Texas Enhances Permissive Appeals by Requiring Explanation for Denials and Expanding Supreme Court Review

With certain statutory exceptions, only final judgments are appealable. Section 51.014(d) of the Civil Practice & Remedies Code provides a remedy by permissive appeal when: (1) a case turns on a controlling question of law; (2) about which a reasonable difference of opinion could exist; and (3) resolution by an appellate court “may materially advance the ultimate termination of the litigation.” The idea is to conclude lawsuits earlier by resolving potentially dispositive but unsettled legal questions, thus sparing the parties significant litigation costs.

Although Texas has allowed permissive appeals for many years, built-in limitations have caused them to be underutilized. For instance, permissive appeals were formerly conditioned on both the trial court’s permission and the opposing party’s agreement to appeal. The latter requirement was removed in 2011 — potentially reducing friction in the process — but the same amendment reinstituted an earlier rule that the appellate court must give its permission to appeal. The net effect was to give already-busy appellate courts discretionary jurisdiction over permissive appeals with little incentive to hear them.