Tangled Transfers

Originally published by David Coale.

The complex structure of Texas’s intermediate appellate courts was the subject of Justice Schenck’s concurrence from the denial of en banc review in Brooks-PHS Heirs, LLC v. Bowerman, a docket-equalization transfer from San Antonio. The opinion observes: “When one intermediate court of appeals sits in the place of another, it applies the precedent of the transferor court. Tex. R. App. P. 41.3. Of course, we (or more directly I as the author) have endeavored to do that here, applying San Antonio precedent to arrive at the result we think that appellate court would reach. The question of whether that application is correct at this point is essentially out of reach of the en banc review mechanism as it is described in rule 41.2, as the panel has already applied what it sees as San Antonio law; our remaining colleagues that constitute the en banc court in Dallas could likewise only predict how San Antonio would rule; and the San Antonio Court of Appeals has no seat at the table. See id. 41.2 (decision by en banc court).” No. 05-18-00356-CV (July 5, 2019) (emphasis added).

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