You have no interlocutory appeal – but why?

Clark sued Phillips, his former competitor in an an election for Kaufman County Commissioner, for defamation in campaign materials. Phillips lost a summary judgment motion and sought one of the many interlocutory appeals available under Texas’s Byzantine interlocutory-appeals statute; specifically, section 51.014(a)(6). The result is the second split in recent weeks between a Democratic majority and a Republican dissenter, as follows.

Justice Reichek, joined by Justice Molberg, held that the Fifth Court lacked jurisdiction: “The record before us shows that Phillips was a candidate for public office who  allegedly provided information that was published in mailers and on a website. Nothing in the record shows Phillips has ever engaged in professional news reporting or any other form of journalism or professional investigation and commentary about matters of public concern. Accordingly, Phillips does not qualify as a ‘member of the media (emphasis added),'” and thus could not avail himself of this statute.

Justice Whitehill, invoking Occam’s Razor, agreed with the majority’s conclusion but disagreed with the path of its reasoning: “In short, whether we have jurisdiction over Phillips’s appeal from the denial of his summary judgment motion in this defamation case depends on whether he asserted a ground based on the First Amendment, its Texas equivalent, or Civil Practice and Remedies Code Chapter 73. He didn’t. Enough said. That should end the appeal. . . . Because there is a straightforward answer to this case without exploring in the first instance the boundaries of what constitutes the electronic media, we should follow the straightforward path and wait until when defining the electronic media is necessary to decide the case then before us (emphasis added).” Phillips v. Clark (links to both opinions above), No. 05-18-00556-CV (May 3, 2019).