Opinion issued March 14, 2019




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-18-00781-CV
                            ———————————
                        CARMEN MONTIEL, Appellant
                                         V.
                     ALEX EDUARDO LECHIN, Appellee


                    On Appeal from the 334th District Court
                             Harris County, Texas
                       Trial Court Case No. 2017-68138


                          MEMORANDUM OPINION

      Appellant, Carmen Montiel, attempts to appeal the trial court’s interlocutory

order denying her Texas Citizens Participation Act (“TCPA”) motion to dismiss.

Appellee has filed a motion to dismiss this appeal for want of jurisdiction, asserting

that appellant’s notice of appeal was untimely. We dismiss the appeal.
                                 Applicable Law

      Under the TCPA, a defendant may file a motion to dismiss claims based on

the defendant’s exercise of the right of free speech. TEX. CIV. PRAC. & REM. CODE

§ 27.003. The trial court must rule on a TCPA motion to dismiss within 30 days of

the hearing on the motion. TEX. CIV. PRAC. & REM. CODE § 27.005(a). If the court

does not rule within that time, the motion is denied by operation of law. TEX. CIV.

PRAC. & REM. CODE § 27.008(a). Once the motion is denied by operation of law,

“the moving party may appeal.” Id.; see TEX. CIV. PRAC. & REM. CODE

§51.014(a)(12) (authorizing appeal from interlocutory order denying motion to

dismiss filed under section 27.003). Section 27.008(b) of the Texas Civil Practice

and Remedies Code requires an appellate court to expedite an appeal from the trial

court’s failure to rule under section 27.005. TEX. CIV. PRAC. & REM. CODE §

27.008(b). Because such an appeal is an accelerated appeal of an interlocutory order,

a notice of appeal must be filed within 20 days of the date the motion is denied by

operation of law. See TEX. R. APP. P. 28.1 (appeals from interlocutory orders are

accelerated appeals); 26.1(b) (in accelerated appeal, notice of appeal must be filed

within 20 days of judgment or order).

                                    Discussion

      In the underlying case, appellant filed a TCPA motion to dismiss pursuant to

section 27.003 of the Texas Civil Practice and Remedies Code. The trial court held


                                         2
a hearing on the TCPA motion on April 6, 2018. Appellant’s motion was overruled

by operation of law 30 days later, on May 6, 2018, when the trial court did not rule

on the motion. See TEX. CIV. PRAC. & REM. CODE § 27.005. Appellant’s notice of

appeal was due 20 days later. See TEX. R. APP. P. 26.1(b). However, because the 20-

day deadline fell on a Saturday, the deadline was automatically moved to Monday,

May 28, 2018. See TEX. R. APP. P. 4.1(a).

      On August 15, 2018, appellant requested a ruling from the trial court on her

TCPA motion to dismiss. On August 21, 2018, the trial court issued an order that,

among other things, dismissed appellant’s request for ruling as moot because the

motion had been denied by operation of law. This portion of the order provides:

            2. Defendant Carmen Montiel’s Request for a Ruling is moot.
            While the timeline of abatement, filing of motions and hearing
            dates is confusing in the statute and in this case; by any measure,
            the time allowed for the Court to enter an Order as to Defendant
            Montiel has lapsed and therefore Defendant Carmen Montiel’s
            Motion to Dismiss is denied by operation of law.

      Appellant filed her notice of appeal on August 28, 2018—90 days after her

TCPA motion was denied by operation of law.

      Appellee filed a motion to dismiss the appeal for lack of jurisdiction, asserting

that the notice of appeal was untimely filed more than 20 days after the appellant’s

TCPA motion was denied by operation of law. Appellant filed a response asserting

two arguments. We examine both below.



                                          3
      First, appellant generally asserts that there is “confusion” as to the effect the

automatic abatement provisions of the Defamation Mitigation Act (the “DMA”)

have on a TCPA motion to dismiss and the deadlines governing such motions. See

TEX. CIV. PRAC. & REM. CODE § 73.062. But appellant fails to argue any

interpretation or application of the statutes, much less demonstrate how such an

interpretation or application would make her notice of appeal timely when applied

to the facts of this case. Presumably, appellant is attempting to assert that her notice

of appeal was timely because there may be some application of the DMA’s

abatement provisions that prevented her TCPA motion to dismiss from being denied

by operation of law on May 6, 2018. Appellant asserts that confusion regarding the

effect of the DMA’s abatement provisions on timelines governing TCPA motions is

evident in the trial court’s order, quoting the order as stating:

             2. Defendant Carmen Montiel’s Request for a Ruling is moot.
             While the timeline of abatement, filing of motions and hearing
             dates is confusing in the statute and in this case; . . .
But appellant fails to address—and her partial quote of the order omits—the trial

court’s conclusion that “by any measure, the time allowed for the Court to enter an

Order as to Defendant Montiel has lapsed and therefore Defendant Carmen

Montiel’s Motion to Dismiss is denied by operation of law.” Accordingly,

appellant’s general assertions that the DMA may affect timelines regarding TCPA

motions fail to demonstrate that her notice of appeal was timely.


                                            4
      Second, appellant argues that we should consider her TCPA motion to have

been denied by the trial court’s August 23, 2018 order rather than by operation of

law on May 6, 2018. Appellant asserts that we should apply the later date because

“[r]egardless of whether [her] motion to dismiss was overruled by operation of law,

any order on her TCPA motion was unquestionably interlocutory” and the trial court

“should continue to possess plenary power to alter, modify, or grant, an order it

previously issued – even one which is made by operation of law.” Based on this

reasoning, appellant argues that “the trial court erred when it found [her] motion to

dismiss had been overruled by operation of law on August 23, 2018” and “effectively

denied her motion as of that date making [her] notice of appeal (filed on August 28,

2018) timely.” We disagree.

      As appellant concedes, cases have held that trial courts lack authority to grant

a motion to dismiss under the TCPA more than 30 days after the hearing on the

motion. See, e.g., Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, 407

S.W.3d 398, 401 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding that

legislature’s mandatory 30-day deadline for trial court to rule on motion after hearing

“would be meaningless if the trial court, acting sua sponte, could reverse the

consequences imposed by statute for the failure to timely act”); Dal. Morning News,

Inc. v. Mapp, No. 05-14-00848-CV, 2015 WL 3932868, at *3 (Tex. App.—Dallas

June 26, 2015, no pet.) (mem. op.) (holding that “trial court is without authority to


                                          5
grant a motion to dismiss under the [TCPA] more than thirty days after the hearing”);

see also Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 500

S.W.3d 26, 44–45 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (noting that

trial court’s grant of TCPA motion outside of 30-day period following hearing was

subject to challenge) (citing Beacon Hill Estates, 407 S.W.3d at 401). Appellant

merely disagrees with the caselaw on this issue without offering any contrary

authority.

      Further, because appellant’s TCPA motion had already been denied by

operation of law, her subsequent request for a ruling granting the motion was

essentially a request for reconsideration of the denial. Appellant’s argument appears

to be that the trial court should have reconsidered the denial by operation of law and

that it erred in declining to do so in its August 23, 2018 order. Even assuming

appellant’s argument that the trial court has the power to reconsider the denial of the

TCPA motion by operation of law, the time for filing a notice of appeal runs from

the date the motion was denied, not the later denial of a motion for reconsideration.

See City of Hous. v. Estate of Jones, 388 S.W.3d 663, 667 (Tex. 2012) (“[a]llowing

interlocutory appeals whenever a trial court refuses to change its mind . . . would

invite successive appeals and undermine the statute’s purpose of promoting judicial

economy.”); Pitts v. Bank of N.Y. Mellon Trust Co., No. 05-17-00115-CV, 2017 WL

474468, at *1 (Tex. App.—Dallas Feb. 6, 2017, no pet.) (mem. op.) (“Here, the


                                          6
deadline to appeal ran from the date the trial court denied the temporary injunction,

not from the denial of the motion for reconsideration.”). “Permitting appeals under

circumstances such as these would effectively eliminate the requirement that appeals

from interlocutory orders must be filed within twenty days after the challenged order

is signed . . . , [which] would work against the main purpose of the interlocutory

appeal statute, which is to increase efficiency of the judicial process.” Estate of

Jones, 388 S.W.3d at 667. “[T]he language of rule 26.1(b) is clear and contains no

exceptions to the twenty-day deadline.” In re K.A.F., 160 S.W.3d 923, 925 (Tex.

2005).

      The time to file a notice of appeal from the denial of a TCPA motion cannot

be based on the subsequent denial of reconsideration because the applicable statutes

only authorize an interlocutory appeal from the denial of a TCPA motion. See TEX.

CIV. PRAC. & REM. CODE §§ 27.008(a) (“If a court does not rule on a motion to

dismiss under Section 27.003 in the time prescribed by Section 27.005, the motion

is considered to have been denied by operation of law and the moving party may

appeal.”); 51.014(a)(12) (authorizing appeal from interlocutory order that “denies a

motion to dismiss filed under Section 27.003”). An order denying a motion to

reconsider is not an appealable interlocutory order. See Digges v. Knowledge

Alliance, Inc., 176 S.W.3d 463, 464 (Tex. App.—Houston [1st Dist.] 2004, no pet.)

(holding that interlocutory order denying motion to reconsider is not independently


                                         7
appealable); CTL/Thompson Tex., LLC v. Morrison Homes, 337 S.W.3d 437, 443

(Tex. App.—Fort Worth 2011, pet. denied) (“[N]o statute exists giving us

interlocutory jurisdiction over an order denying a motion to reconsider.”); State

Office of Risk Mgmt. v. Berdan, 335 S.W.3d 421, 428 (Tex. App.—Corpus Christi

2011, pet. denied) (“The order denying [appellant’s] motion to reconsider and

motion for new trial was not independently appealable so as to start a new timetable

for perfecting the appeal.”); Denton Cnty. v. Huther, 43 S.W.3d 665, 667 (Tex.

App.—Fort Worth 2001, no pet.) (holding that order denying motion to reconsider

was not distinct appealable interlocutory order with separate timetable for appeal).

      Accordingly, appellant’s notice of appeal was untimely because it was filed

more than 20 days after her TCPA motion was denied by operation of law on May

6, 2018.

                                     Conclusion

      Because appellant did not timely file her notice of appeal, this Court lacks

jurisdiction over this appeal. See TEX. R. APP. P. 25.1(b); Clewis v. Harris Cnty., No.

14-15-00424-CV, 2015 WL 5935825, at *1 (Tex. App.—Houston [14th] Oct. 13,

2015, pet. denied) (mem. op.) (dismissing interlocutory appeal for want of

jurisdiction because notice of appeal untimely filed more than 20 days after TCPA

motion to dismiss was denied by operation of law).




                                          8
      Accordingly, we grant appellee’s motion and dismiss this appeal for want of

jurisdiction.

                                PER CURIAM

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.




                                       9
