The Appellate Advocate State Bar of Texas Appellate Section Report Articles Crafting the Final Judgment Chris Dove Permissive Interlocutory Appeal and Mandamus: Picking Your Procedural Path Prudently Kennon L. Wooten & Robyn B. Hargrove Special Feature An Interview of Chief Justice John T. Boyd Tim Newsom Volume 30, Number 4 Winter 2018 The Appellate Advocate State Bar of Texas Appellate Section Report Vol. 30, No. 4 · Winter 2018 Editor’s Corner Jody Sanders & Julia Peebles ........................................................ 417 Chair’s Report Justice Brett Busby .......................................................................418 Nominations Welcomed for the Texas Appellate Hall of Fame .. 422 Crafting the Final Judgment Chris Dove ...................................................................................423 Permissive Interlocutory Appeal and Mandamus: Picking Your Procedural Path Prudently Kennon L. Wooten & Robyn B. Hargrove .......................................444 An Interview of Chief Justice John T. Boyd Tim Newsom ................................................................................482 United States Supreme Court Update Matthew H. Frederick, Andrew Guthrie, Sean O’Neill, Ryan Paulsen, & Taylor Whitlow Hoang ....................................... 491 Fifth Circuit Update Kelli B. Bills, Natasha Breaux, & Ryan Gardner .....................548 Texas Supreme Court Update Jason N. Jordan, Chris Knight, & Patrice Pujol ......................564 Texas Courts of Appeals Update Andrew B. Bender ........................................................................642 Texas Court of Criminal Appeals Update John R. Messinger ........................................................................648 THE APPELLATE ADVOCATE II The State Bar of Texas Appellate Section 2018-19 Officers 2018-19 Council Chair Terms Expiring 2019: Hon. J. Brett Busby April Farris Supreme Court of Texas Hon. Rebecca A. Huddle [email protected] William C. “Bill” Little Chair-Elect Terms Expiring 2020: Kent Rutter Perry Cockerell Haynes Boone Jackie Stroh [email protected] Audrey Vicknair Vice-Chair Terms Expiring 2021: Jerry Bullard Hon. Gina Benavides Adams, Lynch & Loftin Rich Phillips [email protected] Tom Leatherbury Treasurer State Bar Board Advisor Dylan Drummond Bob McKnight Gray Reed Supreme Court Liaison [email protected] Hon. James Blacklock Secretary Editors Lisa Hobbs Jody S. Sanders Kuhn Hobbs [email protected] [email protected] Julia Peebles Immediate Past Chair [email protected] Mike Truesdale Associate Editors Second Past Chair Erin Glenn Busby Steve Hayes Parth Gejji Brytne Kitchin Kyle Lawrence Habib Olapade Bryce Perry Lonnie Schooler Henry Segelke Kristen Vander-Plas Nicholas J. Wagoner Copyright © 2019 Appellate Section, State Bar of Texas. All Rights Reserved. Email: [email protected] Website: www.tex-app.org Twitter: @AppAdvoc THE APPELLATE ADVOCATE III Editor’s Note Dear Readers, This issue continues our tradition of great articles from section members on topics of appellate interest. If you have an article or an article idea, we would love to hear from you. Please contact us with your proposals. And, if you are not a section member, we still would love your submissions and, more importantly, your membership in the section. Please visit our section website http://www.tex-app.org/ to see all of the potential membership benefits. Jody Sanders Julia Peebles [email protected] [email protected] THE APPELLATE ADVOCATE 417 Chair’s Report J. Brett Busby, Justice, Supreme Court of Texas As a lawyer who has spent his career specializing in appeals on both sides of the bench, I am honored to chair the Appellate Section this year. The work of the Section is off to a great start thanks to our Council members and committee chairs, who are among the best of the best in the appellate bar. If you are not yet a member of one of our committees and would like to meet and work with these fine lawyers, please contact me to discuss how you can get involved. Here are some highlights of recent projects and plans for the upcoming year: Online CLE. The Section offers many valuable member benefits, including free CLE videos that you can watch for credit by logging into our website at www.tex-app.org. Thanks to Online CLE Committee Chairs Marla Broaddus and Steve Hayes, we add new videos regularly on topics of interest to appellate practitioners. In addition, the chairs of our Local Bar CLE Committee, Tom Leatherbury and Connie Pfeiffer, have developed partnerships with several local bar appellate sections that will allow us to include videos of some of their recent CLE programs. Legislative update. As the 86th Texas Legislature begins its session, stay up to date on developments in Austin with Jerry Bullard’s excellent legislative update emails. In his emails, Jerry identifies bills that would affect trial or appellate litigation or the judiciary, and he updates readers on their progress through the legislative process. If you would like to receive these emails, contact Jerry at [email protected]. Coffees with the Courts. Our Judicial Liaison Committee, chaired by Chief Justice Sandee Marion and former Justice Jason Boatright, is planning coffees that will give our members an opportunity to meet the new justices on many of our courts of appeals. More information on these coffees is coming soon. Amicus Committee. Do you have an appeal that raises an issue of importance to Section members? If so, remember that the Appellate Section operates an active Amicus Committee. The THE APPELLATE ADVOCATE 418 committee carefully screens requests for amicus participation. If the Section authorizes the committee to author a brief, the committee finds a lawyer willing to write a brief on behalf of the Section on a pro bono basis. The completed brief is then reviewed by the State Bar of Texas prior to filing. The purpose of the Amicus Committee is not so much to advocate for a particular outcome in a particular case, but to express the Section’s position that a key issue in a case warrants resolution by the court, either because of inconsistency in treatment of the issue by other appellate courts or because the issue is a novel one that the Section believes should be decided—one way or the other—for the benefit of its members, the courts, and those with cases before the courts. To request an amicus brief or volunteer to author a brief, please contact Amicus Committee Chairs Audrey Vicknair ([email protected]) and Brandy Voss ([email protected]). Forms Committee. The Section has a new Forms Committee, which is creating a list of frequently filed appellate motions and will make forms for those motions available to our members on the Section website. If you have a form motion to suggest, please send your idea and a sample motion to Forms Committee Chairs Lucy Forbes ([email protected]) and Karen Precella (karen. [email protected]). Get involved. Our success as a Section is due to the hard work of many volunteers participating in a wide range of projects. Serving on committees, as a council member, and as an officer has given me the opportunity to work with and learn from talented appellate specialists across Texas on issues of importance to the Section’s membership, the judiciary, and the parties in our appellate courts. We have a wide variety of opportunities for you to participate in the work of the Section. I invite you to review the list of committees on our website (www.tex-app.org) and contact me if you are interested in getting involved. We will welcome you gladly. I look forward to talking with you about becoming active in the Section and hearing your ideas on how the Section can best serve our members. J. Brett Busby Chair, State Bar of Texas Appellate Section [email protected] THE APPELLATE ADVOCATE 419 Disclaimer Contributions to the Appellate Advocate are welcome, but we reserve the right to select material to be published. We do not discriminate based upon the viewpoint expressed in any given article, but instead require only that articles be of interest to the Texas appellate bar and professionally prepared. To that end, all lead article authors who submit an article that materially addresses a controversy made the subject of a pending matter in which the author represents a party or amici must include a footnote at the outset of the article disclosing their involvement. Publication of any article is not to be deemed an endorsement of the views expressed therein, nor shall publication of any advertisement be considered an endorsement of the product or service advertised. THE APPELLATE ADVOCATE 420 THE APPELLATE ADVOCATE 421 Nominations Welcomed for the Texas Appellate Hall of Fame The Appellate Section of the State Bar of Texas is now accepting nominations for the Texas Appellate Hall of Fame. The Hall of Fame posthumously honors advocates and judges who made a lasting mark on appellate practice in the State of Texas. Hall of Fame inductees will be honored at a luncheon presentation and ceremony held by the Appellate Section during the State Bar’s Advanced Civil Appellate Practice course on Thursday, September 5, 2019. Nominations should be submitted in writing to [email protected] no later than Monday, July 15, 2019. Please note that an individual’s nomination in a prior year will not necessarily carry over to this year. As a result, if you nominated someone previously and would like to ensure his/ her consideration