Gerdes v. Kennamer

¶1Concurring Opinion by

¶2I concur with the disposition and reasoning of Justice Castillo’s majority opinion. However, I disagree with Justice Castillo’s recommendation that the majority opinion be designated a “memorandum opinion.” Because I oppose the designation of the majority opinion as a “memorandum opinion,” I also concur with that part of Justice Yañez’s dissenting opinion entitled “Designation of Opinion.” See Tex.R.App. P. 47.4 (Opinion may not be designated memorandum opinion if author of concurrence or dissent opposes that designation).

¶3Dissent by

¶4Respectfully, I believe the opinion and the dissent meet the requirements of a memorandum opinion set forth in rule 47.4. Rule 47.4 states, in pertinent part:

An opinion must be designated a memorandum opinion unless it does any of the following:

(a) establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to recur in future cases;

(b) involves issues of constitutional law or other legal issues important to the jurisprudence of Texas;

(c) criticizes existing law; or

(d) resolves an apparent conflict of authority.

¶5Tex.R.App. P. 47.4. (Emphasis added). The majority opinion and the dissent do not meet any of the criteria. Thus, I would designate the opinion as a “memorandum opinion.”

¶6Respectfully, I disagree with the precedent the dissent and concurrence on designation set. They disagree with the designation of “memorandum opinion” because the issues are not settled. I read the first sentence of rule 47.4 which states, “If the issues are settled, the court should write a brief memorandum opinion no longer than necessary to advise the parties of the Court’s decision and the basic reasons for it,” to apply uniformly to those cases in which we need not reach a decision on the merits. In those cases before us that present issues for review, we then determine whether one of the criteria in the remaining part of rule 47.4 is met. In short, I construe the mandatory language in rule 47.4 to mean that designating our work as an “opinion” is the exception and not the rule.1