Rodriguez v. Cuellar

Dissenting opinion by

ALMA L. LÓPEZ, Chief Justice.

I fully join in the Concurring and Dissenting Opinion authored by Justice Catherine Stone with regard to the merits of the issues raised in this appeal. I write separately to address the reasons I believe this court should not have granted en banc reconsideration of this appeal.

Rule 41.2(c) of the Texas Rules of Appellate Procedure states:

En Banc Consideration Disfavored. En banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court’s decisions or unless extraordinary circumstances require en banc consideration. A vote to determine whether a case will be heard or reheard en banc need not be taken unless a justice or the court requests a vote. If a vote is requested and a majority of the court’s members vote to hear or rehear the case en banc, the en banc court will hear or rehear the case. Otherwise, a panel of the court will consider the case.

Tex.R.App. P. 41.2(c). The en banc majority opinion states that en banc reconsideration was granted “[bjecause of the high *264degree of public interest in this case and to maintain uniformity of the court’s decisions.”

The fundamental difference of opinion between the majority and dissenting justices is whether the general allegation of “irregularities in the casting [ ] of votes” in Rodriguez’s original petition was sufficient to state a cause of action. The en banc majority’s global statement does little to clarify how the holding by the panel majority failed to “maintain uniformity of the court’s decisions.” In fact, the en banc majority’s global statement is particularly puzzling since the en banc majority opinion cites no San Antonio decision to support its analysis of the issue. Certainly, Cuellar’s contention that the panel majority opinion was contrary to Tiller v. Martinez, 974 S.W.2d 769 (Tex.App.-San Antonio 1998, pet. dism’d w.o.j.), cannot support the granting of en banc reconsideration since the en banc majority opinion distinguishes Tiller and disagrees with Cuellar’s contention.

This leaves us with the en banc majority’s belief that en banc reconsideration was warranted “because of the high degree of public interest in this case.” The en banc majority must necessarily equate the “high degree of public interest” to an “extraordinary circumstance.” However, an assertion that an issue is “important” is insufficient to rise to the level of an extraordinary circumstance. Thompson v. State, 89 S.W.3d 843, 856 (Tex.App.-Houston [1st Dist.] 2002, pet. refd) (Jennings, J., concurring in denial of en banc reconsideration); Schindler Elevator Corp. v. Anderson, 78 S.W.3d 392, 424-25 (Tex. App.-Houston [14th Dist.] 2001, pet. granted, judg. vacated) (Frost, J., concurring in denial of en banc consideration). In addition, the degree of public interest in this case is not higher because of the panel majority’s opinion. The degree of public interest has been the same since the appeal was originally filed in this court; therefore, it would follow that the circumstances were extraordinary when the appeal was originally filed. Upon the filing of the appeal, any of the en banc majority justices could have requested en banc consideration at that time. See Tex.R.App. P. 41.2(c). None of the justices, however, made such a request. As a result, the parties and their attorneys were deprived of the benefit of presenting their argument to the en banc court instead of to a panel and of responding to all of the justices’ questions regarding the law and its application to this case. If the “high degree of public interest” is our new standard, I can only wonder if this means that every appeal that attracts media attention now warrants en banc consideration.

Finally, the inability to seek supreme court review could not meet the extraordinary circumstances standard since panels of this court previously have decided cases which the supreme court was precluded from reviewing by section 232.014(f) of the Texas Election Code. See, e.g., Gutierrez v. Montemayor, No. 04-00-00517-CV, 2000 WL 33225302 (Tex.App.-San Antonio Dec.29, 2000, no pet.) (not designated for publication); Reyes v. Zuniga, 794 S.W.2d 842 (Tex.App.-San Antonio 1990, no writ). In both of those cases, unlike the instant case, the panel stated that it would not entertain any motion for rehearing. 2000 WL 33225302, at *1; Reyes, 794 S.W.2d at 846; see also Reese v. Duncan, 80 S.W.3d 650, 665 (Tex.App.-Dallas 2002, pet. denied) (panel decision refusing to entertain motion for rehearing in election contest case pursuant to section 232.014(e)); Hants v. Shaw, 975 S.W.2d 816, 824 (Tex. App.-Austin 1998, no pet.) (same); Green v. Reyes, 836 S.W.2d 203, 214 (Tex.App.Houston [14th Dist.] 1992, no pet.) (same in appeal of election contest involving Democratic nomination for United States *265Representative to the 29th Congressional District).

I submit that the real reason a majority of the en banc court granted en bane reconsideration of this appeal is because the en banc majority simply disagreed with the result that the panel majority reached. This clearly is not a proper standard for granting en banc consideration. See, e.g., Madeksho v. Abraham, Watkins, Nichols & Friend, 112 S.W.3d 679, 694 n. 4 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) (Hudson, J., dissenting); Thompson v. State, 89 S.W.3d 843, 856 (Tex.App.Houston [1st Dist.] 2002, pet. refd) (Jennings, J., concurring in denial of en banc reconsideration); Schindler Elevator Carp, v. Anderson, 78 S.W.3d 392, 424-25 (Tex. App.-Houston [14th Dist.] 2001, pet. granted, judg. vacated) (Frost, J., concurring in denial of en banc consideration). In fact, the author of the en banc majority opinion in this appeal has previously criticized this court for applying such a standard. Crestway Care Center, Inc. v. Berchelmann, 945 S.W.2d 872, 874-75 (Tex.App.-San Antonio 1997 orig. proceeding [leave denied]) (Green, J., dissenting)2. The failure to follow Rule 41.2(c) “undermines the legitimacy of our en banc opinions by suggesting there are other, unstated, bases, for engaging in full court review, and withdrawing the panel opinion.” University of Texas Medical Branch at Galveston v. Barrett, 112 S.W.3d 815, 820 (TexApp.-Houston [14th Dist.] 2003, pet. filed) (Anderson, J., dissenting).

For the foregoing reasons, I respectfully dissent to the decision to grant en banc reconsideration in this appeal.

. In Crestway Care Center, Inc. v. Berchel-mann, Justice Green states:

The panel of justices assigned for the consideration of Relator’s motion for leave to file a petition for writ of mandamus (Justices Green, Duncan, and Angelini) granted the motion for leave and heard oral arguments in the matter. After reviewing the briefing and arguments, the panel granted the petition and issued a conditional writ of mandamus. The panel decision has now been reversed en banc merely because "[a] majority of the entire court disagrees with the panel's interpretation of the law." Crestway Care Center v. Berchelmann at 873 (Tex.App.-San Antonio 1997, orig. proceeding)(en banc). But see TEX. R. APP. P. 79(e) ("A rehearing or rehearing en banc is not favored and should not be ordered unless consideration by the full court is necessary to secure or maintain uniformity of its decisions or in extraordinary circumstances.”) For this reason alone, we dissent from the majority’s order granting rehearing en banc.