The Texas Supreme Court has instructed the El Paso Court of Appeals to accept a permissive appeal to resolve a trial court’s reluctance to apply the Court’s binding precedent. The Court’s action follows through with legislative changes to the interlocutory appeal statute allowing the Court to review a court of appeals’ denial of review.
Helena Chemical Company v. Phillip Bales, et al. (No. 25-0812; May 17, 2026) arose from a dispute between a chemical company and landowners who alleged that the company damages their crops through the aerial application of herbicide to a neighboring property. In a previous case, Helena Chemical Co. v. Cox, 664 S.W.3d 66 (Tex. 2023), the court dismissed the landowners’ claim for failing to raise a genuine issue of material fact because the landowners’ expert testimony failed to account for plausible alternative causes for the crop damage. In this case, Helena argues that the landowners offered the same expert testimony to prove the same claims. It moved to strike the expert opinions and for a no-evidence summary judgment, which the trial court denied. But the court granted Helena permission to appeal its order in a permissive appeal. The El Paso Court of Appeals denied the appeal. Helena appealed.
In a per curiam opinion, SCOTX reversed. The court of appeals observed that the trial court failed to apply controlling precedent in Cox and that it should have granted Helena’s MSJ. For that reason, the court reasoned, a permissive appeal to determine “a controlling question of law as to which there is a substantial ground for difference of opinion” was inappropriate. SCOTX disagreed, pointing out that “when a trial court denies a motion and its grant of permission to appeal recognizes that the denial may be at odds with controlling precedent, the daylight between the two courts is enough to establish the difference of opinion that Section 51.014(d)(1) requires…. When a trial court has indicated that its ruling may be contrary to our precedent, and it expresses uncertainty on an issue that would end the litigation, that condition [that the appeal “may materially advance the ultimate termination of the litigation” under §54.014(d)(2)] is certainly met. Hearing a permissive interlocutory appeal would allow for the efficient correction of error and resolution of this case.”
SCOTX granted the petition and ordered the court of appeals to accept the appeal. We are very pleased at this decision because it vindicates the amendment to §51.014 we sought a few sessions ago to achieve this very outcome. As you recall, the amendment permitted SCOTX review of a court of appeals’ refusal to accept a permissive appeal, as you see the Court do in this case. The consequence is clear: significant delay and litigation expenses are avoided, and people can get on with their business.
