Anna Mercedez Gutierrez v. the State of Texas

Opinion

NUMBER 13-24-00208-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ANNA MERCEDEZ GUTIERREZ Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 63RD DISTRICT COURT OF KINNEY COUNTY, TEXAS

MEMORANDUM OPINION DISSENTING TO DENIAL OF MOTION FOR EN BANC RECONSIDERATION

Before the Court En Banc Dissenting Memorandum Opinion by Justice Silva

Once again, this six-member court is deadlocked on a motion for en banc

reconsideration. Three members of the en banc court would vote to grant reconsideration

and three members of the en banc court would vote to deny, causing the motion for en banc reconsideration in this case to fail.

As observed by Justice Benavides in a different case just eighteen months ago,

such denial now means that only two members of this Court joined the original decision

that now binds all six members. See Aguilera v. Costilla, No. 13-21-00135-CV, 2023 WL

3879854, at *1 (Tex. App.—Corpus Christi–Edinburg June 8, 2023, pet. denied)

(Benavides, J., dissenting from denial of motion for en banc reconsideration). Because

we are a six-member court, the result of three justices agreeing that this case should be

heard en banc now means that this decision by only two justices has more binding

authority than it did before the motion for en banc reconsideration was filed. I share

Justice Benavides’s earlier expressed concern that “we risk delegitimizing the judiciary

when we treat as precedent a decision by two justices that fails to amass support from a

majority of our en banc court.” Id. at *2.

We have noted this issue for even-numbered member courts for twenty years. See

Fidelity & Guar. Ins. Underwriters v. Saenz, 878 S.W.2d 605, 606–07 (Tex. App.—Corpus

Christi–Edinburg 1993), rev’d on other grounds, 925 S.W.2d 607 (Tex. 1996), (Yañez, J.,

dissenting from denial of en banc reconsideration). As it continues to be a recurring

problem, I would urge a reexamination of this rule.

Extraordinary circumstances require en banc reconsideration in this case. See

TEX. R. APP. P. 41.2(c). In addition to the erroneous decision on the merits by the two-

justice panel majority in a matter of legal significance for this State, as set out in my

dissent, the timing of the issuance of the majority decision also deprived the attorney

general of his constitutional and statutory right to be heard in defense of a Texas statute.

The Office of the Attorney General has now filed a brief in support of the motion for en

2 banc reconsideration, objecting to the majority panel’s violation of Texas Government

Code § 402.010(b), and seeking the opportunity to defend the constitutionality of this

statute before the en banc court. For all these reasons, I respectfully dissent from the

Court’s order denying the State’s Motion for En Banc Reconsideration.

CLARISSA SILVA Justice

Memorandum Opinion Dissenting to Denial of Motion for En Banc Reconsideration joined by Justices Tijerina and Peña.

Publish. TEX. R. APP. P. 47.2(b)

Delivered and filed on the 31st day of December, 2024.