IN THE
TENTH COURT OF APPEALS
No. 10-15-00105-CV
PAUL REED HARPER,
Appellant
v.
THE STATE OF TEXAS EX REL
GEORGE DARRELL BEST,
Appellee
From the 249th District Court
Somervell County, Texas
Trial Court No. C10369
ORDER
The State of Texas has filed a motion for rehearing in this appeal. TEX. R. APP. P.
49.1. We requested a response. Id. 49.2. The parties’ briefing has caused us to realize that
the style of the case used in the opinion and judgment does not properly reflect the parties
in this proceeding. Accordingly, this order bears the proper style of the appeal. We will
not, however, withdraw and re-issue the opinion or judgment based on this technical
correction to a non-substantive portion of the opinion or judgment.
Further, in their role of zealous advocates, the parties have made various
characterizations about our opinion and judgment and have argued about what various
statements mean. We do not resolve the conflicting interpretations herein. The
interpretations presented by the parties have either been decided by the judgment and
are subject to review by the Texas Supreme Court or were not properly before us in the
appeal because they had not been addressed by the trial court, and in our role as a
reviewing court, it would not be appropriate for us to decide the issues in the first
instance.
We will, however, comment on one of the conflicting interpretations because, due
to the nature of the briefing, there is evidence of some confusion.
We adjudged appellate costs solely against the State of Texas and did not make
the relator, George Darrel Best, jointly and severally liable for costs. TEX. R. APP. P. 43.4.
The State had not asserted sovereign immunity from liability, as opposed to immunity
from suit, and we are not inclined to take that issue up on motion for rehearing. See
Tex. DOT v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (“Like other affirmative defenses to
liability, [immunity from liability] must be pleaded or else it is waived.”); Fed. Sign v. Tex.
S. Univ., 951 S.W.2d 401, 405 (Tex. 1997). Nevertheless, the briefs have advocated their
respective party’s position about the ability, if any, of the trial court on remand to award
attorney’s fees, court cost, expenses, and sanctions against the State. We expressly decline
to address this issue because the trial court has not determined what the amounts are and
whether the amounts will be assessed against specific parties or whether it will be
assessed jointly and severally against multiple parties. Accordingly, it would be
Harper v. State Page 2
premature, as merely an advisory opinion, for us to attempt to resolve that issue at this
point in the proceeding.
The State’s motion for rehearing is denied.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Motion denied
Order issued and filed July 13, 2016
Harper v. State Page 3