concurring in denial of en *233banc consideration of appellant’s motion for rehearing.1
[Filed August 19, 1994]
I concur in this court’s decision not to rehear this case en banc. This opinion respectfully responds to the ably written dissent on our en banc decision. While I agree with some of the dissent there are a few, but important, differences.
The summary of my concurrence, joined in by the other undersigned justices, is as follows:
1. The trial court rendered judgment at the May 14, 1991 hearing. The word “render” was not used, but it did not have to be. There is no “magic” word.
2. The effect of the rendered judgment was to make the settlement final, under ordinary circumstances.
3. There is sound public policy, and much written law, that promotes finality of settlements, under ordinary circumstances.
4. Steak and Ale requested and was entitled to, a hearing on their motion of newly discovered evidence which they say, and have some evidence to support, takes this settlement out of the “ordinary circumstance.” We have ordered that hearing.
5. If Steak and Ale can prove at the hearing that a fraud was committed, the settlement and the judgment should be set aside and a new trial granted.
6. If they cannot show this, the settlement stands and the judgment should be enforced.
7. This court is not the appropriate court to hold a fact finding hearing about whether a fraud was committed. That is the job of the trial court.
8. I recognize, as the dissent points out, that there is already “some evidence” of fraud in the record. But “some evidence” does not necessarily mean it happened. A cornerstone of the law is that due process demands a hearing before a conviction. Certitude is worth a little delay.
9. An en banc hearing, which is very rare, is inappropriate in this case at this time when there hasn’t even been a hearing in the trial court.
10.Steak and Ale wanted a hearing on their newly discovered evidence to support their motion for new trial. They were correct and they shall have that hearing.
All of the above points will be discussed in the following pages, with the appropriate legal authority.
Settlements and Consent Judgments
There are important public policies which support settlements in general and consent judgments in particular. Those policies include discouraging costly litigation, promoting peace and harmony in society, easing the burden on our courts, avoiding the uncertainty of submitting a dispute to a jury, and finally in buying peace. See, e.g., Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 4 (Tex.1986); Olivas v. State Farm Mut. Auto Ins. Co., 850 S.W.2d 564, 567 (Tex.App.—El Paso 1993, writ denied); Hernandez v. Telles, 663 S.W.2d 91, 93 (Tex.App.—El Paso 1983, no writ); Alvarez v. Employers Fire Ins. Co., 531 S.W.2d 218, 221 (Tex.Civ.App.—Amarillo 1975, no writ); 12 Tex.Jut.3d Compromise and Settlement § 3 (1993). Many defendants find that bringing eases to an end, i.e. buying some peace, is worth a great deal. In fact that is the whole point in having trial courts render consent judgments. See, e.g., Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951). The parties desire the finality of a judgment. Traditionally, consent judgments have been judicially favored. See, e.g., Irwin v. Huey, 23 S.W. 324, 325 (Tex.Civ.App.1893, no writ).
Private parties may settle lawsuits without court approval. Ibarra v. Texas Employment Comm., 823 F.2d 873, 878 (5th Cir.1987). The law only requires that the parties reduce their settlements to writing or that they be made in open court. Tex.R.Civ.P. 11; Kennedy v. Hyde, 682 S.W.2d 525 (Tex.1984). The purpose for conducting the hearing in this ease was to have the court render a consent judgment in order to put an end to *234the litigation. That is exactly what the court did. Steak & Ale now claims that the court did not render a consent judgment. However, no matter which party is trying to escape the effect of a consent judgment the rules regarding the finality of settlements and consent judgments benefit all parties.
Consent judgments favor everyone. Neither plaintiff nor defendant are well served by walking away from settlements not knowing if they are going to be revoked the next day. This is a case where the defendant feels that it was treated unfairly and wants to withdraw from the settlement. But it is equally commonplace for plaintiffs to settle their case one day and after consulting with well-meaning friends and relatives decide the next day that they were underpaid and want to withdraw their consent to settlement. The general rule is that once a judgment is rendered on a settlement, it is final. This is not to say, and the majority does not say, that the consent judgment may never be overturned. It can be. Fraud will overturn it. Where a party to a contract perpetrates a fraud, there is no meeting of the minds. It is an agreement built on deliberately false premises and once proved the law will show it no mercy.
Judgment Was Rendered at May 14 Hearing
Under Texas law, a litigant may revoke his consent to settle a case at any time before judgment is rendered. Samples Exterminators v. Samples, 640 S.W.2d 873, 874-75 (Tex.1982). Judgment is rendered whenever the judge officially announces his decision in open court, or files a memorandum with the clerk. Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 59 (Tex.1970). Entry of judgment is a ministerial act which memorializes the judicial act of rendition. Flores v. Onion, 693 S.W.2d 756, 758 (Tex.App.—San Antonio 1985, no writ).
At issue is whether the trial judge rendered judgment at the time the settlement agreement was dictated into the record. The dissent is essentially contending that, because the trial judge never said “I render,” no rendition occurred. However, Texas law does not require such magic words. Giles v. Missouri-Kansas-Texas R.R. Co., 712 F.Supp. 542 (E.D.Tex.1989); Samples, 640 S.W.2d at 875. The trend of the law is away from the use of “magic words.” When deciding whether a consent judgment was rendered a reviewing court looks to the entire record of the hearing and the judge’s words are interpreted in the context of the hearing. See, e.g., Kelley v. Pirtle, 826 S.W.2d 653, 654 (Tex.App.—Texarkana 1992, writ denied); Giles, 712 F.Supp. at 545.
The dissent dismisses the Giles ease. It is clearly on point, and remarkably similar to this case. Giles was also a personal injury suit. The ease was pending before the 336th District Court in Grayson County, Texas when on March 28, 1988, lawyers for both sides announced that they had settled the case. The settlement was dictated into the record whereupon the following exchange took place:
MR. WOLFE [counsel for defendant]: Judge, if I could just ask one or two questions.
THE COURT: Please go ahead, sir.
MR. WOLFE: Mr. Giles, as we normally ask in these situations: You don’t have any questions, do you, sir, in regard to the terms of this settlement? Is there anything about it that is unclear to you, as far as the terms of the settlement?
MR. GILES: I understand.
MR. WOLFE: And, of course, you understand this is in the nature of a final settlement, regardless of what may happen in the future in regard to yourself. That is, if your condition should not improve or anything else should happen after this date, it would then be too late to come back in and reopen the matter and have any further action taken on it. Do you understand that?
MR. GILES: Yes, sir.
THE COURT: And are you asking the Court to approve the settlement the way that it is entered into here?
MR. GILES: Yes, sir.
MR. WOLFE: I believe that’s all I have.
THE COURT: All right. The Court will approve the settlement then.
*235Giles, 712 F.Supp. at 544 (emphasis added). Subsequently, Mr. Giles spoke to some Mends who expressed the opinion that he had not received a fair' settlement. Giles decided to withdraw from the settlement. Giles nonsuited the state court action and refiled the suit in federal court. The defendant filed a summary judgment motion asserting that the state district court had rendered judgment at the hearing on the settlement.2 The federal court agreed, and after reciting the above quoted exchange and reviewing the identical cases cited by the dissent stated that: “Texas cases leave little doubt that the court in Grayson County rendered judgment in this case on March 28, 1988.” Id.
In reaching its conclusion that judgment was rendered the Giles court made the following observations which are particularly relevant to the present case:
There is no material difference between the words “I render judgment based on the agreements” and “the Court will approve the settlement.” Texas law does not require specific words of rendition, but merely states that “rendition of judgment is the pronouncement by the court of its conclusions and decision upon the matter submitted to it for adjudication....” Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, 292 (1953), overruled on other grounds, Jackson v. Hernandez, 155 Tex. 249, 285 S.W.2d 184, 191 (1955). Nor is any uncertainty raised by the use of the word “approve.” Texas procedural rules require formal “approval” of settlements only in a small number of instances, notably class actions and cases involving minors. See Tex.R.Civ.P. 42(e), 44(2). The entire proceeding in chambers would therefore become meaningless if the word “approve” were construed to effect anything other than a rendition. It is additionally clear that the parties, as well as the court, recognized the nature of the proceeding in chambers; as part of the settlement Giles “hereby tenders his resignation,” and understood that he could not reopen the matter “after this date.”
Giles, 712 F.Supp. at 545.
In the instant case, as in Giles, the same words were used, and the only thing left to do was for the parties to draw up the paperwork and the court to sign it.
The great majority of settlement hearings in this state are ended by the words “The court will approve the settlement,” or “The Court approves the settlement.” The dissent may be technically correct in saying that it is more proper to say “I render judgment.” Render is a word more written than spoken though. It usually appears for the first time in the written document that memorializes the approved settlement. Whatever words are used though the question is one of finality. Substance over form. “Magic words” have been in a long retreat for several years.
The record in this case is clear that the trial court did in fact render judgment at the May 14, 1991 hearing. Although, the incantation “I render judgment” is absent, the trial court’s statement when read in the context of the record as a whole demonstrates that the trial court intended and in fact did render judgment. In the context of this case, there is no material difference between the words “I render judgment” and “I’ll approve the settlement.”3 The trial judge had the whole matter before him when the settle*236ment was dictated into the record. There were no matters left hanging. There was nothing more left to decide and the case was concluded. Rendition occurred.
The dissent seems to imply that this court does not like the rule of law that if a party withdraws its consent prior to entry of judgment then a court cannot render a consent judgment. See Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex.1983); Samples Exterminators v. Samples, 640 S.W.2d 873, 874-75 (Tex.1985). There is no question that we are bound to follow the law as set forth in the preceding cases. But the. converse of the foregoing rule is also true. Once a consent judgment has been rendered a party cannot withdraw its consent to that judgment. Whether we like this rule of law or not, the Supreme Court has announced this rule also, and we have to follow it. See Quintero, 654 S.W.2d at 444; Samples, 640 S.W.2d at 874-75; Burnaman, 240 S.W.2d at 291; Ayala v. Minniti, 714 S.W.2d 452, 457 (Tex.App.—Houston [1st Dist.] 1986, no writ).
Fraud
I disagree with the dissent for another fundamental reason. The dissent assumes fraud despite the fact that there has been no evidentiary hearing and no judicial determination of fraud. In fact the entire dissent is premised on the notion that fraud has been established. Appellee, Annie Leal,’ denies the fraud. Appellant, Steak and Ale, says there is fraud. So the matter is in dispute. There has been no evidentiary hearing on the issue of fraud. I refuse to ignore traditional judicial process and make factual findings in the absence of an evidentiary hearing at the trial court level. See Hensley v. Salinas, 583 S.W.2d 617 (Tex.1979). The people of Texas through their constitution and legislature have determined that the trial court is the proper initial forum for resolving factual disputes. Tex. Const. art. 5 §§ 6, 8; Tex.Gov’t Code Ann. §§ 22.220, 24.007-24.008 (Vernon 1988). That is why this case should be remanded to the trial court for an evidentiary hearing on Steak and Ale’s Motion for New Trial.
Steak and Ale asked for a hearing on their newly discovered evidence at the trial court and asked for the hearing again at this court. The majority opinion gives them the relief they asked for — a full blown evidentiary hearing on the issue of fraud. What is the harm in having a hearing? There should be a hearing before there’s a hanging if there’s going to be a hanging.
I understand the dissent’s position that there is already some evidence in the record to support a finding of fraud. But there has been no hearing before the ordinary trier of fact. There have been no live witnesses, no opportunity for cross-examination, no opportunity for either side to properly develop a record. The majority of this court feels that the ordinary process of justice should be followed. The trial court in this ease is highly experienced and the trial forum infinitely better suited to ferret out the truth than this court.
If the facts are as the dissent says they are — fraud in all particulars — then the only criticism is that a hearing delays the final result. If it is fraud today then it will still be fraud tomorrow. If it is not fraud then an injustice would have been done to set aside the judgment. Our difference is not in principle. It is in the procedure of determining whether there has been fraud. Certitude is worth a small delay. If a man is found with a smoking gun in his hand and there is a body nearby who has been shot there is some evidence of murder — but a trial is required before punishment can be imposed.
More than two million dollars is at stake here. Not to mention a few reputations. Isn’t that worth a hearing?
There is no disputing that fraud vitiates everything it touches. Estate of Stonecipher v. Estate of Butts, 591 S.W.2d 806, 809 (Tex.1979). Clearly, if fraud is found by the trial court then the consent judgment is vitiated and must be set aside. See, e.g., Gregory v. White, 604 S.W.2d 402, 403 (Tex.Civ.App.—San Antonio 1980, writ refd n.r.e.); Peddicord v. Peddicord, 522 S.W.2d 266, 268-270 (Tex.Civ.App.—Beaumont 1975, writ ref'd n.r.e.) (Keith, J., concurring). If the trial court determines that there has been no fraud then the judgment is binding. The *237majority is not willing to prejudge the issue of fraud based on television and newspaper reports or the allegations of one party to a controversy.
“Our system of justice is capable of ascertaining the existence of fraud and collusion.” Price v. Price, 732 S.W.2d 316, 318 (Tex.1987). The dissent disregards the system of justice and declares that Steak and Ale discovered fraud. Maybe they did and maybe they didn’t. We should let our system of justice make that determination.
Finally, it should be noted that the dissent is from this court’s decision not to conduct an en banc rehearing. Texas Rule of Appellate Procedure 79(e) provides that “[a] hearing or rehearing en banc is not favored and should not be ordered unless consideration by the full court is necessary to secure or maintain uniformity of its decisions or in extraordinary circumstances_” (emphasis added). This appeal does not meet that exacting standard. In fact the records of the clerk reveal that in the past ten years there have only been two en banc rehearings submitted orally to this court. See, e.g., Texas Workers’ Compensation Comm’n v. Garcia, 862 S.W.2d 61 (Tex.App.—San Antonio 1993, writ granted) (constitutionality of new workers’ compensation act) and Horner v. Reed, 756 S.W.2d 34 (Tex.App.—San Antonio 1988, orig. proc.) (mandamus concerning judge’s order that Mayor of Shavano Park resign from office). There have been approximately twenty-three en banc hearings since 1981 without oral argument, but obviously this is rare also.
This is an appeal concerning a settlement agreement. It is important to the parties but will hardly meet the above requirements. An en banc reconsideration would not be a good use of judicial resources, especially in light of the fact that there has never been an evidentiary hearing at the trial court level. The proper disposition is a remand to the trial court for an evidentiary hearing on Steak and Ale’s Motion for New Trial.
. Justice Tom Rickhoff not participating in decision on Appellant's Motion for En Banc Consideration of Motion for Rehearing.
. It is interesting to note that Giles also claimed that the settlement had been procured by fraud on the part of the railroad company. Giles, 712 F.Supp. at 547.
. I recognize that “mere approval” of a settlement does not necessarily equal rendition. ' Clearly, sometimes approval does equal rendition and sometimes it does not. In deciding whether rendition occurred courts are looking at something more than "mere approval.”
The appellate courts are looking at context. An approval does constitute rendition when, in context, it reveals itself to be an official present-sense judicial determination of the matter before the court. See, e.g., Samples Exterminators v. Samples, 640 S.W.2d 873 (Tex.1982); Skidmore v. Glenn, 781 S.W.2d 672 (Tex.App.—Dallas 1989, no writ); Giles v. Missouri-Kansas-Texas Railroad Co., 712 F.Supp. 542 (E.D.Tex.1989). An approval does not constitute rendition when, in context, it is apparent that some future action was indicated or when the "approval” lacked official status. E.g., Buffalo Bag Co. v. Joachim, 704 S.W.2d 482 (Tex.App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.); Grosso v. Ellis, 608 S.W.2d 347 (Tex.Civ.App.—San Antonio 1980, no writ).