January 28, 2022, opinions

Designated for publication

  • Gabriel Investment Group, Inc. v. Texas Alcoholic Beverage Commission, 21-50322, appeal from W.D. Tex.
    • Willett, J. (King, Costa, Willett), alcohol regulation
    • Certifying to the Texas Supreme Court question regarding whether an exempt publicly-traded corporation owning a package store permit may retain that permit when it is sold to a non-exempt publicly-traded corporation that otherwise would not be allowed to hold a package store permit.
    • The Court looked to the three factors for certification. “The first factor—the closeness of the question and the existence of sufficient sources of state law—weighs in favor of certification. Above, we previewed the primary competing arguments of the parties. Both parties have solid textual and structural support for their positions. Likewise, the Commission does not challenge GIG’s contention that the disputes in this case are questions of first impression in any court…. The second factor—the degree to which considerations of comity are relevant in light of the particular issue and case to be decided—similarly weighs in favor of certification. The Legislature enacted its general ban on public corporations owning or controlling package store permits in 1995, over 26 years ago. … GIG and Sarro could control up to 500 package stores between the two of them[;] it threatens to blow a Texas-sized hole in the careful balance that the Legislature created. The third factor—practical limitations on the certification process—also weighs in favor of certification. The questions that GIG asks are purely legal. And we are untroubled by any potential delay.”
    • The Court certified two questions to the Texas Supreme Court: “(1) If Texas Alcoholic Beverage Code Section 22.16(f) exempts a package store from Section 22.16(a), and if the package store sells any, most, or all of its shares to a corporation that does not itself qualify under Section 22.16(f), will the package store’s package store permits remain valid? (2) If yes to (1), can the package store validly accumulate additional package store permits by reason of Section 22.16(f)?”


  • U.S. v. Lott, 20-11204, appeal from N.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, compassionate release
    • Vacating denial of motion for compassionate release, and remanding for consideration in light of United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021).
  • Ortiz v. Lumpkin, 20-40508, c/w 20-40702, appeal from S.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), habeas corpus
    • Dismissing as frivolous appeals from district court’s denial of nunc pro tunc motions seeking to have new judge rule on § 2254 motions, and from district court’s imposition of sanctions.
  • U.S. v. Gutierrez-Melendez, 20-50622, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Burns, 21-30460, appeal from W.D. La.
    • per curiam (King, Costa, Ho), criminal, sentencing
    • Affirming sentence on conviction of possession of a firearm by a convicted felon.