Opinion
NO. 03-19-00294-CV
12-30-2020
The CITY OF AUSTIN, Texas, Appellant v. Sayeed ANAM, Individually and as Independent Administrator of The Estate of Zachary Anam and Cara Anam, Individually, Appellees
John A. Guerra, Celia Garcia, San Antonio, for Martinez, Jose, Pedroza, Gabriel. Scott Medlock, Jeff Edwards, Austin, David James, Michael C. Singley, Austin, for Appellees Cara Anam, Individually, Sayeed Anam, Individually and as Independent Administrator of The Estate of Zachary Anam. H. Gray Laird III, for Appellant.
John A. Guerra, Celia Garcia, San Antonio, for Martinez, Jose, Pedroza, Gabriel.
Scott Medlock, Jeff Edwards, Austin, David James, Michael C. Singley, Austin, for Appellees Cara Anam, Individually, Sayeed Anam, Individually and as Independent Administrator of The Estate of Zachary Anam.
H. Gray Laird III, for Appellant.
Before Chief Justice Rose, Justices Goodwin, Baker, Triana, Kelly, and Smith
OPINION
Jeff Rose, Chief Justice
Our opinion and judgment issued on July 30, 2020, are withdrawn, and the following opinion is substituted.
Zachary Anam committed suicide by shooting himself in the head while he was handcuffed and seated in the backseat of an Austin Police Department patrol car. Zachary's family sued the City of Austin under the Texas Tort Claims Act, alleging that the police officer's failure to fasten Zachary's seatbelt caused his death. The legal issue in this interlocutory appeal is whether the Anams' claims fall under the Act's limited waiver of sovereign immunity for death arising from the use of a motor-driven vehicle or caused by a condition or use of tangible personal property. Because we conclude that Zachary's death was not proximately caused by the unfastened seatbelt, a requirement for waiver under the Act, we reverse the trial court's order denying the City's plea to the jurisdiction and render judgment dismissing the Anams' claims against the City.
Background
Employees of the Macy's department store at Barton Creek Square Mall in Austin detained Zachary Anam for allegedly shoplifting. The employees called the police, and Officer Iven Wall responded to the call. Wall arrested Zachary, handcuffed his hands behind his back, placed him in a patrol car, and fastened his seatbelt. Wall did not discover the handgun Zachary had concealed in a holster attached to his waistband. Video from the backseat camera shows that before the patrol car began to move, Zachary maneuvered the shoulder strap of the seatbelt so that it was behind his back, rather than across his chest.
During the drive to police headquarters, Zachary unbuckled his seatbelt, revealing (through the video feed) the holstered handgun at his waist. Wall did not stop the car. Instead, he asked Zachary, "Do you have anything else illegal on you?" Wall also told Zachary that he would be searched at the jail, that he could be charged with another felony, and that he would spend the rest of his life behind bars. Zachary then asked, "Officer, if I'm feeling suicidal, now's the time to tell you, right?" to which Wall replied, "They'll take care of you at the jail." Zachary then told Wall, "I have a loaded firearm to my head." Upon hearing this, Wall stopped the patrol car, exited, and radioed other officers for help. He also directed the patrons of a nearby restaurant to get away from the window. Four minutes after Wall stopped the patrol car, Zachary lay down in the backseat and shot himself in the head.
The Anams contend that "the seatbelt became unfasted." Although it is ultimately of no import here, they do not dispute the video evidence showing that Zachary unfastened the seat belt; nor do they challenge the police report's statement that Zachary unfastened the seat belt.
The Anams sued the City. They alleged that the Tort Claims Act waived the City's governmental immunity because Wall, while acting within the course and scope of his employment with the City and while operating a vehicle owned by the City, was negligent in failing to refasten Zachary's seatbelt after Zachary unbuckled it. This was negligent, the Anams contend, because Wall would have likely discovered the handgun if he had refastened the seatbelt. See Tex. Civ. Prac. & Rem. Code § 101.021(1) (waiver for operation or use of a motor-driven vehicle). The Anams alleged in the alternative that Zachary could not have drawn the gun to shoot himself if the seatbelt had been fastened. See id. § 101.021(2) (waiver for condition or use of tangible personal property).
The City filed a plea to the jurisdiction, arguing that the Anams' claims against it do not fall under the Tort Claims Act's waivers of immunity. The trial court denied the City's plea, and the City appeals.
Discussion
The City of Austin, as a political subdivision of the State, is immune from suit and liability unless the state consents. City of Watauga v. Gordon , 434 S.W.3d 586, 589 (Tex. 2014). Governmental immunity defeats a court's jurisdiction. Dallas Area Rapid Transit v. Whitley , 104 S.W.3d 540, 542 (Tex. 2003). Where a government entity challenges jurisdiction on the basis of immunity, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity." Ryder Integrated Logistics, Inc. v. Fayette County , 453 S.W.3d 922, 927 (Tex. 2015). To determine if the plaintiff has met that burden, we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties. Whitley , 104 S.W.3d at 542.
The asserted source of waiver in this case is the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code § 101.025(a) ("Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter."). Specifically, the Anams argue that Wall's negligent failure to refasten Zachary's seatbelt falls under the two waivers found in section 101.021 of the Tort Claims Act:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
Id. § 101.021.
Proximate cause is a requirement for both waivers in section 101.021. See id. ; Ryder , 453 S.W.3d at 929 (noting that the Act "only reaches injuries ‘proximately caused by the ... negligence of an employee’ ") (quoting Tex. Civ. Prac. & Rem. Code § 101.021(1)(A) ); Dallas Cnty. Mental Health & Mental Retardation v. Bossley , 968 S.W.2d 339, 343 (Tex. 1998) (noting that for immunity to be waived under subsection 101.021(2), "injury or death must be proximately caused by the condition or use of tangible property"). The requisite components of proximate cause are cause in fact and foreseeability. Ryder , 453 S.W.3d at 929. Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. Doe v. Boys Club of Greater Dall., Inc. , 907 S.W.2d 472, 477 (Tex. 1995) (citing Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 549–50 (Tex. 1985) ). The danger of injury is foreseeable if its "general character might reasonably have been anticipated ... and the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen." Ryder , 453 S.W.3d at 929 (citing Nixon , 690 S.W.2d at 551 ). The question of foreseeability, and proximate cause generally, involves a practical inquiry based on "common experience applied to human conduct." Doe , 907 S.W.2d at 477. It asks whether the injury "might reasonably have been contemplated" as a result of the defendant's conduct. Id. "Foreseeability requires more than someone, viewing the facts in retrospect, theorizing an extraordinary sequence of events whereby the defendant's conduct brings about the injury." Id. (citing Restatement (Second) of Torts § 435(2) (Am. Law Inst., 1965) ).
Under the applicable standard of review, we construe the pleadings liberally in favor of the plaintiff to determine if the plaintiff has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. See Texas Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004) ; see also Ryder , 453 S.W.3d at 929 (reviewing factual allegations to determine whether sufficient to demonstrate foreseeability). Here, the Anams do not allege any facts demonstrating foreseeability—i.e., that a person of ordinary intelligence should have anticipated that the failure to refasten the seatbelt of a handcuffed occupant of the vehicle would create the danger of suicide by gunshot. Instead, the Anams' pleadings assert in a conclusory manner only that "it was foreseeable that failing to use the seatbelt properly would cause injury to Zachary." Nor could the Anams allege any such facts in this case because the reasonably anticipated danger or harm created from an unfastened seatbelt is not suicide by gunshot wound to the head, but rather is the likelihood of injury or death should the vehicle be involved in a collision or otherwise stop abruptly. See Doe , 907 S.W.2d at 477–78 (concluding that if club had discovered volunteer's DWI convictions, the "information would not have caused the club reasonably to anticipate his subsequent sexual assaults on the minor plaintiffs"); see also Ryder , 453 S.W.3d at 929 (alleged harm must be of the very character that might reasonably have been anticipated); Doe , 907 S.W.2d at 477. (explaining that danger of injury is foreseeable if its "general character ... might reasonably have been anticipated"). To conclude otherwise would require "theorizing an extraordinary sequence of events." See Doe , 907 S.W.2d at 478. (noting that foreseeability involves practical inquiry based on "common experience applied to human conduct"); Restatement (Second) of Torts § 435(2) ("The actor's conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.").
In their response to the City's motion for reconsideration en banc, the Anams argue that the City has waived en banc review of the foreseeability issue. We disagree. Rule 38.1 provides that an issue statement "will be treated as covering every subsidiary question that is fairly included." Tex. R. App. P. 38.1(f). The City's issues in this appeal generally challenge whether its governmental immunity has been waived by section 101.021, which, as noted, requires proximate cause. See Tex. Civ. Prac. & Rem. Code § 101.021. Further, the City argues in its brief, although in the context of the "arises from" requirement, that "Because the City's patrol vehicle merely provided the setting for Anam's injuries, and Officer Wall's operation or use of the patrol vehicle did not proximately cause Anam's injuries, the Appellees' claims do not fall within the waiver of immunity set forth in section 101.021(1)." Finally, we note that even if the City had waived the foreseeability argument, this Court has recognized that sovereign immunity issues may be raised by a court sua sponte. Texas Dep't of Ins. v. Texas Ass'n of Health Plans , 598 S.W.3d 417, 424 (Tex. App.—Austin 2020, no pet.) (citing Texas Dep't of State Health Servs. v. Balquinta , 429 S.W.3d 726, 745 (Tex. App.—Austin 2014, pet. dism'd) ; Texas State Bd. of Veterinary Med. Exam'rs v. Giggleman , 408 S.W.3d 696, 707 n.18 (Tex. App.—Austin 2013, no pet.) ).
Conclusion
Zachary's suicide was tragic. But the Anams have not alleged facts demonstrating that his death was proximately caused by Wall's failure to refasten the seatbelt or by the condition or use of the seatbelt. And the facts they have alleged negate their ability to replead facts such that their claims fall under the Tort Claims Act's waiver of immunity. Construing the pleadings in their favor, the real substance of the Anams' claim is that Zachary's suicide was caused not by the failure to refasten his seatbelt or the condition of the seatbelt but by the fact that Wall failed to detect and remove Zachary's gun before putting him in the patrol car. The Tort Claims Act does not waive immunity from such a complaint. As such, their claim does not fall under the Act's narrow waiver of immunity. Accordingly, we reverse the trial court's order and render judgment dismissing the Anams' claims against the City.
Dissenting Opinion by Justice Triana ; Joined by Justice Smith
DISSENTING OPINION
Gisela D. Triana, Justice
I would deny the City's motion for en banc reconsideration. Because the Court does not, I dissent.
The Texas Rules of Appellate Procedure provide that "[e]n 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). The justifications for granting en banc review do not apply here. The City has failed to identify any conflict between this Court's opinion on original submission and other decisions by this Court. See Schindler Elevator Corp. v. Anderson , 78 S.W.3d 392, 424 (Tex. App.—Houston [14th Dist.] 2001, pet. granted, judgm't vacated w.r.m.) (Frost, J., concurring op. to denial of en banc reh'g) ("Appellant did not cite to a direct conflict between the panel opinion and any other opinion of this court. Thus, en banc review is not required in this case to maintain uniformity of our decisions."). Moreover, this case does not involve extraordinary circumstances. See Texas Dep't of Fam. and Protective Servs. v. Grassroots Leadership, Inc. , No. 03-18-00261-CV, 2019 WL 6608700, at *2 (Tex. App.—Austin Dec. 5, 2019) (Triana, J., dissenting opinion to denial of en banc reh'g) (observing that "extraordinary circumstances" exception includes cases that address "issues of statewide and arguably national importance that were ‘highly significant to the public or in which the public ha[d] a high level of interest’ at the time" of court's decision (quoting Twigland Fashions, Ltd. v. Miller , 335 S.W.3d 206, 226 (Tex. App.—Austin 2010, no pet.) (Jones, C.J., concurring in denial of en banc reh'g)). Thus, en banc reconsideration is inappropriate here, and I would deny the motion for that reason.
I would also deny the motion because the Court's original opinion decided the case correctly. The trial court did not err in denying the City's plea to the jurisdiction, and its order should be affirmed.
The Anams allege that Wall's negligent failure to properly fasten Zachary's seatbelt proximately caused Zachary's death. Wall acknowledged his duty to keep Zachary safe. Wall testified that department policy required him to fasten Zachary's seatbelt to keep Zachary safe. He further agreed that it was his responsibility to refasten a seatbelt that came unfastened "if [he] notice[d] it." He agreed that it is well known that people with mental illness or suffering depression or who have been detained may be suicidal.
To establish a waiver of immunity, the Anams must establish that their son's death "arose from" Wall's failure to fasten Anam's seatbelt and that failure to fasten the seatbelt constituted operation or use of a motor vehicle. See Tex. Civ. Prac. & Rem. Code § 101.021(1)(A). Although the parties agree that Zachary shot himself, the Anams urge that Wall's failure to safely transport Zachary by ensuring that his seatbelt remained fastened was also a cause of Zachary's death because "had the seatbelt been restraining Zachary, he could not have drawn the handgun." See PHI, Inc. v. Texas Juv. Just. Dep't , 593 S.W.3d 296, 303–04 (Tex. 2019) (concluding that fact issue existed as to whether accident "arose from" parking vehicle without engaging emergency parking brake even though worn gear-shift mechanism caused accident in which unoccupied vehicle rolled into helicopter).
The City relies on Montoya v. Houston Independent School District , 177 S.W.3d 332 (Tex. App.—Houston [1st Dist.] 2005, no pet.), to assert that allowing Zachary's seatbelt to remain unfastened merely "furnish[ed] the condition" that made the injury possible. However, the First Court later recognized in City of Houston v. Nicolai that its opinion in Montoya "pre-dates the Texas Supreme Court's opinion in Ryder ," in which the supreme court determined that a collision between two eighteen-wheeled trucks arose from the use of a police cruiser because the cruiser was being positioned such that its headlights blinded or distracted one of the drivers involved in the collision. 539 S.W.3d 378, 391 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) ; see Ryder Integrated Logistics, Inc. v. Fayette Cnty. , 453 S.W.3d 922, 928-30 (Tex. 2015) ("Cause in fact is essentially but-for causation. In other words, a tortious act is a cause in fact if [it] serves as ‘a substantial factor in causing the injury and without which the injury would not have occurred.’ " (quoting Del Lago Partners, Inc. v. Smith , 307 S.W.3d 762, 774 (Tex. 2010) )). Nicolai affirmed the denial of a plea to the jurisdiction where an officer either did not fasten or improperly fastened the decedent's seatbelt and the decedent was killed when another driver collided with the patrol car. 539 S.W.3d at 385.
The City also relies on City of Sugarland v. Ballard , 174 S.W.3d 259, 265-66 (Tex. App.—Houston [1st Dist.] 2005, no pet.), to argue that not fastening a seatbelt cannot give rise to liability under the Tort Claims Act and to further argue that Wall could not be liable because he was not "actively" operating or using the vehicle. Ballard , like Montoya , predates Ryder and Nicolai. The Ballard court concluded that "non-use" of property, such as a restraint, did not constitute use or operation of a motor vehicle. 174 S.W.3d at 268. However, the Texas Supreme Court has recently held that the vehicle-use waiver applied when a plaintiff alleged an accident arose from a driver's failure to engage an emergency parking brake. PHI , 593 S.W.3d at 302. In PHI , an unoccupied, parked vehicle rolled into and damaged a helicopter. Id. at 303. The primary cause of the accident was a worn gear-shift mechanism, but the court determined that failure to use the emergency parking brake also caused the accident. Thus, non-use of property, such as the emergency brake, could give rise to liability under the Tort Claims Act. PHI then expressly rejected the argument that the Tort Claims Act requires use or operation of a vehicle to be "active," explaining that "no court has the authority, under the guise of interpreting a statute, to engraft extra-statutory requirements not found in a statute's text." Id. at 305.
As Ryder and PHI illustrate, improper use or failure to use a vehicle's safety equipment can constitute use of a motor vehicle, and I would conclude that under the circumstances presented here, Wall's failure to secure Zachary's seatbelt constitutes use or operation of a motor vehicle. Appellees allege and the City does not dispute that, had Zachary been properly restrained, he would have been unable to access the gun or position himself in a way that allowed him to shoot himself in the head. On the facts of this case and the record before us, I would conclude the Anams have raised a fact issue as to whether Zachary's death arose from Wall not refastening Zachary's seatbelt. Cf. Nicolai , 539 S.W.3d at 385.
In arguing that section 101.021(1) does not apply, the City, in its briefing, does not argue lack of foreseeability. As a matter of fact, the word foreseeability never once appears in the City's briefing. Proximate cause is not mentioned except to use that phrase in conjunction with its argument that the vehicle merely provided a setting for the death—an argument that goes to whether the death arose from the use of a motor vehicle, not to whether the death was foreseeable. Prior to filing its motion for en banc reconsideration, the City did not at any point argue to the district court or this Court that Zachary's death was not foreseeable. Instead, that argument was raised sua sponte by the original dissent. The City then, for the first time on reconsideration, urged its foreseeability argument. The Court now concludes as a matter of law that Zachary's death was not foreseeable. I disagree.
In addition to showing that Zachary's death arose from the use of a motor vehicle (and, correspondingly that the failure to use the seatbelt was at least an actual cause of Zachary's death), Appellees have raised a fact issue regarding whether Zachary's death was foreseeable. See Ryder , 453 S.W.3d at 929 (noting components of proximate cause are cause in fact and foreseeability). Appellees' pleading states that Wall had a duty to ensure Zachary's seatbelt was securely fastened and that, had he done so, he would have discovered the handgun in Zachary's waistband or, alternatively, that a properly fastened seatbelt would have kept Zachary from accessing the gun. The Court declares, without any basis in the record, that the sole foreseeable injury when a seatbelt is not fastened in a police vehicle is injury arising from a collision or other abrupt stop. The Court's speculation regarding the purpose of securing handcuffed detainees in a seatbelt could be met with further speculation that detainees are secured in seatbelts to prevent them from hurting themselves, hurting other people, or damaging patrol cars by kicking out the windows. The Court's speculation also ignores the standard for foreseeability and the pleadings and evidence we are compelled to review, in a light most favorable to the plaintiff, in resolving this plea to the jurisdiction.
"Foreseeability requires only ‘that the injury be of such a general character as might reasonably have been anticipated; and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.’ " Id. (citing Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 551 (Tex. 1985) ). "[F]oreseeability does not require that the exact sequence of events that produced an injury be foreseeable." County of Cameron v. Brown , 80 S.W.3d 549, 556 (Tex. 2002) (citing Walker v. Harris , 924 S.W.2d 375, 377 (Tex. 1996) ); see Clark v. Waggoner , 452 S.W.2d 437, 440 (Tex. 1970) (stating that foreseeability prong of proximate cause does not "require that [defendants] anticipate just how injuries will grow out of [the] dangerous situation" and "[t]he act of a third person which intervenes and contributes a condition necessary to the injurious effect of the original negligence will not excuse the first wrongdoer if such act ought to have been foreseen"); cf. Doe v. Boys Club of Greater Dall., Inc. , 907 S.W.2d 472, 477 (Tex. 1995) (determining that if club had discovered volunteer's DWI convictions, the "information would not have caused the club reasonably to anticipate his subsequent sexual assaults on the minor plaintiffs"). "Instead, only the general danger must be foreseeable." Brown , 80 S.W.3d at 556 (declining to hold as matter of law that it is unforeseeable that unexpected change in lighting on highway could impair motorist's ability to avoid obstacles ahead and noting that although decedent's lack of care "may be an issue of comparative responsibility for the jury to decide, see Tex. Civ. Prac. & Rem. Code § 33.012, it does not render the subsequent harm in this case unforeseeable").
In this case, Wall acknowledged in his deposition that detainees are often mentally unstable or suicidal and that the use of a seatbelt was intended to keep detainees safe. His statement was not limited in its application to safety from a collision or abrupt stop. He acknowledged that he could see the video, which showed that for several minutes before the vehicle left the mall where Zachary was apprehended, the shoulder strap of the seatbelt was behind Zachary's back rather than across his chest. Less than three minutes after the car began moving, the video shows the lap belt of Zachary's seatbelt clearly unbuckled and the holster at Zachary's waist. About seven minutes later, while the vehicle was briefly stopped, Zachary stood up from the seat to reposition himself, after which Wall asked Zachary whether he had "anything else illegal" on him and informed him that he would be charged with an additional felony if anything else were found on him at the police station. At his deposition, Wall acknowledged having asked this question because he was concerned Zachary might have been in possession of something illegal because "lots of weapons are missed" when suspects are taken to jail. Wall commented on how Zachary was "squirming around" in the back seat. About four minutes after Wall asked whether Zachary had anything else illegal—nearly eleven minutes after the unbuckled seatbelt and holster are visible on the backseat camera that Wall acknowledged viewing during the drive—Zachary stated that he had a loaded gun to his head. At that point, Wall left the car and moved about fifteen feet away. He explained that Zachary remained in the backseat of the vehicle, while Wall warned others nearby who might have been endangered to "keep going" and "get out of the way" during the four minutes between when Wall left the vehicle and Zachary pulled the trigger.
Given Wall's testimony regarding the suicidal tendencies of detainees, his awareness that Zachary was despondent, his general awareness that even detained suspects are often in possession of weapons, and the video showing that for most of the drive, Zachary was not properly restrained by the seatbelt and was evidently in possession of a weapon, I conclude the Anams have met their burden of raising a fact issue regarding foreseeability. Accordingly, I would hold the trial court did not err in denying the City's plea to the jurisdiction.
CONCLUSION
For the foregoing reasons, I would deny the City's motion for en banc reconsideration and affirm the trial court's order denying the City's plea to the jurisdiction.
Dissenting Opinion by Justice Smith
DISSENTING OPINION
Edward Smith, Justice
I agree with Justice Triana's jurisdictional analysis and her ultimate conclusion that the Anams' factual allegations are sufficient to support a viable claim that is statutorily exempt from governmental immunity and thus sufficient to overcome the City's plea to the jurisdiction. I write separately to emphasize that even if I were persuaded that the pleadings and governing precedent foreclose the district court's exercise of jurisdiction over the Anams' claims, I would not support en banc reconsideration of this matter.
A court of appeals should sit en banc in only the rarest of circumstances. Our rules of procedure provide, "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). The City's motion for en banc reconsideration does not even refer to this rule, much less describe how the rule's standard is satisfied. Nor does the majority explain what renders this case so compelling as to require the Court to undertake this long-disfavored mechanism of review.
Rule 41.2(c) sets forth two criteria, at least one of which must be satisfied to allow for en banc decision. Its first criterion allows en banc consideration when "necessary to secure or maintain uniformity of the court's decisions." See id. For example, two years ago, the Texas Comptroller of Public Accounts appealed from a district court's denial of his plea to the jurisdiction, arguing that the trial court had misconstrued the injunctive relief available to taxpayers under chapter 112 of the Tax Code. See generally Hegar v. EBS Sols., Inc. , 549 S.W.3d 849 (Tex. App.—Austin 2018), rev'd , 601 S.W.3d 744 (Tex. 2020). While the matter was pending before the panel, our research revealed inconsistencies in this Court's interpretation and application of section 112.108 of that code. See id. at 851, 863–64. Thus, and on our own motion, the Court convened en banc to clarify that "section 112.108 ha[d] been invalidated by this Court" on constitutional grounds in 2000, see id. at 864 (referring to holdings in Rylander v. Bandag Licensing Corp. , 18 S.W.3d 296, 304–05 (Tex. App.—Austin 2000, pet. denied) ), and to "disavow" our subsequent opinions relying on that section's language, see id. at 863–64 (citing Office of Comptroller of Pub. Accts. v. Pakse, Inc. , No. 03-16-00121-CV, 2017 WL 4583213, at *1, 2–5 (Tex. App.—Austin Oct. 10, 2017, no pet.) (mem. op.) ; Office of Comptroller of Pub. Accts. v. Farshid Enters. , No. 03-16-00291-CV, 2017 WL 1404731, at *2, 5 (Tex. App.—Austin Apr. 13, 2017, pet. denied) (mem. op.) ; Sanadco, Inc. v. Office of Comptroller of Pub. Accts. , No. 03-11-00462-CV, 2015 WL 1478200, at *3, 4 (Tex. App.—Austin Mar. 25, 2015, pet. denied) (mem. op.) ).
Unlike EBS Solutions , this appeal reveals no conflict or inconsistency in our jurisprudence that might require clarification by the en banc court. Moreover, the City, in moving for en banc reconsideration, does not argue that the panel's treatment of jurisdiction deviated from this Court's precedent. Nor does the en banc opinion suggest as much. Thus, the first criterion is not satisfied.
Rule 41.2(c) also allows for en banc consideration under "extraordinary circumstances." Tex. R. App. P. 41.2(c). As one commentator recently observed, this phrase is undeniably "vague" and has yet to be explored in a precedential opinion. See Michael J. Ritter, En Banc Review in Texas Courts of Appeals , 39 REV. LITIG. 377, 378 (2020). Justices from this Court have suggested that "extraordinary circumstances" include the need to decide an issue on which other courts of appeals disagree, the need to address an issue of statewide significance or unusual interest to the public, and the need to overturn a prior decision of this Court. Twigland Fashions Ltd. v. Miller , 335 S.W.3d 206, 226 (Tex. App.—Austin 2010, no pet.) (Jones, C.J., concurring in denial of en banc reconsideration); see also Texas Dep't of Fam. and Protective Servs. v. Grassroots Leadership, Inc. , No. 03-18-00261-CV, 2019 WL 6608700, *2 (Tex. App.—Austin, Dec. 5, 2019, order) (Triana, J., dissenting from denial of en banc reconsideration). None of those circumstances is present here. And while this list of qualifying circumstances is, no doubt, not exhaustive, this case lacks any other aspect or component that might arguably rise to the kind of "extraordinary circumstance" contemplated by Rule 41.2(c).
In short, the City and a majority of this Court's justices called for en banc reconsideration only because they believe the panel misconstrued governing precedent in deciding the case. But the mere fact that "the en banc majority simply disagree[ ] with the result that the panel majority reached ... is not a proper standard for granting en banc consideration." Rodriguez v. Cuellar , 143 S.W.3d 251, 265 (Tex. App.—San Antonio 2004, pet. dism'd) (López, C.J., dissenting) (citing Madeksho v. Abraham, Watkins, Nichols & Friend , 112 S.W.3d 679, 694 n.4 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (Hudson, J., dissenting); 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 reconsideration); Schindler Elevator Corp. v. Anderson , 78 S.W.3d 392, 424–25 (Tex. App.—Houston [14th Dist.] 2001, pet. granted, judg. vacated) (Frost, J., concurring in denial of en banc consideration); Crestway Care Ctr., Inc. v. Berchelmann , 945 S.W.2d 872, 874–75 (Tex. App.—San Antonio 1997 orig. proceeding [leave denied]) (Green, J., dissenting)).
Rule 42.1(c) exists to ensure a balance between society's competing needs for jurisprudential clarity and judicial economy. To that end, the rule outlines two narrow criteria for en banc consideration of cases pending before the courts of appeals. Because neither criterion is satisfied in this case, I respectfully dissent from the Court's decision to grant the City's motion for en banc reconsideration.