                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                               NO. 2-09-404-CV


J&J SPORTS PRODUCTIONS, INC.                                       APPELLANT

                                       V.

1) JWJ MANAGEMENT, INC.,                                           APPELLEES
INDIVIDUALLY AND D/B/A
PLAYMATES; AND 2) JOE WAYNE
FEEMSTER, INDIVIDUALLY AND
D/B/A PLAYMATES


                                   ------------

        FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                                  OPINION
                                   ------------

      Appellant J&J Sports Productions, Inc. appeals from the trial court‘s

judgment dismissing its claims against Appellees JWJ Management, Inc.

(individually and d/b/a Playmates) (JWJ) and Joe Wayne Feemster (individually

and d/b/a/ Playmates) (Feemster). In one point, J&J Sports argues that the trial

court erred by concluding that the two-year statute of limitations from section
16.003 of the Texas Civil Practice and Remedies Code1 applies to its claims.

Because we hold that the two-year statute of limitations does apply, we affirm.

                                 I. Background

      J&J Sports was authorized to sub-license the live telecast of a boxing

event held on May 28, 2005. On May 28, 2008, J&J Sports filed suit against JWJ

and Feemster for cable piracy under sections 553 and 605 of the Federal

Communications Act of 1934 (FCA).2 In its petition, J&J Sports alleged that JWJ

and Feemster had shown a closed-circuit telecast of the event in their

commercial establishment without first obtaining the rights to show the event

from J&J Sports.

      JWJ and Feemster filed a cross-motion for summary judgment on the

ground that the piracy claims were time-barred by the two-year statute of

limitations provided by civil practice and remedies code section 16.003(a). 3 J&J

Sports argued in response that the trial court should follow the Fifth Circuit‘s

holding in Prostar v. Massachi and apply the three-year statute of limitations


      1
       Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (Vernon Supp. 2010).
      2
       47 U.S.C.A. § 553 (West 2001) (―No person shall intercept or receive or
assist in intercepting or receiving any communications service offered over a
cable system, unless specifically authorized to do so by a cable operator or as
may otherwise be specifically authorized by law.‖); id. § 605 (West 2001) (―No
person not being authorized by the sender shall intercept any radio
communication and divulge or publish the existence, contents, substance,
purport, effect, or meaning of such intercepted communication to any person.‖).
      3
       See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a).

                                        2
found in the federal Copyright Act.4 The trial court granted JWJ and Feemster‘s

motion, and J&J Sports now appeals.

                             II. Standard of Review

      We review a summary judgment de novo.5            A defendant is entitled to

summary judgment on an affirmative defense if the defendant conclusively

proves all the elements of the affirmative defense.6 Limitations is an affirmative

defense.7

                                  III. Discussion

Applicable Law

      In J&J Sports‘s sole issue, it argues that the trial court erred by concluding

that the two-year limitations period in section 16.003 applies to claims brought

under the FCA, specifically 47 U.S.C. §§ 553 and 605. Congress has provided a

four-year limitations period for civil actions arising under federal statutes enacted

after December 1, 1990.8 For federal statutes enacted prior to that time that do



      4
      See Prostar v. Massachi, 239 F.3d 669, 678 (5th Cir. 2001); see also 17
U.S.C.A. §§ 101–1332 (West 2005 & Supp. 2010).
      5
      Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009).
      6
      Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008); see Tex. R. Civ. P.
166a(b), (c).
      7
       Tex. R. Civ. P. 94; In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 308
(Tex. 2010).
      8
      28 U.S.C.A. § 1658 (West 2006); Jones v. R.R. Donnelley & Sons Co.,
541 U.S. 369, 382, 124 S. Ct. 1836, 1845 (2004) (holding that a cause of action
                                         3
not specifically provide an applicable limitations period, the general rule is to

―‗borrow‘ the most closely analogous state limitations period.‖9 Courts have also,

though more rarely, borrowed an analogous federal limitations period in certain

circumstances.10

      The United States Supreme Court has discussed at length the analysis

courts should use in determining the applicable statute of limitations for a federal

statute that does not expressly provide an applicable limitations period.           In

Agency Holding Corp. v. Malley-Duff & Associates, the Court considered the

appropriate statute of limitations for civil enforcement actions under the

Racketeer Influenced and Corrupt Organizations Act (RICO).11 The Court began

by noting that in the past, it had ―generally concluded that Congress intended that

the courts apply the most closely analogous statute of limitations under state

law,‖ but that courts are not always required to apply a state statute of limitations

whenever a federal statute is silent on the question of limitations.12 The Court

then articulated the initial inquiry in determining the appropriate limitations period:


―arises under‖ an act after December 1, 1990, ―if the plaintiff‘s claim against the
defendant was made possible by a post-1990 enactment‖).
      9
      Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson,
545 U.S. 409, 414–15, 125 S. Ct. 2444, 2448 (2005).
      10
          Id.
      11
       483 U.S. 143, 144, 107 S. Ct. 2759, 2761 (1987); see also 18 U.S.C.A.
§§ 1961–1968 (West 2000 & Supp. 2010).
      12
          Agency Holding, 483 U.S. at 146, 107 S. Ct. at 2762.

                                          4
―whether all claims arising out of the federal statute ‗should be characterized in

the same way, or whether they should be evaluated differently depending upon

the varying factual circumstances and legal theories presented in each individual

case[,]‘‖13 that is, whether one uniform limitations period should be applied to all

claims that arise out of the statute. Once the court has made this determination,

the court must decide whether a federal or state limitations period should apply to

such claims.14    The federal Rules of Decisions Act15 generally requires the

application of a state limitations statute, but in some limited circumstances,

―‗state statutes of limitations can be unsatisfactory vehicles for the enforcement

of federal law,‘‖ and in those circumstances, ―‗it may be inappropriate to conclude

that Congress would choose to adopt state rules at odds with the purpose or

operation of federal substantive law.‘‖16

      The Court stated that ―the mere fact that state law fails to provide a perfect

analogy to the federal cause of action is never itself sufficient to justify the use of

a federal statute of limitations.‖17      But it may be appropriate to borrow a

limitations period from another federal statute ―when a rule from elsewhere in

      13
        Id. at 147, 107 S. Ct. at 2762.
      14
        Id.
      15
        28 U.S.C.A. § 1652 (West 2006).
      16
       Agency Holding, 483 U.S. at 147, 107 S. Ct. at 2762–63 (quoting
DelCostello v. Teamsters, 462 U.S. 151, 161, 103 S. Ct. 2281, 2289 (1983)).
      17
        Id., 107 S. Ct. at 2763.

                                            5
federal law clearly provides a closer analogy than available state statutes, and

when the federal policies at stake and the practicalities of litigation make that rule

a significantly more appropriate vehicle for interstitial lawmaking.‖18

      Due to the nature of RICO claims, the federal courts had been inconsistent

in how they approached selecting a statute of limitations to apply. 19 To be liable

under § 1962 of RICO, a person has to have engaged in a ―pattern of

racketeering,‖ meaning at least two acts of racketeering activity. 20      The term

―racketeering activity‖ encompasses numerous and diverse topics, across many

areas of law, including nine state law felonies and over twenty-five federal

statutes.21   The types of acts constituting ―racketeering activity‖ range from

actions such as mail fraud and embezzlement to acts ―generally associated with

professional criminals such as arson, bribery, theft[,] and political corruption.‖ 22

Thus, in trying to determine which state limitations period applies, a court could

analogize a RICO claim to numerous causes of action with a multiplicity of

applicable limitations periods.23 The Court therefore needed to set a uniform


      18
       Id. at 148, 107 S. Ct. at 2763 (quoting DelCostello, 462 U.S. at 171–72,
103 S. Ct. at 2294) (emphasis added).
      19
        Id.
      20
        18 U.S.C.A. § 1962.
      21
        Agency Holding, 483 U.S. at 149–50, 107 S. Ct. at 2763–64.
      22
        Id.; see also 18 U.S.C.A. § 1962.
      23
        Agency Holding, 483 U.S. at 149–50, 107 S. Ct. at 2763–64.

                                          6
statute of limitations for RICO claims to avoid ―intolerable ‗uncertainty and time-

consuming litigation.‘‖24

      After determining that it needed to set one uniform limitations period to

apply to all claims arising out of RICO, the Court ultimately concluded that the

applicable limitations period should come from the federal Clayton Act 25 rather

than from state law.26 The Court placed particular importance on the ―similarities

in purpose and structure between RICO and the Clayton Act‖ and ―the clear

legislative intent to pattern RICO‘s civil enforcement provision on the Clayton

Act,‖ which the Court stated ―strongly counsel[ed] in favor of‖ applying the

Clayton Act‘s limitations period.27

      The Court remarked that ―[t]his [was] especially true given the lack of any

satisfactory state law analogue to RICO.‖28 Unlike, for example, a claim under 42

U.S.C. § 1983—the predicate acts of which ―plainly sound[] in tort,‖ making

claims under that statute amenable to the application of a state‘s statute of




      24
       Id. at 150, 107 S. Ct. at 2764 (quoting Wilson v. Garcia, 471 U.S. 261,
272, 105 S. Ct. 1938, 1945 (1985)).
      25
        15 U.S.C.A. § 15 (West 2009).
      26
        Agency Holding, 483 U.S. at 150, 107 S. Ct. at 2764.
      27
        Id. at 150–52, 107 S. Ct. at 2764–65.
      28
        Id. at 152, 107 S. Ct. at 2765.

                                          7
limitations for tort claims—the predicate acts that give rise to a racketeering claim

under RICO ―cannot be reduced to a single generic characterization.‖29

      The Court also observed that because of the multi-jurisdictional nature of

RICO cases, the practicalities of litigation provided an additional compelling

reason for applying a federal statute of limitations.30 Not only could a single

claim be subject to multiple limitations periods within a jurisdiction, but because

RICO cases are commonly based on interstate transactions, any one RICO claim

could also be governed by the statute of limitations for multiple states. 31        In

summary, because a claim under RICO could encompass numerous acts that

would be subject to different statutes of limitations within a jurisdiction, the Court

needed to establish a uniform limitations period to apply to all RICO claims. 32

Because a claim could be based on predicate acts that occurred in multiple

jurisdictions, and because the statute itself was clearly patterned on a federal

statute, the limitations period for that federal statute should apply to RICO

claims.33

      In Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, the Court

addressed the applicable statute of limitations for a private suit brought under
      29
        Id.
      30
        Id. at 153–54, 107 S. Ct. at 2766.
      31
        Id.
      32
        Id.
      33
        Id.

                                          8
§ 10(b) of the Securities Exchange Act of 1934 and Securities and Exchange

Commission Rule 10b-5.34        The Court reiterated that borrowing a limitations

period from a federal statute is a closely-circumscribed exception to the general

rule of borrowing from state law.35 From its previous cases, the Court distilled a

three-step, hierarchical inquiry for determining the appropriate limitations

period.36     First, a court must consider the need to establish one uniform

limitations period to apply to the federal cause of action.37 Does the federal

cause of action ―encompass numerous and diverse topics and subtopics . . .

such that a single state limitations period may not be consistently applied within a

jurisdiction‖?38   If so, ―federal interests in predictability and judicial economy

counsel the adoption of one source, or class of sources, for borrowing

purposes.‖39

      Next, a court considers whether to use a state or federal source, giving

particular consideration to the geographical character of the claim—that is, if the




      34
        501 U.S. 350, 352, 111 S. Ct. 2773, 2776 (1991); see 15 U.S.C.A. §
78j(b) (West 2009); 17 CFR § 240.10b-5 (1990).
      35
        Lampf, 501 U.S. at 356, 111 S. Ct. at 2778.
      36
        Id. at 356, 111 S. Ct. at 2778–79.
      37
        Id. at 357, 111 S. Ct. at 2779.
      38
        Id.
      39
        Id.

                                          9
claim is multistate in nature.40 The concern is that if a plaintiff‘s claim could be

brought in more than one state, each with a different limitations period, this could

give rise to forum shopping and would ―‗virtually guarantee complex and

expensive litigation over what should be a straightforward matter.‘‖41 We note

that the Court expressed concern about whether a single claim could possibly be

subjected to statutes of limitations in multiple states; the Court made no mention

of concern about whether a plaintiff who pursues claims against different

defendants in separate lawsuits might be subjected to different statutes of

limitations based on where those lawsuits are filed.

      As a final consideration, a court looks to see if a federal limitations period

has a ―closer fit‖ than a state law limitations period.42 Even if the multistate

nature of a claim points toward borrowing a federal statute, the court still must

look to see if the analogous federal source truly affords a closer fit with the cause

of action at issue than does any available state-law source.43

      The Court once again considered the issue of borrowing in North Star

Steel Co. v. Thomas.44 In that case, the Court determined the applicable statute

of limitations for claims under the federal Worker Adjustment and Retraining
      40
        Id.
      41
        Id. (quoting Agency Holding, 483 U.S. at 154, 107 S. Ct. at 2766).
      42
        Id.
      43
        Id. at 357–58, 111 S. Ct. at 2779.
      44
        515 U.S. 29, 115 S. Ct. 1927 (1995).

                                         10
Notification Act (WARN).45 The Court again noted that a statute of limitations

should be borrowed from a federal source, rather than a state source, ―when the

state limitations periods with any claim of relevance would ‗frustrate or interfere

with the implementation of national policies,‘‖ or be ―at odds with the purpose or

operation of federal substantive law,‖46 but that borrowing from a federal source

is a ―‗a closely circumscribed . . . [and] narrow exception to the general rule‘‖ of

borrowing from state law.47       The Court held that the claims at issue ―[fell]

squarely inside the rule, not the exception.‖48

      Although the defendants in North Star Steel argued that litigation under

WARN presented a risk of forum shopping, the Court declined to adopt a uniform

federal rule for all WARN claims. The Court acknowledged that ―the practice of

adopting state statutes of limitations for federal causes of action can result in

different limitations periods in different States for the same federal action‖ and

that ―some plaintiffs will canvass the variations and shop around for a forum.‖ 49

But, the Court observed, ―[T]hese are just the costs of the rule itself, and nothing
      45
         Id. at 31, 115 S. Ct. at 1929; see 29 U.S.C.A. §§ 2101–2109 (West
2009).
      46
       North Star Steel, 515 U.S. at 34, 115 S. Ct. at 1931 (quoting DelCostello,
462 U.S. at 161, 103 S. Ct. at 2289, and Occidental Life Ins. Co. of Cal. v.
EEOC, 432 U.S. 355, 367, 97 S. Ct. 2447, 2455 (1977)).
      47
       Id. at 34, 115 S. Ct. at 1930 (quoting Reed v. United Transp. Union, 488
U.S. 319, 324, 109 S. Ct. 621, 625 (1989)).
      48
         Id. at 35, 115 S. Ct. at 1931.
      49
         Id. at 36, 115 S. Ct. at 1931–32.

                                          11
about WARN makes them exorbitant.‖50 That is, the fact that a federal statute

could be subjected to one limitations period in one state but a different limitations

period in another state does not by itself justify adopting a uniform federal

limitations rule for a federal cause of action.

      The Court acknowledged that it had previously adopted a uniform federal

rule for RICO claims and that in doing so, it was influenced by the ―practicalities

of litigation‖ of RICO claims.51 But, the Court pointed out, claims under WARN

are based on an act or acts at a single site and, unlike RICO violations, ―do not

‗commonly involve interstate transactions.‘‖52 The Court concluded by holding

that because WARN did not share the ―multistate nature‖ of RICO and is

      so relatively simple and narrow in its scope, that ―no [comparable]
      practicalities of litigation compel us to search beyond state law for a
      more analogous statute of limitations[.]‖ Since, then, a state
      counterpart provides a limitations period without frustrating
      consequences, it is simply beside the point that even a perfectly
      good federal analogue exists.53

      Although the Supreme Court has not yet determined the applicable

limitations period for claims under the FCA, the Third, Fifth, and Ninth Circuits

have reached the issue. The Fifth Circuit held that the limitations period from the




      50
        Id. at 36, 115 S. Ct. at 1932.
      51
        Id.
      52
        Id. at 36–37, 115 S. Ct. at 1932.
      53
        Id. at 37, 115 S. Ct. at 1932 (citations omitted).

                                          12
federal Copyright Act applies to civil actions under the FCA.54 In Prostar, the

Fifth Circuit considered whether to apply a Louisiana limitations period to claims

brought under 47 U.S.C. §§ 553 and 605.55 The court concluded that the closest

analogue under Louisiana law to the plaintiff‘s cable piracy claim was the tort of

conversion.56    The court declined, however, to apply Louisiana‘s one-year

limitations period for conversion claims.      Instead, emphasizing the need for

national uniformity in enforcing the FCA, the court held that the application of

Louisiana conversion law would undermine the implementation of the FCA

because ―[t]he application of state conversion law in each of the fifty states would

result in widely varying limitations periods,‖ which would require national cable

companies to ―‗make fifty separate decisions‘ in their efforts to investigate and

pursue cable policy.‖57 Thus, the court appeared to interpret the ―uniformity‖

consideration set out by the Supreme Court as a consideration of whether

implementation of the cable piracy statutes‘ policies and the practicalities of

litigation required a limitations period that was uniform across jurisdictions, rather

than merely uniform within a jurisdiction.     The court concluded that a single

federal standard should apply to cable piracy claims and that the federal



      54
        Prostar, 239 F.3d at 677.
      55
        Id. at 671.
      56
        Id. at 675.
      57
        Id. at 676–77.

                                         13
Copyright Act provides an appropriate federal law analogue to such claims. 58

Accordingly, the court applied the Copyright Act‘s limitations period of three years

to the cable piracy claims.59

      Both the Third and Ninth Circuits reached a different conclusion than the

Fifth Circuit did in Prostar and held that the applicable limitations period should

be one borrowed from state law.         In Kingvision Pay-Per-View, Corp. v. 898

Belmont, Inc.,60 the Third Circuit noted that Pennsylvania, the state in which the

claims were brought, has a cable piracy statute similar to the federal statute; that

statute has a two-year statute of limitations.61 Although the plaintiff in that case

argued that the three-year limitations period of the federal Copyright Act should

apply, the Third Circuit determined that no special considerations relevant to

bringing FCA claims would be frustrated by a two-year limitations period.62 The

court observed that ―[t]he overall purpose of the FCA is to ―‗regulat[e] interstate

and foreign commerce in communication by wire and radio so as to make

available . . . to all the people of the United States . . . a rapid efficient . . .

communication service with adequate facilities at reasonable charges[,]‘‖ and that

the specific provisions of §§ 553 and 605 were passed ―to prevent unauthorized
      58
        Id. at 677.
      59
        Id. at 678.
      60
        366 F.3d 217 (3rd Cir. 2004).
      61
        Id. at 219.
      62
        Id. at 225.

                                         14
interception of cable transmissions, including interception through unauthorized

use of decoding devices.‖63            Because there was no evidence that the

practicalities of litigation under those sections required a longer statute of

limitations, and because the application of the state law limitations period did not

frustrate the purpose or implementation of the FCA, the court found no reason to

apply a longer limitations period.64

      In DirecTV, Inc. v. Webb,65 the Ninth Circuit determined the statute of

limitations for a violation of 47 U.S.C. § 605. The court pointed out that California

has a piracy statute ―remarkably similar to § 605 in purpose and structure.‖ 66 In

contrast to the Fifth Circuit‘s analysis in Prostar, the court held that the

consideration of a need for uniformity does not refer to ―a litigant‘s preference for

a single limitations period in multiple lawsuits across multiple jurisdictions.‖ 67 Nor

does the consideration relate to whether the borrowed limitations period should

come from federal rather than state law.68 Rather, the issue of uniformity arises

when the federal cause of action is so complex that ―a single state limitations
      63
        Id. (quoting 47 U.S.C. § 151).
      64
        Id.
      65
        545 F.3d 837 (9th Cir. 2008).
      66
       Id. at 848 (citing Lampf, 501 U.S. at 358, 111 S. Ct. at 2779 (instructing
that ―commonality of purpose and similarity of elements‖ are relevant
considerations when selecting a statute of limitations period to apply)).
      67
        Id. at 850–51.
      68
        Id. at 851.

                                           15
period may not be consistently applied within a [single] jurisdiction.‖69 The court

also noted that, in that case, the piracy claims against the defendant were not

multistate in nature in that they did not stem from predicate acts spanning

multiple jurisdictions.70    And furthermore, the court held, ―[G]eographic

considerations do not counsel for the adoption of a federal limitations period less

analogous than a state counterpart.‖71 Thus, the court concluded that the statute

of limitations applicable to the California cable piracy statute should apply to the

plaintiff‘s claims.72

Analysis

       We now turn to the claims in this case. J&J Sports argues that this court

should follow Prostar. Precedent of the Fifth Circuit, though persuasive, is not

binding on this court.73 We therefore conduct our own analysis to determine

what limitations period applies.74

       J&J Sports contends that Texas does not have a state statute analogous

to the FCA‘s statutory scheme protecting against unauthorized reception of cable

transmissions.     J&J Sports is incorrect; unlike Louisiana, Texas has a closer
       69
         Id. (citing Lampf, 501 U.S. at 357, 111 S. Ct. at 2779).
       70
         Id.
       71
         Id.
       72
         Id. at 848.
       73
         Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993).
       74
         See Fielding, 289 S.W.3d at 848 (reviewing summary judgment de novo).

                                         16
analogue to the federal cable piracy statutes than common law conversion. As

with the federal provisions at issue here, Texas provides for both criminal and

civil liability when a person uses a device to obtain cable or satellite services

without authorization. Under section 31.12 of the penal code, a person commits

an offense of theft of or tampering with multichannel video or information services

if the person, without authorization, intentionally or knowingly uses an

unauthorized access device to obtain services from a multichannel video or

information services provider.75 The term ―access device‖ means ―an access

device, connection, or device wholly or partly designed to make intelligible an

encrypted, encoded, scrambled, or other nonstandard signal carried by a

multichannel video or information services provider.‖76 The term ―multichannel

video or information services provider‖ means ―a licensed cable television

system, video dialtone system, multichannel multipoint distribution services

system, direct broadcast satellite system, or other system providing video or

information services that are distributed by cable, wire, radio frequency, or other

media.‖77 With respect to civil liability for such actions, the Texas Theft Liability

Act (TTLA) makes certain theft offenses subject to civil penalties as well. 78



      75
        Tex. Penal Code Ann. § 31.12(a)(4) (Vernon 2003).
      76
        Id. § 31.12(b)(1).
      77
        Id. § 31.12(b)(3).
      78
        See Tex. Civ. Prac. & Rem. Code Ann. §§ 134.001–.005 (Vernon 2005).

                                         17
Section 134.002 specifically provides for a civil cause of action against a person

who commits an offense under section 31.12.79 As with 47 U.S.C. §§ 553 and

605, under the TTLA, a plaintiff may recover both actual damages and statutory

damages for a violation of section 31.12.80        Thus, Texas has a state law

analogue that parallels the federal cable piracy statutory scheme. We must now

determine whether we should apply the Texas limitations period applicable to

section 134.002 to J&J Sports‘s federal claims or whether we should instead

borrow from a federal law analogue.

      We agree with the reasoning of the Third and Ninth Circuits. The federal

Copyright Act does not truly afford a closer fit to the federal cable piracy statute

than the Texas cable piracy statutory scheme. And the practicalities of litigation

under the cable piracy statute do not make the application of the federal

Copyright Act (or any other federal law) significantly more appropriate.81 The

cable piracy statutory scheme does not address a range of topics and subtopics.

It does not base liability on multiple acts, each with its own limitations period,

creating confusion as to which limitations period should be applied. And the

predicate act or acts that subject a person to liability do not occur across multiple

      79
        Id. § 134.002.
      80
        See id. § 134.005(a)(1); see also 47 U.S.C.A. §§ 553(c)(3), 605(e)(3)(C).
      81
         See Lampf, 501 U.S. at 356, 111 S. Ct. at 2778 (noting that a court
should apply a federal rule only when federal policies at stake and practicalities
of litigation make that rule significantly more appropriate than borrowing a
limitations period from an analogous state law).

                                         18
jurisdictions. Instead, the piracy claims are based on ―a localized violation in a

single jurisdiction.‖82

       Furthermore, borrowing Texas‘s two-year statute of limitations does not

frustrate either the purpose or the implementation of the FCA‘s cable piracy

provisions. We agree with the Third Circuit that having a two-year statute of

limitations does not impede the FCA‘s purpose of preventing the unauthorized

interception of cable transmissions, including interception through unauthorized

use of decoding devices.83      Because the federal policies at stake are not

frustrated by applying a two-year statute of limitations, and because the

practicalities of litigation under the FCA‘s cable piracy provisions do not counsel

against borrowing Texas‘s two-year statute of limitations, we decline to follow

Prostar.

       J&J Sports argues that cable piracy ―clearly implicates several areas of the

law, such [as] fraud, theft of services, conspiracy to breach contract, unjust

enrichment, or interference with economic advantage.‖ But whereas cable piracy

could possibly be compared to any of these causes of action, proving a claim

under the cable piracy statutory scheme does not require establishing those




       82
        See DirecTV, Inc., 545 F.3d at 851.
       83
        See Kingvision Pay-Per-View, Corp., 366 F.3d at 225.

                                        19
other claims. The fact that those other causes of action have varying statutes of

limitations is therefore irrelevant to our analysis.84

      J&J Sports also argues that cable signals and satellite communications are

multistate operations.    It points out that it is a California corporation with an

exclusive license with a Nevada-based promoter and that the defendants in this

case were in Texas.       J&J Sports misconstrues the geographic consideration

requirement set out by the Supreme Court.85 The ―multistate nature‖ of a claim

does not refer to whether the parties are in different jurisdictions.          The

consideration relates to whether the predicate acts of the defendant occurred in

different jurisdictions.86 J&J Sports‘s claim is based, as most cable piracy claims

will be, on an act at a single site. And the Supreme Court has pointed out that

even if the claim is multistate in nature, before borrowing a federal limitations

period, a court must determine that an analogous federal source truly affords a

closer fit with the cause of action at issue than does any available state-law




      84
        Cf. Agency Holding, 483 U.S. at 149–50, 107 S. Ct. at 2763–64
(discussing RICO, which lists more than thirty acts or offenses and makes the
commission of any two a violation of RICO).
      85
        See Prostar, 239 F.3d at 676 (determining that Prostar‘s claim illustrated
the ―multistate nature‖ of FCA actions in that Prostar was a Texas corporation
suing for signal piracy conducted in Louisiana).
      86
        See North Star Steel, 515 U.S. at 37, 115 S. Ct. at 1932 (noting that
WARN‘s obligations are triggered by activities that, unlike RICO violations, ―do
not ‗commonly involve interstate transactions‘‖).

                                           20
source.87 The federal Copyright Act does not afford a closer fit to the federal

cable piracy statutes than does the Texas cable piracy statutes.

      Section 134.002 of the civil practice and remedies code, which

incorporates section 31.12 of the penal code, is the Texas statute most closely

analogous to the cable piracy provisions of the FCA. Accordingly, we hold that

the statute of limitations applicable to section 134.002 applies to the federal

causes of action asserted here. Under section 16.003(a) of the civil practice and

remedies code, except where otherwise provided, a two-year limitations period

applies to a claim for trespass to or the taking of personal property.88 Because

section 134.002 addresses theft of personal (intangible) property, section

16.003(a) applies to section 134.002 claims. Accordingly, we hold that a two-

year statute of limitations applies here.

      J&J Sports brought its claims more than two years after the alleged

unauthorized interception. The trial court therefore did not err by granting JWJ

and Feemster‘s cross-motion for summary judgment based on the application of

the two-year statute of limitations in section 16.003(a).89    We overrule J&J

Sports‘s sole issue.




      87
        Lampf, 501 U.S. at 357–58, 111 S. Ct. at 2779.
      88
        Tex. Civ. Prac. & Rem. Code Ann. § 16.003.
      89
        See Chau, 254 S.W.3d at 455.

                                            21
                             IV. Conclusion

     Having overruled J&J Sports‘s sole issue, we affirm the trial court‘s

summary judgment.




                                              LEE ANN DAUPHINOT
                                              JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DELIVERED: September 23, 2010




                                   22
