The Coastal Corporation, Coastal Holding Corporation,

CIC Industries, Inc., Coastal States Crude Gathering Co.,

Coastal Refining & Marketing, Inc., Javelina Company,

and American Chrome & Chemicals, Inc., Petitioners

Jorge Garza, et al., Respondents

Justice Hecht, joined by Justice Gonzalez and Justice Owen, dissenting.

As careful as the Court is not to exercise jurisdiction it does not have, it must be equally careful to exercise all the jurisdiction it does have, for error on either side violates the constitution equally. "[I]t is a time-honored maxim of the Anglo-American common-law tradition that a court possessed of jurisdiction generally must exercise it." In oft-quoted language as clear as it is eloquent, the great Chief Justice Marshall explained in Cohens v. Virginia :

It is most true that this court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.

Less eloquently, but no less clearly, our commission of appeals echoed over seventy years ago, "courts cannot either decline jurisdiction nor assume that which is not conferred." As applied to original jurisdiction, the principle has important exceptions, including the several abstention doctrines in federal courts, actions in which the forum cannot provide appropriate relief, actions based on foreign penal laws or laws contrary to the forum's strong public policy, and practical limitations on the United States Supreme Court's original jurisdiction. But there neither is nor should be any exception to the principle as applied to an appellate court's exercise of its appellate jurisdiction.

As the Court explains, we have statutory jurisdiction of an interlocutory appeal if the court of appeals "holds differently" from a prior decision of another court of appeals or this Court. The Legislature originally conferred this jurisdiction on the Court in 1953. Until then, the Court's writ-of-error jurisdiction over interlocutory appeals had been restricted to orders granting or denying temporary injunctions in cases over which the Court would have jurisdiction in an appeal from the final judgment. The "holds differently" standard in the 1953 statute was first used in the 1891 amendment to Article V, Section 3 of the Texas Constitution, which provided that until otherwise provided by law, "'the appellate jurisdiction of the supreme court shall extend to questions of law arising in the cases . . . where the several courts of civil appeals may hold differently on the same question of law . . . .'" prescribing this Court's jurisdiction. These and other pre-1953 statutes also used standards other than "holds differently" to give this Court appellate jurisdiction in cases when the court of civil appeals' decision conflicted with a decision of another such court or this Court. This Court consistently construed such jurisdiction strictly, although it had few occasions to apply the "holds differently" standard Drawing on cases involving different conflict jurisdiction standards, we explained:

For this Court to have jurisdiction on the ground of conflict it must appear that the rulings in the two cases are "so far upon the same state of facts that the decision of one case is necessarily conclusive of the decision in the other." Dockum v. Mercury Ins. Co., 134 Tex. 437, 135 S.W.2d 700, 701. Or, "in other words, the decisions must be based practically upon the same state of facts, and announce antagonistic conclusions." Sun Mut. Ins. Co. v. Roberts, Willis & Taylor Co., 90 Tex. 78, 37 S.W. 311, 312. "An apparent inconsistency in the principles announced, or in the application of recognized principles, is not sufficient." Garitty v. Rainey, 112 Tex. 369, 247 S.W. 825, 827.

For jurisdiction to attach on the basis of conflict "The conflict must be on the very question of law actually involved and determined, in respect of an issue in both cases, the test being whether 'one would operate to overrule the other in case they were both rendered by the same court.'" West Disinfecting Co. v. Trustees, etc., 135 Tex. 492, 143 S.W.2d 749, 750.

None of the statutes construed in the cases on which Christy relied used the "holds differently" standard. Sun Mutual Insurance Co. v. Roberts, Willis & Taylor Co. construed a statute giving this Court jurisdiction in "'[c]ases in which a civil court of appeals overrules its own decisions or the decision of another court of civil appeals or of the supreme court.'" Garitty v. Rainey construed a statute requiring "Courts of Civil Appeals, whenever in any cause pending they reach a conclusion in conflict with an opinion theretofore rendered by another Court of Civil Appeals . . . to certify such conflict to the Supreme Court." Dockum v. Mercury Insurance Co. construed a statute making conclusive a court of appeals' decision in a case in which a county court would have original jurisdiction unless it involved "' conflicts between decisions of the Courts of Civil Appeals or between a decision of a Court of Civil Appeals and a decision of the Supreme Court.'" West Disinfecting Co. v. Trustees of Crosby Independent School District construed the same statute as in Dockum .

But Christy 's strict construction of "holds differently" was consistent with earlier cases construing "overrules" and "conflicts with" standards in different jurisdictional statutes. That construction has continued unchallenged for over forty years since Christy , through amendments to and recodifications of the jurisdictional statutes, and should not now be disturbed. I agree with the Court, however, that application of the statutory language should be freed from the confusion in some of our cases caused by Christy 's infelicitous references to the factual bases of decisions. As the Court now makes clear:

cases do not conflict if a material factual difference legitimately distinguishes their holdings. On the other hand, immaterial factual variations do not preclude a finding of jurisdictional conflict. A conflict could arise on very different underlying facts if those facts are not important to the legal principle being announced.

Thus, the test of this Court's jurisdiction under Section 22.001(a)(2) of the Government Code is whether the court of appeals' decision on a material point of law is so contrary to the decision of another appeals court or this Court, disregarding unimportant factual distinctions, that if both decisions were made by one court, the later would have to overrule the earlier.

The conflict between the Thirteenth Court of Appeals' decision in this case and the Fifth Court of Appeals' decision in RSR Corporation v. Hayes satisfies this test. In RSR , the district court certified a class of landowners within two miles of a lead smelter who claimed property damages and personal injuries caused by airborne emissions from the smelter. The court of appeals reversed, holding that whether the smelter's emissions caused any property damage could only be determined tract by tract, and thus law and fact issues common to all class members did not predominate over issues affecting only individual members, as required by Rule 42(b)(4) of the Texas Rules of Civil Procedure. In the present case, the district court certified sixteen subclasses together containing some 2,500 landowners in a six-square-mile area, grouped by location, date of acquisition, and alleged type of contamination, who claim property damages caused by airborne chromium and benzene emissions and groundwater pollution from ten unrelated nearby industrial facilities owned or operated by twenty-seven defendants. If common issues of law and fact did not predominate in RSR because of the necessity of proving the damage to each tract by a single pollutant from a single source, they cannot possibly predominate in the present case involving three pollutants from ten sources. If common issues of law and fact predominate in the present case, then they surely predominated in RSR , and that case was wrongly decided. The decisions in RSR and the present case cannot both be right. One court could not decide them both without overruling RSR .

The Court identifies three distinctions between the present case and RSR . The first is that RSR involved both property damage and personal injury claims, whereas the present case involves only property damage claims. But RSR did not conclude that class certification was improper because it included personal injury claims. Rather, the court considered the two types of claims separately and found that they shared the same problem: common issues did not predominate. Having determined that the property damage claims were not suitable for class treatment, the court concluded that the personal injury claims were also not suitable for class certification for the very same reason. Following an extensive discussion of the property damage claims, the court addressed the personal injury claims in one short paragraph at the end of its opinion. No fair reading of RSR can conclude that the class certification was reversed because plaintiffs asserted personal injury claims. RSR reversed the class certification because common issues did not predominate on any of plaintiffs' claims. It is true, as the Court says, that property damage claims may be more homogenous among class members than personal injury claims, but that observation does not explain the result in RSR . Even if property claims tend to be more homogenous than personal injury claims, property claims in particular circumstances may not be sufficiently similar that issues common to the claimants predominate. RSR held that issues affecting only individual members predominated for both property damage and personal injury claims. The same thing is true in this case. Some property claims could be asserted by a class; those in RSR and the present case are not among them.

The second distinction the Court draws between the present case and RSR is that the latter involved a single class whereas the former involves, in effect, sixteen separate classes. But the Court pointedly does not say that the division of class members into sixteen subclasses results in common issues predominating, which is the only fact that could make the distinction material. From the record, there is no indication that sixteen or even sixty subclasses could result in groups small enough that common issues would predominate. Remarkably, the Court states: "whether it does or does not produce commonality, the subclass structure renders this case factually and legally distinct from RSR ." This conclusion plainly contradicts the Court's test requiring that immaterial facts be disregarded. If the use of subclasses does not promote sufficient predomination of common issues among subclass members to satisfy Rule 42(b)(4), and the Court does not and cannot conclude that it does, then the use of subclasses is irrelevant.

The third distinction the Court finds is that "there was undisputed evidence in RSR that 'within a significant area of the geographic class, 70% of the class members d[id] not have hazardous levels of lead on their land.'" The court in RSR summarized an expert's data, represented by an isopleth map, which showed "what percentage of the soil samples taken from an area around the RSR smelter contained 1,000 parts of lead per million."

The map contained four isopleths. The inside circle represented an area where 84% of the soil samples taken contained more than 1,000 parts per million. The second circle represented an area where 50% of the samples taken exceeded 1,000 parts per million. The third circle designated an area where only 30% of the soil samples exceeded 1,000 parts per million. This 30% isopleth closely paralleled the geographic boundary of the class which the trial court certified. The experts testified that the level of lead deposits varied on any given piece of property located within the geographic boundaries of the certified class. The undisputed expert testimony showed that within the 30% isopleth, 70% of the soil samples taken would not contain hazardous levels of lead.

But just as alleged airborne contamination levels in RSR declined as the distance of property from the smelter increased, so airborne contamination levels in this case decline with the distance from the various sources. Indeed, the district court structured subclasses based on the location of the property with respect to the facilities. In this regard, the present case and RSR are alike -- not different.

The class claims of property damages in RSR were simpler in every respect than those claims in the present case. The personal injury claims in RSR were not the reason the court reversed class certification. The court concluded that common issues did not predominate with respect to either type of claims. If RSR was correctly decided, then the present case is wrongly decided and in direct conflict. Because the Court has jurisdiction of the case, it is constitutionally required to exercise it. The Court is not, of course, required to give the case plenary consideration -- although it certainly should -- but it cannot dismiss the case for want of jurisdiction.

This case is important to the State's jurisprudence because it involves an attempt to establish liability and causation collectively by groups of claimants, despite indisputable differences in each tract allegedly contaminated. The Court should grant the application for writ of error, set oral argument, and give the important issues raised plenary consideration. Because it does not do so, I respectfully dissent.

Nathan L. Hecht

Justice

Opinion delivered: July 14, 1998

Ohio v. Wyandotte Chems. Corp. , 401 U.S. 493, 496-497 (1971).

19 U.S. (6 Wheat.) 82, 100 (1821).

Stewart v. Moore , 291 S.W. 886, 891 (Tex. Comm'n App. 1927, holding approved).

17A Charles Alan Wright et al., Federal Practice and Procedure §§ 4241-4255 (1988); 17 James Wm. Moore et al., Moore's Federal Practice ch. 122 (3d ed. 1998).

Gulf Oil Corp. v. Gilbert , 330 U.S. 501, 507 (1947); Flaiz v. Moore , 359 S.W.2d 872, 874 (Tex. 1962); In re Smith Barney , ___ S.W.2d ___, ___ (Tex. 1998). See Restatement (Second) of Conflict of Laws § 84 (1971).

Restatement (Second) of Conflict of Laws § 85 (1971).

Id . at §§ 89-90.

Wyandotte Chems. Corp. , 401 U.S. at 499.

Tex. Const. art. V, § 3 (stating that the Supreme Court's appellate jurisdiction extends to all civil cases except as provided by law); Tex. Gov't Code § 22.001(a)(2) (stating that the Supreme Court has jurisdiction over appeals when the court of appeals "holds differently from a prior decision of another court of appeals or of the supreme court on a question of law material to a decision of the case"); id. § 22.225 (b)(3) & (c) (stating that a court of appeals' judgment is final in interlocutory appeals except when the court of appeals "holds differently" from another court of appeals or the Supreme Court as provided in Section 22.001(a)(2), and in certain other situations).

Act of May 19, 1953, 53rd Leg., R.S., ch. 424, § 1, 1953 Tex. Gen. Laws 1026.

Hajek v. Bill Mowbray Motors, Inc. , 647 S.W.2d 253, 254 (Tex. 1983). See Torrez v. Maryland Cas. Co. , 363 S.W.2d 235, 236 (Tex. 1962) (explaining that the primary objective of the 1953 amendments was "'to substitute the comparatively simple writ of error for the complicated mandamus-certified question practice in certain types of cases, such as divorce and slander cases and appeals from interlocutory orders'") (citation omitted).

See Schintz v. Morris , 35 S.W. 1041, 1041 (Tex. 1896).

See Holland v. Nimitz , 239 S.W. 185, 186 (Tex. 1922).

Act of March 26, 1913, 33rd Leg., R.S., ch. 55, § 1, 1913 Tex. Gen. Laws 107, then codified as Tex. Rev. Civ. Stat. art. 1521 (1913).

See, e.g., Hanway v. Galveston, H & S.A. Ry. Co. , 58 S.W. 724, 724-725 (Tex. 1900), applying the exception allowing jurisdiction over remanded cases in which a court of civil appeals "holds differently" from another:

Where there is a distinction between two questions, but that distinction is clearly of such a character as not to lead to a different determination, the questions, it seems to us, are the same. But if there be facts in the one case which are not in the other, and which are entitled to weight and consideration in deciding the matter in which they appear, the cases, in our opinion, are different. It is not for us to determine in this proceeding whether the difference in the facts stated by the court of civil appeals in the opinion in the present case is or is not such as ought to lead to a different decision of the two cases. We merely hold that the difference is a substantial one, -- that the questions are not the same, -- and that, therefore, we are without power to grant the writ of error prayed for.

See also Malone v. Dawson, 5 S.W.2d 965, 967 (Tex. 1928).

298 S.W.2d 565 (Tex. 1957).

Id. at 567, 568-569 (citation omitted).

37 S.W. 311, 312 (Tex. 1896) (emphasis added).

247 S.W. 825, 826-827 (Tex. 1923) (emphasis added) (citing Coultress v. City of San Antonio , 179 S.W. 515, 516 (Tex. 1915), which quoted the statutory provision). See also Harris v. Wilson , 59 S.W.2d 106, 108 (Tex. 1933) ; Layton v. Hightower , 12 S.W.2d 110, 110-111 (Tex. 1929); American Nat. Bank v. Hall , 265 S.W. 378, 380 (Tex. 1924).

135 S.W.2d 700, 700-701 (Tex. 1940) (emphasis added, citation omitted).

143 S.W.2d 749, 750 (Tex. 1940).

Ante at ___.

___ S.W.2d ___.

673 S.W.2d 928 (Tex. App.--Dallas 1984, writ dism'd).

673 S.W.2d at 933.

Ante at ___.

Ante at ___.

673 S.W.2d at 931.

Id. (emphasis added).