Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
NO. D-1-GN-16-004307, HONORABLE ORLINDA NARANJO, JUDGE
Justices Pemberton, Field, and Bourland.
Mark Pulliam and Jay Wiley filed a notice of appeal from an
order signed by the trial court on February 7, 2017, granting
a motion to dismiss filed by appellee Austin Firefighters
Association, Local 975 (AFA) pursuant to the Texas Citizens
Participation Act (TCPA). See Tex. Civ. Prac. &
Rem. Code §§ 27.003, .005. Appellant the State of
Texas separately filed a notice of appeal from the same
order, challenging the February 7 order to the extent it also
operates as a denial of the State's plea to the
jurisdiction. Appellee AFA and appellants Pulliam and Wiley
have now filed an agreed motion to abate, asking that we
abate Pulliam and Wiley's appeal until a final,
appealable order is signed by the trial court. We decline to
do so and instead dismiss Pulliam and Wiley's appeal
without prejudice to refiling.
appellate courts have jurisdiction only over appeals from
final judgments and orders. Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is
final for purposes of appeal if it disposes of all pending
parties and claims. Id. This Court has jurisdiction
to review interlocutory orders only when explicitly
authorized by statute. See Tex. Civ. Prac. &
Rem. Code §§ 51.012, .014. Because they present a
narrow exception to the general rule that interlocutory
orders are not immediately appealable, statutes permitting
interlocutory appeals are strictly applied. CMH Homes v.
Perez, 340 S.W.3d 444, 447 (Tex. 2011).
Texas Civil Practice and Remedies Code provides for an
interlocutory appeal of a denial of a plea to the
jurisdiction, such as the appeal brought by the State of
Texas in this case. See Tex. Civ. Prac. & Rem.
Code § 51.014(a)(8) (providing for interlocutory appeal
of order granting or denying plea to jurisdiction by
governmental unit). Chapter 27 of the Code also provides for
an interlocutory appeal of an order that "denies a
motion to dismiss filed under Section 27.003 [of the
TCPA]." Id. § 51.014(a)(12). In addition,
under section 27.008(b) of the Code, appellate courts must
expedite an appeal or other writ from a trial court order on
a motion to dismiss under the TCPA or from a trial
court's failure to rule on that motion within the time
allowed under the TCPA, "whether interlocutory or
not." Id. § 27.008(b). No statute,
however, expressly provides for an interlocutory appeal of an
order granting a motion to dismiss under the TCPA. See
Trane US, Inc. v. Sublett, 501 S.W.3d 783, 786 (Tex.
App.-Amarillo 2016, no pet.); Fleming & Assocs. v.
Kirklin, 479 S.W.3d 458, 460-61 (Tex. App.-Houston [14th
Dist.] 2015, pet. denied); Schlumberger Ltd. v.
Rutherford, 472 S.W.3d 881, 887 (Tex. App.-Houston [1st
Dist.] 2015, no pet.); see also Flynn v. Gorman, No.
02-16-00131-CV, 2016 WL 4699198, at * 1 (Tex. App.-Fort Worth
Sept. 8, 2016, no pet.) (mem. op.).
to the movants, no final judgment has been signed by the
trial court, and claims currently remain pending in the
underlying case. Because we do not have jurisdiction to
consider the merits of the trial court's interlocutory
decision to grant the AFA's motion to dismiss pursuant to
the TCPA, we dismiss Pulliam and Wiley's appeal without
prejudice to refiling once the trial court renders a final,
 This suit was originally brought
against Marc A. Ott, the former City Manager for the City of
Austin. We automatically substitute the name of the interim
successor to this office, Elaine Hart. See Tex. R.
App. P. 7.2.
 Under the appellate rules, this Court
may abate a case to allow "an order that is not final to
be made final and may allow the modified order and all
proceedings relating to it to be included in a supplemental
record." Tex.R.App.P. 27.2. Because the trial court
proceedings are currently stayed pending resolution of the
State of Texas's interlocutory appeal, see Tex.
Civ. Prac. & Rem. Code § 51.014(b), and because our
resolution of the State's appeal would not, in and of
itself, result in a final, appealable judgment, we decline to
abate this appeal. We deny the motion to abate. Pulliam and
Wiley may file a separate notice of appeal when the trial
court signs a final judgment or appealable order in the case
and, upon proper motion, may request that the Clerk of the
Court transfer any or all of the appellate record filed in
this case to the new cause number. See Tex. R. App.
P. 26.1 (time to perfect civil appeal calculated from date