concurring.
I take the unusual but not unprecedented step of concurring to my own opinion in order to express concerns about some language in Enernational Corp. v. Exploitation Engineers, Inc., 705 S.W.2d 749, 751 (Tex.App.—Houston [1st Dist.] 1986, writ ref'd n.r.e.), and Rabe v. Guaranty Nat’l Ins. Co., 787 S.W.2d 575, 579 (Tex.App.—Houston [1st Dist.] 1990, writ denied). See Vargas v. State, 838 S.W.2d 552, 557-58 (Tex.Crim.App. 1992) (Benavides, J., concurring); Thurman v. State, 861 S.W.2d 96, 101 (Tex.App.—Houston [1st Dist.] 1993, no pet.) (Cohen, J. concurring).
Both cases reviewed summary judgments in which the appellants (non-movants) failed to file any response.1 Enernational, 705 S.W.2d at 751; Robe, 787 S.W.2d at 579. In both cases, we held that the rule in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939), which favors parties appealing default judgments, did not apply because a summary judgment is granted only if the movant’s proof is sufficient as a matter of law, not because the non-movant fails to appear. Id. As stated in footnote 3 to the panel opinion in this case, that conclusion is questionable, has been criticized by a commentator, and has not been followed by four of our sister courts.
I write today to point out that those statements in Enemational and in Robe were not necessary to either decision. In both eases, after declaring that sweeping but questionable principle of law, we went on to decide whether relief should be granted based on Craddock, and we held that both appellants should lose because neither met Craddock’s requirements. Enernational, 705 S.W.2d at 752; Rabe, 787 S.W.2d at 579-80. Thus, both decisions were wholly supported by a separate and independent ground—Craddock v. Sunshine Bus Lines. On that basis, both decisions were right.
I confess to having joined the Enemational opinion without qualification. Despite doubts about the statement that Craddock did not apply, I agreed that Enemational deserved no relief because it had not met the Craddock requirements. I should have concurred then. Now, nine short years later, I welcome this opportunity to set the record straight.
I conclude with the immortal words of Mr. Justice Jackson:
Precedent ... is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and per*201haps misled others.... Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, “The matter does not appear to me now as it appears to have appeared to me then.” ... And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: “My own error, however, can furnish no ground for its being adopted by this Court.” ... Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary — “Ignorance, sir, ignorance.” But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister’s reliance upon an early opinion of his Lordship: “I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.” If there are other ways of gracefully and good-naturedly surrendering former views to a better considered position, I invoke them all.
McGrath v. Kristensen, 340 U.S. 162,177-78; 71 S.Ct. 224, 233, 95 L.Ed. 173 (1950).
. This case is different. Appellants here filed responses, but they did not appear at the oral hearing.