This spring, the Texas Legislature made it easier to get appellate review early in a case. (( The new language of Texas Civil Practice & Remedies Code §51.014:

(d) On a party’s motion or on its own initiative, a trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if:

(1) the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion; and

(2) an immediate appeal from the order may materially advance the ultimate termination of the litigation .

…

(f) An appellate court may accept an appeal permitted by Subsection (d) if the appealing party, not later than the 15th day after the date the trial court signs the order to be appealed, files in the court of appeals having appellate jurisdiction over the action an application for interlocutory appeal explaining why an appeal is warranted under Subsection (d). If the court of appeals accepts the appeal, the appeal is governed by the procedures in the Texas Rules of Appellate Procedure for pursuing an accelerated appeal. The date the court of appeals enters the order accepting the appeal starts the time applicable to filing the notice of appeal. )) These permissive interlocutory appeals require convincing both the trial court and the court of appeals that a particular key issue should be given immediate appellate review to remove any uncertainty before the trial moves forward.

The Texas Supreme Court has now amended the trial and appellate rules of procedure (PDF) to conform to that statute.

The new rules provide that:

  • When the trial court thinks an order appropriate for this kind of early interlocutory review, it should say so in the order itself (or an amendment of that order). Tex. R. Civ. P. 168.

  • The parties then have 15 days to file a petition with the court of appeals, including some basic elements of a brief (required tables and a statement of facts), as well as an argument focused on the statutory requirements: “why the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion and how an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Tex. R. App. P. 28.2(e). The petition can be no more than 15 pages. Tex. R. App. P. 28.2(g).

  • The court of appeals can grant the parties an extension of time to file this petition. Tex. R. App. P. 28.2(d).

  • A response would be due within 10 days, with any further reply within 7 days. Tex. R. App. P. 28.2(f).

  • The court of appeals will generally decide whether to take the petition without oral argument and “no earlier than 10 days after the petition is filed” (giving the appellee a chance to respond). Tex. R. App. P. 28.2(j).

Is this like Texas Supreme Court petition practice?

The commentary published with the order says, “The petition procedure in Rule 28.2 is intended to be similar to the Rule 53 procedure governing petitions for review in the Supreme Court.” That is true as a matter of form, with the page limits and quick deadlines.

But the differences are also significant. While the Texas Supreme Court has broad discretion over which substantive issues it wants to hear at all, this rule is focused on timing — should the certified order be addressed now on permissive appeal, or should it wait for a later merits appeal? The question is not importance to the jurisprudence, but optimizing the efficiency of a single suit.

A more subtle difference is that, in the Texas Supreme Court, it is common for a respondent to simply waive filing a response until one is requested by the Court. These rules do not provide for that “waive and wait” process. If an appellee wants to oppose, they have ten days to file a response.

The more obvious comparison is with federal permissive interlocutory appeals under 28 U.S.C. 1292(b). Federal appellate courts do not always agree to take up these appeals, even after an order is certified by the trial court. It will be interesting to see which types of orders Texas trial courts agree to certify — and which the courts of appeals choose to decline.