the Texas Parks and Wildlife Department, Doug Hammitt, and Marvin C. Wills, Jr. v. E.E. Lowrey Realty, LTD. D/B/A Gatesville Storage and the Estate of E.E. Lowrey

Opinion

IN THE

TENTH COURT OF APPEALS

No. 10-02-00317-CV

The Texas Parks and Wildlife

Department, Doug Hammitt,

and Marvin C. Wills, Jr.,

                                                                      Appellants

 v.

E.E. Lowrey Realty, LTD.

d/b/a Gatesville Storage

and The Estate of E.E. Lowrey,

                                                                      Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # COT-01-33440

concurring Opinion TO ORDER WITHDRAWING OPINION

I begin by noting that Chief Justice Gray has voluntarily elected to “not participate” in the revised opinion issued in this case by the remaining justices.  He is not disqualified; he is not recused.  Thus, he remains a member of the panel assigned to the case.  The decision not to participate in the revised opinion is his and his alone.  He apparently believes that the revised opinion is “void” under Texas Rule of Appellate Procedure 41.1(a), but that is not a reasonable interpretation of the Rule.[1]  Tex. R. App. P. 41.1(a).  

Such an interpretation ignores article V, section 6 of the Texas Constitution.  Tex. Const. art. V, § 6 (“The concurrence of a majority of the judges sitting in a section [panel] is necessary to decide a case.”).

It ignores section 22.222(c) of the Texas Government Code.  Tex. Govt. Code Ann. § 22.222(c) (Vernon 2004) (“A majority of a panel constitutes a quorum for the transaction of business, and the concurrence of a majority of a panel is necessary for a decision.”).

          It ignores long-standing Texas Supreme Court precedent, decided even before the constitution specified the number of judges on a court of appeals that constitutes a quorum.  Nalle v. City of Austin, 85 Tex. 520, 22 S.W. 668 (1893).  The Supreme Court observed:

Hence, if it should be held that a full bench is necessary to make a quorum, the result would be, that in the event of the absence of one of the judges by reason of sickness or from any other cause, the business of the court would remain in suspense until the absent member should be present.  Such a rule would be fraught with mischief, and would tend to obstruct the accomplishment of the very purpose for which the Courts of Civil Appeals were created.

Id. at 671.  The Court proceeded, “if two be a quorum, and two be qualified and able to agree, no additional judge is requisite to a decision of the case, although the third member of the court be recused.”  Id.  And finally, “[w]e conclude, therefore, that the disqualification of Judge Key did not make requisite the appointment of a special judge, and that the court composed of his two associates constituted a lawful tribunal for the trial and determination of the case.”  Id. at 672.

          It ignores more recent precedent, specifically rejecting the dissent’s assertion.  See Hoyt v. Hoyt, 351 S.W.2d 111, 114 (Tex. Civ. App.—Dallas 1961, writ dism’d w.o.j.).  After noting that Associate Justice Williams chose not to participate in the decision because he had been the trial judge (although not legally disqualified), the majority in Hoyt said that even the disqualification of one member does not prevent the other members from lawfully proceeding.  Id. (citing Nalle).

          It ignores Dickinson State Bank v. Ogden, where a judgment was held valid when one member of a panel had been elected to the Supreme Court after the case was submitted on oral argument and the case was then decided by the remaining panel members.  Dickinson State Bank v. Ogden, 624 S.W.2d 214, 222 (Tex. Civ. App.—Houston [1st Dist.] 1981), rev’d on other grounds, 662 S.W.2d 330 (Tex. 1984) (on rehearing).

          That leaves the question, “Does Appellate Rule 41.1(a) impose a requirement that all three members of a three-justice court of appeals actually participate in the decision of every case submitted without argument, when none is disqualified or recused?”

Court-adopted rules cannot be inconsistent with the constitution.  See Starnes v. Holloway, 779 S.W.2d 86, 96 (Tex. App.—Dallas 1989, writ denied).  "Of course, a statute controls over a procedural rule."  In re Chu, 134 S.W.3d 459, 466 (Tex. App.—Waco 2004, orig. proceeding).  An interpretation of Rule 41.1(a) that requires that all three justices of this court participate in every decision rendered without oral argument conflicts with section 6 of article V of the Texas Constitution and section 22.222(c) of the Government Code, both of which provide that a majority of a panel constitutes a quorum.  Tex. Const. art. V, § 6; Tex. Govt. Code Ann. § 22.222(c).

Furthermore, such an interpretation creates an absurd result, by giving one member of the court a virtual veto over any opinion in an unargued case with which that member does not agree.  As long as the “dissenting” member is not disqualified or recused and remains on the panel, no opinion could issue.  The majority’s only recourse would be to schedule the case for oral argument, so that Rule 41.1(c) would allow the issuance of the opinion without the participation of the “dissenting” (non-participating) justice.  See Tex. R. App. P. 41.1(c) (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 dissent’s construction of the Rule is “fraught with mischief.”  Nalle, 22 S.W. at 671.

          Because we can reasonably construe Rule 41.1(a) so that it does not conflict with the constitution or the statute, we should do so.  See Collins v. Ison-Newsome, 73 S.W.3d 178, 184 (Tex. 2001) (Jefferson, J. concurring) (“When a procedural rule conflicts with a statute, the statute controls unless the rule repeals the statute under Texas Government Code section 22.004.”) (citing Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000)).  A reasonable construction of the rule, if it applies, is that two justices on a three-member court of appeals may decide a case submitted without argument when the third justice voluntarily elects not to participate in the decision.

          I concur in the order withdrawing the prior opinion and judgment in this case and substituting the revised opinion and judgment.

BILL VANCE

Justice

Concurring opinion delivered and filed November 10, 2004

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    [1]       Rule 41.1(a) may not apply to three-justice courts of appeals at all, considering that it begins “Unless a court of appeals with more than three justices . . . .”   For purposes of this opinion, I—like the dissent—assume it applies.