As of today (10/1/2021), the recent changes to the Texas Rules of Appellate Procedure’s (TRAP) provisions governing en banc review are in effect. On September 13, 2021, the Supreme Court of Texas and Court of Criminal Appeals issued a final order amending various rules in the TRAP Rules pertaining to en banc review in the courts of appeals. This post highlights the most important changes that affect rehearing practice in Texas courts of appeals.
1. You can no longer wait until after a motion for rehearing is denied to file a motion for en banc review.
Before these amendments, courts had approved the practice of filing a motion for rehearing, waiting until it is denied, and then filing a motion for en banc reconsideration. See Yzaguirre v. Gonzalez, 989 S.W.2d 111, 113 (Tex. App.—San Antonio 1999, pet. denied) ("Litigants may therefore wait until the panel declines to revise its opinion and judgment before moving for en banc review. "). In theory, this rule allowed the panel the opportunity to address any errors before the en banc court was asked to review. But in practice, panels could (and often did) correct errors after an en banc motion was filed, on their own motion and without a party filing a motion for panel rehearing. Instead, because these post-decision motions affect appellate deadlines, the practice of successive motions for panel rehearing and en banc review in the same case caused significant delays to the finality of the appeal, and to the process of seeking review in a higher court.
One of the best practices is, as it always has been, to file both motions at the same time. Although the new rules do not require both motions to be filed simultaneously, the new rules require that both motions be filed at some point within 15 days after the court issues its opinion and judgment/order, unless an extension is granted.
This is a very important rule change to be aware of because, to extend time to file a petition for review and the plenary power of the court of appeals, the filing of the motion for rehearing or en banc review must be “timely.” So, if an attorney attempts successive motions for panel and then en banc rehearing, the latter motion may now be untimely and there's an increased risk of miscalculating further appellate deadlines.
As the comments to the amendments state, “Comment to 2021 change: Rule 49 is revised to clarify [that a] motion for en banc reconsideration must be filed by the deadline for filing an initial motion for rehearing under subdivision 49.1.”
2. A motion directed to a panel is a motion for “rehearing,” and a motion directed to the en banc court is a motion for en banc “reconsideration" (or “consideration” if the motion is filed before a panel has decided the case).
Most of the amendments to the various rules are stylistic to clarify appropriate terminolgy. The purpose of these stylistic changes is to clarify that panels "hear" and “rehear” while the en banc court “considers” or “reconsiders.” Thus, simply remember to title the respective motions “Motion for Rehearing” or "Motion for Panel Rehearing," and “Motion for En Banc Reconsideration.”
3. En banc motions should address the en banc standards in Rule 41.2(c).
The other significant change to en banc procedure is the addition of the language, “The [en banc] motion should address the standard for en banc consideration in Rule 41.2(c).” Under Rule 41.2(c), “En banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court's decisions or unless extraordinary circumstances require en banc consideration.”
Previously, when the TRAP rules addressed general requirements for panel motions and en banc motions, the requirement was that the motion state the “grounds” for rehearing. This reference was confusing, as applied to en banc motions, because en banc motions, like panel motions, generally argue that the panel's decision is incorrect. Thus, it was unclear whether, as to en banc motions, “grounds” also referred to Rule 41.2(c)’s standards or simply the same grounds that would appear in a motion for panel rehearing. This added language from the 2021 amendments clarifies that en banc motions should address the en banc standards.
However, the rule says “should” not “shall.” Thus, a court could always grant a motion that did not expressly argue the en banc standards. However, it is more likely that judges will vote to deny such motions outright given the intent of the 2021 amendments.
Because en banc motions should now address the en banc standards in Rule 41.2(c), please see my lengthy analysis about the meaning of the standards of “uniformity” and “extraordinary circumstances." See Michael J. Ritter, En Banc Review in Texas Courts of Appeals, 39 Rev. Litig. 377 (2020). My article also has additional guidance on drafting en banc motions. As always, if you have any questions, or need assistance with seeking rehearing in a Texas appellate court, please contact me.