Pending before the court is an agreed motion by the parties asking that we withdraw our opinion dated January 25, 2007; and dismiss the appeal pursuant to their agreement. We grant the motion. We dismiss the appeal pursuant to Rule 42.1(a)(1) and withdraw our opinion pursuant to Rule 42.1(c). See Tex.R.App.P. 42.1(a)(1) and (c). We further order costs be assessed against the party incurring same.

March 4, 2009

ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Barajas, C.J. (Ret.)

Barajas, C.J. (Ret.), sitting by assignment, not participating