In this episode, we examine Texas’s permissive appeals statute and the rulemaking process that shapes how it operates in practice. To guide the discussion, hosts Todd Smith and Jody Sanders welcome Rich Phillips of Holland & Knight, who serves on the Texas Supreme Court Advisory Committee and recently presented a paper on permissive appeals. Rich pulls back the curtain on how procedural rules are developed and revised, then walks through the statute’s requirements and explains why permissive appeals are so often denied. The conversation also explores how courts interpret key statutory terms, how courts of appeals exercise their discretion, and what practitioners can learn from recent decisions in permissive appeals.

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Welcome to the Texas

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Todd Smith and Jody Sanders.

Produced and powered by LawPods.

Welcome back to the Texas Appellate

Law Podcast. I'm Jody Sanders.

And I'm Todd Smith.

And our guest today is Rich Phillips

of Holland & Knight in Dallas. Rich,

thanks for joining us.

Happy to be here. Appreciate

you all having me.

Y'all are doing a great job with this

podcast and I'm glad to have a chance to

be on with you.

Well, we appreciate it. We wanted

to have you on for a while.

I'm glad we were able

to get something down.

I know probably a lot of our

listeners know who you are,

but for those that don't know it very

well, maybe tell us about yourself,

kind of your background, how you

got to what you're doing now.

Sure. So I went to BYU undergrad,

which is this is a good

time to be a Cougar fan.

Football teams are doing pretty well.

Basketball team was until

the last week or so,

but we'll see.Maybe the freshmen will

figure it out. I don't know. But my wife,

I met at BYU, but she was also a Texan,

so we always knew we

wanted to come back here.

Was able to get into law school

at UT and went back to Austin,

which as you guys probably bought

Austin's a hard place to leave.

We had four years there,

three years of law school,

and then a courtship at

the Texas Supreme Court.

But Dallas was probably a

better market at the time.

The dot com boom had busted right as

we were getting out of law school.

So we came back to Dallas. I started

practicing at Thompson & Knight,

which was just a fantastic group of

people there and have been sitting in the

same office basically for a while.

But for me, didn't meant having

to learn a new email address,

but I stayed in the same office.

I like to tell people we kept the Holland

from their name and the Knight from

ours, but that's not really true. Yeah.

I tried to get them to go with "Knight

Squared" maybe or Knight Eat Knight in

south of the border, but

they didn't go for that.

And then basically my clerkship

turned me onto appellate law.

I had done like Hutchinson Moot

Court, UT and had enjoyed that,

but didn't really know exactly what I

was going to do until I got to the court

and then just fell in love with

all parts of appellate practice.

And so went to Thompson Knight, told

them that's what I wanted to do.

And they were very supportive.

I was like a second year associate and

they sent me to the UTCLE. I had no

business being at that thing

at a second year associate.

I wasn't practicing appellate law,

but they were totally cool to send me.

Luke Ashley, who you guys probably know,

was there for a long time

and was very supportive,

getting me involved in stuff early.

Took me to a Fifth Circuit argument

pretty early on. And from there,

I was just able to build it into being

able to do what I do, which is ...

I didn't know it when

I went to law school,

but this is just exactly

what I wanted to do.

Yep. I'm kind of the same

way. Who did you clerk for?

Tom Phillips.

Well, there you go. I was

going to ask if there was.

Any relation.

No nepotism.

Was involved. I was not a nepo baby.

There was no nepotism involved.

Although if you guys knew Bill Willis,

who worked for the court forever,

Bill used to tease me all the

time when I walked around.

I don't think he called me a nepo baby,

but every time I saw him in the hall,

he kind of teased me about the idea

that I was related to the chief.

He thought that was hilarious.

We want to have you on to

talk about permissive appeals,

but before we get to that,

permissive appeals in Texas is one of

those things that has changed over the

years as to what you can appeal

in an interlocutory nature.

And I think the big change to the

statute that really kind of created the

current practice was about

what, 10, 15 years ago?

Yeah, it was in 2011.

Okay. There you go.

And I guess you're in kind of a unique

position because you're on the Supreme

Court advisory committee,

but can you kind of walk us through

what that committee does and then what

happens when, for example, like the

legislature passes a new law that says,

"Hey, you've got to have these kind of

permissive appeals now, Supreme Court,

go write a rule and figure it out,

" and just kind of talk about that.

It is an interesting process. I've not

been on this committee for very long.

I'm in the middle right now, I think of

my second appointment to the committee,

which they run in three year appointments.

I had to kind of beg Chief Justice Heck

for a couple of rounds to put me on

because I was really

interested in getting involved.

But one thing in talking to people that

have been on the committee for a long

time and I've seen it myself now,

it's increasing that the legislature

will pass a statute and then say, "Court,

you adopt rules." And sometimes it's like

we'll pass the statute in June and we

want the rules in September

or by the end of the year.

And so during a legislative year,

we know we're going to be busy and we're

going to get a lot of referrals from

the court. And that's one

thing I think a lot of people,

and I didn't fully understand this

before I got on the committee,

this is not a committee where

you go and you say, "Hey,

I think we should change this rule." We're

a committee where we have to wait for

the chief to send us a

referral that says, "All right,

the court would like you

to look at rule X, Y,

or Z." And then it gets assigned out. We

have subcommittees for different rules.

The civil rules are split up into a whole

bunch of different subcommittees and

there's an evidence subcommittee,

the appellate subcommittee,

which is the one that I'm on.

And so they kind of figure out the rule

where it fits in which subcommittee,

then they'll assign it out to a

subcommittee who talks about it amongst

themselves. They write a memo,

we circulate that to the full committee

ahead of our meetings. And then we meet

for anywhere from five to seven

hours, four to five times a year,

and just walk through the agenda.

So it's really interesting process.

And so there's some, I mean, I've been

intimidated at some of those meetings.

There's some very smart people on that

committee who know a lot about stuff that

I don't know much about. And so it's

fun to talk about with them. Judges,

former judges,

lawyers from different areas just because

of all the things the committee has to

be responsible for.

So you said three year terms and

I guess subject to reappointment.

If someone's interested in

participating in the committee,

what's the path to do that other

than pestering the chief justice,

which I think is what you suggested?

Yeah, that's how I did it. I mean,

the appointments come from the chief and

I don't know exactly what it's going to

look like with our new chief because

I was reappointed before Chief Justice

Hecht had to retire. And he

was not only the Chief Justice,

he was also the court's

liaison to the committee.

So he came to pretty much all

of our meetings along with the,

I think the deputy liaison who has

been Justice Bland for a long time.

With the new chief,

Justice Bland is the liaison and

Justice Young is the new deputy.

So the two of them are usually at

our meeting. I would suggest that.

I think I would reach out to maybe one

of them. The other way you could do it,

I guess, would be to reach

out to Jackie Dormeyer,

who's the Supreme Court rules

attorney. And by the way,

she's incredible.

The work she has to do,

I think she does a lot of the work of

taking what the committee talks about and

our discussions,

because we'll sometimes talk

about revising the proposal

on the fly during the

meeting. So somebody will say, "Well,

what if you use this word or that word?"

And she's the one I think that takes

that and turns it into something the

court can talk about in their admin

conference. So that may be,

Jackie's probably your best bet.

Just send an email to her and let her

know you're interested and she can pass it

up to the court.

Well, I'm going to apologize now

if Jackie gets a flood of emails.

Yeah. Sorry, Jackie. She

gets enough right now.

She's probably getting flooded

by right now, I'm guessing,

is comments on the summary judgment rules.

Oh yeah. Yeah. That's

a hot topic for sure.

Todd and I did an episode

on that a couple weeks ago,

so I sent mine in afterwards.

Well, and I'll tell you, the transcript's

not out. We met last Friday, the 30th,

January,

and there was a lot of amendment to

what the court had put out based on

comments had been received already,

based on some things from the

subcommittee that had worked on it.

And we can talk more about

that rule if we want.

It is a really interesting iterative

process of comment and think about it,

and then the court does what

the court's going to do,

and then sometimes there's more comment,

and we try to do what the legislature

wants, but sometimes that's hard.

The summary judgment rule is

a good example of that one.

The first version of the summary

judgment statute said the court has

a certain amount of time,

60 days, I think it was,

to consider the summary judgment,

have a hearing or submission,

but the 60 days started at one

when the response was filed,

according to the statute. And that

doesn't make any sense under our rules

because the deadline for the response

is set by when the hearing is.

So the first time we talked about

that, after the statute came out,

we got to the committee,

the subcommittee is like,

"We don't know what to do with that

because it just doesn't make any sense.

I mean, we could completely

rewrite the rule,

but that's just weird." And I don't know

if the legislature had a sense for that

before our meeting, if

somebody had flagged it,

but they fixed it in the second called

session and put it into the omnibus

court's bill and changed the deadline

to run from the date that the motion is

filed. So sometimes it's kind

of one of those ... I mean,

this one was iterative going back to the

legislature and saying, "Please fix it.

" But even then it was weird because

the first statute went into effect

September one and the next one didn't go

in effect till December. So technically

from the 1st of September

to early December,

everybody was operating under a statute

that was essentially not possible to

implement. And I think

nobody's going to mess with it.

The court didn't worry about

getting a rule out for that. Yeah.

I think if you're the

non-moving in that case, yeah,

I'm just not going to do anything. Let's

make sure to not set this thing ever.

Yeah, that just didn't work.

And I don't know where that

language came from in the ledge.

I don't think it was somebody

who practices law in Texas,

at least not trial law.

Well,

it was good to get it fixed before there

was a rule that had to be rolled out.

And I know you talked about, well,

do we rewrite the rule? Well,

that's essentially what happened.

And maybe the court I'm sure had a ton

of input on what the final rule looked

like.

But it's one thing I commented to Jody

when we talked about this one of our

previous episodes is it's not all the

time that the court doesn't even issue a

red line on a rule change. It just

says, "It's completely rewritten.

We're not putting out a red

line. Go figure it out. ".

Yeah, right. Well, and then on top

of that, the comment that said,

"But we don't intend any

substantive changes," which is true.

And I can tell you, when we talked about

this and the subcommittee looked at it,

everybody decided we've got to

put in some stuff about deadlines,

but 166A was a disaster of a rule.

It had just been amended and modified

and whatever. And every time they did,

they just stuck another sentence

in there somewhere, in the middle,

at the bottom, at the end, wherever it

fit. And it didn't really ... I mean,

as a paragraph, if I had an

associate turn that into me,

I would make them rewrite it,

send them back and do it again,

because it just didn't flow.

And so everybody kind of said,

"This is an opportunity not to change

things or not to change too many things,

but to modernize really the rule so

that it's easier to understand and read

because sometimes there's a sentence or

a phrase in there that if you read it

fast and skip over it and you're

not an experienced practitioner,

you're going to miss it and it's going

to cause a problem." The thinking was,

"All right,

we got to put in these deadlines for

the courts to have a hearing or a

submission date and a ruling,

but let's do a few other

things to modernize." And

really the thinking was break

it out into subsections,

address a few weird things and

kind of adjust the timeframes too,

because the 21 days, seven day response,

nothing in there about a reply just didn't

work with modern practice. And so the

proposal I think is 35

days notice now, at least,

14 days after the motion is filed for

the response to come in and then seven

days for a reply. So at least

provides for a reply now.

So I will say that the comments and the

questions that came in from everybody

were heard and the new proposal,

which I think you could actually ...

So the transcript of the meeting

is not out, but the materials are,

those go out pretty quickly and that

includes all the memos that go out.

So this is a very transparent process.

And if you want to go

see what the subcommittee

proposed to add to the court's

version of the rule,

it's out there to find.

Yeah,

that's something I definitely wanted you

to hit on because it's a process that

the average practicing lawyer

probably doesn't know much about.

And you have to go digging around

for it, but if you know where to go,

as you say, Rich, all that information

is right there for public consumption.

And so that's, if you

really want to dive in,

there's plenty of material and

everything that SCAC talks about,

because it is an extremely

important committee to the

way our courts do business

and has a lot of influence I know

over and what the Supreme Court does.

But as you point out too,

you're only getting assignments.

You're not being proactive.

So it's not like you've got folks

with agendas coming in and saying,

"We're going to do this and we're going

to try to sell it to the Supreme Court."

That's not the way it works.

No, you wouldn't get very far

trying to do that. In fact,

we had one right after I got on

the committee, the legislature,

another mandate from the legislature

had ordered the court to adopt rules and

forms for something I

didn't know anything about,

which is in basically a seizure

collection kind of thing.

If somebody goes out and seizes your

bank account or a car or something,

there needs to be a process to

get back stuff that is exempt.

And it was a very opaque process and

really hard for your average Texan to

figure out. And those are the people that

are subject to that most of the time.

So the court, even court

and the committee members,

we didn't really have a lot

of experience in that area.

So they got together a group of creditor

side lawyers and debtor side lawyers,

two groups, and told them,

"Please give us some proposals." And

they ended up being a little bit too

agenda driven. So we got two different

proposals and they were completely

opposite. And the debtor's

lawyers were like,

"We're going to do everything we can

to protect the debtors and hose the

creditors." And the creditor's side did

the exact same thing and it was really

unhelpful to the committee. We sat there,

I remember making a comment because I

think it was the creditor side folks had

said, "Well,

we can't have a firm deadline for us to

send them these materials." Because one

of the things is they had to send notice

to somebody who they'd garnished and

say, "You have the right to do

this da da da da." They said,

"Can't have a hard deadline,

but it's got to be flexible.

It's got to be a reasonable time

because we can't get it out at all.

" And then in the next rule,

the creditor side wanted a very firm

hard deadline for the debtors to send

in their stuff. They're like, "We want

a reasonable time to send it to you,

but if you don't send it back in five

days, you wait." And we are all just like,

"Guys, let's be reasonable." So

yeah, it's not a place for an agenda.

It's really a matter of let's

talk through the issues.

There are people been

on a committee forever.

Richard Orsinger's been on there probably

as long as anybody at this point.

We have a few emeritus members. Professor

Darsanio is still an emeritus member.

And he actually, I think last year

he came to one of our meetings.

Elaine Carlson's been on

there for a long time.

So it's good because we

have institutional memory.

We have probably not as much influence

as people think because we do what we do

and then it goes to the court

and an admin conference,

they do what they're going to do and

they take a vote and then they issue the

rules. And sometimes things go

up to them and nothing happens.

Or sometimes they'll say,

"Y'all talk about this for a bit," and

then they decide we're done talking about

it. Last year,

we spent a day or half a day talking

about rule 76A and sealing motions,

which I know is the bane of many people's

existence if you've ever had to do

one. It's a mess. And so we spent a

half a day like, "Can we fix this?

" And didn't really make much progress

and we haven't seen it on an agenda

since. So I think we have the opportunity

to give our thoughts to the court and

hopefully get them to a consensus, at

least among the members of the committee,

and then they use that to decide what

they're going to do with the rules.

Well,

I appreciate all the thought that goes

into it because it is so important and

all of us who are kind of stuck practicing

under rules that may not be well

thoght out, it does create problems.

And that happens from time to time.

And a lot of it is kind of the result

of the legislature rights of statute and

then you're just, whatever

that language says,

you've got to figure out a rule to

sort of shoehorn it in sometimes.

And I remember with

the TCPA in particular,

that went through so many revisions on

the legislative side because it was just,

they'd do one thing and then courts

would do that and then it would have to

change again. So it seems like that

one's kind of streamlined finally.

Yeah, I think they've gotten there.

The other thing that's

interesting in the rules process,

we try really hard to not put

things in there that are tied too

closely to a statute unless we kind of

have to, so that if the statute changes,

we don't have to go back

and rewrite the rule.

You'll not find very often a reference

in the rules to a specific section

of the Civil Practice and Remedies Code

or the government code or something like

that because those change and we don't

want to have to go back and rewrite the

rule. Sometimes we'll put that in

a comment. And I was going to say,

if you run into something like

that, there are avenues, right?

Getting on the committee

isn't the way to do it,

but you can definitely send an

email, again, sorry, Jackie,

to the rules attorney and say, "Hey,

this is something I've noticed." The

other way to do it is the state bar has a

rules committee as well,

and they do that. And we get proposals

from them through the court, obviously.

But if the state bar rules

committee says, "Hey,

this is something you needed to think

about, " and they send that to the court,

I think that's something

the court takes seriously.

And if they think there

is something there,

then they'll send it to SCAC to look at.

So we've had a couple of those

revisions to the evidence rules,

the dead man's statute.

And we're working on that one because

most states have gotten rid of it.

And so I think that came probably

from the probate section to the rules

committee at the state bar

and then to the Supreme Court.

So there are ways to send things

to people and say, "Hey, listen,

there's a problem here."

Getting on SCAC to do that,

that's not the fast track to that.

It's good to point that out though,

those other avenues because

the real world practitioner,

these things come up in practice.

You talk about 76A being a mess,

talk about there were some things about

the old summary judgment rule that maybe

could be better. And almost every rule,

you've got that sort of antiquated

language that I noticed in the rewrite on

166A in particular, the former rule

had a lot of their widths in it,

which is a dead giveaway that this rule

hadn't been amended in quite a while.

So I think it's a great

suggestion that our profession,

the practice of law generally is changing

so fast that we do need rules that

are modernized and they can take into

account things that are happening in the

real world. And so I'm really

glad to hear you suggest, Rich,

ways that the practitioner can put their

ideas in the hands of those who may be

able to have some influence,

not necessarily SCAC directly,

but you talk about the

State Bar Rules Committee,

that's a perfect example.

And I know having worked

with some of those folks that

they care very deeply about the rules

and the impact on day-to-day practice of

law. So appreciate you bringing that.

Up. I will say too,

it seems like a slow process in the

state system and it takes a while,

but compared to the Feds,

we move at light speed.

The federal rules process to get

it amended, I mean, good luck.

You might start something at the beginning

of your career and see a new rule by

the end.

So we're positively catliking our

nimbleness compared to the Feds.

Well, but it is good that it takes a lot

of deliberation because I know what my

practice is and the things that I face,

but people's experiences are completely

different. Different counties,

different districts,

just so many different variables that

you do have to think about it in,

all right, well,

30 million people in Texas are going to

have to live with this rule if we don't

get it right.

What works for Jody and Fort Worth may

not work for Rich and Dallas or Todd and

Austin or anybody else

anywhere. So that's great.

Yeah. Or really out in the really

small counties, 254 counties,

and so much of this is driven by what

county clerks and district clerks have to

do. We actually have two ex- officio

members of the court that are clerks.

Right now, it's John Warren from Dallas

and Shana Gilliland, who I think is ...

Is she Tarrant County?

So we've got these two,

and I apologize that I can't remember

which county Ms. Gilland's from,

but it's really helpful to have

their perspective on there.

The summary judgment rule is an example

requires the court has to know in order

to set a hearing within the 60 days that's

required by the statute of a summary

judgment motion being filed.

The judge has to know that a summary

judgment motion was filed because judges

don't just sit ... Hopefully

nobody thinks this,

but judges don't just sit in front of

their computers waiting ding for a new

motion to pop up.

Somebody's got to tell them it's there.

So now it's the clerk's job, right?

So we had to consider that and talk

with our clerk members of the committee

about how are we going to do

that and how are we going to ...

There's 254 different ways almost

in Texas for that to happen.

And so how do you write a rule that

accounts for all those things as far as

bringing it to the attention of the judge?

So it does take a while and we have

to take a lot of things into account,

but hopefully at the end of the day,

we end up with a rule that is usable

in every county and does what it's

supposed to do, which is make the

administration of justice fair,

equitable, and as smooth as possible,

and not something that's designed

To kind of trip people up on procedure.

Well, I guess we.

Can transition over to the topic

we brought you on to talk about,

which is permissive appeals.

And as I mentioned, in Texas,

you've always sort of been able to take

an interlocutory appeal on legal issues.

The procedure has changed,

but I think the one that we live with

now has been around about 15 years,

but I feel like people still don't know

about it because I mention it in cases

sometimes and people look at me like I

have a horn grown out of my head because

they didn't know that was a thing. So

I feel like hopefully this is going to,

maybe some people will find a new way

to take up some issues that frankly,

I think really ought to be used more.

And I apologize to people at the courts

of appeals who may disagree with me on

that with all the interlocutory appeals

they already have. But from a party

perspective, it can be

a really helpful tool.

Yeah, it can be. And it is, I mean,

we've had this for a while. For 10 years,

we had one. Actually,

for a while we had one where the courts

of appeals didn't have any discretion.

One version is that once you ... Now

it required the parties to agree,

but once the parties agreed

and the trial court said yes,

the court of appeals had to

take it, but it didn't work.

And the reason it didn't work is

because the parties had to agree.

And even in situations,

and I've had some of these where

the other side was like, "Yeah,

let's take it up." But there's a lot of

them where you're not going to get that

agreement,

particularly because the statute

required the parties agree that there was

substantial ground for

difference of opinion,

which means whoever won had to agree

that there was a substantial chance I

should have lost.

So the doing it by agreement didn't work.

So the statute or the ledger amended it

like the federal version,

where you'd ask the trial judge to certify

it and then put back in the court of

appeals discretion to accept

it or deny it even if all the

statutory requirements are met. Even

then it took long. And I agree with you,

Jody,

it still hasn't quite caught on and the

court of appeals justice members of the

committee are going to be grumpy at me

for trying to publicize this and get more

of these in front of them.

But that's because I think it's been

almost like a three-way tug of war or

when I gave this speech at the state

bar appellate CLE talked about it like

the scene in the good,

the bad and the ugly where they're

all staring each other down,

getting ready. It's this kind

of three-way gunfight shootout.

Between the legislature who's hearing

from the constituents and people need the

ability to appeal these kinds of

things. And the Supreme Court,

largely on that side, saying,

"You really ought to take these." And

the courts of appeals saying, "Oh,

come on. " It's easy, right? It's

easy for the Supreme Court, right?

The Supreme Court in 2019 in Sabre

Travel, when they said, "Look,

courts of appeals have discretion, but

courts of appeals were really, really,

really encouraging you, take these.

This is a really important tool." And

they kind of said the same thing again

three years later in industrial

specialists, although much more fractured,

and we can talk about that in a minute.

But I think every single

time they say that,

the courts of appeals are kind of

looking back at them going, "All right,

U9 have a completely discretionary docket,

which means if you see

something really interesting,

you can take it and you can decide to not

take something else and therefore keep

your docket where it is. " And you seem

to forget sometimes that those of us

sitting at the intermediate level, we,

in addition to these interlocutory

things that everybody wants us to take,

the ones we have discretion on,

that's just adding to our

non-discretionary stuff,

all the things that are

appeals as of right,

and including the criminal docket that

I think civil practitioners forget

sometimes that they've got a sizable

criminal docket they have to deal with.

And then all the things the legislatures

told them get priority. I mean,

you guys have experienced this, I'm sure.

Interlocutory appeals just generally are

supposed to be expedited and supposed

to get accelerated treatment.

That's right. When everything is

accelerated, nothing is accelerated.

Right. And no, it never happened.

In the docketing statement,

you're supposed to tell them, is this

supposed to get preferential treatment?

But there's so many things

that are supposed to get

preferential treatment that

almost nothing gets

preferential treatment anymore.

And so I can understand their frustration

when they feel like they're already

very busy with a huge docket. And

every time the legislature says, "Hey,

here's another thing you get to take."

So I don't blame them at all for trying

to be selective in the cases that they

decide to exercise their discretion to

take, but it's been kind of this

push and pull over the years.

And really it came to a head in industrial

Court had said,

"Please take more of these." And it was

the courts were not taking more of them.

And in that case,

it was really interesting because both

sides petitioned for review in the

Supreme Court together.

You hardly ever see that. I mean,

last year we saw a joint mandamus,

similar kind of thing out of a judge down

in Houston who was trying to force the

parties to a Zoom trial

that nobody wanted.

So they were together in trying

to mandamus the trial judge,

but this one was both sides going

to the Supreme Court and saying,

"The court of appeals abused its

discretion in declining our interlocutory

appeal." And it totally

fractured the court.

Justice Lehrman didn't sit and so there

were eight left and we didn't get a

majority.

We had a three judge plurality that was

Justice Boyd with Justice Divine and

Huddle and then a two judge concurrence

with Justice Blacklock and Justice Bland

and then a dissent by Justice

Busby joined by Chief Justice Heck.

They kind of fractured over

how much discretion is there

in the Court of Appeals

and what can we require the Court

of Appeals to do. Everybody agreed,

and it's a really kind of an odd thing.

So there's the statute

requirements that you have to meet,

but it still says after that,

if the Court of Appeals

may grant permission if all

the statutory requirements

are met. So there is that layer of

discretion and what does that mean?

It's a little unclear,

but I think all eight

industrial specialists agreed

that the court of appeals

essentially had almost

unfettered discretion to say,

"We don't want it even if

all the requirements of the

statute are met." But the

courts of appeals weren't even getting

to that because what was going on is they

were taking the statutory way out, but

they were doing it without much analysis.

They were just basically writing

similar to a mandamus denial,

a three sentence that the party has

asked us the permission for permission to

appeal. Here's the statute. We find

the statutory requirements aren't met,

therefore we deny no information.

And that was a lot of the focus of

industrial specialists opinions,

which was we really should require

them to give us more information,

but they couldn't get five who

said they could require it.

And so they then sent

it to the SCAC and said,

"You ought to think about writing a

rule where the courts of appeals are

required to explain themselves."

And at the same time,

the legislature passed a statute

that said the same thing.

And the idea there is,

let's have some explanation as to what

you're doing and not just cut and paste.

Everybody knew it was a cut and

paste job. One of the Houston courts,

and I can't remember which one now,

was literally cutting and pasting the

exact same order every single time.

And the way we knew it was a cut and

paste job is because it had the same typo

every time. It had a typo in the

reference to the statute or something,

and it was literally the exact same typo

in every single order for like a year

and a half. We had to fix that.

We went back and forth about the rules

that the legislature required it as well

to explain.

And so now we're in a situation where

they are required to explain themselves,

and that should help with the development

of the law. So what does it mean?

And we haven't talked about

the exact requirements,

and this is probably a good

time to plug the paper.

I've written a paper a couple times,

updated most recently for last

fall's state bar advanced appellate.

I'll send you a copy. We could put a

link in the show notes to the paper.

It was republished in the appellate

advocate this month that's got all the

requirements in it.

And I'll put the slides up there.

And I've also got some stats,

which I've updated for today,

and we can put the updated stats as well.

But the requirement is it has to

be a controlling question of law as

to which there is substantial

ground for difference of opinion,

and that an immediate appeal

may materially advance

termination in a litigation.

But nobody knows what those things

mean. Some of it, it's easy, right?

We all know what a question of

law is versus a question of fact.

So if you lose your summary judgment

motion because the court says,

"I find fact issues." You can't

take that up under this statute.

What does it mean for a question of

law to be controlling? Who knows?

The courts have been all over on that one,

and it ends up being synonyms for

controlling. Really important.

Kind of bleeds over to may materially

advance termination of litigation. Is this

the kind of thing that if we decide this,

it's going to shorten the litigation,

it's going to move people along.

Although people have tried,

and this is discussed in the paper,

saying that if you get this resolved,

it'll give us a better chance to settle

the case. And some courts have said,

"Cool,

that works." And some courts have said

that isn't a controlling question of law.

The Dallas Court of Appeals is a

little bit of an outlier right now.

Their view is, and I did this under

May materially advance the termination,

but again, it kind of bleeds over

to controlling question of law,

but basically their formulation is

almost, if we decide this issue,

then one of the parties should be able

to move for judgment without any further

litigation. And if it's not

that or real close to that,

then you're probably not getting

it in the Dallas Court of Appeals,

which I think is probably a little

on the harsh side of that standard.

Yeah, that's pretty high standard there.

Yeah. I mean,

it's almost like once you resolve this

issue where you get to final judgment,

I mean, what's the point,

right? So we'll see.

I mean, what if you've

got multiple issues,

multiple theories in the case and you

can get rid of what was probably the

principle theory and the others maybe

fall away after decision on the principle

theory?

Yeah. And in some courts that will

work. And in Dallas, it may not,

unless you can really kind of

show the It's like the ultimate,

that's the main theory and everything

else is just clean up. I mean,

even with that, I'm not sure

that'd get you there in Dallas.

So we need more case

law on what these mean,

and we're starting to

That's the good news since the amendments

to the rules and the statute that the

courts are generally following this

instruction and they are writing and

explaining themselves.

The other requirement is this thing of

substantial ground for difference of

opinion. Again, nobody's quite sure.

If there's a circuit split or a split of

authority among the courts of appeals,

that's pretty good indication.

That one's like a slam dunk. Yep,

that meets that.

What if it's an issue of first impression?

Some courts have said, yep,

that can be substantial ground for

difference of opinion because nobody know.

Other courts have said, nope,

it's an issue of first impression.

We don't know what other people think.

So there's no substantial ground

for difference of opinion.

There was a case out of Houston when

I did the paper in the fall that was

actually in front of the Supreme Court.

Hopefully we're going to get an answer,

but unfortunately the parties after the

Supreme Court asked for a response to

the petition, this party settled.

So this case isn't going to be it.

But in this case, it was called VCC is

one of the parties. It's in the paper.

The trial judge specifically

acknowledged the controlling law and

said, "I just disagree with

it and refused to follow it.

" So the parties took it

up and the judge said,

"You can take it up." And they took

it up and the court of appeals said,

"What do we do with this? " Because the

trial court said there is a controlling

law and I know what it is. I just

don't like it. And so it ended up,

they denied it with two concurrences.

And the one concurrence said,

"This just doesn't make any sense."

There isn't substantial ground for

difference of opinion because the

law is clear. But because of that,

they can't get this fixed even though

that obviously should be fixed.

So one concurrence said

to the legislature,

"Maybe you should rethink what this

means." And the other concurrence said,

"Well, if it's really that clear,

just go to final judgment and you can

appeal it then and you're going to get a

reversal.".

Defeats the purpose.

Yeah, exactly. That's one of those

things that's kind of like, thanks a lot.

That was always the case. Why

even have a permissive appeal?

It doesn't do you any good at all.

Yeah. So that prong needs some more

development. And we're getting some.

And I think I'll be interested

to see as we get that,

if the court wants to

think about Supreme Court,

they're very interested in this.

When they did the paper in September,

there are a lot of these cases that had

gone up to the court after denial under

the new statute. This VCC case was one.

There were a couple other ones with some

interesting issues. And unfortunately,

I think, or I guess

fortunately for the parties,

unfortunately for us and

the development of the law,

they all saw the writing on the wall.

And when the Supreme Court asked for

a response to the petition for review,

they promptly settled. So all the cases

they wanted to take have gone away,

but they're clearly interested.

This is one of those,

if you've got one that you take up

and court of appeals denies you,

if you can find the right hook,

it's worth taking to the Supreme Court

because they are looking to take some of

these.

I was having to dust my memory off because

I remember looking at this issue when

the legislature made the change and

then the Supreme Court adopted the rule

28.3 and they're being this

built-in now feature of the Supreme

Court has the ability to review

the Court of Appeals reasons for

denying the petition.

Is that the issue that most of

these petitions are going up on?

What's the approach? Let's say in the

cases, I know you follow this closely,

Rich, but let's say in the cases where

there's been a response requested to the

petition for review, what seems to

be, if you can read the tea leaves,

driving the Supreme

Court's interest in this,

is it the lack of explanation

or the adequacy of the

explanation or is it the court

wants to go somewhere else?

It's not lack.

There's not been a problem with lack

of explanation now since the amendment.

In looking at this, I found a couple

of them where I couldn't figure it out.

The court just kind of said, "We find

it's not met." But in looking behind it,

these were,

one of them was a pro se and the other

one was somebody who just tried to call

it a permissive interlocutory appeal

without actually getting permission from

the trial court. So it was pretty clear

they hadn't come close to following-.

That's an approach too, I.

Guess. Yeah. Well, you can try. So they

hadn't even come close to following.

Now, I would've preferred in those

that the court would've said,

you didn't get permission from the

trial judge, therefore we're denying.

But for the most part, the courts

are giving the explanation.

So I think what the Supreme

Court is interested in is

what do these things mean?

Is this really ... In VCC,

I think they were really interested

in what is a substantial ground for

difference of opinion. And what do you

do when the law is absolutely clear,

but the trial courts disagreed. I mean,

there's an argument that that

means there's a difference

of opinion because the

trial court said one thing and

the law is clear the other way.

And so there's a substantial ground for

difference of opinion with the trial

court's ruling,

or does it mean substantial ground for

difference of opinion among generally

those question of law? So I think

that's what they're interested in,

trying to develop that. The courts

have not taken up the last part of it.

They're still focusing on

the statutory standard.

They're not really going

to the last prong of it,

which is even if all the

statutory standards are met,

we are going to exercise our

discretion not to take it.

And I think they would still have

to explain themselves as to why.

And that may help us at some point if

that starts to happen of understanding

what the bounds of that discretion.

And I think the Supreme

Court's interested in that.

What are the bounds of that discretion?

Is it straight up ... I mean,

there's a little bit of daylight, I think,

if you read between the lines

and industrial specialists,

is it an absolute discretionary decision

like the Supreme Court on petition for

review? We can deny it

for any reason, no reason,

there is no wrong reason,

we don't want it.

Or is there some principle,

some limiting principle on that

discretion? And if there is,

what is it and how do we articulate it?

The only one that's come close to that

was a case I think from Fort Worth where

they walked through the

statutory standards and they

found they were largely not

met, but they also said even if they were,

we would exercise our discretion not

to take this because the appellant had

waited a long time after the trial

court's order to try to take it up.

And they just said the delay undercuts

the idea that you really need this

review.

And so that's the only one I've seen so

far where they said we're exercising or

we would exercise our

discretion to deny it.

It's a funny thing about the statute

and people get this wrong all the time.

I've had these that I've filed and

they've tried to say I'm late because they

don't understand the statute. There is a

15-day deadline to ask for the court of

appeals to take it,

but that deadline doesn't start to

run until the trial court gives you

permission to take it up and that

permission has to be in the order.

So if you lose summary judgment,

then most of the time you're going to be

asking the court to amend the order to

give you permission because nobody's

going to say, "I should really win,

but if I'm going to lose,

please give me permission to appeal."

You don't want to plant that seat.

So you're going to wait till after.

And the funny thing is there's

absolutely no deadline in there.

So you could lose summary judgment

and theoretically a year later,

go to the trial judge and say, "Hey,

you remember that order a year ago?

We should take that up." And if the

trial court gives you permission,

then your 15-day clock starts then.

I've had people say, "Well,

you had to ask for permission within

15 days of the order." It's like,

that's not what the rules say, but

I wouldn't recommend that practice.

If you want to take it up and

you want to say it's important,

you better do it quick because you need

to show the court of field support.

Yeah. It's hard to say it's going to

materially advance if you wait a year.

Well, I don't know. That

may prove the point though,

if the case hasn't materially

advanced otherwise in a year.

Well, I guess that's true. Maybe.

It's just interesting that the.

Supreme Court ... Justifiably so,

I think it sounds like one of the

sticking points is what is a substantial

ground for difference of opinion?

And I'm sure that process,

that whatever that term winds up

meaning can get defined in the case law,

but that almost seems like that's

more of a legislative problem.

What do you mean by legislature,

substantial ground for

difference of opinion?

Because what do you read plain meaning

in that? I mean, how do you divine what,

other than the words themselves,

I mean, as we all know,

how do you divine what the legislature

intended from that other than the word?

And so that to me almost begs

for a legislative fix, but.

I'm not- Good luck with that.

That seems like a big ask. Don't.

Get me wrong. I'm not suggesting that,

but little clarity would be nice. And

if the legislat is going to do it,

then I'd sure love for

the Supreme Court to do.

It. Yeah. And as a practitioner, that

element is the hardest one, I think,

to write a permissive appeal brief

because you want to say, "Yeah,

we should definitely win

on this legal question.".

But.

Reasonable minds can differ, which is

a weird thing to write as an advocate.

Yeah. It's like, I say old.

Last year's petition for review practice

when you were writing your brief on the

merits and you had to say, "It is rock

solid, absolutely clear that I win.

You really need to clarify the law and

take this case." So it's the same kind of

thing.

Yeah. To make clear that I win.

And make it clear. It's already

clear, but make it clearer.

And the language that's in the statute

comes from the federal statute, right?

1292B is there.

And there's not been as much development

about that in the federal courts.

I mean, people, I think

when this first came out,

were looking to the feds to see

what's out there and there's not much.

And I've done a couple of

I think one reason for it is the district

courts in the federal system have been

very cautious about what they

certify. It's not hard, to be honest.

It's not hard to get a district court

in Texas to certify a question for

immediate appeal because take this off

my docket for a little while, cool.

The federal courts I think have been a

little careful and this is no knock on

either side of it.

It's just the way it's been done.

And so I think when those

go up to the circuits,

the circuit courts have been way more

open to taking them because there are

fewer of them. And so just the law hasn't

developed on the federal side either.

So at some point,

somebody's going to either need to

define it or the Supreme Court's going to

have to actually be able to take one of

these that somebody gives them and gives

some clarity to what that

means. With the policy,

Supreme Court's not supposed to

do policy, but with their view,

this should be a good vehicle for the

right case for parties to get quick review

of things. That's the ultimate goal.

And the question is how do we get there

in a way that makes sense for everybody

that doesn't turn us into New York state

courts where everything's appealable

because that's just a mess too.

And Supreme Court said that,

I think it's in Sabre or maybe

industrial specialists. They say,

"We don't want this to turn into something

where you get to appeal every run of

the mill interlocutory order.

It's got to be important." So I think

it's just going to take a while to find

that balance, but I think with these

new rules, we're going to get there.

And the stats seem to suggest

that, which makes me happy.

Yeah. I was going to ask you about that

kind of next. I know for a long time,

I think these things were pretty rarely

used. Are we seeing more use of them?

What does that look like?

It's starting to go back up again. I will

say it's very hard to track the stat.

Yeah. They don't keep that

level of detail usually.

They could. And this is my plug for

appellate clerks, the clerk's offices.

If you go on the OCA website,

you can do a case search.

You can also do a thing

called an event search.

I don't know if you guys

have done that before.

And one of the events

is permissive appeal.

But if you search that on most of

the 15 courts of appeals websites,

you get zero hits,

even though you know they've had some

because they're just not logging them as

permissive appeals. So if they

would kind of turn that on,

it would be easier to find. Until they

do that, all we can do is search Westlaw.

For a long time,

denials were hard to find because

they were like two line orders.

They were not opinions. Sometimes Westlaw

picked them up, sometimes they did.

Sometimes they were typos.

Sometimes they were typos.

Sometimes the courts of appeals went out

of their way to make sure they didn't

get picked up. The first time

I tried to write this paper,

I was talking to former Chief Justice

Tom Gray from Waco. And I said,

"I couldn't really find your

things." And he goes, "Yeah,

that's because we intentionally don't the

statute or the rule in the orders when

we deny them.

We just say denied." And he basically

told me they didn't cite the statute or

the rule. So they were hard to find.

Grants are even harder to find because

a grant is literally a one-liner, right?

We grant and it's an

order, not an opinion.

So what we have found is we can find

the denials now a little more easily

because they're getting uploaded and

they're like substantive opinion.

The grants we tend to find afterwards,

right? When the court issues its opinion,

they'll usually say,

"This is a permissive interlocutory

appeal we granted review." So then you can

see that.

So the grants are kind of

tailing behind the denials for

gathering statistics, which

was born out. I updated.

So there's a table in the paper where

we went through all the 15 courts of

appeals and said from September one,

2023 to the middle of August

of 25, how many did they get?

How many did they grant?

How many did they deny?

And then I went back over the last couple

of days getting ready for today and

updated that through today.

And the grant rate effectively went

up in the percentages that I found.

So I found a few more that they

had granted in that timeframe,

but we didn't know because they hadn't

issued the opinion, but now they have.

So when I did the paper in September,

we were showing about a 25% grant rate.

The updated paper,

we found 18 more cases and the

grant rate went up to about

30%, almost 31%.

Okay. That's not bad.

Yeah. It's not a bad percent. I mean,

it's better percentages and petitions

for review and way better than ...

So I think the courts, if it's the

right case, they are willing to take it.

The other thing in those statistics

is a lot of those denials still are

the ones where people just don't

quite know how to follow the statute.

Yeah. I remember when it first started,

there were so many things

that would get kicked on.

Didn't say permission in the order.

A judge didn't actually rule

or say what the question was.

They were working out the procedural

kinks for about five years before they

really even got into the merits too much.

Yeah. And I put in the paper,

there's two checklists at the back that

you can work through to make sure that

your orders say what they need to say

and have your timing for going to the

court of appeals.

So those hopefully would be helpful to

get people to follow that part right?

You mentioned earlier that we will

make sure that that information,

those materials are available to

listeners through the podcast,

the download that you'll get,

but we'll also publish a blog post in

connection with each episode that goes out

that we'll link them there too.

So that information should be easily

findable by anybody who listens.

And if you can't find it that way,

send me an email. I'll send it to you.

Rich.phillips@hklaw.com, and I

will send the stuff to you happily.

There you go.

I was going to say, going back to the

SCAC thing and the language of the rule.

So when we first looked at amending

the rules for requiring the courts of

appeals to explain themselves,

one of the questions we

had at the subcommittee is

what verb do we want to put

in there? Do we want to

say, identify the reasons,

explain the reasons, whatever.

And so we ultimately went with identify

because we didn't want to look like we

were trying to make courts

of appeals work too hard.

Plus I knew that the court of appeals

justices on the committee would not want

to vote in favor of a rule that said

they have to explain themselves more

detail. So we went with as a subcommittee

identify. We identified that rule,

that word choice at the SCAC

meeting, and we took a vote.

Should it be explained?

Should it be identified?

And the committee voted pretty

strongly in favor of identify.

And then we sent it to the court.

And then the court issued the rule.

And if you go look at the rule, it

says explain. The Supreme Court said,

"Court of appeals,

you get to explain yourself." And I was

okay with that because I think explain

was the right one,

but it was one of those where

it was better coming from

their bosses than coming

from the SCAG.

Also, I wouldn't say that

that's their bosses, by the way.

I wouldn't say Supreme

Court's their bosses.

I think they might take

that personally too.

That's probably true. I

should be careful about.

That. My commentary about SCAC having all

this influence over the Supreme Court,

clearly that's tempered.

There are occasional instances in

which the court just says, "Nope,

this is how we're going to do it. ".

Sort of like that Twitter post of the

kid that said people would be shocked at

how much influence 27-year-old law

clerks have over their judge's decision

making,

which is clearly from a 27-year-old

law clerk who has delusions of grandeur

because it ain't true and SCAC

is sort of like that sometimes.

Just in case there's any

doubt, the answer is not much.

Maybe an influence over where you're

going to go to lunch. And even then,

probably not much. Yeah.

Maybe some of the verbiage in

an opinion or something, but ...

Gosh, well, Rich, we could just

keep talking all afternoon.

I can ask lots and lots of

questions about recent rule changes,

but we'll have to save

those for another episode.

We want to be respectful of your time.

And we're just so grateful that you were

able to come on with us and talk about

all this stuff. It's fascinating. I

think it's especially important, again,

to emphasize the transparency

within which SCAC operates.

You've got agendas, you got

not only meeting minutes,

but actual transcripts of the meetings.

That is a tremendous resource for anyone

who wants to actually get themselves

educated on what's going

on in SCAC and figure out,

you could compare notes and say,

"Well, this is what SCAC is saying,

but the Supreme Court has done this.

" And if there's any doubt about the

direction that something's going in from a

practitioner's perspective,

you can then follow through on some of

the other channels that we've talked

about today and make the people who really

care and have something to say about

this,

let them know what your take is because

there's a million different ways of

looking at the practice of law in this

state and a lot of different perspectives

that need to be brought to bear on what

the rules are. And I know the Supreme

Court is doing the best they can.

SCAC certainly is too in considering all

those perspectives and how this impacts

justice in our state. So thank

you for your service on SCAC,

for your excellent paper, the

legwork that went into that,

which we look forward to sharing with

our listeners. But before we let you go,

I know you know that our tradition here

is to ask our guests to provide a tip or

a war story. So why

don't we start with that?

So before we go there, I will say,

because we've mentioned a couple

times these resources are out there,

but we haven't told

people where to find them.

So if you want to know

what's going on with SCAC,

go to the txcourts.gov website.

Then on the dropdown for organizations,

there's a whole bunch of things,

all these different committees

the court appoints people to.

One of them is Supreme Court

Advisory Committee. Click on that,

and then you'll be able to very

easily see all of our meetings,

when they're scheduled, and

historically, it goes way, way back.

You can pull up the agendas, all the

materials that were sent out ahead,

the subcommittee memos, which has

redlines to rules and backup materials,

and then the transcripts. We

have a court reporter, bless her,

who sits there that entire day and

tries to take down this overlapping

discussion of all of these people that

we kind of sit in a big square in the

state bar building in Austin.

If you really wanted to,

you could sit down and read that entire

thing and kind of see what's going on.

So it's there at the OCA's website.

Just want to make sure we tell people

where it is and how to find it.

100%. And we'll drop the

link in our show notes too.

All right. So here's the main war

story that I had to come up with.

And I thought through a few of these, but

this one, every time I think about it,

it just makes me giggle.

I had a case where I was

hired after the jury verdict,

but before the judgment.

My client was defendant and they had

lost some pretty significant compensatory

damages and punitive damages

on top. They hired me.

They actually filed a one JNOV motion.

I filed an amended JNOV motion

because it did not actually

preserve all the no evidence points. And

it's one of the things. Here's my tip.

If you're filing a JNOV motion,

your first issue for every one of you

could go through every question in the

verdict form and say,

"There is no evidence to support the

jury's answer to question number one."

There is no evidence to support the jury's

answer to question number two because

that is the rock solid way to preserve

any no evidence point you want to make on

appeal. And if you haven't done it

and you didn't object to the question,

you may not have preserved no evidence

point. So luckily we had time to do that.

Then we went down and had a hearing on

the motion for judgment with the trial

judge. We laid all that out and we had

some pretty good arguments, I thought.

And the trial judge said, "All right,

I am not going to enter

judgment right now.

I want you guys to go mediate,"

which we were fine with.

And you would think the

plaintiffs would've taken

that message and maybe gotten

a little reasonable about

what they wanted at mediation.

So we set up the mediation.

It was during the summer.

I took a summer associate with me

because everybody should have the joy of

sitting through a mediation all day and

playing the games that they have there

and doing whatever else.

We had representatives of

the client's insurer there.

They were ready to seriously talk

about getting the case settled.

Mediator came in,

talked with us for a few minutes and he

went to the plaintiffs because obviously

he's got to get their demand. And he was

in their room for a good chunk of time,

more than normal for the first visit.

And then he comes back to the room and

he walks in and we could tell just from

his face that this isn't going to

be good. And he says, "All right,

I don't want to tell you

what I'm about to tell you,

but this is the message that I

have been told to convey from the

plaintiffs." Just clear, this isn't

me, this is the plaintiff. He says,

"The plaintiff's lawyers want

to know or want to remind you,

have you ever seen the movie

Gladiator?" We're all like,

"Yeah." And he says,

"Do you remember the very beginning

scene when Quintas says to Maximus,

People should know when they're

conquered." And we all went,

"Yeah." And he said, "That is

the plaintiff's message to you.

" Oh my gosh.

And their opening demand,

if you can imagine,

was actually more than they probably

could have gotten on their best day

in a judgment from the court.

Interesting.

Yeah. That mediation did not

last long and we did not settle.

And I explained to the summer associate,

this is not normally how these things go.

Normally they're a lot longer and a lot

more boring. So I mean, it was crazy.

But the reason I love this story after

people should know when they're conquered

is we took the appeal up and we

got the court of appeals to reverse

and render a take-nothing judgment

for the plaintiffs. Exactly.

And at that point, I will tell you,

I have considered buying

a DVD copy of Gladiator

and just dropping it in the

mail to the plaintiff's lawyer.

No explanation. Yeah.

There you go. You may have

already bought the DVD.

You just didn't mail it.

I guess in that situation,

the concept was exactly right.

They didn't read the room

correctly. There you go.

Well, he forgot the second part of it,

which is when Maximus says to Quintus,

"Would you know when you've

been conquered? Would I? "

He ignored the next line.

Yeah. Wow. What a story. That's a

great point to end on, Rich. Hey,

thanks again for being with

us. We sure appreciate.

It. Yeah, we really appreciate it.

It was a lot of fun. Appreciate you

guys having me on. And as you can tell,

I like talking about the rules process.

So if you ever want me back

to talk about more rules.

Well, we will take you up on that

because as we've seen in recent times,

there will be more rules. Absolutely.

There will be.

Thanks again, Rich.

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