GALVESTON ONE MOODY PLAZA, 18 T H FLOOR

GALVESTON, TEXAS 77550 (409) 797-3200 BAY AREA HOUSTON 2525 SOUTH SHORE BLVD., SUITE 203 LEAGUE CITY, TEXAS 77573 (281) 480-5278 HOUSTON 700 MILAM, SUITE 1300 HOUSTON, TEXAS 77002 (713) 655-1571 (BY APPOINTMENT ONLY) June 5, 2015

Christopher A. Prine, Clerk Fourteenth Court of Appeals 301 Fannin, Suite 245 Houston, Texas 77002

Re: Galveston Central Appraisal District v. Valero Refining – Texas L.P.
No. 14-13-00434-CV

Dear Mr. Prine:

You have asked, in a letter dated J une 1, 2015, whether the motion for en banc reconsideration filed by Valero Refining – Texa s, L.P. (“Valero”) is “permitted” under Texas Rule of Appellate Procedure 49.7.

Rule 49.5 sets out when a motion for rehearing, including a motion fo r en banc rehearing, is “permitted.” As explained in more detail below, because the Court summarily denied Valero’s motion for rehearing without altering its judgmen t or issuing a new opinion, Valero’s motion for en banc rehearing is not permitted.

Background

The Court issued its Opinion on March 31, 2015, and Valero filed a motion for rehearing on May 7, 2015, after receiving two extensions. The Court denied Valero’s motion for rehearing on May 21, 2015. On May 26, 2015, Valero filed its motion for en banc reconsideration.

TRAP 49.7

Rule 49.7 allows a party to file a motion for en banc reconsideration within 15 days after the Court’s judgment or, “when permitted, within 15 days” after the Court’s “denial of the party’s last timely filed motion for reh earing or en banc reconsideration.” T EX

. R. A PP

. P. 49.7. The Rule’s “when permitted” langu age applies only to a “further” motion, whether that motion is for rehearing or en ba nc reconsideration. 

# G REER 

# , H ERZ 

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A L IMITED L IABILITY P ARTNERSHIP I NCLUDING P ROFESSIONAL C ORPORATIONS

ANGIE OLALDE ATTORNEYS AT LAW
www.greerherz.com

2525 SOUTH SHORE BLVD., SUITE 203
LEAGUE CITY, TEXAS 77573
(409) 797-3262
(866) 422-4406 (FAX) aolalde@greerherz.com ACCEPTED 14-13-00434-CV FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS 6/5/2015 3:44:43 PM CHRISTOPHER PRINE

CLERKRe: Galveston Central Appraisal District v. Valero Refining – Texas, L.P.
No. 14-13-00434-CV

GALVESTON ONE MOODY PLAZA, 18 T H FLOOR

GALVESTON, TEXAS 77550 (409) 797-3200 BAY AREA HOUSTON 2525 SOUTH SHORE BLVD., SUITE 203 LEAGUE CITY, TEXAS 77573 (281) 480-5278 HOUSTON 700 MILAM, SUITE 1300 HOUSTON, TEXAS 77002 (713) 655-1571 (BY APPOINTMENT ONLY) Rule 49 was amended in 2008 “to treat a motion for en banc reconsideration as a motion for rehearing and to include procedures gov erning the filing of a motion for en banc
reconsideration.” T EX

. R. A PP

. P. 49.7 cmt. to 2008 change. The comments to the Rule’s 2008 amendment explain that the Rule ’s use of the “when permitted” language refers to Rule 49.5’s requirements. Under rule 49.5, a further motion for rehearing or en banc rehearing is permitted “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) issues a different opinion.” T EX

. R. A PP

. P. 49.5. 1

While “when permitted” has caused some confusion, 2 it is clear that the phrase was purposefully included as a condition to filing further motions for rehearing. Such motions are not permitted unless the Court alters its judgment or issues a different opinion, neither of which
occurred in this case. T EX

. R. A PP

. P. 49.5. To ignore the “when permitted” language would mean a party may file a motion for en banc reh earing within 15 days after the Court denies the last timely filed motion for rehearing, as a matter of right. While that is what Valero did in this case, it is not what the Rule allows. 3

Valero’s “further” motion for en banc reheari ng was filed after the C ourt denied Valero’s initial motion for rehearing. It is therefore not permitted under Rule 49 because the Court did not modify or vacate its judgment, or issue a different opinion. See Mapco, Inc. v. Forrest , 795 S.W.2d 700, 702 (Tex. 1990) (per curiam) (citing Honeycutt v. Doss , 410 S.W.2d 772, 773 (Tex. 1966)) (“A second motion for rehearing not authorized by the rules is a nullity even if the court of appeals rules on it.”); El Paso Refining, Inc. v. Scurlock Permian Corp. , 77 S.W.3d 374, 377 (Tex. App.—El Paso 2002, pet. denied) (op. on re h.) (second motion for rehearing is a nullity since Rule 49.5 did not authorize further motion for rehearing).

Sincerely,

Angie Olalde

1 If an opinion is reissued but is not substantially diffe rent, it appears the rules would allow a further motion for rehearing, but the comments to Rule 49.7 appear to discourage counsel from filing such motions. T EX

. R. A PP

. P. 49.7 cmt. to 2008 change (“Issuance of a new opinion that is not substantially different should not occasion a further motion for rehearing, but a motion’s lack of merit does not affect appellate deadlines.”).

2 See Richard B. Phillips, Jr. & Meghan Nylin, The Technical Side of Appellate Advocacy , State Bar of Texas Civil Appellate Practice 101 (Sept. 3, 2014) (discussing confusion and advising that “the safest course is to file the motion for en banc reconsideration at the same time as the motion for panel rehearing or to skip panel rehearing and file only a motion for en banc reconsideration. Any other course risks a finding that the motion for en banc reconsideration is too late.”).

3 In 2006, the Texas Supreme Court held that en banc reconsideration may be requested at any time while a court of appeals retains plenary power. City of San Antonio v. Hartman , 201 S.W.3d 667, 671 (Tex. 2006). The 2008 amendments changed this, and now treat a motion for en banc reconsideration as a motion for rehearing. T EX

. R.
A PP

. P. 49.7 cmt to 2008 change.Re: Galveston Central Appraisal District v. Valero Refining – Texas, L.P.
No. 14-13-00434-CV

GALVESTON ONE MOODY PLAZA, 18 T H FLOOR

GALVESTON, TEXAS 77550 (409) 797-3200 BAY AREA HOUSTON 2525 SOUTH SHORE BLVD., SUITE 203 LEAGUE CITY, TEXAS 77573 (281) 480-5278 HOUSTON 700 MILAM, SUITE 1300 HOUSTON, TEXAS 77002 (713) 655-1571 (BY APPOINTMENT ONLY) cc: rsimpson@yettercoleman.com Reagan W. Simpson cward@yettercoleman.com
Christian Ward
Yetter Coleman LLP 909 Fannin Street, Suite 3600 Houston, Texas 77010

david.hugin@property-tax.com David Hugin Popp Gray & Hutcheson, LLP 1301 South Mopac, Suite 430 Austin, Texas 78746