Splintered En Banc Fifth Court of Appeals Withdraws 2018 Panel Opinion after Settlement

Just two weeks ago, a deeply splintered en banc Fifth Court of Appeals made the unusual decision to withdraw a panel opinion in a case that settled after the panel’s decision. This case involves interesting questions about the Texas Election Code, judicial power and the public interest in stare decisis. 

The merits question is this: Does the Texas Election Code permit a trial court to render a default judgment in a suit challenging a candidate’s eligibility for office? In December 2018, the panel answered no and issued mandamus relief requiring the judgment to be set aside as void.