Unusual opinion on motion for rehearing in sovereign immunity case sheds light on internal wrangling and lack of collegiality on three-member court of appeals in Waco.
Texas A&M University v. Bading, No. 10-05-00139-CV (Tex.App.- Waco, Nov. 15, 2007)(per curiam opinion on rehearing) (university's plea to the jurisdiction sustained on appeal)
Full style: Texas A&M University v. Ryan Bading, Javier Garza, Aaron Horn, Joe Jackson, Andrew McDow, Michael Rusek, Ty Sorell, Scott-Macon, LTD., Texas Aggie Bonfire Committee, Trevor Jon Saari, H.B. Zachry Company, Zachry Construction Corporation, Harry Eugene Couch, Jr.,--Appeal from 361st District Court of Brazos County
Disposition: MOTION OR WRIT GRANTED:
Appeal from 361st District Court of Brazos County (Hon. Steven Lee Smith)
Opinion On REHEARING
The Zachry defendants have filed a motion for rehearing that presents ten issues:
1. Whether we addressed every issue raised and necessary to final disposition of the appeal. Tex. R. App. P. 47.1.
2. Whether we considered only the Attorney General’s briefs and oral argument.
3. Whether we should have addressed cross-issues properly briefed by the Zachry defendants that are necessary to final a disposition of the appeal. Id.
4. Whether we should have addressed a specific cross-issue, i.e., does submission of the University’s percentage of responsibility merely as a responsible third party require a waiver of sovereign immunity. Id.
5. Should we have granted the University’s request for a severance? Id.
6. Whether we misapprehended the record by reversing a single order when there were several.
7. Whether we incorrectly referred to the “judgment of the court below” when there was none; they were “orders.”
8. Did we correctly designate our opinion under Rule 47.2? Id. 47.2.
9. Did we violate Rule 47.2(a) by including Chief Justice Gray as a justice participating in the decision? Id. 47.2(a).
10. Did we violate appellate due process due to internal disagreements among the justices of this court?
The Texas Aggie Bonfire Committee and Scott-Macon, Ltd. have filed a joint motion for rehearing, basically adopting issues one through nine set out above. Their tenth issue addresses internal operating procedures, but does not refer to “appellate due process.” They assert two additional issues:
11. Whether our opinion conflicts with other Texas and out-of-state decisions regarding their contribution claims against the University.
12. Whether the Texas Tort Claims Act provides a waiver of sovereign immunity for their contractual indemnity claim.
We requested a response to both motions. The University’s states: “No legal foundation supports Appellees’ contribution, contract, and ‘responsible third party’ claims against Texas A&M University. As a result, the Court was right—this case is ultimately quite simple: because there is no clear and unambiguous legislative or constitutional waiver of the University’s sovereign immunity for Appellees’ third-party claims, the Court properly dismissed their claims for lack of subject-matter jurisdiction. And since that unremarkable conclusion disposed of all of Appellees’ claims, nothing else needed to be said in the Court’s opinion or judgment.” (Emphasis in original.)
We will refer to the movants as “Appellees” unless we are addressing an issue not common to them. Because the first eight issues presented in the motions are virtually identical, we will address them together. Then we will address the two additional issues presented by the Committee and Scott-Macon. Finally, we will address the common ninth and tenth issues concerning the internal procedures that led to our opinion.
FAILURE TO ADDRESS ALL ISSUES
Appellees’ issues one, three, and four assert that we did not address all of the issues necessary to a disposition of the appeal. Because we agree with the University’s position as quoted above, we overrule issues one, three, and four.
CONSIDERATION OF ONLY APPELLANT’S BRIEFS AND ARGUMENT
Appellees apparently believe that we considered only the Attorney General’s briefs and
argument. If so, they misread our opinion. A claim that sovereign immunity has been waived requires a showing of a clear and unambiguous expression of waiver. The Attorney General, on behalf of the University, pointed out that Appellees had failed to identify such a waiver, and we stated our agreement. We fully considered the extensive briefs and arguments of all parties in reaching our decision.[1] We overrule issue two.
SEVERANCE
Issue five asserts that we failed to address a severance question. The University responds that it did not raise severance as an issue on appeal. We overrule issue five.
ONE “ORDER” OR MORE
Appellees’ issues six and seven question our reference to the “judgment” of the court below and whether we intended to reverse various “orders” of the trial court. This point is well taken, and we will modify our judgment accordingly. Issues six and seven are sustained.
OPINION OR MEMORANDUM OPINION
We designated our opinion as an “Opinion” under Appellate Rule 47.2 because the parties presented the appeal as one of first impression. Although Appellees question whether we should have presented more than “basic reasons” for our decision, we believe that the opinion adequately addresses the issue of the University’s claim of sovereign immunity and, as the University points out, sustaining that claim necessarily disposes of all other claims. We thus reject their assertion that we should have expounded further on other issues. We overrule issue eight.
CONTRIBUTION CLAIMS
The Committee and Scott-Macon believe that the Tort Claims Act waives sovereign immunity as to their claims against the University for contribution. The University says that the Tort Claims Act “makes no mention of contribution claims” nor does the statute “even imply consent to contribution claims—much less express consent to such claims in a clear and unambiguous manner.” (Emphasis in original.) We again hold that because there is no clear and unambiguous waiver of sovereign immunity as to such claims, they must be dismissed. We overrule issue eleven.
CONTRACTUAL INDEMNITY CLAIMS
Scott-Macon says that the University’s sovereign immunity has been waived by the Tort Claims Act for its contractual indemnity claims. The University again points to the absence of a reference to such claims in the Act and to the absence of authority for this “untenable argument.” We again hold that because there is no clear and unambiguous waiver of sovereign immunity as to such claims, they must be dismissed. We overrule issue twelve.
INTERNAL PROCEDURES
Appellees assert in issue nine that we violated the appellate rules by noting Chief Justice Gray’s name as a participating justice. The University does not respond directly to this issue.
Appellees are incorrect. As we will demonstrate, Chief Justice Gray approved the opinion under the existing rules of the court and was thus shown as a participating justice.
Ordinarily, we do not publish our internal operating rules or internal discussions, votes, positions taken, or writings.[2] However, because Chief Justice Gray has questioned the legality of our internal procedures and Appellees have, by including these issues in their motions for rehearing, raised the potential for review of our procedures by the Texas Supreme Court, we are compelled to discuss and defend our internal rules and how they were applied in this case.
The Tenth Court of Appeals is a three-justice court. Tex. Const. art. V, § 6; Tex. Gov’t Code Ann. §§ 22.201(k), 22.216(j) (Vernon 2004 & Supp. 2006). Unless a justice is recused or disqualified, we sit as a regular panel of three justices. A majority of a panel constitutes a quorum and the concurrence of a majority of the panel is necessary for a decision. Tex. Const. art. V, § 6 (“The concurrence of a majority of the judges sitting in a section [panel] is necessary to decide a case.”); Tex. Gov’t Code Ann. § 22.222(a), (c) (Vernon 2004). We have adopted Local Rules to supplement the Rules of Appellate Procedure. Tex. R. App. P. 1.2(a); 10th Tex. App. (Waco) Loc. R. 1-19. We have also adopted Internal Administrative Rules (IAR) to govern our administrative duties. Tex. Gov’t Code Ann. § 22.223 (Vernon 2004).[3]
When an appeal is filed, it is assigned by the clerk to one of the three justices on a strict-rotation basis.[4] IAR para. 8. The responsibility for the initial review of motions and other pre-submission matters rests with the assigned justice, who also prepares an initial draft of an opinion on the merits. Id.
We have adopted, and amended, "Procedures for Internal Deadlines for Approval of Opinions and Orders" (Procedures), which set deadlines for the approval or non-approval of the various types of opinions and orders that the court issues. In an appeal such as this, the Procedures specify that the opinion will be issued on the first Wednesday after 42 days (six weeks) after the date it is distributed by the author to the remaining justices. If a reviewing justice does not indicate an intent to concur or dissent by four weeks prior to the issue date, or having indicated such does not distribute a proposed concurring or dissenting opinion by one week prior to the issue date, that justice is deemed to have approved the draft opinion.
This case was filed on March 9, 2005. From that date until June 11, 2007, over two years, the case was assigned to Chief Justice Gray. During that period, several letters covering a variety of subjects were circulated by Chief Justice Gray, approved by the other justices, and transmitted to the parties by the clerk. Chief Justice Gray recommended that the case be advanced and submitted without oral argument, but a majority of the panel voted to hear oral argument. After submission, Chief Justice Gray authored and distributed a draft opinion.[5] It did not receive a second vote. Justice Vance then drafted a competing opinion, which Justice Reyna joined and which was delivered to Chief Justice Gray on June 11, 2007. At that time, the designated author was changed.
On June 22, we received an email from Chief Justice Gray stating: “TAMU v. Bading, 10-05-00139-CV; I thought I was about ready to put my opinion in circulation but I have decided that it is not ready yet.” On July 11, Justice Vance inquired of Chief Justice Gray:
Can you tell me when the dissent will be ready, or should I formally circulate the opinion in order to establish a deadline? It has been a month today since the opinion was circulated and almost two weeks since you: "thought I was about ready to put my opinion in circulation but I have decided that it is not ready yet."
After additional exchanges, Justice Vance proposed to “issue the opinion on July 25, which is the first Wednesday after six weeks after the opinion was circulated.” After still more exchanges, Chief Justice Gray wrote on July 20: “My formal response to your proposed draft is that I am not yet prepared to vote.” In response to Justice Vance’s offer of an additional week, so that the opinion would issue on August 1, Chief Justice Gray sent an email saying:
I appreciate the implied offer but I have could not say any more definitively that I could be ready by then than I could by next Wednesday. The more time I have, the higher probability that I could finish. For example, I have little doubt that I could be ready by the end of August, but due to the uncertainties of life, including what could happen between now and then that is not within my control, could make no promises.
twg
On July 23, Chief Justice Gray wrote: “there is no reason not to extend the date to the final issuance date in August upon my implied request.” Justice Vance replied: “I’ll meet you 60% of the way to August 29 and schedule it to issue on August 15. . . . An August 15 issue date also allows considerably more time than the deadlines provide.” Chief Justice Gray responded:
You do what ever you want to do, but my position always has been and remains that I am unable [sic] commit to any specific date to be ready to vote. Life just does not offer that level of certainty. I may or may not be ready by that date.
twg
Accordingly, on July 23, a majority of the justices on the panel, as authorized by the Procedures,[6] modified the deadlines as follows:
No. 10-05-00139-CV
Texas A&M University v. Bading
This cause was submitted on June 5, 2007. A proposed opinion distributed by Chief Justice Gray, without a Distribution Date or a Proposed Issue Date, was not joined by either of the other Justices.
An alternate draft opinion by Justice Vance was approved by Justice Reyna on June 11 and the designation of authorship for the case changed. The alternate draft opinion was delivered to Chief Justice Gray on June 11, 2007.
Paragraph 3.01 of the Procedures for Internal Deadlines for Approval of Opinions and Orders allows six weeks from distribution of an opinion until the Proposed Issue Date. More than six weeks have elapsed since two Justices approved the draft majority opinion in this case.
Applying Paragraph 8.01 of the Procedures, the Issue Date for the majority opinion in this case is set for Wednesday, August 15, 2007. The Final Response Date for purposes of Paragraph 4.01 of the Procedures is set as August 8, 2007, and failure to act by that date constitutes approval of the draft majority opinion authored by Justice Vance to be issued on August 15, 2007.
This modified procedure is adopted this 25th day of July, 2007.
________________________________
Tom Gray
_s/ Bill Vance ____________________
Bill Vance
_s/ Felipe Reyna __________________
Felipe Reyna
(Emphasis added.) Chief Justice Gray wrote a handwritten “dissent” to the action of the majority in adopting the modified procedure.
Having received no response by August 8, Justice Vance wrote Chief Justice Gray on August 10:
Per your request, this is a courtesy notice in advance of the issuance of the opinion in TAMU v. Bading without your response under the deadlines.
This accelerated interlocutory appeal was argued and submitted on June 6, over nine weeks ago. Your proposed opinion did not garner a majority of the votes. An opinion that I drafted was approved by a majority of justices on June 11, over eight weeks ago. To date, no concurring or dissenting opinion has been given to us for our review. You have said, however, "You do what ever you want to do, but my position always has been and remains that I am unable commit to any specific date to be ready to vote. Life just does not offer that level of certainty. I may or may not be ready by [August 15]. twg"
In light of all the pending matters arising out of the same underlying event, the parties are entitled to be promptly informed of the decision we have reached.
Under the modified procedure approved on July 25, the Final Response Date in this case was August 8, so the opinion will issue as a unanimous opinion on August 15. ("failure to act by [the Final Response Date] constitutes approval of the draft majority opinion authored by Justice Vance to be issued on August 15, 2007") [sic]
I trust that the proposed opinion that your [sic] circulated back in June correctly reflected your view of how the legal issues presented in this appeal should be resolved. It should be easy to convert that to a concurring opinion to be issued next week with my opinion.
Chief Justice Gray replied:
Bill,
Your email begins with multiple false premises and continues in that vein throughout. If you "do what you want to do," as I feel certain you, will empowered as you are with the second vote from Felipe, I will again have to follow it up with a special note, as I did last week in TxDot v. York.
twg
The opinion was issued as scheduled on August 15.
Various rules impose deadlines at every step of the appellate process, from the overruling of a motion for new trial by operation of law after 75 days to the automatic denial of a motion for rehearing in the Texas Supreme Court if not decided within six months.[7] See, e.g., Tex. Const. art. V, § 31(d); Tex. R. Civ. P. 329b(c). Furthermore, Appellate Rule 41.1(c) allows for the issuance of an opinion by two justices, after argument, when one cannot participate “for any reason.” Tex. R. App. P. 41.1(c). This case was submitted on oral argument on June 6, 2007.
Under the rules governing the issuance of opinions, Chief Justice Gray approved the draft majority opinion. He alone decided not to affirmatively vote to join the opinion or to dissent from or concur in the judgment in this case in a timely manner. He is not disqualified; he has not recused himself. Thus, he remains a member of the panel assigned to the case. The decision reflected by the “Special Note” is his alone.
We overrule issue nine.
In issue ten, Appellees say that our internal operating procedures have rendered them “innocent victims” in a way that violates their “appellate due process” rights. The University responds by noting that no authority is cited in support of this issue. Nothing is presented for review. We overrule issue ten.
CONCLUSION
We have overruled rehearing issues one through five and eight through twelve. We sustain issues six and seven. We withdraw our judgment dated August 15, 2007, and issue a modified judgment to reverse the “orders” of the trial court denying the University’s pleas to the jurisdiction and render an order granting the University’s pleas and dismissing all of Appellees’ trial-court claims for lack of jurisdiction. In all other respects the Appellees’ motions for rehearing are overruled.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Additional Special Note by Chief Justice Gray)
Motions for rehearing granted in part; denied in part
Judgment withdrawn; modified judgment issued
Opinion delivered and filed November 14, 2007
[1] We again note that our decision is based on a prior version of Section 33.004 of the Civil Practice and Remedies Code, no longer in effect, which allowed findings of responsibility of “persons” over which the court has jurisdiction. We express no opinion about whether an entity that enjoys sovereign immunity can be designated as a responsible third party under the current version.
[2] In an earlier case in which a party, in a motion for rehearing, claimed that an opinion on the affirmative vote of two justices obviated potential appellate jurisdiction of the Supreme Court of Texas and was erroneous, we attached the then-current version of our "Procedures for Internal Deadlines for Approval of Opinions and Orders." Tesmec USA, Inc. v. Whittington, 192 S.W.3d 178, 183-88 (Tex. App.—Waco 2006, pet. denied) (op. on rehearing). The Procedures have since been amended and have proven to be workable.
[3] Court-adopted rules cannot be inconsistent with the constitution. See Starnes v. Holloway, 779 S.W.2d 86, 96 (Tex. App.—Dallas 1989, writ denied). "A statute controls over a procedural rule." In re Chu, 134 S.W.3d 459, 466 (Tex. App.—Waco 2004, orig. proceeding).
[4] The exception is companion cases that are assigned to the same justice.
[5] Demonstrating sufficient time to consider the appeal.
[6] The relevant part of Paragraph 8.01 provides: “Any procedure or deadline specified herein may be changed, modified, or suspended in any case by a majority vote of the Justices on the panel.”
[7] According to an informal survey that we conducted, the Texas Supreme Court and approximately half of the fourteen courts of appeals have some kind of internal deadlines for the approval of opinions.
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