Winstead PC v. Dewey M. Moore, Jr.

Concur; Opinion Filed August 20, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00050-CV
WINSTEAD PC, Appellant
V.
DEWEY M. MOORE, JR., Appellee
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-15858
CONCURRING OPINION TO DENIAL OF EN BANC
CONSIDERATION
Opinion by Justice Schenck
I concur in the Court’s decision to deny en banc consideration of this case. I
write separately not to address the merits but to address the procedures surrounding
this case. Specifically, and once again, I am compelled to write because the delay
in the parties’ hearing from the Court and of the attempted change in the result
between the parties at the panel reflects knowing and persistent departure from the
governing rules and gives rise to a palpable due process problem.
The panel opinion was prepared some months ago. As I have detailed
elsewhere,1 the rules of appellate procedure require cases to be assigned to panels
for decision and judgment to be handed down “promptly after submission,” except
in those extraordinarily rare circumstances where the Court has determined to
convene for en banc consideration at the outset. See TEX. R. APP. P. 41.1,
43.1.2 However, despite rule 41.1 and despite this Court’s internal operating
procedures,3 several justices who were not on the panel recorded votes to delay
release of the opinion to the parties as the opinion circulated to the full Court in late
March. As no immediate timing urgency appeared to present itself and the issue of
whether any such vote could ever be appropriate was already a vigorous point of
controversy in another pending en banc proceeding, the panel majority conferred
and elected to hold the panel opinion in order to avoid further inflaming the
procedural controversy and in recognition of the non-panel members’ two-week
study votes.
1
See Steward Health v. Saidara, No. 05-19-00274-CV, 2021 WL ______ (Tex. App.—Dallas Aug.
__, 2021, no pet. h.) (Schenck, J., concurring).
2
Where a case is assigned to the panel for decision, the Court “must render a judgment in accordance
with the panel’s opinion,” id., and the opinion should be made known to the parties and be available to the
public. TEX. R. APP. P. 47.3. The supreme court affirmed the right of any nonpanel justice to write a dissent
from the full court’s decision not to consider the case en banc—and the obligation of the appellate court to
release that dissenting opinion—but made no suggestion contrary to the plain language of rule 41.1 that a
single justice or justices of the Court could belay release of the panel opinion to the parties or the public.
See O'Connor v. First Court of Appeals, 837 S.W.2d 94, 96 (Tex. 1992).
3
No rule (or internal operating procedure of this Court) could provide otherwise under the plain
language of rule 41.1’s mandate that “except as otherwise provided in these rules (i.e., the appellate rules
themselves), the “court must render a judgment in accordance with the panel opinion.” See also TEX. R.
APP. P. 1.2 (permitting local rules only where consistent with rules of appellate procedure and pre-approved
by supreme court).
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What the panel members did not know, and what one of the delaying non-
panel justices did not share, was that he was separately authoring and would, on
April 5, 2021, release without prior circulation to the full Court or this panel, a
memorandum opinion in another case, involving the same statute but not the same
legal arguments. The opinion in the other case was released with dicta coinciding
with the issues actually raised in this case and so conspicuous in its presence as to
cause neutral observers of the Court to comment on its presence.4 As civil
memorandum opinions are controlling precedent, TEX. R. APP. P. 47.7(b), the author
of that opinion (one of the justices interceding to delay release of the opinion in this
case) then asserted that the result between the parties in this case should be changed
in accordance with his later unpublished decision as ostensibly a “prior” panel
holding.
To be sure, every member of the Court has the right to request reconsideration
en banc of any panel decision and to write any opinion he or she deems appropriate
in connection with that process. TEX. R. APP. P. 49. However, nothing in the Texas
Rules of Appellate Procedure—or, for that matter, this Court’s internal operating
procedures regarding civil cases—purports to authorize a justice outside the panel
to delay the release of a panel decision pending his assent and efforts to secure
reconsideration, much less to create the very circumstances purporting to require the
4
See 600Commerce.com, Publicity Agent?, April 20, 2021.
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reconsideration and a resulting change in outcome between the litigants in that other
case.
Departing from the rules and our internal procedures deprives the litigants of
their right to a decision and judgment in accordance with them, and hence, literally
due process.5 Much worse, however, than the delay that such a process entails,6 is
the obvious constitutional concerns it creates, particularly where the delay can be
seen as an effort to force a change in the result of the panel on which the Justice was
not assigned. Such efforts to obstruct the precedential effect of a panel decision,
regardless of whether the Court as a whole would even agree to convene en banc,
much less agree to the new result, may also be seen as an attempt to benefit a
subsequent litigant or litigants, whether intended or not. If the votes for a change in
the Court’s precedent exist among the en banc court, then its decision will eventually
provide and so control as between the litigants before us and in the future.
Withholding release of the panel opinion in the interim deprives the parties of
their right to a timely decision (despite TEX. R. APP. P. 12.6, 47.3) in all and
especially accelerated appeals such as this and creates more ominous prospects of
potentially manipulating the result at the panel despite the lack of support from a
5
As I have detailed elsewhere, the parties are entitled to be heard in accordance with the law, including
the rules of appellate procedure and our internal operating procedures as authorized by law. See In re Yates,
960 S.W.2d 652 (Tex. 1997); Steward Health Saidara, 2021 WL ______ (Schenck, J., concurring).
6
This is an accelerated appeal. The notice of appeal was filed January 9, 2020. While this case suffers
from a less extensive delay and fewer obstructive irregularities than those involved in Steward Health, both
give rise to the appearance that the results between parties are not the subject of impartial application of the
rule of law.
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majority of the Court. Moreover, delaying release of the panel opinion deprives the
parties, our constituents, and the public of knowing what the correct rule of law is
going forward. See TEX. R. APP. P. 47.3.
This case now presents a question that should never have to be asked: whether
a decided, circulated, and unreleased panel decision is not a prior panel precedent
under the rule of orderliness. See MobileVision Imaging Servs., L.L.C. v. LifeCare
Hosps. of N. Tex., L.P., 260 S.W.3d 561, 566 (Tex. App.—Dallas 2008, no pet.).
While the answer will presumably have to await the next case to confront that
question, I will note a negative answer would strain the notion of what a “prior”
decision might mean and would incentivize mischief. The more obvious problem is
why (and especially how) such a question would ever arise in a tribunal that is
impartial as between the contestants and the subject matter. See Caperton v. A.T.
Massey Coal, 556 U.S. 868 (2009); Rymer v. Lewis, 206 S.W.3d 732, 736 (Tex.
App.—Dallas 2006, no pet.). As Texas judges are subject to a self-directed,
mandatory obligation not even to sit in cases where they cannot resist actions
favoring a particular outcome relative to either the parties or the subject matter, one
would think the issue would not arise. TEX. R. CIV. P. 18b(2). That this issue arises
in this case after and, indeed, in the midst of another en banc controversy
surrounding similar delay and panel obstruction is disheartening. While the Court’s
majority declined to join in this particular effort to reverse the outcome of the panel,
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we are still left with the question of whether the interceding, memorandum opinion
dicta will be said to speak for the Court despite the circumstances.
My writing here is not a matter of preference or even choice. As detailed
elsewhere, the Court has confronted, and continues to confront, persistent challenges
in its processes that permeate the results of its proceedings here and in other cases,
requiring appropriate action. Changes to our governing procedures are overdue, as
is the need to take appropriate action where we deviate from those rules more
generally. These actions and changes are necessary to uphold and enforce the due
process rights of every party appearing before us, “so that no doubts or suspicions
exist as to the fairness or the integrity of the court.” See Rymer, 206 S.W.3d at 736.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
200050CF.P05
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