# Brown v. Bryan County, OK

> Court of Appeals for the Fifth Circuit · December 14, 2000 · 235 F.3d 944

URL: https://www.frixlaw.com/law-library/cases/22761

## Case

- **Full name:** Jill BROWN, Plaintiff-Appellee-Cross-Appellant, v. BRYAN COUNTY, OK; Et Al., Defendants, Bryan County, OK, Defendant-Appellant-Cross-Appellee, Stacy Burns, Defendant-Cross-Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** December 14, 2000
- **Citations:** 235 F.3d 944; 2000 WL 1839440
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Garza, Jolly, Demoss
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/22761

## Opinion text

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________

No. 98-40877
______________________

JILL BROWN
Plaintiff - Appellee-Cross-Appellant

v.

BRYAN COUNTY, OK; ET AL
Defendants

BRYAN COUNTY, OK
Defendant - Appellant-Cross Appellee

STACY BURNS
Defendant - Cross-Appellee

-------------------------
Appeals from the United States District Court for the
Eastern District of Texas, Sherman
-------------------------
December 14, 2000
ON PETITION FOR REHEARING AND REHEARING EN BANC
(Opinion 7/18/00, 5 Cir., 2000, 219 F.3d 450)

Before REYNALDO G. GARZA, JOLLY, and DeMOSS, Circuit Judges.

PER CURIAM:

The Petition for Rehearing is DENIED and the Court having been polled at the request
of one of the members of the court and a majority of the judges who are in regular
active service not having voted in favor, (FED. R. APP. P. and 5TH CIR. R. 35) the Petition
for Rehearing En Banc is also DENIED.

ENTERED FOR THE COURT:

/s/ E. Grady Jolly
E GRADY JOLLY
United States Circuit Judge

DISSENT FROM ORDER DENYING REHEARING EN BANC

DeMOSS, Circuit Judge:

I file this dissent to the Order entered herein denying the

Petition for Rehearing En Banc for the following reasons:

1. While the Order denying relief is technically correct in

stating that a majority of the judges who are in regular active

service did not vote in favor of en banc reconsideration, I think

the actual vote by this Court on that issue should be stated:

seven judges voted for en banc reconsideration and seven judges

voted against en banc reconsideration. This tie vote reflects the

depth of disagreement as to whether the conclusions of law reached

by the majority in the panel opinion in this case are correct. I

state this as a matter for the public record in order to encourage

Bryan County to apply for a writ of certiorari to the United States

Supreme Court and to encourage the Supreme Court to grant

certiorari in this case and clearly decide the issue which was not

before it in the prior appeal of this case to the Supreme Court.

The second reason I file this dissent is to disclose that

during the course of balloting on whether this Court would

reconsider this case en banc, the votes at one point were eight to

four in favor of en banc reconsideration with two judges not yet

voting. Shortly thereafter, one of the judges who had not

previously voted, voted for en banc reconsideration and one of the
judges who had previously voted for en banc reconsideration

switched his vote to against en banc reconsideration. Shortly

thereafter, another judge who had previously voted for en banc

reconsideration switched his vote to against en banc

reconsideration and the judge who had not previously voted at all,

voted against en banc reconsideration. In my tenure on this Court,

this is the first occasion in which vote switching at the very end

of the balloting had such a dramatic effect. In my view, the

manner in which this tie vote was achieved is a further indication

of the inconclusiveness of this tie vote as an indicator of the

correctness of the majority opinion.

3

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/22761. Public record. Not legal advice.