ON MOTION FOR REHEARING
ROBERTSON, Justice,dissenting.
This lawsuit was originally filed eleven years ago. After a lengthy trial, the jury returned findings of fact that were in every way favorable to C. Daniel Hurlbut and A.C. Hovater. The trial judge rendered a judgment in favor of Hurlbut and Hovater based upon that jury verdict.
During the three and one-half years the case was pending in the court of appeals, A.C. Hovater died. Thus, this case presents the perfect example of the truth of the maxim that “justice delayed is justice denied.” There is no longer any possibility of justice for Hovater. His heirs have assumed the pursuit of his appeal.
Now, eleven years after Hurlbut and Ho-vater first went to court seeking a remedy for their wrong, this court remands the cause back to the trial court for a new trial. The parties will begin the process all over again. How many more years will it be before the case is finally resolved and the wrong is made right?
And what is the reason for why this court is sending these parties back to try their case again? It is because two court of appeals judges, sitting at their desks, looked at a printed transcript of the trial and decided that the jury was wrong. They concluded that the jury’s negative answer to issue 27 was against the great weight and preponderance of the evidence.1 These two judges did not see the witnesses in person or listen to their voices; instead, they sat in their offices and looked only at a cold record. And this court has said that the decision of those two judges is final and that we are powerless to do anything about it.
I believe that the ordinary citizen of Texas would be outraged to learn that this is how our system of justice operates. Our Texas Constitution guarantees that “the right of trial by jury shall remain inviolate.” TEX. CONST, art. I, § 15. This valuable right is fundamental to our entire system of jurisprudence. It is a right premised on the dignity of the ordinary citizen in whom our society entrusts the power to decide the facts of litigated disputes.
If two out of three judges sitting on an appellate panel can reweigh the evidence and undo the work of a jury who listened in person to all the evidence, then it can no longer be said that the right of trial by jury is “inviolate.” Instead, that right is debased and diminished. However, we cannot place on courts of appeals the responsibility for this debasement of the right to jury trial. This court has given them that power and it is time we acknowledge our own error and deal with it.
The problem stems from Article V, section 6 of the Texas Constitution which provides that the decision of courts of appeals “shall be conclusive on all questions of fact brought before them on appeal or error.” This provision is one of the most troublesome phrases in all of Texas jurisprudence. See G. Braden, ed., The Constitution of the State of Texas: An Annotated and Comparative Analysis 400 (1977). This court has a long history of trying to construe this provision and of trying to do so in a manner that would not abridge the right of trial by jury. See, e.g. Choate v. San Antonio & A.P. Railway Co., 91 Tex. 406, 44 S.W. 69 (1898); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Through our own opinions, we have instructed courts of appeals to weigh all the evidence in a case to determine if it is insufficient to support the verdict or if the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986); In re *770King’s Estate. By and large, the courts of appeals have attempted to follow our instructions and rightfully so.
In more recent years, we have discussed the problem as being a conflict between two constitutional provisions: article I, section 15 and article V, section 6. See, e.g. Pool. However, the reality is that the conflict does not appear on the face of these provisions; it exists only by virtue of the construction we have placed on article V, section 6. The Constitution itself says nothing about allowing courts of appeals to weigh the evidence in a case or about giving them the power to review for sufficiency of the evidence. It is this court which has engrafted this meaning onto the nebulous and indeterminate language of article V, section 6. In doing so, we ourselves have created the conflict and have permitted an unconstitutional infringement upon the right of trial by jury.
Our long history of permitting this type of appellate review and the legal labels2 we have attached to the process have assuaged us into accepting its propriety. However, I now conclude that permitting courts of appeals to engage in a process of weighing the evidence is in reality allowing them to substitute their own thought processes for those of the jury. Any distinction between the two is a distinction that exists in semantics only and not in practice. No matter how many ways we try to articulate a standard, the reality is that a judge simply cannot engage in a process of weighing all the evidence without engaging in the same process as the jury. This is wrong. The jury, not the court, is the fact finding body; and the jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (1951).
The 1876 Constitution preserved the right of trial by jury as it had developed in the common law up to that time. See White v. White, 108 Tex. 570, 196 S.W. 508 (1917). My review of early case law convinces me that the Texas Supreme Court, as the only appellate court at the time, did not exercise anything akin to the type of review over jury verdicts that is now being exercised by the courts of appeals. See Carter v. Carter, 5 Tex. 93 (1849); Love v. Barber, 17 Tex. 312 (1856); Branch v. Dever, 18 Tex. 612 (1857); City of San Antonio v. Lane, 32 Tex. 405 (1869); Ward and Co. v. Bledsoe and Clarkson, 32 Tex. 252 (1869). When the courts of civil appeals were created by constitutional amendment of 1891, they were not granted any additional powers over facts beyond what had previously been exercised by this court. See Choate. Therefore, because this court did not exercise any power to review jury verdicts for sufficiency of the evidence, the courts of appeals cannot rightfully have such a power either. By allowing such an evolution of the power of courts of appeals, we have sullied the right of trial by jury and violated the constitutional guarantee that this right would remain inviolate.
The sanctity of the right of trial by jury should be restored. The fact that we have permitted this unconstitutional infringement on the right of jury trial to continue for nearly a hundred years does not give it legitimacy. By force of time alone, we cannot allow the basic rights afforded the people under the constitution to be usurped. The unconstitutionality of the course pursued has now been made clear to us and should compel us to act.3 The question is whether we will continue to adhere to a prior interpretation of article V, section 6 which has allowed appellate courts to unconstitutionally usurp the jury’s function. See Dyson v. Olin Corp., 692 S.W.2d 456, 458 (Tex.1985) (Robertson, J., concurring).
I would now abandon the practice of permitting courts of appeals to review evi*771dence for factual insufficiency or to decide if the jury verdict is against the great weight and preponderance of the evidence. The power that a court of appeals has over facts under article V, section 6 should be limited to reviewing fact-findings made by a trial judge and not those made by a jury.
No system of justice is perfect. Juries do make mistakes. However, appellate judges are also fallible. In attempting to provide a safeguard against the mistakes of juries, we have simply substituted the mistakes of appellate judges.
This issue goes to the heart of how our society distributes power. As a people, we have chosen by our social compact to place power over the resolution of factual disputes in the hands of common citizens rather than in the hands of an elite group of judges. Along with the right to vote, the right of trial by jury is one of the ways our society disperses power rather than concentrating it in the hands of a few.
It is our job as judges to ensure the preservation to the people of the rights guaranteed in the constitution. Moreover, we must ensure that those rights retain real meaning and do not become mere formalisms. To the people of our state, a jury trial is more than a ceremonial symbol of political freedom; it is a process with real meaning. We cannot permit this right to deteriorate to the point that a jury verdict is allowed to stand only if it agrees with the view of the evidence taken by appellate judges.
I would not remand this cause back for a new trial. A qualified jury has already decided the fact question relating to the plaintiffs’ knowledge of the fraud. Hurl-but is entitled after eleven years to finally get his judgment based upon the jury verdict. I would affirm the judgment of the trial court.
RAY and MAUZY, JJ., join in this dissent.. In addition to this "great weight and preponderance" point challenging the jury’s negative response on an issue, Gulf Atlantic also had before the court of appeals unconsidered points of error contending that the evidence was factually insufficient to support affirmative findings by the jury. Therefore, I choose to address both halves of appellate factual sufficiency review.
. I.e., "insufficiency” of the evidence and "against the great weight and preponderance" of the evidence.
. The phrasing is borrowed from Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), a case in which the U.S. Supreme Court overturned a hundred years of precedent, stating that "no lapse of time or respectable array of opinion” should make them hesitate to correct an unconstitutional assumption of powers.