2024 Tex. Bus. 3
The Business Court of Texas Eighth Division
TEMA OIL AND GAS COMPANY, § § Plaintiff, § § v. § § Cause No. 24-BC08B-0001 § § ETC FIELD SERVICES, LLC FKA § REGENCY FIELD SERVICES, LLC, § Defendant. §
═══════════════════════════════════════════════ SYLLABUS1 ═══════════════════════════════════════════════
After construing H.B. 19—the legislation implementing Chapter 25A— the Court concludes that removal is not permitted for cases filed before September 1, 2024. The Court also concludes that sanctions are not warranted.
1NOTE: The syllabus was created by court staff and is provided for the convenience of the reader. It is not part of the Court’s opinion, does not constitute the Court’s official description or statement, and should not be relied upon as legal authority. 2024 Tex. Bus. 3
TEMA OIL AND GAS COMPANY, § § Plaintiff, § § v. § § Cause No. 24-BC08B-0001 § § ETC FIELD SERVICES, LLC FKA § REGENCY FIELD SERVICES, LLC, § Defendant. §
═══════════════════════════════════════════════ OPINION AND ORDER ═══════════════════════════════════════════════
¶1 Before the Court is Plaintiff Tema Oil and Gas Company’s (“Tema”)
Motion to Remand (“Remand Motion”) filed on October 8, 2024. Tema’s
Remand Motion and Defendant ETC Field Services, LLC, f/k/a Regency Field
Services, LLC’s (“ETC”) Brief on Jurisdiction and Response in Opposition to
OPINION AND ORDER, Page 1 Tema’s Motion to Remand raise two issues: (1) whether ETC is entitled to
remove to the Business Court of Texas (“Business Court”) the case
commenced in the 236th Judicial District Court of Tarrant County (“District
Court”); and (2) whether Tema is entitled to sanctions. After considering the
parties’ arguments and the relevant law, the Court concludes that neither
removal nor sanctions is appropriate. Accordingly, the Court grants in part
and denies in part Tema’s Remand Motion.
I. BACKGROUND
¶2 The parties are business entities operating in the oil-and-gas
industry. Their predecessors in interest executed a gas purchase contract
encompassing the working interest in gas produced from two tracts in Loving
County, Texas. The contract, according to Tema, obligates ETC to provide
facilities to receive Tema’s gas and to purchase it.
A. Tema commences litigation in the District Court
¶3 After ETC allegedly failed to meet its contractual obligation for
numerous months over several years, Tema sued ETC in the District Court on
March 17, 2017, for breach of contract and negligence. Thereafter, Tema and
ETC became embroiled in a plethora of trial and appellate court activity
OPINION AND ORDER, Page 2 spanning more than seven years before ETC filed a Notice of Removal to
Business Court (“Removal Notice”) on September 11, 2024.
B. The legislature passes H.B. 19 to create the Business Court
¶4 While this case was pending in the District Court, legislation
establishing the Business Court was enacted in 2023 when H.B. 19 was signed
into law. See Act of May 25, 2023, 88th Leg., R.S., ch. 380, §§ 1-9, 2023 Tex.
Sess. Law Serv. 919, 919-929. Section 1 of H.B. 19 codifies Chapter 25A of
the Texas Government Code to establish the Business Court. Id. § 1 (codified
at TEX. GOV’T CODE ANN. § 25A.001 et. seq). Although uncodified Section 9
of H.B. 19 notes that the effective date for H.B. 19 is September 1, 2023, two
other uncodified sections of H.B. 19—Sections 5 and 8—clarify that the
operative date for Chapter 25A is September 1, 2024. See Act of May 25,
2023, 88th Leg., R.S., ch. 380, §§ 5, 8-9, 2023 Tex. Sess. Law Serv. 919, 929.
Section 5 identifies the Business Court’s creation date as September 1, 2024,
and Section 8 declares that H.B. 19’s changes in law apply to cases begun on
or after September 1, 2024. Id. §§ 5, 8.
C. Section 25A.006 permits removal and authorizes sanctions
¶5 Chapter 25A permits the removal of a case to the Business Court
pursuant to Section 25A.006. See TEX. GOV’T CODE ANN. § 25A.006(d)-(j).
OPINION AND ORDER, Page 3 Section 25A.006 establishes that removal is effectuated by filing notice and
is permitted so long as the Business Court has jurisdiction; otherwise, remand
is required. Id. § 25A.006(d)-(g). Section 25A.006 also establishes that
sanctions are available for a frivolous notice of removal. Id. § 25A.006(h).
Nothing in Chapter 25A, including Section 25A.006, speaks to the removal of
a case commenced before September 1, 2024. Indeed, Chapter 25A does not
include the commencement-date restriction articulated in Section 8 of H.B.
19.
D. Rule 355 permits removal and authorizes a party to seek remand
¶6 To implement Chapter 25A, the Supreme Court of Texas adopted new
and amended rules of civil procedure applicable to the Business Court in June
2024. See Supreme Court of Tex., Final Approval of Rules for the Business
Court, Misc. Docket No. 24-9037 (Jun. 28, 2024). The operative date for
these new rules, like Chapter 25A, is September 1, 2024. See id. (“…this
Order incorporates the revisions and contains the final version of the new and
amended rules, effective September 1, 2024.”).
¶7 The rule governing removal is Texas Rule of Civil Procedure 355. See
TEX. R. CIV. P. 355. Like Section 25A.006, Rule 355 requires the moving
party to give notice and to establish the Business Court’s jurisdiction (albeit
OPINION AND ORDER, Page 4 the rule uses the term “authority”). TEX. R. CIV. P. 355(a)-(c). And like
Section 25A.006, Rule 355 also requires remand if removal was improper,
though, unlike Section 25A.006, Rule 355 authorizes a party to file a motion
to remand. TEX. R. CIV. P. 355(f). Nothing in these new rules, including Rule
355, speaks to the removal of a case commenced before September 1, 2024.
In fact, like Chapter 25A, these rules do not include the commencement-date
restriction articulated in Section 8 of H.B. 19.
E. ETC seeks removal and Tema seeks remand and sanctions
¶8 ETC filed its Removal Notice on September 11, 2024. ETC contends,
inter alia, removal is proper because the Business Court was granted authority
over this case on September 1, 2024. Tema responded to ETC’s Removal
Notice by filing its Remand Motion on October 8, 2024. Tema argues, inter
alia, removal is improper because only those cases filed on or after September
1, 2024, can be removed to the Business Court. Consequently, Tema seeks
remand. Tema also seeks sanctions against ETC. Sanctions are warranted,
according to Tema, because ETC seeks removal for frivolous purposes.
¶9 The Court also ordered, and the parties submitted, briefing on the
effect, if any, of Section 8 on the Court’s jurisdiction and authority to hear this
OPINION AND ORDER, Page 5 case. Although provided the opportunity, neither party requested a hearing on
its respective pleadings.
II. DISCUSSION
¶ 10 The issues before the Court are the propriety of removal and
sanctions.
A. Removal is not permitted
¶ 11 As mentioned previously, neither Section 25A.006 nor Rule 355
contains an express provision permitting or prohibiting the removal of a case
commenced before September 1, 2024. In its briefing, ETC argues removal is
permitted because it timely and properly removed the case, the Court has
subject-matter jurisdiction of a case involving a publicly traded company and
arising under trade regulation law, and Section 8 of H.B. 19 does not bar
removal of the case. Section 8 does not bar removal of the case, according to
ETC, because its plain language does not explicitly prohibit removal of cases
filed before September 1, 2024, or expressly state it applies “only” to cases
commenced thereafter. ETC maintains the absence of such limiting language
indicates the legislature did not intend to exclude cases begun before
September 1, 2024. In other words, ETC contends the legislature intended
OPINION AND ORDER, Page 6 Chapter 25A to apply retroactively to permit removal of cases filed before
September 1, 2024. ETC’s argument is unpersuasive.
1. The plain and common text of H.B. 19 must be construed to ascertain if the legislature intended Chapter 25A to permit removal of cases filed before September 1, 2024
¶ 12 To determine whether Section 8 permits the retroactive application
of Chapter 25A, the Court must construe Section 8 in the context and
framework of H.B. 19.
¶ 13 Construing a statute is a question of law. Cadena Comercial USA
Corp. v. Tex. Alcoholic Beverage Comm’n, 518 S.W.3d 318, 325 (Tex. 2017).
The objective in construing a statute is to ascertain and effectuate legislative
intent. Id. The legislative intent of a statute is ordinarily expressed in the
plain and common meaning of its text “unless a different meaning is supplied,
is apparent from the context, or the plain meaning of the words leads to absurd
or nonsensical results.” Id. (citation omitted). In construing the plain and
common meaning of statutory text, the words and phrases are considered in
the context and framework of the entire statute and construed as a whole. Id.
at 325-26 (citations omitted). The words and phrases are also construed
according to the rules of grammar and usage. Id. at 325 (quotation marks and
citations omitted). The presumption is that the legislature chose the statutory
OPINION AND ORDER, Page 7 text “with care, including each word chosen for a purpose, while purposefully
omitting words not chosen.” Id. at 325-26 (citation omitted). When a statute
is clear and unambiguous on its face, i.e., when the statutory text is not
susceptible to more than one reasonable interpretation and alone conveys
legislative intent, there is no need to resort to extrinsic aids to construe the
text. Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex.
2018); but see TEX. GOV’T CODE ANN. § 311.023 (permitting courts to consider
legislative history and other construction aids regardless of ambiguity).
2. Section 8, when construed in harmony with the other provisions of H.B. 19, expresses the legislative intent that cases filed before September 1, 2024, cannot be removed to the Business Court
¶ 14 Section 8 is unambiguous and clear on its face, and ETC does not
contend otherwise. In plain and common terms, Section 8, when construed in
harmony with the other provisions of H.B. 19, expresses the legislative intent
that cases filed before September 1, 2024, cannot be removed to the Business
Court.
Section 8—H.B. 19’s applicability clause—states in its entirety:
The changes in law made by this Act apply to civil actions commenced on or after September 1, 2024.
OPINION AND ORDER, Page 8 ¶ 15 Act of May 25, 2023, 88th Leg., R.S., ch. 380, § 8, 2023 Tex. Sess.
Law Serv. 919, 929. Broken down to its constituent parts, Section 8 provides
that (i) “[t]he changes in law” effectuated by H.B. 19 (ii) “apply to civil
actions” (iii) “commenced on or after September 1, 2024.” Id. Although the
terms “civil action” and “commence” are not defined in Chapter 25A, the
rules of civil procedure applicable to the Business Court, or any provision of
H.B. 19, these terms have plain and common meanings. A civil action is a
lawsuit. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.001(2) (defining
“litigation” as “a civil action commenced, maintained, or pending in any state
or federal court”); Civil Action, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/civil%20action (defining
“civil action” as “a lawsuit about a person’s rights”) (last visited November
6, 2024). A lawsuit commences, i.e., begins, when a petition is filed. See TEX.
R. CIV. P. 22 (“A civil suit in the district or county court shall be commenced
by a petition filed in the office of the clerk.”); Commence, Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/commence
(defining “commence” in one respect as “to enter upon: begin”) (last visited
November 6, 2024).
OPINION AND ORDER, Page 9 ¶ 16 One of the changes in law effectuated by H.B. 19 is the creation of
Chapter 25A in Section 1. Because Chapter 25A in its entirety is a change of
law, it follows logically that Section 25A.006’s removal provisions are
changes in law, too. Thus, when construed in the context and framework of
Chapter 25A’s removal provisions, Section 8’s plain and common language
means what it says and says what it means: removal under Chapter 25A is a
change in law limited in its application to cases begun on or after September
1, 2024. See Union Pac. R.R. Co. v. Brown, No. 04-17-00788-CV, 2018 WL
6624507, at *3 n.2 (Tex. App.—San Antonio Dec. 19, 2018, no pet.) (mem.
op.) (holding statute’s uncodified effective date was still binding law) (quoting
United States of Am. for the Use & Benefit of E J Smith Constr., Co. v. Travelers
Cas. & Sur. Co., No. 5:15-CV-971 RP, 2016 WL 1030154, at *5 (W.D. Tex.
Mar. 10, 2016) (“Uncodified session law is law nonetheless.”)).
¶ 17 This construction of Section 8 is not absurd or nonsensical. No other
provision in H.B. 19 indicates the contrary, i.e., that suits filed before
September 1, 2024, can be removed. Section 1 and Section 5—the portion of
H.B. 19 identifying September 1, 2024, as the Business Court’s creation
date—are both silent on the matter. Neither section addresses the retroactive
or prospective application of Chapter 25A or includes the commencement-
OPINION AND ORDER, Page 10 date restriction articulated in Section 8. In fact, the identification of
September 1, 2024, as the creation date for the Business Court in Section 5
bolsters the conclusion that lawsuits filed before September 1, 2024, cannot
be removed to the Business Court. This conclusion is further bolstered when
Sections 8 and 9 are considered together, as they should be. Although Section
9 makes H.B. 19 effective on September 1, 2023, Section 8 clarifies that the
changes in law implemented by H.B. 19 affecting civil actions do not apply
before September 1, 2024.
¶ 18 The Business Court was granted jurisdiction over cases begun on or
after September 1, 2024. ETC does not dispute that Chapter 25A and its
provisions, including removal, did not come into force until September 1,
2024, and that the case began in the District Court on March 17, 2017.
Because the case did not begin in the District Court on or after September 1,
2024, Section 25A.006’s removal provision does not apply. Consequently,
ETC cannot remove the case to the Business Court pursuant to Section
25A.006. See TEX. GOV’T CODE ANN. § 25A.006(d) (stating that removal is
permitted only if the Business Court has jurisdiction).2 Given the conclusion
2 The conclusion that removal is not permitted here is consistent with the same conclusion
reached by the Hon. Bill Whitehill of the Business Court’s First Division in two similar cases involving lawsuits filed before September 1, 2024. See Energy Transfer LP v. Culberson Midstream LLC, No.
OPINION AND ORDER, Page 11 that removal is not permitted, there is no need to address ETC’s argument that
Chapter 25A’s jurisdictional requirements are met because this case involves
a publicly traded company and arises under trade regulation law.
(a) The absence of the word “only” or other limiting clarifying phrases from Section 8 does not mean that cases filed before September 1, 2024, can be removed
¶ 19 That the legislature included Section 8 in H.B. 19 to identify the date
when Chapter 25A and its provisions, including removal, would become
operative for case processing purposes strongly suggests, if not outright
proves, the legislature did not intend for Chapter 25A to apply retroactively.
Notwithstanding this reasoning, ETC asserts the omission of the word “only”
or other limiting clarifying phrases from Section 8 was purposeful and
indicative of the legislature’s intent not to prohibit the removal of cases filed
before September 1, 2024. Relying on the presumption identified in Cadena
Comercial USA Corp. (and numerous other cases) that the purposeful omission
of words indicates legislative intent, ETC cites various legislative acts that
assertedly prove the legislature always resorts to distinctive language, even in
24-BC01B-0005, 2024 Tex. Bus. 1; 2024 WL 4648110 (Tex. Bus. Ct. Oct. 30, 2024); Synergy Glob. Outsourcing, LLC v. Hinduja Glob. Sols., Inc., No. 24-BC01B-0007, 2024 Tex. Bus. 2 (Tex. Bus. Ct. Oct. 31, 2024). These opinions and orders are available at https://www.txcourts.gov/businesscourt/divisions/first/.
OPINION AND ORDER, Page 12 jurisdictional statutes, when limiting an act’s retroactive application. ETC’s
assertion is not persuasive.
¶ 20 The legislative acts cited by ETC are amendments containing
express language in their applicability clauses delineating the non-retroactive
application of the amended law. For example, in the 2021 legislative act cited
by ETC that amended the law to expand the recovery of attorney’s fees, the
legislature delineated the non-retroactive application of the amended law by
stating, in the applicability clause, that whereas the amended law applied
“only” to a case begun on or after the effective date, the existing law
continued to apply to a case begun before then. See Act of May 28, 2021, 87th
Leg., R.S. ch. 665, §§ 1, 2, 2011 Tex. Gen. Laws 1391, 1391. Likewise, in the
1989 legislative act cited by ETC that amended the law to limit the scope of
consumer protection measures, the legislature delineated the non-retroactive
application of the amended law by stating, in the applicability clause, that
whereas the amended law applied “to all” cases begun on or after the effective
date, the existing law continued to apply to a case begun before then. See Act
of May 29, 1989, 71st Leg., R.S., ch. 380, §§ 1-6, 1989 Tex. Gen. Laws 1490,
1490-93.
OPINION AND ORDER, Page 13 ¶ 21 In the legislative acts cited by ETC, it made sense for the legislature
to insert “only” or other limiting clarifying phrases in the applicability clauses
to expressly indicate that the amended law did not apply retroactively to
pending cases. Here, in contrast, the possibility of the retroactive application
of law to pending cases is not addressed by H.B. 19’s amendment to existing
law and codification of new law. The existing law amended by H.B. 19 is
contained in Sections 2 and 3. These sections of the bill amended existing
Sections 659.012(a) and (e) and 837.001(a) of the Government Code. These
statutory provisions address the salary and membership in a retirement
system, respectively, of a Business Court judge. See TEX. GOV’T CODE ANN.
§§ 659.012(a), (e), 837.001(a). They do not concern civil actions and, thus,
do not concern the possibility of retroactivity. In contrast, the only section of
H.B. 19 that does concern civil actions is Section 1. But it, too, does not broach
the possibility of retroactivity. As has been previously mentioned, this section
of the bill codified new law: Chapter 25A and its provisions, including
removal. Because Chapter 25A is new law that came into force on September
1, 2024, there were no pending cases existing under Chapter 25A before
September 1, 2024. Consequently, there was no need for the legislature to
insert “only” or other limiting clarifying phrases in the applicability clause to
OPINION AND ORDER, Page 14 expressly indicate that the new law did not apply retroactively to non-existing
pending cases. It would have been superfluous for the legislature to have done
so.
(b) The absence of the word “only” or other limiting clarifying phrases from Section 8 does not mean that the Court must accept pending cases on or after September 1, 2024
¶ 22 ETC also maintains the intentional absence of the word “only” or
other limiting clarifying phrases from Section 8 transforms the meaning of
Section 8 to that of a marquee flashing an open-for-business date of September
1, 2024. This is allegedly evident when Section 8 is juxtaposed to Sections
25A.006(d) and (f)(1). According to ETC, whereas Section 8 does not
explicitly prohibit removal of a case filed before September 1, 2024, Sections
25A.006 (d) and (f)(1) explicitly permits removal of a case so long as it is
removed within 30 days, as occurred here, no matter when it was commenced.
¶ 23 ETC’s proposed construction is awkward and disregards, as set forth
above, the plain and common meaning of Section 8 when construed in the
context and framework of Chapter 25A’s removal provisions. To accept
ETC’s proposed construction would lead to an absurd or nonsensical result:
treating Section 8 as surplusage and rendering it meaningless. This the Court
OPINION AND ORDER, Page 15 may not do. See Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex.
2000) (stating that statutory language should not be construed in a manner
rendering words useless or a nullity). Had the legislature intended for Section
8 to mean simply that the Business Court could begin accepting cases on or
after September 1, 2024, the legislature would have written Section 8 to so
state. But the legislature did not, and the Court cannot rewrite Section 8 to so
state. See Cadena Comercial USA Corp., 518 S.W.3d at 326 (“… we take
statutes as we find them and refrain from rewriting the Legislature’s text.”).
(c) Although consideration of H.B.19’s legislative history is not required to ascertain legislative intent, the legislative history does not support the conclusion that removal of cases filed before September 1, 2024, is proper
¶ 24 Although ETC does not contend Section 8 is ambiguous, ETC
nonetheless argues H.B. 19’s legislative history supports the conclusion that
the legislature intended Section 8 to permit removal of cases filed before
September 1, 2024. That the legislature omitted the word “only” or other
limiting clarifying phrases from Section 8 necessarily means, according to
ETC, that the legislature intended to expand the Business Court’s jurisdiction
to consider pending cases burdening the dockets of other courts. ETC’s
argument is misguided.
OPINION AND ORDER, Page 16 ¶ 25 Because Section 8 is facially unambiguous and its legislative intent
can be discerned from the plain and common meaning of its words, there is no
need to resort to H.B. 19’s legislative history as an aid. See Fort Worth Transp.
Auth., 547 S.W.3d at 838. But even if H.B. 19’s legislative history were
considered, it would support the conclusion that the legislature did not intend
removal of cases filed before September 1, 2024. All versions of H.B. 19, from
the introduced one to the enrolled one, contain the same creation-date and
commencement-date restrictions, albeit the dates were revised from January
1, 2025, in the introduced version, to September 1, 2024, in all subsequent
versions. This consistency demonstrates the legislature’s intent to restrict
removal to cases filed on or after September 1, 2024. Cf. In re Marriage of
Roach, 773 S.W.2d 28, 30-32 (Tex. App.—Amarillo 1989, writ denied)
(concluding that the deletion of “prospective only” language limiting the
applicability of amendment to pleadings filed on or after the effective date
from bill as it progressed from introduction to enrollment expressed legislative
intent to allow application of amendment to cases pending on the effective
date), with Reynolds v. State, 423 S.W.3d 377, 382 (Tex. Crim. App. 2014)
(concluding that deletion of “savings clause” present in earlier versions of
statutes and absence of language in amended statute indicating the earlier
OPINION AND ORDER, Page 17 “savings clause” was to be retained expressed legislative intent to allow
application of amended statute to persons with reportable convictions or
adjudications that occurred on or after a certain date).
B. Remand is required
¶ 26 If a case is not removable, Section 25A.006(d) requires the Business
Court to remand the case to the court in which the case was originally filed.
TEX. GOV’T CODE ANN. § 25A.006(d). As discussed in part A.2. above, H.B.
19’s unambiguous text permits the removal of a case to the Business Court
only if the case was filed on or after September 1, 2024. Because Tema
commenced this case more than seven years before that date, ETC’s removal
of it is not permitted, and the case must be remanded to the District Court.
Accordingly, the Court grants the portion of Tema’s Remand Motion seeking
remand pursuant to Rule 355(f). See TEX. R. CIV. P. 355(f)(1), (2) (requiring
the Business Court to remand a case to the originating court if the Business
Court determines, on a party’s motion, that removal was improper).
C. Sanctions are not warranted
¶ 27 The Court, however, does not grant the portion of Tema’s Remand
Motion seeking sanctions pursuant to Section 10.001 of the Civil Practice and
Remedies Code (“CPRC”).
OPINION AND ORDER, Page 18 1. Sanctions for a frivolous notice of removal can be imposed under Chapter 25A if supported by competent evidence
¶ 28 Section 25A.006 of the Government Code establishes that sanctions
for a frivolous notice of removal are available under Section 10.001 of the
CPRC. TEX. GOV’T CODE ANN. § 25A.006(h). CPRC Section 10.001 permits
a court to sanction a party for filing a pleading lacking reasonable inquiry,
proper purpose, or legal or factual support. Nath v. Tex. Children’s Hosp. (Nath
I), 446 S.W.3d 355, 362 (Tex. 2014); Unifund CCR Partners v. Villa, 299
S.W.3d 92, 97 (Tex. 2009) (per curiam). Under Section 10.001, the party
seeking sanctions bears the burden to establish “(1) that the pleading or
motion was brought for an improper purpose, (2) that there were no grounds
for the legal arguments advanced, or (3) that the factual allegations or denials
lacked evidentiary support.” Orbison v. Ma-Tex Rope Co., 553 S.W.3d 17, 35
(Tex. App.—Texarkana 2018, pet. denied) (citations omitted). Because it is
presumed that a pleading has been filed in good faith, the party seeking
sanctions must overcome this presumption with competent evidence. Nath I,
446 S.W.3d at 361; Unifund, 299 S.W.3d at 97. This competent evidence
must be proffered, and admitted, at an evidentiary hearing. Orbison, 553
S.W.3d at 35.
OPINION AND ORDER, Page 19 2. Despite Tema’s arguments to the contrary, sanctions under Section 10.001 of the CPRC are not warranted because there is no competent evidence proving ETC filed a frivolous Removal Notice
¶ 29 Tema insists sanctions are warranted because ETC filed its Removal
Notice for frivolous purposes. Those frivolous purposes, according to Tema,
are to increase litigation costs, to delay proceedings, and to waste judicial
resources. Tema asserts the frivolous nature of ETC’s Removal Notice is
proved by the fallacious allegations and arguments raised by ETC in support
of removal and jurisdiction. Decrying that ETC has purposefully avoided a
merits-based review of a case commenced more than seven years ago, Tema
contends ETC has mischaracterized Tema’s breach-of-contract and
negligence claims as arising under trade or securities regulations and has
failed to explain how removal is proper given the obvious prohibition against
removing a case filed before September 1, 2024.
¶ 30 But Tema has not established its entitlement to sanctions. Tema did
not request or obtain an evidentiary hearing on its request for sanctions. See
BCLR 5(e) (requiring parties to notify the Business Court of a request for a
hearing in the motion or response).3 Nor has Tema proffered competent
3 BCLR is the citation for the Local Rules of the Texas Business Court, which are available at
https://www.txcourts.gov/media/1459346/local-rules-of-the-business-court-of-texas.pdf.
OPINION AND ORDER, Page 20 evidence overcoming the presumption that ETC’s Removal Notice was filed
in good faith and proving it was filed for a frivolous purpose. Tema, instead,
relies on the arguments in its Remand Motion. Motions, and the arguments in
them, are not evidence. Orbison, 553 S.W.3d at 36 (citations omitted).
¶ 31 Even though the Court has determined that ETC’s Removal Notice
was legally impermissible, ETC’s argument that a pre-September 1, 2024 case
could be removed was not per se groundless or frivolous. Absent additional
evidence or some other legal basis, a sanctions award would be inappropriate.
Accordingly, the Court declines to impose sanctions.
III. CONCLUSION
¶ 32 Consistent with this opinion, the Court GRANTS in part and
DENIES in part Tema’s Remand Motion and REMANDS the case to the 236th
District Court of Tarrant County, Texas.
IT IS SO ORDERED.
JERRY D. BULLARD Judge of the Texas Business Court, Eighth Division SIGNED ON: November 6, 2024
OPINION AND ORDER, Page 21