Winn v. Lackey , 1981 Tex. App. LEXIS 3859 ( 1981 )

DICKENSON, Justice,

dissenting.

I concur in the court’s rulings as to the Lackeys’ recovery from the Winn brothers, but I dissent from the court’s ruling that Julie Marie York did not inherit her father’s interest in the property.

Whether we agree with its wisdom or not, we are bound by the majority opinion in Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). If Illinois deprived an illegitimate child of “equal protection of the laws”¹ by not permitting her to inherit property from the natural father, it seems to me that Texas also deprives Julie Marie York of “equal protection of the laws” ² by not permitting her to inherit her father’s interest in the tract of land involved in this lawsuit.

The scholarly dissent in Trimble points out some of the difficulties which result when the Supreme Court engages in “a conscious second-guessing of legislative judgment in an area where (it) has no special expertise whatever.”³ In refusing to give retroactive effect to Trimble, the majority opinion in this case points out the “chaotic” effect which Trimble could have on the title to real property. It may well be that Trimble should be reexamined, but we are bound by that decision. The Supreme Court did not expressly indicate otherwise, and I would apply the general rule that the decision is entitled to retroactive as well as prospective effect.⁴ Consequently, I would affirm the judgment of the District Court.

1 . See Section 1, Fourteenth Amendment to the Constitution of the United States, as adopted in 1868.

2 . Supra note 1.

3 . 430 U.S. 762, at 783, 97 S.Ct. 1459, at 1471, 52 L.Ed.2d 31, at 48.

4 . See 10 A.L.R.3d 1371, § 4, at p. 1384 (1966).