11-0589 Allcat Claims Service L.P. and John Weakly v. Susan Combs, Texas Comptroller of Public Accounts, and Greg Abbott, Texas Attorney General Direct appeal to the Texas Supreme Court For plaintiffs: James F. Martens, Austin For defendants: Danica Milios, Austin For amicus curiae businesses: Christopher S. Johns, Austin The principal issues are (1) whether the franchise tax on limited partnerships' income is an unconstitutional personal-income tax; (2) if not, whether the state comptroller's application of the tax violates the state constitution's mandate that taxes be equal and uniform; and (3) whether the Court has jurisdiction to decide the equal-and-uniform constitutional challenge. In its challenge, original and exclusive in this Court by statute, Allcat seeks a judgment declaring the tax unconstitutional on its face or as it has been applied to the company and seeks attorneys fees. Legislators approved the franchise tax on limited partnerships in 2006 as it revised the state's public-school financing law after the Court held the school-finance system unconstitutional the year before. Allcat argues that taxing limited-partnership income violates the constitutional prohibition on a personal-income tax without voters' approval because such a tax actually is on income distributed to partners and not on an entity distinct from its partners. If the franchise tax on limited partnerships is not unconstitutional for that reason, Allcat contends, the comptroller has interpreted in a way that treats Allcat differently from other taxpayers in similar situations. This Court has original jurisdiction to decide the question of how the tax has been applied, Allcat argues, citing Texas Government Code section 22.002(c). The comptroller responds that Texas law recognizes limited partnerships as entities and that taxing the limited partnership's margin - a calculation that is the lesser of 70 percent of total revenue or total revenue minus certain business costs - is a tax on the business entity, not the partners' shares of its income. As to the challenge to the comptroller's interpretation and how it applies to Allcat, the comptroller contends that goes beyond the Legislature's decision to give the Supreme Court exclusive jurisdiction over constitutional challenges to the margin tax itself. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

10-0886 In re Billy Frederick Allen Original proceeding under the Tim Cole Act For relator: Kristopher E. Moore, McKinney For respondent/real party in interest: Philip A. Lionberger, Austin The issue in Allen's effort to recover compensation for wrongful imprisonment is whether his habeas corpus relief was for actual innocence or whether compensation under the Tim Cole Act can be had for habeas relief by way of a so-called Schlup claim. The state comptroller denied Allen's money claim for the almost 29 years he spent in prison before the Court of Criminal Appeals granted his habeas petition. The court based its decision on ineffective assistance of counsel, but Allen's writ application - the fourth he filed - was brought on the Schlup procedure allowing a prisoner to filed such a subsequent writ petition if actual innocence were an issue despite the procedural bar against multiple habeas writ petitions. The Court of Criminal Appeals split 5-3, supporting habeas relief with a plurality opinion that addressed his ineffective-assistance-of-counsel claim but not his actual-innocence argument. After the decision, and Allen's release on bond, the Dallas County district attorney dismissed his case but left open the possibility it could be filed again. When the controller denied his Tim Cole Act application, Allen brought this mandamus petition to order the comptroller to make payment. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

10-0048 In re Billy James Smith Original proceeding for compensation under the Texas Wrongful Imprisonment Act For relator Mr. Smith: Kristopher E. Moore For real party in interest Comptroller of Public Accounts: Philip A. Lionberger, Austin The issue is whether the state should compensate a prisoner for the prison time he served after his parole was revoked based on a wrongful conviction in addition to the time he served for the wrongful conviction. In this case the comptroller, which decides requests under the Wrongful Imprisonment Act, refused to pay Smith for time he spent in prison time finishing a sentence after his parole was revoked. The comptroller argues in part that the act provides plainly that a person "is not entitled to compensation ... for any part of a sentence in prison during which the person was also serving a concurrent sentence" for a valid conviction. Smith argues that "in prison" modifies sentence and would not include parole and the Legislature passed the law to provide a remedy for wrongful convictions, not to penalize someone who would have been on parole and not in prison but for the wrongful conviction. The law should be interpreted broadly, Smith contends, to assure its remedial purpose. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

In this payment dispute involving federal recovery money after Hurricane Ike, the issues are (1) whether the parties' Rule 11 agreements bars the city from seeking mandamus relief; (2) whether the state land commissioner has a ministerial duty to refer the city's breach-of-contract claims to an administrative tribunal under Government Code chapter 2260; and (3) whether, to the extent the city alleges a breach of contract involving a contract to which the city is not a party, the commissioner has a ministerial duty to refer that claim to an administrative tribunal.

This mandamus arises out of the "tag-along" transfer of the underlying lawsuit to an MDL involving other sex-trafficking cases. The issue in this case is whether the MDL panel erred by refusing to remand the case, thereby allowing it to remain in the MDL.

The issues in this constitutional challenge against the state franchise tax are (1) whether the tax violates the state constitutional prohibition on taxes that are not equal and uniform; (2) whether the tax violates the federal constitution's equal-protection clause; (3) whether it violates Nestle's 14th amendment right to due process and (4) whether the tax violates Nestle's protection under the federal constitution's commerce clause by discriminating against interstate commerce. These issues duplicate the principal issues in 11-0855, Nestle USA Inc. v. Combs, dismissed February 10 for want of jurisdiction. In this case, in contrast to the earlier one, Nestle brings its challenge after paying taxes under protest, ostensibly curing the jurisdictional problem. At the heart of Nestle's argument is that its franchise-tax assessment as a manufacturer is twice what retail and wholesale businesses in Texas pay even though Nestle's business in Texas is retailing and wholesaling. Texas retail and wholesale businesses pay franchise taxes of one-half percent of their taxable margins, the revenue attributed to their Texas business, after deductions. Manufacturers pay 1 percent.

In this suit arising from a boundary dispute between San Patricio and Nueces counties - and its property-tax implications for Occidental, subject to tax bills from both counties on the same property - a principal issue is whether and to what extent the Court has jurisdiction to decide county boundaries and determine tax liabilities.

11-0855 Nestle USA Inc. v. Susan Combs, Comptroller, and Greg Abbott, Attorney General Direct appeal For plaintiff: Peter A. Nolan, Austin For respondent/real party interest: Rance L. Craft, Austin In this constitutional challenge to the state franchise tax, the principal issues are (1) whether the 2006 statutory procedure permitting a direct constitutional challenge to the franchise tax in this Court allows a taxpayer to sue without first paying its tax bill under protest; if so, (2) whether the tax violates the state constitutional prohibition against taxes that are not equal and uniform; (3) whether the franchise tax violates the federal constitution's equal-protection clause; (4) whether it violates Nestle's 14th amendment's federal due-process protection; and (5) whether the tax violates Nestle's protection under the federal constitution's commerce clause by discriminating against interstate commerce. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us