Concurring and Dissenting Opinions on Denial of Rehearing En Banc filed
September 20, 2012.




                                               In The

                            Fourteenth Court of Appeals

                                        NO. 14-11-00815-CV


          THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant

                                                 V.

     RONALD K. ONEY, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
                  ESTATE OF DANIEL D. ONEY, Appellee


                                On Appeal from the 11th District Court
                                        Harris County, Texas
                                  Trial Court Cause No. 2011-32031


       CONCURRING OPINION ON DENIAL OF
             REHEARING EN BANC
          Today, the en banc court denies the motion for en banc reconsideration filed by
appellant The Kansas City Southern Railway Company. 1 The decision is compelled by
the exacting standard for en banc consideration imposed by the Texas Rules of Appellate
Procedure.2

1
    See Tex. R. App. P. 49.7.
2
    See Tex. R. App. P. 41.2(c).
              Rule 41.2(c) supplies the legal standard for determining whether a motion for en
banc reconsideration should be granted.3 The relevant portion of that rule provides:
              (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.4
This high threshold for en banc consideration is reasonable given the large volume of
cases adjudicated each year by intermediate appellate courts and the substantial
expenditure of time and resources involved in considering a case en banc. Notably, the
standard for en banc review is not whether a majority of the en banc court disagrees with
all or part of a panel opinion.5 Thus, even if a majority of the en banc court were to
conclude that the majority opinion in the case under review was wrongly decided, that
conclusion alone would not justify en banc consideration.6 The fact that the issues
involved are important is likewise not sufficient to satisfy the legal standard.7 Under the
plain meaning of Rule 41.2(c), en banc consideration is disfavored and should be ordered
only when necessary to secure or maintain uniformity in this court’s decisions or when
extraordinary circumstances require en banc consideration.8
              In its motion for en banc reconsideration, The Kansas City Southern Railway
Company does not address the standard for en banc review set forth in Rule 41.2(c). Nor
does it assert or show a direct conflict between the panel majority opinion and any other
opinion of this court. The Kansas City Southern Railway Company does not assert or
argue that en banc consideration is necessary to secure or maintain uniformity in this
3
    See id.
4
    Id.
5
  See Thompson v. State, 89 S.W.3d 843, 856 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (Jennings,
J., concurring on denial of rehearing en banc).
6
  See Tex. R. App. P. 41.2(c); Thompson, 89 S.W.3d at 856 (Jennings, J., concurring on denial of
rehearing en banc).
7
  See Tex. R. App. P. 41.2(c); Thompson, 89 S.W.3d at 856 (Jennings, J., concurring on denial of
rehearing en banc).
8
    See Tex. R. App. P. 41.2(c).



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court’s decisions. Nor does The Kansas City Southern Railway Company assert or argue
that extraordinary circumstances require en banc consideration.                      Likewise, in the
dissenting opinion on denial of rehearing en banc, there is no discussion of the exacting
standard for en banc consideration or why it is met in this instance. Because this exacting
standard is not satisfied, it is proper for this court to deny The Kansas City Southern
Railway Company’s motion for en banc reconsideration.9 Though the presented issues
are important to the jurisprudence, the prerequisites for en banc consideration have not
been satisfied.10 By voting to deny this motion for en banc reconsideration, I take no
position on the merits of the case under review; rather, I conclude only that the high
threshold for en banc consideration has not been met.11
           For these reasons, I respectfully concur with this court’s decision to deny The
Kansas City Southern Railway Company’s motion for en banc reconsideration.




                                                  /s/       Kem Thompson Frost
                                                            Justice

En Banc Court consists of Chief Justice Hedges and Justices Frost, Seymore, Brown,
Boyce, Christopher, Jamison, McCally, and Busby, and Senior Justice Mirabal.12 (J.
Boyce dissenting to denial of rehearing en banc, joined by Justices Brown, Christopher,
Jamison, and Busby).
9
  The dissenting opinion contains a statement that the majority opinion “is incompatible with” this court’s
decision in Abraham v. Union Pac. R.R. Co., 233 S.W.3d 13, 17 (Tex. App.—Houston [14th Dist.] 2007,
pet. denied), suggesting that en banc consideration is necessary to secure or maintain uniformity in this
court’s decisions. See post at p. 8. The Abraham case did not involve claims that were subject to any part
of Chapter 90 of the Texas Civil Practice and Remedies Code. See Abraham, 233 S.W.3d at 16–24. In
the case under review, the majority expressly stated that “[n]othing in our holding relieves [Oney] from
the burden of presenting reliable, admissible evidence supporting his FELA claim in future proceedings.”
Kansas City S. Ry. Co. v. Oney, No. 14-11-00815-CV, —S.W.3d—,—, 2012 WL 2928535, at *12 (Tex.
App.—Houston [14th Dist.] Jul. 19, 2012, no pet. h.). The majority opinion does not conflict with the
Abraham opinion and does not create a lack of uniformity in this court’s decisions.
10
     See Tex. R. App. P. 41.2(c).
11
     See id.
12
     Senior Justice Margaret Garner Mirabal sitting by assignment.

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