                                 COURT OF APPEALS FOR THE
                            FIRST DISTRICT OF TEXAS AT HOUSTON

                 OPINION ON ORDER ON GRANTING EN BANC RECONSIDERATION

Appellate case name:      S.H.R. v. Department of Family and Protective Services

Appellate case number:    01-10-00999-CV

Trial court case number: 0903028J

Trial court:              314th District Court of Harris County

On July 19, 2012 the Department of Family and Protective Services (“DFPS”) filed a motion for
en banc reconsideration (“motion for rehearing en banc”) contending that the Court erred in
holding the evidence to be factually insufficient.

DFPS on May 4, 2012 filed a motion for rehearing contending the Court erred in reversing the
complete final order of termination because appellant did not challenge on appeal DFPS’s
appointment as sole managing conservator. On June 14, 2012, the Court agreed with DFPS,
granted rehearing, and issued a supplemental opinion and a new judgment on rehearing.

On July 13, 2012, DFPS filed a motion to extend time to file a further motion for rehearing
(“unopposed motion for extension of time”) in which it explained: “The reason more time is
required is because the undersigned attorney was not in the country when the supplemental
opinion was issued in this case and the period following when a further motion for rehearing
would have needed to be filed.” The Court granted the extension of time to file the further
motion for rehearing on July 25, 2012, extending the time as requested to July 19, 2012. The
motion did not indicate that DFPS was also seeking an extension of time to file a motion for en
banc reconsideration.

The deadline to file a motion for en banc reconsideration was 15 days after rendition of the
Court’s judgment, i.e., June 29, 2012. TEX. R. APP. P. 49.7. The deadline to file a motion to
extend time to file a motion for en banc reconsideration was 15 days after the date for filing the
motion, i.e., July 16, 2012. TEX. R. APP. P. 49.8, 4.1(a).

Because DFPS filed its motion for en banc reconsideration three days after the last day to file a
motion to extend time to file an en banc motion, the motion for en banc reconsideration is
untimely and should be dismissed.
Texas Rule of Appellate Procedure 49.7 allows the Court to sua sponte order en banc
reconsideration without a (timely) motion while the Court has plenary power. I have no quarrel
with the Court sua sponte ordering en banc reconsideration—it has every right to do so if the
Court believes the case meets the standard of en banc consideration stated in Texas Rule of
Appellate Procedure 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. A vote to determine
       whether a case will be heard or reheard en banc need not be taken unless a justice
       of the court requests a vote. If a vote is requested and a majority of the court’s
       members vote to hear or rehear the case en banc, the en banc court will hear or
       rehear the case. Otherwise, a panel of the court will consider the case.

Because there is no timely filed motion for en banc reconsideration, the Court must sua sponte
order en banc reconsideration if it wishes to reconsider the panel’s decision. I therefore agree
that the Court has taken the proper procedural step to achieve its objective.




Judge’s signature: /s/ Jim Sharp_______
                   Acting individually


Date: August 10, 2012
