


 
IN THE
TENTH COURT OF
APPEALS
 










 
 

No. 10-03-00037-CV
 
In re Larry Clark
 
 

Original
Proceeding
 
 

DISSENTING OPINION
ON ORDER ON MOTION FOR REHEARING

 
        I respectfully dissent to the Court’s order on
Larry Clark’s motion for rehearing. 
      I
dissent to transferring Clark’s motion for rehearing to the instant cause
from Cause No. 10-02-00243-CV, styled In
the Interest of B.A.C.  “[T]he
plaintiff is ‘the master of the complaint[.]’” 
Holmes Group, Inc. v. Vornado Air
Circulation Sys., Inc., 535 U.S. 826, 831 (2002) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 398-99 (1987)); accord Heard v. Moore, 101 S.W.3d 726, 728 (Tex. App.—Texarkana 2003,
pet. denied).  “Of course the party who
brings a suit is master to decide what law he will rely upon.”  Beneficial
Nat’l Bank v. Anderson, 539 U.S. 1, 12 (2003) (quoting Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913)); accord Heard at 728. 
“Plaintiffs are masters of their complaints and remain so at the
appellate state of a litigation.”  Webster v. Reproductive Health Servs., 492
U.S. 490, 512 (1989).  Clark
chose to file a motion for rehearing in B.A.C.,
but not in the instant cause.  
      The
cases that the Court cites are distinguishable. 
Both concern appellate jurisdiction. 
See Mueller v. Saravia, 826
S.W.2d 608, 609 (Tex. 1992) (“attempt to invoke appellate court
jurisdiction”); Motor Vehicle Bd. v. El
  Paso Indep. Auto Dealers Ass’n, Inc., 1 S.W.3d 108, 111 (Tex. 1999) (misnomer (Motor Vehicle Div. for Motor
Vehicle Bd.) does not affect standing). 
The Supreme Court has “repeatedly held that a court of appeals has
jurisdiction over any appeal in which the appellant files an instrument in a
bona fide attempt to invoke the appellate court’s jurisdiction.”  Verburgt
v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997). 
This court’s jurisdiction over Clark’s
motion for rehearing is not disputed.  Apart from this rare exception for the
invocation of appellate jurisdiction, a filing is effective only in the cause
in which it is filed.  See Philbrook v. Berry, 683 S.W.2d 378,
379 (Tex. 1985) (orig. proceeding) (per curiam); see also Stone v. State, 931 S.W.2d 394, 396-97 (Tex. App.—Waco
1996, pet. ref’d); but see Tex.
Instruments, Inc. v. Teletron Energy Mgt., Inc., 877 S.W.2d 276, 278 (Tex.
1994) (“clerical error”).
      The
Court should not transfer Clark’s motion for rehearing to the instant
cause.  Because the Court does so, I
respectfully dissent.
      Since
I believe that we were correct originally, the Court’s opinion that is being
withdrawn is attached as an appendix to this opinion.
TOM
GRAY
Chief Justice
Dissenting
opinion delivered and filed July 21, 2004
Publish


APPENDIX

