CONDITIONALLY GRANT; and Opinion Filed May 24, 2019.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00571-CV
IN RE MIKE HARTLEY AND JANIE HARTLEY, Relators
Original Proceeding from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-02863
MEMORANDUM OPINION Before Justices Brown, Schenck, and Reichek Opinion by Justice Brown The issue before the Court in this original proceeding is whether a trial court has the
statutory authority to grant a new trial on a Texas Citizens Participation Act (“TCPA”) motion to
dismiss more than thirty days after the hearing on the motion. Applying this Court’s precedent,
we conclude the answer is no, and we conditionally grant the writ of mandamus.
Background
The underlying proceeding was initiated by Radix Realty, LLC against relators Janie and
Mike Hartley (“the Hartleys”). Real party in interest Praveen Panchakarla intervened and later
joined in an amended petition. The Hartleys filed a motion to dismiss under the TCPA, and the
trial court heard the TCPA motion on February 18, 2019. On February 22, 2019, the trial court
signed an order granting the TCPA motion and dismissing the claims asserted against the Hartleys.
Panchakarla filed a motion for reconsideration and for new trial on March 22, 2019. On May 6, 2019, the trial court signed an order vacating the February 22 order and denying the Hartleys’
TCPA motion.
In this original proceeding, the Hartleys contend the May 6 order is void because the TCPA
prohibits a trial court from ruling on a TCPA motion to dismiss more than thirty days after the trial
court hears the TCPA motion. This Court requested a response to the petition for writ of
mandamus from Panchakarla and respondent. Panchakarla filed a response. After reviewing the
petition, the response, and the mandamus record, we conclude the trial court was without authority
to deny the TCPA motion outside the time allowed by statute. As such, the May 6 order is void,
and the Hartleys are entitled to the relief requested.
Availability of Mandamus Relief
An interlocutory appeal is permitted from the denial of a TCPA motion to dismiss. TEX.
CIV. PRAC. & REM. CODE ANN. 51.014(a)(12). The Hartleys have filed an interlocutory appeal
challenging the merits of the May 6 order. That interlocutory appeal is pending in this Court and
docketed as cause number 05-19-00565-CV.
Mandamus generally issues to correct a clear abuse of discretion or the violation of a duty
imposed by law when there is no other adequate remedy at law. In re Prudential Ins. Co., 148
S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Mandamus is also proper, however, if a trial
court issues an order beyond its jurisdiction because such an order is void. In re Sw. Bell Tel. Co.,
35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding). For example, mandamus is appropriate when
a trial court issues an order after its plenary power has expired. In re Daredia, 317 S.W.3d 247,
250 (Tex. 2010) (orig. proceeding) (per curiam); In re Brookshire Grocery Co., 250 S.W.3d 66,
68–69 (Tex. 2008) (orig. proceeding). When an order is void, the relator need not show he lacks
an adequate appellate remedy to obtain mandamus relief. In re Sw. Bell Tel. Co., 35 S.W.3d at
605.
–2– As our sister court has aptly noted, the TCPA “is directed toward the expeditious dismissal
and appeal of suits that are brought to punish or prevent the exercise of certain constitutional
rights.” Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, 407 S.W.3d 398, 401 (Tex.
App.—Houston [14th Dist.] 2013, no pet.). To effectuate that purpose, we conclude it is
appropriate to address the trial court’s statutory authority to enter the May 6 order through this
original proceeding rather than as a part of the interlocutory appeal.
Applicable Law
A trial court must rule on a TCPA motion to dismiss not later than the 30th day following
the date of the hearing. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(a); see Avila v. Larrea, 394
S.W.3d 646, 656 (Tex. App.—Dallas 2012, pet. denied) (statute requires that the court rule on the
motion within thirty days of hearing and either dismiss the action or not). If the trial court does
not rule on the motion within the time prescribed, the motion is considered denied by operation of
law. TEX. CIV. PRAC. & REM. CODE ANN. § 27.008(a); see also Dallas Morning News v. Mapp,
No. 05-14-00848-CV, 2015 WL 3932868, at *3 (Tex. App.—Dallas June 26, 2015, no pet.) (mem.
op.).
This Court held in Mapp that a trial court’s written order signed forty-one days after the
hearing came too late and was void. Mapp, 2015 WL 3932868, at *3. In Mapp, a TCPA motion
to dismiss was denied by operation of law and an interlocutory appeal was perfected before the
trial court granted the TCPA motion. Id. at *1. This Court rejected the argument that rule 29.5 of
the appellate rules permitted the trial court to belatedly rule on the TCPA motion during the
interlocutory appeal of the denial of the motion by operation of law. Id. at *3. Rule 29.5 provides:
While an appeal from an interlocutory order is pending, the trial court retains jurisdiction of the case and unless prohibited by statute may make further orders, including one dissolving the order complained of on appeal.
–3– TEX. R. APP. P. 29.5 (emphasis added). This Court concluded that the trial judge’s act of signing
an order more than thirty days after the hearing was “an act prohibited by statute” and, as such,
Rule 29.5 was not applicable. We concluded the order was void and “the controlling ruling is the
denial of the motion by operation of law.” Mapp, 2015 WL 3932868, at *3.
This Court has followed Mapp twice, concluding in each case that a trial court lacks
statutory authority to rule on a TCPA motion to dismiss more than thirty days after the hearing on
the motion. See Dobrott v. Jevin, Inc., No. 05-17-01472-CV, 2018 WL 6273411, at *1 (Tex.
App.—Dallas Nov. 30, 2018, no pet.) (mem. op.) (“We conclude that, based on our existing
precedent, the trial court had no authority to grant the TCPA motion to dismiss outside the time
allowed by statute.”); see also Kim v. Manchac, No. 05-17-00406-CV, 2018 WL 564004, at *1
(Tex. App.—Dallas Jan. 26, 2018, no pet.) (mem. op.) (citing Mapp and reversing dismissal order
issued forty-two days after hearing on TCPA motion).
In reaching its decision in Mapp, this Court agreed with and applied the reasoning of the
Fourteenth Court in Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, 407 S.W.3d
398 (Tex. App.—Houston [14th Dist.] 2013, no pet.). In Direct Commercial Funding, the trial
court signed an order granting the defamation defendant’s motion to dismiss six weeks after the
motion was denied by operation of law. Id. at 401–02. After considering the plain language of
the statute and its purpose, the Fourteenth Court concluded a trial court is not authorized to grant
a motion to dismiss under the TCPA more than thirty days after the hearing on the motion. Id.
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CONDITIONALLY GRANT; and Opinion Filed May 24, 2019.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00571-CV
IN RE MIKE HARTLEY AND JANIE HARTLEY, Relators
Original Proceeding from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-02863
MEMORANDUM OPINION Before Justices Brown, Schenck, and Reichek Opinion by Justice Brown The issue before the Court in this original proceeding is whether a trial court has the
statutory authority to grant a new trial on a Texas Citizens Participation Act (“TCPA”) motion to
dismiss more than thirty days after the hearing on the motion. Applying this Court’s precedent,
we conclude the answer is no, and we conditionally grant the writ of mandamus.
Background
The underlying proceeding was initiated by Radix Realty, LLC against relators Janie and
Mike Hartley (“the Hartleys”). Real party in interest Praveen Panchakarla intervened and later
joined in an amended petition. The Hartleys filed a motion to dismiss under the TCPA, and the
trial court heard the TCPA motion on February 18, 2019. On February 22, 2019, the trial court
signed an order granting the TCPA motion and dismissing the claims asserted against the Hartleys.
Panchakarla filed a motion for reconsideration and for new trial on March 22, 2019. On May 6, 2019, the trial court signed an order vacating the February 22 order and denying the Hartleys’
TCPA motion.
In this original proceeding, the Hartleys contend the May 6 order is void because the TCPA
prohibits a trial court from ruling on a TCPA motion to dismiss more than thirty days after the trial
court hears the TCPA motion. This Court requested a response to the petition for writ of
mandamus from Panchakarla and respondent. Panchakarla filed a response. After reviewing the
petition, the response, and the mandamus record, we conclude the trial court was without authority
to deny the TCPA motion outside the time allowed by statute. As such, the May 6 order is void,
and the Hartleys are entitled to the relief requested.
Availability of Mandamus Relief
An interlocutory appeal is permitted from the denial of a TCPA motion to dismiss. TEX.
CIV. PRAC. & REM. CODE ANN. 51.014(a)(12). The Hartleys have filed an interlocutory appeal
challenging the merits of the May 6 order. That interlocutory appeal is pending in this Court and
docketed as cause number 05-19-00565-CV.
Mandamus generally issues to correct a clear abuse of discretion or the violation of a duty
imposed by law when there is no other adequate remedy at law. In re Prudential Ins. Co., 148
S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Mandamus is also proper, however, if a trial
court issues an order beyond its jurisdiction because such an order is void. In re Sw. Bell Tel. Co.,
35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding). For example, mandamus is appropriate when
a trial court issues an order after its plenary power has expired. In re Daredia, 317 S.W.3d 247,
250 (Tex. 2010) (orig. proceeding) (per curiam); In re Brookshire Grocery Co., 250 S.W.3d 66,
68–69 (Tex. 2008) (orig. proceeding). When an order is void, the relator need not show he lacks
an adequate appellate remedy to obtain mandamus relief. In re Sw. Bell Tel. Co., 35 S.W.3d at
605.
–2– As our sister court has aptly noted, the TCPA “is directed toward the expeditious dismissal
and appeal of suits that are brought to punish or prevent the exercise of certain constitutional
rights.” Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, 407 S.W.3d 398, 401 (Tex.
App.—Houston [14th Dist.] 2013, no pet.). To effectuate that purpose, we conclude it is
appropriate to address the trial court’s statutory authority to enter the May 6 order through this
original proceeding rather than as a part of the interlocutory appeal.
Applicable Law
A trial court must rule on a TCPA motion to dismiss not later than the 30th day following
the date of the hearing. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(a); see Avila v. Larrea, 394
S.W.3d 646, 656 (Tex. App.—Dallas 2012, pet. denied) (statute requires that the court rule on the
motion within thirty days of hearing and either dismiss the action or not). If the trial court does
not rule on the motion within the time prescribed, the motion is considered denied by operation of
law. TEX. CIV. PRAC. & REM. CODE ANN. § 27.008(a); see also Dallas Morning News v. Mapp,
No. 05-14-00848-CV, 2015 WL 3932868, at *3 (Tex. App.—Dallas June 26, 2015, no pet.) (mem.
op.).
This Court held in Mapp that a trial court’s written order signed forty-one days after the
hearing came too late and was void. Mapp, 2015 WL 3932868, at *3. In Mapp, a TCPA motion
to dismiss was denied by operation of law and an interlocutory appeal was perfected before the
trial court granted the TCPA motion. Id. at *1. This Court rejected the argument that rule 29.5 of
the appellate rules permitted the trial court to belatedly rule on the TCPA motion during the
interlocutory appeal of the denial of the motion by operation of law. Id. at *3. Rule 29.5 provides:
While an appeal from an interlocutory order is pending, the trial court retains jurisdiction of the case and unless prohibited by statute may make further orders, including one dissolving the order complained of on appeal.
–3– TEX. R. APP. P. 29.5 (emphasis added). This Court concluded that the trial judge’s act of signing
an order more than thirty days after the hearing was “an act prohibited by statute” and, as such,
Rule 29.5 was not applicable. We concluded the order was void and “the controlling ruling is the
denial of the motion by operation of law.” Mapp, 2015 WL 3932868, at *3.
This Court has followed Mapp twice, concluding in each case that a trial court lacks
statutory authority to rule on a TCPA motion to dismiss more than thirty days after the hearing on
the motion. See Dobrott v. Jevin, Inc., No. 05-17-01472-CV, 2018 WL 6273411, at *1 (Tex.
App.—Dallas Nov. 30, 2018, no pet.) (mem. op.) (“We conclude that, based on our existing
precedent, the trial court had no authority to grant the TCPA motion to dismiss outside the time
allowed by statute.”); see also Kim v. Manchac, No. 05-17-00406-CV, 2018 WL 564004, at *1
(Tex. App.—Dallas Jan. 26, 2018, no pet.) (mem. op.) (citing Mapp and reversing dismissal order
issued forty-two days after hearing on TCPA motion).
In reaching its decision in Mapp, this Court agreed with and applied the reasoning of the
Fourteenth Court in Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, 407 S.W.3d
398 (Tex. App.—Houston [14th Dist.] 2013, no pet.). In Direct Commercial Funding, the trial
court signed an order granting the defamation defendant’s motion to dismiss six weeks after the
motion was denied by operation of law. Id. at 401–02. After considering the plain language of
the statute and its purpose, the Fourteenth Court concluded a trial court is not authorized to grant
a motion to dismiss under the TCPA more than thirty days after the hearing on the motion. Id.
The court also rejected the suggestion that rule 329b provided authority for the trial court to grant
the motion to dismiss after it had been denied by operation of law. Mapp, 2015 WL 3932868, at
*3 (interpreting Direct Commercial Funding, 407 S.W.3d at 402). Rule 329b, which governs
motions for new trial and motions to modify, correct, or reform judgments, specifically empowers
a trial court to “grant a new trial or to vacate, modify, correct, or reform the judgment until thirty
–4– days after all such timely-filed motions are overruled, either by a written and signed order or by
operation of law, whichever occurs first.” TEX. R. CIV. P. 329b(e). The Fourteenth Court noted,
however, that the TCPA does not contain an analogous provision empowering the trial court to
grant a motion to dismiss after it has been overruled by operation of law. Direct Commercial
Funding, 407 S.W.3d at 402.
Discussion
Here, the trial court heard the motion to dismiss on February 18, 2019 and signed an order
granting the motion on February 22, 2019. The trial court’s statutory deadline to rule on the motion
was March 20, 2019, thirty days after the February 18 hearing. See TEX. CIV. PRAC. & REM. CODE
§ 27.005(a). That deadline is a “mandatory deadline that applies to the trial court’s authority to
rule on a motion to dismiss.” Direct Commercial Funding, 407 S.W.3d at 401. The court’s May
6, 2019 order vacating the February 22 order and denying the motion to dismiss was beyond that
mandatory deadline, was not statutorily authorized, and is void. See Mapp, 2015 WL 3932868, at
*3; see also Direct Commercial Funding, 407 S.W.3d at 401–02; Kim, 2018 WL 564004, at *1;
Avila, 394 S.W.3d at 656. Further, Panchakarla’s motion for new trial and motion for
reconsideration did not extend the statutory deadline for the trial court to rule. See Mapp, 2015
WL 3932868, at *3 (the TCPA does not include a provision empowering the trial court to rule on
a motion to dismiss after it has been overruled by operation of law) (citing Direct Commercial
Funding, 407 S.W.3d at 402); see also Avila, 394 S.W.3d at 656 (TCPA includes no provision for
extension of the thirty-day period in section 27.005(a)).
The trial court was statutorily prohibited from granting Panchakarla’s motion for
reconsideration and for new trial more than thirty days after the hearing on the TCPA motion and,
as such, the trial court’s May 6, 2019 order is void. The Hartleys are, therefore, entitled to
mandamus relief.
–5– Accordingly, we conditionally grant the petition for writ of mandamus. We direct the trial
court to vacate its May 6, 2019 order and reinstate its February 22, 2019 order granting the
Hartleys’ motion to dismiss within thirty days of the date of this opinion. A writ will issue if the
trial court fails to comply.
/Ada Brown/ ADA BROWN JUSTICE
190571F.P05
–6–