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In re Herbert

Court of Appeals of Texas, Fifth District, Dallas

September 19, 2019

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.

          Before Justices Whitehill, Partida-Kipness, and Pedersen, III.

          MEMORANDUM OPINION

          BILL WHITEHILL, JUSTICE.

         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 ...

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