COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00047-CV
JUDY A. JENNINGS AND APPELLANTS
REBECCA E. BELL-METEREAU
V.
WALLBUILDER PRESENTATIONS, APPELLEES
INC. THROUGH ITS PRESIDENT,
DAVID BARTON; WALLBUILDERS,
L.L.C. THROUGH ITS PRESIDENT,
DAVID BARTON; AND DAVID
BARTON, INDIVIDUALLY
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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
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OPINION
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I. INTRODUCTION
The sole issue we address is whether we possess jurisdiction over this
interlocutory appeal from the trial court’s order denying Appellants Judy A.
Jennings and Rebecca E. Bell-Metereau’s motion to dismiss filed pursuant to the
Texas Citizens’ Participation Act (TCPA)1 set forth in chapter 27 of the Texas
Civil Practice and Remedies Code2 when the order was signed timely after a
hearing. Because we hold that we do not possess jurisdiction, we dismiss this
appeal.
II. FACTUAL AND PROCEDURAL BACKGROUND
Appellees, WallBuilder Presentations, Inc. Through Its President, David
Barton; Wallbuilders, L.L.C. Through Its President, David Barton; and David
Barton, Individually, sued Appellants, two former Texas State Board of Education
candidates, for libel, defamation, and business disparagement based on a 2010
campaign video that Appellants had paid their political consultant to produce.3
Appellants timely filed a motion to dismiss Appellees’ suit pursuant to section
27.003 of the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(b)
(providing that motion to dismiss must be filed not later than the sixtieth day after
1
The TCPA is considered to be anti-SLAPP legislation. SLAPP stands for
Strategic Lawsuit Against Public Participation, and approximately twenty-seven
states have enacted anti-SLAPP legislation. See generally Shannon Hartzler,
Note, Protecting Informed Public Participation: Anti-SLAPP Law and the Media
Defendant, 41 Val. U. L. Rev. 1235, 1248–70 (2007) (collecting and analyzing
anti-SLAPP statutes).
2
It is undisputed that Appellees’ claims against Appellants constitute a
legal action based on, related to, or in response to Appellants’ exercise of the
right of free speech, right to petition, or right of association so as to fall within the
ambit of the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a) (West
Supp. 2012).
3
The video associated Appellants’ opponents in the 2010 election for the
Texas State Board of Education with David Barton, a person the campaign video
stated was “known for speaking at white-supremacist rallies.”
2
the date of service of the legal action).4 Appellees filed a response to the motion
to dismiss along with attached exhibits and objections. After a hearing at which
arguments were presented by both sides, the trial court signed an order denying
Appellants’ motion to dismiss; the order was signed, as required by section
27.005, within thirty days of the date of the hearing on the motion. See id.
§ 27.005(a) (West Supp. 2012). Appellants perfected this interlocutory appeal;
Appellees assert that the TCPA does not grant this court jurisdiction over
Appellants’ interlocutory appeal.
III. STATUTORY CONSTRUCTION REGARDING INTERLOCUTORY APPEALS
Appellate courts generally have jurisdiction over final judgments. Tex.
Const. art. V, § 6 (providing that appellate courts “shall have appellate jurisdiction
co-extensive with the limits of their respective districts” and “such other
jurisdiction . . . prescribed by law”); Lehmann v. Har-Con Corp., 39 S.W.3d 191,
195 (Tex. 2001); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992);
see also Curtis & Co. v. Wade, 325 S.W.2d 859, 860 (Tex. Civ. App.—San
Antonio 1959, no writ) (explaining generally that appellate court does “not have
supervisory jurisdiction over trial courts”). Jurisdiction of a court of appeals is
controlled by the constitution and by statutory provisions; an interlocutory order is
not appealable unless a statute explicitly provides for appellate jurisdiction. Stary
v. DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998). When an attempted appeal
4
All statutory references herein are to the Texas Civil Practice and
Remedies Code unless otherwise indicated.
3
comes within none of the statutory or constitutional provisions conferring
jurisdiction, an appellate court must not exercise jurisdiction. See N.Y.
Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678–79 (Tex. 1990) (holding
that court of appeals’ assertion of appellate jurisdiction over an interlocutory
order “when not expressly authorized to do so by statute is jurisdictional
fundamental error”); see also Stary, 967 S.W.2d at 352 (explaining that court of
appeals “erroneously held that it had jurisdiction over an interlocutory order
striking a shareholder derivative claim”).
When a statute specifically authorizes appellate courts to hear appeals
from interlocutory orders and judgments, an appellate court may exercise the
jurisdiction statutorily conferred upon it. See, e.g., Qwest Commc’ns Corp. v.
AT&T Corp., 24 S.W.3d 334, 336 (Tex. 2000) (holding section 51.014 of the civil
practice and remedies code authorized interlocutory appeal of order that in effect
granted a temporary injunction); Fort Worth Star-Telegram v. Street, 61 S.W.3d
704, 707–08 (Tex. App.—Fort Worth 2001, pet. denied) (holding section 51.014
of the civil practice and remedies code authorized interlocutory appeal of order
denying motion for summary judgment based on claim against or defense
asserted by a media defendant arising under the First Amendment). Statutes
authorizing interlocutory appeals are strictly construed because they are a
narrow exception to the general rule that interlocutory orders are not immediately
appealable. CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011); Tex. Dep’t
of Transp. v. City of Sunset Valley, 8 S.W.3d 727, 730 (Tex. App.—Austin 1999,
4
no pet.). By the rule of strict construction, “it is not meant that the statute shall be
stintingly or even narrowly construed, but it means that everything shall be
excluded from its operation which does not clearly come within the scope of the
language used.” Norman J. Singer & J.D. Shambie Singer, 3 Statutes and
Statutory Construction, § 58:2, at 110 (7th ed. 2008).
We review issues of statutory construction de novo. Tex. Lottery Comm’n
v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). In construing
statutes, our primary objective is to give effect to the legislature’s intent. Id.
(citing Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex.
2009)). We rely on the plain meaning of the text as expressing legislative intent
unless a different meaning is supplied by legislative definition or is apparent from
the context, or the plain meaning leads to absurd results. Id.; see also Fitzgerald
v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 866 (Tex. 1999) (explaining
that “it is a fair assumption that the Legislature tries to say what it means, and
therefore the words it chooses should be the surest guide to legislative intent”).
Even when it appears that the legislature may have made a mistake, courts are
not empowered to “fix” the mistake by disregarding direct and clear statutory
language that does not create an absurdity. Tex. Lottery Comm’n, 325 S.W.3d at
635; see also Lee v. City of Houston, 807 S.W.2d 290, 293 (Tex. 1991)
(explaining that “[o]ur function is not to question the wisdom of the statute; rather,
we must apply it as written”).
5
IV. THE APPEAL PROVISIONS OF THE TCPA
Section 27.008 of the civil practice and remedies code is titled, “Appeal.”
Tex. Civ. Prac. & Rem. Code Ann. § 27.008 (West Supp. 2012). Section 27.008
sets forth the TCPA’s only language concerning appeals, and it provides:
(a) If a court does not rule on a motion to dismiss under Section
27.003 in the time prescribed by Section 27.005, the motion is
considered to have been denied by operation of law and the moving
party may appeal.
(b) An appellate court shall expedite an appeal or other writ,
whether interlocutory or not, from a trial court order on a motion to
dismiss a legal action under Section 27.003 or from a trial court’s
failure to rule on that motion in the time prescribed by Section
27.005.
(c) An appeal or other writ under this section must be filed on or
before the 60th day after the date the trial court’s order is signed or
the time prescribed by Section 27.005 expires, as applicable.
Id. The change in the law made by the TCPA applies only to cases, like this one,
filed on or after June 17, 2011. See id. historical note (West Supp. 2012) [Act of
May 18, 2011, 82nd Leg., R.S., ch. 341, § 3, 2011 Tex. Gen. Laws 960, 963]. To
date, no Texas appellate court cases construing section 27.008 exist.
V. CONSTRUING THE TCPA
Appellees argue that section 27.008(a) confers appellate jurisdiction on
this court only when a trial court fails to rule within thirty days of the date of the
hearing on a timely-filed motion to dismiss. See id. § 27.008(a). The plain
language of section 27.008(a) provides that “if a court does not rule on a motion
to dismiss,” then the motion is “considered to have been denied . . . and the
6
moving party may appeal.” Id. Relying on the plain language of section
27.008(a) as expressing legislative intent, we agree with Appellees that the
interlocutory appeal statutorily authorized by subsection (a) is limited to situations
in which a trial court has failed to timely rule on a timely-filed motion to dismiss,
and the motion to dismiss is therefore considered to have been denied by
operation of law. Because the trial court in this case did timely hold a hearing on
Appellants’ timely-filed motion to dismiss and did timely rule on Appellants’
motion to dismiss, we agree with Appellees that the present appeal does not fall
within the category of interlocutory appeals authorized by section 27.008(a). See
id.
Appellees next argue that section 27.008(b) likewise does not statutorily
grant an interlocutory appeal in the present case. Section 27.008(b) provides
that “[a]n appellate court shall expedite an appeal or other writ, whether
interlocutory or not, from a trial court order on a motion to dismiss a legal action
under Section 27.003 or from a trial court’s failure to rule on that motion in the
time prescribed by Section 27.005.” See id. § 27.008(b). When a trial court
grants a motion to dismiss under section 27.005, the order dismissing the action
may be appealable, or severable and appealable, as a final, noninterlocutory
order disposing of all issues and all parties. Accord Tex. R. Civ. P. 41 (“Any
claim against a party may be severed and proceeded with separately.”); Martinez
v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 312 (Tex. 1994) (recognizing
that trial court may “make the judgment final for purposes of appeal by severing
7
the causes and parties”). Section 27.008(b) mandates in this situation that such
an appeal be expedited. Tex. Civ. Prac. & Rem. Code Ann. § 27.008(b). If a trial
court denies a motion to dismiss under section 27.005 despite the failure of the
party bringing the action to provide any evidence showing a prima facie case for
each element of his claim, it is possible that the moving party could seek a writ of
mandamus. See id. § 27.005(b) (imposing mandatory duty on trial court to
dismiss the claim unless party bringing action satisfies section 27.005(b)).
Section 27.008(b) mandates in this situation that such an original proceeding be
expedited. See id. § 27.008(b). And if a trial court fails to timely rule on a timely-
filed motion to dismiss, then the motion is denied by operation of law and the
party moving for dismissal may appeal. Id. § 27.008(a). Section 27.008(b)
mandates in this situation that such an interlocutory appeal be expedited. See id.
§ 27.008(b). Thus, the plain language and meaning of subsection (b) is to
require expedited consideration by an appellate court of any appeals or other
writs from a trial court’s ruling on a motion to dismiss filed under chapter 27,
whether interlocutory or not; subsection (b) does not contain language expressly
creating a right of interlocutory appeal from a trial court’s timely ruling denying a
motion to dismiss. Id.
The legislature uses precise language expressly creating a right of appeal
when it intends to expand an appellate court’s jurisdiction to include review of an
interlocutory trial court ruling. See, e.g., id. § 51.014(a) (West Supp. 2012)
(providing that “[a] person may appeal from an interlocutory order” and then
8
listing types of interlocutory orders), § 150.002(f) (West 2011) (providing that
“[a]n order granting or denying a motion for dismissal [based on plaintiff’s failure
to file a certificate of merit in a suit against a licensed or registered professional]
is immediately appealable as an interlocutory order”), § 171.098(a) (West 2011)
(providing in connection with arbitration that “[a] party may appeal a judgment or
decree entered under this chapter or an order:” and then listing types of orders),
§ 15.003(b) (West Supp. 2012) (providing that when suit involves multiple
plaintiffs, “[a]n interlocutory appeal may be taken of a trial court’s determination”);
Tex. Fam. Code Ann. § 56.03(b) (West 2008) (providing in connection with
habitual or violent juvenile offenders that “[t]he state is entitled to appeal an order
of a court in a juvenile case . . . if the order:” and then listing types of interlocutory
orders); Tex. Health & Safety Code Ann. § 574.070(a) (West 2010) (providing
that “[a]n appeal from an order requiring court-ordered mental health services, or
from a renewal or modification of an order, must be filed in the court of appeals
for the county in which the order is entered”); see also Tex. R. Civ. P. 76a
(providing that “[a]ny order . . . relating to sealing or unsealing court records shall
be deemed to be severed from the case and a final judgment which may be
appealed by any party”). The statutory provision at issue here, section
27.008(b), does not use the type of language found in other statutes creating
interlocutory appeals. See Tex. Civ. Prac. & Rem. Code Ann. § 27.008(b). It
does not state that a party may appeal or is entitled to appeal. See id. It does
not articulate that any order is immediately appealable or that any interlocutory
9
order shall be treated as a final judgment. See id. It does not even contain the
language used in the immediately preceding subsection, subsection (a), that “the
moving party may appeal.” Id. § 27.008(a); see id. § 27.008(b). Thus, giving the
language of subsection (b) its plain meaning, it does not create a right of
interlocutory appeal. See id. § 27.008(b).
We must rely on the plain meaning of section 27.008(a) and (b) as
expressing legislative intent unless a different meaning is supplied by legislative
definition or application of the plain meaning leads to absurd results. See Tex.
Lottery Comm’n, 325 S.W.3d at 635. No definitions are provided by the statute
that would supply a different meaning to section 27.008(a) or (b).5 See Tex. Civ.
Prac. & Rem. Code Ann. § 27.001 (West Supp. 2012) (setting forth definitions),
§ 27.008(a), (b). Thus, we next examine whether giving the language of section
27.008(a) and (b) its plain meaning––that is, the meaning that section 27.008
creates a right of interlocutory appeal only when the trial court fails to timely rule
on a timely-filed motion to dismiss––leads to an absurd result. See Tex. Lottery
Comm’n, 325 S.W.3d at 635. Relying on the plain meaning of section 27.008(a)
and (b) as expressing legislative intent that an interlocutory appeal exists under
chapter 27 only when a trial court fails to timely rule on a timely-filed motion to
5
Neither party contends that section 27.008(c) creates a statutory right of
interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 27.008(c) (setting
forth time for filing writ or appeal).
10
dismiss does not lead to absurd results for two main reasons. See Tex. Civ.
Prac. & Rem. Code Ann. § 27.008(a), (b).
First, the overall structure of the TCPA requires judicial review (sections
27.004 and 27.005) of limited evidence (sections 27.005(c) and 27.006)
concerning the elements (section 27.005(c)) of a legal action involving a party’s
exercise of the right of free speech, right to petition, or right of association
(sections 27.003(a) and 27.005(b)) typically within no more than 120 days after
the service of the action.6 See id. §§ 27.003–.006 (West Supp. 2012). Thus, the
legislature ensured in chapter 27 that the trial court would quickly rule on a
motion to dismiss and that if the trial court did not quickly rule, the motion would
be denied by operation of law and then the party moving to dismiss could
appeal––thereby ensuring judicial review of the motion to dismiss by the
appellate court. In other words, the legislature ensured that if the trial court did
not perform the judicial review required by the statute and rule on the motion to
dismiss, then the appellate court could. See id. § 27.008(a). The tight timetables
statutorily established by the legislature for a party to file a motion to dismiss, for
the trial court to set a hearing on a motion to dismiss, and for a trial court to rule
6
The 120-day time period is generally the outside limit because a motion to
dismiss must be filed within sixty days after service of the action (section
27.003(b)), the trial court hearing on the motion to dismiss must be set within
thirty days of the service of the motion to dismiss (section 27.004), and the trial
court must rule on the motion to dismiss within thirty days of the hearing (section
27.005(a)), or the motion is denied by operation of law (section 27.008(a)). See
id. §§ 27.003(a), .004, .005(a), .008(a).
11
on a motion to dismiss or otherwise to have the motion denied by operation of
law, are consistent with the plain meaning of section 27.008 that creates an
interlocutory appeal only when the trial court fails to timely rule on a motion to
dismiss. See id. § 27.008. When the trial court has failed to provide the
mandated review of the evidence purportedly showing a prima facie case for
each essential element of the claim, then the appellate court must provide such
review via an interlocutory appeal. Nothing in the plain language of any of the
provisions of chapter 27 indicates a legislative intent to create a double-layer of
review (first by the trial court and then by the appellate court) of the evidence of a
prima facie case for each essential element of the claim. To the contrary, the
short timetables established in the statute as well as the plain language of
section 27.008(a) and (b) indicate a legislative intent to avoid at the very outset of
the litigation the inevitable delay that an interlocutory appeal imposes, except in
cases where the trial court has not timely ruled on the motion to dismiss and has
therefore not provided the judicial review envisioned by the legislature.7
7
Accord In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 461 (Tex. 2008)
(“Appellate courts cannot afford to grant interlocutory review of every claim that a
trial court has made a pre-trial mistake.”); Am. Home Prods. Corp. v. Clark, 38
S.W.3d 92, 96 (Tex. 2000). In Clark, the supreme court construed a prior version
of the venue/joinder statute as creating no right of interlocutory appeal from a trial
court determination that venue was proper under section 15.002; “if the trial court
determines that venue is proper . . . the inquiry is over. . . . Neither the court of
appeals nor this Court can review the propriety of the trial court’s venue
decision.” Clark, 38 S.W.3d at 96 (emphasis added). The legislature later
amended the statute to expressly grant an interlocutory appeal from a trial court
determination of proper venue or joinder. See Act of June 11, 2003, 78th Leg.,
R.S., ch. 204, § 3.03, 2003 Tex. Sess. Law Serv. 847, 853.
12
Second, when a trial court timely denies a motion to dismiss under chapter
27, such that an interlocutory appeal is not authorized, the party seeking chapter
27 dismissal may nonetheless later avail itself of a no-evidence summary
judgment motion. In many instances, the trial court’s denial of such a
subsequent no-evidence motion for summary judgment will be subject to an
interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(6).8
Thus, construing section 27.008(a) and (b) in accordance with the plain meaning
of the statutory text chosen by the legislature––that is, as creating a new
interlocutory appeal only when a trial court fails to timely rule on a timely-filed
motion to dismiss––does not lead to an absurd result; it leads to the very logical
and laudable result of providing judicial review of the elements of a claim at the
outset of litigation while also limiting the potential for multiple interlocutory
appeals in the same suit.
Despite the failure of section 27.008(a) and (b) to include any express or
plain language creating a right to an interlocutory appeal of a timely-signed order
8
A person may appeal from an interlocutory order that
denies a motion for summary judgment that is based in whole or in
part upon a claim against or defense by a member of the electronic
or print media, acting in such capacity, or a person whose
communication appears in or is published by the electronic or print
media, arising under the free speech or free press clause of the First
Amendment to the United States Constitution, or Article I, Section 8,
of the Texas Constitution, or Chapter 73 [the libel statute].
Id.
13
denying a chapter 27 motion to dismiss and although construing section
27.008(a) and (b) in accordance with the literal text and in view of the entire
statute does not promulgate an absurd result, Appellants nonetheless argue that
a right of interlocutory appeal of an order denying a motion to dismiss must be
implied into the TCPA. Appellants claim that subsection (b)’s language that “[a]n
appellate court shall expedite an appeal or other writ, whether interlocutory or
not, from a trial court order on a motion to dismiss a legal action under Section
27.003” implies the right exists to an interlocutory appeal of any timely-signed
order denying a chapter 27 motion to dismiss. But “implying” categories of
interlocutory appeals into the statute is the antithesis of the strict construction
standard that we are to apply to statutes that grant interlocutory appeals and
thereby expand our jurisdiction. See CMH Homes, 340 S.W.3d at 447
(mandating strict construction of statutes creating interlocutory appeals); Singer
& Singer, supra, § 58:2, at 110 (explaining that under the rule of strict
construction everything shall be excluded from a statute’s operation that does not
clearly come within the scope of the language used). As explained by the United
States Supreme Court, the rule of strict construction is especially important when
construing statutes that grant jurisdiction that does not otherwise exist:
Our analysis of this issue of statutory construction “must begin
with the language of the statute itself,” Dawson Chemical Co. v.
Rohm & Haas Co., 448 U.S. 176, 187, 100 S. Ct. 2601, 2607, 65
L. Ed. 2d 696 (1980), and “[a]bsent a clearly expressed legislative
intention to the contrary, that language must ordinarily be regarded
as conclusive.” Consumer Product Safety Comm’n v. GTE Sylvania,
Inc., 447 U.S. 102, 108, 100 S. Ct. 2051, 2056, 64 L. Ed. 2d 766
14
(1980). Moreover, when the statute to be construed creates, as
§ 437h(a) does, a class of cases that command the immediate
attention of this Court and of the courts of appeals sitting en banc,
displacing existing caseloads and calling court of appeals judges
away from their normal duties for expedited en banc sittings, close
construction of statutory language takes on added importance. As
we have said: “Jurisdictional statutes are to be construed ‘with
precision and with fidelity to the terms by which Congress has
expressed its wishes’; and we are particularly prone to accord ‘strict
construction of statutes authorizing appeals’ to this Court.” Palmore
v. United States, 411 U.S. 389, 396, 93 S. Ct. 1670, 1675, 36
L. Ed. 2d 342 (1973) (citations omitted).
Bread Political Action Comm. v. Fed. Election Comm’n, 455 U.S. 577, 580–81,
102 S. Ct. 1235, 1237–38 (1982); see also Hernandez v. Ebrom, 289 S.W.3d
316, 322 (Tex. 2009) (Jefferson, C.J., dissenting) (“Interlocutory appeals are
disruptive, time-consuming, and expensive.”). The text of section 27.008(a)
states plainly enough when a party may bring an interlocutory appeal—that is,
when “a court does not rule on a motion to dismiss under Section 27.003 in the
time prescribed by Section 27.005, [and] the motion is considered to have been
denied by operation of law.” Tex. Civ. Prac. & Rem. Code Ann. § 27.008(a).
And the text of section 27.008(b) does not expressly create a right of appeal but
instead imposes a duty on the appellate courts to expedite disposition of any
types of appeals or writs “from a trial court order on a motion to dismiss a legal
action under Section 27.003 or from a trial court’s failure to rule on that motion in
the time prescribed by Section 27.005.” Id. § 27.008(b). Because the statute to
be construed, section 27.008, creates a class of cases that command the
immediate attention of this court, displacing existing caseloads and calling us
15
away from our normal duties for expedited dispositions, close construction of the
statutory language is especially important. See Bread Political Action Comm.,
455 U.S. at 580–81, 102 S. Ct. at 1237–38. Thus, construing section 27.008 with
precision and with fidelity to the terms by which the legislature has expressed its
wishes, we decline to “imply” into the statute, as Appellants request, a right of
interlocutory appeal from a timely-signed order denying a timely-filed chapter 27
motion to dismiss. Accord id.; see also Harris County Hosp. Dist. v. Tomball
Reg’l Hosp., 283 S.W.3d 838, 846–47 (Tex. 2009) (declining to read language
into the statutes and citing Seay v. Hall, 677 S.W.2d 19, 25 (Tex. 1984) (“While
this court may properly write in areas traditionally reserved to the judicial branch
of government, it would be a usurpation of our powers to add language to a law
where the legislature has refrained.”)).
Appellants also urge us to consider the legislative history of the TCPA. We
apply a “text-centric model” when construing statutes; we will use extrinsic aids
such as legislative history only when the text is not clear. See Ojo v. Farmers
Grp., Inc., 356 S.W.3d 421, 435 (Tex. 2011) (Jefferson, C.J., concurring). Here,
the text is clear—section 27.008 creates an interlocutory appeal only if a court
does not timely rule on a motion to dismiss. See Tex. Civ. Prac. & Rem. Code
Ann. § 27.008 (a), (b). We nonetheless have reviewed the legislative history
materials provided by Appellants; they do not support Appellants’ position. The
legislature clearly contemplated that an expedited appeal would be provided and
16
that the timetables set forth in section 27.008(c) would apply. But as to the exact
scope of the appeal contemplated, the legislative history materials shed no light.
In summary, relying on the plain meaning of section 27.008(a) and (b) as
expressing legislative intent, finding no different meaning has been supplied by
legislative definition, viewing the statute as a whole and finding that construing
section 27.008(a) and (b) in accordance with their plain meaning does not lead to
absurd results, and strictly construing section 27.008 so that everything is
excluded from its operation that does not clearly come within the scope of the
language used, we hold that section 27.008 does not create an interlocutory
appeal from a timely-signed trial court order that denies a timely-filed chapter 27
motion to dismiss. See, e.g., Bread Political Action Comm., 455 U.S. at 580–81,
102 S. Ct. at 1237–38; Tex. Lottery Comm’n, 325 S.W.3d at 635; Stary, 967
S.W.2d at 352–53; Singer & Singer, supra, § 58:2, at 110. Once the trial court
timely rules, even erroneously, on a chapter 27 motion to dismiss, the inquiry is
over; this court possesses no interlocutory appellate jurisdiction to review the
propriety of the trial court’s timely ruling. See, e.g., N.Y. Underwriters Ins. Co.,
779 S.W.2d 677, 678–79; Stary, 967 S.W.2d at 352. Because Appellants
attempt to appeal from a nonappealable interlocutory order, we have no
jurisdiction except to dismiss the appeal. See Cantu Servs., Inc. v. United
Freedom Assoc., Inc., 329 S.W.3d 58, 63 (Tex. App.––El Paso 2010, no pet.).
17
VI. CONCLUSION
Because we lack jurisdiction over this interlocutory appeal from the trial
court’s timely-signed order denying Appellants’ timely-filed motion to dismiss, we
dismiss this appeal. Appellants have filed with this court a motion requesting that
their interlocutory appeal be considered, in the alternative, as an original
proceeding. By separate order issued concurrently with the issuance of this
opinion, we grant that motion.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: August 16, 2012
18