Industrial Specialists, Llc v. Blanchard Refining Company LLC and Marathon Petroleum Company Lp

Supreme Court of Texas
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No. 20-0174
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Industrial Specialists, LLC,
Petitioner,

v.

Blanchard Refining Company LLC and Marathon Petroleum
Company LP,
Respondents

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On Petition for Review from the
Court of Appeals for the First District of Texas
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JUSTICE BLACKLOCK, joined by JUSTICE BLAND, concurring.

The plurality and dissent spend dozens of thoughtful pages
analyzing the appellate courts’ discretion to deny permissive appeals.
One word would have been enough, and we have already said it. The
discretion is “absolute.” Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa
AG, 567 S.W.3d 725, 732 (Tex. 2019). This Court held unanimously
three years ago that “Texas courts of appeals have discretion to accept
or deny permissive interlocutory appeals certified under
section 51.014(d), just as federal circuit courts do.” Id. (emphasis
added). This, we said, is because “the [Texas] Legislature modeled
section 51.014(d) after the federal counterpart to permissive
interlocutory appeals.” Id. at 731. Compare 28 U.S.C. § 1292(b), with
TEX. CIV. PRAC. & REM. CODE § 51.014 (d), (f). In the federal system,
courts of appeals may “deny review on the basis of any consideration.”
Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1710 (2017) (quotation
omitted) (emphasis in original). Thus, Texas courts of appeals, like
federal courts of appeals, have “absolute discretion” to accept or deny an
appeal under section 51.014(f). Sabre Travel, 567 S.W.3d at 732.
If the Legislature wants to require courts of appeals to take more
interlocutory appeals, it can certainly do so. I tend to think that earlier
and quicker appellate review of dispositive legal issues would be a
salutary thing. But the Legislature has not amended section 51.014(f)
in response to our observation in Sabre Travel that Texas’s permissive
appeal scheme mirrors its well-known federal counterpart. Nor has this
Court amended the Rules of Appellate Procedure. When we decided
Sabre Travel, we thought that “[o]ur procedural rules make [courts of
appeals’ absolute discretion] clear.” Id. The rules have not changed, so
resolving the issue today ought to require nothing more than a citation
to Sabre Travel.
Sabre Travel is not just this Court’s precedent. It is correct. A
court of appeals “may” accept a permissive appeal. TEX. CIV. PRAC. &
REM. CODE § 51.014(f). Not “shall” or “must” or “should,” but “may.” The
dissent is right, of course, that “may” does not always confer unfettered
discretion. Post at 18–19. But it often does. One place it does is in the
rules governing petitions for review in this Court: “The Supreme Court
may review a court of appeals’ final judgment on a petition for review.”

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TEX. R. APP. P. 53.1 (emphasis added). Elsewhere, the rules state that
“[w]hether to grant [a petition for] review is a matter of judicial
discretion.” TEX. R. APP. P. 56.1(a). Sabre Travel, section 51.014, and
the procedural rules together make clear that whether to grant a
petition for permissive appeal is likewise a matter of judicial discretion.
See 567 S.W.3d at 732.
Absolute discretion to decide whether to review another judge’s
decision right now—instead of later—is a far cry from absolute
discretion to, for instance, set aside a jury verdict. See In re Columbia
Med. Ctr. of Las Colinas, 290 S.W.3d 204, 213 (Tex. 2009) (requiring a
trial court “to give its reasons for disregarding the jury verdict”). Indeed,
unreviewable discretion to decide which cases to hear is well within the
confines of traditional appellate judging. Contrary to the dissent’s
concerns, unfettered discretion over which cases to hear is not an
abandonment of reasoned decision-making or an impediment to
confidence in the rule of law. And if it is, then we are in trouble.
Deciding which cases to hear—with absolute discretion and without
explanation—is the daily business of this Court. Under section 51.014
and the Rules of Appellate Procedure, it is also, occasionally, the
business of the courts of appeals.
I am not the first to note the similarity between this Court’s
absolute discretion to deny petitions for review and an appellate court’s
absolute discretion to deny petitions for permission to appeal. We
described it in Sabre Travel. See 567 S.W.3d at 731. And the comments
to Rule 28.3, which governs permissive appeals, explain succinctly that
“[t]he petition procedure in Rule 28.3 is intended to be similar to the

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Rule 53 procedure governing petitions for review in the Supreme
Court.”1 The comment’s guidance is well supported by the statute and
the rules, and we reinforced it in Sabre Travel. We need say no more to
explain our decision today. I would hold that a court of appeals’ decision
to grant or deny a petition for permissive appeal is entirely discretionary
and need not be explained.2 If that is a bad rule, the Legislature should

1 One difference, which we recognized in Sabre Travel, is that this Court
may take up a permissive appeal that the court of appeals has declined to hear,
whereas when this Court denies a petition for review there is usually no
further recourse. See 567 S.W.3d at 733.
2 Both the dissent and the plurality interpret Rule 47.1 to require courts
of appeals to issue written opinions explaining the denial of permissive
appeals. I disagree. Rule 47.1 requires a “written opinion” explaining the
“final disposition of the appeal.” Under section 51.014 and the Rules of
Appellate Procedure, however, there is no “appeal” to be finally disposed of
under Rule 47.1 until the court of appeals accepts a permissive appeal. A
permissive appeal “is governed by the procedures in the Texas Rules of
Appellate Procedure for pursuing an accelerated appeal,” but this is only “[i]f
the court of appeals accepts the appeal.” TEX. CIV. PRAC. & REM. CODE
§ 51.014(f). Likewise, “[t]he date the court of appeals enters the order
accepting the appeal starts the time applicable to filing the notice of appeal.”
Id. In other words, the statute indicates that only after the petition to appeal
is accepted do the usual procedures governing appeals apply. The Rules
indicate the same. A notice of appeal is “deemed to have been filed” when the
petition for permission to appeal is granted, not when the petition is filed. TEX.
R. APP. P. 28.3(k). Thus, until the court of appeals accepts the appeal, there is
no appeal. There is only a “petition” for “permission to appeal.” TEX. R. APP.
P. 28.3(a).
Such a petition is akin to a motion, to which Rule 47.1’s written-opinion
requirement does not apply. An even closer analogue is this Court’s disposition
of petitions for review, which very rarely includes a written explanation—even
though, like the courts of appeals, this Court is obligated to explain in writing
its decisions on cases it has chosen to hear. See Tex. R. APP. P. 63. As with
permissive appeals, the procedural rules describe factors this Court considers
when ruling on a petition for review. See TEX. R. APP. P. 56.1(a). The existence
of these factors—like the two factors courts of appeals should consider when

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amend the statute, or this Court should amend the appellate rules
within the confines of the statute.3
I join the Court’s holding that “section 51.014(f) permits Texas
courts of appeals to accept a permissive interlocutory appeal when the
two requirements of section 51.014(d) are met, but it grants the courts
discretion to reject the appeal even when the requirements are met.”
Ante at 19. Otherwise, I respectfully concur in the judgment.

James D. Blacklock
Justice

OPINION DELIVERED: June 10, 2022

deciding whether to hear permissive appeals—does not constrain this Court’s
discretion or require it to explain why the factors were not satisfied when it
denies a petition for review. The same is true for courts of appeals deciding
petitions for permission to appeal.
3Parties and judges ought to be able to know exactly how to approach
a procedural question of this nature by consulting the relevant statutes and
procedural rules. They should not also have to consult, and attempt to
harmonize, multiple opinions of this Court.

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