Dissenting Opinion On=20
Denial of Motion for En Banc Rehearing filed May 10, =
2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-04-01031-CV
______________________
IN THE=20
INTEREST OF J.A.J.
On Appeal from the =
314th District Court
Harris County, Texas
Trial Court Cause =
No. 03-08998J
D I S S E N T I N G O P I N I O N ON D E N I A L O F M O T I =
O=20
N F O R
E N =20
B A N C R E H E A R I N G
En banc=20
review of this case is necessary to secure and maintain the =
uniformity of=20
this court=3Ds=20
decisions. See Tex R. App. p. 41.2. =
An=20
intermediate court of appeals is a unitary body, even if, as is =
true of=20
the Fourteenth Court of Appeals, the court normally sits in =
three-justice=20
panels that do not include all of the court=3Ds=20
justices. See O=3DConnor v.=20
First Court of Appeals, =
837=20
S.W.2d 94, 96 (Tex. 1992) (orig. =
proceeding). The=20
decision of any such three-member panel constitutes the decision =
of the=20
whole court of appeals. See id. If one panel of =
this=20
court reaches a holding that is contrary to the holding of a prior =
panel,=20
then this court has spoken inconsistently. See =
id. To=20
remedy this undesirable and problematic situation, the appellate =
rules=20
provide for en banc review to secure or maintain the uniformity of =
an=20
intermediate appellate court=3Ds=20
decisions. See id.
Texas Rule=20
of Appellate Procedure 41.2 governs the decision to grant a motion =
for=20
rehearing by the en banc court:
En banc=20
consideration of a case is not favored and should not be ordered =
unless=20
necessary to secure or maintain =
uniformity of the=20
court=3Ds=20
decisions or unless extraordinary circumstances require en banc=20
consideration.
Tex.=20
R. App. P. 41.2(c). =
The=20
Department of Family and Protective Services asserts in its motion =
for en=20
banc rehearing that en banc review is necessary in this case to =
secure or=20
maintain the uniformity of this court=3Ds=20
decisions because the panel=3Ds opinion=20
is contrary to other identified decisions in which this court has =
ruled=20
the opposite way on one of the issues in the case.
=20
In J. R. I, this =
court held=20
that the evidence at trial was legally insufficient to support =
termination=20
of the mother=3Ds parental=20
rights and, on this basis, reversed the trial court=3Ds=20
judgment. See In re J. R., 171 S.W.3d 558, 579 =
(Tex. =
App.CHouston=20
[14th Dist.] 2005, no pet.). Although this court reversed as =
to=20
termination of the mother=3Ds parental=20
rights, this court did not =
reverse the part=20
of the trial court=3Ds judgment=20
appointing the Department as sole managing conservator of the=20
mother=3Ds=20
children. See id. This court stated that it did =
not=20
reverse this conservatorship =
determination=20
because the mother had not challenged this part of the trial=20
court=3Ds judgment=20
on appeal. See id.
Slightly=20
more than a year later, this court issued the panel opinion in the =
case at=20
hand. See In re J. A. J., No. 14-04-01031-CV, 2006 WL =
2291175,=20
CS.W.3dC, (Tex.=20
App.CHouston=20
[14th Dist.] Aug. 10, 2006, no pet. =
h.). Coincidentally, this case involves an =
appeal=20
from the same district court as in J. R. I, and though the =
parent=20
is different, the attorneys =
representing=20
the appellant mother and the appellee =
Department=20
are also the same. See In re J. A. J., 2006 WL =
2291175, at=20
*1; In re J. R., 171 S.W.3d at 558. As in=20
J. R. I, this court determined that there was =
legally=20
insufficient evidence to support the termination of the =
mother=3Ds parental=20
rights. See In re J. A. J., 2006 WL 2291175, at *7; =
In re=20
J. R., 171 S.W.3d at 579. As =
in J.=20
R. I, the mother did not challenge on appeal the =
part of=20
the trial court=3Ds judgment=20
appointing the Department as sole managing conservator of the=20
mother=3Ds=20
children. See In re J. A. J., 2006 WL 2291175, at *1; =
In=20
re J. R., 171 S.W.3d at 579. However, despite this =
failure to=20
assign error as to the trial court=3Ds conservatorship determination, in J. A. =
J.,=20
this court reversed the part of the trial court=3Ds judgment=20
appointing the Department as sole managing conservator of the=20
mother=3Ds=20
child. See In re J. A. J., 2006 WL 2291175, at =
*8. =20
In a context indistinguishable from that in =
J.=20
R. I, this court has reached a holding that is =
the exact=20
opposite of this court=3Ds holding=20
in J. R. I. See In re J. A. J., 2006 WL =
2291175, at=20
*8; In re J. R., 171 S.W.3d at 579.
In the=20
same context, the Second Court of Appeals has reached the same =
holding as=20
this court=3Ds holding=20
in J. R. I. See In re E. A. W. S., No.=20
2-06-00031-CV, 2006 WL 3525367, at *18 & n.55 (Tex. =
App.CFort=20
Worth Dec. 7, 2006, pet. denied) (mem. =
op.). With one justice dissenting, the First Court of =
Appeals=20
recently reached the same holding as this court=3Ds holding=20
in J. A. J. See Colbert v. Dep=3Dt of=20
Family & Prot. Servs., Nos.=20
01-04-01232-CV, 01-04-01233-CV, 01-05-00124-CV, 01-05-00126-CV,=20
01-05-00127-CV, 2006 WL 3752371, at *15B16,=20
C =
S.W.3d=20
C,=20
C =
(Tex.=20
App.CHouston=20
[1st Dist.] Dec. 21, 2006, no pet. h.); =
Colbert, 2006 WL 3752371, at *16B17=20
(Jennings,=20
J., concurring and dissenting). A motion for en banc consideration =
is=20
currently pending before the First Court of Appeals in that case.=20
Furthermore, in an appeal following remand in J. R. I, this =
court=20
has recently restated its agreement with its holding in J. R. I and noted its =
disagreement=20
with the First Court of Appeals=3Ds holding=20
in Colbert. See In re J. R., No. 14-05-01216-CV, 2007 =
WL=20
1054050, at *2, n.4, C =
S.W.3d=20
C,=20
C =
(Tex.=20
App.CHouston=20
[14th Dist.] Apr. 10, 2007, no pet. =
h.). Clearly, the issue is a recurring =
one. =20
Moreover, the issue concerns a matter of the utmost importance=20
C =
the conservatorship of children.
One might=20
disagree with this court=3Ds holding=20
in J. R. I or one might disagree with this =
court=3Ds holding=20
in J. A. J., but it is difficult to disagree with the =
conclusion=20
that there is a conflict between these two holdings and therefore =
a lack=20
of uniformity in this court=3Ds=20
decisions.
Though en=20
banc consideration of a case is not favored, it is appropriate and =
necessary in this case not only to resolve the undeniable conflict =
so that=20
this court may speak with one voice on this important issue, but =
also=20
because the issue is likely to recur frequently. The=20
court=3Ds failure=20
to resolve the issue now will only prolong the confusion and=20
uncertainty.
For all of=20
these reasons, this court should =
grant en=20
banc review. Because it does not, I respectfully dissent =
from this=20
court=3Ds denial=20
of the Department=3Ds motion=20
for en banc rehearing.
/s/ Kem=20
Thompson Frost
Justice
Dissenting Opinion =
on Denial=20
of Motion for En Banc Rehearing filed May 10, 2007.
(Chief=20
Justice Hedges and Justices Yates, Anderson, Hudson, and Mirabal vote to deny the motion; Justices Fowler, =
Edelman,=20
Seymore, and Guzman join this dissenting opinion).
=20
Senior Justice Margaret G. Mirabal sitting by =
assignment.