                                 Fourth Court of Appeals
                                         San Antonio, Texas
                                       DISSENTING OPINION
                                             No. 04-16-00333-CV

                                     IN RE Cleo BUSTAMANTE, Jr.

                                      Original Mandamus Proceeding 1

Opinion by:     Marialyn Barnard, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice, joined by Luz Elena D. Chapa, Justice
Dissenting Opinion by: Luz Elena D. Chapa, Justice

Sitting en banc: Sandee Bryan Marion, Chief Justice
                 Karen Angelini, Justice
                 Marialyn Barnard, Justice
                 Rebeca C. Martinez, Justice
                 Patricia O. Alvarez, Justice
                 Luz Elena D. Chapa, Justice
                 Jason Pulliam, Justice

Delivered and Filed: November 23, 2016

        I dissent from the granting of en banc consideration. Rule 41.2(c) provides the legal

standard for determining whether en banc consideration should be granted. TEX. R. APP. P. 41.2(c).

The rule provides, in relevant part:

        (c) En Banc Consideration Disfavored. 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.




1
  This proceeding arises out of Cause No. 12-05-27517, styled Roberto Fernandez and Maria Imelda Flores v. Abaco
Consultants, Inc., et al., pending in the 365th Judicial District Court, Maverick County, Texas, the Honorable Amado
J. Abascal, III presiding.
Dissenting Opinion                                                                        04-16-00333-CV


Id. (emphasis added). Here, the court’s opinions in Taymax 2 and Caterpillar, 3 respectively, do

not conflict with any prior precedent of this court or with this case. Nor did the panel majority in

either opinion commit any error of such magnitude that it amounted to an “extraordinary

circumstance” requiring en banc review.

        To the contrary, it appears that the en banc majority here simply disagrees with the panel

majority’s holding in Taymax that mandamus relief was not warranted because the relators failed

to establish the lack of an adequate remedy at law. 2014 WL 1831100, at *1. Such a disagreement,

however, does not meet the elevated en banc standard:

        The standard for en banc consideration is not whether a majority of the en banc
        court may disagree with all or a part of a panel opinion. Neither is an assertion that
        an issue is “important” sufficient. Rather, when there is no conflict among panel
        decisions, the existence of “extraordinary circumstances” is required before en banc
        consideration may be ordered.

Fazio v. Cypress/GR Houston I, L.P., 403 S.W.3d 390, 411-12 (Tex. App.—Houston [1st Dist.]

2013, pet. denied) (Jennings, J., dissenting from granting of en banc consideration) (citing

Thompson v. State, 89 S.W.3d 843, 856 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)

(Jennings, J., concurring in denial of en banc consideration)).

        In Taymax, the panel majority denied mandamus relief because the Taymax relators “failed

to establish the lack of an adequate remedy at law with respect to the trial court’s denial of leave

to designate Masaki as a responsible third party.” 2014 WL 1831100, at *1; see also In re

Caterpillar, 2009 WL 5062324, at *1. Taymax did not hold, as the en banc majority states, “that

mandamus relief is not available for the denial of a motion for leave to designate a responsible




2
  In re Taymax Fitness, LLC, No. 04-14-00119-CV, 2014 WL 1831100 (Tex. App.—San Antonio May 7, 2014, orig.
proceeding) (mem. op.).
3
  In re Caterpillar, Inc., No. 04-09-00796-CV, 2009 WL 5062324 (Tex. App.—San Antonio Dec. 23, 2009, orig.
proceeding) (mem. op.).

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Dissenting Opinion                                                                    04-16-00333-CV


third party because the moving party has an adequate remedy by appeal.” In re Bustamante, No.

04-16-00333-CV, slip op. at 8 (Tex. App.—San Antonio Nov. 23, 2016, orig. proceeding). Every

case is distinguishable by its own facts. Compare In re Greyhound Lines, Inc., No. 05-13-01646-

CV, 2014 WL 1022329, at *3-4 (Tex. App.—Dallas Feb. 21, 2014, orig. proceeding) (mem. op.)

(“On this record, in this case,” defendant not already a defendant) with Taymax, 2014 WL

1831100, at *1 (Masaki already a named defendant), and Bustamante, No. 04-16-00333-CV, slip

op. at 2 (responsible third parties not named as defendants when suit filed one day before

limitations expired). As the en banc majority admits, “The decision whether there is an adequate

remedy on appeal ‘depends heavily on the circumstances presented.’” In re Bustamante, No. 04-

16-00333-CV, slip op. at 9 (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 137 (Tex.

2004) (orig. proceeding)). Neither Taymax nor Bustamante hold that no adequate relief by appeal

is ever available from the denial of a motion to designate responsible third parties. If Bustamante

is intended to so hold, such is a determination yet made by a higher court, and nothing in Prudential

suggests an appeal from the denial of a timely motion for leave to designate responsible third

parties is always inadequate. None of our sister courts presume to so hold, and neither should this

court.

         Thus, because there is neither a conflict between panel decisions nor the existence of

“extraordinary circumstances” requiring en banc consideration, I therefore dissent from the

granting of en banc consideration.


                                                  Rebeca C. Martinez, Justice




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