PER CURIAM
Appellant, Gary Dean Wilson's, motion for en banc reconsideration is overruled. In accordance with Texas Rules of Appellate Procedure 49.7, the motion was submitted to the en banc court. Under Texas Rules of Appellate Procedure 41.2 (a), the en banc court "consists of all members of the court who are not disqualified or recused and-if the case was originally argued before or decided by a panel-any members of the panel who are not members of the court but remain eligible for assignment to the court." Tex. R. App. 41.2(a). In this case, the en banc court is comprised of 10 members, the nine regular members of the Court, and Justice Evans, who was a member of the panel deciding the case, but not a member of the Court, yet one who remains eligible for assignment to the Court.
"While the court of appeals has plenary jurisdiction, a majority of the en banc court may, with or without a motion, order en banc reconsideration of a panel's decision . . . ." Tex.R.App.P. 49.7.
The Honorable Frank G. Evans, retired Chief Justice, Court of Appeals, First District of Texas, particpating by assignment.
The vote of the en banc court on the motion resulted in a five to five tie. Pursuant to Texas Rules of Appellate Procedure 49.7, for a motion for en banc reconsideration to carry, it must receive a favorable vote from a majority of the members of the en banc court. Tex.R.App.P. 49.7. Not having received such a vote, the motion fails.
It is so ORDERED.
SCHNEIDER and Justices HEDGES, NUCHIA, ANDELL, and TAFT voted to deny the motion for en banc reconsideratin of the panel's decision.
Justices COHEN, MIRABAL, O'CONNOR, and WILSON and EVANS voted to grant the motion for en banc reconsideration of the panel's decision.
Justices COHEN, MIRABAL, O'CONNOR, and WILSON agree with Justice EVANS' dissenting opinion.