Opinion issued December 15, 2020

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-20-00714-CV

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HOUSTON FOAM PLASTICS, INC., Appellant

V.

MARCUS ANDERSON, Appellee

On Appeal from the 11th District Court

Harris County, Texas

Trial Court Case No. 2018-55510

MEMORANDUM OPINION

Appellant, Houston Foam Plastics, Inc., has filed a petition for permissive 

appeal from an interlocutory order denying its motion for summary judgment. See

TEX. CIV. PRAC. & REM. CODE § 51.014(d) (authorizing trial court to permit 

interlocutory appeal from otherwise unappealable interlocutory order under certain 
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circumstances), (f) (requiring party seeking to appeal to petition appellate court for 

permission); TEX. R. CIV. P. 168 (governing procedure for trial court granting 

permission to appeal); TEX. R. APP. P. 28.3 (governing procedure for filing petition 

for permissive appeal).

Under Texas Rule of Civil Procedure168, a trial court may permit an appeal 

from an otherwise unappealable interlocutory order. TEX. R. CIV. P. 168. To do so, 

the trial court must sign a written order stating, in relevant part, its permission to 

appeal. See id. Without a written order stating the trial court’s permission, no basis 

for filing a petition for permissive appeal exists. See Hebert v. JJT Constr., 438 

S.W.3d 139, 142 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

Here, appellant acknowledges that it has not obtained the trial court’s 

permission to appeal the interlocutory order. Instead, appellant asserts in its petition 

that (1) appellant is in the process of requesting an order from the trial court granting 

permission to appeal and (2) it was necessary for appellant to file its petition now 

because the fifteen-day time period provided under Section 51.014(d) for filing the 

petition with our Court runs from the signing of the “the order to be appealed.” TEX.

CIV. PRAC. & REM. CODE § 51.014(f). As discussed below, appellant’s attempt to 

justify the premature filing of its petition prior to obtaining the trial court’s 

permission ignores the applicable rules. 
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Rule 168 provides that the trial court “may permit an appeal from an 

interlocutory order that is not otherwise appealable,” but it also specifies that 

“[p]ermission must be stated in the order to be appealed.” TEX. R. CIV. P. 168.

Recognizing that an interlocutory order may issue without the necessary permission 

having been included, the rule further provides that “[a]n order previously issued 

may be amended to include such permission.” Id. Texas Rule of Appellate Procedure 

28.3(c) provides that, if an interlocutory order is amended by the trial court to include 

the requisite permission, “the time to petition the court of appeals runs from the date 

the amended order is signed.” TEX. R. APP. P. 28.3(c); see Colvin v. B. Spencer & 

Assocs., P.C., No. 01–15–00247–CV, 2015 WL 2228728, at *2 (Tex. App.—

Houston [1st Dist.] May 12, 2015, no pet.) (mem. op.) (per curiam).

Accordingly, we deny appellant’s petition for permissive appeal because 

appellant has not obtained the required permission from the trial court. We express 

no opinion on the merits of the petition. Any pending motions are dismissed as moot.

PER CURIAM

Panel consists of Justices Goodman, Landau, and Adams.