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 June 1, 2015, whether the motion for en banc 

reconsideration filed by Valero Refining – Texas, 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 for en banc rehearing, 

is “permitted.” As explained in more detail below, because the Court summarily denied Valero’s 

motion for rehearing without altering its judgment 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 rehearing or en banc reconsideration.” TEX. R. APP. P. 49.7. 

The Rule’s “when permitted” language applies only to a “further” motion, whether that motion is 

for rehearing or en banc reconsideration. 

GREER, HERZ & ADAMS, L.L.P. 

A LIMITED LIABILITY PARTNERSHIP 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

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 6/5/2015 3:44:43 PM CHRISTOPHER A. PRINE Clerk
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)

Rule 49 was amended in 2008 “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. 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.” TEX. R. APP. 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. TEX. R. APP. P. 49.5. To ignore the “when permitted” language would 

mean a party may file a motion for en banc rehearing 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 rehearing was filed after the Court 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 reh.) (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 different, 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. TEX. R. APP. 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. TEX. R.

APP. 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