
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
