One trap for unwary litigants new to the Texas Supreme Court is the limited authority it has over interlocutory appeals. (( Interlocutory appeals are brought to challenge a trial court order before final judgment, while the case is still pending below. ))

A recent law review article asks if there is a new, implicit category of cases that the Texas Supreme Court can hear in early interlocutory appeals — cases in which the lower court order conflicts with a decision of the U.S. Supreme Court.

Some background: The Court’s authority over interlocutory appeals is narrower and focuses on “conflicts,” not novelty or importance

In Texas, only certain kinds of orders qualify for interlocutory appeals, such as temporary injunctions, appointment of receivers, medical expert reports, and governmental immunity (pleas to the jurisdiction). (( The list is contained in Texas Civil Practice and Remedies Code §51.014(a). )) Fitting into that list will let you take your appeal to the intermediate court of appeals covering your judicial district. That gets you an appeal.

But in order to take that court of appeals’s decision to the Texas Supreme Court, you need something more. For most types of interlocutory appeals, you need “conflicts jurisdiction,” meaning that the court of appeals “justices disagree” (i.e., a dissent or possibly a concurrence) or that the court of appeals “holds differently from a prior decision of another court of appeals or of the supreme court.” Tex. Gov’t Code §22.225(c).

The Court’s review of interlocutory appeals is thus a little narrower than its review of appeals after a final judgment. On interlocutory appeal, the Texas Supreme Court’s role seems to be to resolve tensions within the court system.

For that reason, the common cry of litigants that their petition raises a “novel” question of “first impression” in the state is actually a red flag in the interlocutory-appeal context. If your question is truly “novel,” perhaps the Court lacks jurisdiction. Instead of saying a question is new, petitioners in interlocutory appeals most often need to say there is a “conflict.”

I personally saw this play out twice last fall in petitions that I reviewed before they were filed. In both, it was possible to reframe to focus on a conflict.

I’ll stop short of making a general plug for the wisdom of bringing on appellate counsel. But this is exactly the kind of trap that might catch your trial clients off guard.

So, does having a question of federal law in the case change things?

But what happens if a lower Texas court decision conflicts with a decision of the United States Supreme Court?

Chad Flores, a former law clerk for Justice Green, (( Chad was later a law clerk for Judge Elrod on the Fifth Circuit. I met him when he was an intern in the Texas Office of the Solicitor General. )) has just published a law review article in St. Mary’s Law Journal about that question: “The Texas Supreme Court’s Erroneous Doctrine of Implied Appellate Jurisdiction” [PDF].

It turns out that the Texas Supreme Court has held that it has implicit jurisdiction over these interlocutory appeals, even though the statute does not mention conflicts with federal courts. The title of Chad’s article — the “Erroneous Doctrine” — might tip his hand about what conclusions he has drawn.

The Court’s use of this power has been rare; I had not really focused on it before I saw this article. The origin is Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex. 1977) — and, according to the Court, the power was not invoked for nearly thirty years.

That changed in 2008. In two cases, the Texas Supreme Court mentioned that power but ultimately did not invoke it. In County of Dallas v. Sempe, 262 S.W.3d 315 (Tex. 2008) [docket and briefs] the Court held that there was no conflict. In In re H.V., 252 S.W.3d 319 (Tex. 2008) [docket and briefs], the Court held that it had jurisdiction to hear an interlocutory appeal in a juvenile case if there was a conflict with a prior decision of the Texas Court of Criminal Appeals. In a footnote to that decision, the Court reserved the question wether it would have had jurisdiction based on Eichelberger.

Then in Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659 (Tex. 2008) [docket and briefs], the Court found a situation where this jurisdiction was appropriate:

In the nearly thirty years since we decided Eichelberger, we have not invoked our constitutional jurisdiction to remove a conflict between a Texas appellate court and the United States Supreme Court, but we adhere to our holding that this Court has such jurisdiction. . . . It is fundamental to the very structure of our appellate system that this Court’s decisions be binding on the lower courts. We have no less authority to ensure that the lower courts follows the United States Supreme Court.

The opinion by Justice Hecht does not elaborate on the source or the boundaries of this power.

Some clues might come from the Eichelberger decision itself, which placed the source of this jurisdiction in the federal Supremacy Clause. As Chad notes, that clause applies to all sources of federal law, not just decisions of the U.S. Supreme Court.

Given that, it is an open question whether the Texas Supreme Court would have implied jurisdiction (should it want to exercise it) over cases involving a conflict with the Fifth Circuit — or even a federal statute or regulation that has not yet been interpreted by any court.

Chad suggests that it might. I think it’s quite possible, however, that the Texas Supreme Court will confine this doctrine to conflicts with the U.S. Supreme Court. The Court has (in other contexts) held that it is not bound by the Fifth Circuit’s interpretations of federal law, and (in practice) the Texas Supreme Court’s decisions are appealable only to the U.S. Supreme Court.

Practical implications

Chad proposes two ways to bring clarity to this area of law: overrule Eichelberger or amend the statute to make this ground for jurisdiction explicit and to define its bounds. Until the law changes, however, advocates would do well to think about how this doctrine can help their clients.

In practice, knowing that the Texas Supreme Court has this implied jurisdiction to decide splits over federal law gives advocates more options.

Obviously, if your case involves a question of federal law, you might want to rustle up a conflict with a U.S. Supreme Court decision. (( The statutory “conflicts” jurisdiction is limited to conflicts with decisions that came out before your case. This new jurisdiction is implied from the statute but based on different policies. It might be an open question whether it, too, is limited to “prior” decisions of the U.S. Supreme Court or whether an intervening decision could also be invoked. )) After all, the Court just needs to have some valid hook for jurisdiction; once the Court has jurisdiction over some part of a case, it can decide any of your issues (including your Texas-law issues).

An enterprising advocate may well want to argue that a lower court decision creates an inconsistency between the Fifth Circuit and how Texas courts are treating federal law. (( An even more enterprising attorney might want to stir up a fight over how much of a “conflict” is necessary to support this sort of federal-question jurisdiction. The Texas statute has loose rules about conflicts with other state courts. But the rationale there is preventing confusion among lower courts, not preserving federal authority. I am not sure how the Court would resolve a case that fell in the gray area between the more strict pre-2003 “conflicts” standard and the looser post-2003 “conflicts” standard — neither of which truly controls this question. )) In the right case, that kind of argument might be well-received. Although the Texas Supreme Court does not consider itself bound by the Fifth Circuit’s pronouncements of federal law, it might think that it alone should make that choice for the Texas state courts.