      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                     ON MOTION FOR RECONSIDERATION EN BANC



                                        NO. 03-07-00728-CV



                                Twigland Fashions, Ltd., Appellant

                                                   v.

                                       Nemia Miller, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
     NO. D-1-GN-06-002877, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                               CONCURRING OPINION


                 I concur in the order overruling the motion for rehearing en banc. I write separately

to explain my reasons for doing so.

                 Under the Texas Rules of Appellate Procedure, en banc consideration of an appeal
is 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.


Tex. R. App. P. 41.2(c).       I believe “extraordinary circumstances” include such matters as

(1) addressing legal issues on which Texas courts of appeals are split; (2) addressing issues that are

highly significant to the public or in which the public has a high level of interest; and (3) overruling
an earlier decision of this Court. In addition, “extraordinary circumstances” may include other cases

in which it is imperative, for whatever reason, that this Court speak with one voice. I do not believe

the present case falls into any of those categories.

                 That leaves the category of cases in which it is “necessary to secure or maintain

uniformity of the court’s decisions.” I do not believe the present case satisfies that standard either.

The present case is highly fact-specific, as was the Davis case.1 The fact that Davis affirmed a jury

verdict in favor of the plaintiff, while the present decision overturns a jury verdict in favor of the

plaintiff, does not make them inconsistent.                Each opinion sets forth a detailed

sufficiency-of-the-evidence review based on the particular facts of that case. Although there are

some general similarities in the fact patterns, there are also many substantial differences.

Accordingly, I do not see the present case as “represent[ing] a significant departure from this Court’s

prior hostile-work-environment jurisprudence.”

                 I take no position on the merits of the present case, because I do not believe the case

rises to the level at which en banc review is permissible under the rules. The dissenting justices

believe that the evidence favoring the plaintiff in the present case constitutes more than a scintilla,

while the justices on the original panel take the opposite view. In my view, this does not satisfy the

strictures of rule 41.2(c).2




        1
            Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30 (Tex. App.—Austin 1998, pet. denied).
        2
          Moreover, if this Court were to hear or rehear en banc every case in which two or more
justices could disagree on an evidentiary-sufficiency issue, I fear the resulting tsunami of en banc
cases would inundate us.

                                                   2
                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Patterson, Puryear, Pemberton and Henson

Filed: October 22, 2010




                                              3
