"A dissent does many things—it pinpoints perceived faults in the Court’s opinion, it speaks to a future Court, it may suggest a legislative fix—but it is not the law." In his dissenting opinion, Chief Justice Jefferson argues that stare decisis mandates that the majority not adopt his dissent in a previous case.

Six years ago by a vote of 5-4, the Texas Supreme Court held in Continental Casualty Co. v. Downs that a worker’s compensation carrier had seven days to contest compensability of a worker’s injury under section 409.021(a) of the Workers’ Compensation Act ("Act"). Nine months later, the Texas Legislature amended the Act to allow sixty days to contest compensability. In this case, the petitioner’s argued that because the Texas Worker’s Compensation Commission always construed section 409.021 to allow sixty days and the Court’s opinion in Downs was only in effect for one year, Downs should be reversed. The majority agreed. 

Chief Justice Jefferson’s dissent, however, argues that Downs is good law despite the fact that he authored the dissent. Chief Justice Jefferson makes a powerful case relying primarily on two grounds. First, noting that its decisions apply retroactively unless special circumstances exist (not present here), the Court in construing the Act was simply exercising its duty under Marbury v. Madison to say what the law is and has been since its passage. Second, Chief Justice Jefferson argued that the "democratic process generally works as intended." Responding to a potentially incorrect interpretation of the Act, the legislature amended the Act. But in a key provision, the legislature expressly provided that the amendment apply prospectively, thus signaling that the legislature was not correcting the Court’s opinion in Downs.

Though I’m sure it has happened before, it marks the first time I have seen a dissenting judge argue against adoption of his dissent in a subsequent case. The Court’s majority opinion in Southwestern Bell Tele. Co. v. Mitchell, can be found at this link. Chief Justice Jefferson’s dissent can be found at this link.