Texas Civil Practice and Remedies Code section 51.014(d) allows immediate appeal of an otherwise unappealable interlocutory order, if certain conditions are met. For years, section 51.014(d) required all parties to consent, which limited its usefulness. But the statute was amended in 2011 to remove the requirement that all parties agree. Now, an order may be immediately appealable if the trial court enters an order finding (1) that the the issue involves a controlling question of law on which were is substantial ground for difference of opinion and (2) an immediate appeal may materially advance the ultimate termination of the litigation. The amended version of section 51.014(d) applies to cases filed after September 1, 2011.
Although the change significantly reduces the burden for seeking an immediate appeal, there is one last step, which may prove to be the hardest. Section 51.014(f) provides that "an appellate court may accept an appeal permitted by Subsection (d)." (emphasis added). Therefore, even if the trial court certifies an order for immediate appeal, the appellate court can decline to accept it. A recent opinion from the Dallas Court of Appeals illustrates this potential pitfall. In Gunter v. Empire Pipeline Corp., the trial court and all of the parties agreed that the requirements of section 51.014(d) were met. But the court of appeals disagreed and dismissed the appeal. The appellate court found that an immediate appeal would not materially advance the termination of the litigation. The slip opinion is available here. (Although Gunter was decided based on the old version of the statute, the old version also gave the appellate court the opportunity to decline to accept an appeal.)
So, while section 51.014(d) can provide an avenue for immediate appeal, be aware that you will have to convince both the trial court and the appellate court that an immediate appeal would be helpful. Over the next several years, it will be interesting to see how closely appellate courts look at the requirements of section 51.014(d) before accepting an interlocutory appeal.
-- Rich Phillips, Thompson & Knight