the City of Austin, Texas v. Sayeed Anam, Individually and as Independent Administrator of the Estate of Zachary Anam, and Cara Anam, Individually

• Court: Court of Appeals of Texas
• Decided: December 30, 2020
• Docket: 03-19-00294-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON RECONSIDERATION EN BANC

NO. 03-19-00294-CV

The City of Austin, Texas, Appellant

v.

Sayeed Anam, Individually and as Independent Administrator of The Estate of Zachary Anam and Cara Anam, Individually, Appellees

FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY NO. C-1-PB-17-002191, THE HONORABLE GUY S. HERMAN, JUDGE PRESIDING

DISSENTING OPINION

I agree with Justice Triana’s jurisdictional analysis and her ultimate conclusion

that the Anams’ factual allegations are sufficient to support a viable claim that is statutorily

exempt from governmental immunity and thus sufficient to overcome the City’s plea to the

jurisdiction. I write separately to emphasize that even if I were persuaded that the pleadings and

governing precedent foreclose the district court’s exercise of jurisdiction over the Anams’

claims, I would not support en banc reconsideration of this matter.

A court of appeals should sit en banc in only the rarest of circumstances. Our

rules of procedure provide, “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). The City’s motion for en banc reconsideration does not even refer to this rule, much less describe how the

rule’s standard is satisfied. Nor does the majority explain what renders this case so compelling

as to require the Court to undertake this long-disfavored mechanism of review.

Rule 41.2(c) sets forth two criteria, at least one of which must be satisfied to

allow for en banc decision. Its first criterion allows en banc consideration when “necessary to

secure or maintain uniformity of the court’s decisions.” See id. For example, two years ago, the

Texas Comptroller of Public Accounts appealed from a district court’s denial of his plea to the

jurisdiction, arguing that the trial court had misconstrued the injunctive relief available

to taxpayers under chapter 112 of the Tax Code. See generally Hegar v. EBS Sols., Inc.,

549 S.W.3d 849 (Tex. App.—Austin 2018), rev’d, 601 S.W.3d 744 (Tex. 2020). While the

matter was pending before the panel, our research revealed inconsistencies in this Court’s

interpretation and application of section 112.108 of that code. See id. at 851, 863–64. Thus, and

on our own motion, the Court convened en banc to clarify that “section 112.108 ha[d] been

invalidated by this Court” on constitutional grounds in 2000, see id. at 864 (referring to holdings

in Rylander v. Bandag Licensing Corp., 18 S.W.3d 296, 304–05 (Tex. App.—Austin 2000, pet.

denied)), and to “disavow” our subsequent opinions relying on that section’s language, see id. at

863–64 (citing Office of Comptroller of Pub. Accts. v. Pakse, Inc., No. 03-16-00121-CV,

2017 WL 4583213, at *1, 2–5 (Tex. App.—Austin Oct. 10, 2017, no pet.) (mem. op.); Office of

Comptroller of Pub. Accts. v. Farshid Enters., No. 03-16-00291-CV, 2017 WL 1404731, at *2, 5

(Tex. App.—Austin Apr. 13, 2017, pet. denied) (mem. op.); Sanadco, Inc. v. Office of

Comptroller of Pub. Accts., No. 03-11-00462-CV, 2015 WL 1478200, at *3, 4 (Tex. App.—

Austin Mar. 25, 2015, pet. denied) (mem. op.)).

2 Unlike EBS Solutions, this appeal reveals no conflict or inconsistency in our

jurisprudence that might require clarification by the en banc court. Moreover, the City, in

moving for en banc reconsideration, does not argue that the panel’s treatment of jurisdiction

deviated from this Court’s precedent. Nor does the en banc opinion suggest as much. Thus, the

first criterion is not satisfied.

Rule 41.2(c) also allows for en banc consideration under “extraordinary

circumstances.” Tex. R. App. P. 41.2(c). As one commentator recently observed, this phrase is

undeniably “vague” and has yet to be explored in a precedential opinion. See Michael J. Ritter,

En Banc Review in Texas Courts of Appeals, 39 REV. LITIG. 377, 378 (2020). Justices from this

Court have suggested that “extraordinary circumstances” include the need to decide an issue on

which other courts of appeals disagree, the need to address an issue of statewide significance or

unusual interest to the public, and the need to overturn a prior decision of this Court. Twigland

Fashions Ltd. v. Miller, 335 S.W.3d 206, 226 (Tex. App.—Austin 2010, no pet.) (Jones, C.J.,

concurring in denial of en banc reconsideration); see also Texas Dep’t of Fam. and Protective

Servs. v. Grassroots Leadership, Inc., No. 03-18-00261-CV, 2019 WL 6608700, *2 (Tex.

App.—Austin, Dec. 5, 2019, order) (Triana, J., dissenting from denial of en banc

reconsideration). None of those circumstances is present here. And while this list of qualifying

circumstances is, no doubt, not exhaustive, this case lacks any other aspect or component that

might arguably rise to the kind of “extraordinary circumstance” contemplated by Rule 41.2(c).

In short, the City and a majority of this Court’s justices called for en banc

reconsideration only because they believe the panel misconstrued governing precedent in

deciding the case. But the mere fact that “the en banc majority simply disagree[ ] with the result

that the panel majority reached . . . is not a proper standard for granting en banc consideration.”

3 Rodriguez v. Cuellar, 143 S.W.3d 251, 265 (Tex. App.—San Antonio 2004, pet. dism’d) (López,

C.J., dissenting) (citing Madeksho v. Abraham, Watkins, Nichols & Friend, 112 S.W.3d 679, 694

n.4 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (Hudson, J., dissenting); 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 reconsideration); Schindler Elevator Corp. v. Anderson,

78 S.W.3d 392, 424–25 (Tex. App.—Houston [14th Dist.] 2001, pet. granted, judg. vacated)

(Frost, J., concurring in denial of en banc consideration); Crestway Care Ctr., Inc.

v. Berchelmann, 945 S.W.2d 872, 874–75 (Tex. App.—San Antonio 1997 orig. proceeding

[leave denied]) (Green, J., dissenting)).

Rule 42.1(c) exists to ensure a balance between society’s competing needs for

jurisprudential clarity and judicial economy. To that end, the rule outlines two narrow criteria

for en banc consideration of cases pending before the courts of appeals. Because neither

criterion is satisfied in this case, I respectfully dissent from the Court’s decision to grant the

City’s motion for en banc reconsideration.

__________________________________________ Edward Smith, Justice

Before Chief Justice Rose, Justices Goodwin, Baker, Triana, Kelly, and Smith

Filed: December 30, 2020