in Re: Bruce Bishop ( 2020 )

VACATE and DISMISS and Opinion Filed March 6, 2020
S
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01333-CV
IN RE BRUCE BISHOP, ASHLEY HUTCHESON, DALLAS COUNTY
REPUBLICAN PARTY, AND MISSY SHOREY, Relators
Original Proceeding from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-14298
MEMORANDUM OPINION
Before the Court En Banc1
Opinion by Chief Justice Burns
After a panel of this Court issued its opinion and order in this case, real party
in interest Margaret O’Brien filed a motion for reconsideration en banc. A majority
of the Court voted to reconsider the case and we submitted the case to the en banc
court without oral argument on May 30, 2019. Thereafter, relators filed a letter
informing the Court that the parties had settled the matter, had received the trial
1
Molberg, J., concurring, joined by Burns, C.J., Osborne, Partida-Kipness, Reichek, Nowell, and Carlyle, JJ.
Bridges, J., concurring and dissenting, joined by Myers, Evans, Whitehill, and Schenck, JJ.
Whitehill, J. dissenting, joined by Bridges, J.
Schenck, J., dissenting, joined by Bridges and Evans, JJ.
Pedersen, J., not participating.
court’s order of dismissal with prejudice, and considered this matter closed and
settled. We treat relators’ letter as a motion to dismiss, grant the motion, and dismiss
the case. See TEX. R. APP. P. 42.1(1). We do so, not because we determined “to
abandon the en banc proceedings based on the settlement,” as one dissent suggests,
but rather because we are required to do so. See Merrill Lynch, Pierce, Fenner &
Smith, Inc. v. Hughes, 827 S.W.2d 859, 859 (Tex. 1992) (“It is axiomatic that
appellate courts do not decide cases in which no controversy exists between the
parties. . . . [I]f no controversy continues to exist between the parties, the appeal is
moot and this court must dismiss the cause.”) (internal quotation and alteration
omitted).
Because the Court had issued an opinion, rule 42.1(c) requires this Court to
determine whether we will withdraw the opinion. See TEX. R. APP. P. 42.1(c).
Settlement does not automatically require vacating a prior opinion. Rather, in
determining whether to do so, we must exercise discretion. In doing so, we consider
the public interest in stare decisis. See Houston Cable TV, Inc. v. Inwood West Civic
Ass’n, 860 S.W.2d 72, 73 (Tex. 1993) (per curiam). Judicial precedents are
presumptively correct and valuable to the legal community as a whole; they are not
merely the property of private litigants and should stand unless a court concludes
that the public interest would be served by a vacatur. U.S. Bancorp Mortg. Co. v.
Bonner Mall P’ship, 513 U.S. 18, 26–27 (1994).
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Here, a majority of the Court has determined the public interest is best served
by vacatur. Therefore, we withdraw our December 17, 2018 opinion, vacate the
December 17, 2018 order, and dismiss this proceeding.2
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
181333F.P05
2
Contrary to one dissent’s assertion, it is not unprecedented for an en banc court to order withdrawal of a
prior panel opinion. See, e.g., WesternGeco Res., Inc. v. Burch, 317 S.W.3d 555, 555 (Tex. App.—Houston
[14th Dist.] 2010, no pet.) (en banc) (per curiam).
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