Ex Parte Ainsworth , 2007 Tex. App. LEXIS 2984 ( 2007 )

DISSENTING OPINION TO ABATEMENT ORDER

I dissent.¹ "A court of appeals must not affirm or reverse a judgment . . . if . . . the trial court's erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals." TEX.R.APP. P. 44.4(a). Here, the case is properly presented to this Court; the habeas court's action is ready to be, can be, and should now be reviewed by this Court.

The rules simply do not give us the authority to abate a proceeding to allow the trial court the opportunity to change his ruling.² There are no do-overs, no mulligans, for the trial court. Once the decision is final and has been appealed, the trial court's opportunity to change, as opposed to clarifying, its ruling will properly come, if ever, only after we have remanded the proceeding for further action by the trial court.

¹ The majority refused to publish its abatement order as I requested. In order that this dissenting opinion might be more meaningful to the public, I have attached the text of the order as an appendix.

² In all probability, we will not have jurisdiction of the order that the habeas court intends to render as a result of this abatement. In response to our earlier abatement order to clarify the habeas court's ruling, that court unequivocally stated its intent to deny relief on the merits. Giving effect to that intent, we currently have jurisdiction of this appeal. Nonetheless, the basis of the present abatement is the habeas court's "contention" that the writ should not have been issued because that court believes the application is procedurally defective. Nevertheless, the habeas court did issue the writ in response to the application and denied relief on the merits. There may be a conflict in the wording of the habeas court's order, but resolution, if any, of that conflict is the proper subject of appellate review.

APPENDIX ABATEMENT ORDER