Elmer Albright v. Larry Wornat ( 2000 )

TOM GRAY Justice,

concurring and dissenting.

I concur in the dismissal of this cause, but I respectfully dissent to the manner in which costs are allocated. On motions to dismiss, with only one exception, we have not allocated costs to the party incurring the costs unless it is (1) a joint motion to dismiss the appeal, or (2) the motion to dismiss contains a request that costs be taxed to the party incurring same, or (3) a settlement agreement is filed with the motion which provides that costs will be paid by the party incurring same.¹ On motions to dismiss an appeal, which do not fall into the above categories, we have consistently taxed costs against the appellant. This methodology is supported by the rules. See Tex.R.App. P. 43.4. The only exception that I have noted to these general rules is that on some joint motions costs were taxed only against the appellant. I found no unilateral motions to dismiss by an appellant, like the one filed herein, which resulted in costs being taxed against the party incurring the costs. Accordingly, I would be consistent with our prior dismissals and tax all costs against the appellant.

1 . The opinions from which these general rules regarding the way we handle dismissals on agreed motions are unpublished and therefore not cited.