Lone Star NGL Product Services v. EagleClaw Midstream Ventures, 2024 Tex. Bus. 8 (11th Div.)

2024 Tex. Bus. 8
Note: 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.
THE B USINESS COURT OF TEXAS
ELEVENTH DIVISION
Lone Star NGL Product Services LLC,
Plaintiff,
v.
EagleClaw Midstream Ventures, LLC
and CR Permian Processing, LLC,
Defendant.
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Cause No. 24-BC11A-0004
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S YLLABUS
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This opinion addresses the removability of actions to the Texas Business Court that were filed
before September 1, 2024, where the Parties have entered into a post-September 1, 2024
written agreement that the Court has jurisdiction of the case, and the Parties have pleaded
jurisdiction under Texas Government Code Section 25A.004(d). The Court concludes that it
lacks subject-matter jurisdiction over this action because Section 8 of House Bill 19 limits the
applicability of Texas Government Code Chapter 25A to “civil actions commenced on or after
September 1, 2024.” Per the request of the Parties, the Court further certifies the controlling
question of law discussed herein for a permissive interlocutory appeal under Texas Civil
Practice & Remedies Code Section 51.014(d). To the extent that the Court has the authority
to do so, the Court’s remand order is stayed pending the resolution of the Parties’ permissive
interlocutory appeal.
E-filed in the Office of the Clerk
for the Business Court of Texas
12/20/2024 8:44 PM
Accepted by: Beverly Crumley
Case Number: 24-BC11A-0004

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2024 Tex. Bus. 8
THE B USINESS COURT OF TEXAS
ELEVENTH DIVISION
Lone Star NGL Product Services LLC,
Plaintiff,
v.
EagleClaw Midstream Ventures, LLC
and CR Permian Processing, LLC,
Defendant.
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Cause No. 24-BC11A-0004
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OPINION AND O RDER
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I. I NTRODUCTION
¶1 	Before the Court is (1) the Joint Notice of Removal by Plaintiff Lone Star
NGL Product Services LLC (“Lone Star”), Defendant EagleClaw Midstream Ventures,
LLC, and Defendant CR Permian Processing, LLC (collectively herein, the “Parties”) filed
September 17, 2024; (2) the Parties’ Joint Brief in Support of Removal to Business Court
filed October 16, 2024 (“Joint Brief”); and (3) Lone Star’s Additional Brief in Support of
Removal to Business Court filed November 4, 2024 (“Lone Star Brief”). The Court held a
hearing on this matter on November 12, 2024. Having considered the Parties’ arguments
and the relevant law, and subject to the Court’s stay of this Order, the Court ORDERS that

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this suit be remanded to the district court and certifies the controlling question of law
discussed herein for permissive interlocutory appeal under Texas Civil Practice & Remedies
Code Section 51.014(d). To the extent that the Court has the authority to do so, the Court
STAYS the remand order contained herein pending the resolution of the Parties’ permissive
interlocutory appeal under Texas Civil Practice & Remedies Code Section 51.014(e).
II. PROCEDURAL B ACKGROUND
¶2 	Pending first for years in the 61st Judicial District Court of Harris County,
this lawsuit involves past and ongoing compliance with two natural gas purchase
agreements that prescribe daily obligations to sell Y-Grade expiring in 2026.1 According
to the Parties, Lone Star has paid more than $100 million for Y-Grade sold by Defendants
under the subject agreements. Lone Star will continue to be invoiced for Y-Grade delivered
by Defendants through the remaining life of the agreements.2 	Since Lone Star filed its
original petition on May 20, 2021, the Parties have engaged in robust litigation of the
underlying substance of this “multi-hundred-million-dollar dispute,”3 and Defendants
1 Joint Brief at 2.
2 Id. at 9.
3 See Transcript of Record at 13, Lone Star NGL Product Services LLC v. Eagle Claw Midstream Ventures, LLC,
No. 24-BC11A-0004 (Tex. Bus. Ct. Nov. 12, 2024) (hereinafter, “Transcript of Record”) (quotation
regarding the amount in controversy). Per the Parties’ Joint Brief, there were no fewer than five discovery
motions pending at the time of removal, and a discovery master has been appointed to manage disputes
regarding certain third-party discovery. 	Joint Brief at 5–6 n. 2. 	Following removal, the Parties have
continued engaging vehemently over issues relating to apex depositions and discovery sought in out-of-state
litigation.

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have incurred over $3 million in attorneys’ fees.4 When this Court first opened for business
on September 1, 2024,5 this case was 1,200 days old.6
¶3 	On September 13, 2024, the Parties entered into a Rule 11 Agreement
(defined by the Parties as the “Subsequent Agreement”) making “clear that authority,
jurisdiction, and venue exists in the Texas Business Court.”7 	Pertinent portions of the
seven-page Rule 11 Agreement8 are set forth below:
The Parties agree that the Current Lawsuit, including all claims and causes
of action asserted as of the Effective Date of this Agreement, is within the
jurisdiction of the Texas Business Court, as established by Chapter 25A of
the Texas Government Code. The Parties also agree that they are subject to
personal jurisdiction in the Texas Business Court.
The Parties acknowledge that this Agreement is meant to satisfy the
requirements of Section 25A.004 of the Texas Government Code as a
“subsequent agreement that the business court has jurisdiction over the
action.”
. . .
The Parties intend that this Agreement—executed after September 1, 2024—
is to allow the Current Lawsuit to be removable to the Texas Business Court.
4 Defs.’ Mot. for Protection and Mot. to Quash Dep. of Joseph Payne Under the Apex Dep. Doctrine at 5 n. 9
(filed in this Court on November 29, 2024, following removal).
5 See Tex. H.B. 19, § 5, 88th Leg., R.S. (2023) (“Except as otherwise provided by this Act, the business court
is created September 1, 2024.”).
6 In the Spring of 2021, the Bill that created this Court and its jurisdiction—House Bill 19 (herein, “H.B. 19”
or “the Bill”)—had not yet been filed in the Texas House of Representatives. Tex. H.B. 19, 88th Leg., R.S.
(2023) 	“Bill 	Stages,” 	TEXAS 	L EGISLATURE 	ONLINE ,
https://capitol.texas.gov/BillLookup/BillStages.aspx?LegSess=88R&Bill=HB19 (last visited Dec. 2, 2024)
(H.B. 19 was filed in the House of Representatives on February 28, 2023, and was signed by Governor Greg
Abbott on June 9, 2023); see Jack Buckley DiSorbo, A Primer on the Texas Business Court, 76 B AYLOR L. R EV.
360, 384–87 (2024) (discussing the passage of H.B. 19 and S.B. 1045 in the 2023 legislative session). When
Governor Abbott signed H.B. 19 into law on June 9, 2023, the Bill included a limiting provision, Section 8,
which states: “The changes in law made by this Act apply to civil actions commenced on or after September
1, 2024.” Tex. H.B. 19 at § 8.
7 Joint Brief at 3.
8 “[T]he parties entered into a September 13th agreement. It is a seven-page-long agreement choosing this
Court’s forum, choosing this Court as venue, waiving personal jurisdiction challenges, and giving this Court
all of the jurisdictional trappings that the parties are allowed to give the Court.” Transcript of Record at 11.

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In the event it is determined that the Texas Business Court does not have the
authority to hear the Current Lawsuit, the Parties also intend this provision
to allow the Current Lawsuit to be non-suited without prejudice and refiled
in the Business Court as the Business Court Lawsuit.9
. . .
“Primary Intent”: The Parties intend this Agreement to be interpreted to
afford the broadest possible reservation of the Parties’ rights to assert any
claims, causes of action, and/or defenses in the Business Court that were or
could have been asserted in the Current Lawsuit as of the Effective Date.
“Secondary Intent”: The Parties also intend for this Agreement to be
interpreted consistent with ensuring the Business Court has jurisdiction over
the Current Lawsuit.10
As the Parties elucidate, “the Subsequent Agreement was not merely an agreement to
remove the case to Business Court. 	Instead[,] the Subsequent Agreement reflects a
negotiated, holistic agreement between the Parties that the dispute will be adjudicated by
the Business Court.”11 	The Parties succinctly express their intentions and requisite
methodology at the outset of their Joint Brief:
The Subsequent Agreement also contemplates nonsuiting this dispute and re-
filing an identical lawsuit in the Business Court if the Court remands the case
to the 61st Judicial District Court. Per the Parties’ agreement, this dispute
will be heard by the Business Court. But remanding the three and a half year
old case now creates unnecessary hurdles that would otherwise be avoided if
this removed lawsuit is permitted to proceed.12
9 Joint Brief at Exhibit 1 (II. Agreement to Jurisdiction of the Texas Business Court).
10 Id. at Exhibit 1 (XI. Intent of Agreement).
11 Joint Brief at 3 (emphasis added).
12 Id. at 2, n. 1. Scrutiny of the Parties’ Rule 11 Agreement and its contingencies reveals an appreciation of
the potential ramifications of utilizing the newly created Chapter 25A removal procedures in a pre-September
1, 2024 action. Of note, significant legal commentary, albeit neither authoritative nor dispositive, existed on
this subject prior to September 1, 2024. See MEETING OF THE TEX . S UP. C T. A DVISORY C OMM., 35552:4–15
(Oct. 	13, 	2023) 	(transcript 	available 	at 	https://www.txcourts.gov/media/1457501/23-10-13-scac-
transcript.pdf) (last visited Dec. 3, 2024) (Supreme Court Advisory Committee discussing that existing cases
would have to be nonsuited and re-filed to be subject to the Court’s jurisdiction); Lonny Hoffman, Editor’s
Comments, 106 THE A DVOCATE 3 (Spring 2024) (“Our ambition with this volume was to anticipate the most
pressing questions and to tentatively suggest some answers.”) (emphasis added); Senator Bryan Hughes &
Trey Cox, Trailblazing for Tomorrow: The Texas Business Court’s Progressive Revamp of the State Judicial
System, 106 THE A DVOCATE 18, 19 (Spring 2024) (“Further, existing matters will not suddenly be thrust into
a tumultuous mass removal, as HB 19 stipulates the TBC will apply only to those civil actions commenced on

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¶4 	On September 17, 2024, the Parties filed their Joint Notice of Removal to the
Business Court. The pleaded basis for the Business Court’s jurisdiction over the suit was
Section 25A.004(d) of the Texas Government Code, which states:
(d) The business court has civil jurisdiction concurrent with district courts in
the following actions in which the amount in controversy exceeds $10
million, 	excluding 	interest, 	statutory 	damages, 	exemplary 	damages,
penalties, attorney’s fees, and court costs:
(1) an action arising out of a qualified transaction;13
(2) an action that arises out of a contract or commercial transaction in which
the parties to the contract or transaction agreed in the contract or a
subsequent agreement that the business court has jurisdiction of the action,
except an action that arises out of an insurance contract; . . . .
TEX . G OV ’ T CODE § 25A.004(d)(1)–(2) (emphasis added). In their Notice of Removal, the
Parties ascribe outsize meaning to the timing of their Rule 11 Agreement, stating
“[c]rucially, that ‘subsequent agreement’ was entered into on September 12, 2024—after
the Business Court began operating on September 1, 2024.”14
¶5 	By its order of September 26, 2024, the Court directed the Parties to file
briefing concerning the propriety of this suit’s removal to the Texas Business Court and
or 	after 	September 	1, 	2024.”); 	Bryan 	O. 	Blevins, 	Jr. 	& 	Ashlynn 	Wright, 	A Business Court,
106 THE A DVOCATE 21, 23 (Spring 2024) (“Presumptively, this provision would not allow a case filed before
September 1, 2024, to be removed, nor an action that does not meet the subject[-]matter jurisdiction of the
Business Court.”).
13 “‘Qualified transaction’ means a transaction, other than a transaction involving a loan or an advance of
money or credit by a bank, credit union, or savings and loan institution, under which a party: (A) pays or
receives, or is obligated to pay or is entitled to receive, consideration with an aggregate value of at least $10
million; or (B) lends, advances, borrows, receives, is obligated to lend or advance, or is entitled to borrow or
receive money or credit with an aggregate value of at least $10 million.” T EX . GOV ’T C ODE § 25A.001(14).
14 Joint Notice of Removal at 2 (emphasis in original).

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regarding the Court’s authority and jurisdiction to hear the suit. On October 16, 2024, the
Parties filed the Joint Brief.
¶6 	On October 18, 2024, the Court invited further briefing from the Parties
regarding what effect, if any, Section 8 of [this Court’s enabling legislation,]15 H.B. 1916
has on the Court’s authority to hear this case. On November 4, 2024, Lone Star filed the
Lone Star Brief. The Court held a hearing on this matter on November 12, 2024.
III. THE PARTIES’ ARGUMENTS
¶7 	In their briefs, the Parties presented a series of arguments in favor of removal,
untempered by the usual adversarial process. 	The Parties’ jurisdictional arguments are
both rooted in the text of Chapter 25A:
i. 	Texas Government Code Section 25A.004(d)(2) gave the Parties the right to agree
that the Business Court has jurisdiction of the action—or to “create jurisdiction in
the Business Court”—notwithstanding any “effective date”17 provisions included
in the Bill.18
ii. 	This dispute concerns a qualified transaction under Texas Government Code Section
25A.004(d)(1); and complies with all other statutory requirements for the exercise
of jurisdiction.19
15 See Procedural Background, supra note 6.
16 See Tex. H.B. 19 at § 8 (“The changes in law made by this Act apply to civil actions commenced on or after
September 1, 2024”).
17 Of note, the true effective date provision of H.B. 19 is Section 9. See id. at § 9 (“This Act takes effect
September 1, 2023.”).
18 See generally Joint Brief at 4–5; Lone Star Brief at 2–5. At the hearing, the Parties argued, “Section 8 as
an effective date is not a subject-matter limitation on the Court. As such, it’s a limitation that the parties can
agree around.” Transcript of Record at 12. The Parties believe that “[c]onsent cases are fundamentally
different than non-consent cases.” Id. at 17. “Section 8 is a safeguard for parties who are already embroiled
in litigation and don’t consent to be in business court.” Id. at 31. “It is not a broad all-encompassing effective
date that precludes any application of House Bill 19 prior to September 1, 2024, over the parties’ consent.”
Id. at 36. “The Subsequent Agreement is entitled to be enforced in this Court, pursuant to Texas’ paramount
public policy favoring freedom of contract, as envisioned by the Texas Legislature in House Bill 19.” Lone
Star Brief at 5. In essence, according to the Parties, “[w]hen there is consent between the parties—that is
between the plaintiffs and the defendants—does jurisdiction exist for cases that were commenced before
September 1 st , 2024? The answer to that question is irrefutably yes.” Transcript of Record at 17.
19 Joint Brief at 9–11.

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¶8 	Additionally, the Parties articulated that Section 8 of H.B. 19—which reads
“[t]he changes in law made by this Act apply to civil actions commenced on or after
September 1, 2024”—presents no bar to this Court’s ability to adjudicate this dispute:
i. 	Section 8 of House Bill 19 does not limit the Business Court’s jurisdiction to post-
September 1, 2024 cases, owing to the omission of the word “only” from Section 8.
In other words, if the Texas Legislature wanted the Business Court’s jurisdiction to
be limited to civil actions commenced on or after September 1, 2024, Section 8
would have read “The changes in law made by this Act apply only to civil actions
commenced on or after September 1, 2024.”20
ii. 	As Section 8 only applies to “changes in law made by” H.B. 19, Lone Star argues
that Sections 1 through 3 of House Bill 19 contain changes in law, but sections 4
through 7 do not. 	They argue that Section 5, which unambiguously creates the
Business Court,21 also vests the Business Court with “subject[-]matter jurisdiction
to adjudicate this dispute.”22
iii. 	In the event Section 8 does limit the Court’s jurisdiction, Section 8 can be waived
by the Parties. Because the Parties agree to the jurisdiction of the Business Court,
they will be estopped from arguing it was wrong for the Court to adjudicate this
dispute under the doctrines of waiver and invited error. In making this argument,
the Parties affirmatively allege that the effective-date restrictions in Section 8 are
not “unwaivable subject-matter jurisdiction barriers.”23
¶9 	Finally, the Parties make an appeal solely based on the alleged potential
consequences of a remand. Because the Parties have agreed to non-suit and refile this case
in the event of a remand, remanding this case will not keep the dispute out of the Business
Court. Purportedly, however, a remand will cause significant difficulties in the discovery
process and increase costs for all Parties.24
20 Lone Star Brief at 6–9.
21 See Tex. H.B. 19 at § 5 (stating, in its entirety, “Except as otherwise provided by this Act, the business
court is created September 1, 2024”).
22 Lone Star Brief at 5–6.
23 Joint Brief at 7–8; Lone Star Brief at 9–10.
24 Joint Brief at 5–7.

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¶10 	At the November 12, 2024 hearing, the Parties appeared to argue beyond the
briefing. In essence, because (i) portions of the “effective date” provisions of H.B. 19 and
S.B. 1045 (which created the Fifteenth Court of Appeals) are nearly identical; and (ii) the
Fifteenth Court of Appeals has accepted transfers of pre-September 1, 2024 cases, the
Parties argue that no bar to this Court’s exercise of jurisdiction over pre-September 1, 2024
removals exists.25
¶11 	In keeping with their elaborate strategy, the Parties have also sought the
Business Court’s first permissive interlocutory appeal. 	Specifically, the Parties request
that, in the event the Court finds that it lacks jurisdiction over this case, the Court certify
a permissive interlocutory appeal on the following question: “[C]an a civil action that was
commenced before September 1, 2024 be removed to Business Court where the parties
entered into a subsequent agreement expressly consenting to the jurisdiction of the
Business Court?”26
IV. LEGAL S TANDARD
¶12 	For every judicial proceeding, “subject-matter jurisdiction must exist before
we can consider the merits,” and a court must examine its jurisdiction “any time it is in
doubt.” 	Tex. Propane Gas Ass’n v. City of Houston, 622 S.W.3d 791, 797 (Tex. 2021)
(quoting Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 774 (Tex. 2020)); see also Tex.
25 Transcript of Record at 11–12. Beyond the arguments discussed in the body of the opinion, Lone Star also
sought to ventilate the effect of “an August 13, 2024 memorandum from the Office of Court Administration
to Texas District and County Clerks regarding the ‘Creation of the Business Court, Effective September 1,
2024.’” Lone Star Brief at 9. Lone Star argues that pronouncements from the Office of Court Administration
are irrelevant to the Court’s authority to hear the case. Id. The Court does not base this opinion on the OCA
memorandum. Cf. Citations to Legal Commentaries, supra note 12 (acknowledging that the Bar’s discussion
of Section 8 is neither dispositive nor authoritative).
26 Joint Brief at 11–12.

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Ass’n 	of 	Bus. 	v. 	Tex. 	Air 	Control 	Bd., 	852 	S.W.2d 	440, 	443–44 	(Tex. 	1993)
(“Subject[-]matter jurisdiction is never presumed and cannot be waived.”). 	“Whether a
court has subject[-]matter jurisdiction is a question of law.” Tex. Disposal Sys. Landfill,
Inc. v. Travis Cent. Appraisal Dist., 694 S.W.3d 752, 757 (Tex. 2024).
¶13 	A Notice of Removal to Business Court must plead facts to establish the
Business Court’s authority to hear the action. 	TEX . R. CIV . P. 355(b)(2)(A).27 	If the
Business Court does not have jurisdiction of a removed action, the Business Court shall
remand the action to the court in which the action was originally filed. TEX . G OV ’ T CODE
§ 25A.006(d); TEX . R. CIV . P. 355(f)(1).
V. ANALYSIS
A. The Parties cannot rely on Chapter 25A to establish the Business Court’s authority to
hear this action.
i. 	Chapter 25A—the most significant “change[] in law” made by H.B. 19—only
“appl[ies] to civil actions commenced on or after September 1, 2024.”
¶14 	As Lone Star urges in its brief, “Section 8 should be read in harmony with the
remainder of House Bill 19. . . .”28 The Court concurs. “As with every question of statutory
construction, our duty is to accurately articulate the meaning of the enacted text—here,”
of H.B. 19.29 Brown v. City of Houston, 660 S.W.3d 749, 752 (Tex. 2023). Indeed, “H.B.
27 The “Rules of Practice in the Business Court” are contained in Part III of the Texas Rules of Civil
Procedure. See T EX . R. C IV. P. 352–60. For a discussion of the procedural background of the Rules’ creation,
see, for instance, Marcy Hogan Greer & Hon. Emily Miskel, Proposed Rules for the New Texas Business Court,
106 THE A DVOCATE 15 (Spring 2024).
28 Lone Star Brief at 8.
29 In this context, the enrolled version of H.B. 19 is the binding statute enacted by the Texas Legislature.
Jorrie v. Charles, No. 24-BC04B-0001, 2024 Tex. Bus. 4, 2024 WL 4796436 at *3 (Tex. Bus. Ct. Nov. 7,
2024) (citing Ass’n of Texas Pro. Educators v. Kirby, 788 S.W.2d 827, 829 (Tex. 1990)). Accordingly, when
analyzing the text of Chapter 25A to determine the Court’s authority and jurisdiction to hear the case, the
Court must apply Section 8 and presume that the enrolled bill accurately expresses the Texas Legislature’s

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19’s plain ‘text is the alpha and omega of the interpretive process.’” Energy Transfer LP v.
Culberson Midstream LLC, No. 24-BC01B-0005, 2024 Tex. Bus. 1, 2024 WL 4648110, at
*3 (Tex. Bus. Ct. Oct. 30, 2024) (citing In re Panchakarla, 602 S.W.3d 536, 541 (Tex.
2020); BankDirect Capital Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 86 (Tex. 2017)).
¶15 	“When the text unambiguously answers a question, our inquiry ends.”
Brown, 660 S.W.3d at 752. Long-settled Texas law dictates that “[e]very word of a statute
is presumed to have been used for a purpose, and a cardinal rule of statutory construction
requires that each sentence, clause, phrase and word be give[n] effect if reasonably
possible.” Eddins-Walcher Butane Co. v. Calvert, 298 S.W.2d 93, 96 (Tex. 1957).30
¶16 	When Governor Greg Abbott signed H.B. 19 into law on June 9, 2023, the
enrolled version of the Bill included two sections which are pertinent to this Opinion:
i. 	Section 1, which vests the Court with its jurisdiction, and sets forth the text
of the new Chapter 25A of the Texas Government Code,31 and
ii. 	Section 8, which states: “The changes in law made by this Act apply to civil
actions commenced on or after September 1, 2024.”32
¶17 	Lone Star argues that Section 8 would only limit the applicability of the
changes in law made by H.B. 19 if they were said to apply “only to civil actions commenced
intent. XTO Energy, Inc. v. Houston Pipe Line Co., No. 24-BC11B-0008, 2024 Tex. Bus. 6 at ¶ 10 (Tex. Bus.
Ct. Nov. 26, 2024); see TEX . GOV’T C ODE § 311.029 (under the Code Construction Act, “the language of the
enrolled bill version controls” over any subsequent printing of the statute).
30 See Lone Star Brief at 8.
31 Tex. H.B. 19 at § 1 (emphasis added); see TEX . GOV’T C ODE § 25A.004 (entitled “Jurisdiction and Powers”).
As noted above, Lone Star admits that Section 1 of H.B. 19 constitutes a change in law. 	See Parties’
Arguments, supra ¶ 8.ii; Lone Star Brief at 5–6.
32 Tex. H.B. 19 at § 8.

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on or after September 1, 2024.”33 This is not a novel argument. To date, no division of the
Business Court has accepted this interpretation of Section 8.34 No effort has been made to
distinguish this iteration of the “only” argument. Thus, no reason exists for the Court to
differ from its brethren. On its face, Section 8 unambiguously limits the applicability of
any “change in law” made by H.B. 19 to “civil actions commenced on or after September
1, 2024.”35
¶18 	The introduction of Section 1 [and the functional preamble to the text of
Chapter 25A] reads: “Subtitle A, Title 2, Government Code, is amended by adding Chapter
25A to read as follows: . . . .”36 Putting aside its auxiliary purposes, the plain thrust of
Section 1 and Chapter 25A is to change Texas Law to create the legal framework for the
Business Court and vest it with its jurisdiction.37 By a simple page count, the text of Chapter
33 See Lone Star Brief at 6–9.
34 Energy Transfer, 2024 WL 4648110, at *3 (rejecting “only” argument, relying on the Negative Implication
Canon); Synergy Global Outsourcing, LLC v. Hinduja Global Solutions, Inc., No. 24-BC01B-0007, 2024 Tex.
Bus. 2 at 9–11 (Tex. Bus. Ct. Oct. 31, 2024) (identical analysis); Tema Oil and Gas Co. v. Etc Field Services,
LLC, No. 24-BC08B-0001, 2024 Tex. Bus. 3, 2024 WL 4796433, at *4 (Tex. Bus. Ct. Nov. 6, 2024)
(“[T]here was no need for the legislature to insert ‘only’ or other limiting clarifying phrases in the
applicability clause to 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.”); Winans v. Berry, No. 24-BC04A-
0002, 2024 Tex. Bus. 5, 2024 WL 4796435, at *2 (Tex. Bus. Ct. Nov. 7, 2024) (relying on the reasoning
from Tema Oil to dispose of this argument); XTO Energy, 2024 Tex. Bus. 6 at ¶¶ 11–14 (“[T]his reading
violates at least three canons of construction.”).
35 See id.; Tema Oil, 2024 WL 4796433, at *3 (“Section 8 is unambiguous and clear on its face. . . . 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.”).
36 Tex. H.B. 19 at § 1 (emphasis added).
37 See id.; TEX . G OV’T C ODE § 25A.002–05. Albeit solely for the purpose of context herein, Justice Evan A.
Young has characterized the establishment of the Business Court in H.B. 19 [and the Fifteenth Court of
Appeals in S.B. 1045] as “the most substantial modification of the judicial system of our state since 1891.”
Keenan Willard, Texas Business Court [J]udges [S]worn in at Fort Worth Ceremony, NBC DFW (September
19, 	2024, 	10:26 	PM), 	https://www.nbcdfw.com/news/local/first-texas-business-court-judges-sworn-
in/3650590/?os=qtft_2&ref=app (last visited Dec. 7, 2024) (emphasis added); see also DiSorbo, supra note
6, at 360 (referencing the creation of the Business Court as “[t]he most sweeping change to the state judiciary
since the early 2000s tort reform.”) (emphasis added).

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25A occupies twenty-two of the twenty-seven pages of the enrolled version of H.B. 19.38
Certainly, Chapter 25A is the most significant “change[] in law” in H.B. 19, both in terms
of volume and substance.39
¶19 	Because the present lawsuit commenced40 long before September 1, 2024,
the Court holds that the Parties may not rely on the provisions of Chapter 25A to justify
subject-matter jurisdiction in the Business Court, regardless of how innovative their
arguments may be. Therefore, the Court need not address any of the Parties’ arguments
concerning the interpretation of Texas Government Code Section 25A.004(d). 	This
conclusion is consistent with the consensus view of Section 8 in the Business Court.41
ii. 	The Parties may not rely on the doctrines of waiver, estoppel, or invited error to
create subject-matter jurisdiction in the Business Court.
¶20 	In the alternative, the Parties argue that “[t]he fact that a statutory ‘effective
date’ exists in a bill does not mean that that date cannot be waived.”42 The Parties wish for
38 This portion of the analysis refers to the enrolled version of the Bill which is posted to the Texas
Legislature’s website. 	Tex. H.B. 19, 88th Leg., R.S. (2023) “Text,” TEXAS L EGISLATURE ONLINE ,
https://capitol.texas.gov/BillLookup/Text.aspx?LegSess=88R&Bill=HB19 (last visited Dec. 3, 2024).
39 See Jorrie, 2024 WL 4796436 at *2 (“The Act’s most substantial change in the law is the addition of
Chapter 25A, which includes the provisions permitting removal to the Business Court.”); Energy Transfer,
2024 WL 4648110, at *3 (“Since chapter 25A in its entirety is a change in Texas law, it follows that
§ 25A.006’s removal provisions also change Texas law.”); Tema Oil, 2024 WL 4796433, at *4 (“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.”); Winans, 2024 WL 4796435, at *2 (“This argument ignores the plain language of
the enabling legislation, which expressly states the changes in this law, i.e. Chapter 25A and its removal
procedure, apply to cases commenced on or after September 1, 2024.”); XTO Energy, 2024 Tex. Bus. 6 at
¶ 13 (“Thus, the Act’s express statement that its changes in law apply to ‘cases commenced on or after
September 1, 2024’ necessarily implies a reverse inference: that the change in law—removal, in this
instance—does not apply to cases that were on file before that date.”).
40 The Parties do not contest that the commencement date for this action was prior to September 1, 2024. For
a discussion of the meaning of “commenced” in the context of H.B. 19, see Tema Oil, 2024 WL 4796433, at
*3; Jorrie, 2024 WL 4796436 at *2.
41 See generally authorities cited, supra note 39.
42 Lone Star Brief at 10, n. 3.

13
the Court to condone a waiver, or invitation of error concerning the “effective date”
provision of Section 8, and thereby maintain jurisdiction over this case:
The parties have entered into the Subsequent Agreement, jointly requesting
that the Court adjudicate this dispute. 	[H.B. 19’s] effective date is not
“absolute,” “nonforfeitable,” or “nonwaivable.” 	To the contrary, the
parties jointly and expressly invite the Court to adjudicate this dispute.43
¶21 	To justify this argument, the Parties cite Prystash v. State, 3 S.W.3d 522
(Tex. Crim. App. 1999), which overruled Powell v. State, 897 S.W.2d 307, 317 (Tex. Crim.
App. 1994), by employing the doctrine of “invited error.” 	The Prystash court held that
since a criminal defendant had requested a certain jury instruction, he was estopped from
complaining about its defectiveness on appeal. Prystash, 3 S.W.3d at 529–32. While there
are clear and binding authorities addressing waiver, estoppel, and invited error surrounding
a civil court’s subject-matter jurisdiction,44 the Parties focus on Prystash because the
portion of the relevant statute which the criminal defendant waived was its “effective date”
provision.45
¶22 	At the hearing on this matter, the Parties stated, “The Prystash case is very
clear that an effective date in a statute is not an unwaivable . . . always appealable subject-
matter issue.”46 Indeed, “[s]ubject-matter jurisdiction is an issue that may be raised for the
43 Joint Brief at 8.
44 See, e.g., authorities cited, infra ¶ 22.
45 See Prystash, 3 S.W.3d at 529–32. At the hearing, the Parties posited, “if in Prystash[,] a party can tell a
Court to apply a statute outside of its effective date, and that is enforceable in the capital murder context, it
is certainly enforceable in the context where you have two publicly traded companies in a multiple-hundred-
million-dollar dispute entering into a seven-page long agreement that they want this case to be adjudicated
by this Court.” Transcript of Record at 13. Nevertheless, the law remains clear that the factual context of
an attempted waiver remains irrelevant if the waiver is alleged to confer subject-matter jurisdiction. See
authorities cited, infra ¶ 22.
46 Id. at 12 (emphasis added).

14
first time on appeal; [and] it may not be waived by the parties.” Tex. Ass’n of Bus., 852
S.W.2d at 445; Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000) (“[S]ubject-
matter jurisdiction is a power that exists by operation of law only, and cannot be conferred
upon any court by consent or waiver.”) (internal quotations omitted); PNS Stores, Inc. v.
Rivera, 379 S.W.3d 267, 272 (Tex. 2012) (explaining that a judgment is void when a court
lacks subject-matter jurisdiction). Likewise, the doctrine of invited error cannot serve as
the basis for subject-matter jurisdiction where it otherwise does not exist. Interest of A.F.,
653 S.W.3d 730, 745 (Tex. App.—Fort Worth 2019, no pet.) (citing In re Crawford & Co.,
458 S.W.3d 920, 928 n. 7 (Tex. 2015)). Thus, the success or failure of the Parties’ waiver
and invited error arguments turns on the Court’s determination of whether Section 8 of
H.B. 19 is a jurisdictional provision in this context.
¶23 	The Court finds that Section 8 of H.B. 19 unambiguously operates as a
jurisdictional provision when applied to Texas Government Code Section 25A.004
(entitled “Jurisdiction and Powers”).47 Therefore, the Court holds that parties to a “civil
action[] commenced” before September 1, 2024 may not waive Section 8’s “effective date”
provision in order to establish subject-matter jurisdiction in the Business Court under
Section 25A.004.
47 See Jorrie, 2024 WL 4796436, at *3 (“The court concludes that Section 8 is jurisdictional.”); A NALYSIS,
supra at Section A.i (“Chapter 25A—the most significant ‘change[] in law’ made by H.B. 19—only ‘appl[ies]
to civil actions commenced on or after September 1, 2024.’”).

15
iii. 	Because the text of S.B. 1045 explicitly provides for the transfer of pre-September
1, 2024 appeals, the Parties’ analysis of its effective date provision does not
withstand scrutiny.
¶24 	At the hearing, the Parties added an argument that Section 8 is not a
jurisdictional limitation on this Court by comparing it to S.B. 1045, which created the
Fifteenth Court of Appeals:
Senate Bill 1045, Section 1.1[5], has an almost identical effective date
provision that says the changes in law made by this act, Senate Bill No. 1045,
apply to appeals perfected on or after September 1st , 2024. And as this Court
knows, when that court began to exist on September 1st , 2024, all of the
existing appeals that were within that court’s jurisdiction, were transferred
to that court. 	And that court had subject-matter jurisdiction to adjudicate
those 	appeals 	and 	has 	been 	adjudicating 	those 	appeals 	and 	the
constitutionality of that court has been upheld by the Texas Supreme Court.
And so Section 8 as an effective date is not a subject-matter limitation on the
Court.48
¶25 	The Court recognizes that Section 1.15(a) of S.B. 1045 states as follows:
“The changes in law made by this Act apply to appeals perfected on or after September 1,
2024.”49 However, brief scrutiny of Section 1.15 reveals a section (b), which was neither
discussed by the Parties at oral argument nor mirrored in H.B. 19’s Section 8:
(b) On September 1, 2024, all cases pending in other courts of appeal that
were filed on or after September 1, 2023, and of which the Court of Appeals
for the Fifteenth Court of Appeals District has exclusive intermediate
appellate jurisdiction are transferred to the Court of Appeals for the Fifteenth
Court of Appeals District.50
48 Transcript of Record at 11–12.
49 Tex. S.B. 1045, § 1.15(a), 88th Leg., R.S. (2023).
50 Id. at § 1.15(b).

16
Evidently, 	Section 	1.15(b)—and 	not 	Section 	1.15(a)—governs 	the 	transfer 	of 	pre-
September 1, 2024 appeals. No equivalent language appears in H.B. 19’s Section 8. Thus,
the Court does not find this argument persuasive.
iv. 	The Parties’ arguments regarding judicial efficiency and the consequences of
remand do not affect the Court’s lack of subject-matter jurisdiction.
¶26 	As noted above, the Parties argue that because they have already agreed to
non-suit and refile in the Business Court, it would be sensible and efficient for the Court to
simply maintain jurisdiction of the case.51 	Of course, a policy of preferring efficient
processes cannot supersede the bedrock requirement of subject-matter jurisdiction. To the
contrary, because any judgment rendered by a court without subject-matter jurisdiction
would be void,52 the dedication of any further Court resources to this matter (prior to non-
suit and refiling) would be, at a minimum, a misallocation.
VI. CONCLUSION
¶27 	The Parties have failed to establish that the Court has subject-matter
jurisdiction over this case. 	See TEX . R. CIV . P. 355(b)(2)(A). 	As a result, the Court is
required to remand this case to the district court. See TEX . G OV ’ T CODE § 25A.006(d) (“If
the business court does not have jurisdiction of the [removed] action, the business court
shall remand the action to the court in which the action was originally filed.”) (emphasis
added). 	Therefore, subject to the Court’s stay issued in Paragraph 30 below, it is
51 Joint Brief at 5–7 (Argument Section I.B, entitled “Remanding This Case Will [N]ot Keep This Dispute
[O]ut of Texas Business Court.”). According to the Parties, a remand would cause difficulties with live
motions and discovery. Id.
52 See A NALYSIS , supra ¶ 22.

17
ORDERED that the Business Court Clerk shall remand this cause to the 61st Judicial
District Court of Harris County, Texas.
¶28 	In 	addition, 	the 	Court 	grants 	the 	Parties’ 	request 	for 	a 	permissive
interlocutory appeal under Texas Civil Practice & Remedies Code Section 51.014(d). The
Court grants the request because the legal issue considered by this Court—whether “a civil
action that was commenced before September 1, 2024 [may] be removed to Business Court
where the parties entered into a subsequent agreement expressly consenting to the
jurisdiction of the Business Court”—is a controlling question of law as to which there is
substantial ground for difference of opinion.53 Additionally, a determination by the Court
of Appeals of the legal issue here would materially advance the ultimate termination of this
litigation.54 	On this matter, the Court echoes the Parties’ argument—a permissive
interlocutory appeal “advance[s] the ultimate termination of this litigation by giving both
parties, all parties, certainty as to the jurisdictional issues before [the Court], whether
we’re confronting them following a remand and a nonsuit and a refiling or following a
permissive appeal. . . .[N]ot only will it give certainty to litigants around the state, but . . .
it will give . . . certainty to these parties that there’s not some jurisdictional trap that [they]
might be confronted with on appeal.”55
53 See generally Joint Brief at 11–12 (permissive appeal briefing). It appears that a meaningful number of
Business Court litigants believe that pre-September 1, 2024 cases may be removed. A significant proportion
of the cases removed to the Business Court to date were on file in the district courts prior to September 1,
2024.
54 Id.
55 Transcript of Record at 40; see also T EX . R. C IV. P. 168 (“The permission . . . must state why an immediate
appeal may materially advance the ultimate termination of the litigation.”).

q29 	This 	Court 	is 	cognizant 	of 	the 	Section 	51.014(d) 	case 	law. 	Given 	that 	the
Texas 	Business 	Court 	is 	in 	its 	nascent 	stages, 	the 	Court 	certifies 	the 	permissive
interlocutory 	appeal 	to 	provide 	the 	Fifteenth 	Court 	of Appeals 	an 	opportunity 	to 	scrutinize
this 	seminal 	issue, 	give 	guidance 	to 	the 	Business 	Court, 	and 	set 	clear 	precedent 	concerning
the 	removal 	of actions 	which 	were 	pending 	prior 	to 	September 	1, 	2024.
q30 	Further, 	to 	the 	extent 	that 	the 	Court 	has 	the 	authority 	to 	do 	so, 	the 	Court
STAYS 	the 	remand 	order 	contained 	herein 	pending the 	resolution 	ofthe 	Parties' 	permissive
interlocutory 	appeal 	under 	Texas 	Civil 	Practice 	& 	Remedies 	Code 	Section 	51.014(e).
SO 	ORDERED.
How
xas 	siness 	Court, 	Eleventh 	Divisior
DATED: 	December 	20, 	2024
18

Automated Certificate of eService
This automated certificate of service was created by the efiling system.
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Envelope ID: 95577014
Filing Code Description: No Fee Documents
Filing Description: Opinion and Order
Status as of 12/23/2024 8:40 AM CST
Case Contacts
Name
Cindy Hickman
Rafe AronSchaefer
Andrew Price
Parth S.Gejji
Thomas Ganucheau
Fields Alexander
Abraham Chang
Garrett Brawley
Angelina Martinez
Cassie Maneen
Timothy Shinn
Ta'chelle Jones
Business Court 11A
BarNumber
784104
783528
24095812
Email
cindy.hickman@nortonrosefulbright.com
rafe.schaefer@nortonrosefulbright.com
andrew.price@nortonrosefulbright.com
pgejji@beckredden.com
tganucheau@beckredden.com
falexander@beckredden.com
abraham.chang@nortonrosefulbright.com
gbrawley@beckredden.com
angelina.martinez@nortonrosefulbright.com
cmaneen@beckredden.com
timothy.shinn@nortonrosefulbright.com
Tachelle.jones@nortonrosefulbright.com
BCDivision11A@txcourts.gov
TimestampSubmitted
12/20/2024 8:44:25 PM
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Status
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