07-0485 City of Waco v. Larry Kelley from McLennan County and the 10th District Court of Appeals, Waco For petitioner: David W. Holman, Houston For respondent: LaNelle L. McNamara, Waco, and Richard W. Carter, Fort Worth The Supreme Court will hear arguments of whether hearing examiner exceeded his authority by ordering a fired police officer to be reinstated at reduced rank. A principal issue is whether state law allows a hearing examiner to order temporary suspension and reduction in rank of an assistant police chief indefinitely suspended after a drunken-driving arrest. In this case Kelley had been indefinitely suspended after his arrest in 2001. Waco argues that the hearing examiner reviewing the assistant police chief's discipline violated Texas Local Government Code section 143.053(e) because the examiner was limited, after finding the allegation to be true, to upholding Kelley's firing. Section 143.053(e) gives hearing examiners three options in reviewing a police officer's suspension: dismissal, temporary suspension or restoring the officer to previous rank. The trial court upheld the examiner's decision to suspend Kelley temporarily and to reinstate him as a sergeant. In a split decision, the appeals court reinstated Kelley as a commander, a higher rank than the examiner decided, but a rank lower than assistant chief.

08-0121 City of Waco v. Debra Kirwan from McLennan County and the 10th District Court of Appeals, Waco For petitioner: Charles D. Olson, Waco For respondent: Michael Singley, Austin For amicus curiae State of Texas: David S. Morales, Austin The principal issues in this case involving a death in a fall at a city park are (1) whether the Recreational Use Statute allows a premises-defect claim based on a natural condition and (2) whether the plaintiff presented a genuine issue of material fact regarding the city's gross negligence. Kirwan's son died when he fell 60 feet as a rock precipice gave way under him. To get to the cliff, Kirwan's son had to pass a stone wall across a path and a warning sign. Under the Recreational Use Statute, the landowner - in this case, Waco - does not owe a duty of care greater than that owed a trespasser for inherent natural dangers. Kirwan argues the statute's exception for gross negligence applies to a premises defect for a naturally occurring condition and points to a graduate student's report offered to the city that warned of falling rock dangers to walkers on paths below limestone cliffs at the park as evidence of the city's knowledge of the danger and its gross negligence in failing to fix the dangers. Waco, however, argues that gross negligence may only be established by showing a landowner created a condition that a recreational user would not reasonably expect on the property. The trial court granted to city's jurisdictional plea, but the court of appeals reversed, holding that the statute did not prohibit a premise defect based on natural conditions. The appeals court also held that Kirwan raised a material fact issue to support her gross-negligence claim. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. 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

(Justice Green not sitting) 09-0048 MCI Sales and Service Inc. and Motor Coach Industries Mexico, S.A. de C.V. v. James Hinton from McLennan County and the 10th District Court of Appeals, Waco For petitioners: Thomas C. Wright, Houston For cross-petitioner/respondent: Craig T. Enoch, Austin, and Thomas K. Brown, Houston The principal issues in this suit involving a bus crash near Waco are (1) whether federal law preempts design-defect claims - that seatbelts should have been provided for bus passengers and laminated glass should have been installed on the bus - and (2) whether the trial court abused its discretion by refusing to submit the bus owners as a "settling party." Hinton sued the bus owners and its driver as well as the company that sold the bus, MCI, and the manufacturer, Motor Coach Industries, over a 2003 accident that killed seven people. Two months after the accident, the bus owners filed for bankruptcy, leaving insurance to be distributed by the bankruptcy court. MCI, tried on design-defect claims, tried to join the bus owners as responsible third parties and, when the trial court refused that, attempted to have the jury assess the owners' proportionate liability as either responsible third parties or settling parties. The trial court rejected that. The court of appeals held that federal regulations did not preempt the design-defect claims, but reversed on the trial court's refusal to submit the proportionate-liability question. 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

The issue is whether a city's moratorium on sewer connections should apply to unsold lots in a platted development the city approved before the moratorium. In this case BMTP Holdings, the developer, sued to prevent the city from halting sewer connections to seven lots in two approved subdivisions. BMTP argues that Local Government Code section 212.131, defining property development for a city's moratorium such as this one, applies only when all development plans have not been completed. The trial court denied BMTP's summary-judgment motion. The court of appeals reversed the city's summary judgment, holding that section 212.131 excluded from the moratorium a subdivision that had been platted and approved.

The issue in this parental-rights termination appeal is whether the trial court erred by denying the mother's jury-trial request in de novo hearing.

The issue is whether a fraudulent-misdiagnosis claim falls under the health-care liability statute and requires a threshold expert-report requirement.

The issue in this parental-rights-termination case is whether the Department of Family and Protective Services proved the father violated Texas Family Code 161.001(b)(1)(E) - that he had engaged in conduct that endangered his daughter or knowingly placed her with persons who endangered her when he was in prison.

The issue is: Does an interlocutory appeal of a special appearance become procedurally moot when the trial court enters a final judgment merging the denial of the special appearance into the final judgment?