(dissenting).
On February 20, 1870, Geo. W. Paschal in a preface to Volume Thirty of his Texas Reports stated:
“It is proper to explain that, under other provisions of the law of that year, the court designated what opinions should be published. The consequence is that some opinions are not published. This mode, which commenced with the court over which Chief Justice Moore presided, and, to a limited extent, has been continued, has caused inquiries for unpublished decisions. In what light decisions withheld from publication can be regarded is for the profession and the courts to determine. Those who know the value of the smallest precedent must regret that all are not published: it matters little if they but affirm some well-settled principle, or if they have been overruled. These very facts are often valuable to show that a principle has been settled, or else that it was once erroneously ruled.” (Italics supplied.)
The’wisdom of this statement is exemplified here. The unreported case of Kestner v. State, cited in the majority opinion on rehearing, unearthed by diligent counsel for the State, is, as far as I am concerned, decisive on the question of jurisdiction of the Trial Court.
Rule 496, Texas Rules of Civil Procedure, provides that if a party “elects to file in this (Supreme) court a brief in addition to the brief filed in the Court of Civil Appeals” it shall conform to certain prescribed rules.
This rule, it seems to me, clearly means that a party to a writ of error proceeding in the Supreme Court may rely upon his brief filed in the Court of Civil Appeals, but that if he elects to file a brief in the Supreme Court it will be cumulative of his brief filed in the Court of Civil Appeals.
The brief filed in the Court of Civil Appeals in Kestner is not available. From the Court’s opinion in that case, it would appear that the question of jurisdiction of the Trial Court was briefed.
I do not believe that the jurisdictional question was waived in Kestner. Further*920more, I do not believe a jurisdictional question can be waived. The error here, if there was error, was apparent on the face of the record, and was fundamental error.
I respectfully dissent.