Multiple Plausible Statutory Readings Create a “Substantial Ground for Difference of Opinion” Under Texas CPRC § 51.014(d)

I. Introduction

This per curiam opinion addresses a recurring gatekeeping question in Texas interlocutory practice: when does a trial court’s certified question present a “substantial ground for difference of opinion” on a controlling question of law sufficient to justify a permissive interlocutory appeal under TEX. CIV. PRAC. & REM. CODE § 51.014(d)?

The underlying suit arises from the death of Jenifer Cleveland shortly after a visit to a medical spa, allegedly due to an infusion containing TPN electrolytes. The plaintiffs sued multiple defendants, including McKesson Medical-Surgical Inc., a distributor that sold the electrolytes to the spa. Plaintiffs’ theory against McKesson is framed as negligence—alleging McKesson enabled an unlicensed spa owner to purchase TPN electrolytes via an online portal for shipment to a setting where plaintiffs allege the product had no known therapeutic use.

McKesson sought dismissal under CPRC § 82.003(a) (seller immunity unless an enumerated exception is proven). Plaintiffs countered that § 82.003(a) applies only in “products liability actions” involving product defects, and they were not alleging a defect. The trial court denied dismissal but certified the issue for permissive appeal. The court of appeals refused to accept the appeal, reasoning there was no “substantial ground for difference of opinion” because only one appellate decision squarely addressed the question and it did not conflict with Texas Supreme Court precedent.

The Texas Supreme Court reversed that refusal, clarifying that the statutory threshold is broader than the court of appeals applied.

II. Summary of the Opinion

The Court holds that the court of appeals misapplied § 51.014(d)(1). Even absent a split among courts of appeals, a “substantial ground for difference of opinion” exists where:

• a statute is susceptible to more than one plausible reading, and
• the Texas Supreme Court has not resolved the statutory interpretation question.

The Court further concludes that § 51.014(d)(2) is satisfied on this record because an immediate appeal could dispose of all pleaded claims against McKesson (given plaintiffs did not plead any § 82.003(a) exception), thereby materially advancing termination of the litigation as to that defendant—even if the case continues against others.

Critically, the Court does not decide the merits of whether § 82.003(a) applies beyond defect-based “products liability actions.” It decides only that the appeal should be accepted.

III. Analysis

A. Precedents Cited

1. Lopez v. Huron, 490 S.W.3d 517 (Tex. App.—San Antonio 2016, no pet.)

The trial court and court of appeals treated Lopez v. Huron as the lone appellate decision directly addressing the scope question about § 82.003(a). The Supreme Court highlights two features of Lopez that matter for the permissive-appeal standard:

• Sole-authority status does not end the inquiry: the absence of conflicting decisions does not mean there is no substantial ground for disagreement, especially where the Supreme Court has not spoken.
• Lopez itself signaled debatable reasoning: the opinion notes Lopez “express[ly] acknowledge[d]” the possibility that its conclusion “may have departed from the statute’s text.” That acknowledgment underscored that “reasonable jurists could disagree.”

Thus, Lopez functions less as a dispositive “answer” and more as evidence that the statute’s reading is contestable—supporting, rather than defeating, the existence of a “substantial ground for difference of opinion.”

2. Amazon.com, Inc. v. McMillan, 625 S.W.3d 101 (Tex. 2021)

The court of appeals relied on a statement in Amazon.com, Inc. v. McMillan that § 82.003 “provides that non-manufacturing sellers are not liable for product defects.” The Supreme Court rejects that reliance as overreading dicta or context-dependent language:

• McMillan “indisputably involved alleged product defects,” so it did not confront the distinct scope question presented here.
• The statement therefore could not eliminate “substantial ground for difference of opinion” about whether § 82.003(a) reaches non-defect theories involving seller conduct.

3. Helena Chem. Co. v. Bales, ___ S.W.3d ___, 2026 WL 1354751 (Tex. May 15, 2026)

The Court uses Helena Chem. Co. v. Bales to illustrate the breadth of § 51.014(d)(1):

• In Helena, a substantial ground existed where a trial court’s decision conflicted with controlling precedent.
• Here, the Court extends the practical lesson: “Substantial ground for difference of opinion” is “not a restrictive standard”; it is a “broad standard” meant to facilitate review of “genuinely disputed legal questions in varied contexts,” including unresolved statutory interpretation disputes with multiple plausible readings.

The Court also borrows Helena’s efficiency rationale: permissive appeals can “allow for the efficient correction of error” and prevent waste of judicial and party resources.

4. Sabre Travel Int'l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725 (Tex. 2019)

Sabre Travel Int'l, Ltd. v. Deutsche Lufthansa AG is cited to illuminate § 51.014(d)(2)’s “materially advance” requirement. There, the Court recognized permissive review could be warranted where resolution would:

• “forestall burdensome and costly” discovery, and
• “eliminate the need for further litigation” on the controlling legal question.

In McKesson, the Court applies the same logic: if § 82.003(a) applies and no exception is pleaded, the appeal could eliminate McKesson from the case, advancing termination of the litigation at least as to that party.

5. ADT Sec. Servs., Inc. v. Van Peterson Fine Jewelers, 390 S.W.3d 603 (Tex. App.—Dallas 2012, no pet.)

The Court cites ADT Sec. Servs., Inc. v. Van Peterson Fine Jewelers for the proposition that § 51.014(d)(2) can be satisfied even if the permissive appeal would dispose of “some, but not all,” claims against a defendant. This directly answers plaintiffs’ argument that overlapping discovery and remaining defendants diminish the value of immediate review.

B. Legal Reasoning

The opinion’s core move is to separate merits certainty from appealability. The court of appeals effectively treated the lack of an intermediate appellate split—and the presence of one on-point case—as proof that reasonable disagreement was absent. The Supreme Court rejects that equivalence.

Rule clarified: When a controlling statutory interpretation question has not been decided by the Texas Supreme Court and the statute is susceptible to more than one plausible reading, there is a “substantial ground for difference of opinion” under § 51.014(d)(1).

Several linked rationales support this:

• No-split does not mean no-dispute: A “paucity of authority” can weigh in favor of permitting an appeal where competing reasonable interpretations exist.
• Text–doctrine tension is itself evidence of disputability: The Court notes potential “clash” between interpretive principles and § 82.003(a)’s “plain text” as a reason interlocutory review is appropriate—without endorsing either reading.
• Contextual statements from prior Supreme Court cases are not dispositive: The Court limits McMillan to its defect-based context.

On § 51.014(d)(2), the Court emphasizes practical case management: because plaintiffs did not plead any of § 82.003(a)’s enumerated exceptions, a ruling for McKesson on the threshold applicability issue could dispose of all pleaded claims against it. That is sufficient to “materially advance the ultimate termination” of the litigation in the sense the statute requires.

C. Impact

This opinion is likely to have three significant effects on Texas permissive interlocutory practice:

• Lowered emphasis on appellate splits: Courts of appeals may no longer treat “no conflicting authority” as a strong reason to deny permissive review when the Supreme Court has not decided an important statutory question.
• More permissive review of novel statutory questions: Litigants can point to multiple plausible textual readings—and the absence of a Supreme Court decision—as affirmative evidence satisfying § 51.014(d)(1).
• Clarified efficiency showing under § 51.014(d)(2): Dispositive effect as to one defendant (or a set of claims) can satisfy the “materially advance” requirement even if the broader case remains pending against others.

Substantively, although the Court does not decide the scope of § 82.003(a), it increases the likelihood that appellate courts will reach and resolve that scope question sooner in an interlocutory posture—particularly where seller-immunity arguments can terminate claims before trial.

IV. Complex Concepts Simplified

• Permissive interlocutory appeal (CPRC § 51.014(d)): A discretionary, mid-case appeal allowed when (1) a controlling legal question has substantial ground for disagreement and (2) immediate review may materially advance the case’s end. It requires trial-court permission and appellate-court acceptance.
• “Substantial ground for difference of opinion” (§ 51.014(d)(1)): Not limited to situations where courts have already split. It can exist when the law is unsettled at the Supreme Court level and the statutory text reasonably supports more than one reading.
• “May materially advance the ultimate termination” (§ 51.014(d)(2)): The appeal need not end the entire lawsuit. It is enough that it could eliminate a defendant or claims, avoid costly litigation steps, or otherwise meaningfully streamline what remains.
• CPRC § 82.003(a) seller immunity: A rule limiting liability for non-manufacturing sellers unless the claimant proves one of seven statutory exceptions. The unresolved merits question here is whether that protection applies only in “product liability actions” involving product defects or more broadly to other theories tied to harm “caused by” a product.

V. Conclusion

The Texas Supreme Court’s decision establishes a clear, practice-shaping principle for permissive interlocutory appeals: when a controlling statutory construction question is unresolved by the Supreme Court and the statute admits multiple plausible readings, § 51.014(d)(1) is met even without an existing split among courts of appeals. Coupled with a pragmatic view of § 51.014(d)(2)—satisfied where the appeal could dispose of all pleaded claims against a defendant—the opinion pushes Texas courts toward earlier appellate resolution of genuinely debatable legal questions, conserving trial and party resources while leaving the merits for the accepted appeal.