Laborde Properties, L.P. and Laborde Management, LLC v. U.S. Shale Energy II, LLC, and Raymond B. Roush, Ruthie Roush Dodge, and David E. Roush

Fourth Court of Appeals
San Antonio, Texas
January 26, 2017

No. 04-16-00168-CV

LABORDE PROPERTIES, L.P. and Laborde Management, LLC,
Appellants

v.

U.S. SHALE ENERGY II, LLC, and Raymond B. Roush,
Ruthie Roush Dodge, and David E. Roush,
Appellees

From the 218th Judicial District Court, Karnes County, Texas
Trial Court No. 16-02-00049-CVK
Honorable Russell Wilson, Judge Presiding

ORDER
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice

The court’s opinion in this appeal issued on October 12, 2016. Thereafter, appellees filed
a motion for rehearing and a motion for en banc reconsideration. The court denied the motion
for rehearing and the motion for en banc reconsideration. Two justices dissented to the denial of
the motion for en banc reconsideration without first requesting a response. A third justice also
dissented, issuing a written opinion disagreeing with the substance of the October 12, 2016
opinion. Both the order denying the motions and the dissenting opinion issued on December 28,
2016. On January 12, 2017, appellees filed a document entitled “Motion for Reconsideration of
Denial of En Banc Rehearing.” This motion, which in essence reiterates the substance contained
in the previously denied motion for rehearing and motion for en banc reconsideration, asks the
court to reconsider our denial of the prior motion for en banc reconsideration.

As a procedural basis for this motion, appellees cite Rule 41.2 of the Texas Rules of
Appellate Procedure. See TEX. R. APP. P. 41.2. Rule 41.2 is the general rule governing en banc
decisions. It describes the constitution of an en banc court, sets out procedures for when a
majority of an en banc court cannot agree, and states en banc reconsideration is disfavored. See
id. R. 41.2. The rule does not provide for reconsideration of a previously denied motion for en
banc reconsideration. The filing of a further motion for rehearing is governed by Rule 49.5.
That rule states that after a motion for rehearing is decided, a further motion for rehearing may
be filed if the court: (1) modifies its judgment; (2) vacates its judgment and renders a new
judgment; or (3) issues a different opinion. Id. R. 49.5. Here, this court neither modified its
original judgment, vacated its judgment and rendered a new one, nor did it issue a different
majority opinion. See id. Appellees have not cited, nor have we found, any authority that would
permit a party to file a motion to reconsider the denial of a motion for en banc reconsideration.
Accordingly, we DENY appellees’ motion for reconsideration of our prior order denying the
motion for en banc reconsideration.

_________________________________
Marialyn Barnard, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 26th day of January, 2017.

___________________________________
Keith E. Hottle
Clerk of Court