Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON MOTION FOR REHEARING

NO. 03-06-00501-CV

Edd Hendee, Individually and as Executive Director of C.L.O.U.T., Appellant

v.

David Dewhurst, Tom Craddick, State of Texas, and the

Texas Legislative Budget Board, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT

NO. D-1-GN-06-002156, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING

C O N C U R R I N G O P I N I O N

Were we to address the issues raised but not fully formed in this litigation, we would

be speaking without portfolio. Tempting as it may be to speak to these important issues, the posture

of this case shows the inefficiencies of using a plea to the jurisdiction, particularly without the

production of essential evidence, to force the trial judge--and this Court--to make an ad hoc

decision and give an advisory opinion that should be determined after a fuller ventilation of

pleadings, evidence, and briefing in the district court than occurred here. By allowing parties to opt

out of the procedures designed to allow full and fair consideration of these issues, we introduce

greater uncertainty and gamesmanship into the system. The employment of standard procedural

motions in the district court allows issues to be ruled upon first by the district court instead of being

raised for the first time on appeal without an adequate record. The only issue ripe for decision is the

district court's dismissal of the claim alleging unconstitutional delegation of legislative powers, and

I join in this Court's affirmance of that issue. I otherwise concur only in reversing and remanding

this cause to the district court.

__________________________________________

Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Filed: May 25, 2007