In Rogers v. State, 677 S.W.3d 705, a slim majority of the CCA has belatedly ordered several published opinions in a burglary of habitation case prosecuted under Tex. Penal Code §30.02(a)(3) (entry followed by commission of a felony) “withdrawn.” This was based on the abatement practice dictated by Tex. R. App. P. 7.1(a)(2) and March v. State, 5 Tex. App. 450, 456 (1879), as supplemented by Brown v. State, 439 S.W.3d 929 (Tex. Crim. App. 2014).

"Slim majority” is used with caution because we are dealing with an opinion doing something to which four judges objected and which was not joined in any respect by two judges (seemingly leaving judge “per curiam” as the representative of only three members of the court, although such an opinion issues only upon the vote of five judges under Tex. R. App. P. 77.2). The dissenting judges wrote no opinion to explain their vote, but apparently would have reached the merits of the case (i.e., objected to its dismissal under Tex. R. App. P. 78.1(g)).

Notably, it took the Court 348 days to mull over the motion to abate. In the meantime, since no motion for rehearing was filed, it appears the Clerk should have issued the mandate. Tex. R. App. P. 18.1(b). Thus, there may be an issue as to the continued jurisdiction of the court over the case. It seems likely that a stay order could have issued under Tex. R. App. P. 78.3 to avoid this question..

In their opinion concurring in part, four judges urge no withdrawal or erasure of the earlier opinions is required and that to do so disserves the jurisprudence of the State (though no new trial of Rogers is possible). This position, though worthy, seems contrary to a long line of cases: e.g. Williams v. State, 18 S.W.2d 1117 (Tex. Crim. App. 1929); Garcia v. State, 840 S.W.2d 947 (Tex. Crim. App 1992), and Small v. State, 512 S.W.3d 335 (Tex. Crim. App. 2017). None of those cases, however, addressed the arguments posed by Judge Richardson (referring to advancements in the dissemination of CCA opinions). Perhaps a new standard will emerge (where an attachment is made to an order of withdrawal, when guidance is desperately needed despite an appellant’s death).

There are likely other such cases, but I am familiar with at least one instance where abatement similarly cast doubt on the validity of an opinion that appears in the Southwestern Reporter: Whitmire v. State, 913 S.W.2d 738, appeal abated, 943 S.W.2d 894, but there was no order withdrawing the opinion. See Whitmire v. State, No. 11-94-00185-CR (Tex. App.—Eastland May 8, 1997) (op. on remand) (not designated for publication). Such opinions are sometimes cited as though authoritative. See Aguilera v. State, No. 07-13-00280-CR (Tex. App.—Amarillo July 30, 2015) (not designated for publication); Cleburn v. State, 138 S.W.3d 542, 545 n.1 (Tex. App.—Houston [14th Dist.] 2004). This seems wrong, since those opinions are ultimately considered to have been issued without jurisdiction (and effectively retroactively held for naught). Yet, the qualified concurrence in Rogers strongly recommends Texas adopt something similar to Alaska regarding this type of opinion, at least on occasion.

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