CHAPTER 5 Interlocutory Appeals

• Jurisdiction: United States

CHAPTER 5

Interlocutory Appeals

5-1 Introduction

As a general rule, an appeal may be taken only from a final judgment.¹ But there are exceptions to this rule, "in narrow situations expressly authorized by statute."² Most of the statutory bases for interlocutory appeal are codified in Section 51.014 of the Texas Civil Practice and Remedies Code. These "narrow situations" were once quite rare, but they are becoming less so as the Legislature continues to add to the list of interlocutory orders that are appealable as of right.

Even if a particular interlocutory order is not appealable as of right, it can be the basis of a permissive interlocutory appeal when the trial court certifies that it meets certain statutory requirements and the court of appeals exercises its jurisdiction.

The statutes authorizing interlocutory appeals, including permissive appeals, are strictly construed, and an order must fit within the scope of the statute for the court of appeals to have jurisdiction.³

5-2 Interlocutory Orders Appealable as of Right

Orders expressly authorized by statute for interlocutory appeal are appealable as of right. Although Section 51.014(a) of the Texas Civil Practice and Remedies Code is the primary statute authorizing interlocutory appeals,⁴ there are a number of other statutes that also do so. The list below includes many of the types of orders that are currently authorized by statute for interlocutory appeal.

• Tex. Civ. Prac. & Rem. Code § 51.014(a)(1), (2).

Permits an interlocutory appeal from an order appointing a receiver or trustee or overruling a motion to vacate an order that appoints a receiver or trustee. ⁵

• Tex. Civ. Prac. & Rem. Code § 51.014(a)(3).

Permits an interlocutory appeal from an order certifying or refusing to certify a class in a suit brought pursuant to Tex. R. Civ. P. 42.

• Tex. Civ. Prac. & Rem. Code § 51.014(a)(4).

Permits an interlocutory appeal from an order granting or refusing to grant a temporary injunction, granting or overruling a motion to dissolve a temporary injunction. ⁶

• Tex. Civ. Prac. & Rem. Code § 51.014(a)(5).

Permits an interlocutory appeal from an order denying a motion for summary judgment based on an assertion of official immunity. ⁷

• Tex. Civ. Prac. & Rem. Code § 51.014(a)(6).

Permits an interlocutory appeal from an order denying a motion for summary judgment based in whole or in part on a claim against or defense by the electronic or print media arising under the free speech or free press clauses of the U.S. or Texas Constitutions.

• Tex. Civ. Prac. & Rem. Code § 51.014(a)(7).

Permits an interlocutory appeal from an order granting or denying the special appearance of a defendant. This provision does not apply to suits brought under the Texas Family Code.

• Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).

Permits an interlocutory appeal from an order granting or denying a plea to the jurisdiction of a governmental unit. This provision applies also to a plea to the jurisdiction of a governmental official sued in his or her official capacity. ⁸ An immunity-based motion to dismiss or motion for summary judgment is also appealable under this provision. ⁹

• Tex. Civ. Prac. & Rem. Code § 51.014(a)(9).

Permits an interlocutory appeal from an order denying all or part of the relief sought by a motion of a defendant physician or health care provider for the failure of the claimant in a health care liability claim to file an expert report within 120 days of filing the original petition. ¹⁰

• Tex. Civ. Prac. & Rem. Code § 51.014(a)(10).

Permits an interlocutory appeal from an order granting the relief sought by a motion challenging the adequacy of an expert report in a health care liability claim. ¹¹

• Tex. Civ. Prac. & Rem. Code § 51.014(a)(11).

Permits an interlocutory appeal from an order denying a motion to dismiss a claimant's asbestos/silica-related claims for failure of the claimant to timely serve a physician report, or service of a report that does not comply with the requirements of Tex. Civ. Prac. & Rem. Code ch. 90.

• Tex. Civ. Prac. & Rem. Code § 51.014(a)(12).

Permits an interlocutory appeal from an order denying an "anti-SLAPP" motion, which is a motion to dismiss a legal action based on the exercise of free speech, right to petition, or right of association. ¹²

• Tex. Civ. Prac. & Rem. Code § 51.014(a)(13).

Permits an interlocutory appeal from an order denying an electric utility's motion for summary judgment claiming limited liability pursuant to Tex. Civ. Prac. & Rem. Code § 75.0022. ¹³

• Tex. Civ. Prac. & Rem. Code § 51.016.

Permits an interlocutory appeal from an order in a matter subject to the Federal Arbitration Act:

• refusing a stay of any action;

• denying a petition to order arbitration to proceed;

• denying an application to compel arbitration;

• confirming or denying confirmation of an award or partial award;

• modifying, correcting, or vacating an award or partial award; or

• granting, continuing, or modifying an injunction against an arbitration. ¹⁴

• Tex. Civ. Prac. & Rem. Code § 171.098.

Permits an interlocutory appeal from an order in a matter subject to the Texas Arbitration Act:

• denying an application to compel arbitration;

• granting an application to stay arbitration;

• confirming or denying confirmation of an award;

• modifying or correcting an award; or

• vacating an award without direction a rehearing.

• Tex. Civ. Prac. & Rem. Code § 15.003(b).

Permits an interlocutory appeal in multi-plaintiff cases from an order:

• determining that a plaintiff did or did not independently establish proper venue; or

• if a plaintiff did not, determining that a plaintiff did or did not independently establish the following:

(1) joinder or intervention is proper under the rules of civil procedure;

(2) maintaining venue does not unfairly prejudice another party;

(3) there is an essential need to have the plaintiff's claim tried in that venue; and

(4) the venue is a fair and convenient venue for all parties. ¹⁵

• Tex. Civ. Prac. & Rem. Code § 150.002(f ).

Permits an interlocutory appeal from an order granting or denying a motion to dismiss a suit for damages against a licensed architect, licensed professional engineer, registered professional land surveyor, or registered landscape architect based on the plaintiff's failure to file a third-party certificate-of-merit. ¹⁶

• Tex. Civ. Prac. & Rem. Code § 26.051(b).

In cases involving class certification, permits an interlocutory appeal from an order denying a plea to the jurisdiction asserting that a state agency has exclusive or primary jurisdiction of the action or a part of the action, or that a party has failed to exhaust administrative remedies. ¹⁷

• Tex. Civ. Prac. & Rem. Code § 27.008.

Permits an interlocutory appeal from an order denying an "anti-SLAPP" motion, which is a motion to dismiss a legal action based on the exercise of free speech, right to petition, or right of association. Tex. Civ. Prac. & Rem. Code § 27.003. ¹⁸

• Tex. Gov't Code §§ 1205.068, 1205.105.

In a public security declaratory judgment action, permits an interlocutory appeal from an order setting the amount of a bond; denying the issuer's motion to require a bond; and dismissing a party for failure to file a bond.

• Tex. Bus. Orgs. Code § 2.106(b).

Permits an interlocutory appeal from an order denying or otherwise failing to grant summary judgment based on an assertion of immunity by a non-profit corporate trustee.

• Tex. Ins. Code § 102.151.

Permits an interlocutory appeal from an order denying or otherwise failing to grant summary judgment based on an assertion of immunity by a party involved in the issuance of a qualified charitable gift annuity.

• Tex. Ins. Code § 541.259(c).

Permits an interlocutory appeal from an order determining whether a class action may be maintained in a suit brought for unlawful insurance practices.

• Tex. Health & Safety Code § 1101.104(e).

Permits an interlocutory appeal from an order requiring the disclosure of allegedly privileged environmental, health, and safety audit reports. ¹⁹

• Tex. Fam. Code §§ 56.01(c)(1)(A), (B), (D), (E); 56.01(c)(2).

Permits an interlocutory appeal by or on behalf of a child from an order under the Juvenile Justice Code transferring a child for prosecution as an adult; finding delinquent conduct or conduct indicating a need for supervision; modifying a previous juvenile court disposition; committing a child to a facility for the mentally ill or intellectually disabled; or transferring a child who become 16 years of age from a correctional facility to the Texas Department of Criminal Justice.

• Tex. Health & Safety Code §§ 81.191, 574.070(b), 574.108(a).

Permits an interlocutory appeal from an order directing the management of a person with a communicable disease or requiring court-ordered mental health services, or modifying or renewing such an order. ²⁰

• Tex. R. Civ. P. 76a(8).

Permits an interlocutory appeal from an order sealing or unsealing court records. ²¹

5-3 Permissive Interlocutory Appeals

5-3:1 History

5-3:1.1 Enactment in 2001

In 2001, the Texas Legislature amended Section 51.014 of the Texas Civil Practice & Remedies Code to provide an avenue for appealing an interlocutory order not otherwise appealable.²² Generally, the amendment permitted an appeal when the parties agreed that an interlocutory order involved a "controlling question of law as to which there is a substantial ground for difference of opinion" and that "an immediate appeal of the order may materially advance the ultimate termination of the litigation."²³ To pursue the appeal, the appealing party needed a written order from the trial court permitting the appeal, and the opposing party's agreement to the order.²⁴ If the trial court issued the agreed order, the court of appeals could permit the appeal upon application.²⁵

5-3:1.2 Amendment in 2005

In 2005, the Legislature repealed the subsection of the 2001...