               IN THE SUPREME COURT OF TEXAS
                                        444444444444
                                          NO. 17-0538
                                        444444444444

                  SABRE TRAVEL INTERNATIONAL, LTD., PETITIONER,

                                                v.

            DEUTSCHE LUFTHANSA AG, AUSTRIAN AIRLINES AG,
   BRUSSELS AIRLINES, NV/SA, AND SWISS INTERNATIONAL AIR LINES, LTD.,
                             RESPONDENTS
            4444444444444444444444444444444444444444444444444444
                             ON PETITION FOR REVIEW FROM THE
                    COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
            4444444444444444444444444444444444444444444444444444


                                   Argued October 30, 2018


       JUSTICE GREEN delivered the opinion of the Court.

       In this case, we consider whether an appellate court’s denial of a permissive interlocutory

appeal prevents this Court from reviewing the merits of the underlying interlocutory order. We hold

that it does not under the plain language of former Texas Government Code section 22.225(d).

In addition, we consider whether the federal Airline Deregulation Act (ADA) preempts an airline’s

claim for tortious interference with contract brought under state law. We hold that no preemption

occurs because the tortious interference claim does not relate to the airline’s prices, routes, or

services. Nor does the claim amount to the enforcement of a state law, rule, regulation, standard,

or other provision having the force and effect of law that is within the ADA’s preemptive reach.

Accordingly, we affirm the trial court’s denial of the motion to dismiss based on preemption.
                                           I. Background

       Direct connections in the airline industry refer to methods used to market airfare directly to

travel agents. Once travel agents gain access to an airline’s reservation system through a

direct-connect method, they can review the airline’s inventory, check flight availability, price flight

options, and book flights for passengers. Airlines also use indirect methods, such as intermediaries,

to market and sell airfare. Sabre Travel International, Ltd., has long served as an intermediary in

the travel industry. Through a computerized system known as a Global Distribution System (GDS),

Sabre connects airlines with consumers by aggregating travel offerings of multiple airlines for

comparison shopping by travel agents. Sabre’s GDS is one of the largest on the market, aggregating

content for over 400 airlines.

       Deutsche Lufthansa Airline Group owns multiple subsidiary airlines. Four of those airlines

(collectively, Lufthansa) contracted with Sabre to market and sell tickets through Sabre’s GDS.

Under the contracts, Sabre received a booking fee when travel agents booked flights on Lufthansa.

The contracts also contained non-discrimination provisions, preventing Lufthansa from

disadvantaging travel agents who use Sabre’s GDS instead of a competing GDS.

       Concerned with the expense of GDS services, Lufthansa calculated that it cost the airlines

approximately $18 more for every ticket booked through a GDS. To allocate this cost, increase

transparency, and offset the high fees of GDS services, Lufthansa introduced an $18 surcharge to

airline tickets sold through GDSs. The surcharge does not apply to tickets booked through non-GDS

channels, such as direct connections and Lufthansa’s own websites.




                                                  2
       Sabre protested that the surcharge violated the contracts’ non-discrimination provisions

because Lufthansa did not impose the same surcharge equally across all GDSs. Lufthansa maintains

otherwise, arguing that its surcharge complies with the parties’ contracts. This dispute became the

subject of Lufthansa’s declaratory judgment suit against Sabre, and Sabre’s corresponding

counterclaim for breach of contract.

       Sabre, in response to the surcharge, allegedly began encouraging travel agents to breach their

contracts with Lufthansa by directing them to book travel through Lufthansa’s direct connections,

where there is no surcharge, and then enter the itineraries into Sabre’s GDS so that travel agents

could avoid the surcharge and Sabre could collect its booking fee. Because of Sabre’s alleged

actions, Lufthansa amended its petition to include a claim for tortious interference with contract

between Lufthansa and its travel agents. Lufthansa also added a breach of contract action against

Sabre for charging Lufthansa for non-billable administrative bookings—in other words, passive

bookings.

       Sabre promptly filed a motion to dismiss Lufthansa’s tortious interference claim under Texas

Rule of Civil Procedure 91a, arguing that the federal ADA preempts claims for tortious interference

with contract. See 49 U.S.C. § 41713(b)(1) (providing a federal mandate that preempts any state

“law, regulation, or other provision having the force and effect of law related to a price, route, or

service of an air carrier”); TEX. R. CIV. P. 91a (providing for dismissal of a cause of action that has

no basis in law or fact). The trial court denied Sabre’s Rule 91a motion but certified the legal

question under Texas Civil Practice and Remedies Code section 51.014(d)—providing for

permissive interlocutory appeals. In its order, the court stated that the applicable Texas case law,


                                                  3
while persuasive, “is factually different in ways which could be construed to make it distinguishable

as controlling authority” regarding whether the ADA preempts tortious interference claims by

airlines, and that “an immediate appeal may materially advance the termination of litigation.”

See Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 221–22 (Tex. App.—Fort

Worth 2009, pet. denied) (holding that the ADA did not preempt American Airlines’ tortious

interference claim brought to protect against a black-market reseller brokering American Airlines’

frequent-flyer miles). The interlocutory order also noted that because holdings from other

jurisdictions concluded that ADA preemption applies to claims against GDSs, the question “is ripe

for consideration, especially from the Second Court of Appeals which authored the Frequent Flyer

Depot opinion and, ultimately, the Texas Supreme Court.”

       The court of appeals denied the permissive appeal in a single-sentence memorandum opinion

without explanation but noted in a footnote that “courts strictly construe the interlocutory appeals

statute.” 549 S.W.3d 600, 601 n.3 (Tex. App.—Fort Worth 2017, pet. granted) (mem. op.)

(citing Blakenergy, Ltd. v. Oncor Elec. Delivery Co., No. 02-14-00241-CV, 2014 WL 4771736,

at *1 & n.2 (Tex. App.—Fort Worth Sept. 25, 2014, no pet.) (mem. op.) (per curiam)).

       Sabre filed a petition for review in this Court, asserting that the court of appeals abused its

discretion in denying the permissive interlocutory appeal and that the ADA preempts Lufthansa’s

tortious interference claim. Lufthansa, on the other hand, argues that there is no preemption under

the ADA, and even if there is, this Court has no jurisdiction to hear the case because the court of

appeals denied the permissive interlocutory appeal. We granted the petition. 61 Tex. Sup. Ct. J.

1420 (June 15, 2018).


                                                 4
                                                 II. Jurisdiction

         Our jurisdiction turns on the issue of whether an intermediate appellate court’s denial of a

permissive interlocutory appeal prevents this Court from reaching the merits of the underlying

interlocutory order. We hold that it does not under the plain language of former Texas Government

Code section 22.225(d), which states that “[a] petition for review is allowed to the Supreme Court

for an appeal from an interlocutory order described by Section 51.014(a)(3), (6), or (11), or (d), Civil

Practice and Remedies Code.”1 Act of May 30, 2011, 82d Leg., R.S., ch. 203, § 3.02, 2011

Tex. Gen. Laws 757, 758, repealed by Act of May 29, 2017, 85th Leg., R.S., ch. 150, § 4(3), 2017

Tex. Gen. Laws 291, 292. The trial court certified the interlocutory order according to section

51.014(d), and for the reasons explained below, we conclude that implicates our jurisdiction under

section 22.225(d).

                   A. Section 51.014(d) & (f)—Permissive Interlocutory Appeals

         As a general rule, appeals may be taken only from final judgments. E.g., Lehmann v. Har-

Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). “A judgment is final for purposes of appeal if it

disposes of all pending parties and claims in the record, except as necessary to carry out the decree.”

Id. Consistency, finality, and judicial economy fix the final judgment rule in our jurisprudence so

that appellate courts, including this Court, decide issues on a full record, do not unnecessarily delay

the underlying trial, avoid futility, and consider all issues in a single round of review. See, e.g.,


         1
           Because the trial court entered its order on May 1, 2017, former Texas Government Code section 22.225(d)
applies. See Act of May 29, 2017, 85th Leg., R.S., ch. 150, § 5, 2017 Tex. Gen. Laws 291, 292 (“The repeal of Section
22.225(d), Government Code, applies only to an interlocutory order signed on or after the effective date of this Act,
[September 1, 2017]. An interlocutory order signed before the effective date of this Act is governed by the law
applicable to the order immediately before the effective date of this Act, and that law is continued in effect for that
purpose.”). Accordingly, our reference to section 22.225(d) is to the 2011 version for all purposes in this opinion.

                                                          5
Hernandez v. Ebrom, 289 S.W.3d 316, 322 (Tex. 2009) (Jefferson, C.J., dissenting) (“The purposes

of the final judgment rule are to avoid piecemeal litigation, to promote judicial efficiency, and to

defer to the decisions of the trial court.” (citation omitted)).

        There are, of course, exceptions to the final judgment rule that allow an immediate appeal

before final judgment when the issue is so important that an answer should not wait until the case

concludes. The Texas Constitution provides such an exception for certain appeals. See TEX. CONST.

art. V, § 3–b (allowing direct appeals to this Court from a trial court in injunction cases involving

matters of constitutionality). Likewise, this Court’s writ power provides a mechanism for appellate

review before final judgment in some circumstances. See, e.g., TEX. CONST. art. V, § 3(a);

TEX. GOV’T CODE § 22.002; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (observing that

mandamus is an extraordinary immediate remedy used to compel a state official, usually a trial

judge, to act according to law). At issue in this case is the exception to the final judgment rule

provided by the interlocutory appeals statute, a legislative mandate for an immediate appeal in

certain cases before final judgment. TEX. CIV. PRAC. & REM. CODE § 51.014.

        Under section 51.014(a), the Legislature authorized thirteen specific instances in which “[a]

person may appeal from an interlocutory order of a district court, county court of law, statutory

probate court, or county court.” Id. § 51.014(a). Colloquially, these instances are referred to as

“interlocutory appeals as of right,” because parties need not secure judicial permission before filing

an interlocutory appeal. See id. Intermediate appellate courts have no discretion to decline

interlocutory appeals brought under section 51.014(a). See id.




                                                   6
       By contrast, section 51.014(d) provides:

       On a party’s motion or on its own initiative, a trial court in a civil action may, by
       written order, permit an appeal from an order that is not otherwise appealable if:

           (1) the order to be appealed involves a controlling question of law as to which
           there is a substantial ground for difference of opinion; and
           (2) an immediate appeal from the order may materially advance the ultimate
           termination of the litigation.

Id. § 51.014(d). Subsection (f) further provides:

       An appellate court may accept an appeal permitted by Subsection (d) if the appealing
       party, not later than the 15th day after the date the trial court signs the order to be
       appealed, files in the court of appeals having appellate jurisdiction over the action
       an application for interlocutory appeal explaining why an appeal is warranted under
       Subsection (d). If the court of appeals accepts the appeal, the appeal is governed by
       the procedures in the Texas Rules of Appellate Procedure for pursuing an accelerated
       appeal. The date the court of appeals enters the order accepting the appeal starts the
       time applicable to filing the notice of appeal.

Id. § 51.014(f). By using the phrase “may accept” in section 51.014(f), the Legislature conveyed

a discretionary function in the court of appeals. The same can be said for the trial court regarding

the phrase “may . . . permit” in subsection (d). These instances are colloquially referred to as

“permissive interlocutory appeals,” as the parties have no right to an immediate appeal and must

secure judicial permission.

       Consistent with these statutory provisions, we promulgated procedural rules to reflect a

discretionary doctrine. See TEX. R. CIV. P. 168 (“On a party’s motion or on its own initiative, a trial

court may permit an appeal from an interlocutory order that is not otherwise appealable, as provided

by statute.”); TEX. R. APP. P. 28.3(a) (“When a trial court has permitted an appeal from an

interlocutory order that would not otherwise be appealable, a party seeking to appeal must petition

the court of appeals for permission to appeal.”). In the comments to Rule 28.3, we explained that

                                                  7
the 2011 amendments to section 51.014 “eliminated the prior requirement that the parties agree to

the appeal and reinstated a requirement that the court of appeals also permit the appeal.” TEX. R.

APP. P. 28.3 cmt. We further noted that “[t]he petition procedure in Rule 28.3 is intended to be

similar to the Rule 53 procedure governing petitions for review in the [Texas] Supreme Court,”

meaning the courts of appeals can similarly accept or deny a permissive interlocutory appeal as we

can a petition for review. Id.; see also TEX. R. APP. P. 28.3(k) (clarifying that if a petition seeking

interlocutory appeal is granted, the appeal is thereby perfected in the court of appeals).

        Both Sabre and Lufthansa recognize the court of appeals’ discretion to accept or deny a

permissive interlocutory appeal under section 51.014(f). However, they do not agree about the

extent and effect of that discretion. Sabre, in alternatively seeking a writ of mandamus, argues that

we should hold that the court of appeals abused its discretion in denying the permissive appeal

because the elements of section 51.014(d) were satisfied, while Lufthansa claims that it would be

exceptionally inappropriate for this Court to overturn a discretionary denial of a permissive appeal.

        As Lufthansa correctly observes, the Legislature modeled section 51.014(d) after the federal

counterpart to permissive interlocutory appeals. Compare 28 U.S.C. § 1292(b),2 with TEX. CIV.


        2
            Section 1292(b) of the United States Code provides:

        When a district judge, in making in a civil action an order not otherwise appealable under this section,
        shall be of the opinion that such order involves a controlling question of law as to which there is
        substantial ground for difference of opinion and that an immediate appeal from the order may
        materially advance the ultimate termination of the litigation, he shall so state in writing in such order.
        The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in
        its discretion, permit an appeal to be taken from such order, if application is made to it within ten days
        after the entry of the order: Provided, however, that application for an appeal hereunder shall not stay
        proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof
        shall so order.

28 U.S.C. § 1292(b).

                                                            8
PRAC. & REM. CODE § 51.014(d), (f). The United States Supreme Court has interpreted section

1292(b) as providing federal circuit courts absolute discretion to accept or deny permissive appeals.

See, e.g., Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978), superseded on other grounds

by rule, FED. R. CIV. P. 23(f), as stated in Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017) (holding

that despite a district judge certifying an order under § 1292(b), “the appellant still ‘has the burden

of persuading the court of appeals that exceptional circumstances justify a departure from the basic

policy of postponing appellate review until after the entry of a final judgment.’ The appellate court

may deny the appeal for any reason, including docket congestion.” (emphasis added) (citations

omitted)); see also Parcel Tankers, Inc. v. Formosa Plastics Corp., 764 F.2d 1153, 1156 (5th Cir.

1985) (“[T]he discretion afforded the courts of appeal in reviewing petitions for leave to bring

§ 1292(b) appeals has been likened to that of the [United States] Supreme Court in controlling its

certiorari jurisdiction.” (citation omitted)). That interpretation has led some commentators to

conclude that the discretion to deny interlocutory appeals under section 1292(b) is so broad in the

federal circuit courts that United States Supreme Court reversal should never be available.

See 17 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 4036, at 17 n.24

(2007).

          We agree that Texas courts of appeals have discretion to accept or deny permissive

interlocutory appeals certified under section 51.014(d), just as federal circuit courts do.

Our procedural rules make that clear. See TEX. R. CIV. P. 168; TEX. R. APP. P. 28.3. Here, the trial

court certified an interlocutory appeal under section 51.014(d), but the court of appeals exercised

its discretion—as it is entitled to do—to decline acceptance of the appeal, citing authority for strictly


                                                   9
construing the interlocutory appeals statute. 549 S.W.3d at 601 n.3 (citing Blakenergy, 2014 WL

4771736, at *1 & n.2). Under the plain language of section 51.014(d) and (f), we cannot say that

the court of appeals abused its discretion.

        We do caution, however, that while courts of appeals have discretion to deny acceptance of

permissive interlocutory appeals, the Legislature in its enactment of section 51.014(d) and (f) has

recognized the benefit of appellate courts accepting such appeals when the threshold for an

exception to the final judgment rule is met. See TEX. CIV. PRAC. & REM. CODE § 51.014(d), (f)

(requiring a controlling question of law on which there is a substantial ground for difference of

opinion, where an immediate appeal may materially advance the ultimate termination of the

litigation). When courts of appeals accept such permissive appeals, parties and the courts can be

spared the inevitable inefficiencies of the final judgment rule in favor of early, efficient resolution

of controlling, uncertain issues of law that are important to the outcome of the litigation. Indeed,

the Legislature enacted section 51.014 to provide “for the efficient resolution of certain civil matters

in certain Texas courts” and to “make the civil justice system more accessible, more efficient, and

less costly to all Texans while reducing the overall costs of the civil justice system to all taxpayers.”

Senate Comm. on State Affairs, Engrossed Bill Analysis, Tex. H.B. 274, 82d Leg., R.S. (2011).

If all courts of appeals were to exercise their discretion to deny permissive interlocutory appeals

certified under section 51.014(d), the legislative intent favoring early, efficient resolution of

determinative legal issues in such cases would be thwarted. Just because courts of appeals can

decline to accept permissive interlocutory appeals does not mean they should; in fact, in many




                                                   10
instances, courts of appeals should do exactly what the Legislature has authorized them to

do—accept permissive interlocutory appeals and address the merits of the legal issues certified.

              B. Section 22.225(d)—Interlocutory Appeal to the Supreme Court

        While we recognize the discretion courts of appeals have to accept or deny permissive

interlocutory appeals, we disagree with the suggestion that how a court exercises its discretion

determines whether this Court has jurisdiction to consider the merits of an interlocutory order that

meets the Legislature’s threshold for an exception to the final judgment rule—a controlling question

of law on which there is a substantial ground for difference of opinion, where an immediate appeal

may materially advance the ultimate termination of the litigation. See TEX. CIV. PRAC. & REM.

CODE § 51.014(d). Section 22.225 sets out when an interlocutory appeal can be brought in this

Court: “A petition for review is allowed to the Supreme Court for an appeal from an interlocutory

order described by Section 51.014 . . . (d), Civil Practice and Remedies Code.” Act of May 30,

2011, 82d Leg., R.S., ch. 203, § 3.02, 2011 Tex. Gen. Laws 757, 758 (repealed 2017). Under the

plain language of the statute, the jurisdictional predicate for review in this Court is satisfied when

the trial court certifies an interlocutory appeal under section 51.014(d) because section 51.014(d)

requires only the trial court’s permission to appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(d)

(“On a party’s motion or on its own initiative, a trial court in a civil action may, by written order,

permit an appeal from an order that is not otherwise appealable . . . .” (emphasis added)). If the trial

court concludes that the threshold requirements are satisfied and certifies the interlocutory order

according to section 51.014(d), it “permits an appeal” from the order, and this Court’s jurisdiction




                                                  11
is then proper under section 22.225(d) regardless of how the court of appeals exercises its discretion

over the permissive appeal.

       Lufthansa’s reliance on section 51.014(f) to conclude that this Court does not have

jurisdiction is misplaced. Section 51.014(f) provides: “An appellate court may accept an appeal

permitted by [section 51.014(d)] . . . . If the court of appeals accepts the appeal, the appeal is

governed by the procedures in the Texas Rules of Appellate Procedure for pursuing an accelerated

appeal.” Id. § 51.014(f). According to Lufthansa, because the court of appeals declined to accept

the permissive appeal, there has been no “appeal” from the trial court’s order that this Court can

review on the merits under section 22.225(d); that is, section 22.225(d) provides jurisdiction in this

Court only over “an appeal from an interlocutory order” described by section 51.014(d). See Act

of May 30, 2011, 82d Leg., R.S., ch. 203, § 3.02, 2011 Tex. Gen. Laws 757, 758 (repealed 2017)

(“A petition for review is allowed to the Supreme Court for an appeal from an interlocutory order

described by Section 51.014 . . . (d), Civil Practice and Remedies Code.” (emphasis added)).

Lufthansa believes that the “appeal from” language requires both the trial court’s certification of an

appeal under section 51.014(d) and the appellate court’s acceptance of that appeal under section

51.014(f). Without the appellate court’s acceptance, claims Lufthansa, there is no “appeal from an

interlocutory order” that this Court can review per section 22.225(d). We disagree.

       No statute or rule says, nor have we ever held, that this Court lacks jurisdiction when a court

of appeals declines to accept a permissive interlocutory appeal. The word “appeal,” as used in

section 51.014(d), is conditioned only on the trial court permitting an appeal, and not on the court

of appeals’ acceptance of a party’s request for permissive interlocutory review. See TEX. CIV. PRAC.


                                                 12
& REM. CODE § 51.014(d); see also TEX. R. CIV. P. 168 cmt. (referring to “the trial court’s

permission to appeal”). In other words, when the trial court issues an order certifying the case for

interlocutory review, it becomes an “appeal.” Moreover, nowhere does the text of section 51.014

support some sort of distinction in terminology between a pre-acceptance request for interlocutory

review and a post-acceptance appeal. To the contrary, whether a party seeks interlocutory review

“as of right” or seeks permissive interlocutory review, the statute refers to an “appeal from an

interlocutory order,” “[a]n interlocutory appeal,” or simply “an appeal.” See TEX. CIV. PRAC. &

REM. CODE § 51.014(a), (b), (d). Section 51.014(e) likewise refers to permissive interlocutory

review as an “appeal” and provides that trial court proceedings are not stayed unless the parties

agree or “the trial or appellate court orders a stay of the proceedings pending appeal”—a clear

indication that the Legislature will condition status on appellate court authorization or permission

when that is what it intends. Id. § 51.014(e); see also TGS-NOPEC Geophysical Co. v. Combs, 340

S.W.3d 432, 439 (Tex. 2011) (emphasizing that we presume the Legislature chooses its words with

care, including words it intends to include and omitting words it intends to omit). Moreover, the

language of section 51.014(f) negates Lufthansa’s argument that “appeal” refers only to a case that

has been accepted for permissive interlocutory review by the court of appeals. Section 51.014(f)

provides:

       An appellate court may accept an appeal permitted by Subsection (d) if the appealing
       party . . . [timely files an application for interlocutory appeal in the proper court].
       If the court of appeals accepts the appeal, the appeal is governed by [certain]
       procedures in the Texas Rules of Appellate Procedure for pursuing an accelerated
       appeal. The date the court of appeals enters the order accepting the appeal starts the
       time applicable to filing the notice of appeal.




                                                 13
TEX. CIV. PRAC. & REM. CODE § 51.014(f). How could a court accept something that does not yet

exist? See Tex. Workforce Comm’n v. Wichita Cty., 548 S.W.3d 489, 495 (Tex. 2018) (explaining

that we may disregard a statute’s unambiguous language only in exceptional cases where it would

produce an absurd, patently nonsensical result). If the Legislature intended the more restrictive

meaning of “appeal” that Lufthansa proposes, the statute would refer to acceptance of a “request for

interlocutory appeal” or acceptance “as an appeal,” or some other such language. See Entergy Gulf

States, Inc., v. Summers, 282 S.W.3d 433, 443 (Tex. 2009) (“[W]e should always refrain from

rewriting text that lawmakers chose . . . .”). Without any indication that the Legislature intended

“appeal” to refer only to a case accepted for permissive interlocutory review, we can conclude only

that section 22.225(d) authorizes this Court to review a case certified for interlocutory review under

section 51.014(d), regardless of whether the court of appeals accepts the appeal.

       Further, and in opposition to Lufthansa’s position, is the absence of any reference to section

51.014(f) in section 22.225(d). Section 22.225(d) in its entirety provides: “A petition for review

is allowed to the Supreme Court for an appeal from an interlocutory order described by Section

51.014(a)(3), (6), or (11), or (d), Civil Practice and Remedies Code.” Act of May 30, 2011, 82d

Leg., R.S., ch. 203, § 3.02, 2011 Tex. Gen. Laws 757, 758 (repealed 2017). The statute does not say

“but only if section 51.014(f) is satisfied” or “only if the court of appeals accepts the request for

permissive interlocutory review.” Indeed, nowhere is section 51.014(f) mentioned, and we cannot

“judicially amend a statute by adding words that are not contained in the language of the statute.”

Lippincott v. Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015) (per curiam). Rather, we must apply

the statute as written. Id.; see also Molinet v. Kimbrell, 356 S.W.3d 407, 414 (Tex. 2011) (holding


                                                 14
that this Court construes “clear and unambiguous statutes according to the language actually enacted

and published as law”).

       We addressed a similar question regarding our jurisdiction under section 22.225(d) a few

years ago. In Phillips Petroleum Co. v. Yarbrough, 405 S.W.3d 70 (Tex. 2013), a party filed an

interlocutory appeal over a class certification. Id. at 76. The court of appeals dismissed the

interlocutory appeal for want of jurisdiction. Id. On the question of whether we had jurisdiction to

reach the merits despite the court of appeals’ dismissal, we held:

       The Texas Civil Practice and Remedies Code permits an appeal from a trial court’s
       interlocutory order that “certifies or refuses to certify a class in a suit brought under
       Rule 42 of the Texas Rules of Civil Procedure.” TEX. CIV. PRAC. & REM. CODE
       § 51.014(a)(3). In turn, we have jurisdiction to consider a petition for review
       appealing such an order. TEX. GOV’T CODE § 22.225(d).

Id. Sabre relies on this language as authority that this Court’s jurisdiction is proper under section

22.225(d). Lufthansa distinguishes Phillips Petroleum as inapplicable because it resolved a class-

certification issue raised in an interlocutory appeal under section 51.014(a)—an appeal as of

right—after the court of appeals had dismissed the appeal for lack of jurisdiction. We do not dispute

that under section 51.014(a), litigants have a right to have certain questions answered before final

judgment. See TEX. CIV. PRAC. & REM. CODE § 51.014(a). Although litigants have no right to an

immediate appeal under section 51.014(d), the distinction between interlocutory appeals as of right

under section 51.014(a) and permissive appeals under section 51.014(d) is immaterial to our

jurisdiction under the plain language of section 22.225(d). In Phillips Petroleum, we said that “the

court of appeals had jurisdiction to review the merits of the appeal, as do we.” 405 S.W.3d at 80

(emphasis added). The same is true in this case. The court of appeals had jurisdiction to review the


                                                  15
merits of Sabre’s permissive interlocutory appeal under section 51.014(f), as do we under section

22.225(d). We were not prohibited from reaching the merits in Phillips Petroleum because the court

of appeals dismissed the appeal; likewise, we are not prohibited from reaching the merits here

because the court of appeals declined to accept the appeal.

        Lufthansa next argues that interpreting section 22.225(d) as we do will create an appeal as

of right when the elements of section 51.014(d) are met. However, section 51.014(d) is clear: an

interlocutory appeal will lie only if the trial court concludes that the statutory elements are satisfied

and certifies the appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(d) (“On a party’s motion or

on its own initiative, a trial court in a civil action may, by written order, permit an appeal from an

order that is not otherwise appealable . . . .”). The parties have no right to appeal under section

51.014(d).

        Nor does our interpretation of section 22.225(d) create a direct appeal to this Court. Nothing

we have said alters the requirement that a party advancing a permissive appeal must first petition

the court of appeals for review before petitioning this Court. See TEX. R. APP. P. 28.3(a) (“When

a trial court has permitted an appeal from an interlocutory order that would not otherwise be

appealable, a party seeking to appeal must petition the court of appeals for permission to appeal.”).

Sabre correctly requested that the court of appeals address the merits of the certified appeal, and the

court of appeals declined. Sabre then correctly requested that this Court address the merits, and

section 22.225(d) allows us to accept.

        Finally, Lufthansa complains that interlocutory review is disfavored as a general matter

because of the importance of the final judgment rule. As we have discussed, the final judgment rule


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ensures issues are decided on a full record, prevents unnecessary delays in the underlying trial, and

allows appellate courts to consider all issues in a single round of review. A departure from the final

judgment rule in the form of an interlocutory appeal must be strictly construed because it is

“a narrow exception to the general rule that interlocutory orders are not immediately appealable.”

CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011); see also In re McAllen Med. Ctr., Inc., 275

S.W.3d 458, 461 (Tex. 2008) (“Appellate courts cannot afford to grant interlocutory review of every

claim that a trial court has made a pre-trial mistake.”). This is all true, but necessity has driven the

Legislature to enact a comprehensive interlocutory appeals statute to allow certain appeals before

final judgment when public policy dictates. See TEX. CIV. PRAC. & REM. CODE § 51.014. And here,

section 51.014 was driven by the public policy of ensuring the efficient resolution of civil suits in

certain Texas courts and making the judicial system more accessible, more efficient, and less costly

to all taxpayers. Senate Comm. on State Affairs, Engrossed Bill Analysis, Tex. H.B. 274, 82d Leg.,

R.S. (2011). The pure legal question at issue here is precisely the sort of question section 51.014(d)

was enacted for—allowing an early resolution when the interlocutory order meets the Legislature’s

threshold for an exception to the final judgment rule. An answer now will forestall burdensome and

costly international discovery on the tortious interference claim and will eliminate the need for

further litigation on this question after conclusion of the case.

       To conclude, an appellate court, including this Court, “lacks jurisdiction to review an

interlocutory order unless a statute specifically authorizes an exception to the general rule, which

is that appeals may only be taken from final judgments.” Quest Commc’ns Corp. v. AT&T Corp.,

24 S.W.3d 334, 336 (Tex. 2000) (per curiam). Section 22.225(d), together with section 51.014(d),


                                                  17
authorizes the exception and confers jurisdiction over the interlocutory appeal in this Court. The

trial court correctly certified the interlocutory appeal according to section 51.014(d), and our

jurisdiction is proper under the plain and express text of section 22.225(d). We now turn to the

merits of the underlying interlocutory order and Sabre’s Rule 91a motion to dismiss.

                                 III. Preemption Under the ADA

       The only issue before us is whether the ADA preempts Lufthansa’s tortious interference

claim against Sabre. The trial court denied Sabre’s Rule 91a motion to dismiss, concluding that the

ADA does not preempt Lufthansa’s tortious interference claim. We agree. While the record is

sparse, there is enough for us to conclude that Lufthansa’s tortious interference claim does not relate

to the airline’s prices, routes, or services, and even if the claim did so relate, it does not amount to

any state law, regulation, or policy that Congress was concerned with when enacting the ADA’s

preemption clause.

                                         A. Two-Part Test

       In 1978, Congress enacted the ADA, which deregulated the airline industry in order to

encourage market competition, lower prices, advance innovation and efficiency, and increase the

variety and quality of air transportation services. See Morales v. Trans World Airlines, Inc., 504

U.S. 374, 378 (1992); see also 49 U.S.C. § 40101(a)(6), (12) (explaining policy considerations

behind deregulation). To protect its deregulation objectives, Congress included an express

preemption provision in the ADA “[t]o ensure that the States would not undo federal deregulation

with regulation of their own.” Morales, 504 U.S. at 378–79. In its current form, the ADA’s

preemption clause mandates:


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       Except as provided in this subsection, a State, political subdivision of a State, or
       political authority of at least 2 States may not enact or enforce a law, regulation, or
       other provision having the force and effect of law related to a price, route, or service
       of an air carrier . . . .

49 U.S.C. § 41713(b)(1). The United States Supreme Court has recognized that the key phrase

“related to” expresses a broad preemptive purpose. Morales, 504 U.S. at 383. The Supreme Court

has also held that state common law rules fall comfortably within the language of the ADA’s

preemption provision. See Nw., Inc. v. Ginsberg, 572 U.S. 273, 283–84 (2014) (noting that the

phrase “other provision having the force and effect of law” is much more broadly worded than other

legislation that expressly applies only to a law or regulation; therefore, ADA preemption includes

suits at common law).

       Following United States Supreme Court holdings, we have applied a two-part test to

determine whether common law claims are preempted. See Delta Air Lines, Inc. v. Black, 116

S.W.3d 745, 751 (Tex. 2003) (citing Cont’l Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 281

(Tex. 1996)). First, we examine whether the claim relates to airline prices, routes, or services. Id.

Second, we assess whether the claim constitutes the enactment or enforcement of a state law, rule,

regulation, standard, or other provision. Id. With this framework in mind, we consider whether the

ADA preempts Lufthansa’s tortious interference claim against Sabre.

                     1. Related to an Airline’s Prices, Routes, or Services

       Sabre points to the text of the ADA, which preempts any state “law, regulation, or other

provision having the force and effect of law related to a price, route, or service of an air carrier.”

49 U.S.C. § 41713(b)(1). The United States Supreme Court has held that the deliberately expansive

phrase “relating to [prices], routes, or services” preempts any “State enforcement actions having a

                                                 19
connection with or reference to airline ‘[prices], routes, or services.’” Morales, 504 U.S. at 383–84.

And here, Sabre argues, Lufthansa’s surcharge relates directly to the price of the airline’s flights

because the surcharge allegedly increases the cost of a ticket by about $18 when travel is booked

through Sabre’s GDS. If this is true, Lufthansa’s tortious interference claim must fail the first prong

because Lufthansa is using Texas tort law to enforce higher airline ticket prices.

       During oral argument, Lufthansa clarified its position on Sabre’s alleged tortious

interference. Lufthansa’s counsel explained that the dispute involves only booking fees Sabre

improperly collected through “passive bookings,” not the surcharge. Lufthansa provided this

example: A customer requests a $500 ticket from a travel agent, the customer pays $500, and the

travel agent books a $500 ticket for the customer via Lufthansa’s direct connections. The airline

then issues a $500 ticket to the customer via the travel agent. No surcharge is imposed, and no GDS

is involved. According to Lufthansa, the alleged tortious interference occurred because of conduct

after tickets are sold. That is, Sabre allegedly induces the travel agent to breach its contract with

Lufthansa by making a “passive booking” in Sabre’s GDS for the ticket booked through a direct

connection. Because the ticket sale is entered in Sabre’s GDS, Sabre charges a passive booking fee

to Lufthansa for a ticket that was sold and issued outside and apart from the GDS system.

Lufthansa then pays Sabre’s fee under protest, adding to the airline’s costs but not affecting its

customer’s $500 ticket price.

       We agree with Lufthansa that price and cost are distinct concepts. Increasing an airline’s

cost does not automatically lead to a corresponding increase in airline ticket prices. The existing

record does not demonstrate that, as a matter of law, the circumstances giving rise to the tortious


                                                  20
interference claim had any effect on airline prices. And while the United States Supreme Court did

hold that the deliberately expansive phrase “relating to [prices], routes, or services” preempts any

“State enforcement actions having a connection with or reference to airline ‘[prices], routes, or

services,’” Morales, 504 U.S. at 383–84, the Supreme Court also noted that “‘[s]ome state action

may affect [airline fares] in too tenuous, remote, or peripheral a manner’ to have pre-emptive

effect.” Id. at 390 (alterations in original) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100

n.21 (1983)). The tortious interference claim here is based on business dealings between two non-

carriers—Sabre and the travel agents. Any connection to Lufthansa’s ticket prices is likely too

peripheral to be preempted under the first prong of the preemption test.

        Lastly, while Sabre does not argue that the claim relates to routes, we address Sabre’s

contention that the tortious interference claim relates to Lufthansa’s services. The essence of

Lufthansa’s claim, Sabre argues, is that Sabre obstructed Lufthansa’s attempt to distribute its

services through direct connections. Whatever truth this may have, we conclude it is likewise “too

tenuous, remote, or peripheral” to have a preemptive effect. To hold otherwise would essentially

eliminate any limitation on the ADA’s preemptive reach because all claims brought by or against

an airline will relate to the airline’s services in some distant sense.

                               2. State Enactment or Enforcement

        Under the second prong of the test, the ADA preempts the claim if the action amounts to

enforcement of a state law, rule, regulation, standard, or other provision having the force and effect

of law. Kiefer, 920 S.W.2d at 281. Sabre argues that state common law claims (other than for

breach of contract) generally constitute “provision[s] having the force and effect of law” and thus


                                                  21
fail under the ADA preemption test. See Nw., Inc., 572 U.S. at 281, 289–90 (preempting a state

common law claim for breach of the implied covenant of good faith and fair dealing); Delta, 116

S.W.3d at 756 (holding that “state tort actions can be state enforcement [of law] under” the ADA).

Lufthansa maintains that the ADA preempts claims that have an impermissible regulatory effect on

airlines. And these claims, argues Lufthansa, can include airlines’ cases against GDS services, such

as Sabre’s, but the tortious interference claim here does not have an impermissible regulatory effect

on any airline. From Lufthansa’s view, the claim is merely an attempt to use state law to protect the

airline’s private contracts with its travel agents.

        We begin our analysis with American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995).

In Wolens, the United States Supreme Court addressed whether the ADA preempted state law claims

for consumer fraud and breach of contract. Id. at 224–25. The plaintiffs complained that American

Airlines violated the state consumer-fraud act and, separately, breached contracts with the plaintiffs

because the airline retroactively changed terms and conditions of its frequent-flyer program. Id.

The Supreme Court explained that although the plaintiffs’ claims were related to the prices, routes,

or services of an air carrier, the ADA preempted those claims only if they sought to enforce any state

law. See id. at 226. The consumer fraud claim did seek to enforce a state law within the meaning

of the preemption provision because of “the potential for intrusive regulation of airline business

practices inherent in state consumer protection legislation.” Id. at 227–28. The breach of contract

claim, by contrast, did not violate the ADA’s preemption provision because it did not involve the

same potential for intrusive state regulation. See id. at 228–33. The Supreme Court explained that




                                                  22
the breach of contract claim “allege[ed] no violation of state-imposed obligations, but [sought]

recovery solely for the airline’s alleged breach of its own, self-imposed undertakings.” Id. at 228.

       This Court built on Wolens in Continental Airlines, Inc. v. Kiefer, our first opportunity to

analyze the scope of the ADA’s preemption as it relates to personal injury actions. 920 S.W.2d at

275. The two cases consolidated in Kiefer dealt with a passenger hit on the head by a briefcase

falling from an overhead bin, and an impaired passenger who got into a fight with police. Id. We

went to great lengths to interpret and apply Wolens, drawing a fundamental distinction between what

the State dictates and what the airline itself undertakes. See id. at 279–82. We explained:

       As Wolens recognizes, suits on private contracts involve some enforcement of state
       law—the law of contracts. Wolens’ emphasis on the voluntariness of contractual
       undertakings is important, not because states have no role in enforcing
       contracts—they do—but because contract law does not effectuate purposes that
       could have a prohibited regulatory effect on airlines. If contract law were less
       uniform among the states, varying according to differing States’ interests, it might,
       as the DOT argued in Wolens, “effectuate the State’s public policies, rather than the
       intent of the parties” and thus be preempted. It cannot be said that enforcement of
       contracts involves none of “what the State dictates,” but only that contract
       enforcement involves so little state policy that it cannot be considered regulation of
       airlines preempted by the ADA.

                The duty to exercise ordinary care is different. Unlike a contractual
       obligation, it is imposed by law, not voluntarily assumed. Enforcement of the duty
       through a common-law negligence action does not merely give effect to “privately
       ordered obligations,” as a breach of contract suit does. On the other hand, like
       contract actions, a negligence action does not carry the same “potential for intrusive
       regulation of airline business practices inherent in state consumer protection
       legislation.” Simple negligence law is not as uniform as contract law, but it is far
       more policy-neutral than specific-purpose legislation, like consumer protection laws.
       If states “impose their own public policies . . . on the operations of an air carrier” by
       allowing enforcement of consumer protection laws but not by allowing suits for
       breach of the carrier’s contracts, allowing negligence actions falls somewhere in
       between.




                                                  23
Id. at 282 (citations omitted). We concluded that, with certain reservations for mental anguish and

punitive damages, “negligence law is not so policy-laden in imposing liability for personal injuries

that suits for damages like those before us are preempted by the ADA.” Id. We did not, however,

categorically rule that personal injury actions are never preempted. See id. Preemption questions

depend on the nature of the particular claim, and whether other state law claims are preempted

requires a “closer working out.” Id. at 281; see also Black, 116 S.W.3d at 756–57 (holding that

claims for misrepresentation and fraud are preempted under the ADA).

       In light of Wolens and Kiefer, Lufthansa presents its tortious interference claim as a way to

enforce its contracts with various travel agents. That is, according to Lufthansa, a suit by an airline

to protect its contracts is like a suit against an airline for breach, which is not preempted.

See Wolens, 513 U.S. at 228 (holding that a suit for “recovery solely for the airline’s alleged breach

of its own, self-imposed undertakings” is not preempted by the ADA). Sabre, on the other hand,

argues that Lufthansa’s characterization of the tortious interference claim as merely a way to protect

the vitality of its travel agent contracts is misplaced. According to Sabre, the central question is

whether the claim seeks to enforce a state-imposed obligation or is simply an obligation that the

parties voluntarily undertook. See Nw., Inc., 572 U.S. at 285–90 (holding that the ADA preempted

the plaintiff’s effort to supplement its contractual rights with an implied covenant of good faith and

fair dealing because the implied covenant was not an obligation the parties voluntarily undertook

but was instead imposed by the state). Here, Sabre notes, Lufthansa’s tortious interference claim

invokes state tort law against Sabre to impose an obligation that Sabre did not voluntarily




                                                  24
undertake—a duty to refrain from interfering with contracts between Lufthansa and third-party

travel agents.

       Northwest, Inc. v. Ginsberg, while instructive in other aspects, is not controlling here.

Northwest stands for the proposition that “[t]he ADA pre-empts a state-law claim for breach of the

implied covenant of good faith and fair dealing if it seeks to enlarge the contractual obligations that

the parties voluntarily adopt.” Id. at 273. Although Lufthansa did contract with its travel agents and

did contract with Sabre, Sabre did not contract with the travel agents whose contracts Sabre is

alleged to have interfered with. And it is these contracts that Lufthansa is seeking to use Texas tort

law to protect. Lufthansa is not attempting to enlarge any contractual obligation that it voluntarily

adopted with its respective travel agents or with Sabre.

       Furthermore, we observe that the case law referred to in the trial court’s interlocutory order,

Frequent Flyer Depot, Inc. v. American Airlines, Inc., is in line with what we have said here.

See 281 S.W.3d at 220–22. In that case, the court of appeals analyzed ADA preemption as it applied

to a tortious interference claim against a black-market reseller brokering American Airlines’

frequent-flyer miles. Id. The court held that the ADA did not preempt the tortious interference

claim because the claim was an attempt to protect the vitality of the airline’s self-imposed

obligations and therefore did not have the same impermissible regulatory effect upon prices, routes,

or services that Congress was concerned with in enacting the ADA. Id. at 221–22. That is

consistent with our holdings and our analysis today. As we discussed in Kiefer, “claims are not

preempted if they do not involve the enforcement of policy-laden state law that too closely

approaches a regulatory effect on airlines.” Kiefer, 920 S.W.2d at 283. Here, Lufthansa is simply


                                                  25
asking the court to recognize its contractual relationship with its travel agents. It is highly unlikely

that jurisdiction-dependent or policy-intensive state regulations would be implicated by disposition

of the claims at issue here. As the record presently stands, we hold that the tortious interference

claim is not preempted under the ADA.

                                           IV. Conclusion

       Under former Texas Government Code section 22.225(d), a trial court’s order that is certified

under section 51.014(d) of the Texas Civil Practice and Remedies Code is the only jurisdictional

predicate for a petition for review in this Court. The court of appeals’ decision to decline the

permissive appeal has no bearing on our jurisdiction under section 22.225(d). Regarding the merits

of the underlying interlocutory order, we hold that the ADA does not preempt Lufthansa’s tortious

interference claim because the action does not relate to the airline’s prices, routes, or services.

Nor does the claim amount to any state law, regulation, or policy that concerns ADA preemption.

Accordingly, we affirm the trial court’s denial of Sabre’s motion to dismiss pursuant to Texas Rule

of Civil Procedure 91a.



                                                       ______________________________
                                                       Paul W. Green
                                                       Justice


OPINION DELIVERED: February 1, 2019




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