William J. Hix v. William Carroll Robertson and Lester Eugene Robertson

• Court: Court of Appeals of Texas
• Decided: July 12, 2006
• Docket: 10-05-00214-CV
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00214-CV

William J. Hix,

                                                                      Appellant

 v.

William Carroll Robertson

and Lester Eugene Robertson,

                                                                      Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court No. 24,970

CONCURRING OPINION TO BRIEFING ORDER

          Notwithstanding the Texas Supreme Court’s recent decision in Ross, regarding what it takes to become a party bound by a judgment, I have grave concerns about the consequences of the State filing an amicus brief in this proceeding.  Ross v. Nat'l Ctr. for the Empl. of the Disabled, No. 05-1082, 49 Tex. Sup. J. 760, 2006 Tex. LEXIS 551, *1-2 (Tex. June 16, 2006) (“But the trial court had no jurisdiction either to enter judgment or to enforce it against a party who had neither been properly served nor appeared.”).  My concern arises out of this Court’s holding in Avila in which a majority of the Court made persons and companies that had never been served, had never made a formal appearance, and had never appeared by an attorney in any proceeding in the trial or appellate court, but they were, nevertheless made parties to the proceeding.  Avila v. Christopher, No. 10-04-00021-CV, 2005 WL 1531170 (Tex. App.—Waco, June 29, 2005) (majority and dissenting opinions were not withdrawn or superseded); Avila v. Lone Star Radiology, 183 S.W.3d 814, 817-825 (Tex. App.—Waco 2005, no pet.) (Gray, C.J., dissenting).

          Under the holding of that case, with which I vehemently disagree, it is not clear to me that by presenting this Court with any type of brief that the State has not then made an appearance, thus potentially negating one of the issues raised by the appellant.

          While I always look forward to additional quality briefing on any issue, and given the very sparse authority upon which the order relies, I would not inject the uncertainties of a State’s amicus brief into this proceeding without the opportunity of the parties to first brief and determine whether or not that would constitute an appearance by the State or would otherwise impact the issues that they have chosen to present to this Court.

          With these comments, expressed concerns, and reservations, I will, however, join the majority in considering any amicus briefs filed in response to their request.

                                                          TOM GRAY

                                                          Chief Justice

Concurring opinion delivered and filed July 12, 2006

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