DISSENT Opinion entered July 22, 2019 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-17-00566-CV ERWIN CRUZ AND THE E RWIN A. CRUZ FAMILY LIMITED PARTNERSHIP, BOTH OF THEM INDIVI DUALLY AND ON BEHALF OF NORTH DALLAS MEDICAL IMAGING, LP, PLANO AMI, LP, AND GHANI MEDICAL INVESTMENTS, INC., Appellants V. MEHRDAD GHANI, Appellee On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-10-16274


### DISSENTING OPINION ON MOTION FOR EN BANC RECONSIDERATION
Before the En Banc Court Dissenting Opinion by Justice Whitehill Texas Rule of Appellate Procedure 49 is an equal opportunity ru le. No more, no less. It treats motions for panel reheari ng and en banc reconsideration as equals, and it guarantees every party at least one opportunity to file a panel motion, an en ba nc motion, or both. It even gives a party who goes from the prevailing party on appeal to the losin g party at least one chance to correct that result.–2– The majority and concurring opini ons, however, ignore plain tex t and deploy faulty logic to elevate en banc motions to favored status notwithstanding th e unambiguous rule that en banc consideration of a case is not favored. T EX

. R. A PP

. P. 41.2(c). As a starting point, the majority and concurring opinions do no t dispute that appellants’ January 23rd en banc reconsiderat ion motion would be untimely a nd beyond our power to resolve on its merits if it were instead merely another panel rehearing motion. So the case turns on whether appellants’ attempted third bite at the apple is timely and thu s permitted because this time it is an en banc reconsideration motion? The answer is no. The answer is “no” because timeliness here turns on current rul e 49’s plain text requirement that subsequent panel and en banc motions may be filed within f ifteen days after a revised court of appeals judgment or opinion—not on whether we still had plen ary power over the case under rule 19 when the en banc motion was filed. Rather if, as occurred here, we do not change our judgment or o pinion, there is no additional opportunity for a party to file a motion for panel r ehearing or en banc reconsideration. Stated differently, the rules treat panel rehearing and en banc reconsideration motions equally in this regard and give a party only one guaranteed opportunity to file either or both of those motions unless we change our judgment or opinion. Because the second panel rehearing motion in this case produced neither change, appellants were not permitted to file a subs equent en banc motion. Since appellants’ en banc motion wasn’t “permitted,” it was not timely. Thus, it did not extend our pl enary power under rule 19.1(b), and we lost plenary power at the end of February 7th. So why is it important to get these rules correct in this case where the majority opinion denies the en banc motion on its merits? There are at least th ese reasons:–3– • The issue raises a question of plenary power, which is to say jurisdiction. Jurisdiction defines our very power to act, and we must not exe rcise jurisdiction we do not possess. • We should interpret the rules correctly, no matter how small the practical effects of an incorrect int erpretation may appear to be. • Sometimes, the difference is not small because it might affec t a losing party’s ability to timely file a petition for review. • The majority opinion also permits parties to burden us with u ntimely en banc motions, in turn increasing the appellate process’s length and cost. Specifically, when we render judgment and release an accompanyi ng opinion, the parties know everything they need to know about wh ether to file an en banc motion. That i s, by reading our opinion they k now whether en banc consideration is “necessa ry to secure or maintain unifo rmity of the court’s decisions or [whether] ex traordinary circumstances requ ire en banc consideration.” T EX

. R. A PP

. P. 41.2(c). On the other hand, the majority opinion permits and arguably encourages parties to wait and see if they like the panel’s decision concerning a prior panel rehearing motion before seeking en banc reconsideration. Accordingly, I dissent.
I. A NALYSIS A. When does our plenary power ex pire if a timely panel or en b anc motion is filed? This answer is easy: 30 days after the court overrules all timely filed motions for rehearing or en banc reconsideration, and all timely f iled motions to extend time to file such a motion. T EX

. R. A PP

. P. 19.1(b) (emphasis added). In this case there is no question that we denied timely motions for rehearing on January 8, 2019, without changing our judgment or opinion. Consequently, our plenary power ended February 7th unless appel lants’ January 23rd en banc motion was timely and thereby ext ended our plenary power period

. Whether we have plenary power post-February 7th to do anything but deny appellants’ motion without reaching its merits depends on whether appellant s’ January 23rd en banc motion–4– was timely. Answering this question requires an analysis of cu rrent rule 49.7, which governs motions for en banc reconsideration. B. What does rule 49.7 say? The starting point is rule 49.7’s text, which addresses several matters applicable to motions for en banc reconsideration: A party may file a motion for en banc reconsideration as a sepa rate motion, with or without filing a motion for rehearing. The motion must be filed within 15 days after the court of appe als’ judgment or order, or when permitted, within 15 days after the court of app eals’ denial of the party’s last timely filed moti on for rehearing or en banc recon sideration. While the court has plenary power, a majority of the en banc co urt may, with or without a motion, order en banc r econsideration of a panel’s de cision. If a majority orders reconsidera tion, the panel’s judgment or o rder does not become final, and the case will be resubmitted to the court for en ban c review and disposition. T EX

. R. A PP

. P. 49.7 (The rule is written as a single paragraph, but this qu ote separates the paragraph’s constituent senten ces for easier understanding.) The first, third, and fourth sen tences do not address the timel iness issue, which is the second sentence’s chore. Specifically, the first sentence merely says that en banc motions can be filed together with panel motions or as stand-alone motions. The thi rd sentence provides that— regardless of whether a party files a timely en banc motion—a m ajority of the whole court can sua sponte order en banc reconsideration at any time while it still possesses plenary power over the appeal. Finally, if we have ordered en banc reconsideration wi th or without a party’s timely motion, the fourth sentence exte nds our plenary power until we decide the case. Because the timeliness of appellants’ en banc motion is the issue here, we focus on the second sentence.–5– C. What does rule 49.7’s second sentence mean? 1. Seeing the Forest for the Trees This case’s three opinions debate one issue: Did our January 8 th order denying appellants’ second panel motion trigger a ri ght for appellants to file thei r first en banc motion? Fundamental to this issue is unde rstanding that there are only two types of ri ghts to file en banc motions: There is a guarant eed right, which the first par t of rule 49.7’s second sentence addresses. And there is a contingent, when permitted right tha t the second part of the sentence

concerns. A party’s right to file an en banc motion must fall into one of those two buckets. That being so, the question becomes: What are the triggering events for each bucket? Stated differently, what events trigger a guaranteed right to file an en banc motio n and what events trigger a contingent, when permitted right to file an en banc motion? Ru le 49’s unambiguous text defines those triggering events for both buckets. Question: Do the facts establish a triggering event for appell ants’ January 23rd en banc motion? They don’t. 2. Background Context for Interp reting Rule 49.7’s Second Sente nce Before diving into the specifics of what rule 49.7’s second sen tence means, it helps to put that sentence in context with its panel rehearing analogs. See Worsdale v. City of Killeen , No. 18- 0329, 2019 WL 2479177, at *9 (Tex. June 14, 2019) (“As we have so often said, text cannot be divorced from context.”) (footnote omitted). There are two such rules. The first is 49.1, which gives a par ty complaining about a court of appeals’ first judgment or ord er the right to file a reheari ng motion within fifteen days after that judgment or order is rendered. T EX

. R. A PP

. P. 49.1. That is, the court of appeals’ first judgment or dispositive order triggers rule 49.1’s guaranteed right to f ile a panel rehearing motion.–6– The second is 49.5 concerning further motions for rehearing. T hat rule permits a party to file a panel rehearing motion within fifteen days after a court of appeals decides a prior rehearing motion if the court of appeals c onsequently changes its prior j udgment or opinion: After a motion for rehearing is decided, a further motion for r ehearing may be filed within 15 days of the court’s action if the court: (a) modifies its judgment; (b) vacates its judgment and renders a new judgment; or (c) iss ues a different opinion. Id . 49.5. Thus, it is a new court of appeals judgment or opinion resulting from a prior panel rehearing motion that triggers a contingent, when permitted rig ht to file a further panel rehearing motion. Stated differently, havi ng filed a prior panel reheari ng motion, a party is not permitted to file a further panel motion unle ss one of rule 49.5’s triggerin g events occurred. When combined, these rules require a party complaining about a court of appeals’ judgment or order to assert all such complaints in a timely fir st rehearing motion or risk waiving those complaints unless the appellate court makes some change i n its judgment or opinion. This is a take-it-or-waive-it rule that promotes finality by prevent ing serial rehearing motions if the court of appeals stands pat.
3. How do rules 49.1 and 49.5 relate to rule 49.7’s second sent ence timing rules? Rule 49.7’s second sentence addresses the timing requirements f or filing en banc motions by combining in a single sentence the panel rehearing rules 49. 1 and 49.5 and applying them to en banc motions as well. To begin, like rule 49.1, the fir st part of rule 49.7’s second sentence provides that “[t]he [en banc] motion must be filed within 15 days after the court o f appeals’ judgment or order.” 1 Thus, like a panel motion following an initial court of appeals judgment or order, a party

1 No one argues that “order” in ru le 49.1 or the first half of r ule 49.7’s second sentence includes orders denying motions for rehearing. In context, “order” must mean a case-dispositive order akin to a j udgment. For example, we resol ve mandamus proceedings with ord ers, not judgments.–7– complaining about a court of appe als’ initial judgment or order has fifteen days to file an en banc motion addressing that judgment or order. No permission is req uired to file this en banc motion. That is, the right to file this en banc motion is guaranteed. So, what does the sentence’s second part do? The sentence’s second part concerns when a party may file an en banc motion after that party has already filed a panel or en banc motion. How do we k now that? Simply because it exists, the second part means that it addresses something other than wh at the sentence’s first part addresses. Similarly, by saying “when permitted,” the second part necessar ily means that, unlike the guaranteed right to file en banc motions that the sentence’s fi rst part provides for, there is no right to file the different or further en banc motions that the sente nce’s second part contemplates unless some contingency is met that permits the further en banc motion to be filed. Thus, the only logical conclusions are that (i) the sentence’s second part refers to en banc motions other than en banc motions addressing a court of appeal s’ initial judgment or order and (ii) a party’s right to file the se different en banc motions is contingent on being only when permitted. So, when are these other en banc motions permitted? Because rule 49.7’s second sentence does not itself directly sp ecify the contingencies under which the further en banc motions are permitted, we must look e lsewhere for those conditions. Elsewhere in rule 49—entitled “Mo tion for Rehearing and En Banc Reconsideration”—is the logical place to look. Rule 49.5 is the logical place to look because it explains when further motions for rehearing are permitted. Accordingly, reading rule 49 as a whole and applying standard rules of construction compels only one conclusion: Rul e 49.5’s conditions to filing further–8– motions for rehearing apply equally to both panel and en banc m otions filed after a court of appeals decides a prior such motion fo llowing the court’s initial judgm ent or order. 4. How does rule 49.7 apply to this case? In the present case, appellant s knew our initial opinion’s and judgment’s content when we rendered them. Armed with that kn owledge, appellants chose to then file only a motion for panel rehearing. They did so even though rule 49.7 gave them a guara nteed right to also or alternatively file an en banc reconsiderati on motion. But they did not do th at. Nor did they file a permitted en banc motion following our second op inion in this case. They in stead chose to wait to file their en banc motion until after we decided their second panel motion wi thout making any changes to the judgment or our opinion. However, because we did not change ou r second opinion or our judgment in any way, the rules do not permit this further en banc motion . Consequently, appellants’ en banc motion was untimely and did not extend our plenary power under rule 19.1(b).
D. How does City of San Antonio v. Hartman affect the analysis? Not at all, except as a historical footnote based on an outdate d, inapplicable version of rule
49.7. The majority opinion relies on City of San Antonio v. Hartman , 201 S.W.3d 667 (Tex. 2006), to support its application of rule 49.7’s “when permitte d” language although the supreme court decided that case before it amended rule 49.7 to add that rule’s second sentence—apparently in response to Hartman itself.
Hartman concerned whether an en banc rehearing motion filed after the deadline to file a panel rehearing motion but during the court of appeals’ plenary power period was timely filed for purposes of calculating the part y’s petition for review deadlin e. Based on the then-existing rule 49.7—which contained no deadline for en banc motions—the suprem e court held that the en banc motion was timely. Id . at 671.–9– In 2006 when the supreme court decided Hartman , rule 49.7, captioned “En Banc Reconsideration,” said in its entirety: While the court of appeals has plenary jurisdiction, a majority of the en banc court may, with or without a motion, order en banc reconsideration of a panel’s decision. If a majority orders reconsidera tion, the panel’s judgment or o rder does not become final, and the case will be resubmitted to the court for en ban c review and disposition. Tex. R. App. P. 49.7, Texas Rules of Court: State (West 2006). There is no substantive difference between the complete 2006 ru le 49.7 and the last two sentences of the current rule 49.7 applicable to this case. In stead, the substantive difference is that the supreme court in 2008 amended t he rule to add its current f irst two sentences. Noticeably, the 2006 rule contained no separate time deadlines for filing en banc motions. Yet in Hartman the supreme court had to decide whether an en banc “rehearing” motion filed after the deadline for filing a panel rehearing motion but while the court of appeals still retained plenary power under which it could sua sponte order reconsideration was timely and therefore extended the petitioner’s deadline to file a supreme court petition for review. That scenario required the supreme court to ad hoc declare—without the benefit of a rule g overning the subject—the deadline for filing en banc motions. In that context, the court reasone d that, if the court of appeals could sua sponte order en ba nc consideration durin g its plen ary power period with or without a pending motion requesting en banc review, then a party could seek en ba nc reconsideration within that same time frame. Hartman , 201 S.W.3d at 671. Although the supreme court decided Hartman in 2006, that court—the same justices who decided Hartman , as the majority opinion points out—two years later (a blink o f the eye in court rules promulgation time) amended t he rule to add its current fi rst two sentences. As explained in section I(C) above, the second sentence added t he current time deadlines for filing en banc motions that did not exist merely two years before when that court decided–10– Hartman . Apparently, the supreme court wanted a different result than Hartman provided regarding the en banc motion filing deadlines. Otherwise, ther e was no reason to add the second sentence, and the supreme cour t would have left well-enough and Hartman alone.
Hartman predates the 2008 amendment to rule 49.7 and, thus, does not p ossibly address the proper interpretation of the second sentence of rule 49.7. See id . at 670. Hartman , however, does state that a motion for en b anc reconsideration is equival ent to a motion for rehearing for
some purposes. Id

. Hartman therefore supports the conclusion that rule 49.5 covers both k inds of motions.
Hartman is not a complete anachronism. As Hartman states, under rule 49.7’s current third sentence, courts of appeals stil l have the power to sua sponte order en banc reconsideration if they do so during their plenary power period prescribed in rules 19. 1. But that does not mean that parties enjoy the same opportunit y that courts of appeals enjoy

. Moreover, Hartman is still instructive to the extent it says that the words rehe aring and reconsideration are interchangeab le in rule 49. Indeed, the su preme court’s 2008 amendments adding rule 49.7’s second sentenc e accomplishes precisely that by mandating that the same filing deadlines apply to both types of motions. Nonetheless, the majority opinion suggests that rule amendments do not affect rules established in prior cases unle ss the supreme court expressly s ays so in the accompanying comments. But no authority supports that premise, and the majo rity’s suggestion is counterintuitive. Amending the ru les takes a lot of time and e ffort, so the natural presumption should be that an amendment addr esses and attempts to remedy so me perceived problem—that is to say, affects exis ting law somehow.–11– Furthermore, if a subsequent rule amendment establishes a rule contrary to a prior case law developed rule, the case law rul e becomes obsolete going forwar d, regardless of whether those cases are mentioned in the amendment’s comments. To conclude o therwise would render the amendment and the effort behind it worthless nullities done for pure amusement and nothing else. 2 That would be an absurd result, which we avoid if possible. See Dyer v. Medoc Health Servs.,
LLC , 573 S.W.3d 418, 426–27 (Tex. App.—Dalla s 2019, pet. denied). Finally, the majority opinion posits: Although the first two sentences of current rule 49.7 were adde d post- Hartman , those sentences do nothing to pro scribe rule 19.1’s plenary pow er and do nothing to restrict rule 49.7’s original t wo sentences allowing courts of appeals to order en banc reconsideration “with or without a motion.” See T EX

. R. A PP

. P. 49.7. We note that the 2008 changes did not insert a timeliness requirem ent in rule 49.7’s plenary power sentence. See id .; see also Kunstoplast , 937 S.W.2d at 456 (“It is our policy to construe rules reasonably but liberally, when pos sible, so that the right to appeal is not lost by creating a requirement not absolutely necessary from the literal words of the rule.”). Hartman is good law. (Footnote omitted). There are at least three errors in that pa ragraph: First, there was no reason for th e 2008 amendments to rule 49 t o mention rule 19.1. Rule 19.1’s plenary power rules run in the background and apply toda y the same as they did in 2006: A timely en banc (or panel) motion automatically in 2006 extended —and today extends—the court of appeals’ plenary power peri od as long as needed to decide th e motion. The difference that the 2008 amendment adding the second sentence made to the process w as to reduce from thirty days to fifteen days the time period in which a party could file an en banc motion that thereby extends

2 Although reading the supreme court’s official comment to the 2 008 rule 49 amendment, which a dded the “when permitted” languag e to rule 49.7, is unnecessary to understand the rule’s unambiguous meani ng (and this opinion does not rely on the comment for that purp ose), it is interesting to observe that the comment comports with this analysis of rule 49.7’s second sentence: “Rule 49 is revised to treat a motion for en banc reconsideration as a motion for rehearing and to include proced ures governing the filing of a mo tion for en banc reconsiderati on.” T EX

. R. A PP

. P. 47 cmt. (2008). The comment notes that readers are to treat mo tions for en banc reconsideration as motions for rehearing. Th us, the comment reinforces the rule’s text prosc ription that, unless filed in r esponse to a court of appeals’ fir st judgment or dispositive or der, other en banc motions are “permitted” only if the cond itions set forth in rule 49.5 a re met. The supreme court order adopting the 2008 amendments p rovided, “The comments appended to these amended rules are intended to inform the construction and application of the rules.” http://www.txcourts.gov/All_Arch ived_Documents/SupremeCourt/Adm inistrativeOrders/miscdocket/08/08911500.pdf.–12– the court of appeals’ plenary power to decide that motion. How ever, although not relied on to inform this dissenting opinion’s analysis, it is interesting to observe that the 2008 amendments changed rule 19.1 “consistent with other changes i n the rules, to specifically address a motion for reconsideration and treat it as a motion for rehearing.” T EX

. R. A PP

. P. 19.1 cmt. (2008); see also footnote 2 supra . Second, the statement that current rule 49.7’s first two senten ces “do nothing to restrict rule 49.7’s original two sentences allowing courts of appeals t o order en banc reconsideration ‘with or without a motion’” proves nothing. Current rule 49.7’s firs t two sentences deal with parties’ motions and say nothing about a court of appeals’ sua sponte ab ility to order en banc reconsideration. These are separate concepts. Because they do not concern a court of appeals’ sua sponte power, there is no reason why the first two sentences wo uld restrict a court of appeals’ ability to sua sponte orde r en banc reconsideration. Third, the statement that “the 2008 changes did not insert a ti meliness requirement in rule 49.7’s plenary power sentence ” (emphasis added) similarly proves nothing. That statement apparently refers to rule 49.7’s current third sentence. But i t was the amended rule’s new second sentence that added a new, reduced timeliness requirement for p arty en banc motions, which extend a court of appeals’ plenary power duration. Because the amendm ents did not change the timing rule for court sua sponte ordere d reconsideration, there was no reason to alter the new rule 49.7’s third sentence. E. How does rule 49.11 affect this analysis? Not at all in a way that affects this case. The majority opinion conjures str ained premises that (i) rule 4 9.7’s “when permitted” phrase refers to rule 49.11 and (ii) that rule 49.11 is the onl y clear referent for the phrase “that party’s” in rule 49.7’s second sentence. As to the first premi se, it is correct that rule 49.11–13– prescribes a further limit—inst ead of an expansion—on when an e n banc motion is “permitted.” The second premise is wrong. Regarding the first premise, rule 49.11 addresses in several wa ys the relationship and timing between a party’s panel or en banc motions and petition for supreme court review. One way it addresses that relationship is to further limit a party’ s ability to seek panel or en banc relief in one specific situation: A party that files a petition for re view forfeits its right to later seek panel or en banc relief in the court of appeals unless the court of a ppeals thereafter changes its opinion or judgment. 3 Thus, if a party first files a petition for review and then l ater files an en banc motion in the court of appeals, the en banc motion is not “permitted,” is not timely under rule 49.7, and does not extend the court of app eals’ plenary power under rule 19.1(b). It is illogical to suggest that rule 49.11, which imposes a fur ther limit on when a party may file a panel or en banc motion, somehow expands a party’s right to file en banc motions. It is also illogical to read rule 49.11 to favor en banc motions in this w ay when another rule plainly states that en banc consider ation is disfavored. See T EX

. R. A PP

. P. 41.2(c). As to the second premise, contra ry to the majority opinion, rul e 49.11 is not t he only clear referent for “the party’s” in rule 49.7’s second sentence. Rat her, the clear referent is in rule 49.7’s first sentence: A party may file a motion for en banc reconsideration as a separate mo tion, with or without filing a motion for rehe aring. The motion must be file d within 15 days after the court of appeals’ judgm ent or order, or when permitte d, within 15 days after the court of appeals’ denial of the party’s last timely filed motion for rehearing or en banc reconsideration. T EX

. R. A PP

. P. 49.7 (emphases added). Thus, “the party’s” in the second se ntence simply refers to the party that desires to file an en banc motion. If that p arty previously and timely filed a panel

3 However, the filing party’s pe tition for review does not affec t other parties’ rights to file their otherwise timely panel or en banc motions. T EX

. R. A PP

. R. 49.11.–14– or en banc motion, and the court of appeals denies that motion, then the party has fifteen days to file a new en banc motion if that motion is “permitted.” Again , rule 49.5 defines when such a motion is “permitted,” subject to rule 49.11’s further limitati on that a party cannot file a petition for review and then seek panel or e n banc relief in the court o f appeals. Although the majority opinion is not entirely clear, it suggest s that a party may always file an en banc motion within fifteen days after its last timely pan el or en banc motion is decided— regardless of whether the court changes its judgment or opinion , unless, per rule 49.11, that party has previously filed a petition for review. This reading is un tenable because it makes rule 49.7’s “when permitted” phrase superfl uous and permits infinite seriat im en banc motions. Instead, rule 49.11 establishes an exception to any rule permit ting a panel or en banc motion—regardless of rule 49.1, 49.5, and 49.7, a party may not file a panel or en banc motion after that party has filed a petition for review. Indeed, rule s 49.1 and 49.5 do not say “when permitted” or otherwise acknowledge rule 49.11’s limitation, bu t undoubtedly rule 49.11’s limitation applies to panel rehearing motions. Thus, the major ity opinion’s interpretation makes rule 49.7’s phrase “when permitted” unnecessary and superfluous . By reading rule 49.7 to apply rule 49.5 to en banc motions, the correct interpretation gives meaning to all of these provisions.
See Spence v. Fenchler , 180 S.W. 597, 601 (Tex. 1915) (statute should be read to make no part superfluous “when possible to do so”). Finally, the rule that a party cannot file a petition for revie w and then seek further court of appeals consideration pre-dates the 2008 amendments. The 2008 amendments simply (i) moved those provisions from rule 53.7(b) to new rule 49.11 and (ii) a dded specific references to en banc motions alongside the existing re ferences to motions for rehear ing.–15– F. How does rule 49.7 apply if a party wishes to file an en ban c motion after that party gets no relief after a panel motion? The same as it applies if a further panel motion follows a prio r panel motion or a further en banc motion follows a prior en banc motion. The concurring opinion hints at a n interpretation of “when perm itted” that arguably permits a party whose panel rehearing motion achieved no change in a co urt of appeals judgment or opinion to file a first en banc motion a nyway. However, the concurring opinion suffers several deficits. First, although the concurring opinion promises to deliver an a rguable alternative reading of “when permitted,” it does not deliver any such argument base d on rule 49’s actual text. Nor can it. No appellate rule affirmatively permits a party to fil e any form of rehearing motion if the court denies a timely reheari ng motion without changing its jud gment or opinion. Second, the concurring o pinion urges that: A motion for en banc reconsideration filed for the first time a fter the denial of a motion for panel rehearing would be considered an initial motio n for en banc reconsideration—and not a “further motion for rehearing”—that w ould be permitted to be filed within fifteen days after the court of ap peals’ denial of the party’s last timely filed motion for rehearing. This arguable interpretation would not conflict with the comments to Rules 49.5 and 49.7 either, a s those comments require us to treat a motion for en banc reconsideration as a m otion for rehearing, but not to treat the motions as interchangeable. A defect in this premise is that this interpretation conflicts with the first part of rule 49.7’s second sentence, which provi des the only events t hat trigger a dissati sfied party’s guarant eed right to file a first en banc motion. An unsuccessful panel motion is not in cluded among the short list of events triggering that guaranteed right. Rather, the concurring opini on’s argument would by judicial fiat expand the short list of those tr iggering events to include a p rior panel motion that produces no change in the cour t of appeals’ judgment or opinion. Although the supreme court can do that sort of thing, we are not the supreme court and we do not have that supreme power. Instead, our power–16– is limited to following the rules the supreme court writes acco rding to the words the supreme court

uses. Third, the concurrence takes an extraordinarily narrow view of how to construe text, one that is limited to reading only two words in one sentence and i gnoring the rest of the text. The concurrence takes that microscopic view notwithstanding its app arent agreement that this dissent’s interpretation is correct if one expands the analysis to the fu ll rule 49 text. Fourth, the concurrence adopts its microscopic view in support of the laudable and preferred goal of deciding appeals on the merits, if the rules permit. But laudable goals do not displace unambiguous text—especially where, as explained in par t I(G) below, the text actually serves those laudable goals. Finally, the concurring opinion appears to approach the issue b ackwards. It begins with an effort to shoehorn the present case into the limited Verburgt v. Dorner exception and searches for a way to do that. It begins that journey by mentioning Verburgt and discussing its facts and holding. But as quickly as Verburgt appears in that opinion it disappears never to be heard from again, with no explanation how i t might apply to the case at ba r. Presumably, that disappearance is because, as the following part I(G) shows, Verburgt and its underlying rationale do not apply in this context.
G. Does Verburgt v. Dorner alter the analysis in this case? The majority and concurring opinions rely on Verburgt v. Dorner , 959 S.W.2d 615 (Tex. 1997), to argue that the supreme court requires a different rul e for en banc motions that follow unsuccessful panel motions from th e rule that applies to (i) fu rther panel motions that follow unsuccessful panel motions and (ii) further en banc motions tha t follow unsuccessful en banc motions. But Verburgt requires no such disparate treatment in this type of situation because the disappointed party wishing for a further apple bite with a subs equent en banc motion already had–17– a full and fair opportunity to present its full issues and argu ments to the court of appeals and chose not to do so. To begin, Verburgt presents a situation where the would-be appellant lost any hop e of ever having his appeal’s merits being heard by the court of appeals because he did not realize that he needed to also file a motion to extend his time to file his tar dy appeal bond. See 959 S.W.2d 616– 17. Sympathy for Verburgt’s plight and a desire to ensure him at least one chance to have his arguments heard on appeal drove the supreme court to create an implied motion for leave to file an untimely appeal bond if that tardy bond was filed during the fifteen day grace period following its due date. See id

. 4 But by deduction Verburgt ’s rationale and grace-laden result do not apply where the appellant (i) presented appellate arguments and lost and (ii) s quandered two opportunities to present additional arguments in a contemporaneous en banc motio n despite full knowledge that those same arguments were already available. As discussed earl ier, an appellant knows by reading a court of appeals opinion whether that opinion conflicts with prior opinions from that court or presents extraordinary circumstances warranting en banc conside ration. See T EX

. R. A PP

. P. 41.2(c). Armed with that knowledge, the appellant has a full a nd fair opportunity to then invoke the court of appeals’ en banc jurisdiction to address and decid e those issues, without any need to wait and see how the panel resolves them. Indeed, in addition to whatever a party chooses to include in i ts pre-decision briefs, rule 49.7 allows a party to urge all the arguments it wants in (i) a ny panel or en banc motion filed in response to a court of appeals’ first judgment and opinion and (ii) any panel or en banc motion

4 The concurrence also relies on Ryland Enterprise, Inc. v. Weatherspoon , in which the supreme court held that a pre-judgment motion fo r JNOV that also requested a new t rial worked to extend the appel late deadlines, thus making the appellant’s notice of appeal ti mely. 355 S.W.3d 664, 665–67 (Tex. 2011) (per curiam). Ryland is even less compelling here than Verburgt in that the rules actually supported Ryland’s argument that its notice of appeal was t imely. Rule 49, by contrast, do es not support appellants’ argument here.–18– filed after a subsequent court of appeals decision that in any way alters that court’s preceding judgment or opinion. Rule 49.7’s second sentence can hardly be said to deny any party an effective ability to present all the appellate issues and arguments it de sires. To illustrate this point, here, unlike in Verburgt , appellants had a full and fair opportunity to argue in this Court (as their en banc motion argues) that th is case should be controlled by our CBIF Limited Partnership v. TGI Friday’s Inc. , No. 05-15-00157-CV, 2017 WL 1455407 (Tex. App.—Dallas Apr. 21, 2017, pet. denied) (mem. op.) opinion. In deed, not only did appellants actually make that argument in their panel opening and reply br iefs, but they had the opportunity to make that same argument in their first panel rehearing motio n and chose not to do so. Appellants also had the opportunity to make t he same argument in a timely en banc motion submitted after either of our first two panel merits opinions but again chose n ot to do that either. So it is hard to say that applying the rules as written somehow deprived appella nts of an opportunity to present us with the same argument that this Court today rejects on its mer its. And it is similarly hard to say that applying rule 49.7 as written would deprive any other disa ppointed party an opportunity to present any argument it wa nts to an en banc court. H. How does rule 49 work if in response to a party’s panel or e n banc motion the court of appeals reverses course and releases a new opinion and judgm ent that flips the result and creates a new losing party? Rule 49 permits the new losing party to file its first panel or en banc motion in response to a new judgment and opinion follo wing another party’s panel or e n banc motion. Assume that a court of appeals’ initial opinion and judgment de clares the appellee the winner. Typically, the appellee will leave well enough alone a nd not file a panel or en banc motion. But assume further that the appe llant files a pane l or en banc motion that prompts the court to flip the result and the appellee then wants to file its first panel or en banc motion. Rules 49.5, which is written in the passive voice, and 49.7 contemplate that scen ario and permit the new losing party–19– to file either such motion addressing the new judgment and opin ion. T EX

. R. A PP

. P. 49.5, 49.7. At that point, the normal rules concerning further panel or en banc motions apply depending on how the court of appeals responds t o the new loser’s initial mo tion. I. What about the notion that it is more logical and efficient to allow a party to wait and see if its initial panel motion produces a new judgment or opin ion before first asserting enbancworthy arguments? This notion is illogical and inefficient for several reasons: First, it ignores the plain text. Had the supreme court intend ed to include that “wait and see approach” to its list of events triggering a guaranteed rig ht to file a first en banc motion, it would have said so in rule 49.5 or the first part of rule 49.7’ s second sentence. That the supreme court did not do that is compelling evidence that it did not in tend to do so. Two, permitting a “wait and see approach” adds delay, inefficie ncy, and costs to the appellate process. A lawyer rece iving an undesired court of ap peals opinion spends time reading and analyzing that opinion in light of the parties’ merits brie fs, analyzing errors in the opinion potentially warranting further ar gument, revisiting the applica ble law, searching for new developments that might justify a different outcome, conferring with clients and possibly colleagues about potential new strategies, and if warranted wri ting a motion asking the court of appeals to take a second look at the issues. At that point, ap pellate counsel is fully apprised of the potential grounds for that second look, whether those grounds b e that the court of appeals overlooked important evidence, arguments, controlling authoriti es, or the like, as well as grounds that would support en banc consideration. Thus, it is at that point that appellate counsel can most efficiently identify, research, assess, and brief enbancworthy arguments. It is to the clients’ and the courts’ benefit, and thus society’s benefit, to deal with a ll such issues at that point. Conversely, a contrary take whereby the aggr ieved appellate counsel begins the process anew to identify, assess, and urge enbancworthy argu ments only after an initial p anel motion fails promotes–20– inefficiency, increases costs, and delays a final case resoluti on to nobody’s benefit but perhaps his or hers. Three, the “wait and see approach” assumes that parties hold ba ck potentially winning arguments hoping they will never have to make them. That is no t the way most lawyers work. Instead, most people give their first post-court of appeals jud gment and opinion motion their full attention, presenting their best a rguments and then some in hop es of righting a sinking ship. Four, contrary to Professor Dors aneo’s concerns that the majori ty opinion notes ( see majority opinion footnote 1), the “wait and see approach” ignor es the way this Court actually handles contemporaneous panel and en banc motions. When a disa ppointed party files joint or contemporaneous panel and en banc motions, the panel takes the first look and has the first opportunity to address those purpor ted errors. If the motion p ersuades the panel to make changes, they do so and the en banc motion becomes moot. If the panel d oes not make any changes, the en banc motion then goes to the whole court to consider. Presumab ly other courts of appeals with more than three judges give pa nels similar deference. Accordingly, logic and efficiency militate against reading into rule 49.7 a “wait and see approach” trigger that would permit disappointed parties a guar anteed right to file an en banc reconsideration motion upon receiving an order denying that par ty’s prior panel rehearing (or en banc) motion without making any cha nges to the court of appeals ’ judgment or opinion. J. Why does it matter that the m ajority opinion denies appellan ts’ motion on the merits? It matters because jurisdiction is fundamental and always matte rs, and merits decisions made without jurisdiction are pr oblematic for many reasons. Fo r example, courts of appeals waste judicial resources when resol ving cases over which they have no jurisdiction.–21– Additionally, parties, advocates, and citizens must be able to assess and manage their legal risks and rights based on predictable text readings of legal do cuments, including statutes, court rules, etc. And opinions issued in cases over which the court lacked jurisd iction can harm Texas jurisprudence by cluttering and confusing the law with opinions that never should have been written.
II. C ONCLUSION Looking back to where this discu ssion began, the Court’s task w as to determine whether a subsequent en banc motion following a panel motion that resulte d in no change in our judgment or opinion was entitled to more f avorable timing rules than wou ld follow on panel or en banc motions. Having exhaustively explored the issue, the correct a nswer remains as postulated at the start: No. No rule 49 text supports favoring an en banc motion with special treatment in this scenario. Although the majority and concurring opinions promise a viable alternative meaning to rule 49.7’s “when permitted” phras e, they do not deliver on tha t promise. This vacuum exists because there is no other viable meaning than what this dissent ing opinion explains. Accordingly, the correct disposition here is to deny appellants’ en banc mot ion for lack of jurisdiction without reaching its merits. I dissent from the majority opinion becau se it doesn’t do that.

Bridges, Myers, and Brown, JJ., join in this dissent 170566HD.P05 /Bill Whitehill/ BILL WHITEHILL JUSTICE