IN THE
TENTH COURT OF APPEALS
No. 10-04-00314-CV
Pacific Employers Insurance Company,
Appellant
v.
William Ira Mathison,
Appellee
From the 87th District Court
Limestone County, Texas
Trial Court No. 26,920-B
Concurring Opinion
Chief Justice Gray implies, without specifically saying, that our opinion is invalid because it was approved by only two justices, but he has opined that Appellate Rule 41.1(a) requires that all three justices of a three-justice court of appeals actually participate in the decision of a case submitted without argument.[1] See Tex. R. App. P. 41.1(a). Substantial authority refutes his interpretation.
First, it appears from the express wording of the Rule that it does not apply to three-justice courts.[2] It begins “Unless a court of appeals with more than three justices . . . .” Id.
Second, as I noted in an earlier case, requiring all three justices to participate in such a decision is not a reasonable interpretation of the Rule and is contrary to the Texas Constitution and the Texas Government Code. See Texas Parks & Wildlife Dept. v. E.E. Lowrey Realty, Ltd., No. 10-02-00317-CV, 2004 WL 2481000, at *1-2 (Tex. App.—Waco Nov. 10, 2004, pet. filed) (Vance, J., concurring). Article V, section 6 of the Texas Constitution provides: “The concurrence of a majority of the judges sitting in a section [panel] is necessary to decide a case.” Tex. Const. art. V, § 6. Section 22.222(c) of the Texas Government Code provides: “A majority of a panel constitutes a quorum for the transaction of business, and the concurrence of a majority of a panel is necessary for a decision.” Tex. Govt. Code Ann. § 22.222(c) (Vernon 2004). Court-adopted rules cannot be inconsistent with the constitution. See Starnes v. Holloway, 779 S.W.2d 86, 96 (Tex. App.—Dallas 1989, writ denied). "Of course, a statute controls over a procedural rule." In re Chu, 134 S.W.3d 459, 466 (Tex. App.—Waco 2004, orig. proceeding).
Third, Chief Justice Gray’s interpretation is contrary to a prior decision of the Texas Supreme Court. In Nalle v. City of Austin, 85 Tex. 520, 22 S.W. 668 (1893), the Supreme Court observed:
Hence, if it should be held that a full bench is necessary to make a quorum, the result would be, that in the event of the absence of one of the judges by reason of sickness or from any other cause, the business of the court would remain in suspense until the absent member should be present. Such a rule would be fraught with mischief, and would tend to obstruct the accomplishment of the very purpose for which the Courts of Civil Appeals were created.
Id. at 671. The Court proceeded, “if two be a quorum, and two be qualified and able to agree, no additional judge is requisite to a decision of the case, although the third member of the court be recused.” Id. And finally, “[w]e conclude, therefore, that the disqualification of Judge Key did not make requisite the appointment of a special judge, and that the court composed of his two associates constituted a lawful tribunal for the trial and determination of the case.” Id. at 672.
More recent precedent also rejects such an interpretation. See Hoyt v. Hoyt, 351 S.W.2d 111, 114 (Tex. Civ. App.—Dallas 1961, writ dism’d w.o.j.). After noting that Associate Justice Williams chose not to participate in the decision because he had been the trial judge (although not legally disqualified), the majority in Hoyt said that even the disqualification of one member does not prevent the other members from lawfully proceeding. Id. (citing Nalle). In Dickinson State Bank v. Ogden, a judgment was held valid when one member of a panel had been elected to the Supreme Court after the case was submitted on oral argument and the case was then decided by the remaining panel members. Dickinson State Bank v. Ogden, 624 S.W.2d 214, 222 (Tex. Civ. App.—Houston [1st Dist.] 1981), rev’d on other grounds, 662 S.W.2d 330 (Tex. 1984) (on rehearing).
Furthermore, such an interpretation creates an absurd result by giving one member of the court a virtual veto over any opinion in an unargued case with which that member does not agree. As long as the “dissenting” member is not disqualified or recused and remains on the panel, no opinion could issue.[3] The suggested interpretation of the Rule is “fraught with mischief.” Nalle, 22 S.W. at 671.
Because we can reasonably construe Rule 41.1(a) so that it does not conflict with the constitution or the statute, we should do so. See Collins v. Ison-Newsome, 73 S.W.3d 178, 184 (Tex. 2001) (Jefferson, J. concurring) (“When a procedural rule conflicts with a statute, the statute controls unless the rule repeals the statute under Texas Government Code section 22.004.”) (citing Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000)). A reasonable construction of the rule, if it even applies, is that two justices on a three-member court of appeals may decide a case submitted without argument when the third justice voluntarily elects not to participate in the decision.
Chief Justice Gray decided to not join (or not disagree with) the opinion issued in this case. He is not disqualified; he has not recused himself. Thus, he remains a member of the panel assigned to the case. The decision reflected by the “Special Note” is his alone. In deciding to not vote in this case, he has chosen to disregard his own interpretation of Rule 41.1(a) and to allow this case to be decided by two justices. What, then, is the real reason for not participating?
The answer appears to lie in his attack on the timing of the issuance of the opinion, saying he should have more time “to review and vote on the result in the case.” This is essentially the same complaint made in a “Special Note” filed in Krumnow v. Krumnow, an accelerated appeal that was submitted on oral argument. Krumnow v. Krumnow, No. 10-04-00143-CV, 2005 WL 2044854, at *7 (Tex. App.—Waco Aug. 24, 2005, no pet. h.) (Gray, C.J., Special Note filed Aug. 31, 2005). It has become a pattern.[4]
Internal Administrative Rules govern both the administrative and adjudicative functions of this court. Under those Rules, a majority of the elected justices (Chief Justice Gray voting “no”) has adopted rather detailed internal rules and deadlines for opinions, non-dispositive orders, and opinions on rehearing in civil and criminal cases and for opinions after the filing of a petition for discretionary review in criminal cases.[5] In a case like this, each reviewing (non-authoring) justice has fourteen days to join an opinion or indicate the intent to file a dissenting or concurring opinion. If the fourteen-day period passes without either having occurred, that reviewing justice is deemed to have approved the draft opinion. If the intent to dissent or concur is noted, an additional twenty-one days is allowed to draft an opinion.
The deadline rules were followed in this case. It thus appears that the strategy is to avoid the consequences of the court’s deadlines for the approval of opinions by invoking Rule 41.1(a) in an attempt to gain a veto over the issuance of any opinion with which he does not agree.
BILL VANCE
Justice
Concurring opinion delivered and filed October 26, 2005
[1] A dissent to an order in Texas Parks and Wildlife v. E.E. Lowrey Realty, Ltd. says that an opinion issued by two justices is “a direct violation of Rule of Appellate Procedure 44.1(a).” Texas Parks & Wildlife Dept. v. E.E. Lowrey Realty, Ltd., No. 10-02-00317-CV, 2004 WL 2481000, *1 (Tex. App.—Waco Nov. 3, 2004) (order) (Gray, C.J., dissenting) (not designated for publication).
[2] Because there are four other three-justice courts (Texarkana, El Paso, Tyler, and Eastland), this issue could arise in them as well.
[3] Appellate Rule 41.1(c) provides that, after argument, if for any reason a member of the panel cannot participate in deciding a case, the case may be decided by the two remaining justices. See Tex. R. App. P. 41.1(c). There appears to be no reason to allow two justices to decide an argued case but require all justices to participate in the decision in an unargued case.
[4] The same decision to not vote or participate is reflected in a Special Note filed in Park v. Montgomery County, No. 10-04-00231-CV, 2005 WL 2667488, at *3-4 (Tex. App.—Waco Oct. 19, 2005) (C.J. Gray Special Note).
[5] According to an informal survey that we conducted, the Texas Supreme Court and approximately half of the fourteen courts of appeals have some kind of internal deadlines for the approval of opinions.
b. Code Ann. § 5(g) (Vernon Supp. 2004). The Supreme Court has established the following test for determining whether a particular probate order is appealable under this statute:
If there is an express statute, such as the one for the complete heirship judgment, declaring the phase of the probate proceedings to be final and appealable, that statute controls. Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory.
Crowson, 897 S.W.2d at 783; see also Logan v. McDaniel, 21 S.W.3d 683, 688-89 (Tex. App.—Austin 2000, pet. denied) (order at issue was appealable because it “concluded a discrete phase of the guardianship proceeding”).
We will apply this reasoning to termination proceedings, which also can involve multiple parties whose rights may be finally affected by separate orders and issues (e.g., conservatorship) that survive such orders. In our view, section 263.405(a) of the Family Code is an “express statute” which makes a termination decree appealable notwithstanding the presence of other parties or claims in the suit which may await resolution at a later time. Cf. Crowson, 897 S.W.2d at 783.
RECEIVERSHIP PROCEEDINGS
The Dallas Court of Civil Appeals gave the following reasons for excluding receivership proceedings from the one final judgment rule:
A receivership is not like an ordinary lawsuit in which the issues may be drawn by the pleadings as soon as discovery is complete, and then promptly tried to a final judgment, which may then be enforced by execution. It is frequently an ongoing proceeding in which the rights of various parties are determined by orders of the court from time to time, and it is not finally terminated until all of the assets in the hands of the receiver are applied to payment of claims or delivered to the parties determined by the court to be entitled. It would be intolerable for all payments and deliveries of property to the receiver and by the receiver, as ordered by the court from time to time, to remain tentative and subject to final adjudication on settling the receiver's final account. It would also be intolerable if such intermediate orders should be considered conclusive and not subject to review until termination of the receivership. In this kind of proceeding, the policy behind the “one final judgment” rule does not apply.
Bergeron v. Session, 554 S.W.2d 771, 774-75 (Tex. Civ. App.—Dallas 1977, no writ); accord Hutson v. FDIC, 800 S.W.2d 845, 848 (Tex. 1990) (“The same standards [for appeal of an order rendered in a probate proceeding] apply to orders rendered during a receivership proceeding.”); Chase Manhattan Bank, 52 S.W.3d at 878 (order denying motion to release property from receivership was appealable because it “resolve[d] a discrete issue in the receivership”); Wittner v. Scanlan, 959 S.W.2d 640, 642 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (order granting only part of attorney’s fees requested by administrator of estate appealable).
These observations apply with equal if not greater force to termination decrees in suits instituted by DPRS. The legislature has “fast-tracked” appeals of such decrees. See Tex. Fam. Code Ann. §§ 109.002(a), 263.405(a). In addition, the Legislature has expressly prohibited a direct or collateral challenge to such decrees “after the sixth month after the date the order was signed.” Id. § 161.211(a). If the court terminates parental rights and appoints DPRS as managing conservator, the suit nevertheless is an “ongoing proceeding” in that the trial court “shall conduct a placement review hearing at least once every six months until the date the child is adopted or the child becomes an adult.” Tex. Fam. Code Ann. § 263.501(b) (Vernon 2002); cf. Bergeron, 554 S.W.2d at 774.
As did the court in Bergeron, we conclude that “the policy behind the ‘one final judgment’ rule does not apply” in termination suits instituted by DPRS. Cf. Bergeron, 554 S.W.2d at 775.
PARTITION SUITS
As stated, a partition suit also leads to multiple appealable judgments. However, a partition suit cannot be characterized as an “ongoing proceeding” in the same manner as probate and receivership proceedings (and as we hold today, termination proceedings) are. Cf. Wittner, 959 S.W.2d at 642; Bergeron, 554 S.W.2d at 775. Rather, a partition suit results in two discrete, appealable judgments. See Campbell, 3 S.W.3d at 258. Accordingly, the common law regarding partition suits bears little if any applicability to the present suit beyond recognizing that not every legal proceeding is subject to the one final judgment rule.
SUMMARY
For the foregoing reasons, we hold that a “final order” as defined by section 263.401(d) is appealable regardless of whether the order adjudicates the rights of all parties to the proceeding or all pending claims. The January 24 “interlocutory final order” constitutes a “final order” under section 263.401(d)(4) and is thus an appealable decree.
SMITH’S APPEAL IS UNTIMELY
The appeal of a termination order is accelerated by statute. Tex. Fam. Code Ann. §§ 109.002(a), 263.405(a). Thus, Smith’s notice of appeal was due twenty days after the signing of the order. Tex. R. App. P. 26.1(b). However, Smith filed her notice of appeal eighty-six days after the signing of the order. Smith’s motion for new trial did not alter the deadline for the filing of her notice of appeal. See Tex. Fam. Code Ann. § 263.405(c) (Vernon 2002); Tex. R. App. P. 28.1.
Nevertheless, an appellant may request an extension of time to file a notice of appeal by filing a motion for an extension within fifteen days after the notice of appeal is due. Tex. R. App. P. 26.3. Smith has filed a motion for extension of time to file the notice of appeal, but she did so ninety-one days after the notice of appeal was due. Thus, her extension request is also untimely, and we deny it.
The Clerk of this Court notified the parties that the notice of appeal is untimely and that the appeal would be dismissed for want of jurisdiction if a response showing grounds for continuing the appeal was not filed within ten days. Smith filed her extension motion and a supplemental response asking this Court to retain her appeal on its docket because: (1) counsel was unaware of the 2001 amendments making these appeals accelerated; (2) the appellate rules “should be construed reasonabl[y] and liberally so that the right of appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of the rule”; and (3) counsel’s failure to timely file the notice of appeal constitutes a denial of effective assistance of counsel.
While the Court is sympathetic to Smith’s plight, none of these contentions states a valid, legal basis for this Court to exercise jurisdiction. Accordingly, the appeal is dismissed for want of jurisdiction. See id. 42.3(a).
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissents without separate opinion)
Appeal dismissed
Opinion delivered and filed July 21, 2004
[CV06]