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Hon. Marialyn Barnard
Judge · Seat 4A
Texas Business Court · Fourth Business Court Division (San Antonio)
Biography
Judge Marialyn Barnard was appointed by Governor Abbott as a Judge of the Fourth Business Court Division effective September 1, 2024. She has worked in business, private practice, and government. Her previous eleven years of judicial experience includes Judge of the 73rd Judicial District Court in Bexar County and Justice on the Texas Fourth Court of Appeals. She also served on the Bexar County Commissioners Court as Commissioner for Precinct 3. Before her judicial service, Judge Barnard served as an Assistant United States Attorney in the Western District of Texas. She then worked for over 10 years in business as Managing Director of Forensic Litigation for KPMG LLP, In-house Counsel and Director of Business Intelligence for CPS Energy and Vice President of Product Development for TXdocs Software. She also worked as an attorney in private practice at Prichard, Hawkins, McFarland & Young LLP. She is and has been a member of several legal bar associations, committees and civil groups. Judge Barnard received her J.D. from St. Mary’s University School of Law, and as a student, she was an intern for Justice John Cornyn on the Texas Supreme Court and Judge Charles Baird on the Texas Court of Criminal Appeals. Upon graduation, she served as a briefing attorney for Justice Orlando Garcia on the Texas Fourth Court of Appeals as well as a federal law clerk when he became a U.S. District Judge for the Western District of Texas. Prior to law school, Judge Barnard was a high school English teacher after receiving her undergraduate degree in Political Science and English from Texas A&M University Commerce. She also worked in insurance and banking. Judge Barnard is married to her high school sweetheart Dr. Gary Barnard PhD, Clinical Psychologist. They have two children, a married daughter and married son, as well as four grandchildren.
Opinions by Judge Barnard (8)
Pleading Amount in Controversy Suffices for Business Court Jurisdiction Absent Sham Evidence
In Kampmann v. Smith, Division 4 denied a plea to the jurisdiction challenging counts seeking declaratory relief and breach-of-fiduciary-duty damages in a dealership partnership dispute, holding that a plaintiff's allegation of damages exceeding the $5 million threshold satisfies Section 25A.004(b) unless the defendant proves the figure is a sham. The court rejected the argument that failure to quantify specific dollar losses defeats jurisdiction, distinguishing between merits questions (proving damages) and jurisdictional questions (alleging concrete injury traceable to defendant's conduct).
TUTSA Preemption Does Not Bar Fiduciary Duty Claims Based on Independent Conduct Beyond Trade Secret Misappropriation
The Business Court of Texas denied Ayr Energy's Rule 91a motion to dismiss claims for knowing participation in breach of fiduciary duty, holding that TUTSA preempts only claims premised on the same facts as trade secret misappropriation—not claims based on independent conduct such as employees using company resources to develop competing businesses while still employed. The court further held that a corporate defendant may be charged with knowledge its agents acquired while acting within the scope of their authority in furtherance of the defendant's business.
Business Court Denies Plea to Jurisdiction in Real Estate Development Indemnity Dispute, Applying Traditional Amount-in-Controversy Analysis
In Pradera SFR v. American Housing Ventures, Division 4 denied defendant's plea to the jurisdiction challenging whether plaintiff's indemnity and contract reformation claims arising from a copyright infringement settlement satisfied the $5 million amount-in-controversy threshold under Section 25A.004(d). The opinion applies Texas's well-established plea-to-jurisdiction standard to determine the Business Court's subject-matter jurisdiction over claims tied to a single-family rental development project and subsequent settlement agreement.
Assignment Does Not Expand Assignor's Rights in Trade Secret Settlement Proceeds
In Mesquite Energy v. Sanchez Oil, the Business Court of Texas addressed the allocation of settlement proceeds from a prior trade secret misappropriation lawsuit involving Sanchez Oil & Gas Corporation, Sanchez Energy Corporation (now Mesquite Energy), and Sanchez Production Partners LP against Terra Energy Partners and former employees. The dispute centered on whether Mesquite, as assignee of Sanchez Production Partners' claims, could recover a separate share of the settlement funds beyond its own rights as successor to Sanchez Energy Corporation.
Business Court Lacks Jurisdiction Over Trust Claims Arising Under Property Code Title 9 Absent Party Agreement
In Barrett v. Barrett, Division 4 remanded a trust dispute removed from statutory probate court, holding that claims arising out of Title 9 of the Property Code fall outside the Business Court's jurisdiction under section 25A.004(g) unless all parties agree to supplemental jurisdiction. The decision clarifies that removal under section 25A.006(d) is available only from district court or county court at law—not statutory probate court—and that trust-related claims cannot be recharacterized as governance disputes to establish Business Court jurisdiction.
Post-Amendment Removal Fails: Business Court Reaffirms September 1, 2024 Commencement Date Controls Jurisdiction
In In Re J.W.B. Trust of 2007, Judge Barnard remanded a trust dispute originally filed in probate court in February 2024, holding that a February 2025 amended petition adding a corporate defendant and new claims after the Business Court's effective date did not commence a new action for purposes of HB 19's September 1, 2024 jurisdictional threshold. The decision aligns with ETC Field Services and Sebastian, rejecting arguments that post-effective-date amendments or new parties trigger Business Court jurisdiction.
Sham Pleading Standard Requires Evidence of Fraud to Challenge Amount in Controversy
In ET Gathering & Processing LLC v. Tellurian Production LLC, Judge Barnard denied Tellurian's plea to the jurisdiction challenging whether the amount in controversy exceeded the Business Court's $10 million threshold, holding that Tellurian failed to produce evidence that ET Gathering's jurisdictional allegations were fraudulent or a sham. The court reaffirmed that under Texas's plea to the jurisdiction standard, a plaintiff's pleadings are determinative unless the defendant specifically proves the amount was pleaded merely as a sham for the purpose of wrongfully obtaining jurisdiction.
Business Court Lacks Jurisdiction Over Pre-Effective Date Cases Under Plain Language of H.B. 19
In Morningstar Winans v. Berry, the Texas Business Court held it lacked jurisdiction over a removal petition for a lawsuit originally filed in 2022, concluding that Chapter 25A's removal procedure applies only to cases commenced on or after September 1, 2024. The decision establishes that the Business Court's temporal jurisdiction is determined by the case filing date, not the date of underlying transactions or events.