Since the Texas Supreme Court established the prior material breach rule in 2004, courts and attorneys have struggled when forced to implement it. In 2017, the Texas Supreme Court attempted to clarify the prior material breach rule in Bartush-Schnitzius Foods Co. v. Cimco Refrigeration, Inc., 518 S.W.3d 432 (Tex. 2017). Ultimately the Texas Supreme Court found that: (1) only a material breach excuses future performance; (2) a later material breach does not excuse a prior material breach; and (3) the party that materially breaches the contract may be entitled to an offset for the other patry's nonmaterial breaches.
For a more in-depth discussion of this opinion please see Logan Adcock's article "Who Breached First, and Was It Material?," which the Dallas Bar Association chose as one of its headnotes for January of 2018, by clicking here.