Bonfire case first to be argued in Texas Supreme Court’s new term

The Texas Supreme Court today kicked off its 2009-2010 term by hearing oral arguments in three cases, including one stemming from the 1999 collapse of the Texas A&M University bonfire. At issue in Zachry Construction Co., et al. v. Texas A&M University is whether defendants in the wrongful-death and personal-injury suits filed following the bonfire accident can make third-party claims against the university. In August 2007 and on rehearing in November 2007, Waco’s 10th Court of Appeals, acting on Texas A&M’s appeal, reversed the 361st District Court’s orders denying the university’s pleas to the jurisdiction and motions for dismissal. The Zachry defendants -- Zachry Construction Corp., H.B. Zachry Co., H.B. Zachry Jr., Joe Collins, Harry Eugene Couch Jr., Samuel Kirby Smith and Hector Sandoval -- and other defendants Texas Aggie Bonfire Committee and Scott-Macon, Ltd. petitioned the state Supreme Court for review. The Zachary defendants argue, among other things, in their June 17, 2007, brief on the merits to the Supreme Court that the 10th Court’s decision should be vacated because 10th Court Chief Justice Tom Gray was not afforded sufficient time to participate in the decision. The Zachry defendants also argue in their brief that the 10th Court denied their constitutional right to appellate due process by not considering their argument that Texas A&M lacks standing to complain about its statutory joinder as a statutory responsible third party -- merely for proportionate responsibility purposes -- in the bonfire cases. Scott Macon also argues in its June 18, 2008, brief on the merits to the state Supreme Court that the 10th Court erred in dismissing Scott Macon’s breach of contract claim for indemnity against Texas A&M, because the appeals court did not consider whether that claim fell under the Texas Tort Claims Act’s waiver provisions. Texas A&M argues in its Aug. 6, 2008, brief on the merits to the Supreme Court that it has sovereign immunity and that the defendants’ arguments do not defeat that immunity. Justice Don Willett is not participating in the bonfire case; in their petition for review at the Supreme Court, the Zachry defendants argued Willett should not participate in the case because he formerly was with the Texas Office of the Attorney General, which represents Texas A&M. The Supreme Court also is missing one justice.  Former Justice Scott Brister has joined Andrews Kurth in Austin.
-- Mary Alice Robbins