by Nicholas Bruno, Beck Redden, LLP

As noted in last edition’s article, during the 2018 election, several of the current justices serving on the Houston Courts of Appeals promised greater “diversity of thought” if more ideological diversity existed on the Courts of Appeals. While some speculated that the election results would lead to greater frequency of separate opinions on those Courts, there was also speculation about whether the election results would drive any change on decisions regarding en banc motions from the First and Fourteenth Courts of Appeals.

Accordingly, this article asks whether, after nearly a year of service by the ten new appellate justices on the Houston Courts of Appeals, the data shows that there is any material change in decisions regarding en banc motions from those Courts.

The short answer is that—at this point—the answer seems yes. The number of cases with a decision regarding an en banc motion has increased in both courts, although more significantly so in the Fourteenth Court.

For purposes of this article, I searched the TAMES database for all opinions released by the First and Fourteenth Courts of Appeals from January 1, 2019 to August 31, 2019 that contained some form of an opinion from the Court on an en banc motion.

In other words, this article collects (1) dissents from denial of en banc motions, (2) concurrences in the denial of an en banc motion, or (3) a majority opinion issued by the en banc court. I compared those results to the same search from those same dates in 2018.

Number of Opinions Regarding an En Banc Motion in the First Court Number of Opinions Regarding an En Banc Motion in the Fourteenth Court
January 1, 2018-August 31, 2018 4 2
January 1, 2019-August 31, 2019 5 5

 

The areas of law in which an opinion regarding an en banc motion was issued did not show any easily explained trends, with the possible exception of criminal justice issues:

  • Some decisions involve criminal justice issues. In 2018, both of the Fourteenth Court’s en banc writings came from criminal cases. In 2019, two of the relevant Fourteenth Court cases were in the criminal context. In 2018, the First Court had two relevant criminal law cases; in 2019, there were none. Additionally, the First Court had one civil commitment case in 2019.
  • The number of dissents in the parental rights context did not bleed over to the en banc context. In 2018, the First Court had one relevant case involved parental rights. In 2019, there were none in either Court.
  • The remaining writings involved a myriad of issues. In 2018, relevant First Court cases also involved delay in seeking mandamus relief and decisions regarding exceptions from ad valorem taxes. In 2019, relevant decisions from both Courts involved permissive appeals, the Silica multidistrict litigation, pleas to the jurisdiction, easement issues, temporary injunctions, and arbitration.

The types of en banc opinions are also noteworthy. In the First Court, particularly, the number of en banc majority opinions went from zero to two from 2018 to 2019. Although it may be too early to tell definitively, this trend may indicate a greater willingness of that Court to issue en banc majority decisions:

Number of En Banc Majority Opinions in the First Court Number of En Banc Majority Opinions in the Fourteenth Court Number of Cases with En Banc Dissents or Concurrences in the First Court Number of Cases with En Banc Dissents or Concurrences in the Fourteenth Court
January 1, 2018-August 31, 2018 0 1 4 2
January 1, 2019-August 31, 2019 2 1 3 5

 

Like with dissents, at this early stage in the new justices’ service, time of service is no correlation between to the likelihood a justice will write at the en banc stage. Several judges have written separately in 2019. In the Fourteenth Court, Justices Christopher, Frost, Hassan, Jewell, Poissant, Spain, and Zimmerer have all written or joined either an en banc majority, concurrence, or dissent. In the First Court, Justices Countiss, Goodman, Keyes, Landau, and Lloyd have all done the same.

Of course, it is difficult to draw any conclusion from such a small sample size, which by its very nature, prohibit any changes from being statistically significant. These numbers may change as time goes on. Additionally, the number of en banc writings, like the number of concurrences, may not be the best measure of “diversity of thought.” Judges often negotiate before opinions are released. This diversity of thought may have impacted the opinions released by the Courts in other ways.

In short, at least up to this point, the number of decisions regarding en banc motions has increased in both the First and the Fourteenth Court of Appeals. Whether this signifies a trend remains to be seen.

Appendix

Below is a list of cases in which an opinion regarding en banc motion was issued.

I.  2018 First Court of Appeals Decisions Regarding En Banc Motions.

  • Esquivel v. State, 546 S.W.3d 342 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (Lloyd, J., concurring in denial of en banc reconsideration, joined by Jennings, J.).
  • Harris County v. Harris Cty. Appraisal Dist., 554 S.W.3d 708 (Tex. App.—Houston [1st Dist.] 2018, pet. granted) (Massengale, J., dissenting from denial of en banc reconsideration; Keyes, J., dissenting from denial of en banc reconsideration).
  • In re Wagner, No. 01-15-00774-CV (Tex. App.—Houston [1st Dist.] July 12, 2018, no pet.) (Massengale, J., dissenting from denial of en banc reconsideration).
  • Milton v. State, 546 S.W.3d 330 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (Jennings, J., dissenting from denial of en banc reconsideration; Bland, J., dissenting from denial of en banc reconsideration), rev’d 572 S.W.3d 234.

II.  2018 Fourteenth Court of Appeals Decisions Regarding En Banc Motions.

  • Luckenbach v. State, 545 S.W.3d 567 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (Frost, J., concurring in denial of en banc reconsideration). Note that Justices Busby, Brown, and Jewell voted for en banc reconsideration, but did not appear to write a dissent.
  • Foreman v. State, 561 S.W.3d 218 (Tex. App.—Houston [14th Dist.] 2018, pet. granted) (Brown, J., writing for the majority; Jamison, J., dissenting; Donovan, J., dissenting).

III.  2019 First Court of Appeals Decisions Regarding En Banc Motions.

  • Clearpoint Crossing Prop. Owners Assoc. v. Chambers, No. 01-16-00773-CV (Tex. App.—Houston [1st Dist.] Jan. 31, 2019, pet. denied) (Goodman, J., concurring in denial of en banc reconsideration).
  • Mosaic Baybrook One, L.P. v. Simien, No. 01-18-00995-CV, 2019 WL 2458991 (Tex. App.—Houston [1st Dist.] June 13, 2019, no pet.) (Keyes, J., dissenting from denial of en banc reconsideration; joined by Lloyd, J.).
  • In re Farro, No. 01-18-00164-CV (Tex. App.—Houston [1st Dist.] Aug. 20, 2019, pet. filed): (Goodman, J., dissenting from denial of en banc reconsideration).
  • Adame v. 3M Co., No. 01-16-00847-CV, 2019 WL 3949391 (Tex. App.—Houston [1st Dist.] Aug. 22, 2019, no pet. h.) (Landau, J., writing for the majority)
  • Fallon v. Univ. of Texas MD Anderson Cancer Ctr., No. 01-17-00146-CV, 2019 WL 4019685 (Tex. App.—Houston [1st Dist.] Aug. 27, 2019, no pet. h.) (Countiss, J., writing for the majority)

IV.  2019 Fourteenth Court of Appeals Decisions Regarding En Banc Motions.

  • Limones v. State, No. 14-17-00966-CR, 2019 WL 1187149 (Tex. App.—Houston [14th Dist.] Mar. 14, 2019, no pet.) (Spain, J., concurring in denial of en banc reconsideration).
  • Moliere v. State, No. 14-17-00594-CR (Tex. App.—Houston [14th Dist.] May 16, 2019, pet. ref’d) (Hassan, J., dissenting from denial of en banc reconsideration, joined by Zimmerer, J., Spain, J., and Poissant, J.).
  • Methodist Hospital v. Addison, No. 14-17-00917-CV (Tex. App.—Houston [14th Dist.] May 16, 2019, no pet.) (Christopher, J., concurring in denial of en banc reconsideration).
  • Longoria v. CKR Prop. Mgmt., LLC, No. 14-18-00100-CV, 2019 WL 2479787 (Tex. App.—Houston [14th Dist.] June 13, 2019, no pet.) (Zimmerer, J., dissenting from denial of en banc reconsideration).
  • Cheniere Energy, Inc. v. Parallax Enterps. LLC, No. 14-17-00982-CV, 2019 WL 3801955 (Tex. App.—Houston [14th Dist.] Aug. 13, 2019, pet. filed) (Christopher, J., writing for the majority; Zimmerer, J. concurrence; Frost, J. dissent, joined by Jewell, J.).