Monday, November 17, 2014

In every case - now here is the shocker for everyone - each side - meaning the lawyers - say they checked the law and they are correct.  This is what made Tony Martinez's statement on camera so stupid to those who actually take the time to think about it.
What is happening is everyone is just quoting Gowen's defense without checking it to see if it is correct.  I addressed this the night before the lawsuit was filed.  I discussed the AG opinion and its problems - but I will try a simpler approach this time.
Here is what the Code actually says about a business entity -
(2) "Business entity" means a sole proprietorship, partnership, firm, corporation, holding company, joint-stock company, receivership, trust, or any other entity recognized by law.

Even with a raging fever I can better see the problem with the AG opinion now, than I did the other day.

From the AG Opinion being relied upon.

"The definition of business entity also includes the generalized phrase 'or any other entity recognized by law.' This phrase, if taken out of context, appears to be broad enough to include a state university, since the university is an 'entity' recognized by Education Code provisions. However, the definition of 'business entity' in section 171.001(2) should be construed according to the rule of ejusdem generis. Where general words follow specific words in a statutory enumeration, the general words are construed to include only items similar in nature to those items enumerated by the prevailing specific words"

See Opinion

Jim Mattox acknowledged that the term "or any other" could be construed to include the university.  But he then goes on the state the rule of construction known as ejusdem generis defeats the broad interpretation of "any other."  He is wrong, the rule of superfluous language trumps ejusdem generis.

The link I am providing deals with how you address ejusdem generis when the rule includes an intent for a broader interpretation to avoid a construction of superfluous words or terms.  Go to bottom of page 87 top of 88.

Click for Link

An AG opinion is just that.  You cannot assume the lawyer within the AG's office even considered the doctrine of superfluous words or terms.  In fact the opinion suggests that the AG's office made no effort to reconcile the two doctrines, as mandated by the rules of construction.

Here is the key  - if you stop here with no "or"
"(2) "Business entity" means a sole proprietorship, partnership, firm, corporation, holding company, joint-stock company, receivership, trust"
You get the same result of the AG Opinion as if there is no "or".  That is how you know the opinion is wrong because it treats the "or" language as superfluous.
The night before the lawsuit I explained all of this - but perhaps in too much legalese.  I think this approach is easier to understand.
The case law I link to makes clear, that the canon of superfluous language trumps ejusdem generis if the statutory language indicates a broader interpretation - which even AG Mattox agrees it does, but for his misuse of the doctrine of ejusdem generis.
We all agree there appears to be a conflict of interest.  Rosen Gowen's boss gets $5 million to study diabetes management and UT gets Lincoln Park for $6.5 million.  This simple factual reality supports why the legislature included the "OR" language to include all statutorily defined entities so that we would not have the very situation we have now.

Because then Governor Bush vetoed the law which required all district court judges write opinions to justify their rulings, Judge Nelson does not have to deal with this issue.  But the court of appeals will have to write an opinion reconciling the two doctrines and that could pose a major danger for UT - a danger they may not want to face. 


Anonymous said...

Excellent argument, very well done, clear and concise with no emotional rant, let this be a lesson to how strong your reasoning is when you keep it tight.

BobbyWC said...

and with a raging fever

Bobby WC