The Scope of Permissive Interlocutory Appeals in Texas

by Ryan Philip Pitts, an associate in the appellate practice group of Haynes Boone, LLP’s Houston office.

Texas law authorizes a trial court to permit—and a court of appeals to accept—an interlocutory appeal from an otherwise unappealable order if the order “involves a controlling question of law as to which there is a substantial ground for difference of opinion,” and if “an immediate appeal from the order may materially advance the ultimate termination of the litigation.”^[1]Tex. Civ. Prac. & Rem. Code § 51.014(d) (emphasis added).

The Texas courts have long drawn the scope of permissive appeals narrowly. Signs of change—albeit slow spreading—are on the horizon. This article briefly explores the scope of permissive appeals, the harbingers of the change, and some implications for you.^[2]The rules that govern permissive interlocutory appeals are: Texas Civil Practice and Remedies Code § 51.014(d), (f); Texas Rule of Civil Procedure 168; and Texas Rule of Appellate Procedure 28.3. … Continue reading

Texas Permissive Interlocutory Appeals and Their Broader Federal Counterparts

Texas permissive appeals are narrow. Since their inception in Texas, the courts of appeals—including the First and Fourteenth—have restricted their review in permissive appeals to the discrete “controlling” issues that the trial court decided, identified as worthy of immediate appeal, and which a party then raised in petition for review, with review being cabined to the “issue(s)” identified.^[3]E.g., City of Houston v. Hous. Prof’l Fire Fighters’ Assoc., Loc. 341, 626 S.W.3d 1, 23 (Tex. App.—Houston [14th Dist.] 2021, pet. filed); Lakes of Rosehill Homeowners Ass’n, Inc. v. Jones, … Continue reading

The Texas Legislature modeled the Texas permissive-appeal statute on the federal version and the two have nearly identical language.^[4]Compare Tex. Civ. Prac. & Rem. Code § 51.014(d), (f), with 28 U.S.C. § 1292(b); see Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 731 (Tex. 2019) (“[T]he Legislature … Continue reading The Texas and federal judiciaries diverge, however, in their application of that language. In hearing permissive appeals, federal courts have held that they have authority over the entire “order.”^[5]Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 398-99 (5th Cir. 2010) (en banc) (citing Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996). Irrespective of what issues the district court approved for appeal, the reviewing federal court may reach any issue material to or fairly included in the order appealed from.^[6]Id. Texas courts, by contrast, construe the language to cover only discrete, stated issues.

Why does that difference matter? Well, because jurisdiction is everything.^[7]The Texas courts discuss these limitations on permissive appeals in the absolute language of jurisdiction and authority, but their origin is rarely made express. It’s true that Texas courts could … Continue reading While permissive appeals fall within the reviewing court’s discretion, no discretion can exist where jurisdiction doesn’t. The federal courts, given their reading of the permissive-appeal statute, possess discretion within a broader jurisdictional field—the entire order, not enumerated issues. The Texas courts have confined themselves to a narrower jurisdiction; and their discretion is binary: yes-review or no-review to the issues as articulated. So permissive appeals in the Texas system have often been more restricted, technical, and dependent on what exactly the trial court said. (The purpose here is not to opine on the relative merits or demerits of these two approaches—but rather to draw their contours, letting you consider.)

Consider a comparison of Texas and federal rules on the scope of permissive appeals—which, to reiterate, arise from authorizing statutes with materially identical language.

Texas Law

1. A party cannot seek to appeal an interlocutory order on a ground or issue that differs from the basis on which the trial court ruled.^[8]Orion Marine Constr., Inc. v. Cepeda, No. 01-18-00323-CV, 2018 WL 3059756, at *1 (Tex. App.—Houston [1st Dist.] June 21, 2018, no pet.) (mem. op.) (citing City of San Antonio v. Tommy Harral … Continue reading

 

2. The trial court order must have both (1) identified the controlling issues of law and (2) made express, substantive rulings on them.^[9]Dafashy v. Jimenez, No. 01-17-00767, 2017 WL 6001526, at *1 (Tex. App.—Houston [1st Dist.] Dec. 5, 2017, no pet.) (mem. op.) (collecting cases); accord Mid-Continent Cas. Co. v. Harris Cnty. Mun. … Continue reading

 

3. The parties may not add to the trial court’s description of the controlling legal question.^[10]Hous. Prof’l Fire Fighters’ Assoc., 626 S.W.3d at 23; accord Lakes of Rosehill, 552 S.W.3d at 418; Gulf Coast Asphalt Co. v. Lloyd, 457 S.W.3d 539, 544 (Tex. App.—Houston [14th Dist.] 2015, no … Continue reading

 

4. The controlling issue must be a question of law unconstrained by procedural or factual issues.^[11]El Paso Tool & Die Co., Inc. v. Mendez, 593 S.W.3d 800, 805 (Tex. App.—El Paso 2019, no pet.); accord JAJ Equip., Inc. v. Ramos, No. 04-21-00459-CV, 2021 WL 6127925, at *3 (Tex. App.—San … Continue reading

Other, less widely adopted restrictions have been noted as well.^[12]There are two other rules that have been crafted but which have questionable vitality. First, some courts have recited a rule that only one “controlling issue of law” may be considered on appeal. … Continue reading One might wonder why these limitations evolved in the Texas system. The answer does not take much digging. They descend from a Texas Supreme Court directive to “strictly apply statutes granting interlocutory appeals because they are a narrow exception to the general rule that interlocutory orders are not immediately appealable.”^[13]See CMH Homes v. Perez, 340 S.W.3d 444, 447-48 (Tex. 2011) (citing Tex. A & M. Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007); Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 … Continue reading This led Texas courts to rigidly construe not only the permissive-appeal statute itself, but to insist on granular compliance with the court-made rules setting forth the procedural machinery for such appeals.^[14]See Tex. R. Civ. P. 168; Tex. R. App. P. 28.3; supra notes 8-12.

Now, consider the federal rules.

Federal Law (Fifth Circuit)

1. It is the order—not a controlling question of law—that is appealable.^[15]Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 398-99 (5th Cir. 2010) (en banc) (citing Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996); see also United States v. Stanley, 483 … Continue reading

 

2. Any questions material to or fairly included in the lower court’s certified order may be considered on appeal.^[16]Castellanos-Contreras, 622 F.3d at 397-98; U.S. ex rel. Simoneaux v. E.I. duPont de Nemours & Co., 843 F.3d 1033, 1041 (5th Cir. 2016); accord Hernandez v. Results Staffing, Inc., 907 F.3d 354, … Continue reading

 

3. Review of interlocutory summary judgment orders extends only to controlling questions of law material to them.^[17]Simoneaux, 843 F.3d at 1035 (quoting Castellanos-Contreras, 622 F.3d at 397).

One might also wonder at the origin of these more relaxed federal rules. It is no secret. They derive from a plain reading of the permissive-appeal statute. The United States Supreme Court explained: “As the text . . . indicates, appellate jurisdiction applies to the order certified to the court of appeals” and “is not tied to the particular question formulated by the district court.”^[18]Yamaha Motor Corp., 516 U.S. at 205 (Ginsburg, J.). Thus, “the appellate court may address any issue fairly included within the certified order.”^[19]Id.

To sum it up, the Texas courts have relied on a canon of construction to restrict permissive-interlocutory appeals as narrow exceptions to the final-judgment rule.^[20]Questions might exist about the application of such a canon where the Legislature’s directive is clear in the plain text. Cf. State v. Schumake, 199 S.W.3d 279, 284 (Tex. 2006) (“If the statute … Continue reading The federal courts have taken their authority to be that plainly laid out in the statute.

Movement in the Law

Fairly recent decisions out of the Texas Supreme Court could lead an onlooker to reasonably believe that the scope of permissive appeals in Texas may—in a not-too-distant-future—come to mirror federal law. Two decisions in 2019 marked subtle but important shifts in assumptions.

In February 2019, Sabre Travel International, Ltd. v. Deutsche Lufthansa AG held that the Texas Supreme Court may hear a permissive appeal even if an intermediate court of appeals declined it.^[21]567 S.W.3d 725, 730-32 (Tex. 2019). In reaching that conclusion, the Court made important observations. First, “the Legislature modeled section 51.014(d) after the federal counterpart to permissive interlocutory appeals.”^[22]Id. at 731. Second, while permissive appeals are discretionary, the Texas courts of appeals should not decline to hear them when doing so would further their legislative purpose.^[23]Id. at 732. This has led at least some jurists to urge the taking of more permissive appeals. See Moasic Baybrook One, L.P. v. Simien, No. 01-18-00995-CV, 2019 WL 2458991, at *3 (Tex. App.—Houston … Continue reading Third, “[t]he word ‘appeal,’ as used in [the permissive-appeal statute], is conditioned only on the trial court permitting an appeal” and when “the trial court issues an order certifying the case for interlocutory review, it becomes an ‘appeal.’”^[24]567 S.W.3d at 734 (emphasis added). Sabre Travel thus analogized to federal law, encouraged permissive appeals, and painted them as broader than a set of certified issues. But the Sabre Travel Court also repeated the maxim that “[a] departure from the final judgment rule . . . must be strictly construed.”^[25]Id. at 736.

The very next month, however—March 2019—the Texas Supreme Court abandoned that maxim. In Dallas Symphony Association, Inc. v. Reyes, the Court announced: “Limiting appeals to final judgments can no longer be said to be the general rule.”^[26]571 S.W.3d 753, 759 (Tex. 2019). It concluded that the interlocutory-appeal statute should no longer be read strictly.^[27]Id.  The statute should instead receive a “fair reading” to give “effect to all its provisions.”^[28]Id.    While Reyes concerned an interlocutory appeal as of right, the Court’s pronouncement seems to cover interlocutory appeals in general—including permissive ones.^[29]Id. at 759-60. Some courts seem to construe Reyes as narrowly concerning interlocutory appeals as of right. See Kosar v. KPH-Consol., Inc., No. 14-19-00401-CV, 2020 WL 7074223, at *2 (Tex. … Continue reading And perhaps as importantly, the Reyes Court went on to construe the scope of the appeal in that case as of an “order,” which encompassed the trial court’s “ruling on the entire motion, including nonconstitutional grounds, and that the defendants were entitled to summary judgment on all claims against them.”^[30]571 S.W.3d at 755. The Texas Supreme Court’s construction seems in accord with the federal approach.

What happened next? Not a lot. About three years have passed since Sabre Travel and Reyes. But little has changed for permissive appeals. These two decisions did not trigger a reevaluation of the scope of permissive appeals by the intermediate courts of appeals. And the Texas courts have continued to invoke the strict construction rule rejected by Reyes.^[31]See Mayfield v. Worthen, No. 01-20-00669, 2021 WL 5056650, at *2 (Tex. App.—Houston [1st Dist.] Nov. 2, 2021, no pet.) (mem. op.) (“We must strictly apply statutes granting interlocutory appeals … Continue reading Change, if it is coming, has been very slow.

There is one recent and important exception. In Kenyon v. Elephant Insurance Company, LLC—issued in April 2020—the en banc Fourth Court of Appeals addressed the scope of permissive appeals in light of Sabre Travel.^[32]628 S.W.3d 868, 881-82 (Tex. App.—San Antonio 2020, pet. granted) (en banc) (opinion on rehearing). It recognized that Sabre Travel “implicitly abrogated . . . cases strictly confining the scope of review in permissive appeals” and acknowledged the federal standard.^[33]Id. at 882. It thus broadened review of permissive appeals to: (1) “the order or part of the order the trial court granted permission to appeal,” and (2) the issues “identified in a petition for permissive review” to the appellate court.^[34]The Texas Supreme Court has suggested that considering uncertified questions may be discretionary. See BPX Operating Co. v. Strickhausen, 629 S.W.3d 189, 195 (Tex. 2021) (“[T]he trial court’s … Continue reading The Fourth Court did not discuss Reyes. But it did abrogate a prior decision that had been widely relied upon.^[35]The Fourth Court abrogated Gulley v. State Farm Lloyds, 350 S.W.3d 204 (Tex. App.—San Antonio 2011, no pet.), which had been widely cited. See, e.g., Orion Marine Constr., Inc. v. Cepeda, No. … Continue reading

More discussion from the Texas Supreme Court may soon be had. It granted a petition for review from Kenyon on September 3, 2021. Don’t get too excited. The parties did not brief permissive-appeal issues.^[36]The briefing in Kenyon before the Texas Supreme Court may be accessed at the following link: https:‌//search.txcourts.gov/Case.aspx?cn=20-0366&coa=cossup (However, that would not prevent the Texas Supreme Court from opining on issues deemed jurisdictional—so some hope persists.)

*      *      *

The status of Texas law on the scope of permissive appeals is as follows. Sabre Travel and Reyes suggest a standard that tracks the federal rule, under which review may encompass the entire order. The en banc Fourth Court of Appeals adopted a standard close to that. To date, no other Texas court of appeals has done so to this author’s knowledge. But it is an issue ripe for consideration.

Implications for You

In closing—and in light of the (perhaps) changing law—a few practical thoughts have been offered below:

• Consider a permissive appeal if you have an important issue of law that the case would benefit from by early resolution. In Sabre Travel, the Texas Supreme Court encouraged courts of appeals to hear such appeals when the criteria are met, and the Texas Supreme Court may hear the appeal even if the court of appeals declines.

 

• Assume strict limitations on the scope of permissive appeals. Ask the trial court to specifically identify and rule on each issue (and sub-issue) you want addressed in the permissive appeal, and then raise those issues in your petition for review to the court of appeals.

 

• If the trial court certifies some but not all the issues in an order that you seek early appellate review of—consider arguing that all issues material to or fairly included in the order should fall within the permissive appeal’s scope. It of course would remain subject to the court of appeals’ discretion whether to consider the uncertified question, or any question at all.