Opinion Filed July 5, 2019




                                        S    In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-18-00356-CV

  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
                                V.
   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

                          On 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 RECONSIDERATION
                                  Opinion by Justice Schenck
       By good 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 this case.
           The 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.1 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 case.

           When 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 court).

           Of 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



     1
       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 intermediate appellate courts.

                                                                     –2–
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.”).

        If I, 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.

        Of 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).




                                                  –3–
        One would hope that at some point the Legislature would rouse itself to a more meaningful

and complete solution.




                                                  /David J. Schenck/
                                                  DAVID J. SCHENCK
                                                  JUSTICE


Bridges, Osborne, and Carlyle, J.J. join this concurring opinion

180356HC.P05




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