the information from the virtual clean room to his work computer in California.

On September 20, 2018, Prospect Medical informed Steward Health that it was no longer interested in acquiring the assets of Southwest General. Steward Health and Southwest General allege that persons within Prospect Medical and Prospect Health later leaked information relating to the proposed transaction, which made it more difficult for Southwest General to market and sell its assets.

Then, on November 7, 2018, Steward Health and Southwest General filed their original petition against Prospect Medical, Prospect Health, and Saidara. In their first amended petition, Steward Health and Southwest General alleged claims for: (1) common law fraud and violations of the Texas Harmful Access by Computer Act against Prospect Medical, Prospect Health, and Saidara; (2) statutory misappropriation of trade secrets under the Texas Uniform Trade Secrets Act and common law "unfair competition" against Prospect Medical and Saidara; and (3) conspiracy against Prospect Medical and Prospect Health. Steward Health and Southwest General claimed that personal jurisdiction existed as to Saidara because he had contacts with Texas with respect to the complained-of acts.

Saidara filed a special appearance arguing the trial court lacked personal jurisdiction over him because: (1) there is no basis for general jurisdiction; and (2) the trial court cannot exercise specific jurisdiction because (a) the alleged activities supporting the claims against him occurred while Saidara was in California acting in the course of his employment with Prospect Medical, (b) all of his alleged wrongful acts were in connection with his employment so he is protected by the fiduciary-shield doctrine, and (c) "[Steward Health and Southwest General] have failed to plead any purposeful (wrongful) activities by Saidara originating in Texas." Attached to Saidara's special appearance were his declaration and the clean team agreement.

Steward Health and Southwest General responded that the trial court had specific jurisdiction over Saidara but did not attach any evidence to support their allegations. The trial court signed an order granting Saidara's special appearance and dismissing the claims against him. In that order, the trial court concluded that "there is no record evidence that would support the exercise of general jurisdiction over [ ] Saidara" and there was no specific jurisdiction. II. SAIDARA'S SPECIAL APPEARANCE

Steward Health and Southwest General raise one issue on appeal arguing the trial court erred when it granted Saidara's special appearance.² They argue the trial court has specific jurisdiction over Saidara because: (1) the Texas long-arm statute extends to Saidara's contacts; (2) Saidara had sufficient minimum contacts with Texas; (3) Saidara cannot show the exercise of specific jurisdiction would impose an unreasonable burden on him; and (4) the fiduciary-shield doctrine does not protect Saidara from specific jurisdiction.

(A) Fiduciary-Shield Doctrine

I begin with an analysis of Steward Health and Southwest General's argument that the trial court erred when it granted Saidara's special appearance on the basis that the fiduciary-shield doctrine protects Saidara from specific jurisdiction because, if the trial court did not err, that argument would be dispositive of this appeal. Specifically, they contend the fiduciary-shield doctrine does not protect Saidara from their tort claims for fraud, violation of the Texas Harmful Access to Computer Act, misappropriation of trade secrets under the Texas Uniform Trade Secrets Act, and common law "unfair competition." Saidara responds that Steward Health and Southwest General have not pleaded sufficient facts to show that Saidara has actually committed tortious or fraudulent acts for which he may be personally liable. He also argues that the uncontroverted evidence demonstrates he did not commit any of the alleged torts.³

(1) Applicable Law

In a special appearance, a defendant may deny that the alleged contacts apply to him because he was acting in the course and scope of his employment. See Stull v. LaPlant , 411 S.W.3d 129, 135 (Tex. App.—Dallas 2013, no pet.). The fiduciary-shield doctrine protects a nonresident corporate officer or employee from the exercise of jurisdiction when all of his contacts with Texas were made on behalf of his employer. Tabacinic v. Frazier , 372 S.W.3d 658, 668 (Tex. App.—Dallas 2012, no pet.) ; Nichols v. Tseng Hsiang Lin , 282 S.W.3d 743, 750 (Tex. App.—Dallas 2009, no pet.). However, a corporate agent is not shielded from the exercise of specific jurisdiction as to torts for which the employee may be held individually liable.⁴ Jani-King Franchising, Inc. v. Falco Franchising, S.A. , No. 05-15-00335-CV, 2016 WL 2609314, at *2 (Tex. App.—Dallas May 5, 2016, no pet.) (mem. op.); Stull , 411 S.W.3d at 137. Further, the fiduciary-shield doctrine does not protect an employee from the exercise of specific jurisdiction if he engaged in tortious or fraudulent conduct directed at the forum state for which he may be held personally liable—even if all of the employee's contacts with Texas were performed in a corporate capacity. Spurgeon v. Empire Petroleum Partners, LLC , No. 05-18-00783-CV, 2019 WL 2521722, at *3–4 (Tex. App.—Dallas June 19, 2019, no pet.) (mem. op.); Nev. Nat'l Advert., Inc. v. Silverleaf Resorts, Inc. , No. 05-16-00694-CV, 2017 WL 655949, at *11 (Tex. App.—Dallas Feb. 17, 2017, no pet.) (mem. op.); see also Madison Dev. Grp. LLC v. Mattress Firm, Inc. , 608 S.W.3d 376, 399 (Tex. App.—Houston [1st Dist.] Aug. 6, 2020, no pet.) ; Yew Yuen Chow , 2019 WL 4021908, at *7 (rejecting argument that defendants are entitled to protection from specific jurisdiction on plaintiff's tort claims simply because their alleged torts of fraud, breach of fiduciary duty, and negligent misrepresentation were allegedly committed in a corporate capacity).

(2) Application of the Law to the Facts

In their first amended petition, Steward Health and Southwest General alleged claims against Saidara for fraud, violation of the Texas Harmful Access to Computer Act, misappropriation of trade secrets under the Texas Uniform Trade Secrets Act, and common law "unfair competition." All of these are tort claims.⁵ Saidara makes no argument that he cannot be held liable individually on these claims, and I see no reason he cannot.

The contacts with Texas giving rise to Steward Health and Southwest General's tort claims against Saidara are deemed to have been made by Saidara in his individual capacity. See Jani-King , 2016 WL 2609314, at *2 ; Stull , 411 S.W.3d at 137. The fiduciary-shield doctrine does not shield Saidara from the exercise of specific jurisdiction in this case if jurisdiction is otherwise proper. See Jani-King , 2016 WL 2609314, at *2 ; Stull , 411 S.W.3d at 137.

Accordingly, I would conclude the trial court erred to the extent it concluded the fiduciary-shield doctrine protects Saidara from the exercise of specific jurisdiction for Steward Health and Southwest General's tort claims. (B) Specific Jurisdiction Over Saidara

Steward Health and Southwest General argue that the trial court has specific jurisdiction over Saidara because: (1) the Texas long-arm statute extends to Saidara's contacts; (2) Saidara had sufficient minimum contacts with Texas; and (3) Saidara cannot show the exercise of specific jurisdiction would impose an unreasonable burden on him. Saidara responds that the trial court properly concluded it lacked personal jurisdiction over him because his contacts with Texas were insufficient to confer specific jurisdiction. And, even if he had sufficient minimum contacts with Texas, the exercise of personal jurisdiction over him does not comport with traditional notions of fair play and substantial justice.

(1) Standard of Review

Section II(a) of the majority opinion correctly states the applicable standard of review. I would add, however, that specific jurisdiction requires courts to analyze jurisdictional contacts on a claim-by-claim basis. M&F Worldwide Corp. v. Pepsi-Cola Metro. Bottling Co. , 512 S.W.3d 878, 886 (Tex. 2017) ; Moncrief Oil Int'l Inc. v. OAO Gazprom , 414 S.W.3d 142, 150 (Tex. 2013) ; see also Kelly v. Gen. Interior Constr., Inc. , 301 S.W.3d 653, 660 (Tex. 2010) (separately analyzing the sufficiency of jurisdictional allegations of plaintiff's claims). When a plaintiff brings multiple claims that arise out of a nonresident defendant's different forum contacts, the plaintiff must establish specific jurisdiction for each claim because the Due Process Clause prohibits the exercise of jurisdiction over any claim that does not arise out of or result from the defendant's forum contacts. E.g., Moncrief , 414 S.W.3d at 150. However, a court need not assess contacts on a claim-by-claim basis if all claims arise from the same forum contacts. Id. at 150–51.

(2) Burdens of the Parties in a Special Appearance

The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the provisions of the Texas long-arm statute. E.g., Luciano v. SprayFoamPolymers.com, LLC , 625 S.W.3d 1, 8 (Tex. 2021) ; Old Republic Nat'l Title Ins. Co. v. Bell , 549 S.W.3d 550, 559 (Tex. 2018) ; Moncrief , 414 S.W.3d at 149. In order to meet its burden, a plaintiff must show the act on which jurisdiction is predicated, not a prima facie demonstration of the existence of a cause of action. Bruno's Inc. v. Arty Imports, Inc. , 119 S.W.3d 893, 896–97 (Tex. App.—Dallas 2003, no pet.) ; Clark v. Noyes , 871 S.W.2d 508, 511 (Tex. App.—Dallas 1994, no pet.) (although Texas courts use federal due process standard for analyzing minimum contacts, they do not use federal procedural rules, which would incorrectly place burden to show sufficient minimum contacts on the party seeking to invoke jurisdiction). This minimal pleading requirement is satisfied by an allegation that the nonresident defendant is doing business in Texas or committed tortious acts in Texas. Jani-King , 2016 WL 2609314, at *4 ; Assurances Générales Banque Nationale v. Dhalla , 282 S.W.3d 688, 695 (Tex. App.—Dallas 2009, no pet.).

To determine whether a plaintiff has met its initial burden to plead sufficient allegations to invoke jurisdiction over a nonresident defendant under the Texas long-arm statute, an appellate court looks at the jurisdictional facts pleaded in the plaintiff's petition, as well as the jurisdictional facts alleged in the plaintiff's response to the nonresident defendant's special appearance. TEX. R. CIV. P. 120a(3) ; B.G.C. v. M.Y.R. , No. 05-20-00318-CV, 2020 WL 5987913, at *2 (Tex. App.—Dallas Oct. 9, 2020, pet. denied) (mem. op.); Jani-King , 2016 WL 2609314, at *4.⁶

Once the plaintiff has met this burden, the nonresident defendant has the burden to negate all bases of personal jurisdiction alleged in the plaintiff's petition. E.g., Luciano, 625 S.W.3d at 8 ; Old Republic , 549 S.W.3d at 559 ; Moncrief , 414 S.W.3d at 149. The nonresident defendant can negate jurisdiction on either a factual or legal basis. Kelly , 301 S.W.3d at 659. Factually, the nonresident defendant can present evidence it has no contacts with Texas, effectively disproving the plaintiff's allegations. Old Republic , 549 S.W.3d at 559 ; Kelly , 301 S.W.3d at 659. Legally, the nonresident defendant can show that, even if the plaintiff's alleged facts are true, the evidence is legally insufficient to establish jurisdiction; the defendant's contacts with Texas fall short of purposeful availment; for specific jurisdiction, that the claims do not arise from the contacts; or that traditional notions of fair play and substantial justice are offended by the exercise of jurisdiction. Old Republic , 549 S.W.3d at 559 ; Kelly , 301 S.W.3d at 659.

However, if the plaintiff does not plead any jurisdictional facts, the defendant still has the burden of proof, but he can carry his burden merely by proving that he is not a resident of Texas. Kelly , 301 S.W.3d at 658–59 (holding plaintiff had failed to plead any jurisdictional facts, and therefore, defendants were entitled to dismissal by proving nonresidency); Bruno's, Inc. , 119 S.W.3d at 897 ; Temperature Sys., Inc. v. Bill Pepper, Inc. , 854 S.W.2d 669, 673 (Tex. App.—Dallas, 1993, writ dism'd by agr.) ; see also Siskind v. Villa Found. for Educ., Inc. , 642 S.W.2d 434, 438 (Tex. 1982) (proof of nonresidency sufficient to carry burden of proof where plaintiff alleged no acts by defendants in Texas or any acts by defendants having foreseeable effects in Texas). Otherwise, the defendant must negate the pleaded jurisdictional facts. Bruno's Inc. , 119 S.W.3d at 897.

If the nonresident defendant produces evidence negating personal jurisdiction, the burden returns to the plaintiff who can then respond with its own evidence that affirms its allegations to show that the court has personal jurisdiction over the nonresident defendant. Kelly , 301 S.W.3d at 659 & n.6 ; Assurances Générales , 282 S.W.3d at 695.

(3) Personal Jurisdiction

The nature of the evidence a party must adduce to meet its burden of proof is defined by the Constitution, the Texas Legislature, statutes, and case law. Assurances Générales , 282 S.W.3d at 695–96 ; accord Ford Motor Co. v. Mont. Eighth Judicial Dist. Ct. , ––– U.S. ––––, 141 S. Ct. 1017, 1024, 209 L.Ed.2d 225 (2021) (long established that Fourteenth Amendment limits personal jurisdiction of state courts); see also Searcy v. Parex Res., Inc. , 496 S.W.3d 58, 66 (Tex. 2016) (personal jurisdiction turns on both federal and state law). Texas courts may assert personal jurisdiction over a nonresident defendant if: (1) the Texas long-arm statute authorizes the exercise of jurisdiction and (2) the exercise of jurisdiction is consistent with federal and state constitutional due process guarantees. Luciano, 625 S.W.3d at 8 ; Old Republic , 549 S.W.3d at 558 ; Moncrief , 414 S.W.3d at 149.

(a) Texas Long–Arm Statute

The Texas long-arm statute governs Texas courts' exercise of jurisdiction over nonresident defendants. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 17.041 – 17.045 ; PHC–Minden, L.P. v. Kimberly-Clark Corp. , 235 S.W.3d 163, 166 (Tex. 2007). The Texas long-arm statute is satisfied by a nonresident defendant who "commits a tort in whole or in part in this state." CIV. PRAC. & REM. § 17.042(2) ; Luciano, 625 S.W.3d at 8 ; Old Republic , 549 S.W.3d at 558–59.

The broad language of § 17.042 extends Texas courts' personal jurisdiction as far as the federal constitutional requirements of due process will permit. PHC–Minden , 235 S.W.3d at 166 ; Moki Mac River Expeditions v. Drugg , 221 S.W.3d 569, 575 (Tex. 2007). However, allegations that a tort was committed in Texas do not necessarily satisfy the United States Constitution. Old Republic , 549 S.W.3d at 559 ; Moncrief , 414 S.W.3d at 149.

(b) Due Process

In addition to the long-arm statute, the exercise of personal jurisdiction over a nonresident defendant must satisfy federal due process requirements. See PHC–Minden , 235 S.W.3d at 166 ; accord Asahi Metal Indus. Co., Ltd. v. Superior Ct. of Cal., Solano Cty. , 480 U.S. 102, 108, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (plurality op.); Int'l Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Under the Due Process Clause of the Fourteenth Amendment, personal jurisdiction over a nonresident defendant is constitutional when: (1) the nonresident defendant has established minimum contacts with the forum state; and (2) the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. Luciano, 625 S.W.3d at 8 ; Old Republic , 549 S.W.3d at 559 ; accord Burger King Corp. v. Rudzewicz , 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).

(i) Minimum Contacts

The purpose of the minimum contacts analysis is to protect a nonresident defendant from being haled into court when his relationship with the forum state is too attenuated to support jurisdiction. Am. Type Culture Collection v. Coleman , 83 S.W.3d 801, 806 (Tex. 2002). The focus of the minimum contacts analysis is on the nonresident defendant's activities and expectations. Michiana Easy Livin' Country, Inc. v. Holten , 168 S.W.3d 777, 790 (Tex. 2005). A nonresident defendant's contacts with a forum state can give rise to: (1) general jurisdiction (sometimes called "all-purpose"); or (2) specific jurisdiction (sometimes called "case-linked"). Luciano, 625 S.W.3d at 8 ; Moncrief , 414 S.W.3d at 150 ; accord Ford , ––– U.S. at ––––, 141 S.Ct. at 1024.

Specific jurisdiction refers to personal jurisdiction over a nonresident defendant in a lawsuit that arises out of or is related to the nonresident defendant's contacts with the forum state. Moki Mac , 221 S.W.3d at 576 ; accord Bristol-Myers Squibb Co. v. Superior Ct. of Cal. , ––– U.S. ––––, 137 S. Ct. 1773, 1780, 198 L.Ed.2d 395 (2017). When specific jurisdiction is asserted, the minimum contacts analysis focuses on the relationship between the nonresident defendant, the forum state, and the litigation. Moki Mac , 221 S.W.3d at 575–76 ; accord Bristol-Myers Squibb , 137 S. Ct. at 1780. For a court to exercise specific jurisdiction over a nonresident defendant, two requirements must be met: (1) the nonresident defendant's contacts with the forum state must be purposeful and (2) the cause of action must arise from or relate to those contacts. Moki Mac , 221 S.W.3d at 579 ; accord Burger King , 471 U.S. at 474–75, 105 S.Ct. 2174.

[a] Purposeful Availment

Purposeful availment is the touchstone of the jurisdictional due process analysis. Luciano, 625 S.W.3d at 8 ; Michiana , 168 S.W.3d at 784. A nonresident defendant's activities must be purposefully directed toward the forum state so that the nonresident defendant could foresee being haled into court there. Burger King , 471 U.S. at 474, 105 S.Ct. 2174. There are three parts to a purposeful availment inquiry: (1) only the nonresident defendant's contacts with the forum are relevant, not the unilateral activity of another party or a third person; (2) the contacts relied on must be purposeful rather than random, fortuitous, or attenuated; and (3) the nonresident defendant must seek some benefit, advantage, or profit by availing himself of the jurisdiction. Moki Mac , 221 S.W.3d at 575 ; accord Walden v. Fiore , 571 U.S. 277, 284–86, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014) ; Burger King , 471 U.S. at 474–75, 105 S.Ct. 2174.

[b] Alleged Liability Arises From or Relates to Contacts

Specific jurisdiction is established when the nonresident defendant's alleged liability arises from or is related to activity conducted within the forum. Moki Mac , 221 S.W.3d at 576 ; accord Bristol-Myers Squibb , 137 S. Ct. at 1780. The "arises from or relates to" requirement lies at the heart of specific jurisdiction by defining the required nexus between the nonresident defendant, the litigation, and the forum state. Moki Mac , 221 S.W.3d at 579. In order for a nonresident defendant's contacts in a forum state to support an exercise of specific jurisdiction, there must be a substantial connection between those contacts and the operative facts of the litigation. Moki Mac , 221 S.W.3d at 585 ; accord Walden , 571 U.S. at 284, 134 S.Ct. 1115. The operative facts of the litigation are those facts the trial court will focus on to prove the nonresident defendant's liability. See Jani-King , 2016 WL 2609314, at *5.

(ii) Traditional Notions of Fair Play and Substantial Justice

In addition to minimum contacts, the exercise of personal jurisdiction over a nonresident defendant must comport with traditional notions of fair play and substantial justice. Luciano, 625 S.W.3d at 18-19 ; BMC Software Belgium, N.V. v. Marchand , 83 S.W.3d 789, 795 (Tex. 2002). Courts evaluate those contacts in light of the following five factors to determine whether the assertion of jurisdiction comports with traditional notions of fair play and substantial justice: (1) the nonresident defendant's burden; (2) the forum state's interest in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial system's interest in obtaining an efficient resolution to disputes; and (5) the states' common interest in furthering fundamental, substantive social policies. Luciano, 625 S.W.3d at 18-19 ; accord Burger King , 471 U.S. at 477, 105 S.Ct. 2174.

However, when a nonresident defendant has purposefully established minimum contacts with the forum state, it will be only a rare case when the exercise of jurisdiction does not comport with traditional notions of fair play and substantial justice. Luciano, 625 S.W.3d at 18-19 ; TV Azteca v. Ruiz , 490 S.W.3d 29, 55 (Tex. 2016).

(C) Application of the Law to the Facts

(1) Adequacy of the Pleadings

As an initial matter, I address Saidara's contention that the trial court did not err because Steward Health and Southwest General "failed to meet their burden of pleading sufficient facts to establish a substantial connection between Saidara's alleged contacts with Texas and their claims for relief." Saidara relies on federal case law for the proposition that Steward Health and Southwest General were required to present a prima facie case with some evidence to make that showing.

However, under Texas law, Steward Health and Southwest General bore the initial burden of pleading sufficient allegations to bring Saidara within the provisions of the Texas long-arm statute. See Old Republic , 549 S.W.3d at 559 ; Moncrief , 414 S.W.3d at 149. They were not required, as Saidara contends, to provide a prima facie demonstration of the existence of their causes of action. See Bruno's Inc. , 119 S.W.3d at 896–97. Once Steward Health and Southwest General pleaded sufficient allegations to bring Saidara within the reach of Texas's long-arm statute, Saidara had the burden to negate all bases of personal jurisdiction alleged in their first amended petition. See, e.g., Old Republic , 549 S.W.3d at 559. If we required Steward Health and Southwest General to provide a prima facie demonstration of the existence of their causes of action, we would be incorrectly transferring Saidara's burden to them. See Clark , 871 S.W.2d at 511.

Nevertheless, I would liberally construe Saidara's contention to be that Steward Health and Southwest General failed to meet their minimal pleading requirement so the burden to negate jurisdiction never shifted to him. Steward Health and Southwest General maintain that the allegations in their first amended petition are uncontroverted and demonstrate specific jurisdiction.

In Steward Health and Southwest General's first amended petition, they claimed "[p]ersonal jurisdiction exists as to Saidara because he had contacts with Texas with respect to the acts complained of herein, including travel to Texas specifically directed at the transaction forming the basis of this lawsuit." In the "Background" section of their amended petition, they also stated that "Saidara visited Texas in connection with the sale of Southwest General's assets and participated in numerous communications (both electronically and telephonically) with counterparties in Dallas during which he misrepresented Prospect [Medical's] intention to purchase Southwest General. Saidara's communications were intentional and were directed to Steward [Health] in Texas." They further stated that "[d]uring one of Saidara's visits to Texas, he participated in a site visit at the Southwest General [f]acility."

In their response to Saidara's special appearance, Steward Health and Southwest General argued the trial court had specific jurisdiction over Saidara. First, they claimed the Texas long-arm statute was satisfied because Saidara committed fraud when during a visit to Texas he made material misrepresentations as to Prospect Medical's intent to purchase Southwest General's assets. Second, they maintained that the exercise of personal jurisdiction over Saidara was consistent with state and federal due process requirements. In summary, they argued that Saidara had sufficient minimum contacts with Texas because he purposefully availed himself of the forum when:

(1) he planned in advance and traveled to Texas to visit Southwest General, receiving a comprehensive tour of the facility and attending an hours-long meeting with high[-]level agents of Steward Health, Southwest General, and their investment banker to discuss the acquisition;

(2) he engaged in numerous telephonic and electronic communications with Steward Health's and Southwest General's agents in Texas; and

(3) while in Texas, he made misrepresentations and received some of Southwest General's highly confidential, proprietary, and trade-secret information, including the identities and specialties of Southwest General's most important physicians.

Further, Steward Health and Southwest General argued that the exercise of personal jurisdiction over Saidara comported with traditional notions of fair play and substantial justice because:

(1) the distance between Texas and California is reasonable,

(2) Texas has a clear interest in resolving the dispute because Saidara is alleged to have committed a tort in Texas,

(3) Steward Health's and Southwest General's principal places of business are in Texas,

(4) the subject of the transaction at issue was a Texas hospital, and

(5) judicial economy is promoted by the adjudication of the claims against Saidara with the claims against Prospect Medical and Prospect Health.

Finally, they claimed that Saidara could not hide behind the corporate form to avoid jurisdiction.

Looking at the jurisdictional facts pleaded in Steward Health and Southwest General's first amended petition, as well as the jurisdictional facts alleged in their response to Saidara's special appearance, I would conclude that they met their initial burden of pleading allegations sufficient to confer jurisdiction over Saidara because they alleged he committed tortious acts in Texas. See Jani-King , 2016 WL 2609314, at *4 (appellate court looks at jurisdictional facts pleaded in petition, as well as jurisdictional facts alleged in response to nonresident defendant's special appearance); Petrie v. Widby , 194 S.W.3d 168, 175 (Tex. App.—Dallas 2006, no pet.) (nonresident who travels to Texas and makes statements alleged to be fraudulent is subject to specific jurisdiction in Texas).⁷

The majority concludes that the Texas Supreme Court's statement in Kelly that "the defendant's corresponding burden to negate jurisdiction is tied to the allegations in the plaintiff's pleading " requires courts to look only to the jurisdictional allegations alleged in the plaintiff's petition. See Kelly , 301 S.W.3d at 658 (emphasis added). And, as a result, any jurisdictional facts alleged for the first time in a response to a special appearance may not be considered. I disagree with the majority's conclusion for three reasons: (1) case law does not support the majority's interpretation; (2) the majority's strict, technical approach is not in line with other case law and procedural directives; and (3) the majority's conclusion changes the law in a way the parties could not have anticipated.

First, the majority acknowledges that several cases from this Court as well as most of the other intermediate courts of appeals support my position that we should look to the jurisdictional facts pleaded in the plaintiff's petition, as well as the jurisdictional facts alleged in the plaintiff's response to the nonresident defendant's special appearance. However, the majority states that the Texas Supreme Court has not approved of this practice and has overruled our opinions to the contrary. I agree with the majority that the Texas Supreme Court has not expressly approved of this practice, but I disagree that it has rejected it.

This Court recently examined this practice in B.G.C. v. M.Y.R , No. 05-20-00318-CV, 2020 WL 5987913, at *2 (Tex. App.—Dallas Oct. 9, 2020, pet. denied) (mem. op.) and the Texas Supreme Court denied the defendant's petition for review on February 26, 2021. I acknowledge that the denial of a petition for review indicates that "Texas Supreme Court is not satisfied that the opinion of the court of appeals has correctly declared the law in all respects but determines that the petition presents no error that requires reversal or that is of such importance to the jurisprudence of the State as to require correction." TEXAS RULES OF FORM: THE GREENBOOK app. D (Tex. L. Rev. Ass'n ed., 14th ed. 2018). But this Court's holding that the plaintiff's "original pleading as well as its response to the defendant's special appearance can be considered in determining whether the plaintiff satisfied its burden" was at the very heart of B.G.C. 's petition for review and, as a result, the Texas Supreme Court's denial of the petition for review implies that it approves of this well-established practice among the courts of appeals.

In Alliance Royalties, LLC v. Boothe , this Court specifically addressed Kelly and concluded that Kelly "did not overrule or discuss [the] cases permitting jurisdictional allegations to be included in a response to a special appearance." 329 S.W.3d at 120–21.

Further, this Court would not be the first court of appeals sitting en banc to reach a conclusion similar to the one I would reach. In Washington DC Party Shuttle, LLC v. IGuide Tours , 406 S.W.3d 723, 738 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (en banc), the Fourteenth District Court of Appeals noted that the plaintiffs provided a basis for jurisdiction in their response to the special appearance that was not in their petition and reiterated its prior holding that the trial court may consider the plaintiffs' response to the special appearance as well as its pleadings when determining whether the plaintiff satisfied its initial burden.

Second, I agree that Kelly suggests we limit our review of the special appearance issue to only the pleadings. However, I question the majority's reliance on Kelly as support for a strict, technical pleading requirement in light of the subsequent Texas Supreme Court opinions in St. John Missionary Baptist Church v. Flakes , 595 S.W.3d 211, 212 (Tex. 2020) and Horton v. Stovall , 591 S.W.3d 567 (Tex. 2019). Both St. John and Horton rejected the appellate courts' treatment of cases and issues based on "technicalities."

The majority reads Kelly to limit the source of the plaintiff's jurisdictional allegations to the plaintiff's petition and appears to endorse a practice that could require multiple amendments to the petition. While I agree that the plaintiff may amend his petition to include additional, necessary jurisdictional allegations, Kelly is distinguishable because in that case, the third-party plaintiff had failed to plead any jurisdictional facts, and therefore the defendants were entitled to dismissal by proving nonresidency. I disagree that additional arguments in the plaintiff's response to the special appearance are rendered meaningless because they were not in the petition. The majority's hyper technical holding does not serve judicial economy and defies the principles enunciated in Texas Rule of Civil Procedure 1, which requires us to obtain a just, fair, and impartial adjudication of the rights of the litigants with expediency and the least expense possible as well as to give the rules a liberal construction, and Rule 45, which requires all pleadings to be construed so as to do substantial justice. See TEX. R. CIV. P. 1, 45. Such a requirement places form over substance and allows a harmless procedural defect to defeat personal jurisdiction.

In St. John , the Texas Supreme Court considered whether the courts of appeals have the authority to order supplemental briefing. St. John , 595 S.W.3d at 212. In the underlying opinion, this Court concluded that it did not have the authority to order supplemental briefing because the Texas Rules of Appellate Procedure did not allow the court to "sua sponte identify an issue not raised by a party and request additional briefing or reformulate an appellant's argument into one not originally asserted." Id. at 213. The Texas Supreme Court disagreed with our premise that the appellants had not raised the ecclesiastical-abstention doctrine in their brief and reversed this Court's judgment. Id. at 214.

In Horton , the Texas Supreme Court noted that this Court held the appellant did not demonstrate summary judgment was improper and, in fact, had " ‘not presented anything for [the Court] to review’ because the documents she cited as raising a fact issue were not part of the summary-judgment record." Horton , 591 S.W.3d at 568. This Court "primarily faulted [the appellant] for citing [ ] documents in the appendix of her appellate brief instead of providing citations to the clerk's record." Id. "But rather than allowing [the appellant] an opportunity to rectify that briefing defect, [this Court] treated [the appellant's] citations to her appendix as citations to the portion of the appellate record indicated on each appendix document." Id. This proved to be a problem for the appellant because, although the appellant "correctly identified the documents she was relying on to support her appellate issues and those documents were actually offered in opposition to [the appellee's] summary-judgment motions, [ ] the appendix [ ] cited [ ] those same documents where they were attached to [the appellant's] motion for continuance and motion for new trial." Id. The Texas Supreme Court reversed this Court and noted the appellant cited the right documents, but she had the wrong record citations, and the Texas Supreme Court concluded that this briefing inadequacy was easily correctable. Id.

The Texas Supreme Court's subsequent opinions in St. John and Horton suggest that our review should not be restrained by such a strict, technical application as suggested by the majority. In the context of defining the parties' burdens in a special appearance, I can see no meaningful distinction between the petition and the response to the special appearance. Neither filing must be verified. Furthermore, both the petition and response to the special appearance are submitted under the signature of counsel—subject to Chapter 10 of the Civil Practices and Remedies Code, Texas Rule of Civil Procedure 13, and the Texas Rules of Disciplinary Procedure. See generally CIV. PRAC. & REM. §§ 10.001 –.006; TEX. R. CIV. P. 13 ; TEX. R. DISCIPLINARY P. 1.01–17.10. Many Texas lawyers and judges may well question whether Horton and St. John overrule similar, overly technical applications of the Texas Rules of Civil Procedure—especially when, as here, the key difference is merely the title of the document. Such a restrictive reading would not be consistent with Rule 45's directive that "all pleadings shall be construed so as to do substantial justice." TEX. R. CIV. P . 45. As a result, I disagree with the majority's decision to overrule our prior opinions holding that we may look at the jurisdictional facts pleaded in the plaintiff's petition, as well as the jurisdictional facts alleged in the plaintiff's response to the nonresident defendant's special appearance when determining whether the plaintiff has met his burden to plead sufficient allegations to invoke jurisdiction over a nonresident defendant under the Texas long-arm statute.

Third, I cannot agree with the majority's conclusion because as I noted in fn. 6, we have consistently held that an appellate court looks at the jurisdictional facts pleaded in the plaintiff's petition, as well as the jurisdictional facts alleged in the plaintiff's response to the nonresident defendant's special appearance. The posture of this case is unique because, although the majority changes the law in a way the parties could not have anticipated, the majority affirms the trial court's order based on the new rule it adopts today. The case should be remanded in the interests of justice to allow the parties an opportunity to plead in a manner consistent with the majority's new rule. See generally, Brown v. Ogbolu , 331 S.W.3d 530, 537 (Tex. App.—Dallas 2011, no pet.) (appellate court has broad discretion to remand in interest of justice and, as long as there is probability case has not been fully developed, appellate court has discretion to remand rather than render decision); Kondos v. Lincoln Prop. Co. , 110 S.W.3d 716, 724 (Tex. App.—Dallas 2003, no pet.).

(2) Application of the Texas Long-Arm Statute to Saidara

Second, I address Steward Health and Southwest General's contention that the trial court erred when it concluded that the Texas long-arm statute did not extend to Saidara's fraudulent contacts with Texas. They allege Saidara knowingly misrepresented Prospect Medical's intentions about the proposed transaction while he was visiting Texas and claim that "the brunt of [their] injuries ... were felt in Texas."

The long-arm statute extends Texas courts' personal jurisdiction as far as the federal constitutional requirements of due process will permit. See, e.g., PHC–Minden , 235 S.W.3d at 166 ; Moki Mac , 221 S.W.3d at 575. Further, in addition to fraud, Steward Health and Southwest General alleged claims against Saidara for violation of the Texas Harmful Access to Computer Act, misappropriation of trade secrets under the Texas Uniform Trade Secrets Act, and "unfair competition." As previously noted in the discussion of the fiduciary-shield doctrine, all of these are tort claims. Accordingly, I would conclude the Texas long-arm statute extends jurisdiction over Saidara because Steward Health and Southwest General alleged he committed these torts in whole or in part in Texas. CIV. PRAC. & REM. § 17.042(2).

(3) Application of Minimum-Contacts Analysis to Saidara

Third, I address Steward Health and Southwest General's argument that the trial court erred when it concluded that it did not have specific jurisdiction over Saidara because he had sufficient minimum contacts with Texas. They claim that Saidara purposefully availed himself of the forum. However, they do not address the "arises from or relates to" requirement that lies at the heart of specific jurisdiction by defining the required nexus between the nonresident defendant, the litigation, and the forum state. See Moki Mac , 221 S.W.3d at 579.

Steward Health and Southwest General generally argue that "Saidara had substantial contacts with the State of Texas in connection with the transaction at the root of this lawsuit,"—establishing jurisdiction over all of their claims—rather than contending that specific jurisdiction exists as to Saidara's jurisdictional contacts on a claim-by-claim basis. In support of their argument, they cite this Court's opinion in Tabasso v. BearCom Group, Inc. , 407 S.W.3d 822, 830 n.1 (Tex. App.—Dallas 2013, no pet.), for the proposition that "[i]f the court finds specific jurisdiction over a defendant based on one cause of action, the court need not address jurisdiction as to any other causes of action." However, the Tabasso opinion was issued on June 26, 2013, and on August 31, 2013, the Texas Supreme Court impliedly disapproved of that proposition in Moncrief when it held that specific jurisdiction requires courts to analyze jurisdictional contacts on a claim-by-claim basis. See 414 S.W.3d at 150–51.

Based on my review of Steward Health and Southwest General's first amended petition, I would conclude that their claims against Saidara arose from different forum contacts, requiring us to analyze Saidara's contacts on a claim-by-claim basis.⁸ E.g., Moncrief , 414 S.W.3d at 150 (holding when multiple claims arise out of nonresident defendant's different forum contacts, plaintiff must establish specific jurisdiction for each claim). Accordingly, for purposes of the minimum contacts analysis, I group Steward Health and Southwest General's claims according to the forum contacts alleged.⁹

(a) Alleged Statutory Claims—Misappropriation of Trade Secrets Under the Texas Uniform Trade Secrets Act and Violations of the Texas Harmful Access by Computer Act

Steward Health and Southwest General alleged statutory claims against Saidara for misappropriation of trade secrets under the Texas Uniform Trade Secrets Act and violation of the Texas Harmful Access by Computer Act.¹⁰ The operative facts underlying those claims were that Saidara accessed and downloaded their confidential and trade-secret information, which was contained in the virtual clean room, for a purpose other than evaluating the proposed transaction.

In his declaration, which was attached to his special appearance, Saidara testified that:

At the time [Steward Health and Southwest General] allege[d] [Saidara] inappropriately downloaded confidential information or trade secrets (September 14, 2018), [he] was located in Los Angeles, California. [He] accessed information from the clean room for legitimate purposes related to Prospect [Medical's] due diligence of the [p]roposed [t]ransaction, and solely in [his] capacity as a Clean Team Member for Prospect [Medical] as its VP of Corporate Development.

Saidara does not contest that he downloaded information from the virtual clean room and, on appeal, advises that it is "undisputed that [he] accessed documents related to the [p]roposed [t]ransaction ... from his computer in ... California." Rather, he contends that his actions were legitimate and not inappropriate, and that the download occurred in California.

In their response to the special appearance, Steward Health and Southwest General did not attach any evidence to dispute Saidara's statement that the allegedly unauthorized download of information from the virtual clean room occurred in California. Although Steward Health and Southwest General also alleged that, while in Texas, Saidara received some of Southwest General's highly confidential, proprietary, and trade-secret information, including the identities and specialties of Southwest General's most important physicians, they do not argue or otherwise connect that trade-secret information to the trade secrets contained in the virtual clean room.

To support an exercise of jurisdiction, there must be a substantial connection between Saidara's contacts with Texas and the operative facts of the litigation. See Old Republic , 549 S.W.3d at 560. The operative facts of the litigation that form the basis of the statutory claims for misappropriation of trade secrets under the Texas Uniform Trade Secrets Act and violation of the Texas Harmful Access by Computer Act occurred in California where those trade secrets were allegedly downloaded from the virtual clean room and where the allegedly unauthorized exercise of dominion and control over those trade secrets occurred.¹¹ The alleged contacts that form the basis of these claims did not occur in Texas but outside the forum in California. See Info. Servs. Grp., Inc. v. Rawlinson , 302 S.W.3d 392, 402, 404 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) ("Even if we assume that Rawlinson ultimately obtained confidential information from the Texas-based servers and gave it to EquaTerra in breach of the various restrictive covenants with the appellants, there is no allegation or evidence that he did so in Texas.... On the facts before us, the majority of the focus of any trial would be directed to Rawlinson's alleged wrongdoing in the U.K., not Texas.").

The operative facts of Steward Health and Southwest General's statutory claims for misappropriation of trade secrets under the Texas Uniform Trade Secrets Act and violation of the Texas Harmful Access by Computer Act do not involve any Texas contacts by Saidara. Nor do the Texas contacts form the bases of those causes of action. Accordingly, I would conclude the trial court did not err when it granted Saidara's special appearance as to Steward Health and Southwest General's statutory claims for misappropriation of trade secrets under the Texas Uniform Trade Secrets Act and violation of the Texas Harmful Access by Computer Act. I agree with Justice Carlyle that, at times, the legal system trails behind technological advancement. However, we are duty bound to leave changes in statutory law to the legislature. As an intermediate appellate court we must follow existing law and respect the separation of powers established by our state, trusting the legislature to amend or revise laws as necessary to address technological advancements even if that process is slower than we would like. To that end, I encourage our legislature to reevaluate the Texas Uniform Trade Secrets Act in light of current technological advancements so that our future application of that law does not result in bizarre outcomes.

(b) Alleged Common Law Claims—Fraud and "Unfair Competition"

Steward Health and Southwest General alleged common law claims against Saidara for fraud¹² and "unfair competition."¹³ The operative facts for those claims were that, during a visit to Texas, Saidara made intentional, material misrepresentations as to Prospect Medical's intent to purchase Southwest General's assets and, by misleading them, he received some of Southwest General's highly confidential, proprietary, and trade-secret information, including the identities and specialties of Southwest General's most important physicians (Proprietary Information).¹⁴ Then, after Prospect Medical informed Steward Health that it was no longer interested in acquiring the assets of Southwest General, Saidara used that trade-secret information to make it more difficult for Southwest General to market and sell its assets.

12 To prevail on a common law fraud claim, a plaintiff must prove:

(1) the defendant made a false, material representation;

(2) the defendant knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth;

(3) the defendant intended to induce the plaintiff to act upon the representation; and

(4) the plaintiff justifiably relied on the representation, which caused the plaintiff injury.

Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc. , 590 S.W.3d 471, 496 (Tex. 2019).

13 Steward Health and Southwest General do not plead anything different from their fraud claim in their unfair competition allegation.

14 Although they argue that Saidara "received" trade secrets while in Texas, Steward Health and Southwest General specifically alleged that Saidara toured the Southwest General facility with Summerset and it was Summerset who asked an unusual amount of questions about proprietary Southwest General data and inquired about physician employment arrangements and compensation data.

The contact that Steward Health and Southwest General alleged established specific jurisdiction was Saidara's trip to Texas to visit Southwest General. During that visit, Saidara received a comprehensive tour of the facility and attended an hours-long meeting with high-level agents of Steward Health, Southwest General, and their investment banker to discuss the acquisition. They also alleged Saidara made numerous telephonic and electronic communications relating to the proposed transaction with Steward Health's and Southwest General's agents in Texas, and while in Texas he received some of Southwest General's Proprietary Information.

In his declaration, which was attached to his special appearance, Saidara testified he made one trip to San Antonio, Texas, in connection with Prospect Medical's due diligence for the proposed transaction. He also stated that he engaged in "conversations [and] activities related to the [p]otential [t]ransaction, in [his] capacity as [the] [v]ice [p]resident of [d]evelopment for Prospect [Medical]." In his special appearance, Saidara argued these conversations occurred while he was outside Texas and, on appeal, he advises that "[i]t is undisputed that [he] ... sent e­mails from his work computer in ... California."

I look to Saidara's actual business contacts, rather than what he thought, said, or intended. See Michiana , 168 S.W.3d at 791. Although, as Saidara points out, Steward Health and Southwest General do not specify the alleged content of Saidara's misrepresentations, they did specify that Saidara misrepresented Prospect Medical's intent to purchase Southwest General and that he made the misrepresentations while in Texas as well as in telephonic and electronic communications to individuals located in Texas. I would conclude this pleading is sufficient. Cf. Urban v. Barker , No. 14-06-00387-CV, 2007 WL 665118, at *5 (Tex. App.—Houston [14th Dist.] Mar. 6, 2007, no pet.) (mem. op.) (torts were not alleged with sufficient specificity to warrant exercise of specific jurisdiction when record fails to show where secret actions took place, where various shareholder agreements were created, and what personal benefit the defendant received from the alleged misrepresentations).

Saidara's contacts with Texas were neither unilateral activities by Steward Health and Southwest General, nor random and fortuitous.¹⁵ In furtherance of the proposed acquisition of Southwest General's assets by Prospect Medical, Saidara traveled to Texas to tour the Southwest General facility and attended a meeting with high-level agents of Steward Health, Southwest General, and their investment banker to discuss the proposed transaction. See Moncrief , 414 S.W.3d at 153 (personal jurisdiction exists when nonresident agreed to attend business meetings in Texas for purpose of obtaining benefits from those meetings). And it was during this visit that he allegedly made misrepresentations and received some of Steward Health and Southwest General's alleged Proprietary Information. See Jani-King , 2016 WL 2609314, at *5 (nonresident who travels to Texas and either makes statements alleged to be fraudulent or fails to disclose material information that he is under a duty to disclose is subject to specific jurisdiction in Texas in a subsequent action arising from statement or non-disclosure); Petrie , 194 S.W.3d at 175 (nonresident who travels to Texas and makes statements alleged to be fraudulent is subject to specific jurisdiction in Texas); Stein v. Deason , 165 S.W.3d 406, 415 (Tex. App.—Dallas 2005, no pet.) (nonresident defendant should have understood that his having made representations in Texas could reasonably lead to being haled into court in Texas). Saidara purposefully availed himself of the laws of Texas through his purposeful contacts with Texas. He should have realized the consequences of allegedly making representations and receiving some of Southwest General's Proprietary Information in Texas could include being haled into court in Texas.

15 I note that Saidara cites Information Services Group in support of his proposition that (a) his contacts with Texas were the unilateral activity of Prospect Medical because he visited Texas for the sole benefit of his employer and (b) he did not seek any personal benefit, advantage, or profit from his contacts with Texas, and Steward Health and Southwest General allege only that he misrepresented Prospect Medical's intentions and misappropriated trade secrets for Prospect Medical's use. See 302 S.W.3d at 401. However, the cited proposition appears within a paragraph discussing whether the employee's trips to Texas related in any way to the breach-of-contract claims against him and appears to reference the fiduciary-shield doctrine. 302 S.W.3d at 401. These arguments go to whether the fiduciary-shield doctrine operates to prevent the exercise of personal jurisdiction over Saidara, and I already stated that I would conclude it does not.

To support an exercise of jurisdiction, there must be a substantial connection between Saidara's contacts and the operative facts of Steward Health and Southwest General's claims in the litigation. See Old Republic , 549 S.W.3d at 560. The operative facts of the litigation are those facts the trial court will focus on to prove Saidara's liability. See Jani-King , 2016 WL 2609314, at *5. Saidara's alleged misrepresentations relating to the proposed transaction and acquisition of some of Southwest General's Proprietary Information while in Texas are at the core of Steward Health and Southwest General's fraud and "unfair competition" claims. As a result, the contacts showing purposeful availment are operative facts of the litigation for those claims.

I would conclude that with respect to Steward Health and Southwest General's common law claims for fraud and "unfair competition," Saidara had minimum contacts with Texas sufficient to support the exercise of specific jurisdiction.¹⁶

16 I express no opinion as to the merits of the claims against Saidara.

(4) Application of Fair Play and Substantial Justice

Fourth, because I would have concluded that minimum contacts with Texas exist as to Steward Health and Southwest General's common law claims for fraud and "unfair competition," I must determine whether the exercise of jurisdiction as to those claims comports with traditional notions of fair play and substantial justice. Steward Health and Southwest General argue the distance between Saidara's residence in California and Texas is reasonable, Texas has the clearest interest in providing a forum for the resolution of this dispute, Saidara committed a tort in whole or in part in Texas, their principal places of business are in Texas, the subject of the proposed transaction was a Texas hospital, and judicial economy is promoted because the claims against Prospect Medical and Prospect Health will be tried in Texas. Saidara responds that the exercise of jurisdiction would offend traditional notions of fair play and substantial justice because his minimal contacts with Texas were not for his own benefit but for the benefit of his employer. Again, Saidara's argument goes to the applicability of the fiduciary-shield doctrine, which does not apply in this case.

It was Saidara's burden to present a compelling case that jurisdiction was unreasonable. See Jani-King , 2016 WL 2609314, at *8. Despite his burden, Saidara presented no argument or evidence to support the trial court's conclusion "that the exercise of personal jurisdiction over [ ] Saidara would not comport with traditional notions of fair play and substantial justice." Specifically, in his special appearance, Saidara made no argument with respect to the requirement that the exercise of personal jurisdiction over a nonresident defendant must comport with traditional notions of fair play and substantial justice, although he did make a single reference to that requirement in his recitation of the case law. Further, in his declaration, Saidara did not address any of the five factors used to determine whether the assertion of jurisdiction comports with traditional notions of fair play and substantial justice. At most, he stated that he resides and works in California and he does not regularly visit Texas.

Nevertheless, I will evaluate Saidara's contacts in light of the five factors to determine if the assertion of jurisdiction comports with traditional notions of fair play and substantial justice. First, I evaluate Saidara's burden. The record shows that Saidara lives and works in California. While subjecting Saidara to suit in Texas certainly imposes a burden on him, the same can be said of all nonresident defendants. See id. at *6. And distance alone cannot defeat jurisdiction. See id. Further, Saidara, a corporate officer of Prospect Medical, has already shown his willingness to travel to Texas by traveling to San Antonio to conduct due diligence with respect to the proposed transaction. See id. I cannot conclude that further travel to Texas will be an unreasonable burden to Saidara.

Second, I evaluate Texas's interest in adjudicating the dispute. Steward Health and Southwest General have alleged that Saidara committed torts while in Texas. This implicates a serious state interest in adjudicating the dispute. See id.

Finally, I evaluate Steward Health and Southwest General's interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining an efficient resolution to disputes, and Texas's common interest in furthering fundamental, substantive social policies. The interests of Steward Health and Southwest General in obtaining convenient and effective relief clearly weigh in favor of Texas as they both have their principal place of business in Texas. See id. Further, judicial economy is promoted by adjudicating Steward Health and Southwest General's claims against Saidara in Texas because their claims against Prospect Medical and Prospect Health, which are based on the same operative facts, will also be adjudicated in Texas.¹⁷ I would conclude the trial court erred when it concluded that "the exercise of personal jurisdiction over [ ] Saidara would not comport with traditional notions of fair play and substantial justice" with respect to Steward Health and Southwest General's common law claims against Saidara for fraud and "unfair competition."¹⁸

17 Saidara states in his appellee's brief that the Massachusetts choice-of-law and mandatory forum provisions contained in the confidentiality agreement are "not dispositive" but argues they are "relevant and reinforce the conclusion that Texas courts lack jurisdiction over [him]." Although Saidara includes the confidentiality agreement in the appendix to his brief, that document is attached to Prospect Medical's answer and Prospect Medical was not a party to the special appearance proceedings. While I am aware that the trial court's order generally states that it is "[b]ased on the parties' pleadings," common sense dictates the trial court was referring to the parties to—Steward Health, Southwest General, and Saidara—and pleadings filed in the special appearance proceeding, not all the parties to and pleadings filed in the underlying lawsuit. See generally De Prins v. Van Damme , 953 S.W.2d 7, 18–19 (Tex. App.—Tyler 1997, pet. denied) (special appearance hearing is separate and distinct from any hearing on merits of underlying lawsuit). Accordingly, Saidara cannot now rely on the confidentiality agreement's provisions to support the trial court's order. Cf. Ugwa v. Ugwa , No. 05-17-00633-CV, 2018 WL 2715437, at *2 (Tex. App.—Dallas June 6, 2018, no pet.) (mem. op.) (documents attached to pleadings are not evidence unless offered and admitted by the trial court). For these reasons, I cannot agree with Part I of Justice Schenck's concurring opinion, which concludes that the choice-of-law and forum selection provisions contained in the confidentially agreement attached to Prospect Medical's answer demonstrate the parties did not expect any litigation between them to take place in Texas and therefore, the exercise of personal jurisdiction over Saidara does not comport with traditional notions of fair play and substantial justice.

18 The fundamental concern raised by the reasoning in Part I of Justice Schenck's concurring opinion is that the analysis is self-contradicting and addresses the issues in this appeal with too broad of a brush. On the one hand, he concludes that consideration of jurisdictional allegations in a response filed by a party to the special-appearance proceeding is inappropriate—based on a very narrow interpretation of Rule 120a(3) that excludes a party's response to a special appearance from the definition of "pleading" and, thus, limits the response's purpose solely to the introduction of evidence. Yet, on the other hand, Justice Schenck concludes the exercise of personal jurisdiction over Saidara does not comport with traditional notions of fair play and substantial justice—based on a very broad interpretation of "pleadings" that allows courts to consider attachments to the pleadings of parties to the litigation who are not parties to the special-appearance proceedings.

III. CONCLUSION

I would reverse in part and affirm in part the trial court's order granting Saidara's special appearance, and remand the case for further proceedings consistent with my concurring and dissenting opinion.

Finally, I note that the majority's opinion in this en banc interlocutory appeal creates the precise situation we sought to remedy in Chakrabarty v. Ganguly , 573 S.W.3d 413, 416–17 (Tex. App.—Dallas 2019, no pet.) (en banc). In Chakrabarty , this Court sitting en banc overruled its prior authority in order to bring it within the "long and unbroken line of authority to the contrary." Id. at 417. In contrast, in this interlocutory appeal, the majority acknowledges that several of this Court's opinions, as well as opinions from most of the other courts of appeals, state that courts may consider facts alleged in a response to a special appearance as well as the plaintiff's petition to determine if the plaintiff pleaded sufficient allegations to invoke jurisdiction under the Texas long-arm statute. Nevertheless, the majority overrules this Court's precedent to that effect. I believe that where the courts of appeals have long agreed and the Texas Supreme Court has repeatedly denied the petitions for review in such cases it is not for one court of appeals to break with that precedent and create a conflict in the law where one did not previously exist. In these types of situations, changes to widely accepted precedent among the courts of appeals should be made by the Texas Supreme Court.

Pedersen, J., joins.

Molberg, J., joins with respect to sections I and II(A), (B), (C)(1)–(2), (3)(b), and (4) only. He does not join as to section II(C)(3)(a). DISSENTING OPINION

Dissenting Opinion by Justice Carlyle

Though I join my dissenting colleagues in concluding that allegations in a special appearance response may be considered on appeal, I write separately because I disagree that personal jurisdiction here is limited to plaintiffs' fraud and unfair competition claims. I would conclude the trial court has specific personal jurisdiction over all of plaintiffs' claims.

The plaintiffs' claims here all arise from or are related to the same forum contacts, and we need not perform the minimum contacts inquiry on a claim-by-claim basis. Cf. Moncrief Oil Int'l Inc. v. OAO Gazprom , 414 S.W.3d 142, 150–51 & n.6 (Tex. 2013). No case mandates us to perform a claim-by-claim analysis here, certainly not Moncrief , which did not hold that courts must always analyze minimum contacts on a claim-by-claim basis. Id. We are only required to do that when the claims arise from different forum contacts. See Seiferth v. Helicopteros Atuneros, Inc. , 472 F.3d 266, 274 (5th Cir. 2006).

The allegations here are that Saidara engaged in a course of fraud during months of business acquisition negotiations, culminating in misappropriation and illegal file downloading from a virtual clean room. See TEX. CIV. PRAC. & REM. CODE §§ 134A.001, et seq. ; 143.001, et seq. They include the derivative tort of unfair competition.¹ The wrinkle is that, though Saidara visited Texas during the course of negotiations at least once and purportedly committed the fraud that is part of the basis of the case, at least in part in Texas, he wrongly raided the virtual clean room from his home state of California. I view this as a course of the same forum contacts, which leads me to the conclusion that the trial court incorrectly granted the special appearance. See Touradji v. Beach Capital P'ship, L.P. , 316 S.W.3d 15, 26 (Tex. App.—Houston [1st Dist.] 2010, no pet.) ; Sutton v. Advanced Aquaculture Sys., Inc. , 621 F. Supp. 2d 435, 440–42 (W.D. Tex. 2007).

No case or statute ties our hands to make only one conclusion about whether the forum contacts here arise from or are related to the appropriate degree. It is, as our decisions often are, a judgment call. We apply the law and common sense to reach our conclusions.

In deciding whether a plaintiff's claims are related to the same forum contacts, we must resist the urge to overanalyze petitions and should not commit the judicial institution to hypertechnical readings. After all, a plaintiff's petition is only required to provide opponents "fair notice." See TEX. R. CIV. P. 45 ; B.G.C. v. M.Y.R. , No. 05-20-00318-CV, 2020 WL 5987913, at *3 (Tex. App.—Dallas Oct. 9, 2020, pet. denied) (mem. op.). Perhaps we appellate courts could provide the trial courts guidance on how to analyze petitions to discern whether to aggregate minimum contacts on a claim or treat each contact as separate, though it strikes me as a mushy endeavor at best. Perhaps common sense is the best guide.

As noted, the plaintiffs here have plainly stated a course of fraud that culminated in a logical way, namely, trade secret theft via unauthorized electronic access obtained through misrepresentations. Saidara and Prospect Medical reached out to the Texas company Southwest General to acquire that business in Texas. Saidara visited Southwest General in Texas with colleagues, and then, after some time, allegedly raided the clean room. Texas entity Southwest General set up the clean room for the purpose of facilitating the negotiations and acquisition here in Texas. This cluster of contacts by Saidara to Texas establishes sufficient connection between the allegations and Texas to confer jurisdiction on the trial court and the claims should proceed to trial before the same jury instead of one jury in Texas on two claims and one in California on the other two claims.²

Even if I did not view the contacts in aggregation and instead analyzed the claims' contacts separately, I would conclude the court had jurisdiction over the statutory claims. We are faced with the intersection of technology and somewhat ancient law. Until recently, Southwest General would have physically crafted a secure room, likely in San Antonio, with appropriate physical security in place. Of course, now, this is less cost-and time-effective than providing secure electronic access to files to a limited group of people for them to access when and where they desire.

It would have been no surprise to any party that Saidara accessed the clean room from a computer in California. This was likely the intent of the parties, and saved both parties the expense of establishing a physical clean room either in Texas or California.³ I view the access by a California entity of a Texas company's files as part of a potential acquisition of a Texas company to be an act directed at Texas. See Cornerstone Healthcare Grp. Holding, Inc. v. Nautic Mgmt. VI, L.P. , 493 S.W.3d 65, 72–73 (Tex. 2016) (concluding specific jurisdiction existed where defendants' "overarching transaction" "specifically sought both a Texas seller and Texas assets"); Searcy v. Parex Res., Inc. , 496 S.W.3d 58, 73–75 (Tex. 2016) (Canadian company negotiating for Colombian assets that happened to have been controlled by Texas company did not have sufficient contacts with Texas because it "did not specifically seek out a Texas seller or Texas assets"); see also Searcy at 93–94 (Guzman, J., dissenting, joined by Boyd, J.) (thoroughly discussing cases from across the country finding jurisdiction with limited contacts even when parties are in different states than the forum). The supreme court recently reaffirmed this concept, analyzing the "quality and nature" of the defendant's purposeful availment activity and its " ‘intent or purpose’ to target the Texas market." Luciano v. SprayFoamPolymers.com, LLC , 625 S.W.3d 1, 12 (Tex. 2021).

The misappropriation claim, as pled, requires some form of using "improper means" to access the trade secret. See TEX. CIV. PRAC. & REM. CODE § 134A.002(3). In their misappropriation claim, the plaintiffs stated, "Prospect and Saidara acquired the trade secret information through improper means, including through fraud." Thus the plaintiffs have pled that part of the action required to support liability occurred in Texas. See id. ; see also MacDermid, Inc. v. Deiter , 702 F.3d 725, 726–27 (2d Cir. 2012) (jurisdiction existed in Connecticut over Canadian defendant who accessed Connecticut computer server to misappropriate information belonging to her employer).⁴

I would reverse the trial court and remand for further proceedings consistent with this opinion.

Molberg and Nowell, JJ., join this dissenting opinion