Texas Rule of Appellate Procedure (TRAP) 49 governs the filing of motions for rehearing and motions for en banc reconsideration in the courts of appeals. For some time, litigants and courts have labored to understand the rule’s provisions governing the timing for filing a motion for en banc reconsideration. Notably, the Dallas Court of Appeals convened en banc and generated three separate opinions regarding the deadline to file a motion for en banc reconsideration under Rule 49.7. See Cruz v. Ghani, 593 S.W.3d 376 (Tex. App.—Dallas 2019, pet. denied). The problem arose because the rule specified that motions for en banc reconsideration “must be filed within 15 days after the court of appeals’ judgment or order, or when permitted, within 15 days after the court of appeals’ denial of the party’s last timely filed motion for rehearing or en banc reconsideration.” TRAP 49.7 (emphasis added). It was uncertain what the term “when permitted” meant.
On May 25, 2021, the Texas Supreme Court and the Texas Court of Criminal Appeals approved rule changes that clarified Rule 49. The order can be located here. The amendments to Rule 49 rearranged the Rule to define better which provisions apply to motions for rehearing and which provisions apply to motions for en banc reconsideration. On the timing question, the revised rule states the motion for en banc reconsideration “must be filed within 15 days after the court of appeals’ judgment or order is rendered.” Amended TRAP 49.5. This revised provision parallels the time for filing a motion for rehearing, which “may be filed within 15 days after the court of appeals’ judgment or order is rendered.” TRAP 49.1.
The rule amendments also address other matters. The revised Rule 49.5 states the motion for en banc reconsideration “should address the standard for en banc consideration in Rule 41.2(c).” Amended TRAP 49.5. Rule 41.2(c) provides en banc consideration “should not be ordered unless necessary to secure or maintain uniformity of the court’s decisions or unless extraordinary circumstances require en banc consideration.” TRAP 41.2(c). Further changes were made to other rules—10.4(a)(2), 19.1 notes and comments, 41.2(c), 47.5, and 53.7—generally to harmonize the rules’ language regarding motions for en banc reconsideration.
The amendment of Rule 49.5 appears to answer the question whether motions for rehearing and motions for reconsideration en banc can be filed seriatim, or whether they must be filed concurrently. The amended rule requires the two motions be filed during the same time frame—within 15 days of the court of appeals’ judgment or order. This aligns the state court practice with federal court practice. See Fed. R App. P. 35, 40 (petition for panel rehearing and petition for rehearing en banc are both due 14 days after entry of judgment). This is different, however, than the majority’s interpretation of current Rule 49 in Cruz v. Ghani, 593 S.W.3d at 383, 386. Cruz decided the current rule allows the motion for en banc reconsideration to be filed after the motion for rehearing is denied, even if the court’s judgment or opinion has not been modified.
The amendments will take effect October 1, 2021. However, the amendments may be changed prior to that date in response to public comments. Any comments should be in writing and sent on or before August 31, 2021 to rulescomments@txcourts.gov.
