Court of Appeals of Texas, Third District, Austin
Alex E. Jones; Infowars, LLC; Free Speech Systems, LLC; and Owen Shroyer, Appellants
Neil Heslin, Appellee
THE 261ST DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-18-001835, THE HONORABLE SCOTT H. JENKINS, JUDGE
Chief Justice Rose, Justices Triana and Kelly
D. TRIANA, JUSTICE
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.
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
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.
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").
parties present several arguments relating to the merits of
Appellants' motion to dismiss. However, the threshold
question of whether Appellants' motion to dismiss was
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").
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 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).
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. ...