In re Rodriguez

160 S.W.3d 96, 2004 Tex. App. LEXIS 7785, 2004 WL 1903319

• Court: Court of Appeals of Texas
• Decided: August 25, 2004
• Docket: No. 10-04-00165-CR
• Status: Published

Opinions

OPINION¹

TOM GRAY, Chief Justice.

The petition for writ of mandamus is denied. See De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex.Crim.App.2004) (orig.proceeding); In re Rodriguez, No. 10-04-00152-CV, 2004 WL 1632829, 2004 Tex. App. LEXIS 6605 (Tex.App.-Waco July 21, 2004, orig. proceeding) (per curiam).

Justice VANCE dissenting.

1 . There is an apparent conflict in Tex.R.App. P. 47.4. Because the author of the Dissenting Opinion has opposed the designation of this Memorandum Opinion as a memorandum opinion it must be designated as an opinion. “An opinion may not be designated a memorandum opinion if the author of a concurrence or dissent opposes that designation.” Tex.R.App. P. 47.4. The same rule, however, limits what opinions can be designated non-memorandum opinions:

An opinion must be designated a memorandum opinion unless it does any of the following:

(a) establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to recur in future cases;

(b) involves issues of constitutional law or other legal issues important to the jurisprudence of Texas;

(c) criticizes existing law; or

(d) resolves an apparent conflict of authority. Id. This opinion does not do any of those things, and thus "must” be designated a memorandum opinion. Id. We have, nevertheless, designated it as an opinion because the sentence of the rule regarding the opposition by the author of a concurrence or dissent is more specific, and subject to less interpretation, than the later portion of the same rule above quoted.

It does, however, remain designated "do not publish” pursuant to Tex.R.App. P. 47.2(b). A question remains whether it was the purpose of the rule to allow the author of a concurrence or dissent to publish the concurrence or dissent over the contrary vote of the other members of the panel, and, further, to attach as an appendix to that concurrence or dissent the opinion designated "do not publish.” We choose, in this instance, to leave that issue to the jurisprudential judgment of the author, but ultimately it will be left to the rule makers to clarify.