GRANT and Opinion Filed September 19, 2019




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-19-01126-CV

                            IN RE AARON HERBERT, RELATOR

                  Original Proceeding from the County Court at Law No. 1
                                   Dallas County, Texas
                           Trial Court Cause No. CC-18-04644-A


                              MEMORANDUM OPINION
                   Before Justices Whitehill, Partida-Kipness, and Pedersen, III
                                   Opinion by Justice Whitehill

       The Texas Citizens Participation Act permits a defendant to file a motion to dismiss in

certain specified cases, and it requires the trial court to hear that motion within specific and

relatively short deadlines. The movant has a statutory right to an interlocutory appeal from a trial

court order denying a TCPA motion—if the trial court holds that hearing and either affirmatively

denies the motion or allows it to be denied by operation of law by not timely ruling on it. But,

courts of appeals lack jurisdiction over an appeal involving that motion if the trial court refuses to

hold a timely hearing despite the movant’s reasonable requests to the trial court for that hearing.

       This mandamus proceeding presents the question whether the trial court has the discretion

to deny a TCPA movant’s reasonable requests for a timely hearing and set the motion for hearing

after the last possible date that the TCPA permits. We hold that the trial court lacks such discretion
because the TCPA requires the trial court to hold a timely hearing when the movant acts with

reasonable diligence to obtain such a hearing. We further hold that the TCPA movant in this

situation lacks an adequate remedy by appeal because he forfeits TCPA relief, including a right to

an interlocutory appeal, if a timely hearing is not held.

            Because the mandamus record establishes that relator Aaron Herbert acted with reasonable

diligence to obtain a timely hearing of his TCPA dismissal motion and the trial court has refused

to schedule a timely hearing on that motion, we grant mandamus relief and order the trial court to

hold a timely hearing of Herbert’s motion.

                                                                   I. FACTS

            Relator Herbert is a plaintiff in the trial court. Real party in interest Kasey Krummel, a

defendant in the trial court, filed defamation and invasion of privacy counterclaims against relator.

            Relator filed a motion to dismiss Krummel’s counterclaims under the Texas Citizens

Participation Act. See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011.1 The record shows that

relator served his TCPA dismissal motion on June 22, 2019, and filed it on June 24, 2019.

            On July 19, 2019, relator filed a letter requesting a hearing and advising that the TCPA

required the dismissal motion to be heard within sixty days after service (August 21, 2019), or

within ninety days (September 20, 2019) if docket conditions required an extension. The letter

further stated that the trial court’s staff had told relator three things:

            •          “The court wants parties to mediate before setting a motion to dismiss on
                       Anti-SLAPP grounds.”

            •          “This court only sets hearings on dispositive motions on Fridays.”

            •          “The court is experiencing crowded dockets, such as [sic] the earliest date
                       is October 18, 2019.”

The letter requested an earlier date than October 18, 2019, given the statutory deadlines.


    1
        The case was filed before the effective date of the 2019 amendments to the TCPA, so all citations are to the prior version of the statute.

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       On August 22, 2019, relator filed a motion for emergency hearing on his dismissal motion.

Relator’s motion explained that the TCPA required his motion to be heard within ninety days after

service because the court’s docket would not permit a hearing within sixty days after service.

       On August 23, 2019, relator filed a letter with the trial court. The letter recounted that

relator’s counsel had personally appeared in the trial court’s courtroom on August 22 to explain

the situation and attempt to secure a timely hearing. The letter again argued that relator needed

the trial court to set his motion for hearing within the ninety-day deadline and take judicial notice

that crowded docket conditions prevented the sixty-day deadline from being met.

       On September 16, 2019, relator filed its mandamus petition and emergency motion for

relief in this Court. On September 17, 2019, we requested real party in interest and respondent to

file their responses to the petition and motion, if any, by noon on September 18, 2019.

       Real party in interest timely filed a response opposing the mandamus petition.

                                          II. ANALYSIS

A.     Applicable Law

       TCPA dismissal motions must be heard and resolved on an expedited basis. The hearing

generally must be held within sixty days after the motion is served. Id. § 27.004(a). The deadline

can be extended to ninety days if the court’s docket conditions require it, good cause exists, or the

parties agree to an extension. Id. § 27.004(a), (b). The deadline can be extended to 120 days if

the trial court allows discovery, but that is the maximum extension permitted. Id. § 27.004(c).

       Once a TCPA motion is heard, the trial court must rule on it within thirty days or the motion

is denied by operation of law. Id. §§ 27.005(b), 27.008(a).

       We have held that a TCPA movant forfeits the motion if it fails to get a timely hearing of

its motion. Braun v. Gordon, No. 05-17-00176-CV, 2017 WL 4250235, at *3 (Tex. App.—Dallas

Sept. 26, 2017, no pet.) (mem. op.); see also Wightman-Cervantes v. Hernandez, No. 02-17-00155-


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CV, 2018 WL 798163, at *1 (Tex. App.—Fort Worth Feb. 9, 2018, pet. denied) (mem. op.) (a

TCPA motion is not overruled by operation of law, and no interlocutory appeal is permitted, if no

hearing is held); accord RPM Servs. v. Santana, No. 06-19-00035-CV, 2019 WL 4064576, at *1–

2 (Tex. App.—Texarkana Aug. 29, 2019, no pet. h.) (mem. op.).

       The standard on mandamus is whether relator has shown a clear abuse of discretion and

the lack of an adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–

36 (Tex. 2004).

B.     Does the trial court have discretion to deny a TCPA movant’s reasonably diligent
       requests for a timely hearing?

       No, the statute requires the trial court to give a TCPA movant a timely hearing if the movant

acts with reasonable diligence to obtain a hearing.

       A trial court generally has a reasonable time within which to consider and rule on a motion.

In re Buholtz, No. 05-16-01312-CV, 2017 WL 462361, at *1 (Tex. App.—Dallas Jan. 31, 2017,

orig. proceeding) (mem. op.). The circumstances of the case determine whether the court has acted

within a reasonable time. See id. As explained above, the TCPA presents special circumstances

by requiring TCPA motions to be heard within strict deadlines, subject to limited extensions.

       Because the TCPA imposes strict deadlines on the hearing of a dismissal motion, and

because a party forfeits its dismissal motion if the deadline runs before a hearing can be held, the

trial court has less discretion to defer hearing a TCPA motion to dismiss. We conclude that the

trial court must set a TCPA motion to dismiss for hearing within the applicable statutory deadline

(sixty, ninety, or 120 days after service of the motion, depending on the circumstances) if the

movant makes reasonable efforts to obtain a timely hearing. Further, we conclude that the record

establishes that the ninety-day deadline applies in this case, based on the trial court’s docket

conditions, and relator made reasonable efforts to obtain a timely hearing. Thus, we conclude that



                                                –4–
the trial court clearly abused its discretion by not setting and conducting a hearing on relator’s

TCPA motion within the ninety-day deadline.

       Moreover, we conclude that relator has no adequate remedy by appeal. A main purpose of

the TCPA is to achieve the expeditious dismissal of unmeritorious cases that come within its

purview. See In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding) (noting that TCPA

creates “a special procedure for the expedited dismissal” of covered suits). If we do not correct

the trial court’s error now, relator’s dismissal motion will be forfeited, at least for purposes of the

TCPA’s expedited dismissal procedure and accompanying interlocutory appellate remedy. See

CIV. PRAC. § 51.014(a)(12) (allowing interlocutory appeal from order denying TCPA dismissal

motion); see also Braun, 2017 WL 4250235, at *3 (defendant forfeits TCPA’s protections if it

doesn’t timely file its motion “and obtain a hearing”). For these reasons, this is a case in which

mandamus review is “essential to preserve important substantive and procedural rights from

impairment or loss.” In re Prudential Ins. Co., 148 S.W.3d at 136. Accordingly, we conclude that

relator lacks an adequate remedy by appeal. Cf. Braun, 2017 WL 4250235, at *3 n.4 (noting that

appeal did not present question of whether a movant would be entitled to mandamus relief if trial

court refused to set a timely hearing).

                                          III. CONCLUSION

       We grant relator’s petition for writ of mandamus and order that a writ of mandamus issue

instanter requiring the trial court to set relator’s TCPA dismissal motion for hearing no later than

Friday, September 20, 2019.




                                                    /Bill Whitehill/
                                                    BILL WHITEHILL
191126F.P05                                         JUSTICE


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