                                                                                                                  ACCEPTED
                                                                                                              14-13-00434-CV
                                                                                              FOURTEENTH COURT OF APPEALS
                                                                                                           HOUSTON, TEXAS


                     G REER , H ERZ & A DAMS , L.L.P.
                                                                                                          6/5/2015 3:44:43 PM
                                                                                                        CHRISTOPHER PRINE
                                                                                                                       CLERK

                     A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS

                                          ATTORNEYS AT LAW
                                            www.greerherz.com
                                                                                         FILED IN
ANGIE OLALDE                                                               2525
                                                                                  14th COURT       OF APPEALS
                                                                                  SOUTH SHORE BLVD., SUITE 203
                                                                                     HOUSTON, TEXAS
                                                                                     LEAGUE CITY, TEXAS 77573
                                                                                   6/5/2015 3:44:43  ( 4 0 9PM
                                                                                                            ) 797-3262
                                                                                          ( 8 6 6 ) 4 2 2A.
                                                                                  CHRISTOPHER             - 4PRINE
                                                                                                             406 (FAX)
                                                                                         a o Clerk
                                                                                             lalde@greerherz.com


                                               June 5, 2015

   Christopher A. Prine, Clerk
   Fourteenth Court of Appeals
   301 Fannin, Suite 245
   Houston, Texas 77002

          Re:      Galveston Central Appraisal District v. Valero Refining – Texas L.P.
                   No. 14-13-00434-CV

   Dear Mr. Prine:

          You have asked, in a letter dated June 1, 2015, whether the motion for en banc
   reconsideration filed by Valero Refining – Texas, L.P. (“Valero”) is “permitted” under Texas
   Rule of Appellate Procedure 49.7.

          Rule 49.5 sets out when a motion for rehearing, including a motion for en banc rehearing,
   is “permitted.” As explained in more detail below, because the Court summarily denied Valero’s
   motion for rehearing without altering its judgment or issuing a new opinion, Valero’s motion for
   en banc rehearing is not permitted.

                                              Background

         The Court issued its Opinion on March 31, 2015, and Valero filed a motion for rehearing
   on May 7, 2015, after receiving two extensions. The Court denied Valero’s motion for rehearing
   on May 21, 2015. On May 26, 2015, Valero filed its motion for en banc reconsideration.

                                               TRAP 49.7

           Rule 49.7 allows a party to file a motion for en banc reconsideration within 15 days after
   the Court’s judgment or, “when permitted, within 15 days” after the Court’s “denial of the
   party’s last timely filed motion for rehearing or en banc reconsideration.” TEX. R. APP. P. 49.7.
   The Rule’s “when permitted” language applies only to a “further” motion, whether that motion is
   for rehearing or en banc reconsideration.



                GALVEST ON                    BAY AREA HOUST ON                     HOUSTON
        ONE MOODY PLAZA, 18TH FLOOR    2525 SOUTH SHORE BLVD., SUITE 203      700 MILAM, SUITE 1300
          GALVESTON, TEXAS 77550           LEAGUE CITY, TEXAS 77573           HOUSTON, TEXAS 77002
               (409) 797-3200                    (281) 480-5278                   (713) 655-1571
                                                                             (BY APPOINTMENT ONLY)
         Re:      Galveston Central Appraisal District v. Valero Refining – Texas, L.P.
                  No. 14-13-00434-CV


       Rule 49 was amended in 2008 “to treat a motion for en banc reconsideration as a motion
for rehearing and to include procedures governing the filing of a motion for en banc
reconsideration.” TEX. R. APP. P. 49.7 cmt. to 2008 change. The comments to the Rule’s 2008
amendment explain that the Rule’s use of the “when permitted” language refers to Rule 49.5’s
requirements. Under rule 49.5, a further motion for rehearing or en banc rehearing is permitted
“within 15 days of the court’s action if the court: (a) modifies its judgment; (b) vacates its
judgment and renders a new judgment; or (c) issues a different opinion.” TEX. R. APP. P. 49.5.1

         While “when permitted” has caused some confusion,2 it is clear that the phrase was
purposefully included as a condition to filing further motions for rehearing. Such motions are not
permitted unless the Court alters its judgment or issues a different opinion, neither of which
occurred in this case. TEX. R. APP. P. 49.5. To ignore the “when permitted” language would
mean a party may file a motion for en banc rehearing within 15 days after the Court denies the
last timely filed motion for rehearing, as a matter of right. While that is what Valero did in this
case, it is not what the Rule allows.3

         Valero’s “further” motion for en banc rehearing was filed after the Court denied Valero’s
initial motion for rehearing. It is therefore not permitted under Rule 49 because the Court did not
modify or vacate its judgment, or issue a different opinion. See Mapco, Inc. v. Forrest, 795
S.W.2d 700, 702 (Tex. 1990) (per curiam) (citing Honeycutt v. Doss, 410 S.W.2d 772, 773 (Tex.
1966)) (“A second motion for rehearing not authorized by the rules is a nullity even if the court
of appeals rules on it.”); El Paso Refining, Inc. v. Scurlock Permian Corp., 77 S.W.3d 374, 377
(Tex. App.—El Paso 2002, pet. denied) (op. on reh.) (second motion for rehearing is a nullity
since Rule 49.5 did not authorize further motion for rehearing).

                                                                Sincerely,



                                                                Angie Olalde

1
  If an opinion is reissued but is not substantially different, it appears the rules would allow a further motion for
rehearing, but the comments to Rule 49.7 appear to discourage counsel from filing such motions. TEX. R. APP. P.
49.7 cmt. to 2008 change (“Issuance of a new opinion that is not substantially different should not occasion a further
motion for rehearing, but a motion’s lack of merit does not affect appellate deadlines.”).
2
  See Richard B. Phillips, Jr. & Meghan Nylin, The Technical Side of Appellate Advocacy, State Bar of Texas Civil
Appellate Practice 101 (Sept. 3, 2014) (discussing confusion and advising that “the safest course is to file the motion
for en banc reconsideration at the same time as the motion for panel rehearing or to skip panel rehearing and file
only a motion for en banc reconsideration. Any other course risks a finding that the motion for en banc
reconsideration is too late.”).
3
 In 2006, the Texas Supreme Court held that en banc reconsideration may be requested at any time while a court of
appeals retains plenary power. City of San Antonio v. Hartman, 201 S.W.3d 667, 671 (Tex. 2006). The 2008
amendments changed this, and now treat a motion for en banc reconsideration as a motion for rehearing. TEX. R.
APP. P. 49.7 cmt to 2008 change.
               GALVEST ON                         BAY AREA HOUST ON                           HOUSTON
       ONE MOODY PLAZA, 18TH FLOOR         2525 SOUTH SHORE BLVD., SUITE 203            700 MILAM, SUITE 1300
         GALVESTON, TEXAS 77550                LEAGUE CITY, TEXAS 77573                 HOUSTON, TEXAS 77002
              (409) 797-3200                         (281) 480-5278                         (713) 655-1571
                                                                                       (BY APPOINTMENT ONLY)
       Re:       Galveston Central Appraisal District v. Valero Refining – Texas, L.P.
                 No. 14-13-00434-CV



cc:    rsimpson@yettercoleman.com
       Reagan W. Simpson
       cward@yettercoleman.com
       Christian Ward
       Yetter Coleman LLP
       909 Fannin Street, Suite 3600
       Houston, Texas 77010

       david.hugin@property-tax.com
       David Hugin
       Popp Gray & Hutcheson, LLP
       1301 South Mopac, Suite 430
       Austin, Texas 78746




              GALVEST ON                    BAY AREA HOUST ON                   HOUSTON
      ONE MOODY PLAZA, 18TH FLOOR    2525 SOUTH SHORE BLVD., SUITE 203    700 MILAM, SUITE 1300
        GALVESTON, TEXAS 77550           LEAGUE CITY, TEXAS 77573         HOUSTON, TEXAS 77002
             (409) 797-3200                    (281) 480-5278                 (713) 655-1571
                                                                         (BY APPOINTMENT ONLY)
