law-designation-of-appellate-opinions memorandum opinions per curiam opinions
Memorandum Opinions
Accordingly, because all dispositive issues are settled in law, we issue this memorandum opinion and affirm.
See Tex. R. App. P. 47.4.
Designation of "Opinion" Inconsistent with Rules of Appellate Procedure
The panel that decided this case issued what was styled a "Memorandum Opinion" on March 12, 2009 and
again on May 28, 2009, but the designation is now changed to "Opinion" due to Justice Jennings's vote that the
case be designated an "Opinion." See Tex. R. App. P. 47.4 ("An opinion may not be designated a memorandum
opinion if the author of a concurrence or dissent opposes that designation."). I respectfully disagree with
designating this case an "Opinion" because this case does not meet the criteria in the rules of appellate
procedure for that designation.
According to Rule 47.2 of the Texas Rules of Appellate Procedure, "A majority of the justices who participate in
considering the case must determine whether the opinion will be signed by a justice or will be per curiam and
whether it will be designated an opinion or memorandum opinion." Tex. R. App. P. 47.2(a) (emphasis added).
Here, the panel of justices who decided the case unanimously reached the decision to designate this case a
"Memorandum Opinion" on March 12, 2009 and again on May 28, 2009.
The panel correctly designated this a "Memorandum Opinion." Rule 47.4 of the Texas Rules of Appellate
Procedure 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. An opinion may not be designated a
memorandum opinion if the author of a concurrence or dissent opposes that designation. 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.
See Tex. R. App. P. 47.4 (emphasis added). None of these circumstances exist here. Because Justice Jennings
disregards the rules of appellate procedure criteria for evaluating the case, we are compelled to designate the
case as an "Opinion," even though the panel that decided the case unanimously voted to issue the decision as
a "Memorandum Opinion" and none of the criteria in the rules of appellate procedure for designating the case
as an "Opinion" apply in this case.
Conclusion
I respectfully concur with the en banc decision to deny en banc consideration in this case because the panel
opinion is legally correct and this case does not meet the criteria for en banc consideration. Furthermore, I
oppose changing the designation of the case to "Opinion" because the case does not meet the criteria for that
designation.
Elsa Alcala
Justice
Alcala Concurrence in Denial of En Banc Review in Macy v. Waste Management, Inc. (Tex.App.- Houston [1st
Dist.] Aug. 28, 2009) (Concurrence with denial of en banc reconsideration by Justice Alcala)
OPINION CONCURRING WITH THIS COURT'S JUDGMENT:
Concurring Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Hanks
01-07-00276-CV Griffin Macy v. Waste Management, Inc.
Appeal from 157th District Court of Harris County
Trial Court Judge: The Honorable Randall Wilson
Macy v. Waste Management, Inc. (Tex.App.- Houston [1st Dist.] Aug. 28, 2009)(Dissent by Jennings)
OPINION DISSENTING TO THIS COURT'S JUDGMENT: Dissenting Opinion by Justice Jennings
Before Chief Justice Radack, Justices Alcala and Hanks
01-07-00276-CV Griffin Macy v. Waste Management, Inc.
Appeal from 157th District Court of Harris County