Opinion
14-18-00967-CV
09-23-2021
WERNER ENTERPRISES, INC. AND SHIRAZ A. ALI, Appellants v. JENNIFER BLAKE, INDIVIDUALLY AND AS NEXT FRIEND FORNATHAN BLAKE, AND AS HEIR OF THE ESTATE OF ZACKERYBLAKE, DECEASED; AND ELDRIDGE MOAK, IN HIS CAPACITY ASGUARDIAN OF THE ESTATE OF BRIANNA BLAKE, Appellees
On Appeal from the 127th District Court Harris County, Texas Trial Court Cause No. 2015-36666
ORDER
PER CURIAM
On July 27, 2021, this court ordered en banc consideration of this case. On August 12, 2021, appellants Werner Enterprises, Inc. and Shiraz A. Ali (collectively, the "Werner Parties") filed a "Motion to Reconstitute En Banc Court and to Accelerate En Banc Consideration With Argument," in which the Werner Parties asked this court to (1) determine that the Honorable Kem Thompson Frost, Chief Justice (retired), should be included as a member of the en banc court in this case, (2) grant oral argument, and (3) allow supplemental briefing. Appellees Jennifer Blake, Individually and as Next Friend for Nathan Blake, and as Heir of the Estate of Zackery Blake, Deceased, and Eldridge Moak, in his capacity as Guardian of the Estate of Brianna Blake (collectively, the "Blake Parties") filed a response in opposition, in which they argued that this court should deny the motion.
I. The Werner Parties' Request to Reconstitute the En Banc Court
This appeal was originally submitted to a panel comprised of then Chief Justice Frost and Justices Wise and Hassan, which heard oral argument on October 23, 2019. Chief Justice Frost retired from the court on December 31, 2020, and, on January 12, 2021, the case was resubmitted to a new panel consisting of Justices Wise, Hassan, and Wilson. En banc consideration was ordered in this case approximately six months later. Citing Texas Rule of Appellate Procedure 41.2, the Werner Parties argue that retired Chief Justice Frost should be included as a member of the en banc court for the purposes of this appeal.
In relevant part, Rule 41.2(a) states as follows:
Constitution of En Banc Court. An en banc court consists of all members of the court who are not disqualified or recused and - if the case was originally argued before or decided by a panel - any members of the panel who are not members of the court but remain eligible for assignment to the court.Tex. R. App. P. 41.2(a). Under this Rule, the en banc court is comprised of all current members of the court and those former panel members that are "eligible for assignment to the court." Id.
To be "eligible for assignment", a retired judge must elect to be a judicial officer in accordance with Texas Government Code section 75.001. See Tex. Gov't Code Ann. § 75.001; see also Greene v. State, 324 S.W.3d 276, 281 (Tex. App.- Austin 2010, no pet.) (noting that the trial court judge "made an election under section 75.001 of the government code to sit by assignment after her retirement"); Hennington v. State, 144 S.W.3d 42, 44 (Tex. App.-Eastland 2004, pet. ref'd) (citing section 75.001 and noting that, "[u]pon his retirement, the retired judge made an election to continue serving as a senior judge"); and Lone Star Indus., Inc. v. Ater, 845 S.W.2d 334, 337 (Tex. App.-El Paso 1992, no pet.) (holding that "a retiree judge must comply with Section 75.001 before he or she is qualified to be assigned or accept assignment").
Chief Justice Frost has not elected to be a judicial officer under Texas Government Code section 75.001. Accordingly, she is not "eligible for assignment to the court." See Tex. R. App. P. 41.2; see also Greene, 324 S.W.3d at 281; Hennington, 144 S.W.3d at 44; and Lone Star Indus., Inc., 845 S.W.2d at 337. This court, sitting en banc, therefore DENIES the Werner Parties' request to include Chief Justice Frost as a member of the en banc court for the purposes of this appeal.
II. The Other Requested Relief
This court, sitting en banc, GRANTS the Werner Parties' motion to the extent that the Werner Parties request the court to allow supplemental briefing and DENIES the remainder of the motion. The parties may, if they choose to do so, file a supplemental brief. On October 28, 2021, this appeal will be submitted to the en banc court without oral argument on the briefs and record. The Werner Parties' supplemental brief, if any, shall be filed by October 7, 2021. The Blake Parties' supplemental brief, if any, shall be filed by October 21, 2021.
En Banc Court consists of Chief Justice Christopher and Justices Wise, Jewell, Bourliot, Zimmerer, Spain, Hassan, Poissant, and Wilson. Chief Justice Christopher and Justices Wise, Jewell, and Wilson would grant oral argument.