Galveston Central Appraisal District v. Valero Refining - Texas L.P. ( 2015 )

ACCEPTED
14-13-00434-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
G REER , H ERZ & A DAMS , L.L.P.
6/5/2015 3:44:43 PM
CHRISTOPHER PRINE
CLERK
A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
ATTORNEYS AT LAW
www.greerherz.com
FILED IN
ANGIE OLALDE 2525
14th COURT OF APPEALS
SOUTH SHORE BLVD., SUITE 203
HOUSTON, TEXAS
LEAGUE CITY, TEXAS 77573
6/5/2015 3:44:43 ( 4 0 9PM
) 797-3262
( 8 6 6 ) 4 2 2A.
CHRISTOPHER - 4PRINE
406 (FAX)
a o Clerk
lalde@greerherz.com
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.
GALVEST ON BAY AREA HOUST ON HOUSTON
ONE MOODY PLAZA, 18TH FLOOR 2525 SOUTH SHORE BLVD., SUITE 203 700 MILAM, SUITE 1300
GALVESTON, TEXAS 77550 LEAGUE CITY, TEXAS 77573 HOUSTON, TEXAS 77002
(409) 797-3200 (281) 480-5278 (713) 655-1571
(BY APPOINTMENT ONLY)
Re: Galveston Central Appraisal District v. Valero Refining – Texas, L.P.
No. 14-13-00434-CV
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.
GALVEST ON BAY AREA HOUST ON HOUSTON
ONE MOODY PLAZA, 18TH FLOOR 2525 SOUTH SHORE BLVD., SUITE 203 700 MILAM, SUITE 1300
GALVESTON, TEXAS 77550 LEAGUE CITY, TEXAS 77573 HOUSTON, TEXAS 77002
(409) 797-3200 (281) 480-5278 (713) 655-1571
(BY APPOINTMENT ONLY)
Re: Galveston Central Appraisal District v. Valero Refining – Texas, L.P.
No. 14-13-00434-CV
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
GALVEST ON BAY AREA HOUST ON HOUSTON
ONE MOODY PLAZA, 18TH FLOOR 2525 SOUTH SHORE BLVD., SUITE 203 700 MILAM, SUITE 1300
GALVESTON, TEXAS 77550 LEAGUE CITY, TEXAS 77573 HOUSTON, TEXAS 77002
(409) 797-3200 (281) 480-5278 (713) 655-1571
(BY APPOINTMENT ONLY)