Affirmed in Part, Reversed and Remanded in Part, and En Banc Majority,
Concurring, and Dissenting Opinions filed December 20, 2011.




                                          In The

                      Fourteenth Court of Appeals

                                  NO. 14-09-01081-CV

                     ROSSCER CRAIG TUCKER, II, Appellant

                                            V.

                           LIZABETH THOMAS, Appellee

                       On Appeal from the 312th District Court
                               Harris County, Texas
                         Trial Court Cause No. 2003-55104



                  EN BANC CONCURRING OPINION

       Today this court, sitting en banc, upholds its decision in Hardin v. Hardin and
holds that under the Family Code, the trial court in a non-enforcement modification suit
may order a parent to pay, as additional child support, reasonable attorney’s fees for legal
services benefitting the children. This holding means that a split of authority persists on
this issue between this court and the other Houston-based court of appeals.            This
unwelcome consequence of today’s decision shines a light on the vexing problems
inherent in the unique jurisdictional scheme governing Texas’s intermediate appellate
courts.
          The Texas court system is the only court system in the United States that has
intermediate appellate courts whose geographical jurisdiction overlaps.1          The First Court
of Appeals District and the Fourteenth Court of Appeals District both are composed of
the same ten counties.2 A high volume of litigation in this ten-county region, which
includes one of the nation’s largest metropolitan areas, fuels a big appellate case load. In
cases in which there has been no prior appeal, appeals from these ten counties are
randomly assigned between the First Court and the Fourteenth Court. Sometimes this
court and our esteemed sister court disagree about the law. The case under review is a
prime example of such a conflict. For over seven years there has been a conflict between
our opinion in Hardin and the First Court’s opinion in In re Moers.3
          Under the Texas Rules of Appellate Procedure, the method for resolving such a
split is review by the Supreme Court of Texas.4 Unlike the Texas Court of Criminal
Appeals, which has the power to review a court of appeals decision on its own motion,5
the Supreme Court of Texas may review a court of appeals decision only if a party timely
files a petition for review.6           In Moers, Hardin, and almost all of the subsequent cases
addressing this issue, no party filed a petition for review in the Supreme Court of Texas,
and the high court had no opportunity to resolve this unfortunate split between the two
Houston-based courts of appeals. As long as a conflict persists between these two
          1
              See Miles v. Ford Motor Co., 914 S.W.2d 135, 139 (Tex. 1995).
         See TEX. GOV’T CODE ANN. 22.201 (West Supp. 2010). These ten counties are the counties of
          2

Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Harris, Waller, and Washington.
See Tex. Gov’t Code Ann. 22.201.
          3
           See Hardin v. Hardin, 161 S.W.3d 14, 25–26 (Tex. App.—Houston [14th Dist.] 2004), judgm’t
vacated, op. not withdrawn, No. 14-03-00342-CV, 2005 WL 310076, at *1 (Tex. App.—Houston [14th
Dist.] Feb. 10, 2005, no pet.) (mem. op.); In re Moers, 104 S.W.3d 609, 611–12 (Tex. App.—Houston
[1st Dist.] 2003, no pet.).
          4
              See TEX. R. APP. P. 53.1, 56.1.
          5
              See TEX. R. APP. P. 66.1, 67.1.
          6
              See TEX. R. APP. P. 53.1, 53.7.
                                                      2
appellate courts, serious and recurring problems abound for trial courts in the ten counties
within the geographical jurisdiction of these courts, as well as for the lawyers and parties
who litigate in this region.          The most troubling consequence of Texas’s peculiar
jurisdictional regime is the difficult burden it places on litigants and their lawyers who, at
times, must make important and costly litigation or settlement decisions on pending cases
in which the outcome likely will turn entirely on the appellate court to which the appeal is
randomly assigned. Rather than make decisions based on an evaluation of the strength of
the case, litigants caught in split-of-authority cases must proceed blindly with the hope
that their case will randomly fall in the court that has the more favorable rule.
       The trial judges face a similar dilemma. In cases involving an issue upon which
there is an unresolved disagreement between the Houston-based courts of appeals, there
is no apparent basis for determining which precedent is binding on the trial court under
the doctrine of vertical stare decisis. Despite at least two prior opinions from a court of
appeals in whose district the trial court sits, the trial court has no mandatory precedent to
apply and no clear basis for determining which of the two conflicting rules to follow.
The trial judge’s ruling will be held to be correct or incorrect based on which court of
appeals is called upon to review the case, a critically important fact not known to the trial
judge or the litigants until after the decisions are made. If the trial judge guesses wrong
and the court of appeals to which the case is assigned determines that the error was
harmful, then the trial court will be reversed, and the case may be remanded for retrial.
When the two courts with coterminous jurisdiction are on opposite sides of an issue,
parties, counsel, and trial judges are forced to play appellate roulette.
       This uncertainty for the trial courts, counsel, and litigants is especially problematic
when the issue is an important and frequently recurring one like the issue we encounter
today.7     One former justice of the Supreme Court of Texas and a former member of both
Houston-based courts of appeals has described this predicament as ―practicing law on a


       7
           See Miles, 914 S.W.2d at 139.
                                                3
guess and a gamble.‖8 Public perception of fairness is diminished when the certainty and
predictability of court decisions is compromised. But the public’s confidence in our
courts is strengthened by the assurance that the courts in a single jurisdiction view the
law uniformly and apply it consistently.
       For these reasons it is in the best interest of all concerned that, whenever possible,
the two Houston-based courts of appeals achieve alignment. But this desirable goal
presents a number of practical challenges for both courts, not the least of which is the
enormous and constant commitment of time and judicial resources necessary to manage
the task. Compounding this difficulty is the lack of any mechanism at the court-of-
appeals level designed to eliminate conflicts between these two appellate courts and to
bring uniformity to the jurisprudence of two districts that share the same geographical
jurisdiction.
       Panels of this court are bound to follow this court’s precedent, and if a panel
occasionally overlooks this court’s precedent, the members of the court may resolve any
resulting conflict by means of en banc review.9 In a case involving a very close legal
issue in which one of the Houston-based courts of appeals already has taken a position,
justices on the other Houston-based court of appeals may adopt the rule from the sister
court in the interest of fostering uniformity and predictability in their shared jurisdiction.
But, practically speaking, most legal issues are not that close and, in most cases, appellate
judges are likely to adopt the rule that in their judgment is correct, even if in doing so
they create a conflict between the two Houston-based courts of appeals.
       En banc review is well-suited to resolve conflicts in one court of appeals’s
precedent. But, with few exceptions, en banc review will resolve a conflict between the
two Houston-based courts of appeals only if a majority of the en banc court happens to


       8
           Scott Brister, Is It Time to Reform Our Courts of Appeals? HOUS. LAW., Mar.-Apr. 2003, at 22,
26.
       9
       See TEX. R. APP. P. 41.2(c); Glassman v. Goodfriend, 347 S.W.3d 772, 781–82 & n.8 (Tex.
App.—Houston [14th Dist.] 2011, pet. denied) (en banc).
                                                    4
make the same judgment as the other appellate court regarding the legal issue at hand. 10
If there is no conflict in the precedent of this court and if a majority of the members of
this court sitting en banc conclude that a precedent of this court is correct, then a conflict
between that precedent and precedent from the First Court cannot be resolved by en banc
review in this court. If a majority of the members of this court sitting en banc conclude
that a precedent that conflicts with our sister court is wrongly decided and should be
overruled, then the basis for en banc review is the conclusion that the precedent was
wrongly decided, rather than the conflict between sister courts. The sitting justices from
the First Court cannot sit en banc on the Fourteenth Court and vice versa. 11              For these
reasons, en banc review is not well-suited to resolve conflicts between these appellate
courts.
          Years ago, the Supreme Court of Texas took notice of the manifest problems
created by overlaps in Texas appellate districts. See Miles, 914 S.W.2d at 139. This
―disfavored‖ system has been harshly criticized by members of the legal community who
have experienced firsthand the unwanted consequences of our state’s unusual and
increasingly problematic intermediate appellate court structure. Many have called for the
combination of the two Houston-based courts into a single district, to eliminate the
growing jurisprudential problems as well as the extraordinary time and expense that are
devoted to dealing with the conflicts and confusion inherent in the current scheme.12
Were the two courts to be combined into a single district, conflicts between cases like
Moers and Hardin could be resolved through the en banc process. That is not an option
under the existing structure.

                                                      /s/       Kem Thompson Frost
                                                                Justice

          10
          See Glassman, 2011 WL 2150225, at *6–9 (en banc opinion of this court agreeing with prior en
banc opinion from the First Court of Appeals).
          11
               See TEX. R. APP. P. 41.2(a).
          12
               See Brister, 40 HOUS. LAW. at 25–27.
                                                            5
The en banc court consists of Chief Justice Hedges and Justices Frost, Seymore, Brown,
Boyce, Christopher, Jamison, and McCally. Justice Anderson is not participating.

Justices Seymore, Brown, Boyce, and Jamison join the En Banc Majority Opinion
authored by Justice Frost. Justice Frost issues a separate En Banc Concurring Opinion in
which Justices Seymore and Brown join. Justice Jamison issues an En Banc Concurring
Opinion. Justice Christopher issues an En Banc Dissenting Opinion in which Chief
Justice Hedges and Justice McCally join.




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