dissenting form en banc on motion for rehearing.
I join Justice Price in his dissent from section III, regarding the court reporter’s duty to transcribe the proceedings. I write separately to dissent from section I of the opinion, regarding the composition of the en banc court.
I agree with the appellant in almost all his arguments regarding our en banc procedure and the appointment of the visiting justice in this case. I believe (1) we should have granted the parties oral argument on the en banc case, (2) we should have given the parties notice that we were going to consider the case en banc, (3) we should have given the parties notice of the name of the visiting justice who was appointed as a tie-breaker, (4) we should have issued a panel opinion before considering the case en banc, and (5) we should have excluded the justice appointed to break the tie once there was no longer a tie on the court.
I also agree with the appellant that the appointment of visiting judges violates the Texas Constitution article 5, section 6, which requires the election of judges.