The El Paso Court of Appeals has reversed a motion to dismiss a defamation lawsuit under the Texas Citizens Participation Act (TCPA) on the basis that the trial court’s hearing on the motion occurred outside of the statute’s hearing deadline.
The facts in Jeff Leach, Individually and d/b/a Basecamp Terlingua v. Katy Schwartz (No. 08-20-00073-CV) do not show the Texas judicial system at its best. The case arose out of an alleged physical assault at Leach’s home against employee Schwartz, who filed a police report and discrimination complaint at the Texas Workforce Commission. Leach sued Schwartz for defamation and intentional infliction of emotional distress in a Brewster County district court. Schwartz filed a TCPA motion to dismiss. So far, so routine. At a pretrial hearing, the parties agreed to a hearing date for the TCPA motion a few days later. If this hearing had been held, it would have complied with the statute, which allows a 30-day extension beyond the 60-day hearing deadline based on the court’s docket conditions. Two days before the hearing, however, the trial judge recused himself and passed the hearing to another judge. Leach objected to the assignment of the new judge, so the chief administrative judge of the region assigned himself to the case. He set the hearing two days later, but for some reason it wasn’t held for another three weeks. By the time the hearing actually happened, nearly 120 days had passed since Schwartz made her motion to dismiss. Noting the unusual docket conditions (and the logistical problem of getting a new judge to Brewster County in a timely fashion, the third trial judge granted the motion to dismiss. Leach appealed.
While sympathizing with Schwartz’s plight and acknowledging that she continuously attempted to get the court to set the hearing in a timely fashion, the El Paso Court of Appeals reversed. Citing the 2013 amendments to the TCPA, the court ruled that it had no authority to give any leeway on a hard statutory deadline. Those amendments changed the original statute, which required only that a hearing be “set” within 60 days of the motion to dismiss, to allow a 30-day extension beyond the deadline because of docket conditions. But the amendments mandated that the “in no event shall the [TCPA] hearing occur more than 90 days after service of the [TCPA] motion.” § 27.004(b), CPRC. There is one exception under which the deadline may be extended another 30 days if the court allows discovery, but that was not applicable here. Undoubtedly recognizing her peril, as the deadline approached Schwartz filed a supplemental motion requesting discovery, but the trial court never ruled on it and the court of appeals rejected her argument that the trial court implicitly granted the motion. In the event, the court of appeals felt compelled to reverse the dismissal and remand to the trial court.
This one has all the appearances of a one-off case, but judging from the number of other appellate decisions cited by the court of appeals on the hearing deadline issue, it clearly happens more than you would think. Proponents of the TCPA have long insisted that the deadlines must be hard and fast to deter trial courts from dragging their feet and never having the required hearing. But in this case it seems to have worked a perverse result, particularly because during the 2019 session those same proponents made a big issue of the importance of the TCPA in suits against women who allege sexual assault. Now it would appear that all the trial court has to do is wait out the hearing deadline. That would defeat the purpose of a court having a timely hearing but not ruling on the motion, which amounts to a denial of the motion and triggers the interlocutory appeal mechanism of the statute. At least in that case, the trial court can punt the issue to the court of appeals to make the call for it. But if the trial court simply sits on it long enough, nobody will have to make the decision. Not sure this is the way the TCPA was supposed to work, but saying that the statute has ever in general worked the way it was supposed to is a pretty good stretch.
