       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                     NO. 03-18-00650-CV



Alex E. Jones; Infowars, LLC; Free Speech Systems, LLC; and Owen Shroyer, Appellants

                                                v.

                                     Neil Heslin, Appellee




              FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY
    NO. D-1-GN-18-001835, THE HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                                         OPINION


               Appellants Alex E. Jones; Infowars, LLC; Free Speech Systems, LLC; and Owen

Shroyer seek to appeal what they assert is a denial by operation of law of their motion to dismiss

the claims asserted against them by Appellee Neil Heslin. Because we determine there is no

order from which to appeal, we dismiss the appeal for want of jurisdiction.


                                       BACKGROUND

               Heslin’s son was killed in the Sandy Hook Elementary School shooting in

December 2012.     Heslin sued Appellants for defamation and defamation per se related to

Appellants’ statements disputing Heslin’s statement, “I lost my son. I buried my son. I held my

son with a bullet hole through his head.” On July 13, 2018, Appellants filed a motion to dismiss

Heslin’s claims under the Texas Citizens Participation Act (TCPA). In August 2018, Heslin
filed a “Motion for Sanctions for Intentional Destruction of Evidence” and a motion for

expedited discovery. Heslin also responded to the motion to dismiss. On August 30, 2018, the

district court held a hearing to consider the pending motions.         At that hearing, the court

determined that it would grant limited discovery relevant to the motion to dismiss. See Tex. Civ.

Prac. & Rem. Code § 27.006(b). The following day, the court signed the order granting the

motion for expedited discovery. That order states:



       As authorized by Tex. Civ. Prac. & Rem. Code Sec. 27.004, the court will
       “extend the hearing date to allow discovery.” Oral hearing on Defendants’
       Motion to Dismiss under the Texas Citizen’s Participation Act is recessed and
       extended until November 1, 2018, which is less than 120 days after the service of
       the motion under Tex. Civ. Prac. & Rem. Code Sec. 27.003.


Appellants’ responses to Heslin’s discovery were due on October 1, 2018, but Appellants did not

respond. On October 2, Heslin filed a motion for contempt. That same day, Appellants, taking

the position that their motion to dismiss had been overruled by operation of law, filed a notice of

appeal. See id. § 27.008(a) (providing for denial by operation of law if a trial court does not rule

within the time limits prescribed by the TCPA). Although the district court set an extended

hearing on the motion to dismiss for November 1, 2018, that hearing could not proceed while

this appeal was pending. See id. 51.014(b) (providing that an interlocutory appeal of a denial of

a TCPA motion to dismiss “stays all other proceedings in the trial court pending resolution of

that appeal”).


                                          DISCUSSION

                 The parties present several arguments relating to the merits of Appellants’ motion

to dismiss. However, the threshold question of whether Appellants’ motion to dismiss was


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overruled by operation of law is dispositive of this interlocutory appeal. We therefore address

only that issue. See Tex. R. App. P. 47.1 (requiring an “opinion that is as brief as practicable”

that addresses issues “necessary to final disposition of the appeal”).

               The TCPA generally provides that a motion to dismiss is overruled by operation

of law if the trial court does not rule on the motion within 30 days following the date of the

hearing on the motion, Tex. Civ. Prac. & Rem. Code §§ 27.005(a), .008(c), but the Act also

allows the district court to “extend the hearing date to allow discovery,” so long as the hearing

occurs no more than “120 days after the service of the [TCPA motion to dismiss],” id.

§ 27.004(c). Prior to section 27.004(c)’s enactment, the Dallas Court of Appeals considered a

case in which the trial court began a hearing on a TCPA motion to dismiss and in the course of

the hearing determined that the nonmovant was entitled to discovery. Avila v. Larrea, 394

S.W.3d 646, 652-53, 656 (Tex. App.—Dallas 2012, pet. denied). The Dallas court determined

that the statute provided no mechanism for extending the 30-day limit to rule on the motion once

the trial court commenced a hearing on the motion to dismiss, even if the trial court granted

discovery. Id. However, “the Legislature amended the TCPA after the Dallas Court decided

Avila, thereby allowing trial courts to grant continuances so that parties could conduct limited

discovery on issues raised by motions to dismiss under the TCPA.” Fairlawn Assets LLC v.

Booker, No. 09-19-00208-CV, 2019 Tex. App. LEXIS 6384, at *3 (Tex. App.—Beaumont

July 25, 2019, no pet. h.) (mem. op.); see Act of May 24, 2013, 83d Leg., R.S., ch. 1042, § 1,

sec. 27.004(c), 2013 Tex. Gen. Laws 2501, 2501 (current version at Tex. Civ. Prac. & Rem.

Code Ann. § 27.004(c)). We conclude that section 27.004(c)’s language allowing the trial court

to “extend the hearing date” permitted the district court in this case to recess the hearing for the

purpose of allowing discovery and to resume that hearing at any point within 120 days from “the

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service of the motion [to dismiss].” Tex. Civ. Prac. & Rem. Code Ann. § 27.004(c). Thus, the

30-day timeline for ruling on the motion would have been reset in accordance with the extended

hearing date. See In re Bandin, 556 S.W.3d 891, 895 (Tex. App.—Houston [14th Dist.] 2018,

orig. proceeding) (Busby, J., concurring) (noting, in a case where the trial court held a hearing on

a motion to dismiss, then ordered discovery, that “the trial court could also choose to ‘extend the

hearing date’ under section 27.004(c) to allow completion of the ordered discovery and then hold

a new hearing with the benefit of that discovery”). As a result, the motion to dismiss was not

overruled by operation of law, but instead remained pending in the district court when

Appellants filed the notice of appeal, which stayed the district court’s proceedings. See Tex.

Civ. Prac. & Rem. Code § 51.014(b). Because the motion remained pending in the district court,

there is no order that could support an interlocutory appeal, and we must dismiss this appeal. See

id. § 51.014(a)(12) (allowing interlocutory appeal from a denial of a motion to dismiss under the

TCPA).


                                          CONCLUSION

               We agree with Heslin that the district court has not yet ruled on Appellants’

motion to dismiss, nor has the motion been overruled by operation of law. Accordingly, we

dismiss the appeal for lack of jurisdiction.



                                               __________________________________________
                                               Gisela D. Triana, Justice

Before Chief Justice Rose, Justices Triana and Kelly

Dismissed for Want of Jurisdiction

Filed: August 30, 2019

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