Fourth Court of Appeals
San Antonio, Texas
DISSENTING OPINION
No. 04-16-00333-CV
IN RE Cleo BUSTAMANTE, Jr.
Original Mandamus Proceeding 1
Opinion by: Marialyn Barnard, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice, joined by Luz Elena D. Chapa, Justice
Dissenting Opinion by: Luz Elena D. Chapa, Justice
Sitting en banc: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Jason Pulliam, Justice
Delivered and Filed: November 23, 2016
I dissent from the granting of en banc consideration. Rule 41.2(c) provides the legal
standard for determining whether en banc consideration should be granted. TEX. R. APP. P. 41.2(c).
The rule provides, in relevant part:
(c) 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.
1
This proceeding arises out of Cause No. 12-05-27517, styled Roberto Fernandez and Maria Imelda Flores v. Abaco
Consultants, Inc., et al., pending in the 365th Judicial District Court, Maverick County, Texas, the Honorable Amado
J. Abascal, III presiding.
Dissenting Opinion 04-16-00333-CV
Id. (emphasis added). Here, the court’s opinions in Taymax 2 and Caterpillar, 3 respectively, do
not conflict with any prior precedent of this court or with this case. Nor did the panel majority in
either opinion commit any error of such magnitude that it amounted to an “extraordinary
circumstance” requiring en banc review.
To the contrary, it appears that the en banc majority here simply disagrees with the panel
majority’s holding in Taymax that mandamus relief was not warranted because the relators failed
to establish the lack of an adequate remedy at law. 2014 WL 1831100, at *1. Such a disagreement,
however, does not meet the elevated en banc standard:
The standard for en banc consideration is not whether a majority of the en banc
court may disagree with all or a part of a panel opinion. Neither is an assertion that
an issue is “important” sufficient. Rather, when there is no conflict among panel
decisions, the existence of “extraordinary circumstances” is required before en banc
consideration may be ordered.
Fazio v. Cypress/GR Houston I, L.P., 403 S.W.3d 390, 411-12 (Tex. App.—Houston [1st Dist.]
2013, pet. denied) (Jennings, J., dissenting from granting of en banc consideration) (citing
Thompson v. State, 89 S.W.3d 843, 856 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)
(Jennings, J., concurring in denial of en banc consideration)).
In Taymax, the panel majority denied mandamus relief because the Taymax relators “failed
to establish the lack of an adequate remedy at law with respect to the trial court’s denial of leave
to designate Masaki as a responsible third party.” 2014 WL 1831100, at *1; see also In re
Caterpillar, 2009 WL 5062324, at *1. Taymax did not hold, as the en banc majority states, “that
mandamus relief is not available for the denial of a motion for leave to designate a responsible
2
In re Taymax Fitness, LLC, No. 04-14-00119-CV, 2014 WL 1831100 (Tex. App.—San Antonio May 7, 2014, orig.
proceeding) (mem. op.).
3
In re Caterpillar, Inc., No. 04-09-00796-CV, 2009 WL 5062324 (Tex. App.—San Antonio Dec. 23, 2009, orig.
proceeding) (mem. op.).
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Dissenting Opinion 04-16-00333-CV
third party because the moving party has an adequate remedy by appeal.” In re Bustamante, No.
04-16-00333-CV, slip op. at 8 (Tex. App.—San Antonio Nov. 23, 2016, orig. proceeding). Every
case is distinguishable by its own facts. Compare In re Greyhound Lines, Inc., No. 05-13-01646-
CV, 2014 WL 1022329, at *3-4 (Tex. App.—Dallas Feb. 21, 2014, orig. proceeding) (mem. op.)
(“On this record, in this case,” defendant not already a defendant) with Taymax, 2014 WL
1831100, at *1 (Masaki already a named defendant), and Bustamante, No. 04-16-00333-CV, slip
op. at 2 (responsible third parties not named as defendants when suit filed one day before
limitations expired). As the en banc majority admits, “The decision whether there is an adequate
remedy on appeal ‘depends heavily on the circumstances presented.’” In re Bustamante, No. 04-
16-00333-CV, slip op. at 9 (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 137 (Tex.
2004) (orig. proceeding)). Neither Taymax nor Bustamante hold that no adequate relief by appeal
is ever available from the denial of a motion to designate responsible third parties. If Bustamante
is intended to so hold, such is a determination yet made by a higher court, and nothing in Prudential
suggests an appeal from the denial of a timely motion for leave to designate responsible third
parties is always inadequate. None of our sister courts presume to so hold, and neither should this
court.
Thus, because there is neither a conflict between panel decisions nor the existence of
“extraordinary circumstances” requiring en banc consideration, I therefore dissent from the
granting of en banc consideration.
Rebeca C. Martinez, Justice
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in Re Cleo Bustamante, Jr.
Combined Opinion