Texas: A Litigation: Appellate Overview

Texas offers one of the nation’s most active and structurally distinctive appellate systems. The year 2026 brings a major procedural shift that reshapes how parties pursue discretionary review before the state’s highest civil court.

The Texas Appellate Court System at a Glance

Texas has a bifurcated system with two courts of last resort. The Supreme Court of Texas is the final authority on civil cases, and the Texas Court of Criminal Appeals is the final authority on criminal cases. Both courts have nine justices elected in statewide, partisan judicial elections to staggered six-year terms, with vacancies filled by gubernatorial appointment. Each court exercises discretion over its docket, primarily reviewing cases of statewide importance. The grant rate for the Supreme Court of Texas is roughly 10%.

15 intermediate courts of appeals, varying in size from three to 13 justices, sit in three-justice panels. 14 of those courts have geographic jurisdiction over appeals arising out of their district. The Fifteenth Court of Appeals, which began operations in September 2024, is the exception. It has statewide jurisdiction and exclusive authority over appeals involving governmental entities and the newly established Texas business courts.

On the federal side, the New Orleans-based US Court of Appeals for the Fifth Circuit has appellate jurisdiction over federal district courts in Texas, Louisiana and Mississippi. The Fifth Circuit is one of 13 federal appellate courts, serving as an intermediate court between the district courts and the US Supreme Court. Like the Texas intermediate appellate courts, the Fifth Circuit ordinarily sits in panels of three judges. It sometimes sits en banc – with all active-status judges convening to resolve or rehear cases of exceptional public importance and to maintain uniformity in circuit precedent. The Fifth Circuit’s use of en banc review has increased in recent terms.

Error Preservation: Where Appeals Are Won and Lost

Texas error-preservation rules demand strict compliance at every stage. A missed objection or untimely motion can extinguish a party’s right to appellate review entirely. A viable appeal can be won or lost long before appellate briefs are filed.

Among the most consequential and high-pressure settings for error preservation is the jury charge. The charge preservation rules are intricate and vary by case and issue. Errors at the charge conference are often difficult or impossible to remedy after the fact, which is why appellate counsel are frequently brought in well in advance of trial to draft the charge and handle the charge conference.

However, appellate counsel’s role of supporting the trial team extends well beyond the charge. It is common in Texas for appellate lawyers to work alongside trial counsel to identify and preserve error across every phase of the case – from pretrial motions and evidentiary rulings to objections during witness examination and post-verdict motions. The goal is to ensure that, if a trial court commits reversible error, the record will support a successful appeal.

Appellate Review Before Final Judgment

While Texas generally permits appeals only from final judgments, the Texas Legislature and courts have created several avenues for appellate review of pivotal pretrial rulings. The state’s statutory framework for interlocutory appeals is extensive and continues to expand.

One key avenue is the permissive appeal, which allows immediate review of a trial court’s ruling on a genuinely disputed, controlling legal question when resolving that question would materially shorten the litigation. The mechanism requires trial-court permission and remains subject to the appellate court’s discretion. Since 1 September 2023, however, a court of appeals that declines a permissive appeal must explain its reasons, and the Supreme Court of Texas may review that denial and, if the statutory criteria are met, direct the court of appeals to accept the appeal. The practical effect has been to expand access to pretrial appellate review of outcome-determinative legal questions.

Beyond these statutory mechanisms, parties can seek a writ of mandamus – an order from an appellate court directing a trial court to correct a ruling without awaiting a final judgment. Unlike in most other jurisdictions, mandamus is commonly deployed in Texas in high-stakes discovery disputes and in other situations where a flawed ruling would cause harm that a post-trial appeal cannot adequately remedy.

2026: a Landmark Shift in Supreme Court Practice

Effective 1 January 2026, amendments to the Texas Rules of Appellate Procedure eliminated the Texas Supreme Court’s long-standing practice of requesting merits briefs before deciding whether to grant a petition for review. Under the prior rules, a petition functioned as a preliminary showing; if the Court was interested, it would call for full briefing before making a grant decision. Now, the Court will ordinarily decide whether to grant review based solely on the filings at the petition stage, without the safety net of a pre-grant merits brief in which to develop arguments more fully.

These changes are designed to bring Texas practice closer to the certiorari model employed by the Supreme Court of the United States, where petitions must stand on their own persuasive force. Petitions for review must now address the merits and error preservation far more robustly than before, and the prior practice of preserving issues beyond those briefed in the petition is no longer available. To accommodate the petition’s expanded role, the word limit for petitions for review has been modestly increased, and each petition must now open with an introduction that identifies the most persuasive grounds for the Court to grant review.

In practical terms, the amendments have dramatically elevated the importance of the petition stage. For clients with cases headed toward the Supreme Court of Texas, the petition can no longer be treated as a placeholder; it must do all the persuasive work up front. The investment in strategy, argument and craft that once went into merits briefing must now go into the petition itself.

A Specialized and Well-Developed Appellate Bar

In 1987, Texas became the first US state to offer certification as a specialist in civil appellate law. While a handful of other states have since established their own appellate-certification programs, Texas’s nearly four-decade head start has produced a well-defined community of practitioners devoted exclusively to civil appellate work. Only a small fraction of the state’s licensed attorneys hold the credential, reflecting the specialized expertise that certification demands.