David Park v. Montgomery County, Texas--Appeal from 9th District Court of Montgomery County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00231-CV

David Park,

Appellant

v.

Montgomery County, Texas ,

Appellee

From the 9th District Court

Montgomery County, Texas

Trial Court No. 02-10-07222 CV

CONCURRING Opinion

Chief Justice Gray implies, without specifically saying, that our opinion is invalid because it was approved by only two justices, but he has opined that Appellate Rule 41.1(a) requires that all three justices of a three-justice court of appeals actually participate in the decision of a case submitted without argument.[1] See Tex. R. App. P. 41.1(a). Substantial authority refutes his interpretation.

First, it appears from the express wording of the Rule that it does not apply to three-justice courts.[2] It begins Unless a court of appeals with more than three justices . . . . Id.

Second, as I noted in an earlier case, requiring all three justices to participate in such a decision is not a reasonable interpretation of the Rule and is contrary to the Texas Constitution and the Texas Government Code. See Texas Parks & Wildlife Dept. v. E.E. Lowrey Realty, Ltd., No. 10-02-00317-CV, 2004 WL 2481000, at *1-2 (Tex. App. Waco Nov. 10, 2004, pet. filed) (Vance, J., concurring). Article V, section 6 of the Texas Constitution provides: The concurrence of a majority of the judges sitting in a section [panel] is necessary to decide a case. Tex. Const. art. V, 6. Section 22.222(c) of the Texas Government Code provides: A majority of a panel constitutes a quorum for the transaction of business, and the concurrence of a majority of a panel is necessary for a decision. Tex. Govt. Code Ann. 22.222(c) (Vernon 2004). Court-adopted rules cannot be inconsistent with the constitution. See Starnes v. Holloway, 779 S.W.2d 86, 96 (Tex. App. Dallas 1989, writ denied). "Of course, a statute controls over a procedural rule." In re Chu, 134 S.W.3d 459, 466 (Tex. App. Waco 2004, orig. proceeding).

Third, Chief Justice Gray s interpretation is contrary to a prior decision of the Texas Supreme Court. In Nalle v. City of Austin, 85 Tex. 520, 22 S.W. 668 (1893), the Supreme Court observed:

Hence, if it should be held that a full bench is necessary to make a quorum, the result would be, that in the event of the absence of one of the judges by reason of sickness or from any other cause, the business of the court would remain in suspense until the absent member should be present. Such a rule would be fraught with mischief, and would tend to obstruct the accomplishment of the very purpose for which the Courts of Civil Appeals were created.

Id. at 671. The Court proceeded, if two be a quorum, and two be qualified and able to agree, no additional judge is requisite to a decision of the case, although the third member of the court be recused. Id. And finally, [w]e conclude, therefore, that the disqualification of Judge Key did not make requisite the appointment of a special judge, and that the court composed of his two associates constituted a lawful tribunal for the trial and determination of the case. Id. at 672.

More recent precedent also rejects such an interpretation. See Hoyt v. Hoyt, 351 S.W.2d 111, 114 (Tex. Civ. App. Dallas 1961, writ dism d w.o.j.). After noting that Associate Justice Williams chose not to participate in the decision because he had been the trial judge (although not legally disqualified), the majority in Hoyt said that even the disqualification of one member does not prevent the other members from lawfully proceeding. Id. (citing Nalle). In Dickinson State Bank v. Ogden, a judgment was held valid when one member of a panel had been elected to the Supreme Court after the case was submitted on oral argument and the case was then decided by the remaining panel members. Dickinson State Bank v. Ogden, 624 S.W.2d 214, 222 (Tex. Civ. App. Houston [1st Dist.] 1981), rev d on other grounds, 662 S.W.2d 330 (Tex. 1984) (on rehearing).

Furthermore, such an interpretation creates an absurd result by giving one member of the court a virtual veto over any opinion in an unargued case with which that member does not agree. As long as the dissenting member is not disqualified or recused and remains on the panel, no opinion could issue.[3] The suggested interpretation of the Rule is fraught with mischief. Nalle, 22 S.W. at 671.

Because we can reasonably construe Rule 41.1(a) so that it does not conflict with the constitution or the statute, we should do so. See Collins v. Ison-Newsome, 73 S.W.3d 178, 184 (Tex. 2001) (Jefferson, J. concurring) ( When a procedural rule conflicts with a statute, the statute controls unless the rule repeals the statute under Texas Government Code section 22.004. ) (citing Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000)). A reasonable construction of the rule, if it even applies, is that two justices on a three-member court of appeals may decide a case submitted without argument when the third justice voluntarily elects not to participate in the decision.

Chief Justice Gray decided to not join (or not disagree with) the opinion issued in this case. He is not disqualified; he has not recused himself. Thus, he remains a member of the panel assigned to the case. The decision reflected by the Special Note is his alone. In deciding to not vote in this case, he has chosen to disregard his own interpretation of Rule 41.1(a) and to allow this case to be decided by two justices. What, then, is the real reason for not participating?

The answer appears to lie in his attack on the timing of the issuance of the opinion, saying he should have more time to review and vote on the result in the case. This is essentially the same complaint made in a Special Note filed in Krumnow v. Krumnow, an accelerated appeal that was submitted on oral argument. Krumnow v. Krumnow, No. 10-04-00143-CV, 2005 WL 2044854, at *7 (Tex. App. Waco Aug. 24, 2005, no pet. h.) (Gray, C.J., Special Note filed Aug. 31, 2005). It has become a pattern.[4]

Internal Administrative Rules govern both the administrative and adjudicative functions of this court. Under those Rules, a majority of the elected justices (Chief Justice Gray voting no ) has adopted rather detailed internal rules and deadlines for opinions, non-dispositive orders, and opinions on rehearing in civil and criminal cases and for opinions after the filing of a petition for discretionary review in criminal cases.[5] In a case like this, each reviewing (non-authoring) justice has fourteen days to join an opinion or indicate the intent to file a dissenting or concurring opinion. If the fourteen-day period passes without either having occurred, that reviewing justice is deemed to have approved the draft opinion. If the intent to dissent or concur is noted, an additional twenty-one days is allowed to draft an opinion.

The deadline rules were followed in this case. It thus appears that the strategy is to avoid the consequences of the court s deadlines for the approval of opinions by invoking Rule 41.1(a) in an attempt to gain a veto over the issuance of any opinion with which he does not agree.

BILL VANCE

Justice

Concurring opinion delivered and filed October 26, 2005

[1] A dissent to an order in Texas Parks and Wildlife v. E.E. Lowrey Realty, Ltd. says that an opinion issued by two justices is a direct violation of Rule of Appellate Procedure 44.1(a). Texas Parks & Wildlife Dept. v. E.E. Lowrey Realty, Ltd., No. 10-02-00317-CV, 2004 WL 2481000, *1 (Tex. App. Waco Nov. 3, 2004) (order) (Gray, C.J., dissenting) (not designated for publication).

[2] Because there are four other three-justice courts (Texarkana, El Paso, Tyler, and Eastland), this issue could arise in them as well.

[3] Appellate Rule 41.1(c) provides that, after argument, if for any reason a member of the panel cannot participate in deciding a case, the case may be decided by the two remaining justices. See Tex. R. App. P. 41.1(c). There appears to be no reason to allow two justices to decide an argued case but require all justices to participate in the decision in an unargued case.

[4] The same decision to not vote or participate is reflected in a Special Note filed in Pacific Employers Ins. Co. v. Mathison, No. 10-04-00314-CV, 2005 WL 2665454, at *3 (Tex. App. Waco Oct. 19, 2005) (C.J. Gray Special Note).

[5] According to an informal survey that we conducted, the Texas Supreme Court and approximately half of the fourteen courts of appeals have some kind of internal deadlines for the approval of opinions.