Opinion
No. 10-05-00375-CV.
Opinion dated October 18, 2006 withdrawn.
Opinion delivered and filed January 3, 2007.
Appeal from the County Court at Law No. 1 McLennan County, Texas Trial Court No. 20050157CV1.
Before Chief Justice Gray, Justice Vance, and Justice Reyna.
OPINION ON MOTION FOR REHEARING AND ON MOTION TO DISMISS
The Court issued an Opinion in this appeal on October 18, 2006. Sherman Acquisition II LP v. Graham, No. 10-05-00375-CV, 2006 Tex. App. LEXIS 9400 (Tex.App.-Waco Oct. 18, 2006, no pet.). A Dissenting Opinion was also issued. Id. at *4-10 (Gray, C.J., dissenting). After the opinions issued, Sherman Acquisition filed a motion to dismiss its appeal. Graham had defaulted at the trial court and never appeared in this Court.
The opinion from this Court was unusual enough that it was designated an Opinion, not a Memorandum Opinion, thus indicating that it established some new precedent, or applied existing precedent to a different fact pattern. TEX. R. APP. P. 47.4(a). There are good reasons to not withdraw previously issued opinions when the parties represent they have settled their dispute after the opinion is issued. Under the circumstances presented here, however, the opinion will be withdrawn.
Absent extraordinary circumstances stated in the order withdrawing an opinion, a published opinion should only be withdrawn upon settlement if the court issuing the opinion is convinced that it was wrong or if the court harbors grave doubts about it being a proper statement of the law. See TEX. R. APP. P. 42.1(a), (c); Paulson v. State, 28 S.W.3d 570, 571-572 (Tex.Crim.App. 2000) (reasons for overruling prior precedent); see e.g., Polley v. Odom, 963 S.W.2d 917, 918 (Tex.App.-Waco 1998, order) (this Court's unwillingness to withdraw its opinion because it addressed "matters of public importance"). In essence, the withdrawal of an opinion should only occur in the same circumstances that a court would overrule existing precedent. Any other result causes uncertainty in the law. Law should be stable and predictable. See Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex. 1995) ("the legitimacy of the judiciary rests in large part upon a stable and predictable decisionmaking process that differs dramatically from that properly employed by the political branches of government.").
An obvious exception to this is when an opinion is being withdrawn and replaced by an opinion with the same judgment which merely corrects some error in the first opinion such as a recitation of fact, spelling, grammar, or other non-substantive change.
Because the rule announced in the original opinion was wrongly decided, it was flawed from the outset, a ground on which existing precedent should be overruled, we withdraw the opinion issued October 18, 2006 and grant Sherman Acquisition's motion to dismiss this appeal and the motion to withdraw our prior opinion. Because the dissenting opinion issued October 18, 2006 has already been cited in another appeal, it is not being withdrawn. See EMCC, Inc. v. Johnson, No. 10-05-00287-CV, 2006 Tex. App. LEXIS 9277, *11 (Tex.App.-Waco Oct. 25, 2006, no pet.) (Gray, C.J., dissenting).