Harris County Appraisal District v. Wilkerson ( 1995 )

OLIVER-PARROTT, Chief Justice,

dissenting.

In the order denying appellee’s motion for rehearing, I dissented from the decision to deny rehearing because I agreed with appel-lee that this case should be remanded for a new trial in the interest of justice. I now respectfully dissent for the same reason from this Court’s decision not to reconsider this case en banc.

In his motion for rehearing and rehearing en banc, appellee urged this Court to remand this case for a new trial in the interest of justice, rather than render judgment, because the case is one of first impression. Appellee argued that he had no precedent to guide him in interpreting the timber-use valuation statute, Tex.Tax Code Ann. § 23.72 (Vernon 1992). Specifically, appellee argued that, before this Court’s opinion, there was no precedent interpreting the language in section 23.72 regarding “the degree of intensity generally accepted in the area with intent to produce income.” Appellant does not dispute these arguments, and I agree with appellee’s assertions.

Both the courts of appeals and the Supreme Court have discretion in a proper case to remand in the interest of justice. Morrow v. Shotwell, 477 S.W.2d 538, 542 (Tex.1972); Tex.R.App.P. 180; see Tex.R.App.P. 81(c); see also Pontiac v. Elliott, 775 S.W.2d 395, 401 (Tex.App.—Houston [1st Dist.] 1989, writ denied) (remanding, in the interest of justice, mental anguish and other damage issues after finding evidence legally insufficient). Rule 180 of the Rules of Appellate Procedure specifically allows the Supreme Court to do so; the predecessor to Tex.R.App.P. 81(c)¹ has been cited as authority for the courts of appeals likewise to remand a case in the interest of justice. Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.1966).

I would grant appellee’s request for this Court to reconsider this ease en banc and sustain his point of error on rehearing requesting us to remand the case to the trial court for a new trial.

Justice HUTSON-DUNN joins this dissenting opinion.

1 . Former Tex.R.Civ.P. 434 was repealed by Supreme Court order dated April 10, 1986.