Harris County, Texas and Kevin Vailes v. Barbara Coats, Individually, as Personal Representative of the Estate of Jamail Amron, and as Heir to the Estate of Jamail Amron, And Ali Amron, Individually and as Heir to the Estate of Jamail Amron

Motion for En Banc Reconsideration Denied and Dissenting Opinions on Order
filed September 17, 2020.

In the

Fourteenth Court of Appeals

NO. 14-17-00732-CV

HARRIS COUNTY, TEXAS AND KEVIN VAILES, Appellants

v.

BARBARA COATS, INDIVIDUALLY, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF JAMAIL AMRON,
DECEASED; AND ALI AMRON, INDIVIDUALLY AND AS HEIR TO THE
ESTATE OF JAMAIL AMRON, DECEASED, Appellees

On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2012-5551

DISSENTING OPINION FROM ORDER DENYING EN BANC
RECONSIDERATION

I respectfully dissent.

The en banc court’s order purports to rule that the motion for en banc
reconsideration is “denied” on a 4–4 vote. The en banc order both misstates Texas
Rule of Appellate Procedure 49.7 and mischaracterizes the vote of the court.

There is no statute or rule requiring the court to reveal which judges or how
many judges voted on a motion for en banc reconsideration; the court may simply
issue an order stating the ruling. Here, the order reveals an evenly divided court, yet
it recites a ruling that the motion is denied, conjuring up a nonexistent majority to
take that action.

Unlike a motion for rehearing, which requires a ruling that the motion is either
granted or denied, the issue on en banc reconsideration is whether a majority of the
en banc court, with or without a motion, orders “en banc reconsideration of the
panel’s decision.”1 Compare Tex. R. App. P. 49.3 (motion for rehearing), with Tex.
R. App. P. 49.7 (en banc reconsideration). There is no tiebreaker rule similar to that
for a motion for rehearing: “A motion for rehearing may be granted by a majority of
the justices who participated in the decision of the case. Otherwise, it must be
denied.” Tex. R. App. P. 49.3 (emphasis added) (requiring as matter of law ruling of
“denied” unless majority acts to grant).2 So following the en banc rules, the lack of
a majority to order en banc reconsideration results in a ruling that the motion fails.3

1
See Texas Rule of Appellate Procedure 41.2 for a similar procedure in which a majority
of the en banc court can “vote” to hear or rehear the case en banc before the court’s panel decision
is released to the public.
2
Rule 49.3 requires as a matter of law a ruling of “denied” on motions for rehearing when
two or three justices on a panel who “participated in the decision of the case” leave the court. Were
that to occur in a court of appeals with more than three justices, the appellate rules allow the filing
of a motion for en banc reconsideration and a ruling on that motion.
3
En banc reconsideration is mentioned in other appellate rules. Rule 19.1(b) states a court
of appeals’ plenary power over its judgment expires 30 days after the court “overrules” all timely
filed motions for rehearing or en banc reconsideration and all timely filed motions to extend time
to file such a motion. Tex. R. App. P. 19.1(b) (using former 1986 Texas Rules of Appellate
Procedure preference for “overrule” versus 1997 preference for “deny”). Rule 53.7(a)(2) sets a
deadline to file a petition for review with the clerk of the supreme court within 45 days after the
date of the court of appeals’ last “ruling” on all timely filed motions for rehearing or en banc
reconsideration. Tex. R. App. P. 53.7(a)(2); see Tex. R. App. P. 68.2(a) (similar rule for deadline
to file petition for discretionary review in court of criminal appeals). Rule 49.11 requires a party
2
See Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 612 (Tex. 1996)
(discussing former 1986 Texas Rule of Appellate Procedure 79(d)).

Here there is no majority to grant the motion for en banc reconsideration. In
fact, there is no “majority” taking any action. But you would not know that from
reading the court’s order.

With one justice not participating in this case, a majority of the remaining
eight justices is five.4 There were neither five or more votes to grant the motion nor
to deny the motion. Following the en banc rule, the court’s ruling must be the motion
fails because a majority of the court did not vote to grant en banc reconsideration.

To the extent that the court’s docket management system only recognizes a

filing a petition for review in the supreme court to notify the clerk of the supreme court when the
last timely filed motion for rehearing or motion for en banc reconsideration is “overruled” by the
court of appeals. Tex. R. App. P. 49.11. Nothing in Rules 19.1(b), 49.11, 53.7(a)(2), and 68.2(a)
requires as a matter of law the “denial” of a motion for en banc reconsideration when the ruling is
the motion failed because a majority of the court did not order en banc reconsideration. If the
supreme court and court of criminal appeals deem it necessary to revise the appellate rules to
require an active ruling (“the court denies”), as opposed to a passive ruling (“the motion fails”),
then the two high courts can do that. See Donwerth v. Preston II Chrysler-Dodge, Inc., 775 S.W.2d
634, 644 (Tex. 1989) (Ray, J., concurring, joined by Mauzy & Hecht, JJ.) (changes to rules cannot
be formulated in caselaw, but any problems with rules should be studied and addressed by revising
Texas Rules of Appellate Procedure).
4
It is a fundamental concept in our state government that when the authority to take action
is vested in more than two people, a majority is needed to act unless otherwise set by law. See
Code Construction Act, Tex. Gov’t Code Ann. §§ 311.013(a) (“A grant of authority to three or
more persons as a public body confers the authority on a majority of the number of members fixed
by statute.”); 311.002(4) (Code Construction Act applies to “each rule adopted under a
code”); 22.004(a) (granting supreme court full rulemaking power in practice and procedure in civil
actions); 22.108(a) (granting court of criminal appeals rulemaking power to promulgate rules of
posttrial, appellate, and review procedure in criminal cases). If the court is “convened en banc,”
the Government Code specifically states, “a majority of the membership of the court constitutes a
quorum and the concurrence of a majority of the court sitting en banc is necessary for a decision.”
Id. § 22.223(b); see Tex. R. App. P. 41.1(a) (constitution of panel), 41.2(a) (constitution of en banc
court). As the court has not voted to convene en banc, section 22.223(b) does not apply; instead,
Texas Rules of Appellate Procedure 41.2(c) and 49.7 govern whether to convene en banc to hear,
rehear, or reconsider a case.

3
binary “grant” or “deny” entry, the order should nonetheless accurately reflect the
ruling that the motion failed because a majority of the court did not order en banc
reconsideration.5 And if a majority actually voted to deny, then an order with the
ruling that the motion was “denied” would not be factually incorrect. However, it is
incorrect for the court to say it has ruled to deny a motion when the court is evenly
divided.

A per curiam order could have issued stating the ruling that the motion failed
because a majority of the court did not order en banc reconsideration. Instead, the
court’s order states a ruling that the motion was “denied.” That is like saying the jury
found a criminal defendant “innocent” when the verdict was “not guilty.”

I do not understand why the court insists on misstating the need for a majority
under Rule 49.7 and mischaracterizing the vote. The court’s order should accurately
reflect the ruling of the court.

I dissent.

/s/ Charles A. Spain
Justice

En banc court consists of Chief Justice Frost and Justices Christopher, Wise, Jewell,
Bourliot, Zimmerer, Spain, and Poissant. (Justice Hassan not participating).
Justices Bourliot, Zimmerer, Spain, and Poissant voted to grant en banc
reconsideration.

5
A docket entry rarely captures all the complexities of a court order and the procedure on
which the court’s ruling is based.

4
Justice Bourliot filed a dissenting opinion in which Justices Zimmerer and Spain
joined, and Justice Poissant joined in part on the merits only.
Justice Spain filed a dissenting opinion in which Justices Bourliot, Zimmerer, and
Poissant joined.
Justice Poissant filed a dissenting opinion in which Justice Zimmerer joined.
Tex. R. App. P. 47.5.

5