Push-back from the bench

Usually when the Texas Supreme Court tells a lower appellate court do something, the lower court just does it, with little argument. So it was a bit surprising to see a justice on Fort Worth’s 2nd Court of Appeals give the high court a little push-back to a per curiam opinion requesting the lower court to vacate and withdraw a panel decision. The 2nd Court is not known for clashing with the high court. While 2nd Court Justices Terrie Livingston and Anne Gardner voted to conform their decision with the high court’s opinion, Justice Sue Walker dissented, questioning how the 2nd Court could withdraw a 2007 opinion in Mikey’s Houses LLC et al. v. Bank of America over a jury waiver issue. “Because we have lost plenary power over our May 3, 2007 opinion and judgment, the rules of appellate procedure expressly prohibit us from vacating or modifying our judgment and from altering our opinion other than to correct a clerical error,” Walker wrote.
-- John Council