Price, J., filed a dissenting opinion.

I dissent. Before explaining why I do so, however, I feel it necessary to explain the circumstances from which this appeal arises. Last year, in State v. Brabson, 976 S.W.2d 182 (Tex. Crim. App. 1998), we held that a district attorney was not collaterally estopped from litigating the issue of probable cause for arrest, even though the Department of Public Safety, in a prior administrative license revocation proceeding, had received an adverse ruling on this same issue. We stated that this was so for three reasons: (1) the Texas Department of Public Safety and the Dallas County District Attorney are not the same parties, so that collateral estoppel principles do not preclude the Dallas County District Attorney from litigating the issue of probable cause for appellee's arrest at the suppression hearing in the criminal prosecution;¹ (2) the controlling statute did not authorize the administrative law judge to make a finding on probable cause, so that such an unauthorized finding should not preclude relitigation of the issue;² (3) because the issue of probable cause for arrest was not an ultimate fact before the administrative law judge, such a finding should not preclude relitigation of the issue³.

The first of these propositions, the so-called “parties theory,” was the most suspect. It immediately received criticism from some members of this Court.⁴ Soon thereafter, on motion for rehearing, I indicated that I had mistakenly voted for the majority opinion, and that given that opinion’s unsupportable proposition as to the parties issue, I should have been shown as concurring only in the result.⁵ The dissenters to the original decision again criticized the majority’s “parties theory.”⁶

All this, however, was only the “tip of the iceberg.” While Brabson’s “parties theory” has garnered criticism from various members of both the bench⁷ and bar,⁸ it continues to manifest itself in various Courts of Appeals opinions.⁹

Now under siege, the majority has taken it upon itself to once again attempt to rationalize this “parties theory”. Ironically, this attempt only underlines the irrationality of that “theory.” What is most notable is the various successive reasons that have been given for the proposition that the District Attorney and the Department of Public Safety are not the same parties: (1) on original submission, this “theory” was asserted with no authority whatsoever, except a footnote citing inapposite case law and making the circular argument that the District Attorney had no opportunity to litigate the issue of probable cause in the administrative proceeding;¹⁰ (2) on rehearing, the “theory” was rationalized on the bases of (a) public policy;¹¹ (b) being consistent with the law in other jurisdictions;¹² (3) in the instant case, the majority justifies the “parties theory” on the following bases: (a) Judge Womack’s reasoning in Brabson,¹³ a rationale which was explicitly not part of the majority opinion in Brabson, and which got only two votes in Brabson¹⁴, but which the majority now says “adequately addresses these claims;”¹⁵ (b) precedent¹⁶; (c) the State is different from private entities¹⁷; (d) collateral estoppel should apply equally to both sides in a lawsuit¹⁸.

The sheer volume of “reasons” that have been given to justify Brabson’s “parties theory” is itself evidence enough of the illogic of that “theory.” To borrow a phrase from Shakespeare, the majority doth protest too much, methinks.¹⁹ Illogic similarly permeates other portions of today’s majority opinion, working in conjunction with a fractured structure and writing style to make the opinion virtually incoherent. I briefly note a few of these illogical aspects.

Our decision in State v. Aguilar, 947 S.W.2d 257 (Tex. Crim. App. 1997), is dismissed as dicta, and thus unnecessary to the decision in that case.²⁰ Yet, Brabson’s “parties theory,” which the majority today states is binding precedent,²¹ was itself dicta.²² Additionally, this Court has previously stated that although a case may be decided on broader grounds than necessary, it is nevertheless binding precedent.²³ The “logic” of this is peculiarly Orwellian: some dicta are more equal than others.²⁴

Also, today’s majority freely cites to both the majority and dissenting opinions in Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed.2d 469 (1970).²⁵ This is surely trying to have it both ways. The citations to Ashe’s majority opinion are particularly puzzling, as the author of today’s majority opinion recently argued that Ashe is no longer good law.²⁶ Apparently, to the extent that Ashe favors the state, it is still good law; to the extent that it favors a defendant, it is no longer good law.²⁷

Finally, the majority’s rationale for saying that it will not apply its “parties theory” to cases involving issues of federal double jeopardy²⁸ only underlines the irrationality of the “parties theory.” In essence, the approach seems to be: when we can get away with this illogical concept, we will; but, when we think the feds will come in and rap our knuckles, we won’t apply it.

Based on reasons I have already given,²⁹ I cannot support Brabson’s “parties theory.” This “theory” may have the power of a majority of votes on this Court, but it is utterly devoid of the power of logic and reason. I dissent.

Price, J.

Date Delivered: September 15, 1999

Publish
¹Brabson, 976 S.W.2d at 184.
²Id.
³Id. at 185.
⁴See id. at 190 n.1 (Meyers, J., concurring and dissenting); id. at 190-195 (Baird, J., dissenting).
⁵See id. at 206-207 (Price, J., dissenting to denial of motion for rehearing).
⁶ See id. at 202-203 (Baird, J., dissenting to denial of motion for rehearing); id. at 203-206 (Meyers, J., dissenting to denial of motion for rehearing).
⁷See, e.g., Reynolds v. State, 967 S.W.2d 493, 497 (Tex. App. -- Houston [1^st Dist.] 1998, pet. granted) (Cohen, J., dissenting) (stating belief that Texas Department of Public Safety and Dallas County District Attorney are not parties at all, but different parts of executive branch of State of Texas, and that issue is whether State of Texas, rather than District Attorney had opportunity to litigate issue of probable cause, and that State of Texas had notice and motive to aggressively prosecute issue in license revocation proceeding).
⁸See, e.g., Salinas v. State, ___ S.W.2d ___, No. 05-97-01165-CR, 1999 WL 333363, at *3 (Tex. App.--Amarillo May 26, 1999, no pet. h.) (noting that Brabson has been criticized in legal literature); Per Curiam, Voice for the Defense, July-August 1998 (Vol. 27, No. 6), at 16- 17.
⁹See, e.g., Salinas, 1999 WL 333363, at *3; Thomas v. State, 990 S.W.2d 858, 862 (Tex. App.--Dallas 1999, no pet. h.); In re State ex rel. Hilbig, 985 S.W. 189, 190 (Tex. App.--San Antonio 1998, no pet.); Ex Parte Keeler, 987 S.W.2d 78, 79 n.1 (Tex. App.--San Antonio 1998, pet. ref’d); State v. Ayala, 981 S.W.2d 474, 477 (Tex. App.--El Paso 1998, pet. ref’d); State v. Anderson, 974 S.W.2d 193, 195 (Tex. App.--San Antonio 1998, no pet.); State v. Montgomery, 972 S.W.2d 872, 874 (Tex. App.--Corpus Christi 1998, no pet.); Ex parte Richards, 968 S.W.2d 567, 570 (Tex. App.--Corpus Christi 1998, pet. ref’d); Ex parte Yates, 966 S.W.2d 743, 744 n.1 (Tex. App.-San Antonio 1998, pet. ref’d); Nordsig v. State, No. 05-97-01165-CR (Tex. App.-- Dallas July 6, 1999, no pet. h.) (not designated for publication), 1999 WL 452105, at *2; Ex parte Davis, No. 04-98-00758-CR (Tex. App.--San Antonio March 10, 1999, no pet. h.) (not designated for publication), 1999 WL 125445, at *1; Ex parte Krueger, Nos. 04-98-00226-CR, 04-98-00227-CR & 04-98-00228-CR (Tex. App.--San Antonio January 13, 1999) (not designated for publication, no pet.), 1999 WL 16032, at *2 n.1; Pourassef v. State, No. 14-97- 00324-CR (Tex. App.--Houston [14^th Dist.] December 17, 1998, pet. ref’d) (not designated for publication), 1998 WL 879695, at *1; Ex parte Griffith, No. 04-98-00449-CR (Tex. App.--San Antonio November 25, 1998, no pet.) (not designated for publication), 1998 WL 812830, at *1; Ex parte Abrams, No. 04-97-01028-CR (Tex. App.--San Antonio July 29, 1998, no pet.) (not designated for publication), 1998 WL 422274, at *1 n.1; Ex parte Ozuna, No. 04-97-00976-CR (Tex. App.--San Antonio April 22, 1998, pet. ref’d) (not designated for publication), 1998 WL 201466, at *2 n.1; Ex parte Biddy, No. 05-98-00070-CR (Tex. App.--Dallas March 19, 1998, pet. ref’d) (not designated for publication), 1998 WL 191837, at *2.
¹⁰Brabson, 976 at 184 n.4.
¹¹Id. at 201 (McCormick, P.J., concurring to denial of motion for rehearing).
¹²Id. at 200 (McCormick, P.J., concurring to denial of motion for rehearing). This justification, based on a secondary authority, considerably distorted the case law cited within that authority. A close look at the cases cited within Debra E. Wax, Annotation, Doctrine of Res Judicata or Collateral Estoppel as Barring Relitigation in State Criminal Proceedings of Issues Previously Decided in Administrative Proceedings, 30 A.L.R. 4^th 856 (1984), as well as other cases from around the country, does not support Brabson’s “parties theory.”
Of the cases supporting the basic concept that litigation by one government agency is binding on other agencies of that same government, several have done so on the very logical basis that the government agencies represent the same party, namely the government. See, e.g., United States v. Rogers, 960 F.2d 1501, 1509 (10^th Cir. 1992) (citation omitted), cert. denied, 506 U.S. 1035, 113 S. Ct. 817, 121 L. Ed.2d 689 (1992); People v. Sims, 651 P.2d 321, 333 (Cal. 1982) (citations omitted); People v. Watt, 320 N.W.2d 333, 336 (Mich. App. 1982) (citation omitted); Brower v. Killens, 472 S.E.2d 33, 35 (N.C. App. 1996) (citations omitted), review allowed, 476 S.E.2d 112 (N.C. 1996), review improvidently allowed, 481 S.E.2d 86 (1997).
Several others have come to the same conclusion, but based upon a more functional, fact- intensive analysis, taking into account factors such as the specific government agencies involved in the litigation, their relationship to one another, the specific issues litigated, etc. See, e.g., Briggs v. State, Department of Public Safety, 732 P.2d 1078 (Alaska 1987) (citations omitted); People v. Tynan, 701 P.2d 80, 83-84 (Colo. App. 1984); People v. Gates, 452 N.W.2d 627, 630 (Mich. 1990) (footnote omitted), cert. denied, 497 U.S. 1004, 110 S. Ct. 3238, 111 L. Ed.2d 749 (1990).
Of the cases coming to a different conclusion, several do so based on a fact-intensive analysis (again, considering factors such as the specific government agencies involved in the litigation, their relationship to one another, the specific issues litigated, etc.) that supports the notion that these cases are exceptions to the general rule. See, e.g., State v. Fritz, 527 A.2d 1157, 1166-1167 (Conn. 1987); State v. O’Rourke, 442 S.E.2d 137 (N.C. App. 1994); People v. Trucchio, 605 N.Y.S.2d 649, 652-653 (Sup. 1993); People v. Lalka, 449 N.Y.S.2d 579, 582-583 (City Ct. 1982).
The remaining cases are as unconvincing as Brabson, because they rely on conclusory assertions and circular arguments that the parties are not the same because they are different agencies of the government. See, e.g., People v. La Motte, 155 Cal. Rptr. 5, 8 (Cal. App. 1979), disapproved of in People v. Sims, 651 P.2d at 332-333; State v. Bishop, 832 P.2d 793, 795 (N.M. App. 1992), cert. denied, 831 P.2d 989 (N.M. 1992); Saccoccio v. Lange, 599 N.Y.S.2d 306, 306 (App. Div. 1993); Doe by Doe v. City of Mount Vernon, 548 N.Y.S.2d 282, 283 (App. Div. 1989); County of Rutherford v. Whitener, 394 S.E.2d 263, 266 (N.C. App. 1990); Com., Department of Transportation v. Reilly, 545 A.2d 1000, 1002 (Pa. Cmwlth. 1988). In short, of the cases dealing with this issue that are based in logic, reason and analysis, none support Brabson’s generalized parties theory.
¹⁵Ante, at ___ (slip op. at 8-9).
¹⁶Ante, at ___ (slip op. at 4-5). The majority appears to be attempting to pressure me into voting for its opinion on the basis of precedent, by citing an opinion in which I indicated support for the doctrine of stare decisis. Id. at ___ (slip op. at 5) (citing Whitaker v. State, 977 S.W.2d 595, 602 (Tex. Crim. App. 1998) (Price, J., concurring)). However, support for this doctrine does not translate into mindlessly upholding a decision which is so recent and which has no logical basis. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854, 112 S. Ct. 2791, 2808, 120 L. Ed.2d 674 (1992) (doctrine of stare decisis is not an “inexorable command,” is not applicable in cases in which a prior judicial ruling should come to be seen so clearly as error that its enforcement is for that very reason doomed, and consideration of whether to apply the doctrine should be given to whether prior decision is subject to a type of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation) (citations omitted).
¹⁷Ante, at ___ (slip op. at 9-10).
¹⁸Ante, at ___ (slip op. at 10-13). This statement itself indicates that the majority seriously misunderstands the basic concept(s) of collateral estoppel. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 329-330, 99 S. Ct. 645, 650-651, 58 L. Ed.2d 552 (1979) (distinguishing between types and applications of doctrine of collateral estoppel).
¹⁹See William Shakespeare, Hamlet 77 (act 3, sc. 2, l. 228) (Bantam Books 1988).
²⁰Ante, at ___ (slip op. at 6-7).
²¹Ante, at ___ (slip op. at 5).
²²See Brabson, 976 S.W.2d at 184-186 (stating that the Texas Department of Public Safety and the Dallas County District Attorney are not the same parties, but then assuming that they are the same parties, and going on to decide against appellant on other grounds).
²³See Blanco v. State, 962 S.W.2d 46, 47 (Tex. Crim. App. 1998).
²⁴See George Orwell, Animal Farm 133 (Signet Classic 1996).
²⁵Ante, at ___ (slip op. at 10-12, 16-17, 20, 23-24).
²⁶State v. Sauceda, 980 S.W.2d 642, 651-652 (Tex. Crim. App. 1998) (McCormick, P.J., dissenting).
²⁷For a similar approach to judicial decision-making, see State v. Guzman, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (in a case in which the trial judge’s findings of fact favor the state, the Court defers to those findings); and State v. Terrazas, ___ S.W.2d ___, No. 1191-98 (Tex. Crim. App. September 15, 1999) (in a case in which the trial judge’s findings of fact favor a defendant, the Court does not defer to those findings).
²⁸Ante, at ___ (slip op. at 24-25).
²⁹Brabson, 976 S.W.2d at 206-207 (Price, J., dissenting to denial of motion for rehearing).