Court of Appeals of Texas, Sixth District, Texarkana
Submitted: August 1, 2019
Appeal from the 123rd District Court Panola County, Texas
Trial Court No. 2018-232
Morriss, C.J., Burgess and Stevens, JJ.
case, RPM Services filed a notice of appeal that it was
appealing from the trial court's denial by operation of
law of its motion to dismiss filed pursuant to the Texas
Citizen's Participation Act (the TCPA). We dismiss this
appeal because we find we do not have jurisdiction over this
Services filed its original petition against Maribel Mata
Santana, Jose Leonel Mata, Jr., and Jose Leonel Mata
(Appellees) seeking to recover certain mobile homes and
damages. In response, Appellees filed a counterclaim against
RPM Services claiming a possessory lien on the mobile homes
and seeking rent due on the mobile homes. RPM Services filed
a motion to dismiss seeking to dismiss Appellees'
counterclaim under the TCPA on October 29, 2018. In its
notice of appeal and its brief in this Court, RPM Services
asserts that a hearing on its motion to dismiss
"transpired" on February 25, 2019. However,
Appellees' brief in this Court asserts that a telephonic
conference was held on February 25, 2019,  but that the
merits of the motion to dismiss were not discussed and that
the parties waived a transcript of the hearing.
jurisdiction, as an appellate court, is constitutional and
statutory in nature. See Tex. Const. art. V, §
6; Tex. Gov't Code Ann. § 22.220 (Supp.). Unless we
are granted specific authority over an appeal from a
particular type of order, we have jurisdiction only over
appeals from final judgments. Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001). We do not have
jurisdiction to hear appeals from interlocutory orders unless
a statute expressly provides such jurisdiction. Tex. A
& M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840
the TCPA, the trial court must rule on a motion to dismiss
"not later than the 30th day following the date of the
hearing on the motion." Tex. Civ. Prac. & Rem. Code
Ann. § 27.005(a). If the trial court does not rule on
the motion "in the time prescribed by Section
27.005," it is considered denied by operation of law.
Tex. Civ. Prac. & Rem. Code Ann. §§ 27.005(a),
27.008(a). Thus, under the TCPA the thirty-day deadline for
the trial court to either expressly rule or have the motion
considered denied by operation of law is only triggered by a
hearing on the motion to dismiss. Wightman-Cervantes v.
Hernandez, No. 02-17-00155-CV, 2018 WL 798163, at *3
(Tex. App.-Fort Worth Feb. 9, 2018, pet. denied) (mem. op.);
Braun v. Gordon, No. 05-17-00176-CV, 2017 WL
4250235, at *1 (Tex. App.-Dallas Sept. 26, 2017, no pet.)
jurisdiction over an interlocutory appeal from a denial of a
motion to dismiss filed under the TCPA. Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(a)(12) (Supp.). This may occur
when the trial court enters an order denying the motion to
dismiss or by operation of law if no order is entered within
thirty days of the hearing on the motion to dismiss.
Braun, 2017 WL 4250235, at *2. However, we do not
have jurisdiction to hear an interlocutory appeal under the
TCPA when there has been neither a hearing on the motion to
dismiss, nor an express order dismissing the motion.
Id. at *2, *4.
18, 2019, we notified the parties that we would dismiss this
appeal for lack of jurisdiction unless any party
demonstrated, by August 2, 2019, that we had jurisdiction
over this appeal. We granted RPM Services' request for an
extension of time to respond until August 23, 2019. RPM
Services timely filed a supplemental clerk's record that
indicated it requested a hearing on its motion to dismiss.
However, nothing in that record indicated that a hearing on
the motion to dismiss was set or that there was a substantive
hearing on the motion to dismiss.
no hearing was held on RPM Services' motion to dismiss,
the time under Section 27.005(a) for the trial court to rule
on the motion has not begun. Consequently, the motion cannot
have been denied by operation of law.
Wightman-Cervantes, 2018 WL 798163, at *3;
Braun, 2017 WL 4250235, at *2. Since there has been
no express order denying RPM Services' motion to dismiss,
and since the motion has not been denied by operation of law,
there is no order from which RPM Services may appeal, and we
lack jurisdiction over this appeal.
we dismiss this appeal for want of jurisdiction.