BILL ANALYSIS

Senate Research Center	S.B. 1603
	By: Hughes
	Jurisprudence
	6/1/2023
	Enrolled

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

In June 2022, a divided Texas Supreme Court ruled that �51.014(f), CPRC, gives a court of appeals unfettered discretion to deny a permissive interlocutory appeal, as long as the court minimally complies with TRAP 47.1, which requires the court to give basic reasons for its decisions. �51.014(f) provides that a court of appeals may accept an interlocutory appeal permitted by a trial court from an otherwise nonappealable order if two requirements are satisfied: (1) the order involves a controlling question of law as to which there is a substantial ground for difference of opinion; and (2) an immediate appeal may materially advance the ultimate termination of the litigation. �51.014(d), CPRC.

In the underlying case, Industrial Specialists, LLC v. Blanchard Refining Company LLC and Marathon Petroleum Company LP (No. 20-0174), the court held that �51.014(f) does not limit the discretion of the court of appeals to deny a permissive interlocutory appeal. The statute "addresses whether discretion exists at all; it does not impose principles to guide the exercise of that discretion when it does exist." Moreover, the statute does not require the court of appeals to "consider the appealing party's explanation," nor to accept an appeal even if the trial court and parties all want one. All the court must do, as prescribed by TRAP 47.1, is state its reason for rejecting the appeal, which the court of appeals did when it concluded that the statutory requirements were not met.

Like petitions for review, which the Supreme Court has absolute discretion to hear or not hear, permissive interlocutory appeals may or may not be heard at the discretion of the court of appeals, just as federal circuit courts have under 28 U.S.C. � 1292(b). Although the Supreme Court urged courts of appeals to accept more permissive appeals in order to further the legislature's policy of resolving disputes as efficiently as, it does not have authority under the statute to mandate them to do so.

Unless the legislature amends the statute, courts of appeals can freely choose not to hear permissive appeals.

Summary denials frustrate the purpose of the statute and appear arbitrary and unreasonable, especially when the trial court has complied with the law and the parties concur. Nothing in �51.014(f)'s use of the term "may" indicates that the legislature intended the court of appeals to have absolute discretion. Instead, the term implies that the court shall apply appropriate "guiding principles" and explain its decision. An abuse of discretion standard is thus the appropriate standard for a determination under the statute.

S.B. 1603 responds to the Supreme Court's invitation to clarify the statute. It would require courts of appeals to (1) state their reasons for denying a permissive appeal under � 51.014(f), and (2) give the Texas Supreme Court explicit authority to review the court of appeals' decision on an abuse of discretion standard.

S.B. 1603 amends current law relating to the decision of a court of appeals not to accept certain interlocutory appeals.

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 51.014, Civil Practice and Remedies Code, by adding Subsections (g) and (h), as follows:

(g) Requires a court of appeals to state in its decision the specific reason for finding that an appeal is not warranted under Subsection (d) (relating to authorizing a trial court in a civil action, by written order, on a party's motion or on its own initiative, to permit an appeal from an order that is not otherwise appealable) if the court of appeals does not accept an appeal under Subsection (f) (relating to authorizing an appellate court to accept an appeal permitted by Subsection (d) if the appealing party files in the court of appeals not later than the 15th day after the date the trial court signs the order to be appealed).

(h) Authorizes the Supreme Court of Texas (supreme court) to review a decision by a court of appeals not to accept an appeal under Subsection (f) de novo. Authorizes the supreme court to direct to court of appeals to accept the appeal if the supreme court concludes that the requirements to permit an appeal under Subsection (d) are satisfied.

SECTION 2. Makes application of this Act prospective.

SECTION 3. Effective date: September 1, 2023.