Court of Appeals of Texas, Fifth District, Dallas
Original Proceeding from the County Court at Law No. 1 Dallas
County, Texas Trial Court Cause No. CC-18-04644-A.
Justices Whitehill, Partida-Kipness, and Pedersen, III.
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.
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.
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 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
filed a motion to dismiss Krummel's counterclaims under
the Texas Citizens Participation Act. See Tex. Civ.
Prac. & Rem. Code §§
27.001–.011. The record shows that relator served his
TCPA dismissal motion on June 22, 2019, and filed it on June
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 ...