in Re Bandera Downs, Inc.

• Court: Court of Appeals of Texas
• Decided: October 6, 1999
• Docket: 04-99-00699-CV
• Status: Published

Opinion

CONCURRING OPINION No. 04-99-00699-CV IN RE Bandera Downs, Inc., Original Proceeding Related Trial Court No. 7059-98 From the 216th Judicial District Court, Bandera County, Texas Honorable Stephen B. Ables, Judge Presiding⁽¹⁾

Opinion by: Paul W. Green, Justice

Concurring opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: October 6, 1999

I concur in the majority opinion because the reported law is clear that a trial judge may not interpret an appellate court's mandate so as to require additional burdensome action by the parties. Nonetheless, I write separately because I believe the difficulties encountered by the trial judge and the parties were created by this court when it prematurely issued its mandate.

Apparently there is no statute precluding issuance of an intermediate appellate court's mandate while appeal to the supreme court is pending; yet practical considerations caution against early issuance of a mandate. The parties in this case who sought issuance of the mandate prior to the supreme court's decision are understandably eager to obtain their funds and improve the real property in issue. No doubt they are also frustrated with what they consider to be dilatory tactics by A.G. Hamilton. All parties to appeals involving recovery of money are eager to obtain their funds and get on with the business at hand, but that has never been considered a valid reason to issue mandate before completion of review by the supreme court. The trial court in this case is understandably concerned about the ability to recoup disbursed funds if this court's opinion is ultimately reversed by the supreme court. While I share his concern, the mandate has issued, and he is now bound to follow it.

CATHERINE STONE,

JUSTICE

DO NOT PUBLISH

1. The Honorable Stephen B. Ables is the proper respondent because he is the permanent judge of the 216th Judicial District Court, Bandera County, Texas. See In re Acevedo, 956 S.W.2d 770, 772 n. 1 (Tex. App.-San Antonio 1997, orig. proceeding). Relator, however, complains about the Visiting Trial Judge, the Honorable V. Murray Jordan, who presided over the case below.