CONCUR; and Opinion Filed July 22, 2019.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-17-00566-CV

ERWIN CRUZ AND THE ERWIN A. CRUZ FAMILY LIMITED PARTNERSHIP,

BOTH OF THEM INDIVIDUALLY 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

CONCURRING OPINION

Opinion by Justice Schenck

I agree with the majority in concluding that we may reach the merits of this motion. 

However, I write separately because I reach that conclusion under a different reasoning. My 

reasoning is informed by a mandate from the supreme court that requires us to examine a case on 

its merits when there is an “arguable interpretation” that would allow us to do so. See Ryland

Enter. v. Weatherspoon, 355 S.W.3d 664, 665 (Tex. 2011). Because I find that mandate is 

applicable here,1 and because, at the very least, an arguable construction would support our ability 

to reach and dispose of the issue presented on the merits, I concur.

 

1

I concede that the “arguable interpretation” canon I apply here is most often employed in a non-jurisdictional context. The Texas Supreme 

Court has faced the argument that it should not be employed in jurisdictional settings and rejected it. Verburgt v. Dorner, 959 S.W.2d 615, 618 n.2 

(Tex. 1997) (Enoch, J., dissenting). 
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The threshold question presented by the filing of Cruz’s motion is whether the rules of 

appellate procedure allow us to reach and dispose on the merits a party’s motion for en banc 

reconsideration filed for the first time after a motion for rehearing is denied without any 

modification of the original judgment or opinion. The dissent, relying on the phrase “when 

permitted” in appellate Rule 49.7, concludes that they do not. If the question here were whether, 

when applying canons of construction and interpreting the rules like we would statutes, including 

resorting to commentary and drafting history, Rule 49.7 is best read to foreclose our review of the 

motion, then I concede that the dissent may well have the best answer. Whether such a 

construction would be practical or advisable would be a separate question. It is enough for present

purposes to say that I see nothing in the text of Rule 49.7, even when augmented by resort to Rule 

49.5, to suggest that a motion for en banc reconsideration can only be filed within 15 days of the 

date the court of appeals renders a judgment or order, unless the opinion is modified on panel 

rehearing. That conclusion can come only from resort to interpretative comments to Rules 49.5 

and 49.7 and its mercurial declaration that the drafters intended for the rules to treat a motion for 

en banc reconsideration as a motion for rehearing. But to me, the real question is whether we are 

obligated to go that distance if there is an arguable interpretation of the appellate rules that will 

allow us to resolve the motion on the merits. For the following reasons, I believe there is an 

arguable interpretation in this case that allows us to reach the merits.

To be clear, I do not believe that there is anything elevated or exalted about en banc 

rehearing that affects how we are to read the rules. It is enough, to me, that the rules authorize the 

review by motion of a party or by initiation of other members of the court and, in rare instances 

on larger courts like this one, provide a mechanism for ensuring uniformity in opinions and 

participation by the court’s membership in major matters. While I agree that we should interpret 

the rules as we would a statute, employing the familiar and usual canons and interpretive aids, I 
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believe the Texas Supreme Court has given us what amounts to a “super” canon of construction 

that directs us to an interpretive off-ramp where, in the process of construction, we encounter 

ambiguity and an “arguable interpretation” that would support a merits disposition. Ryland, 355 

S.W.3d at 665. As I read Ryland, we are to read all of the rules in the manner that best permits 

merits resolution, a concept that no one would argue to exclude en banc consideration. 

The majority cites Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex. 1997), which also

applies the “arguable interpretation” canon of construction in its analysis. In Verburgt, the rules 

of appellate procedure provided a fifteen-day period in which the parties could file a motion to 

extend the deadline for filing a cost bond. The court held that “a motion for extension of time is 

implied when a party, acting [in] good faith, files a cost bond within the fifteen-day period in which 

Rule 41(a)(2) permits parties to file a motion to extend.” Id. at 615. The court further stated that 

“This Court has never wavered from the principle that appellate courts should not dismiss an 

appeal for a procedural defect whenever any arguable interpretation of the Rules of Appellate 

Procedure would preserve the appeal.” Id. at 616. Verburgt is important in my view only because 

it confirms the application of Ryland’s mandate to jurisdictional questions that might be subject to 

a stricter rule.

Thus, unless one can find that the phrase “when permitted” is sufficiently plain that it 

requires no resort to aids of construction, we are to prefer any plausible interpretation that would 

allow us to reach the merits. As discussed more fully below, I believe the “when permitted” 

language found in Rule 49.7 is ambiguous and that an “arguable interpretation” permits a merits 

disposition of the motion. 

The crux of the dissent’s argument is that the words “when permitted” in Rule 49.7 must 

have some meaning. I agree. Where the dissent and I appear to part company is whether the words 

“when permitted” are so clear that the typical practitioner or pro se litigant would likely read the 
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text of Rule 49.7 as the dissent does, without resort to other rules, commentary and interpretive 

aids. The dissent suggests that its resort outside the text is not necessary to answer that question. I 

disagree. There is nothing within the rule itself to give any insight as to when a motion for en banc 

reconsideration can be filed, other than the fifteen-day trigger from the date of the original panel 

opinion that appears in the first half of the sentence. As the dissent appears to concede, limiting 

“when permitted” to that original period makes no sense as it writes “or” out of the “when 

permitted” clause. Thus, anyone reading the rule with an eye toward understanding what the 

words “or when permitted” means, is compelled to embark on the same journey of discovery and 

interpretation undertaken by the dissent. 

The dissent’s journey begins with reading Rules 49.5 and 49.7,2 as well as the comments 

to the 2008 amendment to Rules 49.5 and 49.7, to conclude that motions for en banc 

reconsideration should be considered as motions for rehearing. I agree that the rules should be 

read as a whole and in light of each other, and that the commentary is useful in informing our 

understanding of the drafters’ intent. However, the fact that we are compelled to embark on this 

process seems to confirm to me that we are engaged in resolving an ambiguity in the text. Greater 

Houston P’ship v. Paxton, 468 S.W.3d 51, 58 (Tex. 2015).

The dissent finds the answer to the “when permitted” query in Rule 49.5’s conditioning on 

filing “further motions for rehearing” to apply to a motion for en banc reconsideration and thus to 

permit filing of an en banc motion only if the panel opinion has been altered per Rule 49.5. Nothing 

in either Rule 49.5 or 49.7 says so. Instead, it is the comments to Rules 49.5 and 49.7 that state: 

“Rule 49 is revised to treat a motion for en banc reconsideration as a motion for rehearing and to 

include procedures governing the filing of a motion for en banc reconsideration.” TEX. R. APP. P.

 

2 Rule 49.5 is titled “Further Motion for Rehearing” and Rule 49.7 is titled “En Banc Reconsideration”. 
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49.5 cmt., 49.7 cmt. (2008). What does that mean? The dissent maintains: “The comment directs 

us to treat motions for en banc reconsideration as motions for rehearing. Thus, en banc motions 

are ‘permitted’ after we deny a panel or en banc motion only if the conditions set forth in Rule 

49.5 are met.” Embracing the comment makes this a valid construction, as nothing in the text of 

either rule suggests that motions for “rehearing” and “reconsideration” are fungible for purposes 

of subjecting either to the special constraint on a successive motion of either type.

However, there is at least one other arguable interpretation of “when permitted.” While 

motions for en banc reconsideration and motions for rehearing are both subject to the “when 

permitted” limitation, that does not necessarily make the two motion types interchangeable and 

thus incapable of seriatim pursuit. For example, crediting the idea that both are subject to 

constraints explicitly referenced only in Rule 49.5, “when permitted” could refer to a case where 

the first motion filed simply seeks en banc reconsideration and still give full effect to Rule 49.5. 

In that instance, we would apply the procedures for a “further motion for rehearing” to a second 

motion for en banc reconsideration—as set forth in Rule 49.5—such that the party would not be 

“permitted” to file a second motion requesting en banc reconsideration unless the Court changed 

the original judgment or opinion following the first. The same would be true if an initial and 

subsequent motion requested only a panel rehearing, as the text of Rule 49.5 plainly directs. This 

is in contrast to the circumstance we have in the present case, where the first motion is for a panel 

rehearing and the second motion is for en banc reconsideration. In this circumstance, an arguable 

interpretation of the appellate rules is that the motions are not interchangeable, but both are 

“treated” as motions for rehearing and are thus subject to the prohibition on repetitive refiling 

without some intervening change to the opinion or judgment. 
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A motion for en banc reconsideration filed for the first time after the denial of a motion for 

panel rehearing would be considered an initial motion for en banc reconsideration—and not a 

“further motion for rehearing”—that would be permitted to be filed within fifteen days after the 

court of appeals’ 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, as those 

comments require us to treat a motion for en banc reconsideration as a motion for rehearing, but 

not to treat the motions as interchangeable. 

This interpretation is also logical. It makes sense for the litigants to first request a rehearing 

from the original panel before attempting to engage the court en banc with the limitations imposed 

on en banc reconsiderations. Of course parties may also file a combined request for panel 

rehearing and en banc reconsideration together, making a second request of either type subject to 

the “when permitted” bar. A contrary reading would seem to compel virtually every litigant to 

combine a motion for rehearing with a motion for en banc reconsideration, or file both motions 

separately, but at the same time, as any party wishing to preserve the ability ever to engage the 

court in full would have to be aware that few decisions on motions for panel rehearing can be 

drafted, filed and disposed of within the 15 days that would otherwise be available for an en banc 

reconsideration request.

The mere fact that there is no definition within the rules of the phrase “when permitted” 

and the fact that we have to look outside of Rule 49.7 to determine the meaning of “when 

permitted” seems to concede by force of logic that the meaning of the phrase is ambiguous. The 

question, to me, is then whether there is more than one interpretation of “when permitted.” As I 

concluded above, I believe there is. Moreover, applying the principle that appellate courts should 

not dismiss an appeal for a procedural defect whenever any arguable interpretation of the rules of 

appellate procedure would preserve the appeal, I conclude this arguable interpretation of the 
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appellate rules preserves the appeal, allowing us to reach the motion’s merits. See Ryland, 355 

S.W.3d at 665; Verburgt, 959 S.W.2d at 616–17.

Pedersen, III, J. joins this concurring opinion

170566CF.P05

/David J. Schenck/

DAVID J. SCHENCK

JUSTICE