Court of Appeals of Texas,

Waco.

PACIFIC EMPLOYERS INSURANCE COMPANY, Appellant

v.

William Ira MATHISON, Appellee.

No. 10-04-00314-CV.

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Oct. 19, 2005.

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Rehearing Overruled Dec. 6, 2005.

Attorneys & Firms

Charles M. Carr, III, Smith & Carr P.C., Houston, for Appellant/Relator.

Jeff Paradowski, Attorney at Law, Bryan, for Appellee/Respondent.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

MEMORANDUM OPINION

BILL VANCE, Justice.

*1 This is a worker’s compensation case. The jury found that William Ira Mathison (“Mathison”) was in the course and scope of his employment when he was involved in a motor vehicle accident on August 23, 2002. Pacific Employers Insurance Company (“Pacific”) appeals this finding as legally and factually insufficient. We will affirm.

BACKGROUND

The Texas Workers’ Compensation Commission Appeals Panel upheld a Hearing Officer’s determination that Mathison was not within the course and scope of his employment at the time of the motor vehicle accident on August 23, 2002. Mathison filed a lawsuit in district court seeking judicial review of these determinations. After a jury trial, the trial court overruled Pacific’s Motion for Directed Verdict and entered judgment that Mathison was in the course and scope of his employment at the time of the accident.

Mathison worked as a welder for BP America, Inc. (“employer”). He worked as part of a “self-directing” unit operating out of Mexia, Texas. The principal office of his employer is located in Texas City, Texas and maintains a trucking facility in Bryan, Texas. Mathison was issued an employer-owned laptop computer to be used for entry of his time, entry of his expenses, communication with the Texas City office, and other company related business. Prior to August 23, 2002, Mathison began to experience difficulties with his laptop computer. He arranged to meet the employer’s computer consultant at the Bryan facility to inspect and attempt to repair his computer. Mathison drove his personal vehicle to Bryan on August 23, 2002, and during the afternoon, the consultant informed Mathison that he would need to carry Mathison’s laptop computer to his Texas City office to repair it. Mathison then left to return to Mexia. Approximately 15 miles from the Bryan facility, Mathison was in an accident. He had extensive injuries and remained off work for almost one year.

STANDARD OF REVIEW

A no-evidence point must and can only be sustained when the record reveals: (1) a complete absence of evidence of a vital fact; (2) rules of law or rules of evidence bar the appellate court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; and (4) the evidence conclusively establishes the opposite of a vital fact. Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990) (citing Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361, 362-63 (1960)). We must credit favorable evidence if reasonable fact finders could, and disregard contrary evidence unless reasonable fact finders could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). Generally, if the court of appeals sustains a “no evidence” point, it is the court’s duty to render judgment for appellant. Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176 (Tex.1986) (quoting Nat’l Life Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex.1969)).

*2 When we review an “insufficient-evidence” point challenging the factual sufficiency of the evidence to support a finding that favors the party who had the burden of proof on that finding, we may set aside the finding only if a review of all the evidence, both for and against the finding, demonstrates that the finding is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex.App.Waco 2000, pet. denied). We may not pass upon the witnesses’ credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a different result. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998); Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex.1986). Reversal could occur because the finding was based on weak or insufficient evidence or because the proponent’s proof, although adequate if taken alone, is overwhelmed by the opponent’s contrary proof. Checker Bag, 27 S.W.3d at 633 (citing William Powers, Jr. & Jack Ratliff, Another Look at “No Evidence” and “Insufficient Evidence,” 69 Tex. L.Rev. 515, 519 n. 11 (1991)).

COURSE AND SCOPE OF EMPLOYMENT

Texas Labor Code section 401.011(12) states:

(12) “Course and scope of employment” means an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations. The term does not include:

(A) transportation to and from the place of employment unless:

(i) the transportation is furnished as a part of the contract of employment or is paid for by the employer;

(ii) the means of the transportation are under the control of the employer; or

(iii) the employee is directed in the employee’s employment to proceed from one place to another place;

…

Tex. Labor Code Ann. § 401.011(12) (Vernon Supp.2004-05). The third exception under section 401.011(12) is known as the “special mission” exception. See Evans v. Illinois Employers Ins. of Wausau, 790 S.W.2d 302, 304 (Tex.1990). The Texas Supreme Court has stated: “We construe this exception to include those situations in which the employee proceeds from one place to another under the terms of an employment which expressly or impliedly requires that he do so to discharge the duties of his employment.” Jecker v. Western Alliance Ins. Co., 369 S.W.2d 776, 779 (Tex.1963), overruled on other grounds by McKelvy v. Barber, 381 S.W.2d 59 (Tex.1964).

Mathison’s supervisor testified that (1) an employee of a self-directed unit is expected to do what is necessary to get something fixed and to get their job done; (2) a laptop computer is considered an essential piece of equipment for workers like Mathison; (3) he would not have wanted Mathison to call him concerning his broken laptop computer; (4) Mathison did what he expected him to do in taking the computer to Bryan to get it fixed and considered this in furtherance of the employer’s business. We find that Pacific has failed to demonstrate that there is no evidence or insufficient evidence to support the jury’s finding. See Juliette Fowler Homes, 793 S.W.2d at 666 n. 9; Cain, 709 S.W.2d at 176; Checker Bag, 27 S.W.3d at 633. Mathison was impliedly directed by his employer to take his laptop computer to Bryan to have it fixed, and thus, he was acting in the course and scope of his employment at the time of the accident on August 23, 2002. See Tex. Labor Code Ann. § 401.011(12); Jecker, 369 S.W.2d at 779.

*3 We overrule the issue.

CONCLUSION

We affirm the judgment.

Special Note by Chief Justice GRAY.

TOM GRAY, Chief Justice.

SPECIAL NOTE

At some point the Supreme Court or the Court of Criminal Appeals will have to decide whether opinions and judgments voted on by only two justices on this Court are proper. See Krumnow v. Krumnow, No. 10-04-00143-CV, 2005 Tex.App. LEXIS 7027, 2005 WL 2044854, — S.W.3d —- (Tex.App.-Waco August 24, 2005, no pet. h.)(Special note by Chief Justice Gray issued August 31, 2005).

This is an important case to which I have been unable to devote the time and attention I believe it deserves before I can vote. Thus, by rushing its release, the majority deprives me of the opportunity to spend the time I believe is necessary to review and vote on the result of the case. They deprive me of the very opportunity they have on every one of the opinions that I draft for their review. They have all the time they need, not because I give it, though I would do so freely. They have the time because it is the appropriate deferral to their discretion as a justice on this Court. I also believe the full review by three judges is necessary for the proper functioning of our appellate court system.

By the procedure they have chosen to use, they also deprive the litigants of the considered vote of all members of the panel to which this case has been assigned. I think the litigants are entitled to have all the members of the panel to which the case is assigned consider and vote on the result of the appeal. Indeed, by issuing the opinion in this manner, the majority may be suppressing a dissenting opinion, the issuance of which would then give the Texas Supreme Court jurisdiction to review the majority’s opinion. Tex. Gov’t Code Ann. § 22.001(a)(1) (Vernon 2004); see also Tex.R.App. P. 56.1(a)(1).

The release of the opinion in this case should await the time with patience until I have had the time to review it, and my vote returned. Accordingly, at this time I can neither vote to affirm nor vote to reverse the judgment of the trial court.

BILL VANCE, Justice, concurring.

Chief Justice Gray implies, without specifically saying, that our opinion is invalid because it was approved by only two justices, but he has opined that Appellate Rule 41.1(a) requires that all three justices of a three-justice court of appeals actually participate in the decision of a case submitted without argument.¹ See Tex.R.App. P. 41.1(a). Substantial authority refutes his interpretation.

First, it appears from the express wording of the Rule that it does not apply to three-justice courts.² It begins “Unless a court of appeals with more than three justices….” Id.

Second, as I noted in an earlier case, requiring all three justices to participate in such a decision is not a reasonable interpretation of the Rule and is contrary to the Texas Constitution and the Texas Government Code. See Texas Parks & Wildlife Dept. v. E.E. Lowrey Realty, Ltd., No. 10-02-00317-CV, 2004 WL 2481000, at *1-2 (Tex.App.-Waco Nov.10, 2004, pet. filed) (Vance, J., concurring). Article V, section 6 of the Texas Constitution provides: “The concurrence of a majority of the judges sitting in a section [panel] is necessary to decide a case.” Tex. Const. art. V, § 6. Section 22.222(c) of the Texas Government Code provides: “A majority of a panel constitutes a quorum for the transaction of business, and the concurrence of a majority of a panel is necessary for a decision.” Tex. Govt.Code Ann. § 22.222(c) (Vernon 2004). 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). “Of course, a statute controls over a procedural rule.” In re Chu, 134 S.W.3d 459, 466 (Tex.App.-Waco 2004, orig. proceeding).

Third, Chief Justice Gray’s interpretation is contrary to a prior decision of the Texas Supreme Court. In Nalle v. City of Austin, 85 Tex. 520, 22 S.W. 668 (1893), the Supreme Court observed:

Hence, if it should be held that a full bench is necessary to make a quorum, the result would be, that in the event of the absence of one of the judges by reason of sickness or from any other cause, the business of the court would remain in suspense until the absent member should be present. Such a rule would be fraught with mischief, and would tend to obstruct the accomplishment of the very purpose for which the Courts of Civil Appeals were created.

Id. at 671. The Court proceeded, “if two be a quorum, and two be qualified and able to agree, no additional judge is requisite to a decision of the case, although the third member of the court be recused.” Id. And finally, “[w]e conclude, therefore, that the disqualification of Judge Key did not make requisite the appointment of a special judge, and that the court composed of his two associates constituted a lawful tribunal for the trial and determination of the case.” Id. at 672.

More recent precedent also rejects such an interpretation. See Hoyt v. Hoyt, 351 S.W.2d 111, 114 (Tex.Civ.App.-Dallas 1961, writ dism’d w.o.j.). After noting that Associate Justice Williams chose not to participate in the decision because he had been the trial judge (although not legally disqualified), the majority in Hoyt said that even the disqualification of one member does not prevent the other members from lawfully proceeding. Id. (citing Nalle ). In Dickinson State Bank v. Ogden, a judgment was held valid when one member of a panel had been elected to the Supreme Court after the case was submitted on oral argument and the case was then decided by the remaining panel members. Dickinson State Bank v. Ogden, 624 S.W.2d 214, 222 (Tex.Civ.App.-Houston [1st Dist.] 1981), rev’d on other grounds, 662 S.W.2d 330 (Tex.1984) (on rehearing).

Furthermore, such an interpretation creates an absurd result by giving one member of the court a virtual veto over any opinion in an unargued case with which that member does not agree. As long as the “dissenting” member is not disqualified or recused and remains on the panel, no opinion could issue.³ The suggested interpretation of the Rule is “fraught with mischief.” Nalle, 22 S.W. at 671.

Because we can reasonably construe Rule 41.1(a) so that it does not conflict with the constitution or the statute, we should do so. See Collins v. Ison-Newsome, 73 S.W.3d 178, 184 (Tex.2001) (Jefferson, J. concurring) (“When a procedural rule conflicts with a statute, the statute controls unless the rule repeals the statute under Texas Government Code section 22.004.”) (citing Johnstone v. State, 22 S.W.3d 408, 409 (Tex.2000)). A reasonable construction of the rule, if it even applies, is that two justices on a three-member court of appeals may decide a case submitted without argument when the third justice voluntarily elects not to participate in the decision.

Chief Justice Gray decided to not join (or not disagree with) the opinion issued in this case. 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. In deciding to not vote in this case, he has chosen to disregard his own interpretation of Rule 41.1(a) and to allow this case to be decided by two justices. What, then, is the real reason for not participating?

The answer appears to lie in his attack on the timing of the issuance of the opinion, saying he should have more time “to review and vote on the result in the case.” This is essentially the same complaint made in a “Special Note” filed in Krumnow v. Krumnow, an accelerated appeal that was submitted on oral argument. Krumnow v. Krumnow, No. 10-04-00143-CV, 2005 WL 2044854, at *7 (Tex.App.-Waco Aug.24, 2005, no pet. h.) (Gray, C.J., Special Note filed Aug. 31, 2005). It has become a pattern.⁴

Internal Administrative Rules govern both the administrative and adjudicative functions of this court. Under those Rules, a majority of the elected justices (Chief Justice Gray voting “no”) has adopted rather detailed internal rules and deadlines for opinions, non-dispositive orders, and opinions on rehearing in civil and criminal cases and for opinions after the filing of a petition for discretionary review in criminal cases.⁵ In a case like this, each reviewing (non-authoring) justice has fourteen days to join an opinion or indicate the intent to file a dissenting or concurring opinion. If the fourteen-day period passes without either having occurred, that reviewing justice is deemed to have approved the draft opinion. If the intent to dissent or concur is noted, an additional twenty-one days is allowed to draft an opinion.

The deadline rules were followed in this case. It thus appears that the strategy is to avoid the consequences of the court’s deadlines for the approval of opinions by invoking Rule 41.1(a) in an attempt to gain a veto over the issuance of any opinion with which he does not agree.

	Footnotes
1		A dissent to an order in Texas Parks and Wildlife v. E.E. Lowrey Realty, Ltd. says that an opinion issued by two justices is “a direct violation of Rule of Appellate Procedure 44.1(a).” Texas Parks & Wildlife Dept. v. E.E. Lowrey Realty, Ltd., No. 10-02-00317-CV, 2004 WL 2481000, *1 (Tex.App.-Waco Nov.3, 2004) (order) (Gray, C.J., dissenting) (not designated for publication).
2		Because there are four other three-justice courts (Texarkana, El Paso, Tyler, and Eastland), this issue could arise in them as well.
3		Appellate Rule 41.1(c) provides that, after argument, if for any reason a member of the panel cannot participate in deciding a case, the case may be decided by the two remaining justices. See Tex.R.App. P. 41.1(c). There appears to be no reason to allow two justices to decide an argued case but require all justices to participate in the decision in an unargued case.
4		The same decision to not vote or participate is reflected in a Special Note filed in Park v. Montgomery County, No. 10-04-00231-CV, 2005 WL 2667488, at *3-4 (Tex.App.-Waco Oct.19, 2005) (C.J. Gray Special Note).
5		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.