Concurring and Dissenting Opinions on Denial of Rehearing En Banc filed 

September 20, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00815-CV

THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant

V.

RONALD K. ONEY, INDIVIDUALLY AND AS REPRESENTATIVE OF THE 

ESTATE OF DANIEL D. ONEY, Appellee

On Appeal from the 11th District Court

Harris County, Texas

Trial Court Cause No. 2011-32031

C O N C U R R ING O P I N I O N O N D E N I A L O F 

R E H E A R I N G E N B A N C

Today, the en banc court denies the motion for en banc reconsideration filed by 

appellant The Kansas City Southern Railway Company.1 The decision is compelled by 

the exacting standard for en banc consideration imposed by the Texas Rules of Appellate 

Procedure.2 

 

1

See Tex. R. App. P. 49.7. 

2

See Tex. R. App. P. 41.2(c). 
2

Rule 41.2(c) supplies the legal standard for determining whether a motion for en 

banc reconsideration should be granted.

3

The relevant portion of that rule provides:

(c) En Banc Consideration Disfavored. 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.4

This high threshold for en banc consideration is reasonable given the large volume of 

cases adjudicated each year by intermediate appellate courts and the substantial 

expenditure of time and resources involved in considering a case en banc. Notably, the 

standard for en banc review is not whether a majority of the en banc court disagrees with 

all or part of a panel opinion.5 Thus, even if a majority of the en banc court were to 

conclude that the majority opinion in the case under review was wrongly decided, that 

conclusion alone would not justify en banc consideration.6 The fact that the issues 

involved are important is likewise not sufficient to satisfy the legal standard.7 Under the 

plain meaning of Rule 41.2(c), en banc consideration is disfavored and should be ordered 

only when necessary to secure or maintain uniformity in this court’s decisions or when 

extraordinary circumstances require en banc consideration.8 

In its motion for en banc reconsideration, The Kansas City Southern Railway 

Company does not address the standard for en banc review set forth in Rule 41.2(c). Nor

does it assert or show a direct conflict between the panel majority opinion and any other 

opinion of this court. The Kansas City Southern Railway Company does not assert or 

argue that en banc consideration is necessary to secure or maintain uniformity in this 

 

3

See id. 

4

Id. 

5

See Thompson v. State, 89 S.W.3d 843, 856 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (Jennings, 

J., concurring on denial of rehearing en banc). 

6

See Tex. R. App. P. 41.2(c); Thompson, 89 S.W.3d at 856 (Jennings, J., concurring on denial of 

rehearing en banc). 

7

See Tex. R. App. P. 41.2(c); Thompson, 89 S.W.3d at 856 (Jennings, J., concurring on denial of 

rehearing en banc). 

8

See Tex. R. App. P. 41.2(c). 
3

court’s decisions. Nor does The Kansas City Southern Railway Company assert or argue 

that extraordinary circumstances require en banc consideration. Likewise, in the 

dissenting opinion on denial of rehearing en banc, there is no discussion of the exacting 

standard for en banc consideration or why it is met in this instance. Because this exacting 

standard is not satisfied, it is proper for this court to deny The Kansas City Southern 

Railway Company’s motion for en banc reconsideration.

9

Though the presented issues 

are important to the jurisprudence, the prerequisites for en banc consideration have not 

been satisfied.

10

 By voting to deny this motion for en banc reconsideration, I take no

position on the merits of the case under review; rather, I conclude only that the high 

threshold for en banc consideration has not been met.

11

 

For these reasons, I respectfully concur with this court’s decision to deny The 

Kansas City Southern Railway Company’s motion for en banc reconsideration.

/s/ Kem Thompson Frost

Justice

En Banc Court consists of Chief Justice Hedges and Justices Frost, Seymore, Brown, 

Boyce, Christopher, Jamison, McCally, and Busby, and Senior Justice Mirabal.12 (J. 

Boyce dissenting to denial of rehearing en banc, joined by Justices Brown, Christopher, 

Jamison, and Busby).

 

9

The dissenting opinion contains a statement that the majority opinion “is incompatible with” this court’s 

decision in Abraham v. Union Pac. R.R. Co., 233 S.W.3d 13, 17 (Tex. App.—Houston [14th Dist.] 2007, 

pet. denied), suggesting that en banc consideration is necessary to secure or maintain uniformity in this 

court’s decisions. See post at p. 8. The Abraham case did not involve claims that were subject to any part 

of Chapter 90 of the Texas Civil Practice and Remedies Code. See Abraham, 233 S.W.3d at 16–24. In 

the case under review, the majority expressly stated that “[n]othing in our holding relieves [Oney] from 

the burden of presenting reliable, admissible evidence supporting his FELA claim in future proceedings.” 

Kansas City S. Ry. Co. v. Oney, No. 14-11-00815-CV, —S.W.3d—,—, 2012 WL 2928535, at *12 (Tex. 

App.—Houston [14th Dist.] Jul. 19, 2012, no pet. h.). The majority opinion does not conflict with the 

Abraham opinion and does not create a lack of uniformity in this court’s decisions. 

10 See Tex. R. App. P. 41.2(c). 

11 See id.

12 Senior Justice Margaret Garner Mirabal sitting by assignment.