St. Mary's Law Journal


A comparison of April Marketing & Distributing Corp. v. Diamond Shamrock Refining & Marketing Co. (“April Marketing”), which pended in federal court, and Barshop v. Medina County Underground Water Conservation District (“Barshop”), which pended in state court, illustrates the value of permissive appeal. Both cases had many early procedural similarities. Yet, the cases differ because the federal court allowed for a permissive appeal; the state court did not. The two cases later diverged procedurally, when the federal case was able to appeal the trial court’s interlocutory order denying motion for summary judgment. Lacking this option, the state case was forced to prepare for trial. The permissive appeal process greatly streamlined the adjudication of the April Marketing case, thus avoiding considerable waste of limited judicial resources. The Barshop parties and Texas judicial system did not fare as well, ultimately spending fifteen days in trial and ultimately appealing to the Texas Supreme Court, which rendered the five-week trial essentially unnecessary. The federal system accommodates such permissive appeals, Texas does not. Texas should follow the federal government’s and its sister states’ lead by adopting a permissive appeal. Certainly, any permissive appeal statute should strike a balance between the efficiency of interlocutory review and the need to protect from a deluge of appeals. Still, permissive appeal will counteract the unfair consequences which may results from a formulistic application of the final-judgment rule—the order which terminates the litigation on the merits, which is the only time appeals may be made. Clearly, this procedure would manage litigant, trial court and appellate court resources. It is time for permissive appeal in Texas.


St. Mary's University School of Law