ILA - Interlocutory Appeals in Texas: Only permitted if authorized by statute

§§ 51.014. APPEAL FROM INTERLOCUTORY ORDER

(a) A person may appeal from an interlocutory order of a district court, county court at law, or county court that:

(1) appoints a receiver or trustee;

(2) overrules a motion to vacate an order that appoints a receiver or trustee;

(3) certifies or refuses to certify a class in a suit brought under Rule 42 of the Texas Rules of Civil Procedure;

(4) grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction as
provided by Chapter 65;

(5) denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an
officer or employee of the state or a political subdivision of the state;

(6) denies a motion for summary judgment that is based in whole or in part upon a claim against or defense by a
member of the electronic or print media, acting in such capacity, or a person whose communication appears in or
is published by the electronic or print media, arising under the free speech or free press clause of the First
Amendment to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 73;

(7) grants or denies the special appearance of a defendant under Rule 120a, Texas Rules of Civil Procedure,
except in a suit brought under the Family Code;

(8) grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001;

Note: The question whether a university official is a governmental "unit" for interlocutory appeals purposes was
recently before the Texas Supreme Court. See No. 05-0321 T exas A&M Univ. v. Koseogu. The Supreme Court
granted the University's petition for review May 26, 2006 and heard oral argument later in the year. In its opinion
released Sep. 7, 2007, the Supreme Court held that the governmental official (in his official capacity) was entitled
to interlocutory appeal of the trial court's denial of his plea to the jurisdiction. The court further held that the
university administrator was entitled to the protections of governmental immunity, just like the governmental entity
itself. Accordingly the supreme court rendered judgment for the defendants Texas A&M Univ. vs . Koseoglu (Tex. 2007)
.
Section 101.001 defines a “governmental unit,” in pertinent part, as “this state and all of the several agencies of government that
collectively constitute the government of this state, including other agencies bearing different designations, and all departments,
bureaus, boards, commissions, offices, agencies, [and] councils.” Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(A); see also id. §
101.001(3)(B-D) (continuing definition of governmental unit under the Act).

The Act defines an “employee” as: a person, including an officer or agent, who is in the paid service of a governmental unit by
competent authority, but does not include an independent contractor, an agent or employee of the independent contractor, or a
person who performs tasks the details of which the governmental unit does not have the legal right to control. Id. § 101.001(2).

(9) denies all or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not be
taken from an order granting an extension under Section 74.351; or

(10) grants relief sought by a motion under Section 74.351(l).

(b) An interlocutory appeal under Subsection (a), other than an appeal under Subsection (a)(4), stays the
commencement of a trial in the trial court pending resolution of the appeal. An interlocutory appeal under
Subsection (a)(3), (5), or (8) also stays all other proceedings in the trial court pending resolution of that appeal.

(c) A denial of a motion for summary judgment, special appearance, or plea to the jurisdiction described by
Subsection (a)(5), (7), or (8) is not subject to the automatic stay under Subsection (b) unless the motion, special
appearance, or plea to the jurisdiction is filed and requested for submission or hearing before the trial court not
later than the later of: (1) a date set by the trial court in a scheduling order entered under the Texas Rules of Civil
Procedure; or (2) the 180th day after the date the defendant files: (A) the original answer; (B) the first other
responsive pleading to the plaintiff's petition; or (C) if the plaintiff files an amended pleading that alleges a new
cause of action against the defendant and the defendant is able to raise a defense to the new cause of action
under Subsection (a)(5), (7), or (8), the responsive pleading that raises that defense.

(d) A district court may issue a written order for interlocutory appeal in a civil action not otherwise appealable
under this section if: (1) the parties agree that the order involves a controlling question of law as to which there is a
substantial ground for difference of opinion; (2) an immediate appeal from the order may materially advance the
ultimate termination of the litigation; and (3) the parties agree to the order.

(e) An appeal under Subsection (d) does not stay proceedings in the district court unless the parties agree and
the district court, the court of appeals, or a judge of the court of appeals orders a stay of the proceedings. (

f) If application is made to the court of appeals that has appellate jurisdiction over the action not later than the 10th
day after the date an interlocutory order under Subsection (d) is entered, the appellate court may permit an appeal
to be taken from that order.

Acts 1985, 69th Leg., ch. 959, §§ 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 167, §§ 3.10, eff.
Sept. 1, 1987; Acts 1989, 71st Leg., ch. 915, §§ 1, eff. June 14, 1989; Acts 1993, 73rd Leg., ch. 855, §§ 1, eff.
Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1296, §§ 1, eff. June 20, 1997; Acts 2001, 77th Leg., ch. 1389, §§ 1, eff.
Sept. 1, 2001; Acts 2003, 78th Leg., ch. 204, §§ 1.03, eff. Sept. 1, 2003.

RECENT AND PENDING SUPREME COURT CASES ON INTERLOCUTORY APPEALS

05-0321 Texas A&M Univ. Sys. v. Koseoglu (Tex. 2006 or 2007)(affirmed in part, reversed in part)
Texas A&M University System, Texas Engineering Experiment Station, and Dr. Mark McLellan v. Dr. Sefa Koseoglu; from Brazos
County; On petition for review from the 10th Colurt of Appeals (10-03-00375-CV, 167 S.W.3d 375, 03 -09 -05)
Link to briefs:
No. 05-0321 A&M University's B rief in the Supreme Court
No. 05-0321 A&M University's Reply Brief in the Supreme Court
No. 05-0321 Brief of Respondent Dr. Sefa Koseoglu
Opinion below:
Texas A&M Univ. Sys. v. Koseoglu, 167 S.W.3d 374 (Tex.App.--Waco 2005, pet. granted )

UPDATE: Texas Supreme Court hold public university official is immune in official capacity, and entitled to interlocutory appeal when
the trial court denies his or her plea to the jurisdiction. Texas A&M Univ. v s . Koseoglu (Tex. 2007); High Court reverses intermediate
court of appeal's decision to give plaintiff an opportunity to amend his pleadings to try to overcome the immunity bar. Texas A&M Univ.
Sys. v. Dr. Sefa Koseoglu, 167 S.W.3d 374 (Tex.App.--Waco 2005, pet. granted May 26, 2006 , reversed in part)

06-0034 DALLAS AREA RAPID TRANSIT V. AMALGAMATED TRANSIT UNION LOCAL NO. 1338 (pet. filed)
[collective bargaining; is state sovereign immunity preempted by federal law?]
Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338,
No. 05-05-00241-CV (Tex.App.–Dallas, Oct. 14, 2005, pet filed).
Question presented on petition to the Supreme Court: Where Texas governmental entities are immune from lawsuits for money
damages unless immunity from suit has been clearly and unambiguously waived by the Teas Legislature, does the Urban Mass
Transportation Act of 1964 (now Federal Transit Act) preempt the Texas doctrine of governmental immunity to allow a labor union to
pursue a lawsuit for money damages against a Texas Regional Transportation Authority?
No. 06-0034 Supreme Court Briefs
Opinion below:
Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338, No. 05-05-00241-CV (Tex.App.–Dallas, Oct. 14, 2005, pet
filed).

05-0594 UTMB v. Blackmon (Tex. June 9, 2006)
[nonsuit while interlocutory appeal ILA is pending terminates appeal, DWOJ]
05-0594 THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON v. THE ESTATE OF DARLA BLACKMON, BY ITS
BENEFICIARY SHEILA SHULTZ AND SHEILA SHULTZ, INDIVIDUALLY; from Coryell County; 10th district (10 03 00093 CV, 169 SW3d
712, 06 22 05) motion to dismiss, dismissed as moot
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the
Court vacates the court of appeals' judgment and dismisses the appeal for want of jurisdiction. Per Curiam Opinion
(“Darla Blackmon died of pneumonia while incarcerated at a Texas Department of Criminal Justice substance abuse facility
operated by the University of Texas Medical Branch at Galveston (UTMB). Blackmon’s daughter, Sheila Shultz, brought suit for
wrongful death and survival damages, claiming that UTMB negligently failed to diagnose and treat her mother’s illness. Shultz
alleged a waiver of sovereign immunity under the Tort Claims Act’s exception for personal injury or death caused by a condition or
use of tangible personal property. See Tex. Civ. Prac. & Rem. Code § 101.021(2). UTMB filed a plea to the jurisdiction, which the trial
court denied, and then brought an interlocutory appeal. See id. § 51.014(a)(8).”)
(“While the petitioner's interlocutory appeal from its plea to the jurisdiction was pending in the court of appeals, the respondent filed a
nonsuit. We conclude that the nonsuit deprived the court of appeals of jurisdiction, and we vacate its order and dismiss this
interlocutory appeal for want of jurisdiction.”)
Opinion below: 169 S.W.3d (Tex.App. 10thCoA)

04-0460 State of Texas v. Shumake, (Tex. June 23, 2006)
[explaining conflicts jurisdiction in the Supreme Court as an exception to the rule that interlocutory appeal is final in the court of
appeals]
("Before reaching the merits, we must consider the issue of our own jurisdiction. Generally, a court of appeals’ decision in an
interlocutory appeal is final. Tex. Gov’t Code § 22.225(b)(3). When, however, a justice in the court of appeals dissents on a question
of law material to the decision in the interlocutory appeal, or when a prior decision of another court of appeals conflicts with the court’
s decision in the interlocutory appeal, we have jurisdiction to resolve the disagreement or conflict. Tex. Gov’t Code §§ 22.001(a)(1),
(2) and 22.225(c). The court of appeals’ decision in this case conflicts with those of four other courts of appeals that have held the
recreational use statute does not permit a premises defect claim against the state. ... We thus have jurisdiction to resolve the conflict
in this interlocutory appeal. Tex. Gov’t Code § 22.001(a)(2).")

05-0831 Childers v. Advanced Foundation Repair (Tex. May 26, 2006)
[Order appealed from was final, CoA erred in dismissing for want of interlocutory jurisdiction)
05-0831 STEVE CHILDERS v. ADVANCED FOUNDATION REPAIR, L.P.; from Kleberg County; 13th district (13 04 00193 CV, ___
SW3d ___, 08 18 05)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the
Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion The court of appeals
erroneously determined Childers’s appeal to be interlocutory.
(“In Lehmann v. Har-Con Corp., we held that a “judgment that finally disposes of all remaining parties and claims, based on the
record in the case, is final . . . .” 39 S.W.3d 191, 200 (Tex. 2001). Such is the case here. AFR requested that the trial court dismiss the
case “in its entirety,” and the trial court did exactly that. The trial court’s Final Judgment is unequivocal: “This judgment is final,
disposes of all parties and all claims in this case, is appealable, and disposes of this case in the entirety.” Because the trial court’s
order was all-encompassing and, as the record confirms, disposed finally and completely of all claims and parties, the court of
appeals erred in deeming the appeal interlocutory and dismissing it for lack of jurisdiction. We note that the federal approach is
identical. See Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 86–87 (2000) (holding that an appeal may be taken of an
order that compels arbitration and dismisses all claims before the court). Without hearing oral argument, we grant Childers’s petition
for review, reverse the court of appeals’ judgment dismissing the case for lack of jurisdiction, and remand to the court of appeals to
consider the merits of Childers’s appeal. See Tex. R. App. P. 59.1, 60.2(d).”)

03-0204 T homas v. Long (Tex. April 21, 2006)
[vehicle to raise jurisdictional issue: plea to the jurisdiction v. summary judgment]
The Court reverses the court of appeals' judgment and renders judgment.
Justice Wainwright delivered the opinion of the Court. THOMMY THOMAS, SHERIFF OF HARRIS COUNTY v. JEANNE LONG;
from Harris County; 14th district (14 02 00251 CV)
(“This is an interlocutory appeal of a trial court’s denial of a jurisdictional plea. Although the plea was made as part of a motion for
summary judgment, the court of appeals had jurisdiction to consider the interlocutory appeal under section 51.014(a)(8) of the Texas
Civil Practice and Remedies Code. We conclude that the court erred in determining that it was without jurisdiction to consider the
appeal. However, we dismiss the claims relating to the respondent’s reinstatement to her employment because her failure to
exhaust administrative remedies deprived the trial court of subject matter jurisdiction over those claims.”)(“The trial court was without
subject matter jurisdiction to issue a declaratory judgment in this case and erred in denying Thomas’s jurisdictional challenge.”)
Opinion below: Thomas v. Long, 97 S.W.3d 300 (Tex. App.–Houston [14th Dist.] 2003, reversed)

04-0160 Brittingham-Sada de Ayala v. Mackie (Tex. April 21, 2006)
[interlocutory appeals statute, probate proceeding, permissive interlocutory appeal]
04 0160 MARIA CRISTINA BRITTINGHAM-SADA DE AYALA v. KEVIN MICHAEL MACKIE, ADMINISTRATOR OF THE ANCILLARY
ESTATE OF JUAN ROBERTO BRITTINGHAM-MCLEAN, DECEASED; from Webb County; 4th district (04 01 00204 CV, 131 S.W.3d 3,
07 02 03)
The Court reverses the court of appeals' judgment and dismisses the appeal.
Chief Justice Jefferson delivered the opinion of the Court (Justice O'Neill and Justice Green not sitting)

04-0465 City of Houston v. Jackson (Tex. April 7, 2006)
[fire fighter employment grievance, penalty, plea to the jurisdiction, two appeals in the court of appeals below, law of case doctrine
does not preclude Texas Supreme Court from reviewing issues raised in first (interlocutory) appeal.]
04-0465 THE CITY OF HOUSTO N V. ROBERT JACKSON; from Harris County; 1st district (01 02 00879 CV, 135 S.W.3d 891, 04 01
04) unopposed motion for leave to file post submission brief granted
The Court reverses the court of appeals' judgment and dismisses respondent's statutory penalty claim for want of jurisdiction.
Justice O'Neill delivered the opinion of the Court
Opinion below:

INTERLOCUTORY APPEALS IN THE COURTS OF APPEALS (selected cases)

Priscilla D. Slade v. Texas Southern University Board of Regents, No. 01-06-00990-CV (Tex.App.- Houston [1st
Dist.] , Aug. 30, 2007)(Opinion by Justice Sam Nuchia)(interlocutory appeal, breach of contract claim against state
university barred by sovereign immunity, waiver-by-conduct theory rejected)(Before Justices Nuchia, Keyes and
Higley)
Appeal from 61st District Court of Harris County
Trial court judge: Hon. John Donovan
Plaintiff / Appellant's attorneys: Ronald G. Franklin, Derek Daniel Bauman
University's counsel: James "Beau" Eccles, Assistant Attorney General

City prevails with plea to the jurisdiction on appeal
City of Pasadena, Texas v. Environmental Infrastructure Group, LP, Kinsel Industries, Inc. and Travelers Casualty
and Surety Company of America, Crouch/KST Enterprises, LTD, No. 01-07-00133-CV (Tex.App.- Houston, Aug. 2,
2007)(Opinion by Justice Hanks)(sovereign immunity)(Before Judge Wilson, Justices Hanks and Bland)
Dispostion: Reversed and rendered
Appeal from 151st District Court of Harris County,
Trial court judge: Hon. Caroline Baker

City of Houston v. City of Webster (Tex.App.-Houston [14th Dist.] Nov. 14, 2006)(Anderson)
[sovereign immunity law, ILA, appeal not authorized, motion for summary judgment vs. plea to the jurisdiction; only
jurisdictional issues subject to interlocutory appeal, appeal DWOJ]

Because Houston Filed a Summary Judgment Motion, It May not Take an Interlocutory Appeal

Interlocutory appeals are provided for by statute. See Tex. Civ. Prac. & Rem. Code ' 51.014. Houston attempted to give this court
jurisdiction over this interlocutory appeal by utilizing section 51.014(a)(8).[1] However, Houston did not file a plea to the jurisdiction.
Instead it filed a summary judgment, though styled a plea to the jurisdiction.[2] See Phillips v. Dafonte, 187 S.W.3d 669, 675 (Tex.
App.- Houston [14th Dist.] 2006, no pet.) (holding that, for purposes of section 51.014(a)(5), we determine if a party is entitled to an
interlocutory appeal by examining the substance and topic of the pleading upon which the appeal is based, not the form or title of the
pleading). The substance and topic of Houston's pleadings below were merits based and thus represented an attempt at summary
judgment. They continue to be merits based in this court. Appellate courts have jurisdiction to consider immediate appeals of
interlocutory orders only if a statue explicitly provides appellate jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998).
Because there is no statutory basis for this court to review Houston's motions for summary judgment that the trial court denied, we
dismiss this appeal.

Baylor College of Medicine v. Hernandez (Tex.App.– Houston [14th Dist.] July 27, 2006, pet. denied 4/27/07)(Guzman)
[Doctors not entitled to interlocutory appeal, plea to the jurisdiction improper]
DISMISSED: Opinion by Justice Eva M. Guzman
Before Chief Justice Hedges, Justices Brock Yates and Guzman
14-05-00976-CV Baylor College of Medicine, Francis Joseph Welsh , M.D., Haleema Latifi, M.D., Fareed Khan, M.D., and Nageeb
Abdalla, M.D. v. Maria Hernandez, Individually as Executrix of the Estate of Francisco Hernandez and as Friend of Ruby Hernandez
and Norma Hernandez and Frank Hernandez
Appeal from 151st District Court of Harris County
Holding: Because section 51.014 of the Civil Practice and Remedies Code does not confer this court with jurisdiction to decide any of
the issues presented on interlocutory appeal, the appeal is dismissed.

Section 51.014(a)(8) permits an appeal from an order that “grants or denies a plea to the jurisdiction by a governmental unit as that
term is defined in Section 101.001.” Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2005). A party cannot take an
interlocutory appeal from the denial of a plea to the jurisdiction unless the plea raises an issue that can deprive the trial court of
jurisdiction. See Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004). Moreover, an interlocutory appeal is not
available if the plea to the jurisdiction was not made by a “governmental unit.” See Tex. A & M Univ. Sys. v. Koseoglu, 167 S.W.3d
374, 377–79 (Tex. App.—Waco 2005, pet. granted); Mobil Oil Corp. v. Shores, 128 S.W.3d 718, 721 (Tex. App.—Fort Worth 2004, no
pet.); Perry v. Del Rio, 53 S.W.3d 818, 821 (Tex. App.—Austin 2001), pet. dism’d, 66 S.W.3d 239, 264 (Tex. 2001).

Quebe v. Pope No. 14-05-01054-CV (Tex.App.–Houston [14th Dist.] June 20, 2006)(Hedges)
Panel of Fourteenth Court of Appeals holds that interlocutory appeals statute must be construed strictly, finds no interlocutory
jurisdiction over attempted appeal from trial court order denying motion for summary judgment on
claims of defamation and tortious interference with a contract; defendant not a media defendant entitled to appeal under Tex. Civ.
Prac. & Rem. Code Ann. §51.014(a)(6).
DISMISSED: Opinion by Chief Justice Hedges
Appeal from 405th District Court of Galveston County (Judge Wayne J. Mallia)

City of Seabrook v. Port of Houston Authority (Tex.App. - Houston [1st Dist.] May 18, 2006)(opinion by Bland)(en banc)(pet granted)
DISMISS APPEAL: Opinion by Justice Bland
Before Justices Taft, Nuchia, Jennings, Keyes, Alcala, Hanks, Higley and Bland
01-04-00925-CV The City of Seabrook, Texas v. Port of Houston Authority
Appeal from Co Civil Ct at Law No 3 of Harris County
City of Seabrook v. Port of Houston Authority (Tex.App. - Houston [1st Dist.] May 18, 2006)
(dissenting opinion by Justices Hanks and Keyes)

Phillips M.D. v. DaFonte (Tex.App.- Houston [14th Dist.] Feb. 7, 2006)(Fowler)(ILA, Immunity of government employee)
[immunity claim of employee of governmental entity, UTMB, ILA]
AFFIRMED: Justice Fowler
Before Justices Fowler, Edelman and Guzman
14-05-00522-CV Linda G. Phillips, M.D. and Patrick Adegboyega, M.D. v. Debbie DeFonte
Appeal from 56th District Court of Galveston County Lonnie Cox

Panel finds that its has interlocutory jurisdiction under Tex. Civ. Prac. & Rem. Code Ann. §51.014(a)(5); that doctors are not entitled to
dismissal based on immunity pursuant to Tex. Civ. Prac. & Rem. Code 101.106(f); affirms trial court's denial of motion to dismiss.
Defendant doctors failed to establish that suit could have been brought against the entity (UTMB) under the Tort Claims Act.
Information is not tangible personal property; claims of intentional torts against doctors fall outside the scope of the Tort Claims Act.
Appeal from the 56th District Court of Galveston County, Texas

Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338,
No. 05-05-00241-CV (Tex.App.–Dallas, Oct. 14, 2005, pet filed and docketed as No. 06-00034)(ebriefs)
[collective bargaining; is state sovereign immunity preempted by federal law?]
Question presented on petition to the Supreme Court: Where Texas governmental entities are immune from lawsuits for money
damages unless immunity from suit has been clearly and unambiguously waived by the Teas Legislature, does the Urban Mass
Transportation Act of 1964 (now Federal Transit Act) preempt the Texas doctrine of governmental immunity to allow a labor union to
pursue a lawsuit for money damages against a Texas Regional Transportation Authority?

City of Grand Prairie v. Irwin Seating Company, No. 05-04-00560-CV (Tex.App.--Dallas, August 16, 2005)(denial of plea to the
jurisdiction affirmed, following Reata v. City of Dallas; waiver by counterclaim / third-party claim, entity has choice to contest
jurisdiction or seek affirmative relief and consent to jurisdiction in doing so, issue of waiver by sue and be sued language not
reached)

Harvest House Publishers v. The Local Church (Tex.App.- Houston [1st Dist.] Jan. 5, 2006)(Radack)(cert. denied)
(religion, first amendment, libel suit by church against publisher over cult labeling, interlocutory appeal, media)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Chief Justice Radack
(Before Chief Justice Radack, Justices Alcala and Bland)
01-04-00231-CV Harvest House Publishers, John Ankerberg, and John Weldon v. The Local Church, et al.Appeal from 80th District
Court of Harris County (Hon. Kent C. Sullivan)