DocketNumber： 14-08-00489-CV
Filed Date： 8/5/2010
Status： Precedential
Modified Date： 9/23/2015
Opinion filed April 1, 2010, Withdrawn, Appeal Dismissed and En Banc Majority Opinion and Concurring and Dissenting Opinions filed August 5, 2010.
In The
Fourteenth Court of Appeals
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NO. 14-08-00489-CV
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WESTERNGECO RESOURCES INC., Appellant
V.
DAROLD BURCH, Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2006-74396
CONCURRING AND DISSENTING OPINION
I concur in the en banc court’s decision to vacate this court’s judgment and to dismiss the appeal as moot in light of the parties’ settlement agreement, but I disagree with both the decision to grant en banc review and the decision to withdraw the panel opinion.[1]
En banc review is not favored and should not be ordered unless necessary to secure or maintain uniformity of this court’s decisions or unless extraordinary circumstances require en banc consideration. Tex. R. App. P. 41.2(c). The panel opinion does not conflict with any opinion from this court; thus, en banc consideration of the motion to withdraw is not necessary to secure or maintain uniformity of this court’s decisions. Nor do extraordinary circumstances require en banc consideration of the motion to withdraw. Therefore, this court should not grant en banc review.
More importantly, for the reasons stated in Justice Boyce’s concurring and dissenting opinion, the en banc court should not order the panel opinion withdrawn.
Because the en banc court makes the wrong choice at both junctures—first by granting en banc consideration of the motion to withdraw and then by ordering withdrawal of the panel opinion—I join neither decision and respectfully dissent from both.
/s/ Kem Thompson Frost
Justice
En Banc Majority and Concurring and Dissenting Opinions filed.
En Banc court consists of Chief Justice Hedges and Justices Yates, Anderson, Frost, Seymore, Brown, Boyce, Sullivan, and Christopher. (Boyce, J., joins this concurring and dissenting opinion).
(Boyce, J., concurring and dissenting) (Hedges, C.J., Anderson, J., and Frost, J. join).
[1] Following the issuance of a unanimous panel opinion on April 1, 2010, the party that did not prevail filed an unopposed motion to withdraw the panel opinion. After the panel voted unanimously to deny this motion, a justice of this court requested an en banc vote, and a majority of this court’s members voted to consider the motion en banc. See Tex. R. App. P. 41.2(c). A majority of the en banc court then voted to grant the motion and to order the panel opinion withdrawn.