OPINION
SHERRY RADACK, Chief Justice.
On this date, the court considered appellee's motion for rehearing and motion for en banc reconsideration. We deny the motion for rehearing, but withdraw our opinion and judgment of May 29, 2008 and issue this opinion in their stead. As we have issued a new opinion, we dismiss appellee's motion for en banc reconsideration as moot. See Brookshire Bros. v. Smith,
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