CONDITIONALLY GRANT; and Opinion Filed May 24, 2019.




                                            In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-19-00571-CV

                IN RE MIKE HARTLEY AND JANIE HARTLEY, Relators

                 Original Proceeding from the 193rd Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-18-02863

                            MEMORANDUM OPINION
                         Before Justices Brown, Schenck, and Reichek
                                  Opinion by Justice Brown
       The issue before the Court in this original proceeding is whether a trial court has the

statutory authority to grant a new trial on a Texas Citizens Participation Act (“TCPA”) motion to

dismiss more than thirty days after the hearing on the motion. Applying this Court’s precedent,

we conclude the answer is no, and we conditionally grant the writ of mandamus.

                                         Background

       The underlying proceeding was initiated by Radix Realty, LLC against relators Janie and

Mike Hartley (“the Hartleys”). Real party in interest Praveen Panchakarla intervened and later

joined in an amended petition. The Hartleys filed a motion to dismiss under the TCPA, and the

trial court heard the TCPA motion on February 18, 2019. On February 22, 2019, the trial court

signed an order granting the TCPA motion and dismissing the claims asserted against the Hartleys.

Panchakarla filed a motion for reconsideration and for new trial on March 22, 2019. On May 6,
2019, the trial court signed an order vacating the February 22 order and denying the Hartleys’

TCPA motion.

       In this original proceeding, the Hartleys contend the May 6 order is void because the TCPA

prohibits a trial court from ruling on a TCPA motion to dismiss more than thirty days after the trial

court hears the TCPA motion. This Court requested a response to the petition for writ of

mandamus from Panchakarla and respondent. Panchakarla filed a response. After reviewing the

petition, the response, and the mandamus record, we conclude the trial court was without authority

to deny the TCPA motion outside the time allowed by statute. As such, the May 6 order is void,

and the Hartleys are entitled to the relief requested.

                                 Availability of Mandamus Relief

       An interlocutory appeal is permitted from the denial of a TCPA motion to dismiss. TEX.

CIV. PRAC. & REM. CODE ANN. 51.014(a)(12). The Hartleys have filed an interlocutory appeal

challenging the merits of the May 6 order. That interlocutory appeal is pending in this Court and

docketed as cause number 05-19-00565-CV.

       Mandamus generally issues to correct a clear abuse of discretion or the violation of a duty

imposed by law when there is no other adequate remedy at law. In re Prudential Ins. Co., 148

S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Mandamus is also proper, however, if a trial

court issues an order beyond its jurisdiction because such an order is void. In re Sw. Bell Tel. Co.,

35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding). For example, mandamus is appropriate when

a trial court issues an order after its plenary power has expired. In re Daredia, 317 S.W.3d 247,

250 (Tex. 2010) (orig. proceeding) (per curiam); In re Brookshire Grocery Co., 250 S.W.3d 66,

68–69 (Tex. 2008) (orig. proceeding). When an order is void, the relator need not show he lacks

an adequate appellate remedy to obtain mandamus relief. In re Sw. Bell Tel. Co., 35 S.W.3d at

605.


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        As our sister court has aptly noted, the TCPA “is directed toward the expeditious dismissal

and appeal of suits that are brought to punish or prevent the exercise of certain constitutional

rights.” Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, 407 S.W.3d 398, 401 (Tex.

App.—Houston [14th Dist.] 2013, no pet.). To effectuate that purpose, we conclude it is

appropriate to address the trial court’s statutory authority to enter the May 6 order through this

original proceeding rather than as a part of the interlocutory appeal.

                                         Applicable Law

        A trial court must rule on a TCPA motion to dismiss not later than the 30th day following

the date of the hearing. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(a); see Avila v. Larrea, 394

S.W.3d 646, 656 (Tex. App.—Dallas 2012, pet. denied) (statute requires that the court rule on the

motion within thirty days of hearing and either dismiss the action or not). If the trial court does

not rule on the motion within the time prescribed, the motion is considered denied by operation of

law. TEX. CIV. PRAC. & REM. CODE ANN. § 27.008(a); see also Dallas Morning News v. Mapp,

No. 05-14-00848-CV, 2015 WL 3932868, at *3 (Tex. App.—Dallas June 26, 2015, no pet.) (mem.

op.).

        This Court held in Mapp that a trial court’s written order signed forty-one days after the

hearing came too late and was void. Mapp, 2015 WL 3932868, at *3. In Mapp, a TCPA motion

to dismiss was denied by operation of law and an interlocutory appeal was perfected before the

trial court granted the TCPA motion. Id. at *1. This Court rejected the argument that rule 29.5 of

the appellate rules permitted the trial court to belatedly rule on the TCPA motion during the

interlocutory appeal of the denial of the motion by operation of law. Id. at *3. Rule 29.5 provides:

        While an appeal from an interlocutory order is pending, the trial court retains
        jurisdiction of the case and unless prohibited by statute may make further orders,
        including one dissolving the order complained of on appeal.




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TEX. R. APP. P. 29.5 (emphasis added). This Court concluded that the trial judge’s act of signing

an order more than thirty days after the hearing was “an act prohibited by statute” and, as such,

Rule 29.5 was not applicable. We concluded the order was void and “the controlling ruling is the

denial of the motion by operation of law.” Mapp, 2015 WL 3932868, at *3.

       This Court has followed Mapp twice, concluding in each case that a trial court lacks

statutory authority to rule on a TCPA motion to dismiss more than thirty days after the hearing on

the motion. See Dobrott v. Jevin, Inc., No. 05-17-01472-CV, 2018 WL 6273411, at *1 (Tex.

App.—Dallas Nov. 30, 2018, no pet.) (mem. op.) (“We conclude that, based on our existing

precedent, the trial court had no authority to grant the TCPA motion to dismiss outside the time

allowed by statute.”); see also Kim v. Manchac, No. 05-17-00406-CV, 2018 WL 564004, at *1

(Tex. App.—Dallas Jan. 26, 2018, no pet.) (mem. op.) (citing Mapp and reversing dismissal order

issued forty-two days after hearing on TCPA motion).

       In reaching its decision in Mapp, this Court agreed with and applied the reasoning of the

Fourteenth Court in Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, 407 S.W.3d

398 (Tex. App.—Houston [14th Dist.] 2013, no pet.). In Direct Commercial Funding, the trial

court signed an order granting the defamation defendant’s motion to dismiss six weeks after the

motion was denied by operation of law. Id. at 401–02. After considering the plain language of

the statute and its purpose, the Fourteenth Court concluded a trial court is not authorized to grant

a motion to dismiss under the TCPA more than thirty days after the hearing on the motion. Id.

The court also rejected the suggestion that rule 329b provided authority for the trial court to grant

the motion to dismiss after it had been denied by operation of law. Mapp, 2015 WL 3932868, at

*3 (interpreting Direct Commercial Funding, 407 S.W.3d at 402). Rule 329b, which governs

motions for new trial and motions to modify, correct, or reform judgments, specifically empowers

a trial court to “grant a new trial or to vacate, modify, correct, or reform the judgment until thirty

                                                 –4–
days after all such timely-filed motions are overruled, either by a written and signed order or by

operation of law, whichever occurs first.” TEX. R. CIV. P. 329b(e). The Fourteenth Court noted,

however, that the TCPA does not contain an analogous provision empowering the trial court to

grant a motion to dismiss after it has been overruled by operation of law. Direct Commercial

Funding, 407 S.W.3d at 402.

                                            Discussion

       Here, the trial court heard the motion to dismiss on February 18, 2019 and signed an order

granting the motion on February 22, 2019. The trial court’s statutory deadline to rule on the motion

was March 20, 2019, thirty days after the February 18 hearing. See TEX. CIV. PRAC. & REM. CODE

§ 27.005(a). That deadline is a “mandatory deadline that applies to the trial court’s authority to

rule on a motion to dismiss.” Direct Commercial Funding, 407 S.W.3d at 401. The court’s May

6, 2019 order vacating the February 22 order and denying the motion to dismiss was beyond that

mandatory deadline, was not statutorily authorized, and is void. See Mapp, 2015 WL 3932868, at

*3; see also Direct Commercial Funding, 407 S.W.3d at 401–02; Kim, 2018 WL 564004, at *1;

Avila, 394 S.W.3d at 656.       Further, Panchakarla’s motion for new trial and motion for

reconsideration did not extend the statutory deadline for the trial court to rule. See Mapp, 2015

WL 3932868, at *3 (the TCPA does not include a provision empowering the trial court to rule on

a motion to dismiss after it has been overruled by operation of law) (citing Direct Commercial

Funding, 407 S.W.3d at 402); see also Avila, 394 S.W.3d at 656 (TCPA includes no provision for

extension of the thirty-day period in section 27.005(a)).

       The trial court was statutorily prohibited from granting Panchakarla’s motion for

reconsideration and for new trial more than thirty days after the hearing on the TCPA motion and,

as such, the trial court’s May 6, 2019 order is void. The Hartleys are, therefore, entitled to

mandamus relief.


                                                –5–
        Accordingly, we conditionally grant the petition for writ of mandamus. We direct the trial

court to vacate its May 6, 2019 order and reinstate its February 22, 2019 order granting the

Hartleys’ motion to dismiss within thirty days of the date of this opinion. A writ will issue if the

trial court fails to comply.




                                                  /Ada Brown/
                                                  ADA BROWN
                                                  JUSTICE



190571F.P05




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