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En Banc Rehearing

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October 28, 2016, 10:10
Martin Peterson
En Banc Rehearing
A strange set of circumstances has arisen in Fort Worth. A case has been decided in accord with TRAP 41.1(a) by two judges of a panel that lost its third member between submission and decision (which, interestingly, involved a period of just over 41 months). See also TRAP 41.1(b), which provides: "After argument, if for any reason a member of the panel cannot participate in deciding a case, the case may be decided by the two remaining justices." The panel's opinion constitutes the full court's opinion in that circumstance.

Three of the court's seven members, however, appear not to agree with the panel decision. Justice Sue Walker (purportedly pursuant to the court's internal operating rules) apparently heard about the panel decision before its release and moved her colleagues to convene the court en banc to decide the case. In an opinion that she purports to deliver in accord with TRAP 47.5, she dissents to a decision (apparently approved by Justices Meier, Dauphinot, Sudderth, and Gardner) to let the panel decide the case. It is unclear whether this ruling is the result of those justices' agreement with the current outcome (a finding that the State failed to prove the defendant's guilt beyond a reasonable doubt), or is merely a recognition that there was no timely decision made to hear the case en banc, or reflects their view of TRAP 41.2(c).

Justice Walker is bold to challenge the current state of affairs because two of those four (Dauphinot and Gardner) will be leaving the court at the end of the year. She suggests that "[i]f any State’s motion for en banc rehearing is not decided prior to December 31, 2016––as would be likely if a new majority opinion must be drafted––the new justice(s) on our court will be required to vote on the State’s motion as part of the en banc court. See Tex. R. App. P. 41.2(a)." She overlooks the fact there will be no need to draft a new majority opinion unless consideration of the anticipated State's motion for rehearing en banc is delayed beyond December 31 (or one of the four switches sides).

Even more interesting to this scenario is the fact that TRAP 41.2(a) may bring Judge McCoy back to the court (as it appears he is eligible for assignment to the court). We do not know his position on the case, except the fact that no decision was rendered before he left the court in late 2014 may imply his view differed from that of Meier and Dauphinot). If TRAP 41.2(a) indeed comes into play, then perhaps the en banc court will be an 8-member rather than 7-member court (assuming the State's motion is not decided before January 1, 2017). But, that may depend on how quickly a substitute for Justice Dauphinot is named by Governor Abbott. Assuming new Justice Kerr (Gardner's substitute) decides in favor of the State, the en banc decision might change, even if McCoy votes the opposite way. But, if Dauphinot's replacement becomes a member of the court in time and joins Sudderth, Meier, and McCoy, TRAP 41.2(b) may come into play (bringing the court to nine members).

Quite possibly, the best solution is for the State either not to file for rehearing en banc and proceed to a PDR (since the CCA is likely to make the final decision in the case no matter how the votes are cast in Fort Worth), or for the three non-panel dissenters to back off.

Appellate judicial history will no doubt have to give this case some prominence no matter how the future unfolds.

November 17, 2016, 23:41
Martin Peterson
Well, Hood County decided to file a motion for en banc reconsideration (but no motion for rehearing). So, the clock is now ticking, and December 30 becomes the next important date in the case.

Interesting questions arise. Rule 49.7 provides in pertinent part: "While the court has plenary power, a majority of the en banc court may, with or without a motion, order en banc reconsideration of a panel's decision." While the rule provides how the court may grant reconsideration, does it also provide for a method for four of the justices to deny the motion? Rule 49.7 is missing any language like the "[o]therwise, it must be denied" clause of Rule 49.3. If the court grants the motion and issues a new opinion, is that decision final, or will Rule 49.5 give Ingerson the right to file a motion for rehearing?

With the turnover that is about to occur, it may also prove important that when a motion for en banc reconsideration is granted,"the case will be resubmitted to the court for en banc review and disposition." To me, this implies that no opinion will be issued in connection with the order (further delaying final disposition). I note, however, that en banc reconsideration was granted and a new opinion issued at the same time in In re Cox, 481 S.W.3d 289. If that were not to occur in this case, then Justice Gardner may vote for reconsideration before December 31, but she will likely not be involved in the final vote on the merits. Her successor (Justice Kerr) might still rejoin Meier, Justice Dauphinot's replacement, and Sudderth to rule in favor of Ingerson at that point. Should be fun to watch how this one turns out.

This message has been edited. Last edited by: Martin Peterson,
November 24, 2016, 19:11
Martin Peterson
Nothing much to see here after all. The motion was promptly denied by a 4-3 vote (same alignment as implied by Walker's dissent). Thus, no need for any answers to my posited questions.

I should note, however, that it was the State Prosecuting Attorney that sought to profit from the fractured court rather than the 355th District Attorney. On to Austin. But, will the CCA now be dealing with an outcome approved by 4 judges, or just 2?