What is an Interlocutory Appeal?

How fast can a case be appealed in Texas? 

Immediate appeal from a case that is still pending vs appeal after a final judgment is entered. 

INTERLOCUTORY APPEAL

An interlocutory appeal can be defined as an immediate appeal, but that is not a satisfactory definition because other appeals can be “immediate” also, depending on how fast the attorney for an aggrieved client seeks relief in the higher court.

An interlocutory appeal, unlike a regular appeal, is a vehicle to obtain review by a higher court while a case is still pending in the trial court, i.e. there is no final ruling or judgment. In that sense, an interlocutory appeal has more in common with a petition for writ of mandamus, which is typically also filed while a case is still pending (though there are exceptions, such as when a trial court takes action to alter a judgment after the expiration of plenary power).

WHEN AND HOW QUICKLY CAN A CASE BE APPEALED?

Unlike an appellate brief, a notice of appeal has minimal content requirements and can be drafted and efiled in minutes, rather than days. That said, there are distinct deadlines: An interlocutory appeals is an accelerated appeal, and must be filed within twenty (20) days. A notice of appeal from a final judgment is generally due thirty days for the date the judgment is signed (not the date it is rendered); but the deadline can be extended by timely filing one or several post-judgment motions in the trial court instead. (Appeals from JP courts to county courts have different rules).

The distinguishing characteristic of an interlocutory appeal is that it is filed while a case remains pending in the trial court, whereas an ordinary appeal is taken from a final judgment or other case-terminating order.

Either type of appeal could be filed on the day the court below signs an order that one or both parties find fault with, as long as such an appeal is authorized. The question of authority to appeal is a second characteristic that distinguishes an interlocutory appeal from a regular appeal from a final judgment. Final judgments and equivalent orders (e.g., orders of dismissal that also terminate a case, but do not involve an award of money to one or the other) may be appealed as a matter of right as long as they result from a contested proceeding (agreed judgments are generally not appealable), but interlocutory appeals are only permitted if they are authorized by statute.

UNAUTHORIZED APPEALS DO GET FILED, BUT RESULT IN DWOJ

Lack of statutory authorization does not mean such interlocutory appeals will not be filed, but such appeals are subject to being dismissed for lack of jurisdiction without regard to the validity of the legal arguments that the appellant is eager to raise. This happens with some regularity. The clerk of the appellate court will normally send (mail or email) a notice regarding the apparent lack of jurisdiction, and offer the appellant an opportunity to show otherwise, before the court dismissed the appeal. à Dismissal for Want of Jurisdiction (DWOJ). Upon a finding that the court of appeals has no jurisdiction, the appeal is often labeled an “attempted appeal”.

NEW FACTS MAY RENDER AN APPEAL MOOT

There are other bases for jurisdictional dismissal, such as mootness, which may provide the court of appeals with an occasion to consider extrinsic and new evidence that could not otherwise be considered because an appeal is based on the record sent up from the trial court, and does not allow for the introduction of new evidence.

If an appeal becomes moot after the date of the judgment, it may be necessary for the appellate court to look into the facts pertaining to mootness even if they cannot be gleaned from the record on appeal. A common scenario resulting in mootness is an agreement by the parties to the appeal to resolve all issues and disagreements between them. Normally, the appellant will then file an unopposed motion to dismiss, or the parties will file a joint motion to dismiss, or a joint motion to reverse without regard to the merits and to remand for entry of an agreed order of dismissal in the court below, but this does not always happen. The court of appeal may eventually dismiss the case as moot if the court becomes aware of the settlement.

A pending interlocutory appeal may also be rendered moot if the trial court proceeds to trial or final hearing and enters a final judgment. A classic example of this scenario is an appeal of a temporary injunction. A final judgment, or a nonsuit, terminates the temporary order, and therefor eliminates the basis for the appeal.  

If there is new evidence that is material to the propriety of a final judgment, it must be presented to the trial court; either by motion for new trial (if it’s not too late); or in a bill-of-review proceeding, which is a new lawsuit to re-open a case that is too old to be amenable to a regular appeal or a restricted appeal, which can be brought up to 180 days after the judgment under certain circumstances.

‘’PERFECTION” OF APPEAL

In Texas, an appeal from a trial court to the court of appeals is taken, rather than made; and it is said to be “perfected” upon the filing of a notice of appeal. Strangely enough, the notice of appeal is filed in the trial court, and then forwarded to the court of appeals, rather than being filed with the clerk of the court of appeals in the first instance. Nor is the appeal “perfected” in the normal sense of the word, when the notice of appeal is file-stamped. The file-stamp is important as proof of timeliness, but the clerk of the trial court will not even collect the filing fee. If perfected means completed or made ready for the appellate court to rule on the merits, the real work begins after the notice of appeal has been filed; -- though astute attorneys will plan for a possible appeal while the case is still pending in the trial court, particularly when the case involves a lot of money (“amount in controversy”) or is otherwise a high-stakes case.   

HOW AN APPEAL IS INITIATED

The Notice of Appeal itself is a one-page or two-page document. Some attorneys include information about the issues in the case in the notice of appeal, but this is rare. If there were more than two parties in the case, it is particularly important to identify which one is appealing. The court of appeals may or may not grant leave to correct error in the notice of appeal, but if a party wanting to appeal is not even properly identified, it may be too late after the deadline has passed.

The notice is supposed to also identify the court of appeals to which the appeal is taken, but this is a meaningless form requirement because the appellant does not have a choice in the matter; not even in the ten counties in the first and fourteenth appellate district, which are co-extensive. Appeals from those counties are made to either the First or the Fourteenth Court of Appeals, but the assignment is made randomly by the clerk.  

What makes or breaks a timely-filed appeal are the record and the briefs. The record on appeal consists of two records, the Clerk’s Record and the Reporter’s Record.

An appellate brief is mandatory for the party that brings the appeal, and must strictly comply with numerous requirements as to form, format, length, and structure. Noncompliant briefs may be struck, or even rejected when e-filed. The efiling mandate added new requirements, such as searchable text pdf files rather than mere scans of paper documents, and required bookmarks for an appendix consisting of more than a single (i.e., more than the judgment or other order which is being appealed). The appellee is not absolutely required to file a brief, if they think the appeal will be unsuccessful, or do not want to spend the effort and money to prepare one. If they do file a brief, they are subject to the same formal requirements.

The Clerk’s Record, often abbreviated CR or C.R. in the required citations in briefs, is the compilation of papers from case file in the court below. The “papers” are now collated and forwarded electronically as a merged pdf file with bookmarks, rather than assembled into heavy volumes of photocopies of filed documents. Some trial court documents are required by the rules, while the inclusion of others is optional. Clerk in this context means the clerk of the court from which the appeal originates, which could the County Clerk or the District Clerk.

The Reporter’s Record, often abbreviated “RR” or “R.R.” in references to particular pages and lines, is the transcript of the in-court oral proceedings taken down by the Court Reporter. This can be the Official Court reporter of the particular court, or a substitute, or a combination of both. Not all appeals require a court reporter’s reporter, but the absence of one may very well doom an appeal because the court of appeals will assume that the unavailable record supports the judgment.

The classic example of an appeal that does not require a reporter’s record is an appeal of a summary judgment order, which may or may not have been granted following an oral hearing. Many summary judgments are “heard” by submission, meaning that the judge makes a ruling based on what has been filed only, i.e. the motion for summary judgment, the evidence filed in support it (consisting of affidavit(s) and documents) and the response by the non-movant, if any, including any counter-evidence. Even if there is an oral hearing on a motion for summary judgment, the hearing is only for legal argument, i.e. non-evidentiary, and it cannot generally be considered on appeal, because the essence of summary judgment is that it is based on what has been submitted in writing, and does not involve credibility determinations and resolution of contradictory testimony, at least in theory. à Summary judgment proceeding vs trial on the merits. Some attorneys nevertheless have a reporter’s record prepared for a summary judgment appeal, which may make sense if there is an issue as to whether error was preserved on particular evidentiary objections. Unlike federal district courts, trial judges in state courts typically do not explain their rulings on summary judgment motions. They rarely write opinions, and they do not file findings of facts and conclusions of law after a summary judgment order. Texas case law says that such findings are not appropriate in the summary judgment context. For the same reason, a request for findings after a summary judgment does not extend the deadline for an appeal. In order to obtain an extension, a post-judgment motion will be necessary.

Some types of summary judgment orders and similar types of interlocutory orders may be appealed by interlocutory appeal even if they do not resolve the entire case (e.g. denial of a motion to dismiss or jurisdictional plea by a governmental entity), but most rulings on summary judgment motions are not immediately appealable.

DOCUMENTS OUTSIDE THE RECORD ON APPEAL CANNOT BE CONSIDERED 

"The appellate record consists of the clerk's record and, if necessary to the appeal, the reporter's record." Tex. Rule App. P. 34.1. "The burden is on the appellant seeking review to see that a sufficient record is presented to show error requiring reversal." Henning v. Henning, 889 S.W.2d 611, 613 (Tex. App.-Houston [14th Dist.] 1994, writ denied). "[W]e cannot consider documents attached as appendices to briefs and must consider a case based solely upon the record filed." WorldPeace v. Comm'n for Lawyer Discipline, 183 S.W.3d 451, 465 n.23 (Tex. App.-Houston [14th Dist.] 2005, pet. denied). 

STATUTORY AUTHORIZATION OF INTERLOCUTORY APPEALS

There is no one list that comprehensively covers all scenarios in which an interlocutory appeal is authorized. That said, many such appeals fall into one of the categories listed in Section 51.014 of the Civil Practice and Remedies Code (“CPRC”).

List of authorized interlocutory appeal at Tex. Civ.Prac & Rem. Code §51.014
See: Chapter 51 of the Texas Civil Practice and Remedies Code 

AMENDMENT PERMITTING INTERLOCUTORY APPEAL IN ARBITRATION CASES 

In 2009, the Texas Legislature amended the Texas Arbitration Act to permit interlocutory appeals of orders denying motions to compel arbitration pursuant to the Federal Arbitration Act (FAA). See Tex. Civ. Prac. & Rem. Code § 51.016 (West, Westlaw through 2013 3d C.S.); see also CMH Homes v. Perez, 340 S.W.3d 444, 448 (Tex. 2011) (construing section 51.016). If a dispute is subject to the FAA, section 51.016 of the Texas Civil Practice and Remedies Code authorizes interlocutory appeals "to the court of appeals from the judgment or interlocutory order of a district court . . . under the same circumstances that an appeal from a federal district court's order or decision would be permitted by 9 U.S.C. Section 16." Tex. Civ. Prac. & Rem. Code § 51.016. This authorization does not extend to motions that grant a motion to compel.

SHORTER DEADLINE FOR FILING OF NOTICE OF INTERLOCUTORY APPEAL 

In order to perfect an accelerated appeal of an interlocutory order, the party wishing to pursue the appeal is required to file a notice of appeal "within 20 days after the judgment or order is signed." TEX. R. APP. P. 28.1, 26.1(b).

Case snippet: Filing notice of appeal late has dire consequences 

DENIAL OF SUMMARY JUDGMENT GENERALLY NOT APPEALABLE

The denial of a summary judgment motion is generally not appealable even after the case is over, at least not if the case ended with a judgment after a bench trial or a judgment rendered upon the verdict of a jury. This is because the denial of summary judgment does not itself resolve the case, while the trial on the merits does, one way or the other.

By contrast, if a partial summary judgment is granted in the course of pretrial proceedings, it will generally be merged into the final judgment, and may thus become appealable, unless it is supplanted by a subsequent ruling while the trial court retains plenary power. 

A partial summary judgment may dispose of some claims, but not others, and may result in claims against one party being resolved, but leave the claims or defenses of other parties unaffected. Such partial dispositions can be severed from the main proceeding on motion of a party, and can thus be made final for purposes of appeal, while the remainder of the case remains pending in the trial court as an open case. 

Petition for Writ of Mandamus - Appeal by a different name and in a different form - currently used by Texas AG to Challenge Same-Sex Marriage Rulings by Travis County (Austin, TX) Trial Court Judges

THERE ARE APPEALS, AND THEN THERE ARE APPEALS BY A DIFFERENT NAME   

Appeal vs. Mandamus Petition / Writ of Habeas Corpus 

A mandamus case filed in the court of appeals is actually denominated an "original" proceeding, but it is original only in the court of appeals and it still pertains to a trial judge's act or inaction in a pending case in a trial court. So, given those characteristics, a mandamus proceeding has most of the hallmarks of an appeal of the interlocutory variety. It is more similar to an interlocutory appeal than a regular appeal because it is typically brought while a case is pending in the trial court.

In a mandamus case, the case style is different (In re BCD as opposed to BCD vs XYZ) and the party bringing the complaint is called relator, rather than the appellant. The opposing "party" in the mandamus proceeding is technically the judge whose ruling or other conduct forms the basis for the complaint, while the other party in the underlying suit is called the "real party in interest", and not the appellee, as in a regular or interlocutory appeal. Beyond the difference in terminology, there are also different rules that govern these types of appeals, and what types of papers are used to support it.
The main purpose of a mandamus proceeding is to obtain relief against a judge when no other remedy is available and it would arguably be too late to pursue an appeal from a final judgment, for example when one party claims it should not be forced to turn over documents that contain trade secrets or confidential information, but the trial judge nevertheless orders them to do so.

Under such circumstances, the resisting party may try to get the judge in question "mandamused" by appealing to higher authority, i.e. the court of appeals. The vehicle to do so is a petition for writ of mandamus, which may be accompanied by an emergency request for an immediate stay of the trial court's order.

A application for writ of habeas corpus filed in the court of appeals has much in common with a petition for a writ of mandamus, but is restricted to situations where the trial court's order puts the party in jail ("confinement").

RECENT MANDAMUS FILINGS IN THE TEXAS SUPREME COURT INVOLVING SAME-SEX MARRIAGE 

Current examples of high-profile mandamus proceedings are In re State of Texas, No. 15-0135, and In re State of Texas, No. 15-0139. The case styles are identical because neither the judges, nor the real parties in interest are made part of the case name in mandamus cases under the established case naming convention.

Because both cases were taken to the Supreme Court by the Texas Attorney General in the name of the State, it is necessary to add additional information to distinguish them: No. 15-0135 was filed on February 17, 2015 and involves a ruling by the judge of Probate Court No. 1 in Travis County (Austin) on same-sex marriage in the post-mortem context; while No. 15-0139 was filed two days later and involves a challenge to a temporary order signed by a district court judge that allowed two women to obtain a marriage license.

Both mandamus actions were initiated by the Texas Attorney General, Ken Paxton, in February 2015, and involve challenges to trial court orders that put the constitutionality of same-sex marriage prohibition in Texas in doubt. Some years back, the Texas Legislature passed a state constitutional amendment to declare that marriage shall consist only of "the union between one man and one woman", Acts 2005, 79th Leg. J.J.R. No. 6, §1; and the voters ratified it by referendum in November 2005.

But several trial courts have since ruled that the same-sex prohibition is unconstitutional under the due process and equal protection clauses of the federal constitution, which trump state law in case of conflict. Several cases involving same-sex marriage/divorce are already pending in the Texas Supreme Court. They are among the longest-pending cases on the docket.

In the two freshly-filed petitions for writ of mandamus, the Attorney General attacks orders declaring the same-sex marriage prohibition unconstitutional in two different contexts.

In Case No. 15-0135 the AG challenges an order by a Travis County probate court judge refusing to dismiss an application for determination of heirship by a woman claiming to be the surviving spouse of a deceased woman whose family filed a proceeding in probate court to settle the matter of inheritance in the absence of a will. The issue in this case is whether there was an informal marriage (more commonly known as “common law marriage”) under Texas law. The probate court judge based the denial of the motion to dismiss on the finding that the same-sex marriage prohibition was unconstitutional.

In Case 15-0139 the AG seeks to invalidate a temporary restraining order (TRO) granted by a district court judge in Travis County that enjoined the Travis County Clerk, Dana DeBeauvoir, from denying a marriage license to a lesbian couple, one of whom is cancer-stricken. The judge in that case, the Hon. P. David Wahlberg, also waived the otherwise mandatory waiting period, and the couple was married the same day. See Twitter post from Travis County Clerk with Photo.

Attorney General Paxton immediately filed an emergency motion for a stay in the Texas Supreme Court, which the Court granted the same day. In both cases, Paxton argues that there was no other remedy and that the rulings of the Travis County judges create confusion about whether or not same-sex marriage licenses may be issued. The absence of an adequate legal remedy is a one of the prerequisites for mandamus relief.

The mandamus-petitions against the most recent Travis County same-sex marriage rulings, however, are atypical in that the AG went immediately to the Texas Supreme Court, rather than to the Third Court of Appeals that oversees Travis County trial courts. And the AG not only requested immediate relief, but also received it within hours. He went so far as to call the judges' actions "rouge" in a press release.

All this reflects the highly charged nature of the issue, and the deep partisan division between liberals and conservatives on hot-button social issues. Austin, like other urban population centers (Houston, Dallas) is much more liberal and regularly elects Democratic office holders -- Houston even has a lesbian mayor -- while all members of the Texas Supreme Court are Republicans, and all other holders of state-wide offices, including the Governor and the Attorney General, are also Republicans. The current mandamus proceedings involving the same-sex marriage issue must be seen in that political context. The same can be said about the indictment of Rick Perry in Travis County for abuse of office while serving as Governor.

TEXAS SUPREME COURT STAY ORDERS IN 2015 SAME-SEX MARRIAGE CASES FROM TRAVIS COUNTY 

STATEMENT OF TRAVIS COUNTY CLERK - WILL ISSUE LICENSES TO SAME-SEX COUPLES ONLY ON COURT'S ORDER 

EXCERPTS FROM TRIAL COURT ORDERS AT ISSUE IN THE MANDAMUS CASES 

Snip from Judge Guy Herman's Order finding same-sex marriage ban unconstitutional 

Temporary Order by Judge Wahlberg directing County Clerk to
issue marriage license to same-sex couple in light of
illness of one of them 

GENERAL RULE GOVERNING MANDAMUS 

To be entitled to mandamus relief, a relator must demonstrate (1) the trial court clearly abused its discretion, and (2) the relator has no adequate remedy by appeal. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462 (Tex.2008) (orig. proceeding). 

Note on terminology: The party seeking relief by petition for writ of mandamus is called “relator”, while the opposing party in the litigation below is the “real party in interest”. In their opinions and orders, justices on the courts of appeals refer to trial court judges as “it”, sometimes even in mandamus proceedings, which are specifically directed against the judge that rendered the complained-of ruling. This is why a pending mandamus proceeding is affected by the trial judge leaving office. The judge replacing the original judge must be given an opportunity to reconsider the challenged order before the court of appeals proceeds to a decision on whether the original judge committed as error serious enough to warrant correction by the higher court.  

To establish entitlement to relief by mandamus, relators "must meet two requirements." In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004). "One is to show that the trial court clearly abused its discretion." Id. "The other requirement . .. . is to show that . . . [relators have] no adequate remedy by appeal." Id. at 135-36. The Texas Supreme Court has explained that "[t]he operative word, `adequate,' has no comprehensive definition; it is simply a proxy for the careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts." Id. at 136. Although the Texas Supreme Court "has tried to give more concrete direction for determining the availability of mandamus review, rigid rules are necessarily inconsistent with the flexibility that is the remedy's principal virtue." Id.  

SOURCE: Corpus Christi / Edinburg Court of Appeals - No. 13-14-00395-CV - 7/11/2014

MANDAMUS STANDARD: LOWER WHEN CHALLENGED ORDER IS VOID 

"The issuance of a void order is an abuse of discretion." Custom Corporates, Inc. v. Sec. Storage, Inc., 207 S.W.3d 835, 838 (Tex. App.-Houston [14th Dist.] 2006, orig. proceeding). Moreover, "[w]hen the order is adjudged void, it is not necessary for a relator to additionally show that it lacks an adequate appellate remedy." Id. Therefore, "[c]ases involving void orders present a circumstance warranting mandamus relief." Id.  

OPINIONS ON GRANT OR DENIAL OF WRIT OF MANDAMUS 

When denying relief, the court may hand down an opinion but is not required to do so. See TEX. R. APP. P. 52.8(d). When granting relief, the court must hand down an opinion as in any other case. TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). 

Many denials of mandamus are essential one-line or two-line orders. A footnote may be used to identify the underlying case in the trial court, and the name of the judge whose order is being challenged.