implied waiver in Texas

2025It is so high that “appellate courts seldom find an implied waiver through litigation conduct,” Legoland, 531 S.W.3d at 222 , and the Texas Supreme Court has declined to find waiver even when the party seeking arbitration has, among other things, filed suit, moved to dismiss for lack of standing, moved to set aside a default judgment, removed the case to federal court, moved to strike an intervention, opposed discovery, requested an initial round of discovery, noticed and taken as many as four depositions, opposed a trial setting, and agreed to a trial resetting, Perry Homes, 258 S.W.3d at 590

2019P’ship v. Bradberry, 526 S.W.3d 471, 485 (Tex. 2017) (quotation marks omitted). 14 Perry Homes, 258 S.W.3d at 593, 595 ; see also Nationwide, 494 S.W.3d at 712-13 (noting the implied waiver test “borrowed” from the arbitration context is “different” from traditional waiver principles because the former includes the estoppel-based requirements of detriment or prejudice). 6 Though waiver is a question of intent, it need not be explicit.15 A party’s conduct sufficiently demonstrates intent to waive a right if, in light of the “surrounding facts and circumstances,” it is “unequivocally inconsisten

2021Berghuis, 560 U.S. at 381-85 , 130 S. Ct. at 2260-62 ; see Moran v. Burbine, 475 U.S. 412, 422-23 , 106 S. Ct. 1135 , 89 L.

2015When determining whether the “totality of the circumstances” demonstrate waiver, courts consider “ ‘all the circumstances surrounding the interrogation,’ including the defendant’s experience, background, and conduct.” Id. (quoting Fare v. Michael C., 442 U.S. 707, 725 , 99 S.Ct. 2560, 2572 , 61 L.Ed.2d 197 (1979)); see also Leza v. State, 351 S.W.3d 344, 353 (Tex.Crim.App.2011) (stating that although “iipplied waivers are not to be preferred,” it is within trial court’s discretion- “to rely upon an implied waiver whenever the totality of the circumstances, as reflected by the recording of the

2024Howard v. State, 482 S.W.3d 249, 256 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d); see Berghuis v. Thompkins, 560 U.S. 370, 384 (2010) (“Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.”).

2022“Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.” Berghuis v. Thompkins, 560 U.S. 370, 384 , 130 S. Ct. 2250, 2262 , 176 L.

2019In other words, Rule 511(a) “allows a partial disclosure of privileged material to result in an implied waiver of the privilege as to additional material that has not been disclosed.” Berger v. Lang, 976 S.W.2d 833, 837 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (quoting Terrell State Hosp. of Tex. Dep’t of Mental Health & Mental Retardation v. Ashworth, 794 S.W.2d 937, 940 (Tex. App.—Dallas 1990, orig. proceeding)).

2019“This implied waiver occurs only if the disclosure is of any significant part of the privileged material.” Id. (internal quotation marks & citation omitted).

2012App. 1994) (expressly declining to overrule Barfield, and finding an implied waiver when the accused was informed of his rights, declared he understood them, and agreed to continue with questioning); Rocha v. State, 16 S.W.3d 1, 12 (Tex. Cirm.

2012App. 1994) (expressly declining to overrule Barfield, and finding an implied waiver when the accused was informed of his rights, declared he understood them, and agreed to continue with questioning); Rocha v. State, 16 S.W.3d 1, 12 (Tex. Crim.

2025App. 1989); see also Leza, 351 S.W.3d at 353-54 (explaining that waiver under article 38.22 may be “an implied waiver whenever the totality of the circumstances . . . supports it”).

2024App. 2011) (internal quotation marks omitted); Bleil v. State, 496 S.W.3d 194 , 208–09 (Tex. App.—Fort Worth 2016, pet. ref’d). “[I]t is within a trial court’s discretion to rely upon an implied waiver whenever the totality of the circumstances, as reflected by the recording of the oral statement, supports it.” Leza, 351 S.W.3d at 353 .

2014"Thus, law-enforcement officers are well advised to expressly ask a suspect to waive his Miranda rights so as to avoid later, protracted litigation and the very real possibility that a suspect’s statement must be excluded because the totality of the circumstances are insufficient to meet the State’s ‘heavy burden’ to show an implied waiver.” Id. at 30 (Cochran, J., concurring).

2012In Leza, the court of criminal appeals explained that "[w]hile we have also said that such implied waivers are not to be 12 preferred,[5] we have acknowledged that it is within a trial court's discretion to rely upon an implied waiver whenever the totality of the circumstances, as reflected by the recording of the oral statement, supports it." Leza, 351 S.W.3d at 353 (citing Joseph v. State, 309 S.W.3d 20 , 25–26 n.7 (Tex. Crim.

2024See Henry, 551 S.W.3d at 116 .

2024See Henry, 551 S.W.3d at 116 . 2 A. Substantial Invocation of Judicial Process Sun filed a response to Power’s motion to compel arbitration in the trial court in which it specifically argued that “[a]t every step of litigation, for almost 4 years, Power took every opportunity to engage in litigation leading everyone to believe the case would go to trial.” Sun further noted that “[d]uring the 46 month delay” before filing its motion to compel arbitration, “Power: 1) agreed to a jury trial; 2) responded to multiple requests for written discovery; 3) sent multiple written discovery requests; 4) d

2025See RSL Funding, LLC v. Pippins, 499 S.W.3d 423, 430 (Tex. 2016) (citing G.T.

2020An implied waiver analysis “involves numerous factors, including [1] whether the party asserting the right to arbitrate was plaintiff or defendant in the lawsuit, [2] how long the party waited before -5- 04-19-00331-CV seeking arbitration, [3] the reasons for any delay in seeking to arbitrate, [4] how much discovery and other pretrial activity the party seeking to arbitrate conducted before seeking arbitration, [5] whether the party seeking to arbitrate requested the court to dispose of claims on the merits, [6] whether the party seeking to arbitrate asserted affirmative claims for relief in c

2015Berghuis, 560 U.S. at 381-4; see Moran v. Burbine, 475 U.S. 412, 422-3 (1986); Leza, 351 S.W.3d at 349 . “[T]he general rule is that neither a written nor an oral express waiver is required.” However, a waiver cannot be presumed from an accused’s silence or the fact that a confession was made after warnings were provided, Watson, 762 S.W.2d at 601 .

2015Berghuis, 560 U.S. at 381-4; see Moran v. Burbine, 475 U.S. 412, 422-3 (1986); Leza, 351 S.W.3d at 349 . “[T]he general rule is that neither a written nor an oral express waiver is required.” However, a waiver cannot be presumed from an accused’s silence or the fact that a confession was made after warnings were provided, Watson, 762 S.W.2d at 601 .

2021Dist., 734 S.W.2d 649, 651 (Tex. 1987); and Montgomery Ward & Co. v. Scharrenbeck, 204 S.W.2d 508, 510 (Tex. 1947) (observing that common law duty to perform with care and skill accompanies every contract and that the failure to meet this implied standard might provide a basis for recovery in tort, contract, or both under appropriate circumstances)).

2019In Chapman Custom Homes, the supreme court recognized that “a common 7 law duty to perform with care and skill accompanies every contract and . . . the failure to meet this implied standard might provide a basis for recovery in tort, contract, or both under appropriate circumstances.” Id. (citing Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153 , 204 S.W.2d 508, 510 (1947)).

2018“An implied waiver of one’s rights is established upon a showing that the accused: (1) was given the proper warnings; (2) understood the warnings and their consequences; and (3) made an uncoerced statement.” Hernandez v. State, 387 S.W.3d 881, 885 (Tex. App.—San Antonio 2012, no pet.).

2018“Simply making a statement is often the kind of conduct viewed as indicative of one’s intention to waive her rights.” Id.

2026See Elephant Ins., 644 S.W.3d at 144 (providing elements of negligence); see also Chapman Custom Homes, Inc. v. Dallas Plumbing Co., 445 S.W.3d 716, 718 (Tex. 2014) (recognizing long-standing precedent that “a common law duty to perform with care and skill accompanies every contract and that the failure to meet this implied standard might provide a basis for recovery in tort, contract, or both under appropriate circumstances”).

2015Chapman Custom Homes, Inc. v. Dallas Plumbing Co., 445 S.W.3d 716, 718-19 (Tex. 2014) (plumbing subcontractor had independent duty not to flood or damage home while performing contract with builder, and therefore homeowner—who was not party to contract between subcontractor and builder—could sue subcontractor for common-law negligence); see Gupta v. Ritter Homes, Inc., 633 S.W.2d 626, 628 (Tex. App.—Houston [14th Dist.] 1982) (builder owes duty of ordinary care in construction of home, duty is not limited to first purchaser of home but extends to subsequent purchasers, and privity of contract

2024Howard v. State, 482 S.W.3d 249, 256 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d); see Berghuis v. Thompkins, 560 U.S. 370, 384 (2010) (“Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.”).

2024Howard v. State, 482 S.W.3d 249, 256 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d); see Berghuis v. Thompkins, 560 U.S. 370, 384 (2010) (“Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.”).

2008See Griffith, 166 S.W.3d at 263 (dealing with an express waiver of PSI); Summers v. State, 942 S.W.2d 695, 696-97 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (dealing with an implied waiver via the defendant's failure to object to the absence of a PSI).

2008See Griffith, 166 S.W.3d at 263 (dealing with an express waiver of PSI); Summers v. State, 942 S.W.2d 695, 696-97 (TexApp.-Houston [14th Dist.] 1997, no pet.) (dealing with an implied waiver via the defendant’s failure to object to the absence of a PSI).

2026See West v. Solito, 563 S.W.2d 240, 244 (Tex. 1978) (“We do not pass on the merits of these arguments because the release that is central to both of these arguments was not placed in issue before the trial court, thus depriving that fact finder of the opportunity to determine from the facts and circumstances surrounding the release if there was an implied waiver of the privilege.”); see also In re Aguilar, No. 04-13-00425-CV, 2013 WL 4501435 , at *4, n. 5 (Tex. App.—San Antonio Aug. 21, 2013, orig. proceeding) (“The requirement to preserve error applies to mandamus proceedings”); H.E.

2022Accordingly, we confine our review to whether Occidental precludes Aruba’s responsibility for any defects in the pipeline. 22In re AIU Ins., 148 S.W.3d 109, 121 (Tex. 2004) (holding that failure to present an argument in the court of appeals did not preclude mandamus relief where all arguments had been presented to the trial court). 23 Id.; cf. West v. Solito, 563 S.W.2d 240, 244 (Tex. 1978) (“We do not pass on the merits of these arguments because the release that is central to both of these arguments was not placed in issue before the trial court, thus depriving that fact finder of the oppor

2015See Estes v. Wilson, 682 S.W.2d 711,714 (Tex. App.—Fort Worth 1984, writ ref d n.r.e.) ("It is an established rule of law that to prove an implied waiver of a legal right, there must be a clear, unequivocal and decisive act of a party showing a purpose or acts which amount to estoppel on his part.").

2009See Estes v. Wilson , 682 S.W.2d 711, 714 (Tex. App.—Fort Worth 1984, writ ref’d n.r.e.) (“It is an established rule of law that to prove an implied waiver of a legal right, there must be a clear, unequivocal and decisive act of a party showing a purpose or acts which amount to estoppel on his part.”).

2015Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

2015Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

2024Jernigan, 111 S.W.3d at 156 ; Rahlek, 587 S.W.3d at 70.

2018Anderson Energy Corp. v. Dominion Oklahoma Texas Exploration & Prod., Inc. , 469 S.W.3d 280 , 299 (Tex. App.-San Antonio 2015, no pet.) (citing Jernigan v. Langley , 111 S.W.3d 153 , 156 (Tex. 2003) ). *163 To find an implied waiver based on a party's conduct, the party must say or do something inconsistent with an intent to rely upon the right.

2022Id. at 759 (citations omitted).

2019“An express waiver is shown by clear overt acts evidencing an intent to waive, while an implied waiver occurs when a party, often inadvertently, takes some action inconsistent with his position on the venue issue and therefore is held to have waived his rights thereon.” Id.

2008See Griffith, 166 S.W.3d at 263 (dealing with an express waiver of PSI); Summers v. State, 942 S.W.2d 695, 696-97 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (dealing with an implied waiver via the defendant's failure to object to the absence of a PSI).

2008See Griffith, 166 S.W.3d at 263 (dealing with an express waiver of PSI); Summers v. State, 942 S.W.2d 695, 696-97 (TexApp.-Houston [14th Dist.] 1997, no pet.) (dealing with an implied waiver via the defendant’s failure to object to the absence of a PSI).

1988Id., at 125-26 .

1979Olympic Trampolines, Inc. v. Bashaw, 462 S.W.2d 345, 347 (Tex.Civ.App.—Houston [14th] 1970, n. w. h.); Mooney Aircraft, Inc. v. Adams, supra at 126.

2021Dist., 734 S.W.2d 649, 651 (Tex. 1987); and Montgomery Ward & Co. v. Scharrenbeck, 204 S.W.2d 508, 510 (Tex. 1947) (observing that common law duty to perform with care and skill accompanies every contract and that the failure to meet this implied standard might provide a basis for recovery in tort, contract, or both under appropriate circumstances)).

1990Coulson I, 692 S.W.2d 897 (Tex.App.—Austin 1985), rev’d and remanded, 734 S.W.2d 649 (Tex.1987).

2017See McGowan v. Pasol, 605 S.W.2d 728, 732 (Tex.App-Corpus Christi 1980, no writ). 40.

1983McGowan v. Pasol, 605 S.W.2d 728 (Tex.Civ.App.—Corpus Christi 1980, no writ); Diamond v. Hodges, 58 S.W.2d 187 (Tex.Civ.App.—Dallas 1933, no writ) and Matter of Marriage of Rutherford, 573 S.W.2d 299 (Tex.Civ.App.—Amarillo 1978, no writ).