Court of Appeals of Texas, Fifth District, Dallas
BROOKS-PHS HEIRS, LLC; BROOKS-PSC HEIRS, LLC; BROOKS-WTC HEIRS, LLC; ALASTAIR TRICKETT; PENELOPE TRICKETT; HEATHER ELIZABETH OLSEN; MARILYN HOLMES TULLOCH; NANCY LEE HALSTED WOODMANSEE; JUNE C. HAACK; MARILYN HALSTED; JOSEPH EDWIN HALSTED; THOMAS ARTHUR HALSTED; ROBERT BRUCE HALSTED; MARGARET H. REYNOLDS; MARY P. HALSTED; JANE DECOSKY; CAROL CANFIELD CLARKE-TERRILL, FORMERLY CAROL C. SWEARINGEN, AS TRUSTEE OF THE ROBERT G. SWEARINGEN REVOCABLE TRUST DECEMBER 19, 2001; MARCELLE BRANNEN; AND ROBERT G. MCLEOD, ALSO KNOWN AS BOB MCLEOD, Appellants
RICHARD HOWARD BOWERMAN, INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF THE ESTATE OF ROBERT BOWERMAN, DECEASED; STEVEN ROBERT BOWERMAN, INDIVIDUALLY; AND ESTHER MICHELE DAUGHERTY, INDIVIDUALLY, Appellees
Appeal from the 225th District Court Bexar County, Texas
Trial Court Cause No. 2013-CI-10924
OPINION CONCURRING IN THE DENIAL OF APPELLEES'
FURTHER MOTION FOR REHEARING AND MOTION FOR EN BANC
fortune, nothing in appellees' motion for rehearing and
motion for en banc reconsideration warrants its
granting. Accordingly, the Court denies both motions. I pause
to express a continuing concern occasioned by our posture in
Texas Supreme Court transferred this case from the San
Antonio Court of Appeals to this Court pursuant to section
73.001 of the government code, a procedure necessitated by
continued, but uneven growth of the state and the unique
proliferation of intermediate courts of appeals over the last
century. Tex. Gov't Code Ann. § 73.001. No other
state has spread its appellate judiciary as widely or as
thinly as Texas. As a result, the Legislature and the Texas
Supreme Court have been forced into a continuing application
of duct tape and sealing wax solutions like docket transfers
under Chapter 73. Beyond the attendant costs and frustrations
visited upon the parties, the resort to transfers as a
solution engenders other, more structural problems. I pause
here to note one such challenge produced by the request for
en banc reconsideration that could be serious in another
one intermediate court of appeals sits in the place of
another, it applies the precedent of the transferor court.
Tex.R.App.P. 41.3. Of course, we (or more directly I as the
author) have endeavored to do that here, applying San Antonio
precedent to arrive at the result we think that appellate
court would reach. The question of whether that application
is correct at this point is essentially out of reach of the
en banc review mechanism as it is described in rule 41.2, as
the panel has already applied what it sees as San Antonio
law; our remaining colleagues that constitute the en banc
court in Dallas could likewise only predict how San Antonio
would rule; and the San Antonio Court of Appeals has no seat
at the table. See id. 41.2 (decision by en banc
course, the en banc mechanism does not exist primarily to
process claims of routine error correction. Instead, its
principal function is to resolve inconsistencies in (or
lingering debates over) the governing intermediate appellate
decisional authority-but that's something that is
practically impossible in this posture as well. Had this case
touched upon any issue of developing importance within the
jurisprudence of the San Antonio Court of Appeals, the
opportunity to explore, develop, or resolve that question is
simply lost. We, of course, could function only as an
impotent echo chamber, as we are constrained from any
development of that authority at all. We are functioning, in
essence, as private arbitrators, nothing but poor players
issuing opinions full of sound and fury, signifying nothing
to anyone but the parties immediately before us. Indeed, our
holding here-be it by the panel or sitting en banc-will not
be binding in San Antonio or even here, except, perhaps, in
the unlikely event a future panel of this Court faces the
same issue in another case transferred from the same court.
See, e.g., In re Reardon, 514 S.W.3d 919,
922 (Tex. App.-Fort Worth 2017, no pet.) ("[N]either . .
. [R]ule 41.3 itself nor the comment that follows addresses
whether a transferee court may establish precedent
to bind the transferor court.").
or one of my colleagues, disagreed with the result in any
transferred matter or, worse, identified a pre-existing
conflict within the governing decisional authority, we could
not possibly do anything constructive, much less correct it.
At most, we could essentially light a signal fire to the
transferor court (of no benefit to the party suffering from
the potentially erroneous application of the governing rule)
or to the Texas Supreme Court, which, one expects, has better
things to do than to resolve conflicts in authority internal
to the transferor court.
course, the problems with our existing structure are hardly
new and are far broader than the sidelining of the en banc
reconsideration device. See, e.g., Miles v.
Ford, 914 S.W.2d 135, 137 (Tex. 1995) (discussing
intriguing problems created by overlapping geographic
jurisdiction and transfer among overlapping districts).
would hope that at some point the Legislature would rouse
itself to a more meaningful and complete solution.
Bridges, Osborne, and Carlyle, J.J. join this concurring
 Our 80 justices serve on 14 courts.
California has a much larger population and 105 intermediate
appellate judges serving on 6 courts. New York has four