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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00650-CV
Alex E. Jones; Infowars, LLC; Free Speech Systems, LLC; and Owen Shroyer, Appellants
Filed in The District Co:
ve of Travis County, Tex ut
Neil Heslin, Appellee AUG 30 2019
a G00 f*
Velva L. Price, District Clerk
FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-18-001835, THE HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
OPINION
Appellants 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.
BACKGROUND
Heslin’s 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, Heslinfiled 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 states:
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.
Appellants’ 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”).
DISCUSSION
The parties present several arguments relating to the merits of Appellants’ motion
to dismiss. However, the threshold question of whether Appellants’ motion to dismiss wasoverruled 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”).
The 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. Jd. 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
3service 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).
CONCLUSION
We 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. Accordingly, we
dismiss the appeal for lack of jurisdiction.
Gisela D. Triana, Justice
Before Chief Justice Rose, Justices Triana and Kelly
Dismissed for Want of Jurisdiction
Filed: August 30, 2019TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED AUGUST 30, 2019
NO. 03-18-00650-CV
Alex E. Jones; Infowars, LLC; Free Speech Systems, LLC; and Owen Shroyer, Appellants
v.
Neil Heslin, Appellee
APPEAL FROM 261ST DISTRICT COURT OF TRAVIS COUNTY
BEFORE CHIEF JUSTICE ROSE, JUSTICES TRIANA AND KELLY
DISMISSED FOR WANT OF JURISDICTION -- OPINION BY JUSTICE TRIANA
Having reviewed the record, it appears that the Court lacks jurisdiction over this appeal.
Therefore, the Court dismisses the appeal for want of jurisdiction. Appellant shall pay all costs
relating to this appeal, both in this Court and in the court below.FILE COPY
COURT OF APPEALS
FOR THE
THIRD DISTRICT OF TEXAS
P.O. BOX 12547, AUSTIN, TEXAS 78711-2547
Date: August 30, 2019
Appeal No.: 03-18-00650-CV
Trial Court No.: D-1-GN-18-001835
(512) 463-1733
Style: Alex E. Jones; Infowars, LLC; Free Speech Systems, LLC; and Owen Shroyer
v. Neil Heslin
Please be advised that Appellants’ Motion to Supplement Initial Brief was dismissed as moot on
the date noted above. Also, the enclosed opinion and judgment were sent this date to the
following persons:
The Honorable Velva L. Price
Civil District Clerk
Travis County Courthouse
P. O. Box 1748
Austin, TX 78767
* DELIVERED VIA E-MAIL *
The Honorable Scott H. Jenkins
Judge, 53rd District Court
P. O. Box 1748
Austin, TX 78767
* DELIVERED VIA E-MAIL *
Mr. Michael Burnett
Burnett Turner
6034 West Courtyard Drive, Suite 140
Austin, TX 78730
* DELIVERED VIA E-MAIL *
Mr. Mark Bankston
Kaster Lynch Farrar & Ball
1010 Lamar, Suite 1600
Houston, TX 77002
* DELIVERED VIA E-MAIL *
The Honorable Billy Ray Stubblefield
Administrative Judge
Williamson County Courthouse
405 Martin Luther King, Box 2
Georgetown, TX 78626
* DELIVERED VIA E-MAIL *
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-18-00650-CV Alex E. Jones; Infowars, LLC; Free Speech Systems, LLC; and Owen Shroyer, Appellants Filed in The District Co: ve of Travis County, Tex ut Neil Heslin, Appellee AUG 30 2019 a G00 f* Velva L. Price, District Clerk FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-18-001835, THE HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING OPINION Appellants 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. BACKGROUND Heslin’s 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, Heslinfiled 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 states: 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. Appellants’ 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”). DISCUSSION The parties present several arguments relating to the merits of Appellants’ motion to dismiss. However, the threshold question of whether Appellants’ motion to dismiss wasoverruled 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”). The 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. Jd. 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 3service 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). CONCLUSION We 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. Accordingly, we dismiss the appeal for lack of jurisdiction. Gisela D. Triana, Justice Before Chief Justice Rose, Justices Triana and Kelly Dismissed for Want of Jurisdiction Filed: August 30, 2019TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN JUDGMENT RENDERED AUGUST 30, 2019 NO. 03-18-00650-CV Alex E. Jones; Infowars, LLC; Free Speech Systems, LLC; and Owen Shroyer, Appellants v. Neil Heslin, Appellee APPEAL FROM 261ST DISTRICT COURT OF TRAVIS COUNTY BEFORE CHIEF JUSTICE ROSE, JUSTICES TRIANA AND KELLY DISMISSED FOR WANT OF JURISDICTION -- OPINION BY JUSTICE TRIANA Having reviewed the record, it appears that the Court lacks jurisdiction over this appeal. Therefore, the Court dismisses the appeal for want of jurisdiction. Appellant shall pay all costs relating to this appeal, both in this Court and in the court below.FILE COPY COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS P.O. BOX 12547, AUSTIN, TEXAS 78711-2547 Date: August 30, 2019 Appeal No.: 03-18-00650-CV Trial Court No.: D-1-GN-18-001835 (512) 463-1733 Style: Alex E. Jones; Infowars, LLC; Free Speech Systems, LLC; and Owen Shroyer v. Neil Heslin Please be advised that Appellants’ Motion to Supplement Initial Brief was dismissed as moot on the date noted above. Also, the enclosed opinion and judgment were sent this date to the following persons: The Honorable Velva L. Price Civil District Clerk Travis County Courthouse P. O. Box 1748 Austin, TX 78767 * DELIVERED VIA E-MAIL * The Honorable Scott H. Jenkins Judge, 53rd District Court P. O. Box 1748 Austin, TX 78767 * DELIVERED VIA E-MAIL * Mr. Michael Burnett Burnett Turner 6034 West Courtyard Drive, Suite 140 Austin, TX 78730 * DELIVERED VIA E-MAIL * Mr. Mark Bankston Kaster Lynch Farrar & Ball 1010 Lamar, Suite 1600 Houston, TX 77002 * DELIVERED VIA E-MAIL * The Honorable Billy Ray Stubblefield Administrative Judge Williamson County Courthouse 405 Martin Luther King, Box 2 Georgetown, TX 78626 * DELIVERED VIA E-MAIL *