A few months ago, I wrote about In re Novartis Pharmaceuticals Corp., where a divided Fifteenth Court of Appeals denied mandamus relief without reaching significant constitutional challenges to Texas’s healthcare-fraud qui tam statute. The lesson was that an important merits issue doesn't itself justify immediate appellate intervention. A relator must separately establish that an ordinary appeal is inadequate. 

On September 11, 2026, the First Court of Appeals added a useful follow-up in In re Thomas, another original proceeding arising from the denial of a Rule 91a motion to dismiss. While the panel summarily denied the petition, Justice David Gunn concurred separately to explain why some Rule 91a disputes are poor candidates for mandamus—and how relators can make a stronger case for immediate review. 

The Supreme Court of Texas has granted mandamus relief from erroneous Rule 91a rulings. But, at least at the intermediate appellate level, that doesn't make every erroneous denial mandamusable. As Justice Gunn emphasized, the adequate-remedy analysis is fact-specific. And sometimes, as he put it, “a fact-specific inquiry would benefit from a larger bundle of facts.” 

That observation identifies a tension in seeking mandamus after a Rule 91a denial. Rule 91a asks whether a claim fails based on the pleadings, so the case often will have little (if any) factual development. But the adequate-remedy inquiry may require the appellate court to understand how the challenged ruling will affect the litigation in practice. A legal issue may look difficult or important on the pleadings while the record remains too thin to show why ordinary appeal would be inadequate.

Thomas exemplifies this problem. The case involved detailed pleadings but little factual development, unsettled questions about duties in the LLC context, and other claims that apparently would remain even if the challenged claim were dismissed. Justice Gunn viewed those circumstances as better suited for summary judgment, followed by permissive appeal if necessary, rather than resolution through mandamus. 

Justice Gunn also raised a candid institutional concern. Every mandamus petition competes for attention with the appellate courts' steadily growing appellate docket, a subject I've now written about twice on my 1910 & Beyond Substack. Filings in the First Court increased by roughly 25 percent in the last year and by more than a third over two years. That volume, he explained, makes it harder for appellate courts to “police the pleadings” in every case that might present an arguable Rule 91a issue.

That institutional reality should affect how lawyers frame mandamus petitions. The task can't be simply showing that the court of appeals could correct the ruling now. It is to explain why this case warrants diverting the court from the ordinary appellate process. And in the Rule 91a context, a persuasive petition should provide enough factual context to show what continued litigation will entail, how dismissal would materially change the case, and why later review cannot adequately repair the consequences.

This also gives us another reason to watch Novartis, where the Supreme Court recently granted oral argument. The constitutional questions will receive much of the attention. But the Court’s treatment of Rule 91a in the mandamus context, such as what facts are needed to establish an inadequate appellate remedy on a limited record, may prove equally useful.

Key Takeaways

• Show why this case warrants extraordinary attention. Growing appellate dockets make it increasingly important to distinguish the petition from a routine request for interlocutory error correction.
• Treat inadequate remedy as a case-specific argument. Don’t recite the mandamus standard and move on. Explain what proceeding without immediate review will mean in this case, and why an appeal after final judgment won’t be an adequate substitute.
• Explain what immediate dismissal would accomplish. If other claims will remain, identify the concrete litigation burden or distortion that Rule 91a relief would prevent.