JASON KOWNSLAR v. THE CITY OF HOUSTON (2022)

DISSENTING OPINION FROM DENIAL OF EN BANC RECONSIDERATION

Dissenting Opinions from Denial of En Banc Reconsideration filed October 18, 2022.

I respectfully dissent from the denial of en banc reconsideration.

En banc reconsideration is warranted when necessary to secure or maintain uniformity of the court's decisions, and/or extraordinary circumstances require en banc reconsideration. Tex. R. App. P. 41.2. I agree with Justice Hassan's dissent in that the panel's decision in this case conflicts with this court's precedent. See, e.g., City of Houston v. Kiju Joh, 359 S.W.3d 895, 898 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Therefore, en banc reconsideration is warranted in this case. See Tex. R. App. P. 41.2; Ross v. Union Carbide Corp., 296 S.W.3d 206, 216 (Tex. App.—Houston [14th Dist.] 2009, pet. denied (en banc) (overruling prior opinion of the court to obtain uniformity among the court's decision); see also In re Cook, 629 S.W.3d 591, 599 (Tex. App.—Dallas 2021, orig. proceeding) (en banc) (concluding that panel's opinion departed from the court's precedent and concluding en banc reconsideration was warranted).

Furthermore, I write to note that we again encounter the restrictions of Texas Rule of Appellate Procedure Rule 49.5. Here, the vote on the motion for en banc reconsideration by the sitting justices is 4-4; however, en banc reconsideration fails under our current rules, which does not serve the parties or the public interest. See Tex. R. App. P. 49.5 (“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.”); see also Tex. R. App. P. 41.2(a). It is the purpose of the courts to address issues of importance, and if four of the eight sitting justices of the court determine the opinion merits en banc review, then in the interest of justice, the 4-4 vote should be considered granted rather than denied. Michael J. Ritter, En Banc Review in Texas Court of Appeals, 39 Rev. Litig. 377, 379 (2020) (asserting that “the en banc court's disagreement with a panel's decision is the most well-supported reason for granting en banc review”).

Accordingly, I respectfully dissent from the denial of en banc reconsideration.

Margaret “Meg” Poissant Justice