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Click here for the full text of this decision FACTS:Strong Industries Inc. manufactures dump-truck trailing axles designed by its founder, Brooks Strong. In 1992, Tesco American Inc. signed a dealer agreement with the company that contained covenants not to compete or disclose confidential information. Five years later, Tesco and F.S. New Products Inc. (FSNP) began marketing a competing trailing axle. Both Strongs sued Tesco and FSNP, alleging fraud, breach of contract and misappropriation of trade secrets. After jury trial, the trial court entered judgment against Tesco for more than $2 million (for fraud and exemplary damages) and against FSNP for over $100,000 (for breach of contract). A panel of the 1st Court of Appeals, in a unanimous opinion authored by Justice Laura C. Higley, affirmed as to Tesco, but reversed and rendered a take-nothing judgment as to FSNP. Tesco filed a motion for rehearing that included a motion to disqualify Higley and reassign the case to a different panel. Tesco asserted that Higley was an attorney at Baker Botts in 2001, during which time another attorney at the firm briefly appeared as lead counsel for the Strongs in this appeal (filing a cross-notice of appeal, participating in a status conference and agreeing to extend deadlines), before moving to withdraw in October 2001. None of the appellate briefs mentioned Baker Botts’ limited involvement, and Tesco concedes there is no evidence Higley knew of any connection between her former firm and this case. Tesco asserted that Higley was constitutionally disqualified, and that the appeal should be assigned to a new panel “to avoid any appearance of impropriety.” The panel members disagreed, but referred both motions to the other members of the 1st Court. Sitting en banc, a majority of that court denied both motions, after which the original panel reissued substantially the same opinion, again authored by Higley. Tesco appeals the denial of its motions, as well as the panel’s judgment on the underlying merits. HOLDING:Reversed and remanded. Texas Rule of Civil Procedure 18b(1)(a) was not intended to expand disqualification further than constitutionally required. Both the rule and the Texas Constitution specify the same three grounds for disqualification (interest, connection and counsel), and no others. The court’s statement in In Re: O’Connor, 92 S.W.3d 446 (Tex. 2002) (per curiam), that Rule 18b(1)(a) reflected the understanding that the rule was intended to expound rather than expand the constitution. As O’Connor also noted, Texas law imputes one attorney’s knowledge to all attorneys in a firm. The court construes any ambiguity in the constitutional provision here to effectuate its purpose. “Repeatedly, the people of Texas have insisted on constitutional protection against ‘counsel in the case’ becoming a judge in the case, a guarantee that makes no distinction between trial and appellate judges.” As it is undisputed that Higley was an attorney at Baker Botts at the same time another attorney with the firm served as counsel in this appeal, the court holds she was disqualified under the Texas Constitution. The judgment below is not void, as the 1st Court of Appeals certainly had jurisdiction of the parties and the subject matter, jurisdiction to enter judgment, and capacity to act as a court. But the judgment is reversed because the opinion on which it was based was authored by a justice who was constitutionally disqualified. In accordance with the appellate rules, the two remaining justices may decide this case, but they must do so without the participation of a disqualified justice. OPINION:Brister, J.; Jefferson, CJ, O’Neill, Wainwright, Medina, Green, Johnson and Willett, JJ., joined DISSENT:Hecht, J. “The only possible reason for remanding this case is for appearance’ sake. The rule will be that any time a disqualified appellate judge participates in a decision, right or wrong, it must be reversed, period, even if it is to be reconsidered by the same court and two of the same judges, who may reissue the same opinion. If this approach bears any real benefit, and I cannot see that it does, the detriments are greater.”

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