The relative infrequency of en banc decisions in the courts of appeals leaves relatively few opinions governing various issues related to en banc procedures. This is especially true because not all of the intermediate appellate courts in Texas are comprised of more than three justices.

A recent set of opinions from a case in the Fourteenth Court of Appeals brings to light some potential considerations in en banc decisions. This article will note some of those considerations and the approach suggested by some of the justices of the Fourteenth Court of Appeals in that set of opinions. Practitioners should keep these issues in mind if en banc consideration is granted in their case.

I. Who is part of the en banc court?

In most cases, the constitution of the en banc court is clear—“all of the members of the court.” Tex. R. App. P. 41.2(a). A complication exists, however, if a member of the panel before which the case was decided or argued is no longer part of the court:

Constitution of En Banc Court. An en banc court consists of all members of the court who are not disqualified or recused and—if the case was originally argued before or decided by a panel—any members of the panel who are not members of the court but remain eligible for assignment to the court

Tex. R. App. P. 41.2(a).

The Fourteenth Court recently concluded that a retired judge is not “eligible for assignment” unless the judge elected to be a judicial officer under Government Code Section 75.001. Werner Enterps. v. Blake, No. 14-18-00967-CV, Order at *2-3 (Tex. App.—Houston [14th Dist.] Sept. 23, 2021).

II. When is en banc consideration, as opposed to en banc rehearing, appropriate?

Justice Randy Wilson recently distinguished between en banc consideration of a case and en banc rehearing of the case:

En banc rehearing occurs after the panel considers the case, issues an opinion and judgment, along with any separate writing . . . Texas courts of appeals have the power to grant en banc consideration of a case in the first instance . . . . without the issuance of any panel opinions . . . .

Werner Enterprises, Inc. v. Blake, No. 14-18-00967-CV, 2021 WL 3164005, at *2-3 (Tex. App.—Houston [14th Dist.] July 27, 2021, no pet.).

Rule 41.2 governs the en banc court:

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.

Tex. R. App. P. 41.2(c); see also State v. Yakushkin, 625 S.W.3d 552, 554–55 (Tex. App.—Houston [14th Dist.] 2021, pet. ref’d) (“A justice of this court requested a vote on whether to consider the issues en banc.”).

Rule 41.2 also provides a procedure for en banc consideration or rehearing of a case:

A vote to determine whether a case will be heard or reheard en banc need not be taken unless a justice of 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).

Similarly, Rule 49.5 provides a procedure for either a party to request en banc rehearing of a case or the court to order such reconsideration:

A party may file a motion for en banc reconsideration as a separate motion, with or without filing a motion for rehearing. The motion must be filed within the time prescribed by Rule 49.1 for filing a motion for rehearing. The motion should address the standard for en banc consideration in Rule 41.2(c).

While the court has plenary power, a majority of the en banc court may, on its own initiative, order en banc reconsideration of a decision. If a majority orders reconsideration, the judgment or order does not become final, and the case will be resubmitted to the court for en banc review and disposition. The court may dispose of the case with or without rebriefing and oral argument.

Tex. R. App. P. 49.5.

Two dissenting opinions from the Fourteenth Court suggest that en banc consideration should be limited to certain circumstances. A dissenting opinion authored by Justice Wilson stated that:

Research indicates that in the history of Texas jurisprudence an intermediate court of appeals with more than three justices has ordered en banc consideration of a case in the first instance only about a dozen times. The en banc court should explain why it has taken this highly unusual action.
. . . .
Among these few cases in which Texas intermediate courts of appeals have ordered en banc consideration of a case in the first instance, several of the en banc courts have done so to overrule a precedent established by a prior panel of the court.
. . . .
[I]f a three-justice panel considers an appeal for a long period of time without deciding the case and then the en banc court grants en banc consideration in the first instance, one reason for the en banc court’s action might be deadlock at the panel level.

Werner Enterprises, Inc. v. Blake, No. 14-18-00967-CV, 2021 WL 3164005, at *3 (Tex. App.—Houston [14th Dist.] July 27, 2021, no pet.) (Wilson, J., dissenting) (collecting authorities)

A dissenting opinion authored by Chief Justice Tracy Christopher also suggested that en banc consideration should be limited:

The court may also favor en banc consideration before a panel has acted if the court discovers a conflict in its own precedents that requires resolution. There are no such extraordinary circumstances in this case. There is no other appeal pending before this court with similar issues, nor are there any identified conflicts in our precedents. Simply put, in the eleven years that I have been on this court, there have been no grants of en banc consideration in a situation such as this. . . .

Nothing in the briefing requests that the court overturn a prior decision of the Fourteenth Court of Appeals. Therefore, there is no need to “secure or maintain uniformity of the court’s decision,” a requirement for en banc consideration. See Tex. R. App. P. 41.2. Nor does the briefing identify any other “extraordinary circumstance.” Id.

Id. at *2 (Christopher, C.J., dissenting).

III. Should the parties be able to have the advantage of the drafted panel opinion that caused the Court to order en banc consideration?

An additional consideration the dissenting justices in the Fourteenth Court raised is the parties’ ability—or lack thereof—to review the panel’s draft opinion. The dissenting opinion by Chief Justice Christopher stated:

Texas Rule of Appellate Procedure 41.1 makes clear that decisions are to be made by panels. This case is assigned to the panel of Justices Wise, Hassan, and Wilson. While a member of the court, on the member’s own motion, can call for en banc consideration, such consideration normally happens after a panel opinion has already issued. . . . The panel majority opinion has been silenced—not to see the light of day. The parties are unable to assist the en banc court in its determination of the issues in this case—as is their right.

Werner Enterprises, Inc. v. Blake, No. 14-18-00967-CV, 2021 WL 3164005, at *2 (Tex. App.—Houston [14th Dist.] July 27, 2021, no pet.) (Christopher, C.J., dissenting).

The dissenting opinion authored by Justice Wilson raised a similar concern:

After nearly two years of panel consideration of this case, five justices on this court have decided to order sua sponte en banc consideration, without the issuance of the panel opinions that were the fruits of the panel’s deliberation. The en banc majority has given no good reason for wasting the last 20 months and wasting the panel’s time and effort. The en banc majority gives no good reason for its unprecedented move because there is none. Nothing good can come from this decision by the en banc majority. . . .

Why is the en banc majority so afraid of issuing a panel decision and letting the parties know how at least some of the justices view this case?

Werner Enterprises, Inc. v. Blake, No. 14-18-00967-CV, 2021 WL 3164005, at *15 (Tex. App.—Houston [14th Dist.] July 27, 2021, no pet.) (Wilson, J., dissenting).

IV. Should the parties have the ability to “assist the en banc court” through briefing directed to the en banc court?

Practitioners often differentiate their approach to a case depending on the power of the court before which the practitioner is appearing. For example, a merits brief in a Supreme Court proceeding involving an issue upon which there is no Supreme Court authority and the courts of appeals are split will likely look very different from the briefing in the trial court in that same case when that trial court was bound by intermediate appellate court precedent on the issue.

Similarly, a practitioner may wish to provide a different perspective to an en banc court, which may overrule prior court precedent, than to a panel of that same court. Such a perspective may provide benefit to the en banc court. Chief Justice Tracy Christopher noted that, when en banc consideration is granted without the parties requesting it, “[t]he parties are unable to assist the en banc court in its determination of the issues in this case—as is their right.” See Werner Enterprises, Inc. v. Blake, No. 14-18-00967-CV, 2021 WL 3164005, at *2 (Tex. App.—Houston [14th Dist.] July 27, 2021, no pet.) (Christopher, C.J., dissenting)

If practitioners are faced with unrequested en banc consideration, they may choose to request an opportunity to provide supplemental briefing to the en banc court. The Fourteenth Court indicated that this concern can be cured by granting leave for the parties to, “if they choose to do so, file a supplemental brief” to the en banc court. See Werner Enterps. v. Blake, No. 14-18-00967-CV, Order at 3 (Tex. App.—Houston [14th Dist.] Sept. 23, 2021).