edd-hendee-individually-and-as-executive-director-of-clout-v-david ( 2007 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-06-00501-CV

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Ed Hendee, Individually and as Executive Director of C.L.O.U.T., Appellant

v.

David Dewhurst, Tom Craddick, State of Texas, and the

Texas Legislative Budget Board, Appellees

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT

NO. D-1-GN-06-002156, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING

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C O N C U R R I N G O P I N I O N  

Were we to address the issues raised but not fully formed in this litigation, we would be speaking without portfolio. Tempting as it may be to speak to these important issues, the posture of this case shows the inefficiencies of using a plea to the jurisdiction, particularly without the production of essential evidence, to force the trial judge--and this Court--to make an ad hoc decision and give an advisory opinion that should be determined after a fuller ventilation of pleadings, evidence, and briefing in the district court than occurred here. By allowing parties to opt out of the procedures designed to allow full and fair consideration of these issues, we introduce greater uncertainty and gamesmanship into the system. The employment of standard procedural motions in the district court allows issues to be ruled upon first by the district court instead of being raised for the first time on appeal without an adequate record. The only issue ripe for decision is the district court's dismissal of the claim alleging unconstitutional delegation of legislative powers, and I join in this Court's affirmance of that issue. I otherwise concur only in reversing and remanding this cause to the district court.

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Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Filed: April 17, 2007