O'Connor v. First Court of Appeals, No. D-1571

• Court: Supreme Court of Texas
• Writing for the Court: MAUZY; In this original proceeding; Concurring opinion by PHILLIPS; PHILLIPS
• Citation: 837 S.W.2d 94
• Parties: Michol O'CONNOR, Justice, First Court of Appeals, Relator, v. FIRST COURT OF APPEALS, Respondent.
• Decision Date: 16 September 1992
• Docket Number: No. D-1571

Page 94

837 S.W.2d 94 Michol O'CONNOR, Justice, First Court of Appeals, Relator,
v.
FIRST COURT OF APPEALS, Respondent. No. D-1571. Supeme Court of Texas. Sept. 16, 1992.

Page 95

Hon. Michol O'Connor, pro se.

Steven A. Gibbins, Jay L. Winckler, Austin, John D. Ellis, Jr., Katherine Lynn Levy, Houston, for respondent.

OPINION

MAUZY, Justice.

In this original proceeding, Justice Michol O'Connor of the First Court of Appeals seeks a writ of mandamus directing that court to instruct its clerk to file O'Connor's dissent from the denial of a motion to hear an appeal en banc. Richard Fought, the appellant in the underlying suit, seeks the same relief. We conditionally grant the writ of mandamus.

In the underlying case, Richard Fought sued Dr. David Solce for medical malpractice. The trial court granted summary judgment for Dr. Solce. Fought appealed to the First Court of Appeals, where the case was submitted to a panel consisting of Justices Jon N. Hughes, Sam Bass and D. Camille Dunn. In accordance with the court's customary practice, a proposed opinion was eventually circulated to all members of the court for comments. Justice O'Connor, exercising her prerogative under Rule 79(e) of the Texas Rules of Appellate Procedure, ¹ made a written motion to submit the case for en banc hearing; but the motion failed to receive a majority vote. When the opinion in Fought v. Solce was issued, ² O'Connor informed the court that she planned to file a dissent from the order denying en banc consideration. A majority of the full court then voted to deny O'Connor leave to file the dissent, and accordingly instructed its clerk by written order not to file the dissent. When O'Connor presented her dissent for filing, it was refused.

O'Connor argues that a court of appeals has a duty to allow a nonpanel justice to file a dissent from the court's denial of a motion for en banc consideration. We agree.

Rule 90(e) of the Texas Rules of Appellate Procedure provides in part that "[a]ny justice may file an opinion concurring in or dissenting from the decision of the court of appeals." The First Court of Appeals construes this provision to mean that any justice on the panel deciding the case may file a dissenting opinion; but neither policy

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nor precedent supports that interpretation of the rule.

The viability of the First Court's interpretation must be considered in light of Texas Rule of Appellate Procedure 79, which governs panel and en banc submission in the courts of appeals. The adoption of Rule 79 was made possible by the passage in 1978 of a constitutional amendment permitting courts of civil appeals to sit in sections. See Act of May 25, 1977, 65th Leg., R.S., 1977 Tex.Gen.Laws 3366 (proposing amendment to Tex. Const. art. V, § 6). That amendment was not intended to splinter the courts of appeals into new, distinct courts; it was intended "to authorize the increase in size of existing Courts of Civil Appeals to meet population demands rather than creating more new courts." HOUSE COMM. ON CONST. AMENDMENTS, BILL ANALYSIS, S.J.R. 45, 65th Leg., R.S. (1977). The enabling statute accordingly allowed courts of civil appeals to sit in panels of three or more, as in the federal circuit courts of appeals. Act of May 27, 1977, ch. 624, 65th Leg., R.S., 1977 Tex.Gen.Laws 1531. ³

The provisions of Rule 79 reflect the view that a court of appeals is a single, unitary body, even though it may sit in panels. Unless a court of appeals chooses to hear a case en banc, the decision of a panel constitutes the decision of the whole court. See Tex.R.App.P. 79(a). Thus, the rule provides for en banc review when necessary to maintain uniformity of the court's decisions. Tex.R.App.P. 79(e).

Because a court of appeals is an integral body, even when it sits in panels, we construe the words "any justice" in Rule 90(e) to signify any justice serving on the court of appeals. To read the rule more restrictively would divide the court into distinct subparts, effectively disenfranchising those members of the court who were not on the original panel deciding the case. See generally Textile Mills Sec. Corp. v. Commissioner of Internal Revenue, 314 U.S. 326, 333, 62 S.Ct. 272, 277, 86 L.Ed. 249 (1941).

A nonpanel member's dissent from denial of en banc review serves the same salutary purposes served by any other dissenting opinion: chiefly, promoting the uniformity and correctness of the court's decisions. Chief Justice Hughes of the United States Supreme Court once called the dissenting opinion

an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly convert the error into which the dissenting judge believes the court to have been betrayed.

CHARLES EVAN HUGHES, THE SUPREME COURT OF THE UNITED STATES 68 (1937). As with any other dissent, the...