                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00105-CV

PAUL REED HARPER,
                                                             Appellant
v.

THE STATE OF TEXAS EX REL
GEORGE DARRELL BEST,
                                                             Appellee


                           From the 249th District Court
                             Somervell County, Texas
                              Trial Court No. C10369


                                       ORDER

       The State of Texas has filed a motion for rehearing in this appeal. TEX. R. APP. P.

49.1. We requested a response. Id. 49.2. The parties’ briefing has caused us to realize that

the style of the case used in the opinion and judgment does not properly reflect the parties

in this proceeding. Accordingly, this order bears the proper style of the appeal. We will

not, however, withdraw and re-issue the opinion or judgment based on this technical

correction to a non-substantive portion of the opinion or judgment.
        Further, in their role of zealous advocates, the parties have made various

characterizations about our opinion and judgment and have argued about what various

statements mean.      We do not resolve the conflicting interpretations herein.           The

interpretations presented by the parties have either been decided by the judgment and

are subject to review by the Texas Supreme Court or were not properly before us in the

appeal because they had not been addressed by the trial court, and in our role as a

reviewing court, it would not be appropriate for us to decide the issues in the first

instance.

        We will, however, comment on one of the conflicting interpretations because, due

to the nature of the briefing, there is evidence of some confusion.

        We adjudged appellate costs solely against the State of Texas and did not make

the relator, George Darrel Best, jointly and severally liable for costs. TEX. R. APP. P. 43.4.

The State had not asserted sovereign immunity from liability, as opposed to immunity

from suit, and we are not inclined to take that issue up on motion for rehearing. See

Tex. DOT v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (“Like other affirmative defenses to

liability, [immunity from liability] must be pleaded or else it is waived.”); Fed. Sign v. Tex.

S. Univ., 951 S.W.2d 401, 405 (Tex. 1997). Nevertheless, the briefs have advocated their

respective party’s position about the ability, if any, of the trial court on remand to award

attorney’s fees, court cost, expenses, and sanctions against the State. We expressly decline

to address this issue because the trial court has not determined what the amounts are and

whether the amounts will be assessed against specific parties or whether it will be

assessed jointly and severally against multiple parties.         Accordingly, it would be

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premature, as merely an advisory opinion, for us to attempt to resolve that issue at this

point in the proceeding.

        The State’s motion for rehearing is denied.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Motion denied
Order issued and filed July 13, 2016




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